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Defence.-Denial of Contract.

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Defence.

By Rules, 1883, O. xix., r. 15, the defendant must plead specially all facts not previously stated on which he relies, and must raise all such grounds of defence as if not pleaded would be likely to take the plaintiff by surprise ; and r. 17 provides that the defendant shall not deny generally the allegations in the statement of claim; vide ante, p. 283. Where therefore the defence is that the contract is materially different from the one alleged in the statement of claim, or that the goods were in fact sold with a qualification or condition annexed, which the goods tendered did not satisfy, this must be specially pleaded in the defence.

The admissibility of evidence under certain common defences will be found hereafter under the general head of Defences in actions on' simple contracts.

Denial of Contract.] By Rules, 1883, O. xix., r. 20, ante, p. 283, a denial of a contract operates only as a denial of the making of the contract in fact, and not of its legality or its sufficiency in law whether with reference to the Statute of Frauds or otherwise. This requires the defendant specifically to allege in his defence that he relies on the objection to the contract arising under the Statute. Clarke v. Callow, 46 L. J., Q. B. 53, C. A.

The following are defences which must also be specially pleaded :— Where a joint order is given for several articles at several prices, the contract is entire, and the purchaser may refuse to accept one, unless the others are delivered; Champion v. Short, 1 Camp. 53; and where goods are sold as "about" a certain quantity, "more or less," the latter words are intended to provide only for a small excess, and the purchaser is not bound to accept 350 tons on a bargain for "about 300 tons, more or less;" at least, not unless it be shown that a large excess was contemplated; Cross v. Eglin, 2 B. & Ad. 106; Tamvaco v. Lucas, ante, p. 482. See also Cockerell v. Aucompte, 2 C. B., N. S. 440; 26 L. J., C. P. 194; Macdonald v. Longbottom, 1 E. & E. 977, 987; 28 L. J., Q. B. 293; 29 L. J., Q. B. 256; Beckh v. Page, 5 C. B., N. S. 708; 7 Id. 861; 28 L. J., C. P. 164, 341; Morris v. Levison, 1 C. P. D. 155. Where the defendant instructed the plaintiffs to buy for him 50) tons of sugar, "50 tons more or less of no moment if you are enabled to get a suitable vessel; " and the plaintiff's bought 400 tons, parcel by parcel according to the usage of the market, and could buy no more at the price named, it was held that the defendant was not bound to accept the 400 tons, as the usage could not affect the v. Livingston, L. R., 5 Q. B. 516, Ex. Ch. ; (reversed on another ground; Ireland express order; L. R., 5 H. L. 395). See, however, Johnston v. Kershaw, L. R., 2 Ex. 82. A contract to sell "all spars manufactured by M., say about 600 red pine spars," was held not to amount to a warranty as to the quantity of the spars; M'Connel v. Murphy, L. R., 5 P. C. 203. See also Gwillim v. Daniell, 2 C. M. & R. 61. A contract to buy "a cargo of about the following lengths, &c., in all about 60 fathoms," is not satisfied by the delivery of 60 fathoms, part of a cargo of 80 fathoms, although the 60 fathoms were severed from the remainder, for "cargo means the whole loading of the ship; Kreuger v. Blanck, L. R., 5 Ex. 179, following Sargent v. Reed, 2 Str. 1228; Borrowman v. Drayton, 2 Ex. D. 15, C. A. ; Anderson v. Morice, 1 Ap. Ca. 713, D. P.

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A sale of goods on arrival," or "to arrive" in a particular ship is a contract for the sale of goods at a future period, subject to the double condition of the arrival of the ship and the goods being on board, and is not a warranty on the part of the seller that the goods shall arrive; Boyd v. Siffkin, 2 Camp. 326; Hawes v. Humble, Id. 327, n.; Lovatt v. Hamilton, 5 M. & W. 639; Johnson v. Macdonald, 9 M. & W. 600. See also Smith v. Myers, L. R., 5 Q. B. 429; L. R., 7 Q. B. 139, Ex. Ch. But, a contract for the sale of goods now on passage and expected to arrive by," or "to be delivered on the safe arrival of," a certain ship; Gorrissen v. Perrin, 2 C. B., N. S. 681; 27 L. J., C. P. 29; Hale v. Rawson, 4 C. B., N. S. 85; 27 L. J., C. P. 189; is conditional on the arrival of the ship only. The stipulation in a contract of sale, "the cotton to be taken from the quay," was held an independent stipulation for the seller's benefit, and not a condition precedent which the purchaser had a right to insist on being performed; Neill v. Whitworth, 18 C. B., N. S. 435; 34 L. J., C. P. 155; Ex. Ch., L. R., 1 C. P. 684. See also Castle v. Playford, L. R., 7 Ex. 98, Ex. Ch., reversing S. C., L. R., 5 Ex. 165. A sale of a cargo "from the deck" means that the vendor is to pay the harbour dues. Playford v. Mercer, 22 L. T., N. S. 41, Q. B.

When goods are supplied under a single special contract with a committee of several persons, and a new member of the committee is added before the contract has been performed, he cannot be joined as co-defendant in an action for not accepting, though he assented to and recognized the contract after he had become a member; Beale v. Mouls, 10 Q. B. 976; accord. Newton v. Belcher, 12 Q. B. 921; and it matters not whether the property in the goods sold vested in successive portions during the execution of the contract. But it might be otherwise, if the circumstances were such, that a new contract could be implied, on successive deliveries, or successive acts, done by the plaintiff ; as on a standing contract to work for a firm, on certain terms, when required; see the cases supra, and Helsby v. Mears, 5 B. & C. 504. A person employed by the defendant, as broker to buy the goods, cannot himself be the vendor; Sharman v. Brandt, L. R., 6 Q. B. 720, Ex. Ch.; even by the usage of the market, if the principal was ignorant of the usage. Mollett v. Robinson, L. R., 5 C. P. 646; Ex. Ch., L. R., 7 C. P. 84; L. R., 7 H. L. 802.

Repudiation of the goods.] In the case of sales by sample, if the bulk does not correspond with it, the defendant may refuse to receive it, and may keep the article a reasonable time to examine, and then repudiate it ; per cur., Street v. Blay, 2 B. & Ad. 463; Bannerman v. White, 10 C. B., N. S. 844; 31 L. J., C. P. 28; Heilbutt v. Hickson, L. R., 7 C. P. 438, 451. In such case the buyer may reject, by notice to the seller, that he will not accept the goods, and that they are at the seller's risk; he is not bound to return or to offer to return them. Grimolby v. Wells, L. R., 10 C. P. 291.

There is a distinction made between the sale of a specific article with a warranty, and an executory contract for the supply of goods of a particular quality. In the last case the goods may be refused or returned, if not of the kind contracted for; but in the former case the remedy is either an action by the buyer on the warranty, or proof by him in reduction of damages in an action by the vendor, unless there be not merely misrepresentation or breach of warranty, but fraud; or unless there be a condition in the contract providing for the return of the goods in such case. Street v. Blay, Heilbutt v. Hickson, supra; Dawson v. Collis, 10 C. B. 523; 20 L. J., C. P. 116; Heyworth v. Hutchinson, L. R., 2 Q. B. 447. See Couston v. Chapman L. R., 2 H. L. Sc. 250, 254. But where a contract is made for the purchase of hops by sample, conditional on sulphur not having been used in their

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growth, if sulphur has been so used, the defendant may reject the hops, although they correspond with the sample; Bannerman v. White, 10 C. B., N. S. 844; 31 L. J., C. P. 28; and where goods are sold under a certain denomination, the defendant is entitled to have such goods delivered to him as are commercially known under this denomination, though he may have bought after inspection of the bulk and without warranty. Josling v. Kingsford, 13 C. B., N. S. 447; 32 L. J., C. P. 94; and see Hopkins v. Hitchcock, 14 C. B., N. S. 65; 32 L. J., C. P. 154; Jones v. Just, L. R., 3 Q. B. 197, ante, pp. 437, 438, and Shand v. Bowes, 2 Ap. Ca. 455, 480, per Ld. Blackburn. A contract for the sale of 600 tons (8200 bags) of rice to be shipped at Madras "during the months of March April," per Rajah, is not satisfied by the delivery of rice all shipped in February except 50 bags shipped on March 2nd. S. C., D. P. See also Reuter v. Sala, infra. On the sale of goods by a manufacturer of such goods who is not otherwise a dealer in them, the buyer is entitled to receive the goods as of the manufacturer's own make; Johnson v. Raylton, 7 Q. B. D. 438, C. A. ; unless a custom in the particular trade is proved that the goods of another make may be substituted. S. C.

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So, if the sale note refer to the sample, and the bulk prove not to be of the same kind as the sample, the buyer may reject the goods, even though there be a condition in the contract, that the contract should not be avoided if the bulk prove of inferior quality to the sample, but that an allowance should in that case be made. Azémar v. Casella, L. R., 2 C. P. 431; Ex. Ch., Id. 677. But, generally, where the seller produces a sample, and represents that the bulk is of equal quality, and the sale note does not refer to any sample, the defence that the goods are not equal to it is inadmissible. Meyer v. Everth, 4 Camp. 22; Pickering v. Dowson, 4 Taunt. 779; Kain v. Old, 2 B. & C. 634. The defendant may, however, show that all sales of tobacco are by sample by general usage in that trade, though there was no mention of sample in the 'contract. Syers v. Jonas, 2 Exch. 111. And the plaintiff may show in reply the custom of certain markets as to the time for objecting to the bulk, or as to returning, or allowing for, articles not answering the sample. Sanders v. Jameson, 2 Car. & K. 557; Cooke v. Riddelien, I Car. & K. 561.

The purchaser by sample has a right to inspect the whole in bulk at any proper and convenient time; and if the seller refuse to show it, he may rescind the contract. Lorymer v. Smith, 1 B. & C. 1; see Parker v. Palmer, 4 B. & A. 387.

The question whether stipulations as to time, in a contract for the sale of goods, are of the essence of the contract, so that they form conditions precedent, depends on the construction of the contract in each case; the rule of equity stated ante, p. 295, is confined to contracts for the sale of land. Reuter v. Sala, 4 C. P. D. 239, 249, per Cotton, L. J. Thus where a contract of the sale of goods, to arrive by ship, provides that the name of the vessel, marks, and particulars shall be declared "within 60 days from the date of the bill of lading," such time is of the essence of the contract, and if such declaration be not made within the time limited, the buyer is not bound to accept the goods. S. C. See further, Hoare v. Rennie, 5 H. & N. 19; 29 L. J., Ex. 73 (explained by C. A. in Mersey Steel and Iron Co. v. Naylor, 9 Q. B. D. 658, 671); Coddington v. Paleologo, L. R., 2 Ex. 193; and Shand v. Bowes, supra. But in general a partial breach by the plaintiff of his contract to deliver does not justify the defendant in subsequently refusing to accept. Jonassohn v. Young, 4 B. & S. 296; 32 L. J., Q. B. 385. See further as to the effect of a partial breach, Simpson v. Crippin, Freeth v. Burr, and other cases cited, post, p. 488.

Fraud] A wilful misrepresentation by the vendor, which induced the defendant to purchase, will warrant the defendant in refusing to complete the contract; but this must be pleaded specially. Even where the sale is "with all faults," any artifice to disguise a fault may vitiate the sale. Baglehole v. Walters, 3 Camp. 154; Schneider v. Heath, Id. 506. See Ward v. Hobbs, 3 Q. B. D. 150, C. A. ; 4 Ap. Ca. 13, D. P.

Goods bargained and sold.

Where the property has passed to the buyer, the vendor may sue for goods bargained and sold, and will be entitled to recover the whole value of the goods; Hankey v. Smith, Peake, 42, n. But there must have been an acceptance of part, or part payment, or earnest, or a note or memorandum in writing, within the Stat. of Frauds, must be shown. It must in general appear that the property passed; therefore where a machine is ordered to be made, the maker, having completed it, cannot sue for goods bargained and sold, if there be no appropriation of it, assented to by the buyer; Atkinson v. Bell, 8 B. & C. 277. So where goods in bulk are sold at so much per ton, an action for goods bargained and sold will not lie before they have been weighed; per Littledale, J., Simmons v. Swift, 5 B. & C. 865. If anything remains to be done on the part of the seller, until that is done the property is not changed, per Bayley, J., S. C. The general rule is "that where anything remains to be done to the goods for the purpose of ascertaining the price, as by weighing, measuring, or testing the goods, where the price is to depend on the quantity or quality of the goods, the performance of those things shall be a condition precedent to the transfer of the property, although the individual goods be ascertained, and they are in the state in which they ought to be accepted"-(Blackburn on Sales, 152; Jenner v. Smith, L. R., 4 C. P. 270); but this rule is not to be taken to include cases where everything that remains to be done is to be done by the buyer, with full authority from the seller, but only those cases where something remains to be done by the seller; Turley v. Bates, 2 H. & C. 200; S. C. sub nom. Furley v. Bates, 33 L. J., Ex. 43; nor, where the intention is that the property should pass at the time of the sale. Young v. Matthews, L. R., 2 C. P. 127; Martineau v. Kitching, L. R., 7 Q. B. 436, 447, per Cockburn, C.J. The plaintiff, an artist, agreed "to finish three pictures for F. (the defendant), which are now submitted to him, in my best manner for 60l. and a clock." The pictures were not then completed, but afterwards the defendant expressed approval of them and said he would send for them: held to constitute sufficient appropriation of the pictures to support the common count for goods bargained and sold, and sold and delivered. Girardot v. Fitzpatrick, 21 L. T., N. S. 470, Mellor, J. Where acceptance of goods is conditional on something to be done by the seller, if the buyer prevents the possibility of the seller's fulfilling the condition, the contract is satisfied. Mackay v. Dick, 6 Ap. Ca. 251, D. P.

The plaintiff's in London sold to the defendants a quantity of butter, expected from Sligo, of specified quality and price. The butter was to be shipped for London in October, and paid for by bill at two months from the landing. The butter was not shipped till November; but the defendants waived the objection, and accepted the invoice and bill of lading. The butter having been lost by shipwreck on the passage, it was held that the property had passed to the defendants; and that they might be sued for goods bargained and sold, or, per Park, J., for goods sold and delivered. Alexander v. Gardner, 1 N. C. 671. Where goods are destroyed, the question is not necessarily whether the property had passed, but at whose risk the

Action for not Delivering Goods.

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goods were; Castle v. Playford, L. R., 7 Ex. 98, Ex. Ch.; Martineau v. Kitching, L. R., 7 Q. B. 436, 455, 459; in such case, if the price was not ascertained prior to the destruction, it must be ascertained as nearly as possible, S. C. Id. As to when the property passes, see post, Action for conversion,-Evidence of property.

The cases of Hagedorn v. Laing, 6 Taunt. 166; Lamond v. Davall, 9 Q. B. 1030, have been cited in support of the proposition that the vendor cannot recover on this claim where, before action brought, he has re-sold the goods, and that he must sue for not accepting; see the judgment of the court in Chinery v. Viall, 5 H. & N. 288, 294; 29 L. J., Ex. 180, 184; as, however, the contracts in the cases above cited, contained a special clause allowing a re-sale they seem to be inapplicable. See Acebal v. Levy, 10 Bing. 376, 384. If, before actual delivery, the vendor re-sell specific goods sold, while the purchaser is in default, the re-sale will not authorise the purchaser to consider the contract rescinded, so as to entitle him to resist paying the price. Page v. Eduljee, L. R., 1 P. C. 127, 145.

By Rules, 1883, O. xxi. r. 3, a defence in denial, must deny the order or contract, or the amount claimed.

ACTION FOR NOT DELIVERING GOODS.

In an action against the vendor of goods for not delivering them, the plaintiff may be called upon, by proper defences, to prove the contract and the breach, the performance of all conditions precedent on his part, and the amount of damages. Much of the matter under the last preceding head applies equally to this action.

Construction of the contract. Time, &c.] Where L. & Co., brokers, sold hemp by auction (described in the invoice as bought of "L. & Co.”), and received part of the price, it was held that they had made themselves responsible as sellers, and that they could not defend themselves in an action for non-delivery, by evidence that they sold as agents only, and that the invoice had been made out in their names according to a local custom of brokers to secure the passing of the purchase money through their hands. Jones v. Littledale, 6 Ád. & E. 486. But where the invoice does not itself constitute a contract (as in fact it rarely does), but is only used to show that the defendant was the vendor of goods sold by a previous contract, the defendant may contradict it by showing that he was not the real vendor, and that his name was put in the invoice at the plaintiff's request. Holding v. Elliott, 5 H. & N. Î17; 29 L. J., Ex. 134; and per cur., an invoice is, generally, not per se a contract or any estoppel; S. C. An auctioneer may be liable for non-delivery of goods sold by him, although his principal's name appears on the conditions. Woolfe v. Horne, 2 Q. B. D. 355.

As to when stipulations as to time amount to a condition precedent, vide ante, p. 485. Where the contract was for the sale of sponge, to be paid for by ochre, at, &c., the value to be delivered on or before the 24th inst., in an action for not delivering the sponge, it was held that the delivery of the ochre on the 24th, was a condition precedent to the plaintiff's right of action. Parker v. Rawlings, 4 Bing. 280.

So where the defendant undertook to supply a steam-engine for a vessel of the plaintiff according to drawings and specifications of P. B., and the specification required its completion within two months; the court held that time was essential, and that an action lay for non-delivery within that time.

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