Plaintiff, another point, was adverted to, although not much relied on, viz., that there had been such an acceptance of these nuts by the Defendants, as to take the case out of the statute of frauds. But the criterion to be found in many of the cases as to acceptance or non-acceptance of goods sold is this, have the circumstances been such that the Defendant has precluded himself from taking any objection to the quality of the goods sold? Here it would be impossible to contend, that, merely in consequence of the packages being received on board the ship chartered by the Defendants, they had obliged themselves to take them if, on their arrival, they had appeared altogether unmerchantable. We think, therefore, the nuts in question cannot be considered as having been accepted by the Defendants: a question, indeed, which seems scarcely to arise upon a count, where the breach is assigned for non-acceptance of the goods sold.

The ground upon which we determine that the Plaintiff cannot recover on the fourth count will equally prevent his recovering on the count for goods bargained and sold for a reasonable price. For, in order to recover on that count, a sufficient note or memorandum of the contract of sale, at a reasonable price, is just as : necessary as on the special count. But for the reasons already given, the note produced cannot prove a sale at a reasonable price, where it is silent altogether as to price, and the parol evidence shews a different contract was made.

This ground of decision makes it unnecessary to decide the point, whether the Plaintiff can or cannot maintain the count for goods bargained and sold, after he has resold the goods to a stranger before the action brought. A question which does not go to the merits, but is a question as to the pleading only; for there can be no doubt but that the Plaintiff might, after reselling

the goods, recover the same measure of damages in a special count, framed upon the refusal to accept and pay for the goods bought.

For the reasons above given, we think the rule for entering a verdict for the Plaintiff must be discharged.

1834.

ACEBAL

V.

LEVY.

Rule discharged.

MCKENZIE v. M.LEOD.

Jan. 14.

Scotland, the

THIS 'HIS was an action of assumpsit brought by Lady By the law of M'Kenzie against Colonel M'Leod to recover damages for the loss of a house and furniture in Scotland, demised by her to him, under an agreement to use it in a tenant-like manner.

tenant is liable to his landlord, if pre

mises demised are burnt

misconduct of

servant, in the ordinary scope of his em

ployment.

The Defendant's ser

At the trial before Tindal C. J., at the London sittings down by the after Michaelmas term, it appeared that the Defendant negligence or hired the house and furniture in question of the Plaintiff the tenant's for one year, at a rent of 300l. An inventory of the furniture was drawn up in writing at the time, and signed by the parties; which document contained an engagement at the foot of it, that the defendant would deliver up all the articles specified in it to the Plaintiff vant burnt at the termination of the year. The Defendant took down a house possession of the house, and inhabited it with his family. the Defendant, There was one room in particular in which the house- in Scotland, maid was unable to keep a fire lighted, in consequence by lighting of the chimney smoking. In that part of the country straw with a chimnies are cleansed by carpenters and masons; and view to cleanse a chimney which smoked, although she had been cautioned against the danger of such a proceeding.

demised to

furze and

In an action brought against the Defendant by his landlord for this injury, Held, that it was properly left to the jury to say, whether the servant was acting within the general scope of her duty; and the jury having found for the Defendant, the Court refused to grant a new trial.

1834.

MCKENZIE

ઈ. M.LEOD.

the chimney in that room had been cleansed by them, in the presence of the housemaid, on the Defendant's taking possession of the house. However the housemaid, thinking that the smoking was occasioned by an accumulation of soot, told the cook that, having known chinnies frequently cleansed by burning furze and straw in them, she would try that mode on the following day. The cook cautioned her against such an experiment; notwithstanding which, she carried her design into execution; and the consequence was, that the house was burnt down, and a portion of the furniture destroyed.

According to the law of Scotland, as proved in evidence at the trial, if a house be burned down through any act of misconduct or negligence done by a servant of the tenant in the ordinary scope of that servant's duty, the tenant is liable to his landlord for the loss so occasioned. He is also bound, at the end of his term, to deliver up articles let with a house, whether he has specifically agreed to do so or not.

In leaving the case to the jury, Tindal C. J. told them, that if they thought the act of the servant, in consequence of which that accident had occurred, was done within the general scope of her duty, they should find their verdict for the Plaintiff; but if it was not an act within the general scope of her duty, then they were bound to find for the Defendant.

The jury having found a verdict for the Defendant,

Wilde Serjt. now moved for a rule to shew cause why the verdict should not be set aside, on the ground of a misdirection, and also of the verdict being against the weight of evidence. He contended that the question was not, whether it was the servant's duty to cleanse the chimney, but whether or not she was engaged at the time in her ordinary employment, and only adopted a wrong mode of discharging her duty to the family by

endeavour

"

endeavouring to remove the obstacle which prevented her from lighting the fire, which it was clearly a portion of her regular business to prepare and light. If the servant had thrust her broom up the chimney to remove the soot within reach, there could be no doubt she would have been acting within the scope of her duty to her employer. Instead of adopting that mode of removing the obstacle, she adopted another, which proved a dangerous one. That was an error of judgment committed by the servant in the discharge of her duty to her master, which brought the case within the language of the Scotch law, and made the Defendant liable for the loss. That argument applied to furniture as well as to the house; but, independently of the general legal liability, the undertaking to return the furniture at the end of the year, as stated at the foot of the inventory, amounted to an express contract or warranty to make good those articles at all events, whether destroyed by accident or not. Bullock v. Dommett. (a) In Lord Keith v. Keir (b) the master was held responsible, even where he had forbidden the servant to do the act which occasioned the fire.

TINDAL C. J.

Notwithstanding the argument we have heard, I think there is no ground for ordering a new trial in this case.

An objection has been taken to the direction to the jury on the subject of the Defendant's liability to make good the damage to the house; and it has been contended, that, at all events, the Plaintiff is entitled to recover as to the furniture, under the express terms of the agreement between the parties.

With regard to the Defendant's liability in respect of the house, I left it to the jury to say whether the

(b) Faculty Decisions, June 1812, vol. xiii. 679.

(a) 6 T. R. 650.

Cc 4

damage

1834.

MCKENZIE

V.

M.LEOD.

1834.

MCKENZIE

M.LEOD

damage had been occasioned by the servant acting within the scope of her employment. The jury found that it was not. It has been contended to-day, that as the object of the servant was to light a fire, she was acting within the scope of her employment. But she stated that her object was not merely to light a fire, but to clear the chimney; and she was well aware that it was not her duty to clear the chimney, because, she had seen it done before by the carpenter and masons. I am unable, therefore, to reconcile my mind to the proposition, that when she had a definite intention of clearing the chimney, she can be considered as acting within the scope of her employment, which was merely to light the fire.

... With respect to the furniture, the Defendant, by his written agreement, has engaged to deliver up at the end of the year all the articles specified in the inventory. But as, by the Scotch law, he would have been under the same degree of responsibility without any such express agreement, I do not see why we should carry the responsibility further, because it has been expressed in writing. In England, where, by custon, a tenant is bound to repair, under the common law, he is not liable to rebuild in case of fire. So the meaning of this agreement is, that any little loss or damage in the course of the term shall be made good by the Defendant; but it was not framed with a view to cast on him a total loss by fire. I advert to the case of Coggs v. Bernard (a), to shew that, by the Roman law, which is the law of Scotland, this case falls within the third class of bailments. Holt C. J. said, "As to the third class of bailments, scilicet locatio, or lending for hire, in this case the bailee is also bound to take the utmost care, and to return the goods, when the time of the hiring is expired. And here again I must refer to my old author,

(a) 2 Ld. Raymd. 999.

fol.