3 Leeds v. Wright, 3 B. & P. 320; Dixon v. Baldwen, 5 East, 175; Bradford v. Marbury, 12 Ala. 520. Proof that, before the lumber which had been contracted for was delivered, the seller was summoned as the trustee of the purchaser, was charged for the lumber, and the same was thereupon delivered to the officer, and applied upon the purchaser's debt, must be regarded as equivalent to proof of the delivery of the lumber to the purchaser himself. Ockington v. Richey, 41 N. . 275 (1860).
4 Callender v. Colegrove, 17 Conn. 1.
§ 1027. If goods be sent by water, the vendor must use proper diligence in informing the vendee of the consignment; and if it be customary among merchants for the seller to effect insurance upon such shipments, he must insure.6 So, also, the same rule applies, if it have been the usage between the parties to insure in former dealings, or if the vendor receive specific instructions to that effect; and the proof of such custom or agreement is upon the vendee.6 As soon as the goods are in the due and regular course of conveyance, they are at the risk of the vendee, and not before.7
§ 1028. Secondly, As to the place where goods must be delivered.1 In regard to delivery of portable goods, the common law makes a distinction between a contract of sale and a contract to pay an existing debt in specific articles. In a contract of sale, if no place of delivery be agreed upon, the goods must be delivered at the place where they are at the time of the sale, unless some other place be designated by usage.2 So if no place is designated, in a contract of sale, for the delivery of an article to be manufactured, it is to be delivered at the shop of the vendor, and if he is ready at the time appointed to make delivery there, he has fulfilled his part of the agreement.3 But if a particular place be appointed by the contract, the goods sold must be proved to have been delivered at such place, in order to sustain an action for the price.4 But where goods are to be delivered in payment of a previous debt, and no place is specially appointed, or is to be inferred from the usage of trade or the nature of the thing, it is the duty of the debtor, first, to request the creditor to appoint a place,5 whereupon the creditor must appoint a place which is reasonable; if he do not, the debtor himself may name a reasonable place, giving notice to his creditor; and a tender of the property at that place will be good.6 So, also, where the time of delivery is fixed, although the place is not, the same rule applies.1
1 Dutton v. Solomonson, 3 B. & P. 584; Vale v. Bayle, Cowp. 294; Anderson v. Hodgson, 5 Price, 630; King v. Meredith, 2 Camp. 639; Swain v. Shepherd, 1 Mood. & Rob. 223; Bradford v. Marbury, 12 Ala. 520.
2 Davis v. James, 5 Burr. 2680.
3 Stephenson v. Hart, 1 M. & P. 357; 4 Bing. 476; Duff v. Budd, 3 Brod. & B. 177; 6 Moore, 469.
4 Swain v. Shepherd, 1 Mood. & Rob. 223.
5 2 Kent, Comm. lect. 39, p. 500; Cothay v. Tute, 3 Camp. 129.
6 Cothay v. Tute, 3 Camp. 129; Law Mag. vol. iv. p. 359; Story on Agency, § 190; Smith v. Lascelles, 2 T. R. 189.
7 Ullock v. Reddelein, Dan. & Lloyd, 6.
1 A railroad company cannot be compelled to deliver goods beyond its line. People v. Chicago & Alton R. Co., 55 I11. 95 (1870).
2 2 Kent, Comm. lect. 39, p. 505; Lobdell v. Hopkins, 5 Cow. 516; Goodwin v. Holbrook, 4 Wend. 380; Barr v. Myers, 3 Watts & Serg. 295.
3 Lucas v. Nichols, 5 Gray, 309 (1855).
4 Savage Manuf. Co. v. Armstrong, 19 Me. 147; Howard v. Miner, 20 Me. 325. See Armitage v. Insole, 14 Q. B. 728; West v. Newton, 1 Duer, 277. A survey of logs landed on a stream preparatory to driving, by a person mutually agreed upon by the parties to the sale, and the putting thereon by the vendor the vendee's mark as they are thus landed, constitute a sufficient delivery, even as against subsequent purchasers, although, by the terms of the contract of sale, the vendor is bound to deliver the logs at a specified place, many miles below the landing. Bethel Steam Mill Co. v. Brown, 57 Me. 9 (1869).
5 Bean v. Simpson, 16 Me. 49.
6 2 Kent, Comm. lect. 39, p. 507; Co. Lit. 2106; Aldrich v. Albee, 1 Me. 120; Bixby v. Whitney, 5 Ib. 192; Howard v. Miner, 20 Me. 325; Mingus v. Pritchet, 3 Dev. 78; Currier v. Currier, 2 N. H. 75; Minor v. Michie, Walk. (Miss.) 24; Chipman on Cont. 29, 30; Scott v. Crane, 1 Conn. 255; Higgins v. Emmons, 5 Conn. 76; Mason v. Briggs, 16 Mass.
§ 1029. If a debtor actually make a tender of specific articles, at the time and place appointed, either in person or by his agent, and if the creditor either refuse to accept them or be not present, the debtor may mark the goods, and set them apart; and this is a sufficient delivery to discharge the debt, and to pass the right of property to the creditor.2 So if a manufacturer who has agreed to sell for a fixed sum all goods of a certain kind made during a certain time, sets apart such goods as soon as they are made, and never refuses the purchaser permission to take them away, this is a sufficient delivery to enable the seller to maintain an action for the price.3 And if the debtor retain possession of the goods, he holds them as bailee of the creditor.4
§ 1030. Thirdly, As to the time of delivery.5 Ordinarily, a vendee is bound to receive and pay for goods which are offered to him within a reasonable time. If credit be given to the buyer, the seller is nevertheless bound to make a delivery immediately, or within reasonable time after request, and cannot postpone it until the time of credit has elapsed, unless with the express or implied consent of the buyer.6 If no credit be given, the vendor is not bound to deliver until payment, or tender of payment, is made; and if he offer to deliver, and payment or tender be not made within reasonable time afterwards, he may sue therefor, or he may treat the contract as dissolved.1 But if credit be given, he cannot rescind the contract, of his own motion, merely because of the default of the vendee in not complying with the exact terms of the contract.2 If he sell the goods, which he may do after notice under certain circumstances, he can only recover the difference between the price they bring and the price before due.3 If a special time for delivery be appointed in the original contract, neither party can insist upon delivery before such time. And if the vendee, before such time occur, give notice that he will not receive the goods, the vendor is said nevertheless to be bound to wait until the appointed time, and see whether the vendee will not then pay for them.4 When a particular day is appointed for the .delivery of goods or for the payment of the price, the party has the whole of the day, and if one of several days, the whole of those days, for the performance of his part of the contract; and, until the whole day or the whole of the last day has expired, no action will lie against him for the breach of such contract. In such a case, the party bound must find the other, at his peril, and within the time limited, if the other be within the four seas, and he must do all that, without the concurrence of the other, he can do to make the payment or perform the act; and at a convenient time before midnight, varying according to the quantum of the payment, or nature of the act to be done. Therefore, if he is to pay a sum of money, he must tender it a sufficient time before midnight for the party receiving to receive and count, or, if to deliver goods, he must tender them sufficiently early for their examination and receipt. This done, he has, so far as he could, paid or delivered within the time, and it is by the fault of the other only that the payment or delivery is not complete. But, where the thing to be done is to be performed at a certain place, on, or on or before, a certain day, to another party to a contract, there the tender must be to the other party at that place, and, as the attendance of the other is necessary at that place to complete the act, there the law, though it requires that other to be present, is not so unreasonable as to require him to be present for the whole day where the thing is to be done on one day, or for the whole series of days where it is to be done on or before a day certain, and therefore fixes a particular part of the day for his presence, and it is enough if he is at the place at such a convenient time before sunset on the last day that the act may be completed by daylight; and, if the party bound tender to the party there if present, or, if absent, be ready at the place to perform the act within a convenient time before sunset for its completion, it is sufficient.1