8 RISK. 



sender is not liable for a, mistake in transmission, and, unless 

 the message be correct, there is no contract, (a) 



If an order be given for a pair of horses or more, the 

 buyer is entitled to consider it as one order, and decline to 

 accept one unless the whole are delivered ; (&) but not if the 

 contract contemplates the possible delivery of a part only, or 

 if the buyer acquiesce in partial delivery as fulfilment of the 

 contract to that extent, (c) 



8. The Risk. — The risk of the horse sold but not 

 delivered is with the buyer. (cZ) The engagement of the 

 seller being to deliver, and the buyer's right being to the 

 specific animal purchased, the engagement is discharged, and 

 the right extinguished if the animal perish through no fault 

 of the seller ; and similarly it is no answer to a claim for the 

 price that the horse has not been delivered, if it have 

 perished without fault of the seller, (e) 



The risk remains with the seller — 1, If he specially under- 

 take it, or where he undertakes it by implication, as to deliver 

 it at a certain place ; (/) 2, if there is undue delay in dehvery 

 without fault on the buyer's part ; {g) 3, where the seller 

 neglects to give notice to the buyer to enable him to 

 insure ; Qi) or fails to put the animal in such a course of con- 

 veyance as to let the buyer obtain indemnity against loss in 

 carriage ; (^) 4, or Avhere anything remains to be done in 

 identifying the animal or animals sold, as — e.g., where so 

 many ponies out of a lot are sold.(^') 



(a) Verdin Brothers v. Robertson, 1871, 10 M. 35. 



(6) § 2 ; Richardson, cit. ; Ja^i v. Ritchie, 1860, 23 D. 242, 249. 



(c) Smith V. Napier, 1804 ; Hume, 338 ; B. 38 ; B. Pr. 91 (6). 



(d) Stair, i. 14, 7 ; Ersk. iii. 3, 7 ; B.C. i. 461, n. 



(e) B. Pr. 87. 



(/) Milne d: Co. v. Miller, 1809, 15 F.C. 127; HencMl du Buisson tt Co. v. 

 Swan, 1889, 17 K 252. 



(g) Fleet v. Morrison, 1854, 16 D. 1122. 



(h) Fleet cit., see also Hastie v. Campbell, 1857, 19 D. 557 ; B.C. i. 475. 



{i) B.C. i. 474-475 ; Benj. 703. 



(j) Hansen v. Craig, 1859, 21 D. 432, see § 2 ; B. Pr. 88, note (/) ; Anderson 

 V. T7«/?s, 1870, 9 M. 122-125. 



