ance with the contract and reject the rest, or he may Sect. 30. reject the whole. (4.) The provisions of this section are subject to any usage of trade, special agreement, or course of dealing between the parties. NOTES. (a) "Delivery." Defined Sect. 62 (1), "The seller does not comply with his contract by the tender or delivery of either more or less than the exact quantity contracted for, or by sending the goods sold mixed with other goods." 1 (b) Rejection of goods. See Sect. 11 (1) and (2). It has been held that where the seller's obligation was to deliver "on or before" a certain date, and the buyer's to pay on the completion of the delivery, a partial delivery before the date specified did not necessarily involve acceptance of the part by the buyer so as to preclude him afterwards rejecting on the ground that the remainder of the seller's obligation had not been implemented.2 A contrary rule was laid down in a more recent case,3 and the latter rule seems embodied in the closing words of Sub-sect. (1) (See Coм. infra, p. 144). A testing of the goods, though made for the purpose of ascertaining the quality (not the quantity), does not appear to preclude the buyer from afterwards rejecting under Sub-sect. (2).4 (c) "Acceptance." See Sect. 35 and note (b) supra. (d)"The contract rate." The acceptance by the buyer of a quantity smaller or larger than that in the contract, forms a new contract, and the ordinary rule would be payment according to value.5 But the section fixes the value at the contract rate which, in the common case, forms the best criterion. (e) "Description." In this section and in Sect. 14 (1) "description" refers to the nature of the goods themselves (i.e. the kind of goods), not to the manner in which the species is 1 Benjamin, p. 696. 2 Waddington v. Oliver (1805), 2 B. & P. 61. 3 Oxendale v. Wetherell (1829), 9 B. & C. 386. Cunliffe v. Harrison (1851), 6 Ex. 903. See Coм., Sect. 35 infra, p. 170. 5"When some of the goods have been delivered, and the vendee does not return them upon the failure of the vendor to perform his part of the contract, the latter may bring an action for the value (not the stipulated price) of those goods."-Per Bayley, J., in Shipton v. Casson (1826), 5 B. & C. 378 at p. 383. Sect. 30. Sub-sects. (1) and (2). Law of Scotland. Jaffray v. Richardson v. Jaffe v. represented in written or spoken language. The latter is the COMMENTARY. The law of Scotland as to Sub-sects. (1) and (2) appears to have been assumed. If the rules embodied in these sub-sections formed part of the law of England prior to the Act, they should à fortiori have applied to Scotland, where the buyer's power of rejection is much greater.1 2 The principle of the first sub-section was recognised in Jaffray v. Boag (1824), where a cask of oil was alleged by the buyer to be five gallons short of the invoice quantity. In intimating this to the seller, the buyer proposed a new arrangement, and afterwards pleaded that the seller's silence inferred his acquiescence. The Court held that the buyer, by selling the cask, had passed from any objection to the quantity, and was bound to pay the full contract price. In Richardson v. Roscoe and Rigg3 (1837), commission agents advised their principals of a purchase of seal oil according to order, but afterwards sent an invoice for about half the quantity, which the principals declined to take. It turned out that the agents had diverted the remainder of the oil to an alleged prior order from other principals, a proceeding which in law converted them, in a question with the buyer, into principals selling on their own account." It was held that the buyer was not bound to accept a less quantity than that ordered. In Jaffé v. Ritchie 5 (1860) the main question was as to the substitution of jute for flax, but the seller urged that only a very small proportion of the goods were not of the description ordered. Lord Justice-Clerk Inglis, while regretting that the facts had not been more accurately ascertained, held that "on clear principles of law the pur 1 See Coм., Sect. 11 ante, p. 52. 23 Sh. 375 (N.E. 266). 3 15 Sh. 952. On this point see Ireland v. Livingston (1872), L.R. 5 H.L. 395, per Lord Blackburn at p. 410, and Robinson v. Mollett (1875), L. R. 7 H.L. 802. 5 23 D. 242. suers must prevail, because there had been a breach of Sect. 30. contract on the part of the seller in failing to deliver the commodity bargained for to its full extent." 1 Where several separate articles are included in the same Separate contract, the buyer is not bound to accept part if the whole articles. cannot be delivered, unless the contract contemplates a separation of the obligations or the buyer acquiesces in a partial delivery. In Scotland, a breach of contract arising from defective Relation of quantity in deliveries, made in single bulk or simultaneously, quantity to quality. was generally treated as subject to the same rules as a breach arising from defective quality. If the buyer did not timeously reject the goods and repudiate the contract, he was held to have passed from the objection and to be liable in the full contract price.5 But in the case of defective quantity, a principle resembling the buyer's alternative remedies under this Act may be gathered from the House of Lords judgment in Robertson v. Harford Brothers and Co. (1832), where Lord Chancellor Brougham said: "If I buy a dozen of wine and I only get ten-if I drink the ten bottles and am called upon to pay for twelve, it is absurd to say you must pay for twelve-you ought to have taken. the objection when the ten bottles came, and said, this is 123 D. at p. 249. The following Scottish cases also relate to deliveries alleged to have been defective in quantity-Shewell v. Mowbray (1678), Mor. 14233; Smith v. Napier (1804), Hume, 338; Galletly v. Child (1824), 3 Sh. 142 (N.E. 95); Whitson v. Neilson and Co. (1828), 6 Sh. 579; Schuurmans and Son v. Stephen and Sons (1832), 10 Sh. 839; Fraser v. Outram (1834), 13 Sh. 84. 2 Champion v. Short (1807), 1 Camp. 53; Hamilton v. Hart (1830), 2 Sh. 596. In the latter case two horses sold together, were held to have been sold as a pair, and one of them proving unsound, the buyer was found entitled to reject the other. The same principle operates in favour of the seller. Thus in Elliott v. Thomas (1838), 3 M. & W. 170, Parke, B., said: "That was a joint order for common steel and cast steel; the effect of such a joint order, unless explained, would be to make it one entire contract, since we must assume that one article would not have been furnished at one stipulated price unless the other had been agreed to be paid for at the other price "-3 M. & W. at p. 176. Hall and Sons v. Scott (1860), 22 D. 413; Linn v. Shields (1863), 2 Macp. 88; Higgin v. Pumpherston Oil Co. Ltd. (1893), 20 Ret. 532. Smith v. Napier (1804), Hume 338; Bragg v. Cole (1821), 6 Moore 114. 5 As in Jaffray v. Boag (1824), 3 Sh. 375 (N.E. 266), referred to in text supra. 6 See Sect. 11 (2). 76 W.S. 1, reversing Court of Session judgment sub nom. Harford Brothers and Co. v. Robertson (1831), 9 Sh. 352. Sect, 30. Waddington v. Oliver. Its relation to the present Act and to the law of Scotland. Effect of section upon instalment deliveries. not a dozen-here are only ten. That applies if I had bought wine expecting it of one vintage and it turned out to be of another, and expecting it was good though it turned out to be bad. It is too late to take the objection."1 In the English case of Waddington v. Oliver2 (1805), the plaintiff delivered 12 bags of hops on 12th December in part performance of a contract to deliver 100 bags on or before 1st January. His demand for immediate payment of the price of the 12 bags was held premature, the contract time not having expired. The contract seems to have contemplated a single delivery of the whole quantity, and therefore the buyer was not entitled to demand a part without taking the whole. It is doubtful if this judg ment could now be maintained, in view of the express provision of the first sub-section, that, if goods are accepted, they must be paid for at the contract rate. The rule in Scotland seems to be in accordance with the sub-section. In the circumstances of Waddington's Case the seller is not bound to make a partial delivery, but if such delivery is necessary, e.g. on account of the bulky or ponderous nature of the goods, or if, in any circumstances, it is made with the buyer's consent, the seller is entitled to obtain in exchange, a proportion of the price corresponding to the part delivered.5 6 In instalment deliveries where the seller fails in the first delivery, and thus commences with a breach, it was held in Hoare v. Rennie (1859) and Honck v. Muller (1881) that the buyer might cancel the whole contract on giving notice. The question is not free from difficulty, but, assum 16 W.S. at p. 25. 8 2 2 B. & P. N.R. 61. 3 "If a man contracts to buy 150 quarters of wheat he is not at liberty to call for a small portion without being prepared to receive the whole quantity." -Per Wilde, C. J., in Kingdom v. Cox (1848), 5 C. B. 522 at p. 526. 4 And see before this Act Oxendale v. Wetherell (1829), 9 B. & C. 386; Colonial Insurance Co. v. Adelaide Marine Insurance Co. (1886), 12 App. Cas. 128. 5 "In many cases strict adherence to the rule of payment on delivery, where subjects are of such bulk that they must be delivered in parcels, would cause great inconvenience, and therefore in practice this is seldom required, but it is nevertheless the strict legal right of parties."-Per Lord Justice-Clerk Inglis in Hall and Sons v. Scott (1860), 22 D. 413 at p. 420. See also Linn v. Shields (1863), 2 Macp. 88, per Lord Justice-Clerk Inglis at p. 93. 6 5 H. & R. 19. 7 7 Q.B.D. 92. 8 It is discussed in connection with Sect. 31 COм. post, p. 149. ing the law to be correctly stated, the buyer's remedy of Sect. 30. rejection seems a consequence of this section as well as of Sect. 31. If the seller has a right to receive payment at the contract rate for the goods actually delivered, such right will result from Sub-sect. (1) of this section. say Words in contract denoting quantity. Arrol, and Co. v. Steel Co. of Scotland. In connection with quantities difficulties often arise from the use of special or approximate words such as "cargo," " from," "about," "not less than," "more or less," "averaging," etc.1 Among Scottish cases is that of Tancred, Arrol, Tancred, and Co. v. The Steel Co. of Scotland 2 (1890), where it was held that a contract to supply "the whole of the steel required by you for the Forth Bridge" was not limited by the subsequent words, "the estimated quantity of the steel we understand to be 30,000 tons more or less." "I think," said Lord President Inglis, these are mere words of expectation, or understanding, or estimate, but they certainly do not limit the very emphatic words with which the contract begins." In the House of Lords the judgment of the Court of Session was unanimously affirmed.* " 3 In the 1 A list of such words with illustrative cases will be found in Chalmers' Commentary on the Act, p. 177. 2 17 Ret. H.L. 31. In Court of Session, sub nom. Steel Co. of Scotland v. Tancred, Arrol, and Co., 16 Ret. 440. 316 Ret. at p. 451. See also Walls and Co. v. Greenshields and Co. (1875), Sh. Ct. Glasgow, Guthrie's Sel. Ca. 1st ser. 527. Lord Shand in the Court of Session specially referred to and founded on the following authorities, Gwillim v. Daniel (1835), 2 C. M. & R. 61; M'Connal v. Murphy (1873), L.R. 5 P.C. 203; Brawley v. United States (1877), 6 Otto Amer. Rep. 168. The cases of Leeming v. Smith (1851), 16 A. & E. 275, and Morris v. Levison (1876), L.R. 1 C.P.D. 155, which had been cited in argument, were considered by Lord Shand to be special and not applicable (16 Ret. at p. 457). In the American case of Brawley v. United States, approved of in The Steel Co.'s Case (supra), the Supreme Court of the United States laid down the following rules :-"Where a contract is made to sell or furnish certain goods identified by reference to independent circumstances, such as an entire lot deposited in a certain warehouse, or all that may be manufactured by the vendor in a certain establishment, or that may be shipped by his agent or correspondent in certain vessels, and the quantity is named with the qualification of about' or 'more or less,' or words of like import, the contract applies to the specific lot; and the naming of the quantity is not regarded as in the nature of a warranty, but only as an estimate of the probable amount in reference to which good faith is all that is required of the party making it. . . . But when no such independent circumstances are referred to, and the engagement is to furnish goods of a certain quality or character to a certain amount, the quantity specified is material and governs the contract. The addition of the qualifying words 'about,' 'more or less,' and the like, in such cases, is only for the purpose of providing against accidental variations arising from slight and unimportant excesses or L |