Where goods to be delivered, in payment of a debt, are in readiness for delivery, and the buyer requests the seller to keep them for him, this is a delivery which vests the property in the creditor. (tt) It is sometimes a question of interest what is the duty of the seller as to delivery of the articles sold, and as to keeping them until delivery; and also what is the duty of the vendee as to receiving them. Usage determines this in a considerable degree; but from the general usage and the adjudications some rules may be deduced.

If no time be appointed for delivery, or for payment, these acts must be done within a reasonable time; and if neither party does anything within that period, the contract is deemed to be dissolved. (u)1 If the goods are to be delivered when requested, the purchaser may sue for non-delivery without proving a request, provided the seller has incapacitated himself from delivering them, as by resale or the like; (v) but in general a request must be made before the seller can be sued for non-delivery. (w) And if the vendee, either by the express terms of the contract or from its nature, is to designate the manner or place of delivery, he must do this before he can maintain his action. (x)

(s) Moore v. Barthop, 1 B. & C. 5;

Thompson v. Tiles, 2 B. & C. 422; Giles v. Perkins, 9 East, 12; Bent v. Fuller, 5 T. R. 294; Zinek v. Walker, 2 W. Bl. 1154; Parke v. Eliason, 1 East, 544.

(t) Hunter v. Rice, 15 East, 100. And Lord Ellenborongh said: "There is a difference between property awarded to he transferred by the owner to another, and that which is actually transferred by the contract of the owner through the medium of his agent."

(tt) Wheelock v. Tanner, 39 N. Y. 481.

(u) Langfort v. Tiler, 1 Salk. 113; and see Lanyon v. Toogood, 13 M & W. 27; Fletcher v. Cole, 23 Vt. 114 On the subject of constructive or symbolic delivery, see Dixon v. Buck, 42 Barb. 70; Sansee v Wilson, 17 Iowa, 582; Stone v. King, 7 R. I. 358; Bolton v. Riddle, 35 Mich. 13; Tufts v. McClure, 40 Ia. 317.

(v) Bowdell v. Parsons, 10 East, 359; Amory v. Brodrick, 5 B. & Ald. 712.

(w) Bach v. Owen, 5 T. R. 409. See Radford v. Smith, 3 M. & W. 254; Ben-ners v. Howard, 1 Taylor, 149. - As to a demand by a servant, see Squier v. Hunt, 3 Price, 68.

1 If a note is given in consideration of the delivery of flour on the day of its date, a failure so to deliver is a failure of consideration. Corwith v. Colter, 82 Ill. 585. The seller must not tender or deliver more or less than the exact quantity contracted for. Reuter v. Sala, 4 C. P. D. 239; Croninger v. Crocker, 62 N. Y. 151; Highland, etc. Co. v. Matthews, 76 N. Y. 145. When goods are ordered from a correspondent who is agent for buying them, the rule is less rigid. See Ireland v. Livingston, L. R. 2 Q. B. 99; L. R. 5 Q. B. 516; L. R. 5 H. L. 395. Where, as a general rule, no action lies on the part of a vendor upon a contract for the sale and delivery of a specified quantity of goods until the whole quantity is delivered, yet where the whole delivery is to be at one and the same time, and the vendee elects to receive a portion and appropriates the same to his own use, and by his acts evinces that he waives the condition precedent to a complete delivery, the vendor may recover for the portion delivered. Avery v. Willson, 81 N. Y. 341. - K.

If a day be fixed either for delivery, or payment, the seller has the whole of it; and if any one of several days, the whole of all of them. It is said he must endeavor to do the needful act at a convenient hour before midnight; early enough, for instance, for the buyer to count the money, or examine the goods, and give a receipt; but this very general rule does not seem anywhere defined. If on a certain day, at a certain place, then it must be done at a convenient time before sunset, because the presence of of the other party is necessary, and the law does not require him to be there through the twenty-four hours. (y)1

The seller is to keep the thing sold until the time for delivery, with ordinary care, and is liable for the want of that care, or of good faith; but if he does so keep it, he is not liable for its *loss, (z) unless it perish through a defect against which he has warranted. If the parties are distant from each other, the seller must follow the directions of the buyer as to the way of sending the thing sold to him, and then a loss in the transportation will fall on the buyer, (a) unless attributable to the negligence of the seller; if the seller disregards such orders, the loss in transportation falls on him, though it does not happen through his neglect. Delivery of the goods by the seller to a carrier in accordance with the specific request of the purchaser, is a delivery to the purchaser. (aa)1 If the directions be general, as "by a carrier," without naming any one, usual and proper precautions must be taken, and will protect the seller. (b) And it is a part of his duty to give such notice of the sending them by ship or otherwise as will enable the buyer to insure or take other precautions. (c)

(x) See West v. Newton, 1 Duer, 277; Armitage v. Insole, 14 Q. B. 728.

(y) See Startup v. McDonald, 6 Man. & G. 395.

(z) Where A bought of B three hundred barrels of resin "to be delivered when called for within a week." and paid for the same, and within a week 15 manufactured more than that quantity, which he had ready for delivery, but did not set apart any specific quantity for A, the resin being destroyed by fire after the end of the week, it was held that A was bound to call during the week; that B was not bound to set apart for A any specific three hundred barrels, and that A having tailed to perform his part of the contract, could not recover against B, either upon the contract to deliver or for money had and received to recover the purchase-money paid. Willard v. Perkins, 1 Bush. L. 25.i But see ante, p. * 529.

(a) Vale v. Bayle, Cowp. 294; Gassett v. Godfrey, 6 Poster (N. H.), 415; Orcutt v. Nelson, 1 Gray, 536; Jones v. Sims, 6 Port. (Ala.) 138. In Godfrey v. Furzo, 3