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lodged in the warehouse of a dock company, and the vendee sells them and receives the price, transferring the delivery-order to the subvendee^); or, where they are delivered to a packer, and the vendee's agent has part unpacked, and the remainder repacked (o); or, where they are delivered to a warehouseman, to whom the Using the vendee pays rent(p). On the same principle, the as his own. transitus is determined, where the goods remain on the vendor's premises after the day when they ought to have been removed, and warehouse-rent is charged to the vendee(y); or, where the goods, while remaining at the vendor's wharf, are resold with the consent of the vendor, and marked by the vendee and the sub-vendee (r). On a similar principle, the transitus is considered to be determined, where the goods remain in a warehouse, and there are circumstances from which it may be presumed that the vendee considered the warehouse his own;— as, where the goods are deposited in the warehouse of a carrier for the convenience of the vendee (s);
(») Barton v. Boddington, 1 C. & P. 207.
(o) Leeds v. Wright, 3 B. & P. 320; S. C. 4 Esp. 243.
(p) Wright v. Lames, 4 Esp. 82.
(q) Hurry v. Mangles, 1 Campb. 452.
(r) Stoveld v. Hughes, 14 East, 308. See Hawes v. Watson, 2 B. & C. 540: per Bayley, J., ib. 543. See 14 East, 312, per Lord Ellenborough, C. J.
(s) Allan v. Gripper, 2 Cr. & Jer. 218; S. C. 2 Tyrwh. 217; Foster v. Frampton, 6 B. & C. 107; S. C. 9 D. & R. 108. The question is, whether the warehouse was considered the final place of destination (2 Cr. & Jer. 221, 222); for the transitus is not
or, where the vendee has been accustomed to use the warehouse as his own(f); or, where he has no warehouse of his own, and no other convenient place wherein to stow the goods (u).
As long as anything remains to be done to the Constmc
j i /> i i ■ • tive delivery
goods betore the vendee is entitled to the posses- insufficient
i i . -, -,. when any
sion, there cannot be such a constructive delivery thing reas to bar the vendor's right of stoppage. Thus, done, the transitus was held not to be determined, where the quantity of the goods had to be ascertained by measuring or weighing (x); or, where the goods have been delivered at a warehouse which the vendee considers his own, but the terms of the contract of sale were ready-money payment (y); or, where the vendee continues yet liable to pay the freight and other expenses, provided that no act has been done by the carrier implying an assent to part with the possession before receiving such expenses(#).
at an end if there was an ulterior place of delivery in view; (See Coates v. Railton, 6 B. & C. 426, per Bat/let/, J. See 5 East, 175).
(t) Tucker v. Humphery, 1 M. & Payne, 392; Rowe v. Pickford, 1 B. Moore, 526; S. C. 8 Taunt. 83. Per Chambre, J., Richardson v. Goss, 3 B. & P. 127.
(u) Scott v. Pettitt, 3 B. & P. 469.
(i) Busk v. Davis, 2 M. & S. 397; S. C. 5 Taunt. 622, n.; 1 Marsh. 268, n.; Withers v. Lys, Holt, N. P. C. 18. See 1 C. & P. 210. See Trover By Vendee, Part 2, Chap. ii.
(y) Loeschman v. Williams, 4 Campb. 181. .
(«) Crawshay v. Eades, 1 B. & C. 181.
Assumpsit bj vendor.
ASSUMPSIT BY VENDOR.
If the purchaser makes default in the performance of the contract, the vendor may maintain an action of Assumpsit. The action may be, either on the special contract for not accepting,—or, where the property has vested in the purchaser, for goods bargained and sold,—or, where actual or constructive delivery has taken place, for goods sold and delivered (a).
When several counts not allowed.
By the New Rules of pleading (b) it is provided, that " several counts shall not be allowed, unless "a distinct subject-matter of complaint is intend"ed to be established in respect of each." Thus, "counts, for not accepting and paying for goods "sold, and for the price of the same goods as "goods bargained and sold, are not to be allowed."
But the plaintiff may add a count on an account stated (c); and this is in general advisable in actions for the recovery of money demands (d). Thus, if ^"ed"' a precise sum has been admitted to be due, the plaintiff may recover on this count, although there may have been a written memorandum of the original agreement (e); or, although the items of account were secured by specialty (/). But the acknowledgement must have been unqualified and absolute (g). The admission of a certain sum due for the sale of standing trees, made after the trees were felled and carried away, supports this count(A). And, where defendant agreed to take fixtures at a valuation made by two brokers, this count was held to be maintainable after such valuation had been made (a).
(a) See Forms of these counts in the Appendix.
(6) Rules PI. Hil. T. 4 Will. IV. § 5.
(c) "Provided, that a count for money due on an account "stated may be joined with any other count for a money demand, "though it may not be intended to establish a distinct subject"matter of complaint in respect of each of such counts." Rules, Hil. T. 4 Will. IV.
The defendant will not be at liberty to go into Evidence evidence of the items of the account, and to show stated0.0"" that the plaintiff cannot maintain an action on some on the ground of the illegality of the sale (A). The plaintiff ought to give evidence of something
(d) 1 Chit. PI. 308.
(e) Teal v. Auty, 2 B. & B. 99; Singleton v. Barrett, 2 Cr. & Jer. 368; Seago v. Deanes, 4 Bingh. 459.
(/) Moravia v. Levy, 2 T. R. 483, n. See Foster v. Allanson,
2 T. R. 479.
(g) Evans v. Verily, 1 Ry. & M. 239; Wayman v. Hilliard, 7 Bingh. 101.
(h) Knowles v. Michel, 13 East, 249. See Pinchon v. Chilcott,
3 C. & P. 236.
(i) Salmon v. Watson, 4 B. Moore, 73. See Keen v. Batshore, 1 Esp. 194.
(A) Dawson v. Remnant, 6 Esp. 24; Owens v. Denton, 1 Cr. Mees. & Rose. 711.
Account more definite than a mere acknowledgement that
something was due: if no evidence is given of the amount of the balance, he will be entitled to recover nominal damages only (7). He is not compelled to prove all the items of which the alleged account consists [m); and proof of the acknowledgement of a single item will support the count (h).
Assumpsit ON SPECIAL Contract For Not Accepting Goods. Assumpsit The vendor, in a special action against the purccpting. chaser for not accepting goods, must prove the contract of sale,—the performance on his part of conditions precedent,—and the damages which he has sustained by the defendant's default (a).
I. PROOF OF THE CONTRACT.
In proving the contract, the plaintiff must give evidence of the assent of the parties, and of the terms of the agreement.
1. Assent of the Parties. The plaintiff must show that the contract was
(J) Dixon v. Deveridge, 2 C. & P. 109. But see Bernasconi v. Anderson, M. & Malk. 183 ; Kirton v. Wood, 1 M. & Rob. 253; in which it was ruled that, without proof of the amount, the plaintiff is not entitled even to nominal damages.
(m) Bartlett v. Emery, 1 T. R. 42, n.
(n) Highmore v. Primrose, 5 M. & S. 65. •
(a) See 2 Phil. Ev. p. 83 (7th Ed.).