Where a person having sold goods continues in possession of the goods, or of negotiable documents of title to the goods, and such re tention of possession, is fraudulent in fact or is deemed fraudulent under any rule of law, a creditor or Creditors of the seller may treat the sale as void.
In England retention of possession by the seller is at most, evidence tending to show fraud. The doctrine in regard to fraudulent retention of possession was originally based on the statute, 13 Eliz. c. 5, which Shad refer ence only to creditors. The statutes of many states and the decisions of others; have treat ed retention as fraudulent against subsequent purchasers from the seller, as well as against creditors. On account of the variety of stat utes and decisions, reference should be had to the law of the jurisdiction that is desired.
In early times delivery was necessary to transfer property between buyer and seller, but in England delivery is no longer neces sary ; L. R. 2 C. P. 38, 51. In thiS country, although the decisions are not uniform, and although the doctrine has been much con fused with the related doctrine of retention of possession in fraud of creditors, it has gen erally been held that delivery is necessary to perfect a buyer's rights either against such purchasers or the seller's attaching creditors. In view of the many differences or matters of detail in the law on this subject in the 'several states, reference should be had to the law of the particular jurisdiction in question.
Documents of Title. See BILLS OF LADING; WAREHOUSE RECEIPTS ; NEGOTIABLE INSTRU MENTS.
Contractual Obligations of, the Parties. 1. It is the duty of the seller to deliver the goods, and of the buyer to accept and pay for them, in accordance with the terms of the Contract to sell or sale. Delivery and pay ment, unless otherwise agreed are concur rent conditions under the Sales Act. Wheth er it is for the buyer to take possession of the goods, or the seller to send them to the buyer, is a question depending in each case on the contract between them. Apart from such, the place of delivery is the seller's place of business, or if he does not have one, then his residence ; Bliss Co. v. Gas Light Co., 149
N. Y. 300, 43 N. E. 859; but in case of specific goods which, to the knowledge of the parties, at the time the bargain was made, were in some other place, then that place is the place of delivery ; Hatch v. Oil Co., 100 U. S. 124, 25 L. Ed. 554. 2. If goods are to be sent to the buyer and no time is specified, then they must be sent within a reasonable time. 3. If the goods are in the hands of a third party, seller fulfills his obligation to deliver when the third party acknowledges to the buyer that he holds the goods on his behalf ; but as against all others than the seller, the buyer shall be regarded as having received delivery from the time when such third person has notice of the sale. Where the seller is under a contract to deliver a specified quantity of goods, and tenders a smaller quantity, buyer may reject the tender ; Cleveland Rolling Mill v. Rhodes, 121 U. S. 255, 7 Sup. Ct. 882, 30 L. Ed. 920; In man, Akers & Inman v. Elk Cotton Mills, 116 Tenn. 141, 92 S. W. 760. The buyer may, however, accept the offer, though defective; Norrington v. Wright, 115 IT. S. 188, 6 Sup. Ct. 12, 29 L. Ed. 366. Where the seller deliv ers or offers to deliver a larger quantity than ordered or contracted for, it may conceivably be supposed that the seller is making his offer merely in lieu of the smaller quantity, and to make sure of the sufficiency of the offer, but not expecting to be paid for more than the order or contract required. In such a case the buyer would ordinarily have no just ground of objection ; Shrimpton & Sons v. Warmack, 72 Miss. 208, 16 South. 494. But if more than a slight difference exists, then this must be regarded as a new offer by the seller. The buyer may accept the goods or the buyer may separate from the goods sent such a quantity as was ordered or con tracted for, and reject the rest; Rommel v. Wingate, 103 Mass. 327; Martz v. Putnam, 117 Ind. 392, 20 N. E. 270. The buyer may, however, reject the offer altogether ; Barton v. 17 Wis. 37, 84 Am. Dec. 728; Nor rington v. Wright, 115 U. S. 188, 205, 6 Sup. Ct. 12, 29 L. Ed. 366. The preceding rules may be controlled by custom or agreement.