part of the agreement; when once he has performed the act the choice has been made, and the election irrevocably determined;" . . . "It follows from this that where from the terms of an executory agreement to sell unspecified goods, the vendor is to dispatch the goods,'

"the property is transferred the moment the dispatch or other act has been commenced." In Bannerman v. White (12) the property in the hops would have passed, and the defendant would not have been at liberty to have rejected them if the sale had not been considered a conditional one.

[BRETT, J.-In Blackburn on Contracts of Sale, p. 152, the second rule to ascertain the intention to pass the property is thus given: "where anything remains to be done to the goods for the purpose of ascertaining the price as by weighing, measuring or testing the goods when the price is to depend on the quantity or quality of the goods, the performance of those things also shall be a condition precedent to the transfer of the property although the individual goods be ascertained, and they are in a state in which they ought to be accepted."]

No doubt at the wharf in England the plaintiffs might have rejected the shoes, but having sent them to France and so given them a fresh destination the plaintiff's could not refuse to keep them. They could no longer place the vendors in statu quo. The cases of Chapman v. Morton (13), Harnor v. Groves (14), and Loder v. Kekulé (15), shew that after dealing with the goods as their own, the plaintiffs cannot recover back the price. Looking to the terms of the contract and what took place, the property in the goods delivered had passed to the plaintiffs, and they could not return them and claim back the money paid,-Benjamin on Sale, 104, Morton v. Tibbett (16), Cusack

(12) 10 Com. B. Rep. N.S. 844; s. c. 31 Law J. Rep. (N.s.) C.P. 28.

(13) 11 Mee, & W. 534; s. c. 12 Law J. Rep. (N.S.) Exch. 292.

(14) 15 Com. B. Rep. 667; s. c. 24 Law J. Rep. (N.s.) C.P. 53.

(15) 3 Com. B. Rep. N.S. 128; s. c. 27 Law J. Rep. (N.s.) C.P. 27.

(16) 15 Q.B. Rep. 428; s. c. 19 Law J. Rep. (N.S.) Q.B. 382.

v. Robinson (17), Parker v. Wallis (18); and as to Bannerman v. White (12), a preliminary objection existed there which, as pointed out by Bramwell, B., in Bowle v. Pontifex (19), constituted a condition. [BOVILL, C.J., referred to Dixon v. Yates (20).]

But further even if the facts in other respects did not preclude a return of the goods, yet this cannot be done unless the defendants can be and are placed in statu quo-Hunt v. Silk (6), Reed v. Blandford (21), Blackburn v. Smith (7), Street v. Blay (1); and there is no authority shewing that where goods have been exported they can, even if in the same state, be then and there returned, for looking to the expense of getting them back, the vendor would not be placed in statu quo.

Here the plaintiffs should return the goods or reject at the place where the defendants by contract delivered.

[BOVILL, C.J., referred to Clarke v. Dickson (22).]

As to the delivered shoes which remained in London, the last argument, perhaps, does not apply, but still as the plaintiff's inspected and accepted according to the terms of the contract they could not then return them. As respects the delivered shoes the damages are wrongly assessed,-first, because they are assessed as if the property had not passed; secondly, because they are assessed with reference to the French contract; thirdly, because they are assessed as if the rejection was on the ground of inferiority to sample; whereas the damages ought to be the difference between the values of what ought to have been delivered according to sample, and of what was actually delivered at the time of the breach; and the cost of transit ought to be deducted. As respects the undelivered shoes, it is said that there was such a breach as entitled the plaintiffs to reject all and evidence of inferiority to (17) 1 B. & S. 299; s. c. 30 Law J. Rep. K.B.

261.

(18) 5 E. & B. 21.

(19) 3 F. & F. 739.

(20) 5 B. & Ad. 313; s. c. 2 Law J. Rep. K.B.

198.

(21) 2 You. & J. 278.

(22) E. B. & E. 148; s. c. 27 Law J. Rep. (N.S.) Q.B. 223.

sample, but this does not apply to these particular goods and does not affect them, as the contract is not one entire contract but divisible, the price being not a bulk price but a price per pair. Cur. adv. vult.

The following judgments were delivered on July 5BOVILL, C.J.-This case was argued before my brothers Byles and Brett, and myself; my brother Byles concurs in the judgment I am about to deliver, after reading which, I will read the judgment of my brother Brett.

This action was brought for the breach of a contract by the defendants to supply a large quantity of shoes for the French army, and the questions that were raised related almost entirely to the damages which the plaintiffs were entitled to recover, but also involved some important points with respect to the vesting of property in goods under an executory contract of sale, and as to the right of the purchasers to reject the goods after having received and paid for them.

The original contract was entered into between the plaintiffs and the defendants on the 30th of December, 1870, and was for 30,000 black army shoes, as per sample, at 4s. 8d. per pair, less 2 per cent. discount, to be delivered free at a wharf in weekly quantities-to be inspected and quality approved before shipment and payment to be made in cash at the time of each delivery.

The times for delivery of the shoes were afterwards altered by consent.

The plaintiffs, who were merchants in London, in entering into that contract were acting under instructions from and on behalf of a Mr. Potel and a Mr. Ireland, of Lille.

The defendants were shoe manufacturers in London and at Northampton, and at the time the contract was entered into it was known to all the parties that the shoes were required for the French army, and for a winter campaign; a sample shoe was deposited, and which was also submitted to the French authorities, with whom Mr. Potel had made a contract for supplying the shoes.

The plaintiff's appointed a person in the

trade (Mr. Roberts) to inspect the shoes. in their behalf, and several hundred pairs were rejected, but a large number were inspected and approved by him; the invoices were then made out and signed by the plaintiffs' agent, Mr. Harry, and the shoes were thereupon sent to Fenning's Wharf, London, which had been named by the plaintiffs as the place for delivery. On the inspection of the shoes the soles were not opened, and it is not usual to open them, but without doing so it could not be ascertained of what the fillings of the soles consisted, or whether there was paper in them or not. The first delivery at Fenning's Wharf took place on the 30th of January, 1871, and on that day, and before this parcel of shoes were delivered, a statement had appeared in some of the newspapers that a contractor had been imprisoned in France for putting paper into the soles of the shoes. Some communication took place with one of the defendants upon the subject, and the evidence was contradictory as to whether this defendant had or had not said that there was no paper in the shoes so far as he was aware, but it was proved that on the 2nd and 3rd of February Mr. Harry, acting for the plaintiffs, and before the shoes were shipped, requested that a shoe might be cut open to see if there was any paper in the sole, that the defendants' foreman, Webb, assented to this being done, and stated that the plaintiffs might cut open as many as they pleased, and would not find any paper in them. The sole of the shoe was accordingly cut open, and no paper was found in it. The plaintiffs' evidence also went to shew that many assurances were given on the part of the defendants that there was no paper in the soles of the shoes.

The plaintiffs then paid the defendants for the shoes which had been delivered by them at Fenning's Wharf, being twenty-two cases, and containing about 4,950 pairs, and shipped them from London to Dunkerque, and to be then forwarded by railway to Lille, where they were to be delivered to the French authorities.

This parcel arrived at Lille on the 10th of February.

In the meantime the plaintiffs had for

warded one pair of the shoes to Mr. Ireland, at Lille, and this pair having been opened by him, was found to contain pieces of pasteboard box in the soles.

A communication was immediately made on the 9th of February to one of the defendants, who stated that it must be a mistake, and several more pairs of shoes were then opened, and found not to contain paper-the sole of the sample shoe was at the same time opened, and it was found that this shoe did contain paper.

The plaintiffs then stopped the further delivery of shoes by the defendants. Mr. Harry took several of the pairs which had been opened, and found not to contain paper, and the sample shoe, which did contain it, to Lille, and after communicating with Mr. Ireland he telegraphed to the plaintiff's on the 10th of February, "Pay for and ship all Hickson's goods ready at wharf and. ware

house.'

At that time some more shoes had been inspected, approved and delivered at Fenning's Wharf, on the 7th or 8th of February, and the defendants had asked for a cheque for them, which had been refused, but upon receipt of the telegram from Mr. Ireland the plaintiff's paid for those shoes which had been so delivered.

At this time it was well known to the defendants that the shoes were required to be sent to Lille for the French army, and had to be passed by the French authorities; the sample shoe and the shoe sent to Mr. Ireland had been found to contain paper in the soles, and after more discussion upon the subject, and as to the terms of the following letter, the defendants agreed to and eventually on the 13th of February signed the letter which bears date the 11th of February.

By that letter, which is addressed to the plaintiffs, the defendants agreed to take back those shoes that might be thrown on their (the defendants) hands in consequence of paper being found in them, it being understood that they could not take back any larger number of shoes if paper should be found in only a few pairs, and they stated their willingness that the closest inspection should be made.

Upon this letter being signed and given to the plaintiffs, the inspection and delivery of the shoes were continued, several parcels were delivered at the wharf after having been inspected by Mr. Roberts, and passed by Mr. Harry, for the plaintiffs, and the plaintiffs paid for them and forwarded them by sea and railway to Lille. The total quantity thus forwarded to France was 12,225 pairs. The cost of the transit and the duty in France were paid by Mr. Ireland.

There were more shoes delivered at Fenning's Wharf, which were afterwards sold under an arrangement between the parties.

On the 26th of February information reached this country that some of the shoes had been found to contain paper, and on the 28th of February, upon the entire quantity that had been shipped being tendered to the French government some opened and found to contain paper, and the whole were rejected by the French authorities.

were

The shoes were then sent by the French Military Intendant to a public bonded warehouse at Lille, where they were deposited and still remain.

The defendants were informed of the rejection of the shoes, and one of them at once proceeded to Lille, and with the other parties concerned, endeavoured to get the shoes passed by the French authorities. In this, however, they were not successful, and the French government refused to take any of the shoes.

One of the defendants on being asked the question would not guarantee that there were not 5,000 pairs with paper in them, though he stated that he would guarantee that there were not 7,000 pairs that had paper in the soles.

A considerable number of the shoes were opened at Lille, and many of them (in one instance seventeen pairs out of eighteen that were opened) were found to contain paper, and Mr. Ireland therefore told one of the plaintiffs, who was present when this was discovered, that in consequence of the defendants' letter of guarantie of the 11th of February he should take no further steps in the matter, and that he threw the goods on the defendants' hands.

The defendants were required to return the money for the shoes, and were told that the plaintiffs would hold them to the letter of guarantie; one of the defendants in answer, stated that before he would take back any of the shoes, the plaintiffs must shew him what shoes did contain paper, and upon the plaintiffs stating that this was absurd, and that they should have to destroy all the shoes to find it out, the defendant said that he could do no more, that the plaintiffs must cut open what they liked, and any which contained paper the defendants would take back.

From examinations of a number of the shoes made subsequently, and after this action was commenced, it appeared that a large proportion, and considerably more than half of over 100 pairs that were examined from different cases, did contain paper, canvas shavings, or asphalte roofing felt, and nearly one-half of the whole of them contained paper in the soles; of fourteen other pairs only three contained leather fillings in the soles, and of fifty other pairs nearly the whole contained paper. The objection to paper was stated to be that when it becomes wet from the pressure of the foot, it dries up in lumps, and one of the defendants admitted at the trial that shoes with paper in the soles were objectionable for a soldier, and were not fitted for a winter campaign.

There was also evidence on the part of the plaintiffs to shew that even independently of the paper the shoes were not equal to sample. The defendants called a number of witnesses to shew that the whole of the shoes, including about 17,000 pairs, which were ready to be delivered, were equal to the sample, but none of these witnesses had opened the soles of any of the shoes.

Upon the matters left to the jury they found that the shoes delivered, and also those that were ready for delivery, were not equal to the sample, and that the defects could not have been discovered by any inspection which ought reasonably to have been made by Roberts or Harry.

It had also been contended by the defendants that the letter of the 11th of February was not intended to be a binding agreement, but only to be shewn to NEW SERIES, 41.-C.P.

The verdict was entered for the plaintiffs for the whole of these sums, leave being reserved to the defendants to move to reduce the damages by any sum that the Court might think fit.

A rule nisi was accordingly granted, and the main practical question upon the argument of the rule was as to which party was to bear the risk and loss upon the shoes remaining at the warehouses at Lille since they were rejected by the plaintiffs.

The defendants contended that the plaintiffs had accepted the goods, and were not at liberty afterwards to reject them, that the shoes consequently remained the plaintiffs' property, and at their risk, and that the plaintiff's could only recover damages as for the breach of warranty.

2 H

The plaintiffs on the other hand contended that they were entitled to reject the goods and to throw them on the defendants' hands at Lille, and that they were entitled to recover back the whole price that they had paid for them, as well as damages for the breach of contract, leaving the shoes the property of the defendants and at their risk.

A number of authorities were cited in the course of the argument, as bearing upon these questions, but the principles of law which are applicable to such cases are now tolerably well settled.

Where specific and ascertained existing goods or chattels are the subject of a contract of immediate and present sale, and whether there be a warranty of quality or not, the property generally passes to the purchaser upon the completion of the bargain, and the vendor thereupon has a right to recover the price, unless from other circumstances it can be collected that the intention was that the property should not at once vest in the purchaser; such an intention is generally shewn by the fact of some further act being first required to be done, such as, for instance, in most cases delivery, in some cases actual payment of the price, and in other cases weighing or measuring in order to ascertain the price, or marking, packing, coopering, filling up casks, or the like.

Where there is a warranty of the quality of such specific goods, that circumstance will not prevent the property in them passing to the purchaser, and if it be simply a warranty will not entitle the purchaser to refuse to accept the goods or to return them merely because the warranty is not fulfilled, and in order to entitle the purchaser so to refuse or return them it must, in the case of specific goods, be a term of the contract that he shall be at liberty to do so.

In the case of executory contracts, where the goods are not ascertained or may not exist at the time of the contract, from the nature of the transaction no property in the goods can pass to the purchaser by virtue of the contract itself, but when certain goods have been selected and appropriated by the seller, and have been approved and assented to by the buyer, then the case stands, as to the

vesting of the property, very much in the same position as upon a contract for the sale of goods which are ascertained at the time of the bargain. In most cases of such executory contracts, something more would generally remain to be done, such as, for instance, selection or appropriation, approval and delivery of some kind before the property would be considered as intended to pass, and upon that taking place the property might pass if it was intended to do so equally as in the case of a contract for specific and ascertained goods. Lord Wensleydale, in the case of Dixon v. Yates (23), put the case of the sale of a specific chattel upon the same footing as the sale of an unascertained chattel after delivery, for the purpose of shewing that the property vested in the latter case upon delivery, and in the former by the contract itself; and see also upon this subject Alexander v. Gardiner (24), Aldridge v. Johnson (25), which was confirmed by Langston v. Higgins (26), also the judgment of Parke, B., in Wait v. Baker (27), Brown v. Hare (28), in error, and Tregelles v. Sewell (29).

In cases where, under an executory contract, goods are sent by the vendor which do not come within the general description of those contracted for, the purchaser may refuse to receive or may reject them, and equally so if there be any other condition in the contract which is not complied with; so in like manner if a fraud has been practised by the seller, then upon discovery of the fraud and within a reasonable time, and if nothing has been done by the purchaser to alter the position of the vendor, the purchaser may reject the goods.

In the judgment of the Court of Exchequer Chamber delivered by my brother

(23) 4 B. & Ad. 340.

(24) 1 Bing. N.C. 671; s. c. 3 Law J. Rep. (N.S.) C.P. 223.

(25) 7 E. & B. 885; s. c. 26 Law J. Rep. (N.S.) Q.B. 296.

(26) 4 Hurl. & N. 402; s. c. 28 Law J. Rep. (N.S.) Exch. 252.

(27) 2 Exch. Rep. 1; s. c. 17 Law J. Rep. (N.S.) Exch. 307.

(28) 4 Hurl. & N. 822; s. c. 29 Law J. Rep. (N.S.) Exch. 6.

(29) 7 Hurl. & N. 574.