It is a general rule of the law of sales that the seller is not in default, if the delay on his part is occasioned by the default of the purchaser in first doing that which is a condition precedent to delivery.17 The buyer may for instance, fail to come for the goods at the time agreed upon, in which case, the seller would be justified in deeming the contract abandoned.18 Delivery will be excused if the buyer refuses or defaults in payment, where payment and delivery are to be contemporaneous. So if the buyer renounces the contract, the seller is thereby excused from the duty of making delivery.

The seller of goods is likewise absolved from his obligation to make delivery of goods, if before the day fixed for the delivery the buyer becomes insolvent.

Where the performance of the contract itself is by law made illegal subsequent to the date of its making, both parties are excused from performance. Performance is likewise excused where at the time, it is physically impossible to perform, but this does include mere inability to perform the contract.

16 Crapo vs. Kelly, 16 Wall., 640. 17 Weill vs. American Metal Co., 182 I11., 128.

18 Warren vs. Buckminster, 24 N. H., 336.