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regard to the benefit that the buyer might have derived from them.

amine the

After the merchandises have been delivered, the buyer is pre- Right to excluded from raising any complaint for fault of quality, or want goods. of quantity, once he has been enabled to examine the goods, and the delivery has been made according to number, weight, and measure. If, however, the merchandise was sent in bales, or covered packages, the purchaser has eight days from the delivery within which he may make such claim, unless he shall have given to the vendor an attestation, certifying that he has received it correct in quality and quantity. The seller remains liable for six months for any hidden defects in the goods, but after this delay he is free from all responsibility.

If no period has been fixed, the merchandise should be delivered twenty-four hours after the contract, and the price paid within ten days. The purchaser, however, cannot exact the delivery of the goods before he has paid for them. The expenses for delivery, weighing, and measuring, are paid by the vendor. Those for receiving and transporting are borne by the pur

chaser.

Time of

delivery.

As soon as the goods sold are placed at the disposal of the purchaser he is bound to pay their price, but the vendor has a lien upon them till they are delivered. If any delay occur in the payment of the price, the purchaser must pay to the vendor the legal interest on the amount he owes from the time agreed for the delivery. So long as the articles are Right of lien. in possession of the vendor, he retains over them a preference above all other creditors of the purchaser, namely, a lien for the amount of the price and interest due on it, in consequence of delay in payment. No vendor can refuse to the purchaser an invoice of the merchandise sold and delivered, with a receipt for the price, or of the amount he has received.

Commercial sales are not void in consequence of fraud. They simply give rise to suits for damages against the contractor who may have practised fraud. Money paid in earnest is considered as part payment, and not as a condition upon the non-fulfilment of which the sale may be cancelled, unless by a contrary agreement it is so expressly stipulated. In every commercial sale Guarantee of the vendor is bound to guarantee the purchaser from all eviction, although the contract should not express it, unless there

title.

be a clause to the contrary. Moreover, an action will always lie for damage and interest, where it is proved that the vendor has acted fraudulently in the sale.

If the purchaser does not give notice to the seller of the demand on evicting, should the possession of the goods be questioned, he will lose all the effects of the guarantee (a).

Reception of the goods.

Duty of the seller to allow the examination of the goods.

SECTION V.

DUTIES OF THE PURCHASER.

BRITISH LAW.

The first duty of the buyer is to receive the goods and to pay the price on delivery or at the time agreed on by the contract. Where no time is fixed by the contract for the reception of the goods, it must be shown that a reasonable time for the performance of it has elapsed before a suit can be instituted for goods sold and delivered (b). But where a time has been fixed, and the same has elapsed, if the buyer refuses to accept the goods, the seller, having done all that was required for his part to render the transfer effectual, may sue the buyer either on the contract or for goods bargained and sold (c), and the proper measure of damage is the difference between the contract price and the market price on the day when the goods are tendered for acceptance and refused (d). If the vendee does not accept the goods at the time appointed, or within a reasonable time, the contract is dissolved and the vendor is at liberty to sell them to any other person (e).

When goods are sold by sample, the seller must allow the buyer to inspect the goods in bulk in order to ascertain whether the bulk corresponds with the sample, and before a right of action accrues to the vendor for non-acceptance, a reasonable

(a) Spanish Code, §§ 361 to 381.
(b) Parkinson v. Whitehead, 2 Scott,
N. S. 620; Sansom v. Rhodes, 6 Bing.
N. C. 261; Stavart v. Eastwood, 11
M. & W. 197.

(c) Alexander v. Gardner, 1 Bing.
N. C. 671; Fragano v. Long, 4 B. &

C. 221; Boorman v. Nash, 9 B. & C. 152.

(d) Phillpotts v. Evans, 5 M. & W. 475; Chinery v. Viall, 29 L. J. Ex.

180.

(e) Langford v. Tiler, 1 Salk. 113; Hinde v. Whitehouse, 7 East, 571.

opportunity of inspecting the goods must have been given (a). If the seller refuses to show the bulk the buyer may rescind the contract (b).

In a sale of goods by sample, if the bulk of the commodity do not correspond with the sample the vendee may return the goods and rescind the sale, provided he returns them in a reasonable time, and he has not exercised any act of ownership over them (c). Even where no provision is made in the contract for the return of the goods, the contract may be rescinded by the mutual consent of both parties; and such an agreement will put an end to the sale as if it had never taken place (d).

When the vendor receives and accepts returned goods, if he exercises acts of ownership over them, he is held to have rescinded the sale though he received the same upon protest and without prejudice (e).

In a sale of goods, with an express or implied guarantee, when the goods have been received and accepted, and the contract is executed, the vendee has no more right, in the absence of frauds, to rescind the contract, and return the goods should they not answer to the guarantee, but he may sue on the warranty, or give the breach of warranty in evidence in mitigation of damages. But in an executory contract where an article is ordered from a manufacturer who contracts that it shall be of a certain quality, or fit for a certain purpose, and the article sent as such is never completely accepted by the party ordering it, if he discovers the defect, the contract may be rescinded provided he has done nothing more in the meantime than was necessary to give it a fair trial (ƒ). If the vendor fails to give a good title, the vendee may rescind the contract (g). When an unreasonable time has elapsed for the performance, the vendee has a right to make an abandonment and rescind the contract (h).

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sale has been

Where the sale has been obtained by means of fraud, the When the party grieved has the right to repudiate the contract. Fraud

(a) Isherwood v. Whitmore, 10 M. & W. 757, and 11 M. & W. 347.

(b) Lorymer v. Smith, 1 B. & C. 1. (c) Street v. Blay, 2 B. & Ad. 463; Okell v. Smith, 1 Stark. 107; Sanders v. Jameson, 2 C. & K. 557.

(d) Salte v. Field, 5 T. R. 211.

(e) Long v. Preston, 2 Moo. & Payne, 262.

(f) Street v. Blay, 2 B. & Ad. 463. (g) Souter v. Drake, 5 B. & Ad. 999; Purvis v. Rayer, 9 Price, 488.

(h) Lawrence v. Knowles, 7 Scott, 381.

obtained by fraudulent

means.

Fraud or illegality excuses performance.

gives the party upon whom it is practised the right of election. If a purchase of goods is effected by means of fraudulent representations on the part of the vendee, the vendor may maintain trover for the goods against the vendee without a previous demand (a). If upon the discovery of fraud the vendor elects to rescind and avoid the sale, he must do it within a reasonable time. If he does anything to affirm the sale after a full knowledge of the facts, and if he suffers considerable time to elapse, he will not be entitled to disaffirm the sale and reclaim the goods. So if a vendee after discovering the sale to be fraudulent deals with the property as his own, he cannot recover the purchase money upon subsequently detecting further circumstances of fraud in the sale (b).

The buyer will be excused from fulfilling his contract when the vendor is guilty of any fraud in the sale, as when he has employed puffers in an auction, without giving notice of his intention to do so, or has given a false description of the goods, or has fraudulently concealed any material things (c), or even where he has used some artifice to disguise faults even when the article was sold with all faults (d). It is, however, the duty of the buyer on discovering the fraud to lose no time in repudiating the contract, and he would lose his right of objection if, instead of doing so, he should continue to deal with the article (e). So when the contract has become illegal, the buyer may excuse himself from performing it. Where a contract which a plaintiff seeks to enforce is, expressly or by implication, forbidden by statute or common law, no Court will lend its assistance to give it effect (ƒ).

(a) Thurston v. Blanchard, 22 Pickford, 18.

(b) Campbell v. Fleming, 3. Nev. & M. 834.

(c) Howard v. Castle, 6 T. R. 642; Thornett v. Haines, 15 M. & W. 367; Smith v. Clark, 12 Ves. 477; Early v. Garrett, 9 B. & C. 928.

(d) Baglehole v. Walters, 3 Camp.

154.

(e) Campbell v. Fleming, 1 Ad. & E. 40; Chapman v. Morton, 11 M. & W. 534.

(f) Wetherell v. Jones, 3 B. & Ad. 225.

SECTION VI,

RIGHTS OF THE SELLER.

BRITISH LAW.

§ 1. Lien.

Where nothing is specified as to delivery or payment although Vendor's everything may have been done so as to divest the property out right of lien. of the vendor, and so as to throw upon the vendee all the risk attendant upon the goods, still there results to the vendor out of the original contract a right to detain the goods until payment of the price (a). The vendor has no right to treat the sale at an end and reinvest the property in himself by reason of the vendee's failure to pay the price at the appointed time. He has only a right of lien till the price is paid (b).

No lien can exist where there is no possession of the goods, therefore the lien is lost if the party entitled to it gives up his right to such possession, whether the delivery has been actual or constructive. The delivery of part of the goods sold divests the vendor of the right of lien over the remainder, if made in the progress of, and with a view to the delivery of the whole. If, however, there is an intention to separate the part from the remainder, the lien will continue (c).

Where the goods sold remain in the warehouse of the vendor, and he receives warehouse rent for them from the purchaser, it will amount to a delivery of the goods to him, so as to put an end to the vendor's right of lien (d). The giving of a delivery order does not, without some positive act done under it, operate as a constructive delivery of the goods to which it relates, nor deprive the owner of the goods who gave it of his right of lien for their price, even as against the claims of a third person who has bona fide purchased them from the original vendee, but once the delivery order is accepted the lien is lost (e).

Lien cannot without pos

be claimed

session of goods.

What amounts to a delivery

so as to exclude lien.

A lien is wholly inconsistent with a dealing on credit, and can Lien incon

(a) Withers v. Reynolds, 2 B. & Ad. 882; Atkinson v. Smith, 14 M. & W. 695.

(b) Martindale v. Smith, 1 Q. B. 389.

(c) Slubey v. Heyward, 2 H. Bl. 504.
(d) Miles v. Gorton, 4 Tyrwh. 295.
(e) M'Ewan v. Smith, 2 H. of Lords
Cases, 309; Lackington v. Atherton, 7
M. & G. 360.

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