Wimshurst v. Deeley, 2 C. B. 253. But where the defendant has sold to plaintiff specific goods, to be taken and paid for at a certain time, and the plaintiff fails to pay at the end of that time, the defendant, though he retains a lien on them if in his possession, cannot re-sell them; but the plaintiff, on tendering the money at a subsequent day, will entitle himself to receive them. Martindale v. Smith, 1 Q. B. D. 389, and Woolfe v. Horne, 2 Q. B. D. 355; Page v. Eduljee, L. R., 1 P. C. 127, 145. So if there is a sale of goods to be delivered to the vendee " as required," it may be that he ought to require them within a reasonable time; but the vendor cannot rescind the contract till he has called on the vendee to require or take them, even though an unreasonable time has elapsed. Jones v. Gibbons, 8 Exch. 920; 22 L. J., Ex. 347.

Where a contract is to make and deliver goods "as soon as possible," there is at any rate an implied contract that the maker has all the necessary appliances ready for the manufacture. Hydraulic Engineering Co. v. McHaffie, 4 Q. B. D. 670, C. A.

An invitation to tender for supplying meat to a workhouse, specified that a written contract would be required to be signed upon acceptance of the tender: held that a written tender of the defendant, withdrawn by him after acceptance by the plaintiffs, was not a contract on which they could sue. Kingston-on-Hull, Guardians of, v. Petch, 10 Exch. 610; 24 L. J., Ex. 23. A contract to deliver 150 tons of girders by three deliveries of 50 each on certain days, according to drawings provided by the plaintiff, is one entire contract; and if the plaintiff does not supply drawings within a reasonable time, the defendant is under no obligation to deliver any girders. Kingdom v. Cox, 5 C. B. 522. The intention of the parties is to be looked at in the construction of all contracts; and the decision on one is seldom a guide to the construction of another. Bannerman v. White, 10 C. B., N. S. 844; 31 L. J., C. P. 28. See further the cases cited under the next heading.

Readiness to receive and to pay.] In support of the averment that the plaintiff was ready and willing to accept the goods and to pay for the same, it will not be necessary to prove a tender of the money; Rawson v. Johnson, 1 East, 203; Waterhouse v. Skinner, 2 B. & P. 447; and a demand of the goods is sufficient evidence that the plaintiff was ready and willing to pay; Wilks v. Atkinson, 1 Marsh. 412; Levy v. Herbert, Ld., 7 Taunt. 318; and this, though the demand may be by the plaintiff's servant. Squier v. Hunt, 3 Price, 68.

Where the agreement on a sale of straw was to pay "for each load of straw delivered on the premises," it was held that this imported payment for each load as delivered, and that on the purchaser refusing generally so to pay, the vendor was not bound to send any more. Withers v. Reynolds, 2 B. & Ad. 882; accord. Bloomer v. Bernstein, post, p. 489. But where goods are to be delivered by the defendant to the plaintiff in twelve equal monthly parcels, the refusal only, of the plaintiff to accept the first parcel does not exonerate the defendant from delivering the remaining parcels. Simpson v. Crippin, L. R., 8 Q. B. 14, following Jonassohn v. Young, and dissenting from Hoare v. Rennie, ante, p. 485. So, where the delivery was to be by two equal parcels, the defendant was held not to be released from the delivery of the second parcel, by reason that the plaintiff had refused to pay for the first in accordance with the contract. Freeth v. Burr, L. R., 9 C. P. 208. And where the delivery is to be by monthly quantities, the plaintiff can compel the defendant in a subsequent month to make up for short deliveries in the previous months, although the defendant had forborne to deliver the full quantities at the plaintiff's request. Tyers v. Rosedale, &c. Iron Co., L. R., 10 Ex. 195, Ex. Ch. The result of the cases seems to be

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that "the true question is whether the acts and conduct of the party evince an intention no longer to be bound by the contract." Freeth v. Burr, L. R., 9 C. P. 213, per Coleridge, C.J.; accord. Mersey Steel & Iron Co. v. Naylor, 9 Q. B. D. 648, C. A. See the observations of the C. A. in this case on Honck v. Muller, 7 Q. B. D. 92, C. A. Thus where the vendee becomes insolvent, and takes no steps to obtain delivery in performance of the contract, he practically gives notice to his creditors that he does not intend to perform his contract, and this, when assented to by the vendor, amounts to a rescission of the contract. Ex pte. Chalmers, L. R., 8 Ch. 289, followed in Morgan v. Bain, L. R., 10 C. P. 15. See also Bloomer v. Bernstein, L. R., 9 Q. B. 588, as to the questions to be left to the jury in such a case. But the insolvency must be an inability to pay, avowed either in act or word, and a consequent intention of the vendee not to pay his debts when due. Ex pte. Carnforth Hematite Iron Co. 4 Ch. D. 108. It is sufficiently avowed if the vendee file a petition for liquidation, and within a reasonable time, tender of the price in cash, is not made by the trustee appointed thereunder; Ex pte. Stapleton, 10 Ch. D. 586, C. A.; or, it seems, by his sub-vendee. S. C.

Non-delivery.] If the vendor is to deliver, but the contract does not (expressly or impliedly) provide where the delivery is to take place, as on board ship, he is not bound to deliver, or offer to deliver, till the place of delivery is notified by the vendee. Armitage v. Insole, 14 Q. B. 728. Where the contract does not provide for delivery by either party, the buyer is bound to fetch the goods; 2 Kent Com. 505; Pothier, Cont. de Vente, par. 52; and if a place of delivery is fixed by the contract, the vendee is not bound to accept elsewhere, nor the vendor to deliver eleswhere; Id. par. 51. Hops, when sold by the defendant to the plaintiff, were lying at a warehouse to the use of the defendant. The plaintiff paid for them and took away part from the warehouse with the consent of the warehouseman, but before he had carried away the rest, they were seized by a creditor of the defendant's vendor under a claim of right: held, that the plaintiff' sue the defendant for non-delivery, although the letter had given no delivery order to the plaintiff. Wood v. Tassell, 6 Q. B. 234. In this case the warehouseman had, in fact, become the agent of the plaintiff, and it was not shown that the seizure was rightful. If it had appeared that the warehouseman had, from the first, refused to deliver the order of the vendor, an action for non-delivery would have lain against the vendor. Semb. Thöl v. Hinton, 4 W. R. 26, M. T. 1855, Ex. If goods sold are in a carrier's hands, subject to lien, an action for non-delivery lies against the vendor, if the carrier refuses to deliver, on readiness by the buyer to pay charges thereon. Buddle v. Green, 27 L. J., Ex. 33. If, before the time of delivery, the vendor announce to the vendee his intention not to deliver, the latter may sue at once. Roper v. Johnson, L. R., 8 C. P. 167, following Frost v. Knight, L. R., 7 Ex. 111.

on

Damages.] Where goods are to be delivered at a future day, the damages for breach of contract are the difference between the contract price and the market price of the goods at the day when they ought to have been delivered. Gainsford v. Carroll, 2 B. & C. 624; Valpy v. Oakeley, post, p. 490; Peterson v. Ayre, 13 C. B. 353; Josling v. Irvine, 6 H. & N. 512; 30 L. J., Ex. 78; Williams v. Reynolds, 6 B. & S. 495, post, p. 491, and see Wilson v. Lancashire, &c. Ry. Co., 9 C. B., N. S. 632; 30 L. J., C. P. 232. So, with respect to each period of delivery when more than one; Brown v. Muller, L. R., 7 Ex. 319; even though the action is commenced before the periods of delivery have elapsed; for the repudiation of the contract before the

time for its fulfilment goes to the question of breach, but does not affect the damages. S. C.; Roper v. Johnson, ante, p. 489. But where delivery was to be made between January and May, and on default the defendants to pay a fine per ton per week, it was held that the fine was to be computed from May until delivery actually was complete. Bergheim v. Blaenavon Iron, &c. Co., L. R., 10 Q. B. 319.

If no difference is proved between the contract and market prices the damages must be nominal. Valpy v. Oukeley, 16 Q. B. 941; 20 L. J., Q. B. 380. When the price has been paid, the measure of damages is the market price, without deducting the contract price; and this will be the rule where the payment is by bills which are still outstanding. But if the bills are dishonoured, even though after breach of the contract to deliver, the parties are placed in the same position as if the bills had never been given or the contract had been to pay in ready money; and the vendee can only recover the difference between the contract price and the market price of the goods. S. C.

If the buyer, at the request of the seller forbear to enforce the contract at the time the goods ought to be delivered, but afterwards do so, the measure of damages is the difference between the contract price and the market price when the buyer so enforces the contract, e. g., by buying the goods in the market. Ogle v. Vane, El., L. R., 2 Q. B. 275'; Ex. Ch., L. R., 3 Q. B. 272. See Tyers v. Rosedale, &c. Iron Co., L. R., 8 Ex. 305 ; Ex. Ch., L. R., 10 Ex. 195, where the postponement of delivery was at the request of the buyer. Where there has been a written contract, the vendee cannot enhance the damages by oral proof that the contract price was higher than the market price, by reason of the shortness of the time fixed by the contract for delivery. Brady v. Oastler, 3 H. & C. 112; 33 L. J., Ex. 300.

Where the goods delivered were of inferior quality to that contracted for, and plaintiff (vendee) had paid for them in advance, but objected to them when delivered and re-sold them at a reduced price, and the re-sale was within a reasonable time, the measure of damages, is the difference between the market price of goods of the quality contracted for at the date of delivery, and the re-sale price. Loder v. Kekulé, 3 C. B., N. S. 128 27 L. J., C. P. 27.

If a ship is ordered to be made, or is left for repair and not delivered at the stipulated time, the measure of damages is prima facie the sum which would have been earned by the ship in the ordinary course of trade since the period when it should have been delivered. Fletcher v. Tayleur, 17 C. B. 21; 25 L. J., C. P. 65; Ex pte. Cambrian S. Packet Co., L. R., 4 Ch. 112, 117. See Cory v. Thames Ironworks Co., L. R., 3 Q. B. 181. So, where sets of waggon wheels and axles were to be made by the defendant according to patterns furnished by the plaintiffs, the jury may give damages for the loss of the use of the waggons. Elbinger Actien-Gesellschafft v. Armstrong, L. R., 9 Q. B. 473. A. contracts to repair an engine for B. within a certain time; C. agrees to execute part of the work for A. within a less time, but without any knowledge of the contract between A. and B. C. fails to do his part within the time stipulated by him; A. cannot recover from C., as special damage, compensation made by A. to B. for the delay in the completion of A's contract occasioned by C.'s breach of contract; Portman v. Middleton, 4 C. B., N. S. 322; 27 L. J., C. P. 231; for this consequence could not have been contemplated by C. See also Prior v. Wilkinson, 8 W. R. 260, H. T. 1860, Q. B.; and Hales v. L. & N. W. Ry. Co., 4 B. & S. 66; 32 L. J., Q. B. 292; and other cases cited post, p. 577, et seq., Actions against carriers-Damages. Defendant contracted to deliver a steam threshing-engine on a day fixed, at which time he knew the plaintiff would want to thresh his wheat. He failed to deliver it till six weeks after the day. He was held liable for

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damage and expense occasioned by long exposure of the corn, kiln-drying, stacking, &c.; but not to the loss caused by a fall in the market price of corn. Smeed v. Foord, 1 E. & E. 602; 28 L. J., Q. B. 178. So, where the defendant contracted with the plaintiffs to make for them a part of a machine which the plaintiffs, to the defendant's knowledge, had contracted to make for J. by a given time, and the defendant did not deliver according to his contract, so that the plaintiffs could not deliver the machine to J. by the given time, J. therefore rejected it: it was held that the plaintiffs might recover damages for the loss of profit on their contract with J., and for the expenditure uselessly incurred by them in making the rest of the machine. Hydraulic Engineering Co. v. McHatfie, 4 Q. B. D. 670, C. A. The above cases pro

ceeded on the principle enunciated in Hadley v. Baxendale, 9 Exch. 341; 23 L. J., Ex. 179; that the damages recoverable are such as in the ordinary course of things arise from the breach itself, or such as may be reasonably supposed to have been in the contemplation of the parties, when making the contract, as the probable result of the breach. So, where there is no market for the goods, the damages must be measured by this rule. Borries v. Hutchinson, 18 C. B., N. S. 445; 34 L. J., C. P. 169; Hinde v. Liddell, L. R., 10 Q. B., 265; and see Hughes v. Græme, 33 L. J., Q. B. 335, 340; Elbinger Actien-Gesellschafft v. Armstrong, ante, p. 490. On a contract to sell cotton of a certain quality at a certain price, the buyer cannot recover for his loss of profit which he would have made by carrying out a re-sale, at a higher price, made in the interval between the contract and the time for delivery. Williams v. Reynolds, 6 B. & S. 495; 34 L. J., Q. B. 221; Borries v. Hutchinson, supra. But evidence of such re-sale may be admissible to show that there has been a rise in the market value. See Engel v. Fitch, L. R., 4 Q. B. 659, 667, Ex. Ch. The vendor cannot diminish the damages by giving previous notice to the purchaser of his intention not to deliver the goods. Leigh v. Paterson, 8 Taunt. 540; and see Phillpotts v. Evans, 5 M. & W. 475, ante, p. 482, and Brown v. Muller, L. R., 7 Ex. 319. On a contract for the sale of food or drugs, the plaintiff may, under the Sale of Food and Drugs Act, 1875 (38 & 39 Vict. c. 63), s. 28, cited ante, p. 442, in some cases recover special damages if goods of an inferior quality are delivered to him.

Where a commission agent A. purchases and ships goods for his principal B. inferior in quality to those ordered by B., B. can recover the actual loss only, which he has sustained, and not the difference between the price which the goods fetch, and what they would have fetched, if of the proper quality. Cassaboglou v. Gibbs, 9 Q. B. D. 220; 11 Q. B. D. 797, C. A.

Special finding of the jury at Nisi Prius.] By the Mercantile Law Amendment Act, 1856 (19 & 20 Vict. c. 97), s. 2, in actions in the superior courts, or any court of record, for breach of contract to deliver specific goods for a money price, on application of the plaintiff and by leave of the judge, the jury shall, if they find the plaintiff entitled to recover, find what are the goods which remain undelivered; the sum which the plaintiff was liable to pay on delivery; the damages sustained if the goods should be delivered under execution, and the damages if not so delivered; and thereupon, if judgment be given for the plaintiff, the court, or any judge thereof, at their or his discretion and on application of the plaintiff, may order execution to issue for the delivery of the goods on payment of the sum found payable by the plaintiff, without giving the defendant the option of retaining the goods on payment of the damages assessed. It is believed that advantage has never yet been taken of this section. A writ of delivery is now issued and enforced under Rules, 1883, O. xlviii. r. 1.

Defence.

The defence arising under the Stat. of Frauds, must if relied on be specially pleaded. Rules, 1883, O. xix., r. 20, ante, p. 283.

Where goods sold under a contract required by the Stat. of Frauds to be in writing were to be delivered at a certain place or time, and the parties afterwards orally varied their stipulation, as to delivery, it was held that this did not amount to a rescission of the original contract. Moore v. Campbell, 10 Exch. 323; 23 L. J., Ex. 310; Noble v. Ward, L. R., 2 Ex. 135, Ex. Ch.; vide ante, p. 28; but if the goods had been actually accepted, or even a delivery order accepted under the agreement as so varied, that would have been a defence under a plea of accord; semb., Moore v. Campbell, supra. Though a contract made in error may be avoided, yet the vendor cannot treat as void, at law or in equity, a sale to the vendee of an article misrepresented by the vendor in error, unless the vendee consents. Semble, Scott v. Littledale, 8 E. & B. 815; 27 L. J., Q. B. 201.

Where the defendant agreed to sell the plaintiff 200 tons of potatoes, part of a crop grown on certain land, which amount it would produce in an average year, but owing to a blight the land produced 80 tons only, it was held that the defendant was excused from the delivery of the remaining 120 tons by the perishing of the thing sold, without the defendant's default. Howell v. Coupland, L. R., 9 Q. B. 462 ; 1 Q. B. D. 258, C. A.

As to defence arising from the want of readiness in the plaintiff to accept, vide ante, pp. 488, 489. As to rescission of a contract before breach, see post, Defences in actions on simple contracts— Rescission. As to defence on the ground of the insolvency of the vendee, ride post, Action for conversion of goods-Evidence of right of possession.

ACTION FOR GOODS SOLD AND DELIVERED.

The plaintiff in an action for goods sold and delivered must be in a condition to prove, if denied, 1. The contract of sale; 2. The delivery of goods according to contract; 3. The value or price.

The contract of sale.] As to contracts requiring a writing, the authorities will be found under the previous head of Action for not accepting goods, pp. 466, et seq., and the general rule relating to sales is there stated. But the necessity of a writing under the Stat. of Frauds more rarely comes in question in this action, because the delivery, on which the action is founded, generally, though not necessarily, amounts also to a receipt and acceptance by the defendant. In general, proof of the delivery of the goods to, and receipt of them by, the defendant is prima facie evidence of the contract, and supersedes the proof of an order. Bennett v. Henderson, 2 Stark. 550. But this may, of course, be rebutted; as by proof that the defendant was in the habit of selling such goods for the plaintiff on commission. Miller v. Newman, 4 M. & Gr. 646. Defendant sent an order to A., who had meanwhile sold his business to B.; B. supplied goods to defendant, who consumed them, and was sued for them by B.; it was held, that the defendant, having a previous set-off against A., and having never contracted with B., nor had