The Saleof Goods Act (Ont. s. 2; U. K. s. 62) defines " de-livery" as meaning the " voluntary transfer of possession from one person to another."
The Sale of Goods Act (Ont. s. 27, 28; U.K. ss. 27, 28) provides:
28. Unless otherwise agreed, delivery of the goods and payment of the price are concurrent conditions, that is to say, the seller must be ready and willing to give possession of the goods to the buyer in exchange for the price and the buyer must be ready and willing to pay the price in ex-change for possession of the goods.
If A. and X. agree that the performance of their respec-tive promises shall be simultaneous, or at least that each shall be ready and willing to perform his promise at the same time, then the performance of each promise is conditional on this concurrence of readiness and willingness to perform; the conditions are concurrent. Thus in a sale of goods where no time is fixed for payment, the buyer must be ready to pay and the seller ready to deliver at one and the same time. The promises are interdependent and conditional upon each other, so that if A. fails to deliver, X. may not only sue for damages but may also refuse to pay.
Anson, Contract, 15th ed. 1920, pp. 354-5; Morton v. Lamb, 1797, 7 T.R. 125, 23 R.C. 500 (plaintiff in an action for non-delivery averred that he was always ready and willing to receive the goods, whereas he ought to have averred that he was always ready and willing to pay for the goods).
Delivery and payment are, however, not concurrent conditions if, on the one hand, the contract is for the delivery of the goods on credit, of if, on the other hand, they are to be paid for on a day certain, irrespective of delivery. As to an action for the price in the latter case, see chapter 8, 81.
Even where the contract provides for delivery on credit, if the buyer becomes insolvent or states that he will not pay for the goods, the seller need not deliver except upon receiving payment.
In re Edwards, 1873, L.R. 8 Ch. 289; Re Faulkners, 1917, 40 0.L.R. 75, 38 D.L.R. 84, and cases cited; see also chapter , 73, as to the unpaid seller's lien or right of retention.
Under the contract known as a c.i.f. contract (that is, a contract for the sale of goods at a price to cover cost, insurance and freight), the seller must (1) ship at the port of shipment goals as described in the contrac, (2) procure a contract of affreightment under which the goods will be delivered at the destination contemplated by the contract, (3) procure in-surance for the benefit of the buyer upon the terms current in the trade, and (4) make out an invoice as described by Blackburn J.; in Ireland v. Livingston, 1872, L.R. 5 H.L. 395, at p. 406, or in some similar form,and, finally, tender the bill of lading, insurance policy and invoice to the buyer, so that he may know what freight he has to pay and obtain delivery of the goods, if they arrive, or recover for their loss if they are lost on the voyage. The contract constitutes an agreement that the delivery of the goods in conformity with the contract shall be delivery on board ship at the port of shipment, completed by tender of the documents to the buyer, and the buyer must then be ready and willing to pay the price, whether the contract expressly provides for payment against shipping documents" or not. Various provisions of the Sale of Goods Act which were primarily drafted in relation to the sale and delivery of goods on land can be applied to c.i f. contracts only mutatis mutandis, because under such contracts the obligation is to deliver documents rather than goods.
Clemens Horst Co. v. Biddell,  A.C. 18, reversing Biddell v. Clemens Horst Co.,  1 K.B. 934, and restoring  1 K.B. 214; Orient Co. v. Brekke,  1 K.B. 531; Karberg Co. v. Blythe & Co.,  1 K.B. 495, at pp. 504, 513; Manbre Sacharine Co. v. Corn Products Co.,  1 K.B. 198; Wilson, Holgate & Co. v. Belgian Grain and Produce Co.,  2 K.B. 1; Schmidt v. Wilson & Canham, 1920, 47 O.L.R. 194, affirmed, 48 O.L.R. 257, 55 D.L.R. 576.