Goods bargained and sold. In order to maintain an action for goods bargained and sold, it must appear, that the property has absolutely vested in the purchaser; therefore, it was held, that this form of action could not be supported, where the defendant had ordered certain machines to be made, and, when they were completed, refused to accept them (c). Under such circumstances it ought to have been a special action for not accepting (d); because, where the chattel is not in existence at the time of the contract, the property does not pass by the contract, but by the completion and delivery of the chattel (e). Further, not only must the property pass, but there must be a specific appropriation by the purchaser (f); therefore, where goods have been contracted to be sold at a certain price per ton, it is said this action will not lie until the goods have (c) Atkinson v. Bell, 8 B. & C. 277; S. C. Dan. & Lloyd, Merc. Ca. 93. "No right to maintain any action vests in the plaintiff during the progress of the work; but when the chattel has assumed the character bargained for, and the employer has accepted it, the party employed may maintain an action for goods sold; or, if the employer refuses to accept, a special action on the case for such refusal;" Per Bayley, J., 8 B. & C. 283. See 10 Bingh. 516.-Post. (d) Per curiam, 8 B. & C. 281. (e) Mucklow v. Mangles, 1 Taunt. 318; Thompson v. Maceroni, 3 B. & C. 1.-Post. But see the remarks of the judges on the case of Mucklow v. Mangles, in Carruthers v. Payne, 5 Bingh. 276, et seq. (f) Elliott v. Pybus, 10 Bingh. 512; S. C. 4 M. & Scott, 389; Per Bayley, J., Rohde v. Thwaites, 6 B. & C. 392; ver Holroyd, J., 8 B. & C. 284. See Dan. & Lloyd, Merc. Ca. 100. gained and been weighed (g). It is not necessary that the Goods barvendor at the time of the contract should have sold. been in the actual possession of the goods, provided that they have been ascertained and accepted before the action was brought (h). Where the purchaser has refused to accept the goods, and the vendor has resold them, the proper form of action is assumpsit for not accepting (i). It has been held, indeed, that the plaintiff might in such case sue for goods bargained and sold (k). But the decision seems now to be overruled (/): because, although there is not such a waiver of the contract as to preclude the vendor from recovering damages for the breach (since it is admitted that he is justified in re-selling on the purchaser's nonacceptance), yet, as by his own act he has so far rescinded the contract, that he is no longer in a situation to deliver the goods to the defendant, it would be inconsistent to allow him to recover the price and, moreover, the damages actually sustained would be, not the whole value of the goods, but the difference between the contract price and (g) Per Littledale, J., Simmons v. Swift, 5 B. & C. 865. (h) Alexander v. Gardner, 1 Bingh. N. S. 671, 676; Rohde v. Thwaites, 6 B. & C. 388. (i) Maclean v. Dunn, 4 Bingh. 722. (k) Mertens v. Adcock, 4 Esp. 251, cor. Lord Ellenborough, C. J. (1) Hore v. Milner, Peake, 42, n.; James v. Shore, 1 Stark. N. P. C. 430. See judgment of the Court, Hagedorn v. Laing, 6 Taunt. 166, 167; judgment of Best, C. J., Maclean v. Dunn, 4 Bingh. 728. gained and sold. Goods bar the sale price, which would be the precise measure of damages in an action for not accepting (m). It has been held, however, that an action for goods bargained and sold is not precluded by the circumstance that the vendor has stopped them in transitu, provided the plaintiff is ready to deliver them to the defendant (n); for the right of stopping in transitu does not proceed on the ground of rescinding the contract, but is an equitable lien adopted by the law for the purposes of substantial justice (0). and delivered. ASSUMPSIT FOR GOODS SOLD AND DELIvered. Goods sold IN an action of assumpsit for goods sold and delivered, the plaintiff must prove a contract of sale, or circumstances from which a contract may be implied in law ;-a delivery of the goods to the defendant, either in law, or in fact ;-and the value of the goods sold. When maintainable. I. WHEN THE ACTION IS MAINTAINABLE. Proof that the defendant has received and used the goods, for which the action is brought, is in general prima facie evidence to support an action for goods sold and delivered (p); because, where (m) Supra, p. 240. (n) Kymer v. Suwercropp, 1 Campb. 109. (0) 7 T. R. 445.-Supra. (p) Bennett v. Henderson, 2 Stark. N. P. C. 550. And as to implied liability, see Jewry v. Busk, 5 Taunt. 302; Cox v. Reid, Ry. & Moody, 199; Morris v. Burdett, 2 M. & S. 212; 1 maintain goods, which have been the property of the plain- When tiff, have come into the possession of the defend- able. ant, unaccounted for, the law will imply a contract. Thus, where the vendor intended to supply the goods to a party who has never received them, and, without the plaintiff's knowledge, they come into the possession of another, the value may be recovered in an action for goods sold against the latter (q). And, as the defendant cannot take advantage of his own wrong, the plaintiff may in general waive the tort (r), when the goods have Waiver of come wrongfully into the defendant's possession, and sue for goods sold; provided he can make out a clear and indisputable title to the property (s). Thus, the action may be maintained where the defendant fraudulently procured the goods to be sold to one whom he knew to be insolvent, and afterwards got them into his own hands (t); or, where he supplied money to a nominal vendee to pay part of the price, and afterwards obtained the pro Campb. 218; Frazer v. Marsh, 2 Campb. 517; Trewhella v. (g) Weatherby v. Banham, 5 C. & P. 228. (r) Foster v. Stewart, 3 M. & S. 191; Lightly v. Clouston, 1 Taunt. 112; King v. Leith, 2 T. R. 141; Feltham v. Terry, Lofft, 207, cited 1 T. R. 387; Longchamp v. Kenny, 1 Dougl. 137; Hussey v. Fidell, 3 Salk. 59; 1 Chitty's Pl. 89. Unless the fraud actually amounts to felony; Thorp v. How, Bull. N. P. 130; Sampson v. Gisling, ib. 131. See 1 Hale, P. C. 546. (s) Lee v. Shore, 1 B. & C. 94. See per Abbott, C. J., ib. 97. (t) Hill v. Perrott, 3 Taunt. 274; Biddle v. Levy, 1 Stark. N. P. C. 20; Thompson v. Bond, 1 Campb. 4. tort, When maintainable. Against quasi vendee. ceeds arising from the resale (u). And it seems that, even where the vendor has mistakenly treated the case as one of fraud, or even of felony, this will not preclude him from afterwards recovering the price (a). On the same principle, in all cases where the defendant in effect stands in the relation of vendee, or quasi vendee, towards the plaintiff, the action for goods sold is maintainable. Thus, where the original vendee, being unable to pay, transferred the goods to the defendant, who promised to pay the price, it was held that an action would lie for goods sold, because this amounted to an original contract, and was not a mere guaranty to pay the debt of another (y). If, however, the sale had been to a third party, and defendant had been merely a guarantee, the vendor could not have recovered against him in an action for goods sold, but ought to have declared specially on the guaranty (z). Yet, if the original credit was in fact given to the defendant himself, though the goods may have been for the use of another, he would be primarily liable, and assumpsit for goods sold (u) Abbotts v. Barry, 2 B. & B. 369. See Studdy v. Sanders, 5 B. & C. 628. (x) Verey v. Wilmot, Lloyd & Welsby, Merc. Ca. 39. (y) Browning v. Stallard, 5 Taunt. 450. See Oldfield v. Lowe, 9 B. & C. 73. (z) Mines v. Sculthorpe, 2 Campb. 215. |