the title as against subsequent attaching creditors of the vendor. Day v. Griffith, 15 Iowa, 104.

And the delivery of a bill of sale of personal property, without consideration and without a delivery of the property itself, is not such a transfer of the property as a court of equity will enforce. King, 7 R. I. 358.

Stone v.

A bill of sale and a receipt of payment was given for articles not then manufactured, but they were subsequently manufactured, and a part delivered, and it was held that whether such delivery of part operated as a delivery of the whole depended on the intention of the parties, which was a question for the jury. Pratt v. Chase, 40 Me. 269.

A bill of sale of personal property in New York, where possession does not accompany the transfer, has no preference over a mortgage of the same property subsequently executed, although that also may be unaccompanied by a change of possession. Bennett v. Earll, 21 Wend. 117.

§ 33. By transfer of bill of lading. It is likewise well settled as a general principle that the indorsement and transfer to the buyer of bills of lading will be a good delivery in performance of the contract of sale, so as to defeat any action by the buyer against the vendor for non-delivery of the goods. Salter v. Woollams, 2 M. & G. 650; Wood v. Manley, 11 Ad. & El. 34; Jordan v. James, 5 Ohio, 88; Law v. Hatcher, 4 Blackf. (Ind.) 364; Davis v. Jones, 3 Houst. (Del.) 68; Ezell v. English, 6 Port. (Ala.) 311; Tilden v. Minor, 45 Vt. 196. So, the delivery or assignment of store receipts, given by a warehouseman with invoice and weigher's return, is a sufficient symbolic delivery to pass the title to property. Stokes v. Recknagel, 6 Jones & Sp. 368; Hayden v. Demets, 53 N. Y. (8 Sick.) 426; affirming S. C., 2 Jones & Sp. 344; Gardner v. Howland, 2 Pick. 599; Newcomb v. Cabell, 10 Bush (Ky.), 469. Usage has made the possession of such documents equivalent to the possession of the property itself. Broadwell v. Howard, 77 Ill. 305. Thus, where a warehouseman purchased grain stored by him, for another person, and with such other person's money, and took up his outstanding receipt, held by the vendor, and issued a new receipt to the person for whom he bought, it was held that the grain was not liable thereafter to be taken in execution against the warehouseman. Id.

So, the delivery to a purchaser of a ginner's receipt for cotton, which stipulated that the same was to be ginned, bailed, etc., and delivered to the holder of the receipt, was held to be a symbolical delivery of the cotton, sufficient to pass the title to the purchaser free from a landlord's lien for rent, of which he had no notice.

Puckett v. Reed, 31 Ark. 131. And see Re Batchelder, 2 Low, 245. And a tender, by the seller of goods, of an unindorsed custom-house permit, authorizing a delivery of the goods by the warehouseman, is held to be a sufficient offer of delivery of the goods, it appearing that the permit was sufficient, if indorsed by the vendor, to enable the buyer to take possession. Dunbar v. Pettee, 1 Daly (N. Y.), 112. But where A, who had shipped goods to his agent B for sale, drew a bill on B in favor of C, and delivered to C the railroad receipt for the goods, this was held to be no transfer of title so as to enable C to maintain trover. M'Pherson v. Neuffer, 11 Rich. (S. C.) 267.

34. Buyer's duty to accept. Where a valid contract of sale is made in writing, a delivery pursuant to such contract at the place agreed upon for delivery, or a shipment of goods in conformity with the terms of the contract, will pass the title to the vendee without any receipt or acceptance of the goods by him. But if the contract is oral, and no part of the price is paid by the vendee, there must not only be a delivery of the goods by the vendor, but a receipt and acceptance of them by the vendee to pass the title or make the vendee liable for the price; and this acceptance must be voluntary and unconditional. Even the receipt of the goods without an acceptance is not sufficient. Some act or conduct on the part of the vendee, or his authorized agent, manifesting an intention to accept the goods as a performance of the contract, and to appropriate them, is required to supply the place of a written contract. Caulkins v. Hellman, 47 N. Y. (2 Sick.) 449; S. C., 7 Am. Rep. 461; Stone v. Browning, 68 N. Y. (23 Sick.) 598; Remick v. Sandford, 120 Mass. 309; Edwards v. Grand Trunk Railway, 54 Me. 105. A detention of custody by the buyer becomes, however, in the lapse of time, decisive of the question; for, should he determine for any cause not to accept the goods, he must promptly return them to the vendor, or give him notice to take them back. Reed v. Randall, 29 N. Y. (2 Tiff.) 358; Clark v. Wright, 5 Phil. (Penn.) 439; Treadwell v. Reynolds, 39 Conn. 31; Couston v. Chapman, L. R., 2 Sc. App. 250; Knoblauch v. Kronschnabel, 18 Minn. 300. And the buyer's appropriation of a part of the goods, by a sale thereof, will be an appropriation of the whole, so far as to subject him to pay for them at their real value, not exceeding the contract price. Watkins v. Paine, 57 Ga. 50.

As it regards the effect of acceptance it is held that where the vendee, under an executory contract for the purchase and sale of personal property containing no warranty, express or implied, accepts the property after examination, such acceptance implies a consent or agreement on his part that the quality is satisfactory, and is conclusive upon him.

But if such acceptance is brought about by the fraud of the vendor, or an examination is fraudulently prevented or interfered with by him. the acceptance by the vendee is not binding as an assent to the quality, and his rights are not impaired thereby. Dutchess Company v. Harding, 49 N. Y. (4 Sick.) 321. See, also, Goodhue v. Butman, 8 Me. 116; Vanderhorst v. M' Taggart, 2 Bay (S C.), 498; Dana v. Boyd, 2 J. J. Marsh. (Ky.) 587.

When the purchaser absolutely refuses to accept goods according to contract, the seller need not continue ready to deliver them, but may resell and sue immediately for the damages he has sustained. West v. Cunningham, 9 Port. (Ala.) 104; Pollen v. LeRoy, 30 N. Y. (3 Tiff.) 558; Girard v. Taggart, 5 Serg. & R. 19. A resale of the goods should be made at the earliest practicable period after an absolute refusal to accept; but where such refusal is afterward modified, and the buyer expresses himself as being uncertain whether or not he shall accept the goods, the seller is not obliged to sell at once, but may wait a reasonable time to allow the buyer to determine whether he will take them. Tilt v. LaSalle Silk Manuf. Co., 5 Daly (N. Y.),

19.

Where the law can pronounce upon a state of facts relative to a sale of goods, that there is or is not a delivery and acceptance, it is a question of law to be decided by the court. But where there may be uncertainty and difficulty in determining the true intent of the parties respecting the delivery and acceptance, from the facts proved, the question of acceptance is to be determined by the jury. Hondlette v. Tallman, 14 Me. 400. And see Stone v. Browning, 68 N. Y. (23 Sick.) 598.

§ 35. Buyer's duty to pay. Where the seller of goods has done all that was required of him to do in regard to the delivery of the goods, they are at the risk of the buyer, whose duty it is, at the time of the delivery, to be by himself or agent at the price fixed in the contract, ready to perform his part of its stipulation (Fitzpatrick v. Fain, 3 Coldw. [Tenn.] 15); or, if no price has been expressly agreed upon, to settle for the goods at their market value, at the time of the sale. Street v. Blay, 2 Barn. & Ad. 456; Hoadley v. McLaine, 10 Bing. 482; S. C., 4 Moore & S. 340. In cases where the property has passed, the buyer must pay the price according to the terms agreed on, even if the goods are destroyed in the vendor's possession. Rugg v. Minett, 11 East, 210; Chambers v. Miller, 13 C. B. (N. S.) 125. And even where the property has not passed, and the price is to become payable only on delivery, yet, if the buyer has assented to assume the risk of delivery, he must pay the price if the goods are destroyed be

2

fore delivery. Martineau v. Kitching, L. R., 7 Q. B. 436; S. C., Eng. R. 539; Castle v. Playford, L. R., 7 Exch. 98; S. C., 1 Eng. Rep. 204; Benj. on Sales (2d ed.), 583.

$36. Mode of payment. In respect to the mode of payment, it will in any case depend upon the agreement, express or implied, of the parties. If there is nothing in the contract to the contrary, the sale will be regarded as having been made for cash; and the purchaser will not be entitled to delivery, as matter of right, without making payment. Martineau v. Kitching, L. R., 7 Q. B. 436; S. C., 2 Eng. R. 539; Robbins v. Harrison, 31 Ala. 160; Metz v. Albrecht, 52 Ill. 491. In the absence of any special agreement, payment and delivery are to be deemed concurrent acts, and an action for non-performance cannot be maintained by either party, without showing a readiness to perform on his part. Id.; Southwestern Freight, etc., Co. v. Plant, 45 Mo. 517; Coil v. Willis, 18 Ohio, 28; Davis v. Adams, 18 Ala. 264. And see Cassell v. Backrack, 42 Miss. 56; S. C., 2 Am. Rep. 590; Goldsmith v. Bryant, 26 Wis. 34; Brehen v. O'Donnell, 34 N. J. Law, 408. And where it is not the intention of the vendor to part with the possession of the property until he is paid the price agreed upon, in money, he will not lose title to the property by inadvertently allowing the purchaser to get possession thereof without payment. Miller v. Jones, 66 Barb. 148.

Where, as is sometimes the case, the contract provides that payment is only to be made after demand or notice, a reasonable time must be allowed for the purchaser to get his notice and to comply with it. Brightly v. Norton, 3 B. & S. 305. A notice served at noon to make payment in half an hour was held not to be a reasonable notice. Id. And see Massey v. Sladen, L. R., 4 Exch. 13. So, it was held that a promise to pay "immediately on demand" could not be construed so as to deprive the debtor of an opportunity to get the money which he may have in bank or near at hand. Toms v. Wilson, 4 B. & S. 442.

Where the agreement does not provide that payment is not to be made until the whole is delivered, the vendor is not obliged to deliver, nor the vendee to receive, any part thereof until the whole be deliverable. If less than the whole be received by the vendee, and the contract stipulates for payment on delivery, the vendor is entitled to immediate payment for the portion delivered; but such claim may be waived. Matthews v. Hobby, 48 Barb. 167. See Oxendale v. Wetherell, 9 Barn. & Cr. 386; Houston v. Chapman, L. R., 2 Sc. App.

250.

If the payment be made in accordance with the vendor's request, and in the manner and with the precautions prescribed by him, the

buyer will be discharged, although the money never reaches the vendor's hands; as where the money is transmitted by mail in compliance with the vendor's directions, and is lost or stolen. Barwick v. Noakes, Peake, 68; Townsend v. Henry, 9 Rich. (S. C.) L. 318; Williams v. Carpenter, 36 Ala. 9; Gordon v. Strange, 1 Exch. 477; Gurney v. Howe, 9 Gray, 404. But it was held that a direction to transmit by mail was not complied with by the delivery of a letter, with the remittance inclosed, to the postman in the street, but it should have been deposited in the post-office, or a receiving office authorized to receive letters with money. Hawkins v. Rutt, Peake, 186, 248.

A tender of payment is as much a performance and discharge of the buyer's duty as an actual payment. But a tender is valid only when the buyer produces and offers to the vendor an amount of money equal to the price of the goods. See Dixon v. Clarke, 5 C. B. 365. A tender of a gross sum due on several demands, without designating the amount tendered upon each, is, however, sufficient. Thetford v. Hubbard, 22 Vt. 440. And the actual production of the money may be dispensed with by the words or acts of the vendor (Mattocks v. Young, 66 Me. 459; Harding v. Davis, 2 Carr. & P. 77; Douglas v. Patrick, 3 T. R. 683); though the courts have been rigorous in requiring proof of a dispensation. See Finch v. Brook, 1 Bing. N. C. 253; Thomas v. Evans, 10 East, 101; Leatherdale v. Sweepstone, 3 Carr. & P. 342. A tender should be in the lawful coin of the country, or in such paper money as the constitution and laws may have legalized for that purpose. Hallowell Bank v. Howard, 13 Mass. 234; Legal Tender Cases, 12 Wall. 457. But, if not objected to at the time, a tender in bank notes or even foreign money will answer. Id.; Brown v. Simons, 44 N. H. 475; Cooley v. Weeks, 10 Yerg. (Tenn.) 141. A tender of a larger sum than is due, with a demand for change, is not a good tender, if the creditor objects to giving change. Betterbee v. Davis, 3 Camp. 70; Bean v. James, 4 B. & Ad. 546. See Patterson v. Cox, 25 Ind. 261. A tender must be unconditional and unqualified. Sanford v. Bulkley, 30 Conn. 344; Cothran v. Scanlan, 34 Ga. 555. But a tender accompanied by a protest that the amount is not due is a good tender. Scott v. Uxbridge, Railway Co., L. R., 1 C. P. 596; Manning v. Lunn, 2 Carr. & K. 13. And a tender is not vitiated because the debtor says he considers it all that is due. Robinson v. Ferreday, 8 Carr. & P. 752.

In the absence of any agreement to the contrary, a negotiable security, as a promissory note or bill of exchange, taken in payment for goods, is always understood to be conditional, the vendor's right to the price reviving on non-payment of the security. Griffiths v. Owen, 13