Factor's

Act.

When true

owner may recover.

therefore, where there were distinct accounts between the principal and the factor, and a balance was due to the latter on that particular account to which the goods pledged belonged, but the general balance was in favour of the principal, it was held, that the accounts could not be separated, that the factor therefore had no lien, and that the principal might recover in trover against the pawnee (1).

It is further provided (m), that the Act shall not prevent the true owner of the goods from recovering the price from the buyer, subject to any right of set-off on the part of the buyer against the factor or agent; nor from recovering the goods deposited or pledged, upon repayment of the money, or restoration of the negotiable instrument, advanced on the security thereof to the factor or agent, and upon payment of such further money, or restoration of such other negotiable instrument (if any), as may have been advanced by the factor or agent to the owner, or on payment of money equal to the amount of such instrument; nor from recovering from any person any balance remaining in his hands, as the produce of the sale of the goods after deducting the money or negotiable instrument advanced on the security thereof.

(1) Robertson v. Kensington, 5 Man. & Ry. 381; S. C. Lloyd & Welsby Merc. Ca. 187.

(m) 6 Geo. IV. c. 94, s. 6.

PART II.

RIGHTS AND REMEDIES OF VENDEE IN RESPECT OF VENDOR.

WHERE the vendor makes default in the delivery of the goods, the purchaser may bring Assumpsit on the special contract for not delivering (a); or, if the vendor detains the goods after the property and right of possession have vested absolutely in the purchaser, Trover (b) will lie to recover them. If there has been at the time of the sale a Warranty of the goods, which is afterwards broken, the purchaser may maintain an action for the breach (c).

CHAP. I.

ASSUMPSIT FOR NOT DELIVERING.

If the vendor refuses to perform the contract and to deliver the goods, the vendee may bring assumpsit for the non-delivery. To support such action, he must prove the assent of both parties to the contract; the terms of the contract as laid in

(a) Chap. i.

(b) Chap. ii.

(c) OF WARRANTY, AND DECEIT, Chap. iii.

Proof.

Assent of parties.

the declaration; his own performance of conditions precedent; and the breach by the vendor, and the damages which he has sustained by such non-performance (a).

The plaintiff must prove that the contract was completed by mutual consent. Thus, where the defendant merely proposed to sell and deliver the goods to the plaintiff upon certain terms, upon condition that the plaintiff would notify his acceptance of the terms within a certain period, it was held that, although the plaintiff accepted the offer within the period specified, he could not recover in an action for non-delivery, because, as the plaintiff was not bound by the original offer, there was no consideration to bind the defendant (b); and it is the same whether the defendant merely omitted to notify his subsequent ratification, or whether he performed some overt act of dissent, as by offering the goods to another person before the expiration of the period (c). But where the defendant offers by letter to sell goods, he is considered as renewing his offer every moment until the time at which the answer is to be sent, and then the contract is

(a) See above, p. 212-241, of the proof necessary to support an action by vendor for not accepting.

(b) Cooke v. Oxley, 3 T. R. 653.

(c) Head v. Diggon, 3 Man. & Ry. 97. See Routledge v. Grant, 4 Bingh. 653; Ellis v. Mortimer, 1 N. R. 257. Supra, p. 213.

For, Assent of

completed by acceptance of the offer(d). otherwise, no contract could be completed by post; since, if the defendant were not bound by his offer when accepted by the plaintiff until the answer was received, then the plaintiff ought not to be bound until after he had received the notification that the defendant had received his answer and assented to it; and so on ad infinitum.

the parties.

ance of con

ditions

precedent.

In an action for not delivering, the plaintiff must Perform prove that he has performed all that ought to be done on his part; as, payment or tender of the price. "If a man agree with another for goods at a certain price, he may not carry them away before he hath paid for them; for it is no sale without payment, unless the contrary be expressly agreed" (e). So, where the defendant undertook to deliver the goods in consideration of the delivery of other goods by the plaintiff, it was held, that an action could not be maintained by the plaintiff without averment and proof of performance of his part of the contract(ƒ). So, where the defendant has agreed to supply the goods at certain intervals, to be paid for on delivery, he will not be liable for refusing to supply on credit (g), although he may

(d) Adams v. Lindsell, 1 B. & A. 681.

(e) 2 Bl. Comm. 447; Morton v. Lamb, 7 T. R. 125; Cowper v. Andrews, Hob. 41.

(f) Parker v. Rawlings, 4 Bingh. 280; S. C. 12 B. Moore, 529. Of conditions precedent in general, see above, p. 230. (g) Withers v. Reynolds, 2 B. & Ad. 882.

X

Conditions have supplied part without insisting on readymoney payment (h).

precedent.

Breach.

Where the agreement was, to deliver the goods upon a selection of them by the vendee, he cannot recover without proving that he has made the selection (i). So, where the agreement was, to deliver generally, or upon request, a request to deliver must be proved to have been made (k); unless the vendor has by his own act dispensed with the necessity of such request, as, by reselling the goods, or otherwise incapacitating himself from performing his undertaking (1). But the plaintiff need not show that he has made a tender of the price it will be sufficient to aver that he was ready and willing to receive and pay for the goods (m). And a demand of the goods, whether made by the purchaser himself (n), or by his agent or servant(o), is evidence in support of the averment that plaintiff was ready and willing.

In giving proof of the breach of the contract, (h) Payne v. Shadbolt, 1 Campb. 427. Supra.

(i) Raynay v. Alexander, Yelv. 76; Selw. N. P. 113, (8th Ed.).

(k) Bach v. Owen, 5 T. R. 409; 1 Chit. Pl. 289.

(1) Bowdell v. Parsons, 10 East, 359.

(m) Rawson v. Johnson, 1 East, 203; Waterhouse v. Skinner, 2 B. & P. 447. See 6 East, 555, 560; 1 Wms'. Saund. Rep. 320 e, note 5.

(n) Wilks v. Atkinson, 6 Taunt. 11; S. C. 1 Marsh. 412; Levy v. Herbert, 7 Taunt. 314; S. C. 1 B. Moore, 56.

(o) Squier v. Hunt, 3 Price, 68.