It was, at one time, held that a warranty might be inferred from the price paid, but this doctrine has been long discountenanced as a general rule. It may receive a sanction, however, in the usage of trade, in paying a certain price for a certain quality of goods. Thus, where "well-cured herrings for exportation" were purchased at a price said to be the highest in the home-market for the best quality, the jury were told that the law implied a warranty of the best quality, unless they were satisfied from the evidence that when herrings were bought for exportation they were understood to be of an inferior quality.2 When articles are sold under their market price, the tacit obligation of warrandice is not to be rigorously applied, particularly if the seller say the buyer must take his chance; but this does not extend to permitting the vendor to sell at a low price what is utterly useless, or to cheat by adulteration or otherwise.3 Nor will an express warranty of the seller be relaxed, however cheap may be the subject.4

The buyer complaining of defects must show that they, or at least the proximate causes of them, existed at the time of sale.5. It was held that in the case of such a commodity as a steam-engine, the circumstance of its requiring an unusual amount of repairs immediately after it has been furnished is sufficient ground for its insufficiency being inferred, unless the maker can show that it has been unskilfully used, or has been injured by some accidental cause. It was found that the existence of disease in a horse at the time of sale might be proved by dissection after death. If the seller refuse to take back the subject of the sale when in terms of the bargain he is in law liable to do so, it remains at his risk.8

SECT. 3. Obligations on the Buyer.

The principal obligation of the buyer is to pay the price, and in the ordinary case he cannot demand delivery until he is prepared to do so.9 Delay to pay at the proper period founds a claim for interest;10 but in the absence of express stipulation the time and manner of payment are regulated by custom.

1 Smith's M. L. 465. M. on V. & P. 345.-2 Whealler v. Methuen, 20th June 1843.-3 N. H. L.- Ibid.-5 Br. on S. 297.-6 Napier v. Campbell, 10th March 1841.-7 Wright v. Blackwood, 14th June 1833.8 Graham v. Wilson, 25th January 1839.-9 Br. on S. 343.-10 E. iii. 3, 79. Br. on S. 348.

Credit.-Where credit is stipulated for, the purchaser can demand delivery before payment; but it is an obligation on his part that he shall be in a state of solvency. If he is not, the vendor having consented to give credit by the terms of the contract, cannot pursue for the money; but he may suspend the contract. Where no credit is stipulated for, the purchaser may still be entitled to it by the usage of trade, if that usage was known to both parties at the time when the contract was entered on.2

The market price is the criterion of the price where none is stipulated, but long delay to object to the price, after the charge has been rendered, will deprive the buyer of the right to complain that the sum is above the market price.3 The price ought to be in current money, but this general obligation may be affected by special stipulation. Thus the buyer may agree to give " a discountable bill," or "an approved bill," which means one that no reasonable objection can be stated to. Where the seller agrees to take bank-notes, or the bill of a third party not indorsed by the buyer, or if, for his own convenience, he prefers an indorsed bill to money, or agrees to run the risk of taking such a bill, he takes the chance of getting payment through the document.4 Where the seller has got a bill from the buyer, and has lost it, he cannot demand cash, at all events he cannot do so without agreeing to indemnify the buyer for any claim which may be made on him, although the original bargain should have been for ready money. If the seller has received a bill without objecting for some time, he will be barred from a claim for cash.6

Another obligation of the buyer is, to take delivery of the subject; and if he do not do so, he will not only be subject to the risk, but be liable to the seller for the expense occasioned by keeping it.7

Notice of Defect. If the buyer intend to give up his purchase on the ground of any alleged defect, he must do so without undue delay. He cannot, after having intimated that he rejects the goods as unsound, take possession of part of them, without rendering himself liable to fulfilment of his own part of the contract. Like most similar matters in mercantile law, the time within which notice of rejection

M. on V. & P. 249.-2 B. P. 100, 101.- Mills v. Hamilton, Ist Dec. 1830. B. P. 106, 107, 127. M. on V. & P. 276.-5 Br. on S. 389. M. on V. & P. 276.-6 Arnot v. Watt, 12th May 1825.-7 B. P. 128.8 Ransan v. Mitchell, 3d June 1845.

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must be given is greatly regulated by the customs of trade. A person was not entitled to plead the unfitness of sowing seed which he had purchased in December 1818, and for which he had given bill in February 1819. Much will depend on the time which the defect is likely to take in fully developing itself, in conjunction with the conduct of the purchaser. A horse having been worked for six weeks, and having been a few days in the hands of a third party, was found not returnable on the ground that it had spavin and was a shiverer." 2 In England, a chandelier having been contracted for sufficient to light a room of given dimensions, which the buyer kept and used for six months, and then returned, he was held bound to pay for it though it was not according to the contract.3 A person who was in doubt as to the sufficiency of an article purchased, was found to have lost his remedy by taking his chance of profit in allowing it to be put up for sale. But the buyer may, it is said, return the goods which he has resold in the regular course of trade, if the second purchaser is justly discontented with them. The keeper of a tavern was allowed to return a cargo of wine some months after he received it, because his customers complained of its being bad. Damages were given for the price of herrings paid for by the original purchaser, a purchaser from him having refused them as not a proper marketable commodity.7 It is held that even where the delay has been such as to bar the purchaser from succeeding in his entire rejection of the goods, he may be allowed relief by abatement on making out a strong case of defect." If the buyer is discontented, and the seller intimates his wish that the bargain shall be at an end, the buyer loses his right to insist on its fulfilment by delay in answering.9

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SECT. 4.-Conditional Sale.

Conditions in the contract of sale are of two kinds, Resolutive and Suspensive. A contract of sale made under a condition of the former kind is as complete, in the mean time, as an unconditional contract, each party being entitled to call on the other for performance of his engagements. The purpose of the Resolutive Condition is to make the sale

1 Bruce v. M'Kenzie, 21st June 1821.- Pollock v. Macadam, 9th June 1840.3 Milner v. Tucker, 1st Dec. 1823. 1 Car. & Pay. 15.- Parker v. Palmer, 1821. 4 Barn. & Ald. 387.-5 N. H. L.- Dunbreck v. Grant, 11th Dec. 1792. N. H. L.-7 Whealler v. Methuen, 10th January 1843.8 B. C. i. 439.- M'Niell v. Cameron, 21st Jan. 1830.

be dissolved, and the parties restored to their former position, if the condition is not fulfilled. It is very questionable how far such a condition can operate in Scotland. The law of trade does not permit one to found a false credit by retaining, as his property, that which may be by a secret understanding vindicated as the property of another person. Whatever may be the effect then of such a condition as between the buyer and seller, it cannot affect third parties, such as the buyer's creditors, who would undoubtedly be entitled to goods which he had purchased under the condition that if not paid for at a certain time they should be restored to the seller.2

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Suspensive. In the case of a Suspensive Condition (or, as it is termed in England, a condition precedent), there is no good sale until the condition is accomplished.3 The condition may be either as to the subject of the sale, or as to the price; a very common condition is, that the article shall give the buyer satisfaction. Two bullocks were sold at so much per stone of what they might weigh, provided the purchaser on seeing them was pleased with their appearance. He was not pleased, and the transaction was found to be no sale. There may be conditions over which neither of the parties has any control, such as the arrival of a vessel. Where goods are sold on arrival" by a certain vessel, there is no sale if the vessel arrive without the goods. Where tallow was purchased on arrival," " if it should not arrive on or before the 31st December next, the bargain to be void," and the vessel was wrecked on the way, but the tallow was saved, and might have been otherwise forwarded by the 31st December, the sellers were not held liable by the bargain to undertake this additional trouble and expense. A common condition as to the price is, that it shall be paid in ready money. If it is not paid when the goods arrive, there is no sale, unless the seller expressly or tacitly consent to an alteration, which he will do by not returning immediately a bill for the amount sent to him. Where clover seeds were sold for acceptance of a draft at three months, and the draft was sent with the bill of lading, with a request that it would be returned" in course," and it was not returned by the next

1 Br. on. S. 32.-2 St. i. 14, 5. B. C. i. 239.-3 Br. on S. 33.-* M'Bein . Shaw, N. H. L.-5 Br. on S. 38.—6 Boyd v. Sifkin, 1809. 2 Camp. 326. - Idle v. Thornton, 1812, 3 Camp. 273.- Arnot v. Watt, 12th May

1825.

post after receipt, the sellers were held entitled to reland the goods and give up the bargain.1

Although a conditional sale is not completed until the fulfilment of the condition, the parties are bound to each other, and neither is entitled to do any thing which may affect the right of the other during the dependence of the condition. If either do so, he will be liable to damages for breach of the contract.2

Sale and Return.-The common commercial contract called Sale and Return, by which goods are committed by a wholesale dealer to a retailer, to be paid for at a certain rate if sold again by the latter, is a species of conditional sale. When the goods are kept beyond the time specified, or when none is specified if they are not returned within a reasonable time, the sale will be held absolute.3 In this species of transaction goods are generally sent periodically, and the accounts between the parties settled at regular intervals.*

CHAPTER II.

SALE BY AUCTION.

SECT. 1.-Nature and Requisites.

THIS is a process by which the possessor of a commodity comes under an engagement to the public to sell it to that person who will give for it the largest sum, or the largest excess over a certain " upset price." By the usual method in this country bidders compete against each other, each offering more than his predecessor until an offer is made which no one present is disposed to go beyond. By the method called Dutch auction," the commodity is put up at a price beyond what is expected for it, which is gradually decreased, until it reaches that point which will induce some one present to purchase it, rather than incur the risk of its falling into the hands of another by a farther reduction. The auctioneer acts as agent for both parties, the vendor specially empowering him to sell, while the purchaser authorizes him by bidding. In England his note of the bidding in the cata

1 Brodie v. Todd & Co. 20th May 1814.-2 Br. on S. 43.- Ibid. 37.B. C. i. 270.