* Ordinarily, a sale to arrive by a specified vessel does not pass any property in any specific chattel on board the vessel at the time the bargain was made; it being merely an agreement for the sale and delivery of a portion of the cargo at a future period, namely, when the vessel shall arrive; and to fulfil this condition a double event must take place; that is, the arrival of the vessel, with the goods on board. The contract is therefore both executory and conditional. (o)

Whether the expression used in the contract be " to arrive" or "on arrival," the construction will be the same. Efforts have sometimes been made to induce the courts to give a more extended meaning to the former expression, as importing a warranty that the article shall arrive if the vessel does. It is held, however, that the word "to" does not mean that the goods "shall" arrive, but merely that they shall be sold on their arrival. (p)1 Nor will this construction be varied if there be an express condition appended to the contract, that the contract itself shall be void should the vessel be lost Whether appending a negative condition, - as, that " this contract shall not be valid unless the

(n) Per Morton, J., in Pratt v. Park-man, 24 Pick. 42.

(o) Chitty, Cont. * 444; Russell v. Nichols, 3 Wend. 112; Shields v. Pettie, 2 Sandf. 262, 4 Comst. 122; Benedict v. Field, 16 N. Y. 595; Neldon v. Smith, 7 Vroom, 148, 154; Lovatt v. Hamilton,

5 Mee. & W. 639; Stockdale v. Dunlop,

6 M. & W. 224; Johnson v. McDonald, 9 M. & W. 600. In this case the defendant by a bought and sold note agreed to sell to the plaintiffs, " 100 tons nitrate of soda, at 18s. per cwt. to arrive ex Daniel Grant, to be taken from the quay at landing weights," etc, and below the signature of the brokers was this memorandum, "should the vessel he lost, this contract to be void." The vessel arrived, hut brought no nitrate of soda, and the plaintiffs sued for breach of contract in the nondelivery of the goods. The defence was, that the contract was at an end, it being conditional on the arrival of the requisite quantity nitrate of soda by the Daniel Grant. The case was argued in the Court of Exchequer, upon this point, the plaintiffs insisting that the words "to arrive" meant that the seller warrants the arrival of the goods. He also contended that the effect of the express condition as to when the contract should be void, excluded the implied condition upon non-arrival. The court that the contract did not amount to a warranty on the part of the seller, that the nitrate of soda should arrive if the vessel arrived, but to a contract for the sale of goods, at a future period, subject to the double condition of the arrival of the vessel, with the specified cargo on board; and gave judgment for the defendant. Hawes v. Lawrence, 4 Comst. 345; Boyd v. Siffkin, 2 Camp. 326, and Hawes v. Humble, there cited

(p) Per Parke, B. . in Johnson v. McDonald, 9 M, & W. 600, vessel arrives," ■- would vary the construction by excluding any implied condition, admits of some doubt. Baron Alderson, in the case just cited, expresses the opinion that a negative instead of an affirmative condition might make a difference. (q) A sale on arrival by a certain vessel is held to mean on the arrival of the goods and not the vessel only; and this construction will always be put upon the condition, unless the language used in the contract is so plain to the contrary as not to admit of it. For the courts are unwilling to assume that the contracting parties meant to enter into a mere wager. (?•) In fact, the arrival of the goods by that particular vessel, is held to be a condition precedent to the vendor's obligation to deliver; so that if the goods which are the subject of the negotiation should arrive by some other vessel, the contract would be void. (s)l

1 As to what is "arrival," see Montgomery v. Middleton, 19 Ir. C. L. 173. - K.

(q) Per Alderson, B., same case.

(/•) Boyd v. Siffkin, 2 Camp. 325. In this case the broker's note, proved at the trial, was in the following words: "Sold to Mr. H. Siffkin, for Mr M. Boyd, about 32 tons more or less of Riga Rhine hemp, on arrival per Fannie & Almira, at £82 10s. per ton." The ship arrived without the hemp, and the action was brought against the vendor on the note. Lord Ellenborough said, in deciding that the action was unmaintainable: " I clearly think that ' on arrival' means the arrival of the hemp. The parties did not mean to enter into a wager. By ' bought and sold ' in the note, must be understood, contracted to sell and buy. The hemp was expected by the ship; had it arrived it was sold to the plaintiff. As none arrived the contract was at an end."

(s) Lovatt v. Hamilton, 5 Mee. & W. 639. This was a contract whereby the defendants sold to the plaintiff 50 tons palm oil "to arrive" per the Mansfield from the coast of Africa; in case of non-arrival, or the vessel's not having so much in, after delivery of former contracts, the sale to be void. The Mansfield arrived with an insufficient quantity of oil to fill the contract, after delivery under the former contracts; but a larger quantity than was necessary to make up the deficiency, had previously been transshipped on the coast of Africa, from the Mansfield to another vessel belonging to the defendants, and had arrived before the Mansfield. The transshipment was made by an agent of the defendants without any instructions from them so to do, and without any knowledge of the contracts

A.'s firm having purchased certain nitrate of soda, and chartered the Precursor to bring it home, subsequently sold to B. " the entire parcel of nitrate of soda expected to arrive at port of call per Precursor. . . . Should any circumstance or accident prevent the shipment of the nitrate, or should the vessel be lost, this contract to be void." Before the date of this contract, and without their knowledge, the greater part of the nitrate was destroyed by an earthquake, and the charter of the Precursor cancelled. A.'s firm then purchased other soda, sold it to other parties, and chartered the Precursor anew, which brought it home, where B. claimed it under the contract. Held, in the Queen's Bench (Smith v. Myers, L. R. 5 Q. B. 429), that the contract, though not for a specific lot of nitrate of soda, was for a specific adventure or voyage which both parties contemplated as about to take place, and did not attach to this second lot; in the Exchequer Chamber (L. R. 7 Q. B. 139, affirming the decision of the Queen's Bench), that the contract referred to a specific quantity of nitrate of soda, which was prevented from being shipped by an accident, and consequently became void. A lot of scrap iron was sold to arrive by the Christopher. It came in the St. Christopher, and it was held that unless the misnomer was of some consequence the buyer was not justified in refusing the goods Smith v. Pettee, 70 N. Y. 13. " Cargo " means a vessel's entire load, and the vendee is not bound to accept less. Borrow-man v. Drayton, 2 Ex. D. 15. See Ireland v. Livingston, L. R. 2 Q. B. 99; L. R. 5 Q. B. 516; L. R. 5 H. L. 395-410. - K.