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of a wife applies to such cases as well as to legal marriages, and is not rebutted by proving that the plaintiff knew the real position of the parties. Watson v. Threlkeld, ante, p. 507. But when the defendant has separated from a woman with whom he has lived, not being his wife, he is not liable for necessaries supplied afterwards. Monro v. De Chemant, 4 Camp. 215. If, however, the separation be unknown to the plaintiff, and the goods have been supplied under circumstances which justify him in supposing that the authority of the defendant continued, as where the defendant had authorised like orders before, and the woman continued to live in the same house where the former orders had been given,-it is a mere question of agency for the jury, and it is immaterial that the plaintiff knew that the parties were unmarried. Ryan v. Sams, 17 Q. B. 460.

Where the wife ordered goods to be delivered to her mother, saying her husband would pay for them, which he did; and she subsequently ordered other goods in like manner, it was held that there was evidence for the jury of the wife's authority to order the latter goods. Filmer v. Lynn, 4 Nev. & M. 569. The case is, in this respect, like that of a household servant. See ante, p. 496.

As to liability of wife for necessaries supplied to her after her husband's death, see Smout v. Ilbery, 10 M. & W. 1, cited ante, p. 498.

Delivery to infant child.] The father of an infant to whom goods are supplied is only liable where an actual authority from him to his child is proved, or circumstances appear from which such an authority can be implied. Baker v. Keen, 2 Stark. 501; Rolfe v. Abbott, 6 C. & P. 286. Quære, Whether a father, deserting his infant child of tender years, be liable to a person who supplies the child with necessaries, no further proof of contract being given? Such action, at all events, cannot be maintained if the father had reasonable ground to suppose that the child was provided for. Urmston v. Newcomen, 4 Ad. & E. 899; see Bazeley v. Forder, L. R., 3 Q. B. 599, ante, p. 506. And the mere moral obligation arising from the relation of parent and child does not, per se, afford any legal inference of a promise on the part of a parent to pay a debt even for necessaries supplied to the child; although he may, under certain circumstances, by proceedings under the 43 Eliz. c. 2, s. 7, be compelled to support his children according to his ability. Mortimore v. Wright, 6 M. & W. 482; Shelton v. Springett, 11 C. B. 452. The mother of a bastard child is bound by the 4 & 5 Will. 4, c. 76, s. 71, to maintain it till sixteen years old, but this is a mere personal liability; and on the death of the mother, leaving assets, the administrator cannot be sued for necessaries supplied to the child after the death. tinger v. Temple, 4 B. & S. 491; 33 L. J., Q. B. 1. It appeared that the plaintiff, a tailor, furnished clothes to the defendant's son, a boy at school; that the boy, when sent to the school, was in want of clothes; that when he went home for the holidays he took the clothes in question with him, but was not wearing them; and that he returned to school bringing them with him. Defendant lived near the place where the school was, but it did not appear that he had given any direction, or made any provision, for supplying his son with clothes. It was held that there was some evidence to go to a jury of an implied authority from the father. Law v. Wilkin, 6 Ad. & E. 718. This decision was contrary to the opinion of Parke, J., who had nonsuited at the trial, and it was dissented from in Mortimore v. Wright, supra.

Rut

By the Poor Law Amendment Act, 1868 (31 & 32 Vict. c. 122), s. 37, "when any parent shall wilfully neglect to provide adequate food, clothing, medical aid, or lodging for his child, being in his custody, under the age of 14 years, whereby the health of such child shall have been or shall

1:

Delivery to Overseer.-Value.-Defence.

509

be likely to be seriously injured, he shall be guilty of an offence punishable
on summary conviction." This section makes the parent's moral duty of
providing for his or her children an absolute one, in those cases falling
within the enactment; R. v. Downes, 1 Q. B. D. 25; hence an express pro-
mise to pay
for such necessaries, already supplied is sufficient, and the prior
request will be implied. See note to Wennall v. Adney, 3 B. & P. 249, n. ;
Flight v. Reed, 1 H. & C. 703, 716; 32 L. J., Ex. 265, 269; and 1 Smith's
Lead. Cas., 8th ed. 158, 159.

Delivery to overseer.] Where goods were supplied for the use of the poor of the parish on orders signed by some of the overseers separately, all of whom had, on different occasions, promised to pay, this was held evidence of a joint contract, on which all the overseers were liable to be sued, including the assistant overseer who had signed. Kirby v. Banister, 5 B. & Ad. 1069; see Eaden v. Titchmarsh, 1 Ad. & E. 691. And an express promise will make them liable for medicines, &c., already supplied to a pauper on sudden illness without previous request. Watson v. Turner, B. N. P. 147; Wing v. Mill, 1 B. & A. 104. But, overseers are not, generally, legally bound by the contract of one or more of them; it is a question for the jury whether the parties sued did in fact join in it. Marsh v. Davies, 1 Exch. 668.

Value.] When the goods have been sold without any agreement as to the price, their value must be proved. If the vendor of goods is only able to prove the delivery of a package, without any evidence of the contents, it will be presumed as against him that it was filled with the cheapest commodity in which he deals. Clunnes v. Pezzey, 1 Camp. 8. If a seller agrees to sell a machine at a certain price, and puts in materials superior to those contracted for, the purchaser is neither bound to pay a higher price, nor to return the machine. Wilmot v. Smith, 3 C. & P. 455. Where goods have been sold and delivered, to be paid for by bill at a certain date, if the bill be not given, the plaintiff may recover, as part of the stipulated price, interest from the time the bill would have become due; the special agreement should, however, be stated in the claim. Farr v. Ward, 3 M. & W. 25 ; Davis v. Smyth, 8 M. & W. 399.

Defence.

By Rules, 1883, 0. xxi. r. 3, a defence in denial must deny the order or contract, the delivery, or the amount claimed. See also, O. xix. rr. 15, 17, 20, ante, pp. 283. Evidence of the various defences that may be set up to an action of this kind will be found under the general head of Defences in actions on simple contract, post.

Reduction of damages.] It was formerly a question in this action whether the defendant could give the bad quality of the article in evidence in reduction of the value claimed by the plaintiff, or whether it was only ground of cross action. Such evidence is admissible where the plaintiff claims only on a quantum meruit, and no price has been agreed upon. Basten v. Butter, 7 East, 479; Farnsworth v. Garrard, 1 Camp. 38. And, though a different practice formerly prevailed, it is now held that, in all cases of goods sold at a fixed price with a warranty, or agreed to be supplied according to a special contract, it is competent for the defendant in this form of action to show how much less the subject-matter of the action is worth by reason of the breach of warranty or contract; but any further damages sustained by the defendant beyond the difference of value must be recovered in a cross action; Mondel v. Steel, 8 M. & W. 858; Parson v. Sexton, 4 C. B. 899; or

now by way of counter-claim. And it seems that the acceptance and nonreturn of the goods by the defendant will not preclude this defence, though it may be evidence in favour of the plaintiff of a fresh contract to pay on the footing of a quantum valebant; Mondel v. Steel, ante, p. 509; Grounsell v. Lamb, 1 M. & W. 352. "The defendant has the option, if he pleases, to divide the cause of action, and use it in diminution of damages, in which case he is concluded to the extent to which he obtained, or was capable of obtaining, a reduction; or he may". "claim no reduction at all, and afterwards sue for his entire cause of action." Davis v. Hedges, L. R., 6 Q. B. 687, 692. Where plaintiff sold to the defendant cyder, warranted good, which was bad and unsaleable, whereof defendant gave the plaintiff notice, and said he would continue to try it; to which plaintiff made no reply: Held, that the defendant was not liable, though he used more than was necessary to try it, and that there was evidence that the plaintiff acquiesced in the further trial, and that defendant was not bound to send back the cask with the remaining cyder. Lucy v. Mouflet, 5 H. & N. 229; 29 L. J., Ex. 110. A defence, relying upon a warranty of title, must be specially pleaded in cases where it is a defence at all, as to which, see ante, pp. 436, 437. Where a patented machine for printing in two colours was bought by the defendant after seeing it, and it turned out to be incapable of so printing, from a defect in the principle of it, it was held that he could not resist an action for the price; for the plaintiff complied with the order of the defendant, and sent him the very article which he bargained for, and (there being no fraud) the insufficiency of the alleged invention was no answer. Ollivant v. Bayley, 5 Q. B. 288. And in an action by the patentee of an alleged invention, against an assignee or vendee of the patent, the defendant cannot set up its invalidity for want of novelty, if there be no fraud or eviction; for there is no warranty on such sale. Lawes v. Purser, 6 E. & B. 930; 26 L. J., Q. B. 25; Smith v. Neale 2 C. B., N. S. 67; 26 L. J., C. P. 143. Where plaintiff sold to defendant by sample an article (e.g. alkali) not manufactured by himself, which proved unfit for defendant's use, this is no defence if the sample was fairly taken, though much of the article did not correspond with it. Sayers v. L. & Birmingham Glass Co., 27 L. J., Ex. 294. Where the contract contains a clause, releasing the plaintiff from all responsibility in respect of the goods supplied by him after a certain time of trial, the purchaser cannot, after the time is passed, prove a latent defect in them in reduction of the price; there being no fraud alleged. Sharp v. Gt. W. Ry. Co., 9 M. & W. 7.

As to the defence of fraud on sales, see ante, p. 297, et seq., and Defences to actions on simple contracts-Fraud, post, p. 590.

Action brought before credit expired.] In calculating the time of the credit, the day of the sale must be excluded; and, therefore, where goods were sold on the 5th of October, to be paid for in two calendar months, an action could not be commenced till after the expiration of the 5th of December, and a writ issued on that day was premature. Webb v. Fairmaner, 3 M. & W. 473.

Where goods are fraudulently bought on credit, the seller cannot sue for goods sold and delivered before the credit has expired, though he may maintain trover. Ferguson v. Carrington, 9 B. & C. 59; Strutt v. Smith, 1 C. M, & R. 312. If by the contract it is agreed that a bill at a certain date shall be given, it operates as a giving of credit; and, although no bill should be given, the seller cannot sue the purchaser for goods sold and delivered before the period when the bill, if given, would have become due. Therefore where a person purchased goods, and agreed to pay for them in three months by a bill at two months, which bill he afterwards refused to give, an action for goods sold was held not to lie before the expiration of five months.

Action on Sales of Stock, Shares, and Securities.

511 Mussen v. Price, 4 East, 147; Lee v. Risdon, 2 Marsh, 495. So, when goods are sold at six months' credit, payment to be then made by a bill at two or three months at the purchaser's option, this is in effect a nine months' credit. Helps v. Winterbottom, 2 B. & Ad. 431; Price v. Nixon, 5 Taunt. 338. And where the goods are to be paid for partly in cash and partly by bills at three months, the payment of the money or delivery of bills does not constitute a condition to the credit, so as to enable the vendor to sue for goods sold before the expiration of the three months. Paul v. Dod, 2 C. B. 800. But where payment is to be "23 per cent. or three months' bill," which is explained to mean cash, less discount, at the expiration of the month succeeding the current month, or at the buyer's option, a bill of three months from the same period, and the buyer refused to accept a bill at the end of the second month the seller may sue at once for the price. Rugg v. Weir, 16 C. B., N. S. 471. Where the purchaser has such option, by paying part in cash he waives his right to pay by bill. Schneider v. Foster, 2 H. & N. 4. And if part only of the goods are supplied, and the defendant then refuses to take more, the plaintiff may immediately sue for the goods delivered. Bartholomew v. Markwick, 15 C. B., N. S. 711; 33 L. J., C. P. 145. So, where goods were sold at three months' credit, the vendor agreeing to take the vendee's bill at three months' date, at the end of the first three months, if he wished for further time, and the vendee, at the end of the three months, did not give such bill, Ld. Ellenborough held that the giving the bill was a condition to the further credit, and that the vendor might bring an action for goods sold and delivered immediately. Nickson v. Jepson, 2 Stark. 227.

Where bills, given for goods, are dishonoured, the vendor may sue for the price immediately; Hickling v. Hardey, 7 Taunt. 312; Mussen v. Price, 4 East, 151; provided the bills are in the hands of the seller; but if they are in the hands of third persons, that is a defence to the action; for the defendant may be called upon by those persons to pay the bills. Kearslake v. Morgan, 5 T. R. 513; Burden v. Halton, 4 Bing. 455. But, if the bills were delivered at the plaintiff's request to C. as a trustee for the plaintiff, and they are still in the hands of C. as such trustee, and are dishonoured, there is no defence. National Savings Bank Association v. Tranah, L. R., 2 C. P. 556. When the buyer gives a promissory note of another person without indorsing it, the vendor may, on its dishonour, sue for the price of the goods without proving presentment to the maker, the note being produced by himself. Goodwin v. Coates, 1 M. & Rob. 221. So, where the vendor takes a bill, indorsed by the defendant, on a wrong stamp, in suing for the price of the goods he need not prove due notice of dishonour of the bill. Cundy v. Marriott, 1 B. & Ad. 696. But if he makes a bill his own by laches, it operates in satisfaction of the preceding debt; so if he makes it his own by altering it in a material part. Alderson v. Langdale, 3 B. & Ad. 660.

See further as to payment by bill or note, post, pp. 621, et seq.

ACTION ON SALES OF STOCK, SHARES, AND SECURITIES.

Shares in the public funds, in commercial partnerships and companies, and like interests, are choses in action, and were not assignable at common law, so as to pass a legal interest in them except by statute, as in the case of stock, railway shares, &c. ; or by custom, as in the case of promissory notes

and bills of exchange. Crouch v. Crédit Foncier of England, L. R., 8 Q. B. 374. Such interests, however, are saleable, whether they be legal or equitable interests, and are the subject of contracts which the law will recognize and enforce. Humble v. Mitchell, 11 Ad. & E. 205; Tempest v. Kilner, 2 C. B. 300. And the legal right therein is now assignable under J. Act, 1873, s. 25, (6), ante, p. 282. Such shares are not "goods, wares, or merchandise within the Stat. of Frauds, s. 17, ante, p. 469, though they are "goods and chattels" within the meaning of a claim by the seller for the price of them, ante, p. 493.

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A sale of such securities, which pass by delivery only, is not like a sale of specific goods; it passes no property till delivery, and, in effect, it means only a contract to deliver some stock. Heseltine v. Siggers, 1 Exch. 856, per cur. The same held good in the case of all contracts for the sale and purchase of shares; for the sellers' contract was only to procure a transfer of some shares to the buyer; Rudge v. Bowman, L. R., 3 Q. B. 689; but contracts for the sale of shares in joint-stock banking companies in the United Kingdom are now for the sale of specific shares, as such contracts are regulated by 30 & 31 Vict. c. 29, s. 1, which provides that all contracts of sale and purchase, made for the sale or transfer, or purporting to be for the sale or transfer, of any shares, stock or other interest in any joint-stock banking company in the United Kingdom (except the Bank of England or of Ireland, sect. 3), issuing shares or stock, transferable by any deed or written instrument, shall be null and void to all intents and purposes whatsoever, unless such contract shall set forth and designate in writing such shares, &c., by the respective numbers by which the same are distinguished at the making of such contract, on the register or books of such banking company, or where there is no such register of shares or stock by distinguishing numbers, then, unless such contract, shall set forth the person in whose name such shares shall, at the time of making such contract, stand as the registered proprietor thereof in the books of such banking company.

See on this section N. Mitchell's Case, Ct. Sess. Cas. 4th ser. vi. 420; affirm. on another ground, 4 Ap. Ca. 624, D. P.

Where a broker on behalf of A. entered into a contract for the sale of bank shares to B. without specifying therein the particulars required by this section, and the bank having stopped payment, and the shares became worthless, B. refused to accept them, the broker was held to be liable to A. in damages, at any rate equal to the contract price of the shares. Neilson v. James, 9 Q. B. D. 546, C. A. A custom of the Stock Exchange to disregard the statute is unreasonable and illegal. S. C.

A contract for the sale of shares in a company is not rescinded by the Companies Act, 1862, s. 153, if the company has commenced to be wound up under that act, after the contract was made and before the transfer was executed. Chapman v. Shepherd, and Whitehead v. Izod, L. R., 2 C. P. 228. Nor is a contract for the sale of shares, entered into after the commencement of the winding-up, made illegal by that section; Rudge v. Bowman, supra ; nor where the winding-up is voluntary, by sect. 131. Biederman v. Stone, L. R., 2 C. P. 504.

As to time bargains and wagering contracts for sale and purchase of stock and shares, post, p. 529.

A dividend declared after the contract of sale of shares and before completion belongs to the purchaser. Black v. Homersham, 4 Ex. D. 24.

Sales on the Stock Exchange.] Shares, stock, and other securities are usually bought and sold on the London or some local Stock Exchange, and the transactions are consequently regulated by the usuage of the Exchange. Grissell v. Bristowe, L. R., 4 C. P. 49, Ex. Ch. ; Maxted v. Paine, L. R., 6

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