Contracts not Since executory contracts of sale are included within sect. 4 of Chap. III. the Sale of Goods Act, 1893, the operation of the following section of the Statute of Frauds must be very limited in regard to the to be persale of goods : "No action shall be brought . . . . (5) upon any agreement that is not to be performed within the space of one year from the making thereof, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith or some other person thereunto by him lawfully authorized."1 "Where the agreement distinctly shows upon the face of it that the parties contemplated its performance to extend over a greater space of time than one year, the case is within the statute; but where the contract is such that the whole may be performed within a year, and there is no express stipulation to the contrary, the statute does not apply." It has, however, been decided that where the whole of what has to be done by one party is to be performed within a year, the case is not within the statute. 2 3 formed within Statute of It remains to be added that where in an action it is intended Pleading. by either party to rely upon sect. 4 of the Sale of Goods Act, 1893, or on the Statute of Frauds, in answer to a claim, he must raise such matter by his pleading in the High Court, or by notice in the County Court.5 129 Car. 2, c. 3, s. 4. See notes to Peter v. Compton, 1 Sm. L. C. 316. 2 Souch v. Strawbridge, 2 C. B. 815, per Tindal, C.J.; see McGregor v. McGregor, 21 Q. B. D. 424; Smith v. Gold Coast Co., [1903] 1 K. B. 285, 538. 3 Donellan v. Read, 3 B. & Ad. 899; Cherry v. Heming, 4 Ex. 631; Miles v. 4 R. S. C. Ord. XIX., r. 15. See 5 Brutton v. Branson, [1898] 2 Q. B. 219. Chap. IV. Delivery. Duty of seller and buyer. Place of delivery. Time of delivery. CHAPTER IV. SALE OF GOODS-(continued). Delivery-Seller's Lien-Stoppage in Transitu-Representation- As we have already said, although goods be not delivered the buyer may become the owner of the goods; but, where they have not been paid for, the property in them may pass to the buyer subject to the lien of the seller for the unpaid purchase-money. The buyer, having the property in the goods, has primâ facie the right to possess them; but this right may be made conditional by the terms of the agreement. It is the duty of the seller to deliver the goods, and of the buyer to accept and pay for them, in accordance with the terms of the contract.1 Unless otherwise agreed, delivery of the goods and payment of the price are concurrent conditions; that is to say, the seller must be ready and willing to give possession of the goods to the buyer in exchange for the price, and the buyer must be ready and willing to pay the price in exchange for possession of the goods.2 3 It depends upon the contract between the parties in each case, whether the buyer must take possession of the goods or the seller send them to the buyer. But apart from any contract, the place of delivery is the seller's place of business, if he have one, and, if not, his residence. If, however, the contract is in respect of specific goods, which are, to the knowledge of the parties, in some other place at the time of the contract, then that place is the place of delivery.3 3 If the seller is bound to send the goods to the buyer, and no 1 Sale of Goods Act, 1893, s. 27. Delivery is defined, s. 62 (1). See Pollock and Wright on Possession, 43. 2 Ib. s. 28. See notes to Cutter v. Powell, 2 Sm. L. C. 11. See Forrestt v. Aramayo, 83 L. T. 335. 3 Ib. s. 29 (1). time is fixed, he must send them within a reasonable time.1 A Chap. IV. demand or tender of delivery may be treated as ineffectual if made at an unreasonable hour.2 Goods which are, at the time of sale, in the possession of a third person, are not delivered by the seller to the buyer until such person acknowledges to the buyer that he holds for him.3 Goods in possession of third person. carrier. If the seller is authorized or required to send the goods to the Delivery to buyer, delivery to any carrier for the purpose of transmission to the seller is primâ facie a delivery to the buyer.* If the seller delivers the goods to the buyer without receiving payment, he has no further rights over the goods, and his only remedy is to bring an action for the price. seller's lien. Notwithstanding that the property in the goods may have passed Unpaid to the buyer, an unpaid seller, who is in possession of the goods, has a lien on the goods, or a right to retain them for the price while he is in possession of them until payment or tender of the price, in the following cases :-(1) where there is no stipulation as In what to credit; (2) where the goods are sold on credit, but the term of credit has expired; (3) where the buyer becomes insolvent." The seller may exercise this right of lien notwithstanding that he is in possession of the goods as agent or bailee for the buyer.7 If part of the goods has been delivered, the unpaid seller may exercise his right of lien or retention on the remainder, unless the part delivery has been so made as to show an intention to waive the lien or right of retention.8 cases. Where seller bailee for agent or buyer. Where part delivery. The unpaid seller loses his lien, or right of retention, (1) when Termination he delivers the goods to a carrier or other bailee for the purpose of of lien. transmission to the buyer without reserving the right of disposal9 of the goods; (2) when the buyer or his agent lawfully obtains possession of the goods; (3) by waiver thereof.10 This lien or right of retention is not lost by reason only that the seller has obtained judgment for the price of the goods.11 Chap. IV. Stoppage in transitu. Duration of transit. When the buyer of goods becomes insolvent, the unpaid seller who has parted with possession has the right of stopping the goods in transitu, that is to say, he may resume possession of the goods so long as they are in course of transit, and may retain them until payment or tender of the price.1 A person is "insolvent" who has ceased to pay his debts in the ordinary course of business, or cannot pay them as they become due, whether he has committed an act of bankruptcy or not.2 Stoppage in transitu and seller's lien are sometimes confounded.3 Seller's lien arises when the buyer is in default, be he solvent or insolvent. Stoppage in transitu arises on the insolvency of the buyer, whether he is in default or not. The lien can only be asserted while the goods are in the possession of the seller or his bailee; stoppage in transitu can only be asserted while the goods are in the hands of a third person who holds them for the purposes of transmission only, and not at the will of either the seller or the buyer. The right of stoppage in transitu is exerciseable whether the vendor is wholly or partially unpaid; and even if the goods are purchased on credit which has not expired at the time of stoppage.5 Goods are in course of transit from the time when they are delivered to a carrier by land or water, or other bailee, for the purpose of transmission to the buyer, until the buyer or his agent in that behalf takes delivery from such carrier or bailee." If the buyer obtains delivery of the goods before their arrival at the appointed destination, the transit is at an end. If, after their arrival at the appointed destination, the carrier or other bailee agrees to hold and does hold the goods as bailee for the buyer, the transit is at an end, and it is immaterial that a further destination for the goods may have been indicated by the buyer. If the buyer rejects the goods and the carrier continues in 1 Sale of Goods Act, 1893, s. 44. See notes to Lickbarrow v. Mason, 1 Sm. L. C. 738. 2 Ib. s. 62 (3). 3 See as to the distinction between Hodgson v. Loy, 7 T. R. 440; 4 Inglis v. Usherwood, 1 East, 515; Botlingk v. Inglis, 3 East, 381; 7 R. R. 490. 6 Sale of Goods Act, s. 45 (1); Kendal v. Marshall, 11 Q. B. D. 356; Bethell v. Clark, 20 Id. 615. 7 Ib. s. 45 (2); Whitehead v. Anderson, 9 M. & W. 518, 534; 60 R. R. 819. 8 Ib. s. 45 (3); Ex p. Cooper, 11 Ch. D. 68, 78. possession, the transit is not at an end, even though the seller Chap. IV. refuse to receive them back.1 When goods are delivered to a ship chartered by the buyer it is a question, depending on the circumstances of each particular case, whether they are in possession of the master as a carrier, or as agent for the buyer.2 If the carrier wrongfully refuses to deliver the goods to the buyer or his agent, the transit is then at an end.3 If part delivery of the goods has been made to the buyer or his Effect of agent, the remainder may be stopped in transitu, unless the part delivery. circumstances of the part delivery show an agreement to give up possession of the whole.* The delivery of part may have been for the purpose of separating that part from the whole; in which case the seller's lien, or right to stop in transitu, as the case may be, still exists over the remainder. On the other hand, part may have been delivered without any intention to separate it from the remainder, and in the process of delivering the whole, in which case the seller's rights are gone as to the whole.* It should perhaps be noted that the carrier may agree to hold the goods as the bailee of the seller, in which case the latter can exercise his seller's lien, but not the right to stop in transitu. The effect of the seller drawing bills for the price on the buyer, and the latter accepting them, depends upon the intention of the parties. It may be the intention of the parties that this shall amount to payment; but primâ facie the effect is merely to give credit to the buyer for the period during which the bill has to run, so as to suspend the seller's lien and his right to sue for the price until the bill arrives at maturity and is dishonoured, or the buyer becomes insolvent. It has not the effect of defeating the seller's right of stoppage in transitu.7 5 Effect of seller drawing bills for price. in transitu is effected. The seller may exercise his right of stoppage in transitu either How stoppage by taking actual possession of the goods, or by giving notice of his claim to the carrier or other bailee in whose possession the Such notice may be given either to the person in goods are. 1 Sale of Goods Act, 1893, s. 45 (4). 2 Ib. s. 45 (5). 3 Ib. s. 45 (6); Bird v. Brown, 4 Exch. 786. Tb. s. 45 (7); Kemp v. Falk, 7 App. Cas. 573; Ex p. Cooper, 11 Ch. D. 68 ; Tanner v. Scovell, 14 M. & W. 28. 5 Hewison v. Guthrie, 2 B. N. C. 755; Valpy v. Oakeley, 16 Q. B. 941; Patten v. Thompson, 5 M. & S. 350; |