SECTION 36. TIME OF DELIVERY.

Where the time of delivery is not fixed by the terms of the contract, the law demands that the delivery be made within a reasonable time. What is a reasonable length of time, depends upon the facts and circumstances of the particular sale.10 Where the time of delivery is agreed upon, in the contract, not much difficulty can arise, where the terms of the contract stating the time of delivery are clear and unequivocal, but the parties may see fit to state the time of delivery in a more or less ambiguous form. Where the language is not plain, it remains then for the court to construe it; for instance, where delivery is to be made "as soon as possible," "about a certain day," "next year" and the like terms. These terms may have a somewhat different meaning under different circumstances.

Where the time for delivery is fixed by the terms of the contract the law usually deems the time to be of the essence of the contract.11 Performance at the time agreed upon is indispensable. To make it absolutely free from doubt, it is, however, a general rule of contract law that where time is to be of the essence of the contract the safest way would be to use this phrase, stating in express words, that time is of the essence of the contract. In the contract of sale, it is enough ordinarily to fix the time in the contract.

The weight of authority in the United States is that the right to rescind the contract of sale remains to either party, where the other fails to perform an essential term of the contract.12

10 Walden vs. Murdock, 23 Cal., 540. " Cleveland Rolling Mills Rhodes, 121 U. Š., 255.

VS.

12 Providence Coal Co. vs. Coxe,

19 R. I., 380.

SECTION 37. QUANTITY AND QUALITY OF GOODS

DELIVERED.

The amount of goods, or the quantity, or quality of the material purchased as named in the contract, is the amount, or quantity to be delivered, the contract could not be satisfied by delivery of a less amount, or a greater amount, than the contract calls for. Where, however, something in excess is delivered to insure against shortage and no charge made for the same, that could not raise an objection to the delivery. But the amount delivered must be the amount agreed upon in the contract, and if the seller sends more, or less than the quantity ordered, or sends goods of a different quality, the title does not pass to the goods so sent until the purchaser makes the new contract by accepting the goods so sent.13 Where less than the whole amount ordered is shipped, the buyer may reject the shipment as made, he has a right to stand on the contract as made.14

SECTION 38. MODE OF DELIVERY.

In addition to the buyer's placing the goods at the disposal of the purchaser in a deliverable state, or delivering the goods to the carrier, or other agent of the buyer with notice of the same to the purchaser where notice is necessary, a delivery may also be made by the delivery of the keys of the building, in which the goods are stored, by the buyer to the seller, or where intent is also shown to surrender possession of the goods, this has been deemed a delivery, so as to pass title. And it has been held that such a mode of delivery is good as against a creditor of the seller, who subsequently attempts to take the goods on an attachment or execution.15 So

Larkin vs. Mitchell, 42 Mich., 296. 14 Norrington vs. Wright, 115 U. 8.,

188.

"Kellogg's Newspaper Co. VS

Peterson, 162 Ill. 156; Packard vs. Dunsmore, 11 Cush.,

282.

when a ship is in a foreign port or on the high seas, a transfer of the ship may be made by assignment of the bill of sale, and a delivery of the assignment, with other papers relating to the vessel, and the buyer takes actual possession as soon as the ship comes to port, or circumstances will allow.16 Delivery may be made by installments, only where the parties to the contract of sale have so agreed, and where from the nature of sale it would be unreasonable to expect the whole to be delivered at one time, the right to deliver in installments may be implied.

SECTION 39.

EXCUSE FOR NON-DELIVERY.

17

It is a general rule of the law of sales that the seller is not in default, if the delay on his part is occasioned by the default of the purchaser in first doing that which is a condition precedent to delivery."7 The buyer may for instance, fail to come for the goods at the time agreed upon, in which case, the seller would be justified in deeming the contract abandoned.18 Delivery will be excused if the buyer refuses or defaults in payment, where payment and delivery are to be contemporaneous. So if the buyer renounces the contract, the seller is thereby excused from the duty of making delivery.

The seller of goods is likewise absolved from his obligation to make delivery of goods, if before the day fixed for the delivery the buyer becomes insolvent.

Where the performance of the contract itself is by law made illegal subsequent to the date of its making, both parties are excused from performance. Performance is likewise excused where at the time, it is physically impossible to perform, but this does include mere inability to perform the contract.

16 Crapo vs. Kelly, 16 Wall., 640. 17 Weill vs. American Metal Co.,

182 Ill., 128.

18 Warren VS. Buckminster, 24

N. H., 386.

SECTION 40. WHAT CONSTITUTES ACCEPTANCE.

Once the contract of sale has been made, the buyer owes the reciprocal duty to the seller, of making acceptance of the goods when delivery of the goods is made by the buyer. This includes something in addition to mere receipt of the goods by the buyer; it includes also the mental act of assent, as well as the physical act of acceptance. Acceptance is held to have been made in the absence of express assent, where the buyer receives the goods and then deals with them in such a way as to make the law presume an assent, as where he retains the goods without objection, for a time beyond the time to make objection.

Acceptance will likewise be implied so as to preclude the buyer from returning the goods, where he exercises acts of ownership over the goods, as by making resale of the goods or by giving a chattel mortgage on them.19

When the acceptance is made, under mistake of fact, or by reason of a fraud perpetrated on the purchaser by the buyer, the courts will in most cases grant relief to the buyer.20

SECTION 41. EXCUSE FOR NON-ACCEPTANCE.

The buyer is likewise excused from performing his part of the contract, namely, making acceptance of the goods, where the other party to the contract of sale is in default. The default of the seller may arise from a failure to deliver on time, or it may be that the goods delivered are not of the quality or quantity agreed upon. In the latter case the buyer may reject the goods as delivered, and this may be done, by bringing home to the purchaser some notice of the fact that he 19 Van Winkle vs. Crowell, 146 U. 20 Shipway vs Broadwood, 1 Q B., S., 42

369,

refuses to accept the goods. The buyer is not bound to return the goods to the seller unless he has agreed to do so in the contract made. Notice to the seller of his rejection of the goods, is all that the law demands.21

When delivery is made by the seller, and acceptance is made by the buyer, the contract of sale is complete in so far as executing the sale is concerned, but there may be nevertheless, outstanding rights in either party. The right to enforce payment by the seller, where payment was not a condition precedent to passing the title, and the right in the buyer to hold the seller for delay in delivering the goods, where there is no express waiver of damage shown by the buyer, or where the circumstances of acceptance do not show an intention to waive damages of delay by accepting the goods. An acceptance under compulsion, would not thereby waive damages suffered by reason of delay.22 Acceptance of the goods does not ordinarily conclude the buyer, as to a warranty made in reference to the goods, but if by the terms of the contract of sale acceptance is to conclude the buyer on this point, the contract governs. The contract may also properly provide that notice be given to the seller of any defects in the goods sold, within a reasonable time and the effect of the retention of the goods beyond that time, without notice or complaint, would be to deprive the purchaser of relief.23

21 Doane vs. Dunham, 65 Ill., 512. 22 Haven vs. Wakefield, 39 Ill., 509.

23 Kingman vs. Watson, 97 Wis.,

596.