London, or at any other place within the limits of the weekly bills of mortality; (other than such cattle which any such salesman, broker, or factor, shall actually purchase for the necessary use or provision of his family, and shall actually use accordingly); and that no such salesman, broker, or factor, shall sell, or expose, or offer to or for sale, on his own account in London, or at any other place within the said limits of the weekly bills of mortality, either by himself or his servant or agent, any live ox, bull, cow, steer, bullock, heifer, calf, sheep, lamb, or swine; upon pain that the offender shall, every time he shall be convicted of any such offence as hereinafter mentioned, forfeit and pay for every such offence, double the value of any live cattle, which he shall so buy or sell, on his own account, contrary to the tenor of this act." : Fire works. By the statute 9 & 10 Will. III. c. 7, s. 1, it is enacted, that no person shall sell or utter, or offer or expose for sale, any squibs, serpents, rockets, or other fire works and by section 2, a penalty of 57. is imposed on persons selling the same, or any cases, moulds, or other implements for making them. The statute 2 Will. IV. c. 16, s. 12 (x), provides that the price of goods which shall be delivered without a permit, as required by that act, shall not be recoverable; and enables the purchaser, where he shall have paid the price, to sue for and recover the same back. 5. OF THE Rights of the VenDOR (y). We have already seen that where there is a sale of goods, and nothing is specified as to delivery or payment, although every thing may have been done so as to divest the property out of the vendor, and so as to throw upon the vendee all risk attendant upon the goods, still there results to the vendor, out of the original contract, a right to retain the goods until payment of the price (z); and that the nonpayment of the price will in some instances entitle the vendor to dissolve the contract (a). Though the vendor may have a right to retain the goods until payment (r) See Chit. & Hulme's Stats. 280. (y) Who may sue as vendors, see 1 Chit. on Pl. 6th ed. 7, 8; Cothay v. Fennell, 10 B. & C. 671. (z) Ante, 375; and per Bayley, B., Miles v. of the price, still, after earnest given, he cannot sell them to another without a default in the vendee; and, therefore, if the vendee do not come and pay for and take away the goods, the vendor ought to go and request him; and then, if he do not come and pay for and take away the goods in a convenient time, the agreement is dissolved, and the vendor is at liberty to sell them to any other person (b). And where wheat is sold, to be paid for by a banker's draft at two months upon receipt by the vendees of the invoice and bill of lading, and the vendee fails to send a draft on such receipt, the vendor, though he may retain the goods, cannot, it should seem, forthwith rescind the contract, but must wait a reasonable time in order to give the vendee an opportunity of remitting the draft according to the contract (c). But where R. agreed to supply W. with straw, to be delivered at W.'s premises, at the rate of three loads in a fortnight, during a specified time; "and W. agreed to pay R. 33s. per load, for each load of straw so delivered on his premises," during the above period; after the straw had been supplied for some time, W. refused to pay for the last load delivered, and insisted on always keeping one payment in arrear; it was held, that, according to the true effect of the agreement, each load was to be paid for on delivery, and that on W.'s refusal so to pay for them, R. was not bound to send any more (d). In that case, however, each load of straw was to be paid for on delivery, and when W. stated that he would not pay for the loads on delivery, there was a total failure of performance on his part, and R. was no longer bound to deliver (e). The lien of the vendor exists so long as the goods remain in his immediate possession, and until there has been an actual or constructive delivery of them to the vendee. And a delivery of part (there being no intention that such partial delivery shall operate as a delivery of the whole (ƒ),) is no waiver of the vendor's right to retain the remainder for the price (g). (b) Per Holt, C. J., Langford v. Administratrix of Tyler, Salk. 113; cited by Lord Ellenborough, C. J., in Hinde v. Whitehouse, 7 East, 571; see per Littledale, J., Bloxam v. Sanders, 4 B. & C. 945. (c) Wilmshurst v. Bowker, 5 New Cases, 551. (d) Withers v. Reynolds, 2 B. & Ad. 882. (e) See observations of the judges on the case of Withers v. Reynolds, in Franklin v. Miller, 4 Ad. & E. 604. (f) Bunney v. Poyntz, 1 N. & M. 229; 4 B. & Ad. 568, S. C.; Simmons v. Swift, 5 B. & C. 857; per Littledale, J., Dixon v. Yates, 5B. & Ad. 339; Payne v. Shadbolt, 1 Camp. 427. (g) Bloxam v. Sanders, 4 B. & C. 941, cited by Vaughan, J., in Miles v. Gorton, 2 C. & M. 509; and see Payne v. Shadbolt, 1 Camp. 427. Nor, as between the original vendor and vendee, is the lien of the former divested by his giving to the vendee a delivery order for the goods sold, but remaining in the vendor's warehouse rent free, although it appeared that by the usage of trade in Liverpool, (where the parties had dealt,) goods sold while in warehouse are delivered by the vendor's handing to the vendee a delivery order, and that the holder of such order may obtain credit with a purchaser as having possession of the goods (h). Though it would be otherwise if the goods were, at the time the delivery order is given, in the warehouse of a third party, and such third party accepts the order and attorns to or acknowledges the title of the vendee (i). Nor does the mere fact of the vendor's charging (and semble even receiving) warehouse rent from the vendee destroy his lien for the price; the charge of rent has not, as between the original parties, the effect of making the warehouse of the vendor the warehouse of the vendee, the vendor still retains a control over the goods, and it becomes a part of the contract between the parties that the goods are not to be delivered until the price and the rent also is paid (k). But where the claim of a third party intervenes, as where the rent is paid by a person to whom the vendee has resold the goods, then there is a constructive delivery to such sub-vendee on the part of the vendors, who, after receipt of such rent from him, cannot be considered as holding the goods otherwise than as his agents (1). In Tansley v. Turner (m), where the plaintiff had sold trees to J. then lying on land occupied by B., and J. was to have power of removing them when he pleased, and the trees having been marked by the purchaser, and the cubical contents of each ascertained, some of them had been taken away; it was held that, notwithstanding the remainder of the trees remained on the land of B. and the sum total of the cubical contents had not been ascertained, the plaintiff could not, on the bankruptcy of J., enforce any lien on the trees. The purchaser had the power of entering on the land of B. whenever he pleased, and such land (h) Townley v. Crump, 4 Ad. & E. 58. (i) Harman v. Anderson, 2 Camp. 243, and per Bayley, B., and Vaughan, J., in Miles v. Gorton, 2 C. & M. 509, 510. (k) Miles v. Gorton, 2 C. & M. 504, 513. (1) Hurry v. Mangles, 1 Camp. 452; per Bayley, B., in Miles v. Gorton, 2 C. & M. 513. (m) 2 Bing. New Cases, 151; 2 Scott, 238; 1 Hodges, 267, S. C.; ante, 377. was therefore to be considered as his, the purchaser's, warehouse. He had also removed some of the trees, and had marked all the others, which showed that no property was meant to be retained by the plaintiff. But even where the goods have been sold on a credit which has not expired, the vendor (independently of his right of stopping the goods after he has parted with them, and whilst they are in transitu, that is, before they have finally reached their destination (n), or have been received by the purchaser,) in the event of the vendee becoming bankrupt or insolvent, may withhold the goods even as against the vendee's assignees, until payment of the price (o). But where a vendor takes a bill of exchange or promissory note, and negociates it, his lien is suspended whilst the security is running (though he may stop the goods in transitu without even tendering back the bill, and the same be not due (p)). But upon the bill or note being dishonoured, his right of lien revives as to such goods as are in his possession, there having been nothing equivalent to a payment (q). The terms of the credit agreed upon must be regarded in an action for the price, although the defendant is already partially in default. Thus, if goods be sold upon the terms that half the price shall be paid down, the remainder in three months; the vendor cannot sue for the latter moiety, until the expiration of the three months; although part of the first half is unpaid (r). Where there is an entire order for and sale of goods (s), and part only are delivered, and the vendor refuses to deliver the remainder, the vendee is at liberty, (as we shall presently observe), within a reasonable time, to return the goods delivered. But if he retain them after the period for the delivery of the remainder, he is liable upon a qnantum meruit for the price or value of that portion which he thus appropriates to his own use (t). But the (n) Miles v. Gorton, 2 C. & M. 504. (0) See Tooke v. Hollingworth, 5 T. R. 215; Hanson v. Meyer, 6 East, 614; per Bayley, J. in Bloxam v. Sanders, 4 B. & C. 948, 949; 7 Dowl. & Ry. 396; per Littledale, J., Dixon v. Yates, 5 B. & Ad. 339. (p) Edwards v. Brewer, 2 M. & W. 375; Feize v. Wray, 3 East, 93. (q) See Miles v. Gorton, 2 C. & M. 512; sed vide Bunney v. Poyntz, 1 N. & M. 229; but the bill being out standing, the vendor could not, perhaps, give a valid title to the goods by reselling them to a third person; per Bayley, B., in Miles v. Gorton. (r) Day v. Picton, 10 B. & C. 120; 5 Man. & Ry. 31; see Planche v. Colburn, 8 Bing. 14; 1 M. & Scott, 51; 5 C. & P. 58, S. C. (s) As to which, see ante, 383, 384. (t) Oxendale v. Wetherell, 9 B. & C. 386; Mavor v. Pyne, 3 Bing. 285; 11 Moore, 2, S. C. vendor cannot sue for the value of the goods delivered, before the expiration of the time fixed for the completion of the contract, in regard to the complete delivery (u), even though the vendee were guilty of such a fraud as that trover might have been maintained against him (x). Nor before the vendee has had a reasonable opportunity of ascertaining if the goods be according to order, or suitable to the purpose for which they were ordered and sold (y). In the cases of sales by auction, and of contracts entered into by the East India Company, at their sales, it is usual to introduce an express clause, authorising a re-sale by the vendor, in the event of the purchaser's default, and charging him with the loss or deficiency, if any, and the expenses. It appears to have been the opinion of Lord Ellenborough, that the law did not impliedly confer this power of re-selling (z); but it is established that such power exists, even in the absence of an express stipulation, where the price is unpaid, and that the purchaser is responsible for the loss which may occur, although he did not consent to the re-sale (a). In these cases the declaration should be special, for not accepting the goods, showing the damages occasioned thereby, &c. (b). Where the property in the goods has become absolutely vested in the purchaser, by his having received and enjoyed the use of them, and he has given a bill for part of the price, the remainder having been paid, the seller may sue the vendee upon the bill to recover the amount, although the seller forcibly retook the possession of them from the vendee after the delivery. The contract is not by such tort rescinded, and the purchaser's remedy is an action of trespass, &c. (c). Where a coach was sold, upon the terms of payment by a variety of bills of exchange, and it was stipulated that the vendor "should have and hold a claim upon the goods until the debt was paid;" it was (u) Id. In the case of work done to an article, the property of the defendant, the workman must complete the work, if required by the contract, before he can sue for what he has performed; Sinclair v. Bowles, 9 B. & C. 92; 4 Man. & Ry. 1; Adland v. Booth, 7 C. & P. 108. When shipwright may sue for partial repairs before completion of contract, Roberts v. Havelock, 3 B. & Ad. 404. (x) Strutt v. Smith, 1 C., M. & R. 312; Ferguson v. Carrington, 9 B. & C. 59; ante, 409. (y) Hughes v. Lenny, 5 M. & W. 183. (z) See Greaves v. Ashlin, 3 Camp. 426. But it does not appear that the price had not been paid in this case. (a) Maclean v. Dunn, 1 M. & P. 761; 4 Bing. 722, S. C, (b) Id.; Hone v. Milner, Peake's R. 58, 3rd ed.; 2 Chitty Pl. 6th ed. 160. (c) Stephens v. Wilkinson, 2 B. & A. 320. |