that the other should have his horse, the other Conditions precedent. that he will pay ten pounds for it, an action does not lie for the money until the horse be delivered" (i). Where the contract was, that the defendant should supply certain goods at intervals, to be paid for on delivery, he is not bound to sell on credit, and, if the purchaser refuses to pay on delivery, the vendor is not liable for non-performance (k), even though he may have waived the condition in part by delivering some of the goods on credit (/). On the same principle, where the plaintiff had agreed with the defendant to barter a quantity of yellow ochre for a quantity of sponge of equivalent value, and it was contended that, the respective undertakings being mutual promises, performance on the part of the plaintiff was not necessary to support his right of action, the Court nevertheless held, that one undertaking was the consideration of the other, and that the plaintiff, therefore, could not recover for the non-delivery of the sponge, without proof of the delivery of the ochre (m). However, after verdict, the averment is sufficient, that plaintiff has always been ready and willing to perform his part of the contract (n);

(i) Per Holt, C. J., Thorpe v. Thorpe, 1 Salk. 172. See Heard v. Wadham, 1 East, 619; Tate v. Meek, 8 Taunt. 280,

293.

(k) Withers v. Reynolds, 2 B. & Adol. 882.

(1) Payne v. Shadbolt, 1 Campb. 427. (m) Parker v. Rawlings, 4 Bingh. 280.

(n) Waterhouse v. Skinner, 2 B. & P. 447; Rawson v. Johnson,

Conditions and proof of a demand by plaintiff will support such averment (o).

precedent.

When per

formance excused.

If the plaintiff has been prevented by the act of the defendant himself, from performing his part of the contract, this is equivalent to performance (p); as, where there has been a tender and refusal (q). So, where he has been discharged by defendant from the performance (r). And, if the defendant has once waived the non-performance of a condition precedent, even if default had been already made, he cannot afterwards take the objection (s). But the plaintiff is not excused on the ground that some third party has wrongfully prevented the performance (t). For, if a man bind himself absolutely to perform a particular act, he is bound by his contract, although circumstances, over which he has no control, may happen to render the performance impossible (u). But, if he has

1 East, 203; Ferry v. Williams, 8 Taunt. 62; S. C. 1 B. Moore, 498.

(0) Squier v. Hunt, 3 Price 68.-Post.

(p) Hotham v. E. I. Company, 1 T. R. 638; Dorrien v. Hutchinson, 1 Smith, Rep. 420; Studdy v. Sanders, 5 B. & C, 628. See Pringle v. Taylor, 2 Taunt. 150; Giles v. Edwards, 7 T. R. 181; Bowdell v. Parsons, 10 East, 359.

(q) Lea v. Exelby, Cro. Eliz. 888.

(r) Jones v. Barkly, 2 Dougl. 684.

($) Alexander v. Gardner, 1 Bingh. N. S. 671.

(t) Worsley v. Wood (in error), 6 T. R. 710. See Gosling v. Higgins, 1 Campb. 451.

(u) Splidt v. Heath, 2 Campb. 57, n.; Atkinson v. Ritchie, 10 East, 530.

provided against the contingency of the perform- Conditions ance becoming impossible, he will not be liable (x).

precedent.

dependent

Where there are mutual promises independent Mutual inof each other, and mutual remedies, an action may promises. be maintained by either party without averring performance (y). Most of the old cases, and many of the modern, upon this subject, are decided upon merely technical distinctions: but the Courts now construe covenants and promises, to be either dependent or independent of each other, according to the intention and meaning of the parties, and the good sense of the case (z). "Whether one promise be the consideration of another, or whether the performance, and not the mere promise, be the consideration, must be gathered from, and depends entirely upon, the words and nature of the agreement" (a).

III. DAMAGES.

The vendor, in an action on the special contract Measure of damages. for not accepting goods, is not entitled to recover

(x) Boyd v. Siffkin, 2 Campb. 326; Hawes v. Humble, 2 Campb. 327 n; Hayward v. Scougall, 2 Campb. 56; Thornton v. Simpson, 2 Marsh. 267; S. C. 6 Taunt. 556.

(y) Selw. N. P. 121; Martindale v. Fisher, 1 Wils. 88; Lampleigh v. Braithwait, Hob. 106; Blackwell v. Nash, 1 Stra. 535; Lock v. Wright, id. 569; Weaver v. Sessions, 6 Taunt. 154.

(z) 1 Wms'. Saund. Rep. 320 a.

(a) Per Lawrence J., Glazebrook v. Woodrow, 8 T. R. 373.

Damages. the value of the goods themselves, because he has

still the property and disposition of them, but he is
entitled only to such damages as he can be rea-
sonably supposed to have sustained by the default
of the purchaser (b). As any loss, caused by a fall
in the market, necessarily results from the de-
fendant's breach of contract, the amount of damage
sustained must be measured by the difference be-
tween the price, which the defendant contracted
to pay,
and the price which might have been ob-
tained in the market at the time when the contract
should have been completed (c). On the same
principle, if the goods have been sold at a loss to
some other person, the defendant is liable to make
good the loss incurred on such resale (d): or, if
the goods have remained in the vendor's ware-
house, encumbering the premises, he may recover,

(b) See Towers v. Barrett, 1 T. R. 133, 136.

(c) Boorman v. Nash, 9 B. & C. 145; S. C. Dan. & Lloyd, Merc. Ca. 269; Brandt v. Bowlby, 2 B. & Ad. 932. In the latter case, the action was by the consignors, foreign merchants, against the ship-owners, who had delivered the goods contrary to the bill of lading; and the measure of damages was held to be regulated, not by the invoice price, but by the value at the time when the cargo ought to have been delivered, i. e. the value at the port of discharge. The original consignees had refused to perform their stipulated part of the contract, and an action would clearly have been maintainable against them for not accepting, in which the measure of damages would have been the same. "If neither the money

(d) Maclean v. Dunn, 4 Bingh. 722. be paid, nor the goods delivered, nor tender made, nor any subsequent agreement entered into, it is no contract, and the owner may dispose of the goods as he pleases;" 2 Bl. Comm. 447.

either for warehouse room, or any special damage Damages. which may have resulted from the delay (e). If the goods were to have been paid for by a bill, the vendor is entitled to recover interest from the day on which it would have become due (f), whether the goods have been accepted or not.

ASSUMPSIT

FOR GOODS BARGAINED AND SOLD.

WHERE the property has vested in the purchaser, Goods bar

gained and

the vendor may sue for goods bargained and sold; sold.
in which form of action he is entitled to recover
the whole value of the goods (a), while in a special
action for not accepting, he can only recover such
damages as the jury may give for the breach of

the contract.

proper form

This is the proper form of action, where there When has not been such a delivery of the goods, in fact of action. or in law, as will support an action for goods sold and delivered; as, where the terms of the contract are, that the goods shall remain on the premises of the vendor until they are paid for by the purchaser (b).

(e) Greaves v. Ashlin, 3 Campb. 427, per Lord Ellenborough, C. J.

(f) Boyce v. Warburton, 2 Campb. 480; Porter v. Palsgrave, 2 Campb. 472; Marshall v. Poole, 18 East, 98.

(a) Hankey v. Smith, Peake, 42, n.

(b) Goodall v. Skelton, 2 H. Bl. 316. Judgment of Lord Lyndhurst, C. B., Boulter v. Arnott, 3 Tyrw. 269.-Post.

Ꭱ