which prices all persons having accounts open with the defaulter shall close their transactions by buying of or selling to him such stocks, shares, or other securities as he may have contracted to take or deliver, the differences arising from the defaulter's transactions being paid to or claimed from the Official Assignees" (r. 171); but the assignees shall not claim differences on a defaulter's estate until they become due (r. 172). See hereon Ex pte. Grant, 13 Ch. D. 667, C. A.; Ex pte. Ward, 22 Ch. D. 132, C. A.

Time bargains for the sale of stock, or shares of which the seller is not possessed at the time but which are to be transferred at a future time, may be void under Stat. 8 & 9 Vict. c. 109, s. 18, post, p. 550, as a wager, e.g., where the real bargain is that differences only shall be paid at the time of completion. Grizewood v. Blaine, 11 C. B. 538; 21 L. J., C. P. 46; Cooper v. Ñeil, W. N. 1878, p. 128, T. S. C. A. A contract of this nature is however unusual on the Stock Exchange, and the general course of speculation is as follows: see Ex. pte. Grant, 13 Ch. D. 667, 670, et seq. A. employs B. a broker to speculate for him; B. to carry out the speculation, enters into contracts to buy or sell stock or shares for A., and in order to protect himself, B. enters into contract to sell or buy respectively (vide ante, p. 515, 516), as A. knows that B. must. A. never intends to take delivery of, or deliver the stock bought for or sold to him, as B. knows, but is content to run the risk of having to accept or deliver, in the hope B. will be able to arrange matters, so that differences only shall be payable, and B. knows A. could not pay for stock bought, or deliver that sold for him. In such a case B. having entered into real contracts on behalf of A., the transactions between them is not of a wagering nature, and B. is entitled to be indemnified by A. and to recover commission on the sales or purchases. Thacker v. Hardy, 4 Q. B. D. 685, C. A.; Knight v. Fitch, 15 C. B. 566; 24 L. J., C. P. 122. It is not material that B. has not entered into separate contracts on A.'s behalf, but has appropriated to him parts of larger amounts of stocks, which he has bought, as principal, in view of dividing them among A. and other clients. Ex pte. Rogers, 15 Ch. D. 207. See further as to B.'s rights against A. post, p. 530. The actions of ordinary occurrence are,—for not accepting stock or shares ; for not delivering or replacing them; and for not paying for them when transferred.

Action for not accepting.] The plaintiff, in order to prove his alleged tender of or readiness to transfer stock, if denied, must show his attendance at the time or latest office hour of the day fixed for transfer, and the nonattendance of the defendant; or an actual tender and refusal to accept by the defendant; or that defendant in some way dispensed with such tender or attendance of the plaintiff; Bordenave v. Gregory, 5 East, 107; and on such sales the facts proved may warrant a finding of readiness to transfer, though no transfer be actually tendered. Humble v. Langston, 7 M. & W. 517; see ante, pp. 481, 489, and Shaw v. Rowley, 16 M. & W. 810. Although the court gave no decision on the point, it was intimated in Hibblewhite v. M'Morine, 6 M. & W. 200, that such readiness was disproved, by showing that the plaintiff had no stock or shares to transfer at the time for completion. As, however, it was decided in Rudge v. Bowman, L. R., 3 Q. B. 689, that the seller does not contract that he will himself transfer the shares, for the contract is merely to procure a transfer of shares, into the defendant's name, it seems immaterial whether the plaintiff have the stock standing in his own name or not, provided he has the requisite amount of shares under his control. In a contract to deliver shares on a certain day, time is of the essence of the contract, both at law; Fletcher v. Marshall, 15 M. & W. 755, 763,; see also Maxted v. Paine, and Maxted v. Morris, ante, p. 515; and in equity; Doloret v. Rothschild, 1 Sim. & St. 590.

The plaintiff must of course be prepared to prove the title, if in issue, but

Action for not Accepting.-Delivering or Replacing.

519

the title to shares in commercial companies, in which no documentary evidence of title is provided, does not stand on the same footing as the title to land, and requires no such strict proof. On the sale of a share in a cost-book mine, proof of the existence of the mine and of the authorized entry of the plaintiff's name in the cost-book of the mine as an adventurer, will be evidence of title. The contract of sale in such adventures seems indeed to amount to nothing more than an agreement to substitute the defendant for the plaintiff in the possession of such interest as the plaintiff, in common with the other shareholders, can lawfully claim in the subject of the adventure. See Curling v. Flight, 6 Hare, 41; S. C., cor. Ld. Cottenham, C., 2 Phill 613. Where the question was whether there was a proper conveyance by deed, a written transfer by a foreigner of a foreign mine is evidence of it, though not under seal; it not appearing by any evidence that a seal was necessary abroad. Steigenberger v. Carr, 3 M. & Gr. 191. See further as to the proof of the title to shares, post, Part III., Actions by and against companies.

It was held that, in the absence of usage to the contrary, where the assent of directors was necessary for a transfer, the vendor must procure and show such assent; Wilkinson v. Lloyd, 7 Q. B. 27; and that it was the business of the purchaser to prepare and tender the written transfer to the seller for his execution. Stephens v. De Medina, 4 Q. B. 422. But where, as is commonly the case, the sale takes place on the Stock Exchange, the contract is regulated by the usage of that market; by that usage, it is the duty of the vendee to pass a name of a person to whom the vendor is to transfer the shares, and the latter is to tender certificates and transfers of them, duly executed, to the vendee, and it is thereupon the duty of the vendee to execute those transfers, and to register them at the offices of the company (ante, pp. 513, 514). By the Companies Clauses Consolidation Act, 1845, s. 12, the want of the certificate of shares in a company constituted under that act shall not prevent the holder from disposing of the shares.

Where the company is not completely constituted, a contract for the sale of shares will be satisfied by the tender of the letter of allotment made out to the seller; for that is all which could have been contemplated by the parties. Tempest v. Kilner, 3 C. B. 249. As to contracts on the Stock Exchange for shares of a new company, vide ante, p. 517.

Where bought and sold notes for the sale of mining shares named the time for payment, but were silent as to the time of delivery, oral evidence was held admissible to show that, by custom, the shares were not deliverable till the time named for payment. Field v. Lelean, 6 H. & N. 617; 30 L. J., Ex. 168.

Damages.] The measure of damages for not accepting stock sold, is the difference between the contract price and the market price on the day of the breach of contract. Boorman v. Nash, 9 B. & C. 145. The measure of damage in the case of railway or other shares in companies is the difference between the contract price, and the market value on the day of breach, or earliest day afterwards on which they could be sold. Pott v. Flather, 16 L. J., Q. B. 366.

Action for not delivering, or replacing.] The vendee, in the absence of usage or express agreement on the point, must show a tender to the defendant of a written transfer for execution by him, in cases where such formal instrument is necessary, as in railway shares; Stephens v. De Medina, supra; unless the defendant has, by his conduct, dispensed with such tender. See cases, supra. In a sale on the Stock Exchange the tender is unnecessary, as it is there the duty of the transferor to deliver a transfer to the

transferee, together with certificates of the shares, but he must show that the name of the transferee was duly passed. Vide ante, pp. 513, 514. A tender of payment by the plaintiff is not necessary. Stephens v. De Medina, ante, p. 519. It is only necessary that he should be ready and willing and able to pay. A contract to deliver shares in a company does not require the actual delivery of the scrip certificates, but it is sufficiently performed when the vendor has put the vendee in the position of legal owner of the shares. Hunt v. Gunn, 13 C. B., N. S. 226. Where, after the contract for the sale of shares, and before transfer, new shares are allotted to the vendor in right of the shares he has sold, the purchaser is entitled to these shares. Stewart v. Lupton, 9 W. N. 1874, p. 171, V.-C. M., Id., p. 178, L. JJ. See Rules of the Stock Exchange, 1883, r. 103. In a contract to deliver shares on a certain day, time is of the essence of the contract. Vide ante, P. 518.

Damages.] When the action is for non-delivery, and the plaintiff had not paid the price, the measure of damage is the difference between the contract price and the market value on or about the day of breach; for the plaintiff might have bought other stock immediately; and the same rule applies to shares in a company. Shaw v. Holland, 15 M. & W. 136; Tempest v. Kilner, 3 C. B. 253.

In an action for not replacing stock or shares, lent by the plaintiff to the defendant, a different measure is adopted. There the plaintiff may have been prevented from replacing them himself, for he may not have had, and is not bound to have, funds in his hands to do so. He is therefore entitled to damages sufficient to enable him to buy other stock or shares, at the current price at the time of the trial, if that be larger than the price at the time fixed for replacing. Shepherd v. Johnson, 2 East, 211; M'Arthur v. Seaforth, Ld., 2 Taunt. 257; Owen v. Routh, 14 C. B. 327 ; 23 L. J., C. P. 105. Any other special damage arising from the breach of contract, such as the loss of dividends, &c., must be alleged in the claim if sought to be recovered.

Action for shares, d'c., sold.] In a sale on the Stock Exchange the transferor must prove a tender of the transfer and of the certificates of the shares to the buyer, or his broker, unless such tender has been waived. Vide ante, p. 519. Where shares in a company are not legally saleable for want of registration of the company under an act of parliament, this may be pleaded as a defence. Semb., Lawton v. Hickman, 9 Q. B. 563.

In the sale of shares or securities there is generally no implied warranty; but it is implied that they are really what they purport to be, and what the buyer means to purchase. Where, for instance, scrip is known in the market as "Kentish Railway scrip," though informally issued by a railway company, the buyer cannot treat the sale as a nullity on that ground, if the jury find that it was what he contracted to buy. Lambert v. Heath, 15 M. & W. 486.

ACTION FOR WORK AND MATERIALS.

In an action for work done, the plaintiff's proofs are, 1. The contract, express or implied; 2. The performance of the work and supply of materials, if any; and 3. The value, if the remuneration is not ascertained by the contract.

The contract.] Where there was a special agreement, the terms of which had been performed, it raised a duty for which an indebitatus assumpsit or the common counts lay. B. N. P. 139; cited by Holroyd, J., in Studdy v. Sanders, 5 B. & C. 638; Robson v. Godfrey, Holt, N. P. 236. And this principle still holds good although the Rules, 1883, O. xix., rr. 4, 5, 6, 15, vide ante, pp. 282, 283, require a more specific statement of the plaintiff's claim. If the contract has not been executed, but the plaintiff has been prevented from executing it by the absolute refusal of the defendant to perform his part of it, or by an act done by the defendant which has incapacitated the plaintiff from performing it, the plaintiff may rescind the contract, and sue on a quantum meruit for past services. Planché v. Colburn, 8 Bing. 14; 2 Smith's Lead. Cas., notes to Cutter v. Powell. So, where the plaintiff was to have certain goods for his services, and the defendant sold them, or. caused them to be sold, by his own default, this action lies for the money value. Keys v. Harwood, 2 C. B. 905. Where the plaintiff agreed to print a work, but refused to print a libellous dedication to it, and the author thereupon refused to accept or pay for the rest, he was held liable to pay for printing the body of the work. Clay v. Yates, 1 H. & N. 73; 25 L. J., Ex. 237.

If there is a special agreement, and work has been done and been adopted by the defendant, though not strictly pursuant to such agreement, the plaintiff may recover upon a quantum meruit; for otherwise he would not be able to recover at all. B. N. P. 139; Burn v. Miller, 4 Taunt. 745. But the defendant may refuse to pay for the subject-matter of the plaintiff's work and labour, where it deviates from the special contract; and in such cases the plaintiff cannot recover even on a quantum meruit.. Ellis v. Hamlen, 3 Taunt. 52. Where, indeed, the plaintiff contracted to build cottages by the 10th of October, and they were not finished until the 15th, the defendant, having accepted the cottages, was held liable on a general declaration for work, labour, and materials. Lucas v. Godwin, 3 N. C. 737. See Gray v. Hill, Ry. & M. 420; and Savage v. Canning, I. R., 1 C. L. 434, C. P., cited ante, p. 469, and infra.

An implied promise to pay for work done extra, and not under the contract, can only arise in cases where the defendant is competent to contract by parol, Lamprell v. Billericay Union, 3 Exch. 283. As to the liability of a corporation for work done, see post, Part III., Actions by Companies.— Contracts by Corporations.

To fix a defendant with extras, the acceptance and adoption ought to be under circumstances which imply approval and waiver of the deviation, and make it practicable to repudiate; for a defendant cannot be expected to refuse a house built on his own land, or to repudiate materials and labour worked into the corpus of his own property. In such cases the decisions in Sinclair v. Bowles, 8 B. & C. 92, post, p. 528; and Ellis v. Hamlen, supra, seem to apply. In Lucas v. Godwin, supra, the stipulation as to time was held not to be a condition precedent; and there was also extra work done. The rule with regard to additions or alterations, in the case of a special contract, must be taken with this limitation, that the workman cannot charge for them unless his employer is expressly informed, or must necessarily from the nature of the work be aware, that they will increase the expense. Lovelock v. King, 1 M. & Rob. 60. Where the special contract is so entirely abandoned by consent that it is impossible to trace it, the workman will be permitted to charge by measure and value, as if no contract had ever been made; but if not wholly abandoned, the contract will operate as far as it can be traced, and the excess only shall be paid for according to the usual rate of charging. Pepper v. Burland, Peake, 103. Where there is a written contract it must be produced, although the plaintiff seeks only to recover

for extras not included in it; Vincent v. Cole, M. & M. 257; for the contract is the proper evidence to show what are extras; Jones v. Howell, 4 Dowl. 176; Buxton v. Cornish, 12 M. & W. 426; and if, unstamped, the judge cannot look at it to see whether it extends to the work claimed as extras. S. CC.; and see Edie v. Kingsford, 14 C. B. 759; 23 L. J., C. P. 123. In Vincent v. Cole, supra, it was held that even a distinct promise by the defendant to pay for the work would not supersede the production of the contract; but it was not held (though so stated in the marginal note) that an admission by the defendant that it was extra the contract, was insufficient to fix him without producing it. Yet, semble, as a building contract usually contains general provisions as to extra works, even this admission may not dispense with the production, unless the defendant has also admitted that it contains no such provisions. Where a man is employed to do work under a written contract, and a separate order for other work is afterwards given orally during the continuance of the first employment, the written contract need not be produced in an action for the second work. Reid v. Batte, M. & M. 413.

Where A. contracts with B. to do work for A. which involves B.'s individual skill, personal performance by B. is of the essence of the contract. Robson v. Drummond, 2 B. & Ad. 303. Where, however, B.'s individual skill is not involved, B. may assign his interest in the contract to C., and performance by C. is sufficient. British Waggon Co. v. Lea, 5 Q. B. D. 149.

An action will lie against the employer for preventing work being done under a contract, e.g. by not supplying plans, and setting out the work. Roberts v. Bury Commissioners, L. R., 5 C. P. 310, Ex. Ch.; or not giving the contractor possession of the site for the work. Lawson v. Wallasey Local Board, 11 Q. B. D. 229; 48 L. T. 507, E. S. 1883, C. A.

As to warranty with respect to plans, specifications, and quantities, vide ante, p. 436.

Conditions precedent-Architect's certificate.] In Morgan v. Birnie, 9 Bing. 672, the surveyor's certificate, required by the contract, was held a condition precedent to the plaintiff's right to sue in respect of work done under it; and a letter inclosing the bills, with an approval of the charges, is not equivalent to a certificate of approval of the work done. S. C. And it is no dispensation of the condition that it is withheld by fraud or collusion with the defendant; Milner v. Field, 5 Exch. 829; but an action is maintainable, alleging that the architect withholds the certificate in collusion with, and by the procurement of the defendant; for such an action is based on fraud. Batterbury v. Vyse, 2 H. & C. 42; 32 L. J., Ex. 177. But apart from fraud, the wrongful withholding by the surveyor of the certificate affords no ground of action. Clarke v. Watson, 18 C. B., N. S. 278; 34 L. J., C. P. 148. The principle of Morgan v. Birnie, and Milner v. Field, supra, is supported by Grafton v. E. Counties Ry. Co., 8 Exch. 699; Pashley v. Birmingham, 18 C. B. 2; Ranger v. Gt. W. Ry. Co., 5 H. L. C. 72; Goodyear v. Weymouth, Mayor, &c. of, H. & R. 67; 35 L. J., C. P. 12; and see Scott v. Liverpool Corporation, 3 De G. & J. 334; 28 L. J., Ch. 230; Russell v. Sa Da Bandeira, Vt., 13 C. B., N. S. 149; 32 L. J., C. P. 68; Roberts v. Bury Commissioners, L. R., supra; and Jones v. S. John's College, L. R., 6 Q. B. 115. Where the surveyor is to give certificates and fix the price of extras and additions, his certificate conclusively determines what are extras and additions. Richards v. May, 10 Q. B. D. 400. The surveyor or architect need not certify in writing, unless expressly required by the contract. Roberts v. Watkins, 14 C. B., Ñ. S. 592; 32 L. J., C. P. 291. Where the contract required the work to be done to the satisfaction of the other party, his approval was held not to be a condition precedent. Dallman v. King, 4