debtor be present in person, or by his agent, and makes a tender of specific articles at the proper time and place, according to contract, and the creditor does not come to receive them, or refuses to accept them, the better opinion is, that if the article be properly designated and set apart, the debt is thereby discharged. If the debtor be sued, he may plead the tender and refusal, and he will be excused by the necessity of the case from pleading uncore prist, and bringing the cumbersome articles into court; and it is not like the case of a tender of money, which the party is bound to keep good, and on a plea of tender to bring the money into court. On a valid tender of specific articles, the debtor is not only discharged from his contract, but the right of property in the articles tendered passes to the creditor. The debtor may abandon the goods so tendered; but if he chooses to retain possession of the goods, it is in the character of bailee to the creditor, and at his risk and expense. With respect to part performance of an entire contract for the sale and delivery of personal property of a given quantity at a specified price and time, or for the performance of certain labour and service, a delivery of a less quantity than that agreed on, or a refusal or omission to perform the entire labour or service without any act or consent of the other party, will not entitle the party who has delivered in part or performed in part to recover any compensation for the goods which have been delivered or the service which has been performed. The entire performance is a condition precedent to the payment of the price, and the court cannot absolve men from their legal engagements, or make contracts for them (a). quality. Spain. Where a person purchases an article without having Verification of seen it, and where the quality of the goods cannot be determined beforehand, the purchaser has a right to examine them, and to cancel the bargain if they do not suit him, and precisely the same if he has reserved to himself the right of trying the articles purchased. When the sale has been made by sample, or according to the quality usually known in trade, the purchaser cannot refuse to receive the purchased articles, when they agree with the sample, or are of the quality indicated in the contract. In case of refusal, or on account of non-conformity, the goods must be (a) Kent's Commentaries, vol. ii., p. 618. Delivery must be complete, and not in part. Rights of purchaser to the article. examined by experienced persons, who, upon comparing the bulk with the samples, shall determine whether the goods should be received or not. If they should, the sale is complete, and the goods must remain with the purchaser; but otherwise the contract is annulled with damages, if there be occasion for it. Where the seller has not delivered the articles sold at the time agreed upon, the buyer may cancel the contract, or exact damages for the injury occasioned by the delay, although it might have arisen from unforeseen accidents. The purchaser cannot be compelled to receive the goods which he has purchased, a portion at a time, unless there has been an agreement to that effect, in which case the sale would be irrevocable as regards the goods already received, even though the seller should not deliver the other portion. The buyer, however, would have right to sue for damages. When the non-delivery of the goods sold proceeds from their loss or deterioration in consequence of unforeseen accidents, and not through the fault of the vendor, the contract is cancelled. If the purchaser refuse without just cause to receive the articles purchased, the vendor has the right to exact the price of them, or to demand the cancelling of the sale. In case of delay to receive the goods, the vendor may deposit in a public place the articles sold. Whatever damages or deterioration may befall the goods sold, after they have been placed at the disposal of the purchaser, will fall upon him, unless there be fraud or negligence on the part of the vendor. The vendor will bear the damage sustained by the articles. sold, even accidentally, in the following cases:-1. When the article is not certain and determinate, which will exclude all confusion. 2. When the buyer has a right to examine and inspect it before delivery. 3. When it is to be delivered by number, weight, or measure. 4. When the sale is made on credit, or when the article is not in a state to be delivered. In such case the sale is annulled, and any portion of the price that may have been paid by anticipation must be restored to the purchaser. Should the vendor, after the sale, have changed the articles sold, or given them up to a third party, he would have to deliver other articles of the same quality and quantity, or in default pay the value of them, as may be awarded by experienced persons, who will have regard to the benefit that the buyer might have derived from them. amine the After the merchandises have been delivered, the buyer is pre- Right to excluded from raising any complaint for fault of quality, or want goods. of quantity, once he has been enabled to examine the goods, and the delivery has been made according to number, weight, and measure. If, however, the merchandise was sent in bales, or covered packages, the purchaser has eight days from the delivery within which he may make such claim, unless he shall have given to the vendor an attestation, certifying that he has received it correct in quality and quantity. The seller remains liable for six months for any hidden defects in the goods, but after this delay he is free from all responsibility. If no period has been fixed, the merchandise should be delivered twenty-four hours after the contract, and the price paid within ten days. The purchaser, however, cannot exact the delivery of the goods before he has paid for them. The expenses for delivery, weighing, and measuring, are paid by the vendor. Those for receiving and transporting are borne by the purchaser. Time of delivery. As soon as the goods sold are placed at the disposal of the purchaser he is bound to pay their price, but the vendor has a lien upon them till they are delivered. If any delay occur in the payment of the price, the purchaser must pay to the vendor the legal interest on the amount he owes from the time agreed for the delivery. So long as the articles are Right of lien. in possession of the vendor, he retains over them a preference above all other creditors of the purchaser, namely, a lien for the amount of the price and interest due on it, in consequence of delay in payment. No vendor can refuse to the purchaser an invoice of the merchandise sold and delivered, with a receipt for the price, or of the amount he has received. Commercial sales are not void in consequence of fraud. They simply give rise to suits for damages against the contractor who may have practised fraud. Money paid in earnest is considered as part payment, and not as a condition upon the non-fulfilment of which the sale may be cancelled, unless by a contrary agreement it is so expressly stipulated. In every commercial sale Guarantee of the vendor is bound to guarantee the purchaser from all evic- title. tion, although the contract should not express it, unless there be a clause to the contrary. Moreover, an action will always lie for damage and interest, where it is proved that the vendor has acted fraudulently in the sale. If the purchaser does not give notice to the seller of the demand on evicting, should the possession of the goods be questioned, he will lose all the effects of the guarantee (a). Reception of the goods. Duty of the seller to allow the examina tion of the goods. SECTION V. DUTIES OF THE PURCHASER. BRITISH LAW. The first duty of the buyer is to receive the goods and to pay the price on delivery or at the time agreed on by the contract. Where no time is fixed by the contract for the reception of the goods, it must be shown that a reasonable time for the performance of it has elapsed before a suit can be instituted for goods sold and delivered (b). But where a time has been fixed, and the same has elapsed, if the buyer refuses to accept the goods, the seller, having done all that was required for his part to render the transfer effectual, may sue the buyer either on the contract or for goods bargained and sold (c), and the proper measure of damage is the difference between the contract price and the market price on the day when the goods are tendered for acceptance and refused (d). If the vendee does not accept the goods at the time appointed, or within a reasonable time, the contract is dissolved and the vendor is at liberty to sell them to any other person (e). When goods are sold by sample, the seller must allow the buyer to inspect the goods in bulk in order to ascertain whether the bulk corresponds with the sample, and before a right of action accrues to the vendor for non-acceptance, a reasonable (a) Spanish Code, §§ 361 to 381. (c) Alexander v. Gardner, 1 Bing. C. 221; Boorman v. Nash, 9 B. & C. 152. (d) Phillpotts v. Evans, 5 M. & W. 475; Chinery v. Viall, 29 L. J. Ex. 180. (e) Langford v. Tiler, 1 Salk. 113; Hinde, Whitehouse, 7 East, 571. opportunity of inspecting the goods must have been given (a). If the seller refuses to show the bulk the buyer may rescind the contract (b). In a sale of goods by sample, if the bulk of the commodity do not correspond with the sample the vendee may return the goods and rescind the sale, provided he returns them in a reasonable time, and he has not exercised any act of ownership over them (c). Even where no provision is made in the contract for the return of the goods, the contract may be rescinded by the mutual consent of both parties; and such an agreement will put an end to the sale as if it had never taken place (d). When the vendor receives and accepts returned goods, if he exercises acts of ownership over them, he is held to have rescinded the sale though he received the same upon protest and without prejudice (e). Right of goods differ buyer when from the guarantee. Different in an executory contract. In a sale of goods, with an express or implied guarantee, when the goods have been received and accepted, and the contract is executed, the vendee has no. more right, in the absence of frauds, to rescind the contract, and return the goods should they not answer to the guarantee, but he may sue on the warranty, or give the breach of warranty in evidence in mitigation of damages. But in an executory contract where an article is ordered from a manufacturer who contracts that it shall be of a certain quality, or fit for a certain purpose, and the article sent as such is never completely accepted by the party ordering it, if he discovers the defect, the contract may be rescinded provided he has done nothing more in the meantime than was necessary to give it a fair trial (f). If the vendor fails to give a good title, the vendee may rescind the contract (g). When an unreasonable time has elapsed for the performance, the vendee has a right to make an abandonment and rescind the contract (h). Where the sale has been obtained by means of fraud, the When the party grieved has the right to repudiate the contract. Fraud (a) Isherwood v. Whitmore, 10 M. & W. 757, and 11 M. & W. 347. (b) Lorymer v. Smith, 1 B. & C. 1. (c) Street v. Blay, 2 B. & Ad. 463; Okell v. Smith, 1 Stark. 107; Sanders v. Jameson, 2 C. & K. 557. (d) Salte v. Field, 5 T. R. 211. (e) Long v. Preston, 2 Moo. & Payne, 262. (f) Street v. Blay, 2 B. & Ad. 463. (g) Souter v. Drake, 5 B. & Ad. 999; Purvis v. Rayer, 9 Price, 488. (h) Lawrence v. Knowles, 7 Scott, 381. If the vendor fails to give good title, a the vendee may rescind the contract. sale has been |