If the sale is of a definite quantity or number, as so many hundred bags of an article, the contract is not apportionable, and the vendor cannot recover damages for a refusal to take any quantity or number. (ss)

They must also arrive at the agreed port of delivery, and in the ordinary course of trade and navigation, or the vendor will not be held. And if by any accident such an arrival is rendered impossible, it seems that the vendor is not obliged to adopt other means of transportation, by which the goods might readily be delivered to the purchaser within the stipulated time, in order to avoid his liability. (t)

*A sale of a specified quantity of goods to arrive by a particular vessel, will become an executed contract by the arrival of that vessel with the requisite quantity of goods to till the contract, whether they are consigned to the vendor, or subject to his control or not. The implied conditions of the arrival of the goods which the law has attached to contracts of sale to arrive, seem to arise so naturally from a contract of this character, that their recognition by the courts as material terms thereof meets with very general approbation. But when it is proposed to add to these conditions an implication which has no foundation in necessity, and which no merchant of ordinary prudence could suppose the law would intend in his behalf, the well recognized principle, that courts will not make a contract for the parties which they have not made themselves, will probably prevent the courts from interpolating such an implied condition. There is no legal necessity that the vendor should be able to dispose of the goods at the time he enters into the contract; for he may acquire the ability to control them, by purchase or otherwise, subsequently to his engagement, and before the goods must be delivered. (u) made for the Mansfield's cargo. The plaintiff sued for the non-delivery of the oil, and the principal question raised, was, whether the arrival of the oil at Liverpool in the Mansfield, was a condition precedent to the plaintiff's right to the delivery of it, or whether the arrival of the oil from the Mansfield by another vessel, did not entitle him to it. The Court of Exchequer were clearly of opinion that the arrival of the oil in the Mansfield was a condition precedent. See also Shields v. Pettie, 2 Sandf. 262, 4 Comst. 122.

(ss) Reimers v Ridner, 2 Rob. 11 (0 Idle v. Thornton, 3 Camp. 274. This was a sale of tallow on arrival, to arrive on or before a certain day, or the bargain to be void. The vessel was wrecked on the English coast, bat the tallow was saved, and it might have been forwarded to London by other convey-ance in season; but was not. The purchaser sued for breach of contract in non-delivery, and the court held that ' an arrival" meant at the port of London, and that the defendants were not bound to forward the tallow after the wreck, there having been no tender of indemnity by the plaintiff. The contract was void unless the commodity, in the ordinary course of trade and navigation, arrived at the port of destination by the appointed day.

(u) Hibblewhite v. M'Morine, 5 M. & W. 462. In Pothier on Obligations, vol

And if he carelessly omits to guard against the possibility that the goods may arrive consigned to another instead of himself, the fault is his own, and he alone should suffer the consequences.

In a case before the English Common Bench, where a purchaser had sued his vendor for non-delivery of a specified quantity of goods, expected to arrive by a particular vessel, the vessel having arrived with the necessary quantity on board, though not shipped for or on account of the vendor, the defendant resisted on the ground that, though the expected quantity arrived, it was not consigned to him or subject to his control. But the court were so strongly inclined to consider the contract as warranting the defendant's power of disposal over the goods, that without further prosecuting the appeal, he assented to this construction, and paid the damages as assessed upon that principle. (v)

A sale of goods at sea, to be paid for on delivery at the place of the contract, is considered as equivalent to a contract to sell and deliver on arrival, and will be governed by the same rules. (w) i. § 133, it is said: "Even things which do not belong to the debtor, but to another person, may be the object of an obligation, as he is thereby obliged to purchase or otherwise procure them in order to fulfil his engagement; and if the real owner will not part with them, the debtor cannot insist that he is discharged from his obligation under the pretext that no man can be obliged to perform an impossibility. For this excuse is only valid in case of an absolute impossibility; but where the thing is possible in itself, the obligation subsists, notwithstanding it is beyond the means of the person obliged to accomplish it; and he is answerable for the non-performance of his engagement. The thing being possible in its nature, it is sufficient to induce the creditor to rely upon the performance of the promise. The fault is imputable to the debtor, for not having duly examined whether it was in his power to accomplish what he promised or not." Paradine v. Jane, Aleyn, 27.

(v) Fischel v. Scott, 15 C. B. 69. See also Gorrissen v. Perrin, 2 C. B. (n. s.) 681, upon this point, where the same court say, in reference to the rule that the obligation of delivery is conditional upon the arrival of the ship, and of the goods being on board, as laid down in previous cases of sales to arrive: " Without desiring at all to interfere with the rule laid down in the cases referred to, we may, in passing, observe that we think it has been carried far enough, and that its effect may have been to introduce uncertainty into contracts which were not intended by the parties to be contingent on accidental circumstances, such as the transfer of a cargo from one ship to another." The case of Fischel v. Scott, above cited, having been pressed upon the court in the argument of Gorrissen v. Perrin, the court, after remarking that there was in that case no positive adjudication by the court, and showing that the facts in that case were plainly distinguishable from the one before the court, proceed to say, in affirmation of the principle foreshadowed in Fischel v. Scott: " Now, it may well be, that if a man takes upon himself to dispose of goods expected to arrive by a certain ship, as goods over which he has a power of disposal, and the goods afterwards arrive not consigned to him, he shall be precluded from saying that, in addition to the contingency of their arrival, there was implied the further contingency of their coming consigned to him. He has dealt with them as his own and cannot be allowed to import into the contract a new condition, viz., that the goods on their arrival shall prove to be his."