12 PAYMENT. 



ately,(«) f^n^^ the seller is entitled to demand, and have an 

 action for, payment on offering the horse, or on proof of 

 deliver}^ or on showing that the thing has perished by 

 accident. (6) If the sale be upon credit, and the biij'er fail, 

 or be vergens ad inoiiiam, the seller may resile,(c) or claim 

 restitution of the horse, when delivery has been inadvertently 

 made Avithout payment, if not barred by delay or by giving 

 credit. (cZ) The mere insolvency of the buyer does not 

 rescind the contract ; (c) and his creditors (or trustee) may 

 obtain delivery on payment ;(/) but tlie seller may retain {g) 

 or stop in transitiv,(h) if the buyer be declared insolvent. 

 All mercantile contracts are construed according to the 

 usage of trade ; and, accordingly, where there is a custom 

 known to both parties of giving credit for a certain time, 

 that will be held as part of the bargain ; but if it is local 

 and known to one of the parties only, it has no effect, nor is 

 it admissible to prove a custom in contradiction of express 

 contract, (i) 



12. Express Conditions as to Payment.^ — If there be any 

 express words or stipulations about payment, they will 

 over-rule usage of trade. (_;') If there be no time specified, 

 payment is due on delivery, or wdien by usage of trade the 

 price is due.(/i;) It must be in legal tender if insisted on,(/) 

 or on such notes as may be received without objection, or 

 which have been stipulated. ('?7i) 



When payment is made by note or cheque, the buj^or is 



(a) Hall V. Scott, 1860, 22 D. 413. 



(b) Bell on Sale, 103, 78. 



(c) B. Pr. 46, 71, 100. 



(d) Richmond v, Railton, 1854, 16 D. 403. 

 (c) B. Pr. 100. 



(/) B.C. i. 471. 



{<J) See § 22. 



(/i) See § 23. 



(^) B. Pr. 83, 101 and cases there cited. 



\j) B. Pr. 103. 



\k) Linn v. Shields, 1863, 2 M. 88. 



(I) 33 Vict. c. 10, § 6. 



(m) Cainc v. Coidton, 1863, 1 11. and 0. 764 ; B. Pr. 127. 



