As to the quality of the goods.

there not to accept delivery orders in any other form, was held to be a sufficient performance (a).

Upon a contract for the sale and delivery of goods the seller must also observe any warranty or stipulation as to the quality of the goods. Upon a contract of sale of a specific chattel the promise of the vendor is performed by the delivery of the chattel sold, although there may be defects in the chattel; the vendor is not responsible for defects, unless he has been guilty of fraud, or has warranted the quality of the chattel (b). If the contract contains a warranty by the seller of the quality of the chattel, a mere breach of the warranty does not entitle the purchaser to refuse or return the chattel, unless he has specially stipulated in the contract for the right to do so, or has made the contract conditional upon the warranty; but it only gives him a right of action for the breach of warranty (c).

Upon a contract for the sale of goods by description or sample the seller must deliver goods agreeing with the description or sample by which they are sold (d); and if the goods do not agree with the description or sample, the purchaser may refuse to accept them (e). The plaintiff, having contracted to supply coals to the defendant of a certain description, delivered some of that description and some of an inferior quality mixed together; it was held that as they were mixed, the whole of the coals were to be considered as not according to the contract, and the defendant was entitled to refuse to accept them (f). On a sale by sample without a warranty, the contract is discharged by delivery of goods corresponding with the sample, and the purchaser, in the absence of fraud, is not answerable for any defect in the goods, provided they agree with the sample (g).

(a) Moore v. Campbell, 10 Ex. 323; 23 L. J. Ex. 310.

(b) See ante, p. 185, 198.

(c) Weston v. Downes, Doug. 23; Street v. Blay, 2 B. & Ad. 456; Gompertz v. Denton, 1 C. & M. 207; Dawson v. Collis, 10 C. B. 523; Bannerman v. White, 10 C. B. N. S. 844; 31 L. J. C. P. 28; see ante, p. 198, 199.

(d) Hibbert v. Shee, 1 Camp. 113; Nichol v. Godts, 10 Ex. 191; Josling

v. Kingsford, 13 C. B. N. S. 447; 32 L. J. C. P. 94.

(e) Street v. Blay, 2 B. & Ad. 456, 463; Lorymer v. Smith, 1 B. & C. 1; Wells v. Hopkins, 5 M. & W. 7.

(f) Nicholson v. Bradfield Union, L. R. 1 Q. B. 620; 35 L. J. Q. B. 176. (g) Parkinson v. Lee, 2 East, 314; Carter v. Crick, 4 H. & N. 412; 28 L. J. Ex. 238; and see Scott v. Littledale, 8 E. & B. 815.

ance of con

sale of land.

Upon a contract for the sale of land, in the absence of Performexpress conditions to the contrary, the vendor must make a tract for the good title to the land (a). A court of equity will not compel a purchaser to take a doubtful title (b); and it has been held in a court of law that a good title to be made under a contract for the sale of land means not merely a good legal title, but such a title as a court of equity would require as sufficient ground for compelling specific performance against the purchaser (c).

A purchaser agreeing to take the vendor's title "without dispute" is precluded, both at law and in equity, from raising any objection to it (d). So, where the purchaser agrees to take such title as the vendor has, he is not entitled to a better one (e). So, if he agrees to take a title commencing from a certain deed, he may be precluded from claiming an absolutely good title (f). Upon a sale of a fee-farm rent, subject to the condition that no evidence was to be required of the payment and no objection taken in consequence of the non-payment, the purchaser was held not entitled to object. that it was extinguished under stat. 3 & 4 Wm. IV. c. 27, s. 34, by reason of not having been paid for twenty years (g). Where by the conditions of sale of a lease, it was provided that the lessor's title should not be produced or inquired into, the purchaser was precluded from objecting to the lessor's title (h).

On a contract for the sale of land by description the property proposed to be conveyed must agree with the description of the property contracted for; and if it does not, a

(a) Hall v. Betty, 4 M. & G. 410; Souter v. Drake, 5 B. & Ad. 992; Doe v. Stanion, 1 M. & W. 695, 701.

(b) Marlow v. Smith, 2 P. Wms. 198; Shapland v. Smith, 1 Bro. C. C. 75; Vancouver v. Bliss, 11 Ves. 458, 465; Jervoise v. Duke of Northumber land, 1 J. & W. 559; Pyrke v. Waddingham, 10 Hare, 1.

(c) Jeakes v. White, 6 Ex. 873; and see Boyman v. Gutch, 7 Bing. 379; Curling v. Shuttleworth, 6 Bing. 121; Simmons v. Heseltine, 5 C. B. N. S. 554; 28 L. J. C. P. 129; Stevens v. Austen, 30 L. J. Q. B. 212.

(d) Duke v. Barnet, 2 Coll. C. C. 337.

(e) Wilmot v. Wilkinson, 6 B. & C. 506; Freme v. Wright, 4 Madd. 364; Cattell v. Corrall, 3 Y. & C. Ex. 413; Hume v. Pocock, L. Rep. 1 Eq. 423; ib. 1 Ch. Ap. 379; 35 L. J. C. 731.

(f) Sharland v. Leifchild, 4 C. B. 529; and see Sellick v. Trevor, 11 M. & W. 722.

(g) Hanks v. Palling, 6 E. & B. 659. (h) Hume v. Bentley, 5 De G. & Sm. 520; and see Darlington v. Hamilton, Kay, 550; Shepherd v. Keatley, 1 C. M. & R. 117.

Time of per

formance.

court of equity will not, in general, enforce the contract (a). Under a contract of sale of freehold land the purchaser cannot be compelled to take copyhold (b), or leasehold (c); so, if he has contracted for copyhold, he cannot be compelled to take freehold (d); so, if he has contracted for a certain term of years, he cannot be compelled to take an appreciably shorter term (e), or an underlease (ƒ). Where land was sold and conveyed with a covenant that it was freehold, but it proved to be copyhold, it was held that the covenant was broken (g). A contract for the purchase of certain land primâ facie would mean the purchase of the fee simple; but if the purchaser knew that the vendor had not such an estate, and did not profess to have a fee simple, then the contract might import such interest as the purchaser knew the vendor had; if the purchaser had no such knowledge, he might exercise an option of taking such estate as the vendor had, but could not be compelled to take any other estate than that which he contracted to purchase (h).

A contract for the sale of land is not satisfied by conveying land subject to rights of which the purchaser had no notice, as a right of sporting (i), or a right of common (j), or a right of way (k); but where a right of way over land contracted to be sold was obvious, consisting of a road through it, the purchaser was held bound to complete the purchase (1).

The performance must take place at the time appointed by the contract. Thus, the acceptor of a bill must pay the amount on the day the bill becomes due, and cannot discharge himself by a tender of the amount on a subsequent day, unless such tender is accepted in satisfaction by the

payee (a). By the custom of merchants three days of grace are allowed on bills of exchange and promissory notes beyond the time appointed in them for payment, before they are reckoned to be overdue (b); and bills payable in foreign countries are allowed similar additional times, according to the usance of the place of payment (c). The drawer or indorser of a bill undertakes to pay the amount immediately upon notice of dishonour being given; and upon default an action is maintainable immediately (d).

Where a certain space of time is allowed for the performance of the contract, as a day or several days, it is sufficient if the performance be completed before the end of the last day (e). In the case of a bill of exchange the acceptor has the whole of the last day until twelve o'clock at night to pay it (ƒ).

If the performance is such that it requires the concurrence of the promisee to complete it, the promiser must tender all that is to be done on his part at a convenient interval before the expiration of the time in order to allow the promisee to complete it by acceptance. If a sum of money is to be paid. on a certain day, he must tender it a sufficient time before midnight for the other party to receive and count it; or if goods are to be delivered, he must tender them so as to allow sufficient time for examination and acceptance of them (g).

If a certain place is fixed for the performance, the attendance of both parties at that place is necessary to complete the performance; but for the convenience of both parties, and that neither may give longer attendance than is necessary, the law fixes a particular time at which the presence of each shall be sufficient. It is enough if each party be at the place at such convenient time before sunset on the last day limited as that the act may be

(a) Hume v. Peploe, 8 East, 168; Poole v. Tumbridge, 2 M. & W. 223; Dobie v. Larkan, 10 Ex. 776; and see Turner v. Hayden, 4 B. & C. 1; and see post, "Tender," p. 454.

(b) Brown v. Harraden, 4 T. R. 148; Smith v. Kendall, 6 T. R. 123. (c) See ante, p. 116.

(d) Siggers v. Lewis, 1 C. M. & R.

completed by daylight; and

(e) Sheppard's Touch. 378; Leftley v. Mills, 4 T. R. 170; Startup v. Macdonald, 6 M. & G. 593, 602, 619.

(f) Per Parke, B., Startup v. Macdonald, 6 M. & G. 593, 602; and see Leftley v. Mills, 4 T. R. 172.

(g) Wade's case, 5 Co. Rep. 114 a; Startup v. Macdonald, 6 M. & G. 593.

Time ofperform

ance.

if the promiser tender to the promisee there, if present, or, if absent, be ready at the place to perform the act within a convenient time before sunset for its completion, it is sufficient. If it happen 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, it is sufficient (a).

This distinction is said to prevail 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" (b).

"If a man be bound to pay twenty pound at any time during his life at a place certain, the obligor cannot tender the money at the place when he will, for then the obligee should be bound to perpetual attendance, and therefore the obligor, in respect of the uncertainty of the time, must give the obligee notice that on such a day, at the place limited, he will pay the money, and then the obligee must attend there to receive it. The same law it is if a man make a feoffment in fee upon condition, if the feoffor at any time during his life pay to the feoffee twenty pound at such a place certain, that then etc. In this case the feoffor must give notice to the feoffee when he will pay it, for without such notice as is aforesaid, the tender will not be sufficient. But in both these cases, if at any time the obligor or feoffor meet the obligee or feoffee at the place, he may tender the money" (c).

A contract was made for the sale of ten tuns of oil to be delivered to the purchaser within the last fourteen days of March; the seller tendered the oil late on the 31st day of March, the buyer being at his warehouse at that time, and there being sufficient time before midnight for the buyer to examine, weigh and receive the oil; it was held that the seller had satisfied the contract on his part, although the

(a) Co. Lit. 202 a; Wade's case, 5 Co. Rep. 114 a; Tinckler v. Prentice, 4 Taunt. 549; per Parke, B., Startup v. Macdonald, 6 M. & G.

593, 624.

(b) Per Parke, B., Startup v. Macdonald, 6 M. & G. 593, 625. (c) Co. Lit. 211 a.