52. In any action for breach of contract to deliver specific or ascertained goods the Court may, if it thinks fit, on the application of the plaintiff, by its judgment or decree direct that the contract shall be performed specifically, without giving the defendant the option of retaining the goods on payment of damages. The judgment or decree may be unconditional, or upon such terms and conditions as to damages, payment of the price, and otherwise, as to the Court may seem just, and the application by the plaintiff may be made at any time before judgment or decree (m). CH. XIII. s. 2. Text of Act. Specific per formance. The provisions of this section shall be deemed to be supple- "Specific mentary to, and not in derogation of, the right of specific implement in Scotland. implement in Scotland. 53.-(1) Where there is a breach of warranty by the seller, or where the buyer elects (n), or is compelled (o), to treat any breach of a condition on the part of the seller as a breach of warranty (p), the buyer is not by reason only of such breach of warranty entitled to reject the goods; but he may (a) set up against the seller the breach of warranty in diminution or extinction of the price; or (b) maintain an action against the seller for damages for the breach of warranty. (2) The measure of damages for breach of warranty is the estimated loss directly and naturally resulting, in the ordinary course of events, from the breach of warranty (q). (3) In the case of breach of warranty of quality such loss is primâ facie the difference between the value of the goods at the time of delivery to the buyer and the value they would have had if they had answered to the warranty. (4) The fact that the buyer has set up the breach of warranty in diminution or extinction of the price does not prevent him from maintaining an action for the same breach of warranty if he has suffered further damage. Remedy for warranty. breach of (5) Nothing in this section shall prejudice or affect the buyer's Rejection in right of rejection in Scotland as declared by this Act. 54. Nothing in this Act shall affect the right of the buyer or the seller to recover interest or special damages in any case where (m) Sect. 82 re-enacts and applies to Scotland sect. 2 of the Mercantile Law Amendment Act, 1856, 19 & 20 Vict. c. 97, repealed by sect. 60 of this Act. (n) See sect. 11 (1) (a). (0) Id. (c). (p) The term "sound" in a warranty of an animal implies absence of disease or seeds of disease actually diminishing or tending to diminish its natural useful ness in its proper and ordinary work. (4) Compare sect. 50 (2) and sect. 51 (2). 92. Scotland. Interest and special damages. " Text of Sale CH. XIII. S. 2. by law interest (r) or special damages (8) may be recoverable, or to recover money paid where the consideration for the payment of it has failed. of Goods Act. Exclusion of and condi Supplementary. 55. Where any right, duty, or liability would arise under a implied terms contract of sale by implication of law, it may be negatived or varied by express agreement or by the course of dealing between the parties, or by usage (t), if the usage be such as to bind both parties to the contract. tions. Reasonable time. Rights, &c., enforceable by action. Auction sales. Bidding for seller. Reserve. 56. Where, by this Act (u), any reference is made to a reasonable time, the question what is a reasonable time is a question of fact. 57. Where any right, duty, or liability is declared by this Act, it may, unless otherwise by this Act provided, be enforced by action. 58. In the case of a sale by auction (x) — (1) Where goods are put up for sale by auction in lots, each lot is primâ facie deemed to be the subject of a separate contract of sale (y) : (2) A sale by auction is complete when the auctioneer announces its completion by the fall of the hammer, or in other customary manner. Until such announcement is made any bidder may retract his bid: (3) Where a sale by auction is not notified to be subject to a right to bid on behalf of the seller, it shall not be lawful for the seller to bid himself or to employ any person to bid at such sale, or for the auctioneer knowingly to take any bid from the seller or any such person: Any sale contravening this rule may be treated as fraudulent by the buyer: (4) A sale by auction may be notified to be subject to a reserved or upset price, and a right to bid may also be reserved expressly by or on behalf of the seller. Where a right to bid is expressly reserved, but not otherwise, the seller, or any one person on his behalf, may bid at the auction. (r) See Civil Procedure Act, 1833, 3 & 4 Will. 4, c. 42, s. 28, Chit. Stat., tit. "Debt and Debtors." (s) See Grebert - Borgnis v. Nugent (1885), 15 Q. B. D. 85, where damages by breach of contract, resulting from breach of sub-contract known to vendor with French customer, were held recoverable. (t) As to usage, see Ch. V., sect. 10, ante. (u) E.g., by sects. 11 (2), 18 (4), 29 (4), 35, and 37. (x) Compare Sale of Land by Auction Act, 1867, 30 & 31 Vict. c. 48, Ch. XI., sect. 4, ante. (y) Sect. 4 of this Act, as to sales for 107. or more, applies to sales by auction (Hinde v. Whitemouse (1806), 7 East, 558; 8 R. R. 676), and the auctioneer is the agent of both parties, to sign the contract (Emmerson v. Heelis (1809), 2 Taunt. 38; 11 R. R. 520). Text of Act. Payment Scotland when breach into Court in 59. In Scotland where a buyer has elected to accept goods CH. XIII. s. 2. which he might have rejected, and to treat a breach of contract as only giving rise to a claim for damages, he may, in an action by the seller for the price, be required, in the discretion of the Court before which the action depends, to consign or pay into Court the price of the goods, or part thereof, or to give other alleged. reasonable security for the due payment thereof. [For ss. 60-64 and schedule of repeals, see pp. 336, 338, ante.] of warranty SECT. 3.-Illegal and Void Sales. It is said to be perfectly settled, that where the contract which General rule. a party seeks to enforce, be it express or implied, is expressly or by implication forbidden by the common or statute law, no Court will lend its assistance to give it effect (z). The application of this principle to contracts in general will be fully considered hereafter (a); but we may here shortly direct attention to some of the principal cases in which a statute stands in the way of the enforceability of a contract for the sale of goods, illegality being an "invalidating cause," the effect of which upon such a contract is expressly left undisturbed by the Sale of Goods Act, 1893, s. 61, sub-s. 2, ante, p. 336, which seems to apply, though not expressly so directed, to sales illegal or void by statute as well as to sales illegal or void at common law. sale made A contract for the sale of goods entered into in contravention Contracts of of a statutory provision, whether the prohibition be express, or illegal by be merely implied from the imposition of a penalty, cannot be statute. indorsed by action (b). And the law is now well settled that, if the contract be rendered illegal, it makes no difference whether the statute which makes it so has in view the protection of the revenue or any other object (c). the statute does not avoi It seems, however, that if the object of the statute be, not to Aliter where vitiate the contract itself, but only to impose a penalty on the party offending, for the purpose of revenue, the seller may the contract. recover (d); unless, perhaps, where the goods sold have been actually lost to the purchaser by seizure and condemnation (e). (z) Per Parke, B., Cope v. Rowlands (1836), 2 M. & W. 149, 157; see also Gas Light Co. v. Turner (1839), 7 Scott, 779; Fivaz v. Nicholls (1846), 2C. B. 501. (a) See post, Ch. XXI. (b) Cundell v. Dawson (1847), 4 C. B. 376. (c) Cope v. Rowlands (1836), 2 M. & W. 149, 157; Ritchie v. Smith (1848), 6 (d) Smith v. Mawhood (1845), 14 (e) See Bailey v. Harris (1849), 12 Q. B. 905. CH. XIII. s. 3. Sales). if contrary to But where a statute, as a revenue regulation and to protect the Sale of Goods public health, prohibited brewers from using or causing to be (Illegal used any ingredients but malt and hops, in making beer; it was Contract void, held that a druggist who sold drugs to a brewer, knowing the illegal object to which they were applied, could not recover the price (f). Similarly, an agreement entered into for the purpose of enabling a person to sell beer and spirits without a licence cannot be enforced (g), though a brewer who supplies beer to a public-house, on the credit of a person not licensed, can recover against such person for goods sold and delivered (h). a statute passed for protecting the public health, &c.; or for securing uniformity of weights, &c. Sale of chain cables and anchors. Contracts of on Sunday. So, the Weights and Measures Act, 1889, 52 & 53 Vict. c. 21, by sects. 20-34, makes it imperative on the dealer to deliver to the vendee of coals a ticket of a prescribed form; and if he neglect to do so, he cannot recover the price of such coals from the purchaser (i); while by the Weights and Measures Act, 1878, 41 & 42 Vict. c. 49, s. 19, "every contract, bargain, sale or dealing, made or had in the United Kingdom, for any work, goods, wares or merchandise, or other thing which has been or is to be done, sold, delivered, carried, or agreed for by weight or measure, shall be deemed to be made and had, according to one of the imperial weights or measures ascertained by that Act, or to some multiple or part thereof, and if not so made or had, shall be void," and by sect. 1 of the Weights and Measures (Metric System) Act, 1897, 60 & 61 Vict. c. 46, the use in trade of a weight or measure of the metric system is expressly legalised. By the Anchors and Chain Cables Act, 1899, 62 & 63 Vict. c. 23, consolidating, with some amendments, Acts of 1864, 1871, and 1874, a maker of or dealer in anchors and chain cables may not sell or contract to sell, nor shall any person purchase or contract to purchase, for use on any British ship, any chain cable, or any anchor exceeding in weight 168 lbs., not previously proved, in accordance with the Act. By the Sunday Observance Act, 1677, 29 Car. 2, c. 7, s. 1, no sale, &c., made tradesman, artificer, workman, labourer, or other person whatso ever, shall do or exercise any worldly labour, business, or work of their ordinary callings, upon the Lord's Day, or any part thereof (works of necessity and charity only excepted); and that every person of the age of fourteen years offending in the premises, shall forfeit five shillings (). It has been held, under this (f) Langton v. Hughes (1813), 1 M. & S. 593; 14 R. R. 531. (g) Ritchie v. Smith (1848), 6 C. B. 462. (h) Brooker v. Wood (1834), 5 B. & Ad. 1052; overruling Meux v. Humphreys (1827), Moo. & M. 132; and see Law v. Hodson (1809), 11 East, 300; 10 R. R. 513. (i) Smith v. Wood (1889), 23 Q. B. D. 380; 24 Q. B. D. 23, C. A. ; following Meredith v. Holman (1847), 16 M. & W. 798. (k) For restriction on recovery of statute, that a horse-dealer cannot sue for the breach of a warranty, made on the sale of a horse which was purchased by him on a Sunday (1). agent, is not void at But a sale on a Sunday, which is not made in the exercise of the ordinary calling of the vendor or his common law, or by the above statute (m). a horse, warranted sound, who did not know that the vendor was a horse-dealer, and that he was selling the horse in the exercise of his calling, has been held to be entitled to sue for a breach of such warranty, although the sale took place on a Sunday (n). So it is no defence to an action against a solicitor, on an agreement entered into by him for the purpose of settling the affairs of a client, and on which he has made himself personally liable, that such agreement was entered into on a Sunday-his entering into such an agreement not being a matter within the scope of his ordinary calling (o). And a contract for the sale of goods, even although it be made on a Sunday in the exercise of the vendor's ordinary calling, is not affected by the statute, unless such contract be complete on that day. If, therefore, there be a verbal contract on a Sunday, for the purchase of goods of the value of 101. or upwards, but the goods be not delivered, nor any part of the price paid until a subsequent day, the contract is good; for, under the Statute of Frauds, there was no binding bargain on the Sunday (p). And, if there be a delivery and acceptance within the statute before the Sunday, the contract will be valid, although the goods may not be sent away from the premises of the vendor until that day (q). But where, in an action for not accepting goods, it appeared that the sale was effected by a broker on a Sunday, and that, at the defendant's request, a bought note was delivered to him; and that the broker, on the same day, made an entry of the contract in his book; but that he did not deliver the sold note to the plaintiff, the vendor, for some days; it was held that penalty, see the still temporary Sunday Observance Prosecutions Act, 1871, 34 & 35 Vict. c. 87, Chit. Stat. tit. "Sunday," as construed in Thorpe v. Priesthall, [1897], 1 Q. B. 159. (1) Pennell v. Ridler (1826), 5 B. & C. 406. (m) Scarfe v. Morgan (1838), 4 M. & W. 270; Drury v. De Fontaine (1808), 1 Taunt. 131; Bloxsome v. Williams (1824), 3 B. & C. 232. The statutes do not render travelling on a Sunday, by a stage-coach or a post-chaise, illegal; Sandiman v. Breach (1827), 7 B. & C. A farmer may hire a labourer, 96. R. v. The Inhabitants of Whitnash (n) Bloxsome v. Williams (1824), 3 (0) Peate v. Dicken (1834), 1 Cr., M. & R. 422. Whether an attorney be within the statute at all, quære? id. 428. (p) Bloxsome v. Williams (1824), 3 B. & C. 232. (q) Beaumont v. Brengeri (1847), 5 C. B. 301. |