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Variance, on its arrival in this country is called rough (a). A contract to deliver saddles at 24 or 26 shillings may be stated as a contract to deliver them at a reasonable price (0- A contract for the purchase of about eight tons may be stated to be for eight tons, if that had been ascertained to be the precise quantity (w). A contract to pay an authorized agent, or one who is in effect an agent of the plaintiff, may be declared upon as a contract to pay the plaintiff himself (x). So, the plaintiff is not bound to state more of the contract than is essential to the action which he brings for the particular breach; as, where the contract was for a quantity of prime singed bacon, and the plaintiff declared for the non-delivery of prime bacon (y). And where something is stated which is not essential to the action, and is stated wrong, an amendment will be allowed; as where, in describing the terms of a warranty, some qualification, not in- Variance. volved in the breach, is accidentally omitted (z). By a recent statute (a), the Court, or Judges when
(*) Silver v. Heselline, 1 Chit. Rep. 39.
(t") Laing v. Fidgeon, 6 Taunt. 108. See Bat/ley v. Tricher, 2 N. R. 458; Bray v. Freeman, 2 B. Moore, 114.
(u) Gladstone v. Neale, 13 East, 410; fVickes v. Gordon, 2 B.
6 A. 335 (overruling Payne v. Hayes, Bull. N. P. 145); Wildman v. Glossop, 1 B. & A. 9; Crispin v. Williamson, 8 Taunt. 107.
(x) Pearson v. Pearson, 5 B. & Ad. 859; see per Parke, J., id. 864.
(y) Cotterill v. Cuff, 4 Taunt. 285 ; Miles v. Sheward, 8 East,
7; Parker v. Palmer, 4 B. & A. 387; Baptiste v. Cobbold, 1 B. & P. 7; Tempest v. Rowling, 13 East, 18; Handford v. Palmer, 2 B. & B. 359; S. C. 5 B. Moore, 74.
sitting at nisi prius, are empowered in certain allowed, cases to allow the record to be amended. It is provided, " that it shall be lawful for any Court of "record holding plea in civil actions, and any "Judge sitting at nisi prius, if such Court or Judge "shall see fit so to do, to cause the record, writ, "or document, on which any trial may be pending "before any such Court or Judge in any civil "action, &c., when any variance shall appear be"tween the proof and the recital or setting forth "on the record, &c., of any contract, custom, pre"scription, name, or other matter, in any particu"lar or particulars in the judgment of such "Court or Judge not material to the merits of the "case, ... to be forthwith amended." It is further provided, that the party, who is dissatisfied with the decision of the Judge at nisi prius respecting his allowance of such amendment, may apply to the Court from which the record or writ issued for a new trial upon that ground (£).
(z) Hemming v. Parry, 6 C. & P. 580.
(a) 3 & 4 Will. IV. c. 42, s. 23.
(A) The amendment is allowed whether the variance be such that the other party "may have been prejudiced thereby in the conduct- of his action, prosecution or defence," or whether it be such that the other party may not have been so prejudiced; but there is a difference between the cases in respect of costs; (see the
II. PERFORMANCE OF CONDITIONS PRECEDENT.
Where there is a condition precedent, or a concurrent act, to be performed on the part of the vendor, no action can be maintained by him against the purchaser, without proof of performance, or of something which is in law equivalent Expressed, to performance (6). Thus, in general, where, by the express terms of the contract, some act on the part of the plaintiff is to precede performance by the defendant, it is incumbent on the plaintiff to prove performance on his own part. Yet, if the circumstances of the case show, that the former act was not intended by the parties to be a condition precedent, proof of performance by the plaintiff is unnecessary: thus, where the agreement expressed that the goods were to be paid for two months after they were landed, it was held, that the landing of the goods was not a condition prece- Conditions dent, although it was expressed to precede the payment, but that the object of the stipulation was merely to mark the time of payment, and that the plaintiff, therefore, might maintain an action for the price, although the goods were in fact never landed at all, having been lost before their arrival (c).
same section). Under this statute the Court allowed the word "guarantee" used in the written contract, to be substituted for the word "pay" in the declaration; Hanbury v. Ella, 1 Ad. & Ell. 61. Most of the new rules of pleading proceed upon this enactment; see 1 Ad. & Ell. 64; see rules Hil. T. 4 Will. IV. § 5. [The stat. 9 Geo. IV. c. 15, allowed an amendment in certain cases, where a " variance appeared between any matter in writing "or in print produced in evidence, and the recital or setting forth "thereof upon the record." See Lamey v. Bishop, 4 B. & Ad. 479 ; Masterman v. Judson, 8 Bingh. 224.]
(b) Ughtred's case, 7 Rep. 10 a; Phillips v. Fielding, 2 H. BL 123; Thomas v. Cadwallader, Willes, 496; Collins v. Gibbs, 2 Burr. 899; Wright v. Newton, % Cr. Mees. & R. 124. See 1 Wms'. Saund. Rep. 320 a, note to Pordage v. Cole.
If there is a condition precedent implied by law, implied. although not expressed in the contract, proof of performance is necessary. Thus, in an action for not accepting stock, the plaintiff must show that he was possessed of the stock at the time of the contract (d); otherwise it would be void within the Stock-jobbing Act (e). He must also prove that, according to the provisions of the statute (/), the stock, contracted for by the defendant, and refused to be accepted by him, was sold within a reasonable time afterwards to some other person (g). So, the plaintiff must show either a tender and refusal, or, what is equivalent to a tender and refusal, that he was ready to transfer,
(c) Alexander v. Gardner, 1 Bingh. N. S. 671; S. P. Fragano v. Long, 4 B. & C. 219; S. C. 6 D. & R. 283. See below, Assumpsit fur goods sold; and Part 4, Chap. ii.
(d) Breton v. Cope, Peake, 39. See Bryan v. Lewis, 1 Ry. & Moo. 386; Wilkinson v. Myer, 1 Stra. 585.
(e) 7 Geo. II. c. 8, s. 8; supra, pp. 92, 93. (/) 7 Geo. II. c. 8, s. 6.
( g) Hekscher v. Gregory, 4 East, 607; Bordenave v. Gregory, 5 East, 107. See 3 Stark. Ev. 873, (2d Ed.).
Conditions and remained at the Bank as long as the transfer pn . books continued open (A). Where the declaration
stated, that, in consideration of the payment of a sum of money, defendant promised to deliver fifteen tod of wool out of seventeen tod, to be chosen by the plaintiff, and averred, that the plaintiff was ready to pay the money at the day, yet defendant did not deliver the wool, judgment for the plaintiff was arrested, because it was not stated that the plaintiff had chosen fifteen tod out of the seventeen,—such selection being an implied condition precedent to the delivery (J). If a condition precedent has been neglected to be performed, it seems to be immaterial whether the defendant has been prejudiced or not by the non-performance (A-), or whether he objected to fulfil the contract on that particular ground (/). But, if the defendant has once actually waived his objection to the nonperformance, he cannot afterwards take advantage of it (m). Sale by Where the goods are sold by sample, the vendor
''" must show that the bulk of the commodity corresponds with the sample; and it will not be sufficient to prove a custom of making an allowance
(h) Bordenaxe v. Gregory, 5 East, 107; Lancashire v. Killingworth, 1 Ld. Raym. 686; S. C. Com. Rep. 116.
(i) Raynay v. Alexander, Yelv. 76; Selw. N. P. 113, (8th Ed.).