A Treatise On the Law of Sale of Personal Property volume 2

Cover A Treatise On the Law of Sale of Personal Property volume 2
A Treatise On the Law of Sale of Personal Property volume 2
Floyd R Floyd Russell Mechem
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In point of fact the shipment of the one hundred and five bags, equivalent to about five tons, had not been made until the month of December; and on the 30th of January, 1877, the defendants wrote that they would not accept the declaration. The plaintiffs argued that, as the pepper tendered was shipped under three separate bills of 1 Freeth v. Burr. L. R. 9 C. P. 208, sujyra. 983 1141. ] LAW OF SAI-E.
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the one party is set free by the action of the other, the real mat- ter for consider
...ation is whether the acts or conduct of the one do or do not amount to an intimation of an intention to aban- don and altogether to refuse performance of the contract. I lading, and was so declared, the declaration and tender, altliough one in fact, might be treated as severable in law, and consequently that the defendants were bound to accept the twenty tons, which, upon this hy- pothesis, were properly declared and tendered. But Thesiger, L. J. , said: "I cannot assent to this argument. . , . The present contract ought and must, in my opinion at least, in- volve this consequence, namely, that where the sellers elect to ship by one vessel the whole quantity contracted to be sold, and declare their election to the buyers, still more when they follow up their election and declara- tion by tendering the whole quantity pursviant to their declaration, they cannot, after it is discovered that as to a portion of the quantity shipped it was not shipped in accordance with the terms of the contract, and that the buyers are not bound to ac- cept that portion, turn round and call upon them to accept the remain- ing portion of the quantity shipped, which though physically separable, and the subject of distinct bills of lading, yet had always been treated by the sellers as part of one entire whole, which the buyers by the dec- laration were told to treat, and by the tender were called upon to ac- cept, as one entire whole.

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