Sec 582

Where the time fixed for payment is to happen or may happen before the time fixed for performance, an action may be brought for the money (or other consideration) before the performance.3 sec 583. Although a sale of goods is not to be perfected until delivery, and the risk of loss may not attach to the purchaser until delivery, yet if the parties stipulate that the goods are at the purchaser's risk from the time of the contract, this throws the burden of loss on the purchaser in case the goods are destroyed before the period of delivery has arrived.4

Sec 584

In an ordinary cash sale of goods, delivery of the goods by the vendor to the purchaser, and payment by the purchaser to the vendor, are supposed to be concurrent, the one conditioned on the other.5 No formal tender from the one side to the other is necessary; it is enough for the vendor to be ready and willing to deliver, and the purchaser to be ready and willing to pay. If the sale is made on this basis, the contract is complete.6 It may happen, however, that the goods are delivered without payment, with the express understanding that the title remains with the vendor until the price be paid. If so, the payment is a condition precedent to the vesting of the title in the purchaser.1

But payment may precede delivery.

Purchaser may take risk of delivery.

In cash sales of goods delivery and payment are concurrent.

1 Leake, 2d ed. 682; Pordage v. Cole, 1 Wms. Saund. 319; Dicker v. Jackson, 6 C. B. 103. As to time of performance see fully infra, sec 881 et seq.

2 Supra, sec 545 et seq., infra, sec 881 et seq.

3 Supra, sec 559 et seq.; Peeters v. Opie, 2 Saund. 350; Irving v. King, 4 C. & P. 309; Pistor v. Cater, 9 M. & W. 315; Lord v. Belknap, 1 Cush. 279;.

Robb v. Montgomery, 20 Johns. 15; Lowry v. Mehaffy, 10 Watts, 387.

4 Leake, 2d ed. 658; Castle v. Play ford, L. R. 7 Ex. 98; Martineau v. Kitching, L. R. 7 Q. B. 436. See supra, sec 317.

5 Supra, sec 558; Morton v. Lamb, 7 T. R.128.

6 Leake, 2d ed. 654; Rawson v. Johnson, 1 East, 203; Waterhouse v. Skinner, 2 B. & P. 447; Boyd v. Lett, 1 C. B. 222.

Sec 585

A delivery of goods, also, by a person promising to furnish them in a state fit for the market, may be conditioned on receiving from the promisee the proper raw material. In this case the receiving the material is a condition precedent to the delivery of the goods.2 - What has been said with regard to the delivery of goods applies, mutatis mutandis, to agreements for the finishing of a particular piece of work, the materials to be furnished by the other contracting party.3

Sec 586

A lessee may bind himself to repair, providing certain things are first done by the lessor, in which case the condition must be satisfied before the lessee's liability attaches. This is the case when the lessee's engagement is made dependent upon the supervision by a surveyor to be appointed by the lessor;4 or upon the lessor finding the timber, in which case, however, readiness and willingness to furnish the timber are sufficient without actual cutting until required;5 or upon certain preliminary repairs being done by the lessor.6 But a covenant by a tenant to repair, he being privileged to take from the estate whatever timber he required for the purpose, is held to be absolute, not dependent upon there being sufficient timber on the premises.1

A delivery of goods may be conditioned on supply of material.

Covenants by lessee to repair may be made dependent upon prior acts of lessor.

1 Smith v. Foster, 18 Vt. 182; Root v. Lord, 23 Vt. 568; Ayer v. Bartlett, 9 Pick. 156; Brewster v. Baker, 20 Barb. 364; Parris v. Roberts, 12 Ired. L. 268.

2 Savage Man. Co. v. Armstrong, 19 Me. 147; Mill Dam Foundry v. Hovey, 21 Pick. 417; see Clement v. Clement, 8 N. H'. 210; Downer v. Frizzle, 10 Vt. 541; See v. Partridge, 2 Duer, 463. Where a note was payable in goods, to be delivered to the creditor on a specific day, with the right reserved to the creditor to make a reasonable selection, and the creditor made no selection, but, before the time of payment, requested the debtor not to send any goods until ordered, it was held that the debtor was not by this discharged from the contract, and that the creditor did not, by this request alone, lose his right of selection. Gilbert v. Danforth, 2 Selden, 585. In Robertson v. Amazon Tug Co., 45 L. T. N. S. 317, cited supra, sec 212, it was held that where one party undertakes to perform certain services for the other party with the means to be provided by such other party, there is an implied warranty that such means are reasonably fit for the purpose for which they have been provided.

3 Hall v. Rupley, 10 Barr, 231, cited infra, sec 605.

4 Coonibe v. Greene, 11 M. & W. 480.

5 Thomas v. Cadwallader, Willes, 496; Martyn v. Clue, 18 Q. B. 681.

6 Neale v. Ratcliffe, 15 Q. B. 916.