as in the case of factors, but in certain cases without

[*331] any *such authority, provided the sale be made

in market overt, of which see Com. Dig. Market (E.); 2 Inst. 713; Lyons v. De Pass, 11 A. & E. 326, 39 E. C. L. R.; and Wilkinson v. King, 2 Camp. 336. See also statutes 2 P. and Mary, c. 7, and 31 Eliz. c. 12. But the vendee would not be bound by a contract which the vendor had not the power to carry into effect.

Where the vendor is empowered to sell, there may be a complete and valid sale without delivery to and acceptance by the purchaser,2 provided that the property has vested in him, which enables the vendor to maintain an action for goods bargained and sold (see Atkinson v. Bell, 8 B. & Cr. 277, 15 E. C. L. R.), and the test is the appropriation of the thing sold to the buyer with his assent, the bargain being completed (see Dixon v. Yates, 5 B. & Ad. 340, 27 E. C. L. R., per Parke, J.); but if anything remains to be done before delivery, as, for instance, to ascertain the weight or

1 But it has been repeatedly held that the English law of market overt, which is dependent upon special custom (every shop being in London a market overt, as to goods usually and publicly sold there, 5 Coke, 84), has not been adopted here; Dame v. Balwin, 8 Mass. 518; Griffith v. Fowler, 18 Vermont, 390; Wheelwright v. De Peyster, 1 Johns. 480; Hoffman v. Carow, 22 Wendell, 285; Hosack v. Weaver, 1 Yeates, 478; Easton v. Worthington, 5 Serg. & Rawle, 130; Browning v. M'Gill, 2 Har. Johns. 308; Roland v. Gundy, 5 Ohio, 202; Lance v. Cowen, 1 Dana, 195; M'Grew v. Browden, 14 Martin, 17; Ventriss v. Smith, 10 Peters, 161.

2 That is to say, as between the parties there may be a valid sale without delivery. The question depending upon the validity of sales with respect to third parties, where the delivery of possession does not accompany the sale, are too numerous to be here considered. The multitude of decisions to which this subject has given rise, will be found classified in the note to Twyne's case, 3 Coke, 80, in 1 Smith's Leading Cases, 34.

settle the price of the goods, the action will not lie; Rhoades v. Thwaites, 6 B. & Cr. 392, 13 E. C. L. R.1

1 This statement must not be taken unqualifiedly. Where, by the terms of the contract, or what is the same thing, by the usage of trade, when it is a part of the contract, something remains to be done, such as counting, measuring, weighing, and filling up, to ascertain the number, quantity, and weight, then the rule stated in the text is applicable. Thus where bales of skins, said to contain five dozen in each bale, were sold at so much per dozen, and it was the duty of the seller, according to the usage of the trade, to count over the skins to see how much each bale contained, and before such counting, they were destroyed by fire, it was held that the purchaser could not be made liable for their value; Zagury v. Furnell, 2 Camp. 240. So, where the sale was of all the starch in the vendor's warehouse, at so much per hundred weight, the weight to be ascertained before delivery; Hanson v. Meyer, 6 East, 614. Similar instances will be found in Wythers v. Lyn, 4 Camp. 237; Wallace v. Breeds, 13 East, 422; Burk v. Davis, 2 Maule & Selw. 397 (explaining Whithouse v. Frost, 12 East, 614); Shepley v. Davis, 5 Taunt. 617; White v. Wilks, Id. 176; Simmons v. Swift, 5 Barn. & Cress. 857; Barrett v. Goddard, 3 Mason, 112; Ward v. Shaw, 7 Wendell, 406; Sumner v. Hawlett, 12 Pick. 82; Riddle v. Varnum, 20 Pick. 280; Davis v. Hill, 3 N. Hamp. 382; Smyth v. Craig, 3 Watts & Serg. 14; Hutchinson v. Hunter, 7 Barr, 140; Golder v. Ogden, 3 Harris, 528; Crawford v. Smith, 7 Dana, 61; Woods v. M'Gee, 7 Ohio, 466. So, by the French Code, when merchandise is not sold in the lump, but by weight, by counting, or by measure, the sale is . not perfect, in this sense, viz., that the things sold are at the risk of the seller, until they may be weighed, counted, or measured. Art. 1585.

But where it appears that the parties intended that the sale should be perfect before such weighing, &c., the rule thus stated loses its application, Scott v. Wells, 6 Watts & Serg. 366; Dennis v. Alexander, 3 Barr, 51; Macomber v. Parker, 13 Pick. 175; Riddle v. Varnum, 20 Pick. 280; Downer v. Thompson, 6 Hill, 208, and delivery of possession is of course evidence to go to the jury, that such was the contract, Scott v. Wells; and it is said, in the recent case of Golder v. Ogden, 3 Harris, 528, that the rule in Pennsylvania is less stringent than in England, and that if there be a specific identification and preparation of the particular goods, the mere fact that

It is, however, quite immaterial whether the right of possession be out of the vendor, so long as the right of property is in the vendee; Sparks v. Marshall, 2 Bing. N. C. 761, 29 -E. C. L. R.

To maintain an action for goods sold and delivered, it is requisite that there should be not only complete delivery to, but actual or implied acceptance by the buyer. The cases in which acceptance is required by the 17th section of the Statute of Frauds, and a definition of what it consists in, have been already explained (see ante, p. 71), and there is no sound distinction between the sort of acceptance required by that section and that required to maintain this action.' See a learned note by Mr. Smith on this point in his "Mercantile Law," p. 447, ed. 1843.

Goods, as we have seen, are delivered by any act which places them in the vendee's power or possession, without respect to where they may be placed. *See Salter v. Woollams, 2 M. & Gr. 650, 40 E. C. L. R.; Wood v. Manley, 11 A. & E. 34, 39 E. C. L. R.

[*332]

As regards the time of delivery where goods are sold, and nothing is said about the time of delivery or of payment, the seller is bound to deliver them, provided the buyer is ready to pay the price, and a demand is sufficient prima facie evidence of such readiness; see 2 Wm. Saund. 352, a, in notis; and the delivery must take place within a reasonable | period, and what is such is for the jury to decide; Ellis v. Thompson, 3 M. & W. 453.

The law has recently been fully laid down on this

they are to be counted, &c., will not prevent the transmission of title to the vendee, unless the contrary is expressly proved to have been the contract.

'But see supra, note to page 76.

subject in the case of Startup v. Macdonald, in error, 6 M. & G. 593, 46 E. C. L. R., where an action of assumpsit was brought for not accepting ten tons of linseed oil delivered at nine o'clock at night on the last of fourteen days specified as the period within which it should be delivered. Parke, B., thus stated the law: "A party who is, by contract, to pay money or to do a thing transitory to another anywhere on a certain day, has the whole of the day, and if on one of several days, the whole of the days, for the perfor mance of his part of the contract; and until the whole day, or the whole of the last day has expired, no action will lie against him for the breach of the contract. In such a case the party bound must find the other at his peril (Kidwelly v. Brand, Plowd. 71), and within the time limited, if the other be within the four seas; Shepp. 136; and he must do all that, without the concurrence of the other, he can do, to make the payment, or perform the act, and that at a convenient time before midnight, such time varying according to the quantum of the payment, or the nature of the act to be done. Therefore, if he is to pay a sum of money, he must tender it a sufficient time before midnight for the party to whom the tender is made to receive and count; or if he is to deliver goods, he must tender them so as to allow sufficient time for examination *and receipt. This done, he [*333] has, so far as he could, paid or delivered within the time; and it is by the fault of the other only that the payment or delivery is not complete. But where the thing to be done is to be performed at a certain place, on or before a certain day, to another party to a contract, there the tender must be to the other party at that place; and as the attendance of the other is necessary at that place to complete the act, there the

law, though it requires that other to be present, is not so unreasonable as to require him to be present for the whole day where the thing is to be done on one day, or for the whole series of days where it is to be done on or before a day certain, and therefore it fixes a particular part of the day for his presence; and it is enough if he be at the place at such a convenient time before sunset on the last day so that the act may be completed by daylight; and if the party bound tender to the party there, if present, or, if absent, he be ready at the place to perform the act within a convenient time before sunset for its completion, it is sufficient; and if the tender be made to the other party at the place at any time of the day, the contract is performed; and though the law gives the uttermost convenient time on the last day, yet this is solely for the convenience of both parties, that neither may give longer attendance than is necessary; and if it happens that both parties meet at the place at any other time of the last day, or upon any other day within the time limited, and a tender is made, the tender is good. (See Bacon's Abr. tit. Tender (D.), Co. Lit. 202, a.) This is the distinction which prevails in all the cases: where a thing is to be done anywhere, a tender a convenient time before midnight is sufficient; where the thing is to be done at a particular place, and where the law implies a duty on the party to whom the thing is to be done to attend, that attendance is to be by daylight, and a convenient time before sunset. I [*334] therefore think that the tender was good in this case in point of time, and, consequently, that the plaintiffs having been able to meet with the defendant, actually to tender the oil to him a sufficient time before midnight to enable the defendant to receive, examine, and weigh the oil, performed, as far as they