unable to restore the cargo in forma specifica. The Court Sect. 35. unanimously repelled both pleas.1 ance equals tion. distinction of England and Scotland. There is at least an analogy between the conditions Negation of which qualify acceptance as set forth in this section, and the duty of acceptconditions attached to the buyer's right of rejection in right of rejec Scotland reserved by Sects. 11 (2) and 53 (5). But Lord Chelmsford points out a distinction between the law of Suggested England and Scotland in regard to acceptance and non- between law acceptance (rejection), which is of some importance in this connection. "In England if goods are sold by sample,2 and they are delivered and accepted by the purchaser, the purchaser cannot return them; but if he has not completely accepted them, that is, if he has taken the delivery conditionally, he has a right to keep the goods a sufficient time to enable him to give them a fair trial, and then, if they are found not to correspond with the sample, he is entitled to return them. As I understand the law of Scotland, although the goods have been accepted by the purchaser, yet if he finds that they do not correspond with the sample, he has an absolute right to return them." "3 Although delivery and acceptance are concurrent conditions, the buyer is entitled to retain the goods for a reasonable time after delivery to ascertain whether they are in conformity with the contract (Sect. 34). This is a conditional acceptance in terms of Lord Chelmsford's dictum, and it was also a condition attaching to acceptance according to the former law of Scotland, so that perhaps the suggested distinction between the laws of the two countries is more theoretical than real. 1 Lord Trayner (Ordinary) said: I regard this as timeous rejection. A purchaser is entitled to a reasonable time to examine the goods delivered to him, and in this case I cannot see that there was any unreasonable delay. In regard to the other plea, I do not think there was breaking of bulk in the legal sense so as to bar objection, nor was there any act of ownership of the kind which would bar rejection, if rejection was otherwise warranted. . I think the buyers were entitled to rely upon the goods delivered to them being conform to contract, and to proceed to cut them up to fulfil the order they had "-22 S. L. R. at p. 832. The case under consideration was one of sale by sample, but the principle applies equally to any executory sale. 3 In Couston, Thomson, and Co. v. Chapman (1872), 10 Macp. H.L. 74 at Sect. 35. Timeous notice. Sect. 36. BUYER NOT JECTED GOODS. The intimation to the seller of the buyer's intention to reject must be given within a reasonable time. It is to be observed that Sect. 11 (2), while providing for rejection within a reasonable time," is silent as to notice to the seller, but as the circumstances are the same in each case, the enactment of this section will form a supplement to the other provision.1 (b) 36. Unless otherwise agreed,(a) where goods are delivered to the buyer, and he refuses to accept (d) them, having the right so to do, he is not bound to return them to the seller, but it is sufficient if he intimates to the seller that he refuses to accept them. NOTES. (a)" Unless otherwise agreed." As to express agreement, see Sect. 55. (b) "Delivery." Defined Sect. 62 (1). Rules as to delivery, Sect. 29. (c) "Seller," "buyer." Defined Sect. 62 (1). (d) "Refuses to accept." In other words, "rejects," e.g. under Sect. 11 (2). See also Sect. 35, and Coм. ante, p. 171. (e) "Having the right so to do." As where the seller is in breach of contract [Sect. 11 (2)]. If the rejection is wrongful, the buyer has not only no duty, but has no right to return the goods. (f) "Intimates to the seller." No formal notice is necessary. Any unequivocal act of the buyer signifying rejection, and made known to the seller, will be sufficient. But the notice of rejection, if not accompanied by an offer to return, must not be inconsistent with such an offer. Thus notice of rejection, accompanied by an intimation that the seller will not be allowed to remove the goods till they are replaced by others, will not be effectual. Nor will notice of rejection serve its purpose if the buyer does not continue to act as a mere custodier. Where, 1 As to what constitutes timeous notice see Coм., Sect. 11 ante, p. 54, and NOTE (f), Sect. 36. 2 Grimoldby v. Wells (1875), L. R. 10 C. P. 391.-Per Brett, J., at p. 395. See Coм. infra, p. 173. 3 Jardine v. Pendreigh (1869), 6 S. L.R. 272. e.g., after intimation and actual storage of the goods, the buyer Sect. 36. takes part of them out of the warehouse and sells or consumes them, he will be held liable for the price of the whole.1 COMMENTARY. The former law of Scotland on the subject of this Former law of section was not well defined, but its tendency was to im- Scotland. pose a duty upon the buyer of returning rejected goods to the seller, or at least of offering to return them.2 In many cases, however, the word "return" meant no more than notice to the seller that the goods were rejected, and an intimation, express or implied, that they lay at his disposal. The Institutional writers state that the goods must be "offered back," but do not suggest any further active steps on the part of the buyer. Bell, after stating that the buyer must make his challenge instantly, proceeds to say that "where goods are rejected at a distance from the seller's residence, and where he has no agent, the buyer must act fairly for the seller's interest on the principles of negotiorum gestio." This is simply another mode of stating that the buyer acts as an involuntary bailee or custodier for the seller, as under the present section.5 M. P. Brown says that "the thing sold must be returned in due time by the vendee," but this may be taken to be a loose expression, implying notice to the seller that the goods are his, and that he will receive them on application." " 4 On the other hand, a rule has been laid down, especially Neutral in sales of horses, that the buyer's duty does not end with custody. mere notice. In M'Bey v. Gardiner (1858), Lord Cowan 8 1 Robb v. Cruikshank (1840), 2 D. 988; Ransan v. Mitchell (1845), 7 D. 813. 2 See, e.g., Webster v. Thomson (1830), 8 Sh. 528. 3 Stair, i. 10. 15; Ersk. iii. 3. 10; Bank. i. 19. 2. 4 Bell's Com. i. 464; Prin., Sect. 99. 5 As to the risk in such a case see Sect. 20. 6 M. P. Brown on Sale, p. 309. 7 The right of the seller is, that if the goods when tendered are not taken in implement of the contract, they remain the property of the seller, must be at his command and disposal, and so must be instantly sent back or held only for him."-Per Lord Justice-Clerk Hope in Padgett v. M'Nair (1852), 15 D. 76 at p. 79. See also Jowitt v. Stead (1860), 22 D. 1400. 8 20 D. 1151. Sect. 36. stated the rule thus: "The pursuer contends that having given notice of the unsoundness and of his intention to return the horse, he had no duty beyond keeping it properly. . . . But, when the purchaser has given notice, and the seller has denied the existence of the alleged unsoundness and refused to take back the animal, it appears to me to be the duty of the purchaser to place it in neutral custody until the authority of the Court is obtained for its sale."1 Judgment was given against the buyer on the ground that, although he had given timeous notice, he had not placed the horse in neutral custody, and had allowed nearly two months to elapse before he applied for a judicial warrant to sell. In Caledonian Ry. Co. v. Rankin 2 (1882), Lord Justice-Clerk Moncreiff said: "When a purchaser holds that an article is disconform to warranty, or is not the article which he was led to believe it to be, he is bound, instead of keeping it in his own. custody, to put it into neutral custody if the seller refuses to take it back; for he is bound to tender it back, and if the seller refuses to take it, he is not entitled to expose it to any risk which it might suffer in his custody." Lord Young, in the same case, took a less extreme view. He said: "The matter of neutral custody is itself one of circumstances. . . . So far as the character or class of the goods is concerned, neutral custody would not be required in the case of plate, pictures, or books. It might be in the case of wine, but on the whole it is a question of circumstances, more having to be regarded than merely the nature of the article."4 In this case, although a horse had been kept by the buyer for six weeks after notice of rejection, during which time correspondence and negotiations had been going on between the parties, the buyer was held not to have neglected any duty.5 The most authoritative utterance in the law of Scotland on the subject of the buyer's duty, is the House of Lords 1 20 D. at p. 1153. As to the supposed necessity for obtaining judicial sanction to the sale see COM., Sect. 37 post, p. 178. 2 10 Ret. 63. 3 10 Ret. at p. 65. 4 10 Ret. at p. 67. 5 The result of the judgment in Robson v. Thomson (1864), 2 Macp. 593, so far as regards the question of neutral custody, was to the same effect. judgment in Couston, Thomson, and Co. v. Chapman1 (1872), Sect. 36. where the buyer was held to have lost his right to reject, by delaying any offer of return until litigation had commenced. It will be observed that in this case there is no reference to any obligation on the part of the buyer to place the goods in neutral custody, or to apply for a judicial warrant to sell. On the question of the supposed obligation to return the goods to the seller, Lord Chelmsford says: "Where a party desires to rescind a purchase upon the ground that the quality of the article sold does not correspond with that which it professes to be or with the sample upon which it was sold, it is his duty to make a clear and distinct offer to return, or in fact to return the goods, by stating to the vendor that the goods are at his risk, that they no longer belong to the purchaser, that he rejects them, that he throws them back upon the vendor's hands, and that the contract is thereby rescinded."2 In the subsequent English English law as case, Grimoldby v. Wells (1875), the Court explained Lord to rejection. Chelmsford's meaning in the above-cited passage to be, not that the buyer was bound to return, or to offer to return, the goods, but that he might have effectually declared his intention of rejecting them in either of these ways. In the case last referred to, Brett, J., stated the law of England thus: "The buyer may, in fact, return the goods, or offer to return them, but it is sufficient, and the more usual course is, to signify his rejection of them by stating that the goods are not according to contract, and that they are at the vendor's risk. No particular form is essential; it is sufficient if he does any unequivocal act showing that he rejects them "4 section. Any doubt as to the buyer's duty in regard to rejected Effect of the goods seems removed by the terms of the section. If the seller chooses to disregard the intimation of rejection, and such rejection is justified, the property and the risk remain with him, subject, however, to the buyer's duty as custodier in terms of Sect. 20. It is clear, therefore, that it is no part of the buyer's duty to place the goods in neutral custody. 3 L. R. 10 C. P. 391. 1 10 Macp. H. L. 74. 2 10 Macp. H. L. at p. 81. 4 L.R. 10 C.P. at p. 395. See also Lucy v. Moufflet (1860), 5 H. & N. 229; Heilbutt v. Hickson (1872), L.R. 7 C.P. 438. |