(//) Per Cowen, .J.. in Wright v. Hary,

A contract for a sale of goods to be delivered on their arrival, at any time before a specified date, does not render the vendor liable for the non-delivery of the goods if they have not arrived within the time limited; for the specification of the time is held to be only a limitation fixing the period beyond which neither party is bound by the contract, and not as warranting that the goods shall, at all events, be delivered by the day fixed. (c)

Under such a contract the obligations of the vendor and purchaser are mutual, the one to deliver, and the other to accept, if the condition of time be fulfilled. Accordingly it is held that where the contract is for the sale of goods to be delivered on arrival, but not to exceed a specified day, the purchaser is not bound to accept them after that day. (d) But a statement that the goods contracted for are now on the passage, and expected to arrive, naming the vessels and the quantity in each, is held to be a warranty that the goods were on the passage at the making of the contract; the term "expected to arrive," in that connection, being regarded as limited in its operation to goods that are on the passage, and not as rendering the shipment itself conditional. (e)

A contract for the sale of goods expected may, however, be construed to be conditional on the arrival of the vessel instead of the goods, if the terms are so explicit as entirely to exclude the implication that the time of arrival applies to the goods. In such a case, the condition of the arrival of the vessel is regarded as precedent in its nature, and if the vessel do not arrive the vendor will not be held under his contract. If however the vessel arrives, he will be liable, even though he does not receive the goods expected by the vessel, and though there be no default on his part. (f) In the case cited, the court observed that the vendor had by his own heedlessness undertaken to perform an impossibility, which he might have provided against in his contract, and therefore he, rather than the innocent purchaser, should suffer for his failure to perform.

17 Wend. 267, 18 id. 449; Paige, J., in Hargous v. Stone, 1 Seld. 86; Chanter v. Hopkins, 4 M. & W. 399; Hyatt v. Boyle, 5 G. & J. 110; and see Moore v. McKin-lay, 5 Cal. 471, for distinction as to warranty before and after arrival.

(c) Russell v. Nicoll, 3 Wend. 112; Rogers v. Woodruff, 23 Ohio St. 632.

(d) Alewyn v. Pryor, Ryan & Moo. 406; and see Russell v. Nicoll, 3 Wend. 112, on this point.

(e) Gorrissen v. Perrin, 2 C. B. (n. s.) 681. Cockburn, C. J., in delivering the opinion of the court, says, in reference to the bearing of the expression, " expected to arrive," upon the question of conditionality in the contract: "We are of opinion that the statement that the goods were on board at the time the contract was entered into, amounts to a warranty; and although, if circumstances had subsequently occurred whereby the arrival of the goods had been prevented, the defendant might have been protected by the words ' expected to arrive,' we think they cannot resort to them to get rid of the positive assurance that the goods were on their passage; on the faith of which, possibly, the purchaser may have entered into the contract to buy."

(f) Hale v. Rawson, 4 C. B. (n. s.) 85.

A ship-owner's agreement to take freight at a foreign port, by a certain vessel which the owner says is to arrive at that port, is not regarded as conditional upon the arrival of the vessel, unless expressly made so by the terms of the contract. And if the only exceptions made are the dangers of the seas and fire, and the non-arrival is owing to a different cause from either of these, the owner will be held liable for the damage which the. freighter may suffer by breach of contract. (g)

* A sale of goods, to be shipped by a specified vessel at a certain time, is an absolute eugagement that the goods shall be shipped as indicated; and if they are not so shipped the vendor is liable for the breach of contract, from whatever cause the failure arises. (h)

(g) Higginson v. Weld, 14 Gray, 165. This was an action of contract upon a written agreement between the plaintiffs and defendants, whereby the plaintiffs agreed to furnish 150 tons of freight for the defendants' ship at Calcutta, at a specified rate per ton, and the defendants agreed to receive such freight on the terms named, the dangers of the seas and fire excepted. The agreement further stated that it was understood that the ship was then on a voyage to Australia, thence to Calcutta, where she was to load for Boston; and a penalty of $2,200 was stipulated for the non-performance of the agreement by either party. The ship came direct from Australia to New York, without proceeding to Calcutta; and the plaintiffs sued for damages for the breach of contract. The court gave judgment for the plaintiffs, and in their opinion say: " The defendants contend that the contract was conditional, and was only to become obligatory upon them in case the ship arrived at Calcutta, and there loaded for Boston. But we cannot conceive that such was its true intent and meaning. The agreement seems to us to have been an absolute one, that the defendants would receive at Calcutta the cargo which the plaintiffs on their part undertook to furnish for the return voyage, and that the only exception was of the dangers of 'the seas and fire.' There seems to be nothing in the terms of the contract, in its obvious purpose and object, or in the relation of the parties, which should lead to the restricted interpretation for which the defendants argue. ' It is understood,' in the ordinary use of that phrase, when it is adopted in a written contract, has the same force as 'it is agreed.' The obligation of the plaintiffs was absolute." . . . "They could have no inducement, it would seem, to bind themselves to furnish the freight, without any corresponding obligation to provide a vessel to receive and transport it. There would be no mutuality in such an agreement. If the defendants intended to make their contract conditional upon the arrival of the vessel at Calcutta, it would have been easy to say bo in express terms. In the absence of such a statement, the court cannot add to it by construction. - The second clause of the stipulation of the defendants is very explicit, and free from ambiguity: that they will receive the said freight Upon the terms named, the dangers of the seas and fire excepted.' The exception directly follows the agreement to receive, and marks the only limit of the undertaking - In reference to an offer by defendant to show that the deviation in the voyage was owing to the insanity of the master, evidence upon which point was ruled out at the trial, the court say that the master's insanity was no sufficient excuse for the failure to furnish the vessel, ' as that was a misfortune of which the plaintiffs did not assume the risk."