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from the plaintiff by the same mode of convey- Delivery, ance (J). And it is immaterial whether the carrier was to be paid by the vendor or not (m). But if the carrier was, in fact, in the situation of the vendors agent, a delivery to him is not sufficient to charge the purchaser, unless the goods are afterwards delivered safely into the custody of the latter (n).
Where the purchaser has given a general order General dithat the goods should be sent by a carrier, reasonable compliance on the part of the vendor is sufficient; as, where the vendor, intending to forward the goods by the earliest vessel, sent advices to the purchaser to that effect, but afterwards finding that the vessel was fully laden, sent them by the next(o). However, in general, it is the vendor's duty to adhere as strictly as possible to the terms of the order given by the consignee; therefore, where the latter expected that the consignment would be shipped direct from the port at which the consignor carried on his trade as a merchant, and which was the usual shipping port, but the consignment was in fact sent overland to another port, and shipped there, it was held that the liability of the consignor was not discharged until the shipment at the latter port (/?). And in all
(0 Hart v. Sattley, 3 Campb. 528.
(w) King v. Meredith, 2 Campb. 639.
(n) Gingcll v. Glasscock, 8 Bingh. 86.
(o) Cooke v. Ludlow, 2 N. R. 119.
(p) Ullock v. Rcddekin, Dan. & Lloyd, Merc. Ca. 6.
DeHTerj. cases where the goods are directed to be sent by a carrier, it is the vendor's implied duty to do everything necessary to secure the carrier's responsibility: therefore, if the goods have never reached the defendant, and if, through the omission of the plaintiff the defendant is deprived of his remedy over against the carrier, the plaintiff cannot recover the price (q). But the vendor may be excused from performing what otherwise would have been his duty, if the omission is warranted by the course of dealing between the parties (r). It may be observed that some recent cases seem to decide, at least in reference to the Statute of Frauds, that there must be a more unequivocal assent, on the part of the purchaser, than the older cases required, to make the delivery to a carrier operate as a delivery to, and acceptance by, the purchaser himself (£.
III. AMOUNT OF DAMAGES.
Damages. The vendor must give some proof of the value of the goods, and the damages he has sustained (t). Where the quantum of damages, in an action for
(g) Clarke v. Hutchins, 14 East, 475. In the case of Cothay v. Tute, reported 3 Campb. 129, decided at Nisi Prius within a month after Clarke v. Hutchins, Lord Ellenborough appears to have ruled directly contrary to his judgment in the latter case. Qu.?
(r) Goom v. Jackson, 5 Esp. 11 %.
(s) Anderson v. Hodgson, 5 Price, 630; Acebal v. Levy, 10 Bingh. 376. Supra, p. 64.
(/) Hodder v. Saunders, 2 Show. 86.
goods sold, depends on the construction of a mer- Damages, cantile instrument, it is a question for the consideration of the jury; as, whether discount is payable on the whole purchase-money, or on that sum minus the duty(w); or, whether freight is chargeable on the net weight of goods as ascertained at the king's landing scales, or according to the weights expressed in the bill of lading (x).
In computing the amount which the vendor is entitled to recover, the whole of the original contract must be resorted to; thus, where it was agreed that the vendee should pay one-fifth, and that the plaintiff should look to the correspondents abroad (to whom the goods had been consigned for resale), for payment of the residue, it was held that the vendee was liable for the difference on the loss arising from the resale of the remaining fourfiahs(y).
Of evidence of bad quality in reduction of damages.
It is frequently an important consideration, in Evidence of what cases the defendant, in an action for goods sold, may give evidence of the bad quality of the goods in reduction of damages. This maybe considered in three different cases:—1. Where there has been no stipulated price.—2. Where there has
(«) Smith v. Blandy, Ry. & Moo. 260. See Haig v. Napier, 1 Dow, 255. (*) Geraldes v. Donison, Holt, N. P. C. 346. (y) Hoffman v. Heyman, 1 B. & C. 7; S. C. 2 D. & R. 74.
Damages, been a stipulated price, and also a warranty, or a special contract as to quality.—3. Where there has been a stipulated price, and no warranty or contract as to quality.
Otu/uan- 1. Where there has been no stipulated price, and the plaintiff sues on the quantum meruit only, he must give express evidence of the value, and the purchaser will be at liberty to give in evidence any circumstance tending to show that they were of less value than that contended for, or even that they were of no value at all (z). If the plaintiff gives proof of delivery merely, and none of value, it will be presumed that the goods furnished were the least valuable commodity in which hedealt(a). But if he gives evidence of the apparent value at the time of sale, and no fraud can be proved, he will be entitled to recover according to such value, although the article at the time of the trial may turn out worthless (U). As the plaintiff, by relying on the quantum valebant, affords the defendant an opportunity of alleging any circumstance in mitigation, he must be prepared to meet such proof; and, therefore, if the defendant can show that the Damages, article was utterly unserviceable and valueless, the plaintiff cannot recover (c).
(z) See Rose. Ev. 219.
(a) Clunnes v. Pezzy, 1 Campb. 8. Because the presumption in such case is in favour of the defendant, and the onus of proof, therefore, on the plaintiff: but, where the presumption is in favour of the plaintiff, the measure of damages would be according to the most valuable commodity; Armory v. Delamorie, 1 Stra. 505. See 1 Campb. 8, n.
(b) Bluett v. Osborne, 1 Stark. N. P. C. 384.
2. Where there has been a stipulated price, and where stu also a warranty, or a special contract as to the p"ice!and quality of the goods, it is still open to the defend- to quafit" ant to reduce the damages by showing that the quality is not conformable to the contract; for the specific sum is to be given only for the specific quality, and if the plaintiff has not performed what he engaged to do, he cannot call for performance on the part of the defendant. This is now fully decided (d); although it was formerly held, that, even where there was an express warranty not complied with, it was no defence to an action for the stipulated price, but that the defendant's remedy was by a cross action (e). The breach of
(c) Basten v. Butter, 7 East, 479; Duffit v. James, cited
7 East, 480; Farnsworth v. Garrard, 1 Campb. 38.
(d) Street v. Blat/, 2 B. & Adol. 464; Allen v. Cameron,
8 Tyrwh. 907; S. C. 1 Cr. & Mees. 832; Chapel v. Hickes, 2 Cr. & M. 214; S. C. 4 Tyrwh. 43; King v. Boston, cited 7 East, 481, n. See the observations and judgment of the Court in Basten v. Butter, 7 East, 479 et seq. See Thornton v. Place, 1 M. & Rob. 218.
(e) Broom v. Davis, cited 7 East, 480, n.; Cormack v. Gillies, ib. 481; Morgan v. Richardson, ib. 482, n. It may be observed that the question is not affected by the subject of conditions precedent; because, although the breach of warranty might have been pleaded in bar to an action for not accepting, on the ground of the vendor's non-performance, yet, by accepting the goods, the defendant waives the condition. Fid. supra, p. 230, 235.