DELIVERY AND PAYMENT. 25 



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 (c). 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" (d). 

 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 (e). 



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

 future day, is not invalidated by the circumstance that, at delivered on a 

 the time of the contract, the vendor neither has the goods '^*™'* "^^y- 

 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 Delivery and 

 provision is made to the contrary, the deliverv and payment Payment con- 



■^,1 , j./\ temporaneous 



are to be contemporaneous acts (g). acts. 



Unless a different intention appears from the terms of Time not tie 

 the contract, stipulations as to time of payment are not essence of a 

 deemed to be of the essence of a contract of sale. Whether contract. 

 any other stipulation as to time is of the essence of the 

 contract or not depends on the terms of the contract (A). 



Where goods are sold, and nothing is said as to the time where 

 of the delivery, or the time of payment, and everything notMngia 

 the seller has to do with them is complete, the property ^^^ timeof 

 vests in the buyer, so as to subject him to the risk of any the delivery, 

 accident which may happen to the goods, and the seller 

 is Kable to deliver them, whenever they are demanded, 

 upon payment of the price, but not before \i). 



[c] Per Bayley, J., Tarling v. S. 189 ; 17 E. R. 301 ; Cowper v. 

 Baxter, 6 B. & C. 364 ; see also Andrews, Hob. 41 ; Noy's Maxims, 

 Mrley Y. Bates, 33 L. J., Ex. 43; cap. 42; 2 Bla. Com. 447; Year 

 Castle V. Tlayford, L. E., 7 Ex. 98; Book, Easter Term, 5 Edw. 4, fol. 

 Sale of Goods Act, 1893, s. 20. 20 ; Sale of Goods Act, 1893, s. 28. 



(d) Noy's Maxims, 208. (A) Sale of Goods Act, 1893, 

 («) Martineau v. Kitehing, L. E., s. 10 ; see also Martindale v. Smith, 



1 Q. B. 436, cited in Chitty on 1 Q. B. 395, per Cur. ; Reater v. 



Contracts, 12th ed. 433. Sala, 4 C. P. D. 249, per Cotton, 



{/) Hibbletehite \. McMorine, 5 L.J. 



M. & "W. 462 ; Sale of Goods Act, («) Bloxam v. Sanders, 4 B. & C. 



1893, 8. 5. 941 ; Sale of Goods Act, 1893, 



[g] Pettitt V. Mitchell, 3 Sco. N. s. 28. 

 E. 740 ; Chase v. West-more, 5 M. & 



