SALES: PERFORMANCE OF THE CONTRACT 1. Delivery of the goods.—The principal obliga tions of the seller are the delivery and the warranty of the thing sold: reciprocally, the obligations of the purchaser are to receive the goods and to pay the price. The general rule is, where there is no con trary arrangement, that upon delivery the price must be paid. The seller cannot sue for the price before offering to deliver, nor can the buyer sue for the goods before tendering the price.
By delivery is meant the transfer of the thing sold into the power and possession of the buyer. The obli gation of the seller to deliver is satisfied when he puts the buyer in actual possession of the thing, or consents to such possession being taken by him, with all hindrances thereto The English Sale of Goods Act says that delivery means voluntary trans fer of possession from one person to another. Deliv ery in this sense, then, means a transfer of possession. The word is, however, capable of various shades of meaning and application. If the goods are already in the possession of the buyer when the sale is made, no further delivery is necessary. The delivery in such a case is completed by the seller's expression of consent that the title shall pass to the buyer and that he shall remain in possession. When a sale has been made, the buyer's right is to take possession, and the seller's duty is to give possession. It may be agreed, however, that the seller shall retain possession until some condition is fulfilled, as, for example, until pay ment of the price in full or in part, or until the buyer calls for delivery; it may be that the parties will agree that the buyer shall take delivery in instalments. The goods may be sold on credit, in which case there is a transfer of title and a transfer of the right of pos session. In this case, however, supposing that before obtaining actual possession the buyer becomes insolv ent, the seller may refuse to part with possession, in order to retain his lien on his only means of obtaining payment.
When incorporeal things are sold, there must nevertheless be delivery to complete the sale. The delivery of incorporeal things is made by delivery of the titles, or by the use which the buyer makes of such things to the knowledge of the seller.'
2. Place of delivery.—Where delivery shall take place is a matter to be arranged by the parties, or to be implied, according to circumstances. If there is no contract, express or implied, the place of delivery is the seller's place of business or, in the absence thereof, his residence. If the contract is for the sale of specific articles which, when the contract is made, the parties know are in some other place, that place will be the place of delivery, unless it is agreed otherwise. It may, of course, be implied from a course of dealing be tween the parties, from general usage, or from the na ture of the goods, that delivery is to be made elsewhere than at the place of business or residence of the seller. If, under the contract, the seller is bound to send the goods to the buyer, and no time for doing so is named, he must send them within a reasonable time. If the seller is not to deliver until the purchaser has per formed some act or fulfilled some condition, the seller will not be held in default for non-delivery until the purchaser has notified him of the performance of the act upon which delivery is to be made. If A, the owner of a ship, buys supplies from B, and the ar rangement is that the supplies are to be delivered as soon as the ship is ready to receive them, A must no tify B of the name and berth of the ship, and of his readiness to take delivery, before he can complain that delivery has not been made.
Unless it is otherwise agreed, the expenses of de livery, which will include the putting of the goods into a deliverable state, must be borne by the seller, and unless it is otherwise stipulated, the expenses of re moving the thing are at the charge of the buyer. Hence if the buyer is compelled to pay the expenses of delivery thru the fault of the seller, he can re cover the amount from the latter. If the seller does not pay the expenses, it has been held that be may be prevented from alleging or proving that he is ready and willing to deliver, and the buyer may be entitled to refuse to accept the goods.