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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).



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.
(6) Chap. ii.
(c) Ob Warranty, And Deceit, Chap. iii.

Proof. 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).

Assent of The plaintiff must prove that the contract wras 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.

(6) 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.

completed by acceptance of the offer(rf). For, Assent of 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.

In an action for not delivering, the plaintiff must Perform

ancc of conprOVe that he has performed all that ought to be dittoTM

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(/). 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. Coram. 447; Morton v. Lamb, 7 T. R. 125; Cowper v. Andrews, Hob. 41.

(/) Parker v. Rowlings, 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.

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

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 (z). 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(/). 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 («), or by his agent or servant (o), is evidence in support of the averment that plaintiff was ready and willing.

Breach. 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. PI. 289.

(I) Bowdell v. Parsons, 10 East, 859.

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

(b) WUks 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.

if the vendee wishes to insist, in support of his Breach. case, that the ordinary construction of the terms is varied by mercantile usage, the declaration ought to contain proper averments to that effect; otherwise the words will be construed by the Court according to their usual acceptation. Thus, where the agreement was, that the defendant should sell, and the plaintiff should purchase, "all the naphtha that the defendant should make during the term of two years then next ensuing, say from 1000 to 1200 gallons per month," the Court held, that, in the absence of proper averments in the declaration attributing to the words any other sense than that which they naturally bear, the contract, must be literally construed. Accordingly it was determined that the agreement in substance amounted to no more than, that the plaintiff should accept as much as the defendant might manufacture during the two years, and not that the defendant undertook at all events to manufacture the quantity expressed; therefore, the declaration, assigning as a breach that the defendant had not manufactured the quantity specified, was bad on the face of it(/>).

(p) Gwillim v. Daniell, 1 Cr. Mees. & R. 61. Had the contract, according to the above construction, really been broken, the breach assigned would have been, " that defendant had only delivered so many gallons per month, whereas he had manufactured more." To support the breach in the text, the plaintiff ought to have explained the meaning of the word "say," and to have

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