(w) Shields v. Pettie, 2 Sandf. 262, 4 Comst. 122. This was an action of assumpsit for a quantity of pig iron, sold and delivered; but the case turned upon

* A verbal contract for the sale of goods to arrive, from its non-compliance with the requirements of the statute of frauds, gives the purchaser no insurable interest therein; and if there be afterwards an arrival and delivery of part of the goods thus bought under an entire contract, such partial delivery, though it will amount to a ratification of the contract as between the parties, will not relate back in its effects, so as to confer on the purchaser an insurable interest on a part of the goods which were wrecked at a date prior to the partial delivery. (x)1 an alleged breach of contract by the vendor, and a consequent claim of the purchaser for a recoupment of damages. The plaintiff through a broker sold to the defendant a quantity of pig iron, of No. 1 quality, on board the ship Siddons, then at sea, and so understood to be, by both parties. Upon the arrival of the ship, this description of iron had advanced in price beyond the contract rate, and subsequently continued to advance. The plaintiff received by the vessel a single lot of the kind of iron sold to the defendant, but it was not of No. 1 quality, it being a mixture of that and of inferior qualities, so that the whole lot was worth one dollar per ton less than No. 1. The plaintiff commenced delivering the iron to the defendant upon the unloading of the ship, and had delivered about two-fifths of the quantity sold when the defendant objected that the quality was not No. 1, and that he could not pay for it as such. Upon this the plaintiff offered to deliver the balance of the lot in compliance with the contract, provided the defendant would receive and pay for it as No. 1. This was declined by the defendant, who was then informed by the plaintiff that if he persisted in the refusal of the iron at the price agreed upon, it would be sold to other parties. A bill was subsequently presented by the plaintiff for the quantity delivered, and payment demanded. The defendant declined to pay the bill, and insisted upon the fulfilment of the contract. The plaintiff then demanded the return of the iron delivered, and the defendant not returning it, the plaintiff brought his action claiming the market value, at the date of delivery, for the quantity delivered, which value was proved to be, for that quality, some two dollars and fifty cents per ton higher than the conract price for No. 1 iron. The defendant admitted his obligation to pay for what he had received, but claimed to recoup the damage sustained by the non-delivery of the article contracted for. The court in giving judgment, denied the right to recoup, on the ground that the contract between the parties was equivalent to an agreement to sell and deliver iron to arrive; that it was an agreement to deliver No. 1 pig iron of the kind specified, if any iron of that description arrived in the Siddons, on the voyage she was then making. No consignment of that quality of iron hav ing arrived in the ship, the court held that the contract was at an end, and therefore, that the defendant could not claim to recoup in damages, and must pay the full market value of the iron at the time of delivery, without regard to the contract. This case was affirmed upon appeal from the Superior Court to the Court of Appeals, 4 Comst. 122; and in giving the judgment of the higher court, Hurlbut, J., Bays: "In my judgment, the contract was not a sale but an agreement to sell, which was not executed, and which could Only be required to be executed on the arrival of the ship with the iron on board. The arrival of the vessel without the iron would have put an end to the contract, which was conditional, and a Bale to arrive. The vessel was at sea at the time; this was known to both parties, and neither could be certain either of her arrival, or of her bringing the iron. If a part only bad arrived, the plaintiff would not have been bound to deliver, nor the defendant to accept it. There was no warranty, express or implied, either that the iron should arrive, or that arriving, it should be of a particular quality. The iron called for by the contract did not arrive, but iron of a different quality, and I think that the contract was at an end."

(x) Stockdale v. Dunlop, 6 M. & W. 224. By Parke, B. "The contract is

1 The purchaser of a "cargo" of rice which is to be loaded on board a ship expected to arrive at a certain port, where it is to load for a voyage, agreeing to pay a sum certain " per cwt., cost and freight," has no such insurable interest in the purchase (diss. Lord O'Hagan and Lord Selborne), that should the rice put on board be lost before the loading is completed, he can recover on a policy of insurance effected on goods in the vessel. Anderson v. Morice, 1 App. Cas. 713. - K.

A statement in a contract of sale of goods to arrive by a particular vessel, that the vessel sailed on or about a day named, is considered as a representation, rather than a condition or warranty, as to the time of sailing; and if made without fraud, though the vessel in reality sailed at a day considerably later than the day named, and her arrival in port is thereby delayed, the purchaser is bound to accept and pay for the goods. (y) Indeed, it may be questionable whether even fraud in fixing the time of sailing, could be pleaded in such a case; the proper remedy for that being an action for deceit, as appears by a remark made by the Court of King's Bench, in giving judgment in a case somewhat similar to that above supposed. (z) sell goods when they arrive, but there was no memorandum in writing, and consequently no contract which was capable of being enforced, at the time either of the insurance or of the loss; and if it ultimately did become capable of being enforced, that was only by the subsequent part-delivery and acceptance, which was after the loss had occurred."