30 



CONTRACTS CONCEHNING HORSES, ETC. 



Goods to be 

 made to order. 



Goods to be 

 delivered on a 

 future day. 



Delivery and 

 payment con- 

 temporaneous 



acts. 



Time not tlie 

 essence of a 

 contract. 



between him and tlie vendee, the property in the thing 

 sold vests in the vendee, and then all the consequences 

 resulting from the vesting of the property follow, one of 

 which is, that if it be destroyed, the loss falls upon the 

 vendee (r/). Thus, in Noy's Maxims it is said, "If the 

 Horse die in my stable between the bargain and the 

 delivery, I may have an action of debt for my money, 

 because, by the bargain, the property was in the buyer" (A). 

 By contract, however, the risk may be in the vendee, even 

 though the vendor may have both the property in and the 

 possession of the goods (/). 



Where goods are to be made to order, as on a contract 

 for building a carriage or a ship, it is a question of in- 

 tention, to be inferred from the circumstances, whether 

 the property passes before the completion of the article 

 or not (A-) . 



A contract for the sale of goods, to be delivered at a 

 future day, is not invalidated by the circumstance that, at 

 the time of the contract, the vendor neither has the goods 

 in his possession, nor has entered into any contract to buy 

 them, nor has any reasonable expectation of becoming 

 possessed of them by the time appointed for delivering 

 them, otherwise than by purchasing them after making 

 the contract (/). 



"Where there is a sale of an ascertained article, and no 

 provision is made to the contrary, the delivery and pay- 

 ment are to be contemporaneous acts (;;?). 



In a sale of chattels. Time was not generally, even at law, 

 of the essence of the contract, unless made so by express 

 agreement, by introducing conditional words into the 

 bargain (;;). And now, by the Judicature Act, 1873 

 (36 & 37 Yict. c. G6), s. 25, sub-s. 7, stipulations in con- 

 tracts as to Time or otherwise, which would not before the 

 passing of that Act have been deemed to be or to have 

 become of the essence of such contracts in a Court of equity, 



{(j) Per Bayley, J., Tarling v. 

 Baxter, 6 B. & C. 364 ; see also 

 Furley v. Bates, 33 L. J., Ex. 43 ; 

 Castle V. Fhyford, L. R., 7 Ex. 98. 



(A) Noy's'Maxims, 208. 



(i) Martbieau v. Kltcliinq, L. R., 

 7 Q. B. 436, cited in Chitty on 

 Contracts, 10th ed. 348. 



{k) Puad V. Fairbanks, 22 L. J. 

 206 (C. P.). 



(/) Eihhlcwhite V. McMorine, 5 M. 

 & W. 462. 



(;«) Fcttitt V. Mitchell, 6 Sco. N. 

 R. 740 ; Chase v. Westmore, 5 M. & 

 S. 189 ; Coicpcr v. Andreivs, Hob. 

 41 ; Noy's Maxims, cap. 42; 2 Bla. 

 Com. 447; Year Book, Easter Term, 

 5 Edw. 4, fol. 20. 



(«) Per Cur., Martindalc v. Smith, 

 1 Q. B. 395. See Coddington v. 

 Faleogo, L. R., 2 Ex. 193, 



