ÆäÀÌÁö À̹ÌÁö
PDF
ePub

that B. had bargained and sold to him certain tuns of strong beer, promises B. to pay him 47. for every tun super deliberationem inde of thirty. tuns of strong beer: an action lies upon this promise for so many tuns as he delivers, before the delivery of all the thirty tuns. (n)

Where goods are delivered upon an agreement to take a specific parcel of copper money in payment; a delivery of such copper is a good bar to an action for the value of the goods, though in fact it was counterfeit money, but unknown to the defendant. (o) But where A. agrees to purchase of B. a gun for the sum of forty-five guineas, but it is stipulated, that B. shall take a gun of A.'s, valued at thirty guineas in part payment, A. having refused to deliver his gun, and complete the contract, B. is entitled to recover the sum of forty-five guineas as the stipulated price. (p) So, upon an agreement between two traders to supply each other with goods for goods, after a balance is struck between them, such balance is to be paid in money. (q)

Where a quantity of iron was sold and delivered, under a contract that certain bills, outstanding against the plaintiffs, should be taken out of circulation. After a part of the iron had been delivered, and no bills had been taken out of circulation, the plaintiff stopped the farther delivery, and brought trover for what had been delivered. For the defendant it was contended, that trover would not lie, and that the only remedy for the plaintiff was, to bring an action for the breach of the contract by the defendant. But the Court held, that this was only conditional delivery, and the condition being broken, the plaintiff might bring trover. And Abbot Ch. J. said, "He had left it to the jury to say, whether the delivery of the iron and the redelivery of the bills, were to be contemporary, and that the jury found that fact in the affirmative." And Bayley J. added, "That if a tradesman sold goods to be paid for on delivery, and his servant by mistake delivers them without receiving the money, he may, after demand and refusal to deliver or pay, bring trover for his goods against the purchaser.” (r)

3. IN WHAT CASES PAYMENT MAY BE RESISTED WHOLLY, UPON THE GROUND OF FRAUD.]—It is a maxim of the common law, that " fraud vitiates everything;" consequently every contract founded in fraud is void. So that the vendor of goods cannot recover the value of any article which he has sold to another under any practised artifice or deceit; and he is not protected, as we have before seen (s), though one of the terms of the contract is, that the article sold shall be taken " with all faults," where he knows of any secret defects, and uses means to prevent the pur

[blocks in formation]

chaser discovering them, or makes a false representation at the time of the sale. So, where the agent of a vendor of a picture, knowing that the vendee erroneously believed it to be the property of a particular individual, for whom the agent was at that time employed in selling a number of pictures, which belief influenced the vendee's judgment, permitted him to make the purchase without removing the delusion, Lord Ellenborough, at Nisi Prius, held the sale fraudulent and void (t). But in the case of Grimaldi v. White, (u) which was an action of assumpsit for work and labour, &c. The defendant paid a certain sum of money into court, and pleaded the general issue of non assumpsit. The action was brought by the plaintiff, who was a miniature painter, to recover the value of several pictures painted by him for the defendant. Upon the trial it was proved, that the plaintiff painted miniatures of different sizes, according to which the prices varied. Specimens were hung up in his apartment, numbered; and the prices put opposite to the number. The price opposite No. 8. was fifteen guineas, which number the defendant had had. The pictures had been sent home, and the defendant, at the time, objected to the execution, as being inferior to the specimen exhibited by the plaintiff; but he had not returned them. The defence, upon which it was intended to rely, was this inferiority of execution, and of course of value; and the de. fendant's counsel were proceeding to call witnesses, who were judges, and who had seen the pictures, to prove, that at fifteen guineas they were infinitely overcharged, and to ascertain what was the real value. This, however, was objected to by the plaintiff's counsel. And Lawrence J., before whom the cause was tried, said, "In this case it is in evidence, that the charges of the plaintiff are regulated by the different sizes of the pictures, which he exhibits as specimens of his art, and for which he charges the different sums set opposite to the numbers. It is proved, that he has delivered several pictures to the defendant of the size which he ordered, and which the defendant received, and has not returned. The defendant relies on the circumstances, that they are of an execution very inferior to the specimens exhibited, and which the plaintiff undertook to paint conformable to. Where an artist exhibits specimens of his art and skill as a painter, and affixes a certain price to them, if a person is induced to order a picture from an approbation of such specimens, and the execution of it, when delivered, is inferior to the specimen exhibited, he has a right to refuse to receive it, and to return it, as not being conformable to that performance which the painter undertook to execute; but if he means to avail himself of that objection, he must return the pictures, he must rescind the contract totally. Having received it under a specific contract, he must either

(t) Hill v. Gray, 1 Stark. 434.

(u) 4 Esp. Rep. 95.

abide by it, or rescind it in toto, by returning the thing sold; but he cannot keep the article received under such a specific contract, and for a certain price, and pay for it at less price than that charged by the contract." The plaintiff accordingly had a verdict for the full charge.

3. WHEN THE STIPULATED PRICE MAY BE REDUCED TO A QUANTUM VALEBANT.In an action for the agreed price of goods sold by sample or warranty, it is competent to the vendee to prove, that the goods do not correspond with the sample or warranty, and that they are much inferior in quality and price to those contracted for, in order to shew the real value of the goods, and to prevent the vendor from receiving the stipulated price. (v) And it was once doubted by Lord Ellenborough Ch. J., in the case of Fisher v. Samuda, (w) whether the vendee of goods, which had been sold upon a warranty, after an action had been brought against him by the vendor for the stipulated and agreed price, and in which he did not either in bar of the action, or to reduce the damages, make any objection to the quality or value of the goods, but allowed the vendor to recover the full sum agreed to be paid, could maintain an action for damages for a breach of the warranty. But where goods have been sold by sample at a stipulated price, and they turn out upon examination, to be inferior to the sample, and an action of indebitatus assumpsit is brought for the amount, and in which action the buyer pays into court a sum short of the agreed price, as upon a quantum valebant, not having previously returned or offered to return the goods, Lord Ellenborough Ch. J. held, that the buyer was precluded from going into evidence of any defects in the goods, or of their real value, upon the ground that by payment of money into Court, he admits the contract and the price, and loses the ground of defence which he might have had, in not making the objection in proper time, and returning the goods, or offering to return them. (x)

So, where a bill of exchange is given in payment for the piece of goods sold, and the goods be but partially inferior to those which were ordered and warranted, the buyer cannot legally defend himself against the payment of the whole amount of the bill, but his only remedy in such case is, by action for damages upon the warranty. This was settled in the case of Morgan v. Richards, (y) which was an action against the acceptor of a bill of exchange at the suit of the drawer, the bill being payable to his own order. The defence was, that the bill had been accepted for the price of some hams bought by the defendant from the plaintiff, to be sent to the East Indies, and that the hams had turned out so very bad, that they were almost quite unmarketable; the sum

(v) Germaine v. Barton, 3 Stark. 32., and the cases there cited in note a. (w) 1 Campb. 190.

(x) Leggett v. Cooper, 2 Stark. 103.

(y) 1 Campb. 40. n. a. Et vide Dixon v. Clifton, 2 Wils. 319. Baster v. Butler, 7 East Rep. 479. and the cases there cited.

for which they actually sold was paid into Court. Lord Ellenborough held, "that though where the consideration of a bill of exchange fails entirely, this will be a sufficient defence to an action upon it by the original party; it is no defence to such action that the consideration fails partially, but that under such circumstances, the giver of the bill must take his remedy by an action against the person to whom it was given."

So, in the case of Fleming v. Simpson, (z ) which was also an action by the indorsee of a bill of exchange against the acceptor. This bill was drawn by Fleming, Goodall, and Co., and accepted by the defendant for the amount of a pipe of best London particular Madeira, which he had ordered of them. The defence set up was, that the wine was of very bad quality when delivered in London, and could not have been best London particular Madeira when shipped, and that the indorsee was a partner in the house of the shippers. But Lord Ellenborough said, " By delivery. on board the ship, the wine became the property of the defendant, and he must bear all risks, and bring his action against the captain if the wine be spoiled in its passage. To sustain this defence, it must be shewn not only that the plaintiff is a partner in the house of Fleming, Goodall, and Co., who drew the bill, but that there was a fraud on their part in the first instance, in shipping a commodity of a different and very inferior quality to that ordered. If it was a clear fraud in the shippers, and the plaintiff was a partner in their house, he could not recover on this bill; but this defence is not sufficient, if the commodity shipped be only of rather an inferior quality of that ordered.”

(z) 1 Campb. 40. n. a.

CHAPTER II.

OF A GUARANTEE OR PROMISE TO BE ANSWERABLE
FOR THE DEBT OR DEFAULT OF ANOTHER.

THE HE subject matter of this chapter may be considered under the following heads, viz.

1. OF THE GENERAL NATURE OF A GUARANTEE; AND OF THE STATUTE OF FRAUDS RELATING THERETO, AND WHAT PROMISES DO OR DO NOT FALL WITHIN IT.

2. OF THE CONSTRUCTION OF A GUARANTEE, AND ITS EXTENT AND CONTINUANCE; AND ALSO ITS DURATION WHEN GIVEN TO A PARTNERSHIP FIRM, &C.

3. OF PROMISES TO BE ANSWERABLE FOR THE DEBT OR DE

FAULT OF ANOTHER, IN CONSIDERATION OF FORBEARANCE TO SUE; OR OF DISCHARGING THE DEBTOR, OR OF GIVING UP SECURITIES, &c.

4. OF AGREEMENTS TO PAY A PRECEDENT DEBT ON THE CREDITOR'S PROVING IT DUE UPON OATH; OR OF THE DEBTOR'S FAILING TO PROVE PAYMENT.

5. of agreemENTS TO PAY A DEBT, &c. ON DELIVERING up goods, &c. seized in execution, or under a distress FOR RENT.

6. of AGREEMENTS MADE WITH SHERIFF'S OFFICERS UPON THE ARREST OF A THIRD PERSON, EITHER TO PUT IN AND JUSTIFY BAIL, OR TO PAY THE DEBT, &C. IN CONSIDERATION OF THEIR LETTING HIM OUT OF CUSTODY WITHOUT A BAIL BOND.

7. WHAT ACTS DONE BY THE CREDITOR WILL DISCHARGE THE GUARANTEE.

8. OF THE APPLICATION OF PAYMENTS MADE BY A DEBTOR TO HIS CREDITOR WHILST A GUARANTEE IS IN FORCE.

9. OF NOTICE TO A SURETY UPON DEFAULT MADE BY THE PRINCIPAL.

« ÀÌÀü°è¼Ó »