Account

stated.

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 (). 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 (n).

for not ac

cepting.

ASSUMPSIT

ON SPECIAL CONTRACT FOR NOT ACCEPTING GOODS.

Assumpsit THE vendor, in a special action against the purchaser 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

(1) 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.).

the parties.

plaintiff.

fully completed by the assent of both parties. Assent of The defendant will not be bound by a mere proposal on his part unaccepted at the time by the Assent of plaintiff; thus, where one offers to sell certain corn to another, the latter must show that he accepted the terms of the contract (b). So, where defendant offered to guarantee payment by J. S., the plaintiff must prove that he notified his acceptance of such guaranty, in order to make the defendant liable on his undertaking (c). The general rule is, that as long as the engagement is on one side only, it is not binding; for it is then nudum pactum, and there is no consideration to support the promise (d). On this principle, a bidder at an auction may retract his bidding at any time before the fall of the hammer (e). Again, the plaintiff must Assent of prove the conclusive assent of the defendant, as well as his own. Thus, where in a proposed contract of sale between the parties, the party to whom the offer was made agreed to give a definitive answer in six weeks, it was held that the party making the offer might retract it at any time

(b) Brable v. Holywell, Cro. Eliz. 250. As to sufficient proof of notice of, and implied assent to, the terms or conditions of sale, see Bywater v. Richardson, 1 Ad. & Ell, 508; Mesnard v. Aldridge, 3 Esp. 271. Supra, p. 154.

(c) Mozler v. Tinkler, 1 Cr. Mees. & R. 692. See below, Part 3, Chap. ii.

(d) 3 T. R. 654; Plowd. Com. 5; Co. Litt. 35, b.

(e) Payne v. Cave, 3 T. R. 148; see Weeks v. Tybold, Noy, 11; Rol. Abr. Action sur Case (M), pl. 1.

defendant.

Assent of during that period (ƒ). And, where the defendant the parties. offered to sell goods, and at the request of the

plaintiff agreed to allow a certain period for deliberation, he was held not to be bound, although the other accepted the offer within the time specified (g); because the locus penitentiæ if allowed to either must be allowed to both. But where the vendor offered by letter, "to sell goods, receiving an answer by return of post," it was held that he was bound by the acceptance of the other party; even where the letter offering the terms had been accidentally delayed for two days, and the goods had been otherwise disposed of in the interim (h); for it was observed that, in such a case the defendant "must be considered as making in law, during every instant of time that the letter was travelling, the same identical offer to the plaintiff" (i). Where there is an option given to both parties to renounce the contract by a certain day, both are bound unless there is some act of disaffirmance before the expiration of the period (k). After the contract has been completed by conclusive

(f) Routledge v. Grant, 4 Bingh. 653; S. C. 1 M. & Payne, 717; Ellis v. Mortimer, 1 N. R. 257.

(g) Cooke v. Oxley, 3 T. R. 653; Head v. Diggon, 3 Man. & Ryl. 97.

(h) Adams v. Lindsell, 1 B. & A. 681; Kennedy v. Lee, 3 Meriv. 441.

(i) Per Curiam, 1 B. & A. 683.

(k) Humphries v. Carvalho, 16 East, 45.

the parties.

assent on both sides, it may be rescinded, by the Assent of consent of the parties, at any time, provided that the rights of third persons have not intervened (1), and if the vendor has offered to rescind the contract, and the purchaser assents, it cannot be taken into consideration whether the proposal was made in ignorance of his legal rights (m).

agent.

If the authorized Agent of the purchaser has Assent by assented to the terms of the contract, this will be equivalent to the assent of the principal himself (n); as, where the auctioneer writes the initials of the name of the purchaser's agent opposite to the lots bid for, in the catalogue (o). So, where the broker of the parties makes an entry in his books of the terms of the contract (p), or sends bought and sold notes to the vendor and purchaser (q), both parties are bound. But if there is a material difference between the bought and sold notes (r), or if a material alteration has been made by the broker in the sale note, without the

(1) See Salte v. Field, 5 T. R. 211; Smith v. Field, 5 T. R. 402; And see infra, of rescission of the contract.

(m) Gomery v. Bond, 3 M. & S. 378.

(n) Honeywood v. Geary, 6 Esp. 119; Runquist v. Ditchell, 3 Esp. 64; Heys v. Heseltine, 2 Campb. 604.

(0) Phillimore v. Barry, 1 Campb. 513; Kenworthy v. Schofield,

2 B. & C. 945.

(p) Heyman v. Neale, 2 Campb. 337.

(9) Goom v. Aflalo, 6 B. & C. 117; Hawes v. Forster, 1 M. & Rob. 368. Supra, p. 77.

(r) Cumming v. Roebuck, Holt, N. P. C. 172. Supra, p. 76, note (b).

the parties.

Assent of purchaser's consent (s), he is not bound: otherwise, where there is a mere inaccuracy which has not prejudiced either party (t). So, where the vendee's broker communicates to his principal a contract differing in its terms from that which was really entered into, and the principal adopts the transaction as represented by his broker, it seems that he will not be liable on the real contract (u).

Special au

thority.

Where the agent has a special authority as to the price or quality of the goods which he is commissioned to purchase, his contract will not bind the principal if he exceed such authority (x). However, if he has any power to exercise his own discretion, he will not be considered a special agent (y); thus, in an old case it was held that, where a factor had a general authority to buy one sort of commodity, he might bind his principal by buying another (2). A subsequent ratification of

(s) Powell v. Divett, 15 East, 29.

(t) Mitchell v. Lapage, Holt, N. P. C. 253.

(u) Per Parke, J., Horsfall v. Fauntleroy, Lloyd & Welsby, Merc. Ca. 341. See the dictum of Parke, J., and the doubt thrown out by Ld. Tenterden, C. J., 10 B. & C. 759.

(x) E. I. Company v. Hensley, 1 Esp. 112; Fenn v. Harrison, 3 T. R. 757; Daniell v. Adams, 1 Ambl. 498; Wiltshire v. Sims, 1 Campb. 258; see Bank of Bengal v. E. I. Company, 2 Knapp,

245.

(y) Hicks v. Hankin, 4 Esp. 114; Whitehead v. Tuckett, 15 East, 400.

(z) Petties v. Soame, Goldsb. 139; S. C. 13 Vin. Abr. 6. This, at least, seems to be the substance of the decision. See Paley, Pr. & A. p. 207 (3rd Ed.).