Sec 563

A vendor may bind himself absolutely to deliver goods "on arrival" of a particular ship by a contract to that effect. Whether delivery is conditioned on the goods being on the ship, is to be determined by the construction of the particular contract. If I say that the goods "are now on passage" by a particular ship, and engage to deliver the goods on arrival of the ship, this is a warranty that the goods are on board, and makes me liable for the goods when the ship arrives.5 And a contract to deliver goods "on arrival" of a particular ship is an absolute engagement to deliver the goods when the ship arrives, so that the vendor is liable in case of the goods not coming in the ship.6 On the other hand, a vendor may avoid a warranty by using tained, after due opportunity of inspection, purchaser caunot sue for obvious variance from description.

Describing goods as "to arrive" by a ship is making a condition precedent; describing them as on board a ship or selling them on arrival of ship, is an absolute warranty.

1 Supra, sec 224, 245.

2 Supra, sec 202 et seq.; Wh. on Evidence, sec 1019, 1023.

3 Benj. on Sales, 3d Am. ed. sec 600, note; Gibson v. Bingham, 43 Vt. 41; Gaylord Man. Co. v. Allen, 53 N. Y. 515; Dounce v. Dow, 57 N. Y. 16; 64 N. Y. 411; Morehouse v. Comstock, 42 Wis. 626.

4 Wadley v. Davis, 63 Barb. 500.

That extrinsic proof is admissible on question whether the variance between the description and the article delivered is material, see Mitchell v. New-hall, 15 M. & W. 308; Lamert v. Heath, 15 M. & W. 487.

5 Gorrissen v. Perrin, 2 C. B. N. S. 681.

6 Hale v. Rawson, 4 C. B. N. S. 85.

Sec 564

As will hereafter be seen, a substantial though partial performance of a condition precedent followed by acceptance on the other side, transmutes the condition precedent into a representation, not Condition may on part performance become representabarring a suit on the contract, though leaving ground for a cross-action for damages.1

1 Boyd v. Siffkin, 2 Camp. 326; Idle v. Thornton, 3 Camp. 274; Lovatt v. Hamilton, 5 M. & W. 639.

2 Smith v. Myers, L. R. 5 Q. B. 429.

3 Gorrisaen v. Perrin, 2 C. B. N. S. 681.

4 Vernede v. Weber, 1 H. & N. 311. Mr. Benjamin (Benj. on Sales, 3d Am. ed. sec 586) gives the following classification of the decisions on the distinction in the text: "First. Where the language is that goods are sold ' on arrival per ship A. or ex ship A.,' or ' to arrive per ship A. or ex ship A.' (for these two expressions mean precisely the same thing), it imports a double condition precedent, viz., that the ship named shall arrive, and that the goods shall be on board on her arrival. Secondly. Where the language asserts the goods to be on board of the vessel named, as '1170 bales now on passage, and expected to arrive per ship A.,' or other terms of like import, there is a warranty that the goods are on board, and a single condition precedent, to wit, the arrival of the vessel. Thirdly. The condition precedent that the goods shall arrive by the vessel will not be fulfilled by the arrival of goods answering the description of those sold, but not consigned to the vendor, and with which he did not affect to deal; but semble, the condition will be fulfilled if the goods which arrive are the same that the vendor intended to sell, in the expectation, which turns out to be unfounded, that they would be consigned to him. Fourthly. Where the sale describes the expected cargo to be of a particular description, as '400 tons Aracan Necrensie rice,' and the cargo turns out on arrival to be rice of a different description, the condition precedent is not fulfilled, and neither party is bound by the bargain." As sustaining these conclusions are cited Ale-wyn v. Pryor, Ry. & M. 406; Johnson v. Macdonald, 9 M. & W. 600; Simond v. Braddon, 2 C. B. N. S. 324; Gorris-sen v. Perrin, 2 C. B. N. S. 681; Hale v. Rawson, 4 C. B. N. S. 83; Vernede v. Weber, 1 H. & N. 311; Smith v. Myers, L. R. 5 Q. B. 429; 7 Q. B. 139.