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Breach. Where the agreement is to deliver on a certain

condition, and the condition (without any default on the part of the vendor) never comes to pass, he will not be liable for non-delivery^). But if the agreement to deliver was absolute and unqualified, the vendor will be liable for the breach, although he could not help the non-performance (r); for it is his own folly if he runs the risk of undertaking to perform an impossibility.

Damages. In an action upon a contract for not delivering goods, the measure of damages should be calculated according to the price of the goods at or about the day when they ought to have been delivered(s). Thus, in a very late case, where an action was brought for the non-delivery of a quantity of linseed, the damages were estimated according to the difference between the contract price, and the price at the time when the delivery ought to have taken place (t). And although the purchaser had advanced part of the price, it was held, that the Damage., quantum of damages ought only to be increased by the amount of such advance together with simple interest thereon, unless the plaintiff prove, that, under the circumstances, he has sustained special damages by the vendor's default (w).

shown that it was intended as a sort of warranty that defendant would at all events manufacture the quantity expressed.

(q) Boyd v. Siffkin, 2 Campb. 326; Ahwyn v. Pryor, 1 Ry. & M. 406; Idle v. Thornton, 3 Campb. 274; Howes v. Humble, 2 Campb. 327, n.; Hayiuard v. Scougall, 2 Campb. 56; Thornton v. Simpson, 6 Taunt. 556.

(r) Splidt v. Heath, 2 Campb. 57, n.; Atkinson v. Ritchie, 10 East, 530. See Worthy v. Wood, 6 T. R. 710; De Medeiros v. Hill, 5 C. & P. 182; Gosling v. Higgins, 1 Campb. 451.

(*) Gainsford v. Carroll, 2 B. & C. 624; S. C. 4 D. & R. 161; Leigh v. Paterson, 8 Taunt. 540; S. C. 2 B. Moore, 588.

(0 Startup v. Cortazzi, 2 Cr. Mees. & R. 165. For, if it had been delivered then, the plaintiff might have resold it.

But, in an action for not replacing stock on a particular day, the highest value during the time of the trial was taken as the standard in computing the amount of damages (x). For, in the case of a loan of stock, the borrower holds in his hands the money of the lender, and thereby prevents him from using it altogether; but, in other cases, the plaintiff has the money in his possession, and may purchase other goods of the like description and quality the very day after the contract is broken.

(it) S. C. At the trial Lord Abinger, C. B., directed the jury not to give speculative or vindictive damages; See 2 Cr. Mees. & R. 169.

(*) Shepherd v. Jackson, 2 East, 211; M'Arthur v. Seaforth, 2 Taunt. 257; Dowries v. Back, 1 Stark. N. P. C. 318; Harrison v. Harrison, 1 C. & P. 412.

CHAP. II.

TROVER BY VENDEE.

Right of In order to maintain an action of trover for the

possession

necessary to goods, the vendee must be able to prove, not only trover. that the property has vested in him, but also that he has the right of possession (a). "The right of property and the right of possession are distinct from each other; the right of property may be in one person, while the right of possession may be in another "(6).

The subject of the change of property in goods has been already considered, in reference to the subject of the Statute of Frauds(c), and in reference to the proof required by the vendor to support an action for goods sold and delivered (d) :— both of which are in some degree analogous to the present subject.

The property may vest in the purchaser, so as

(a) See per Bayley, J., 4 B. & C. 950.

(6) Per Bayley, J., 6 B. & C. 364. The right of property is vested in the buyer by the contract of sale; but the right of possession is not transferred to him until payment of the price. See 4 B. & C. 948.

(c) Supra, p. 57—67.

(H) Supra, p. 253—264.

to enable him to maintain trover, by a symbolical change of delivery of the goods (e), or by the vendor giving a piolM!r,ydelivery order, when the goods are in the custody of a warehouseman or other bailee (/), or by the indorsement, for valuable consideration, of a WestIndia Dock warrant(g), or a bill of lading(A).

The assignee of a bill of lading may maintain Assignment trover for the goods, though there had been a prior lading. consignment to one who has since become insolvent, provided that the vendor's right of stopping the goods was not determined at the time of the

(e) See Manton v. Moore, 7 T. R. 67.

(f) Tucker v. Ruston, 2 C. & P. 86; Howes v. Watson, 2 B. & C. 540; Holl v. Griffin, 3 M. & Scott, 732.—Supra.

(g) Spear v. Travers, 4 Campb. 251; Lucas v. Dorrien, 7 Taunt. 278. See above, p. 193, note (x).

(h) Haille v. Smith, 1 B. & P. 563; Wright v. Campbell, 4 Burr. 2046; Evans v. Marllett, 1 Ld. Raym. 271; Gumming v. Brown, 9 East, 506; S. C. 1 Campb. 104; Brown v. Healhcote, 1 Atk. 160; Lempriere v. Pasley, 2 T. R. 485. Where several bills of lading, all in effect to the same purport, have been signed by the captain, the party who first becomes legally possessed of one of the documents, without reference to the time when each was signed, is entitled to the consignment; Caldwell v. Ball, 1 T, R. 205; see id. 215.

A bill of lading is not negotiable by mere delivery without indorsement (Nix v. Olive, Abb. Shipp. 403); but it is immaterial whether the indorsement be in blank or to a particular person (Lickbarrow v. Mason, 1 H. Bl. 360; Haille v. Smith, 1 B. & P. 563). By the Factor's Act (6 Geo. IV. c. 94, s. 2), the person in possession of a bill of lading is to be deemed and taken to be the true owner of the goods &c. described therein, so as to give validity lo contracts without notice; See above, p. 298.

Bills of indorsement (i). But the property does not pass

lading. 1 1 I • 1 • •£

to enable the indorsee to maintain trover, it no consideration has been given (&); or if the indorsee had notice of a prior claim (7); or of circumstances which render the instrument not fairly and honestly assignable (m), as, where the indorsement was made by one partner in a firm without authority, the indorsee being privy to the misapplication («). So, the indorsement does not pass the property, where the bill of lading was signed and given before the cargo was put on board (o); or, where the indorsement was not made until after an unqualified delivery on board the vessel in favour of a third party (p); or, where it appears on the face of the bill of lading or the invoice, that the party indorsing was not entitled to the goods as owner, but had only received instructions to sell them as agent on the account of another (q). So it is, if the bill

(i) Morison v. Gray, 9 B. Moore, 484; S. C. 2 Biugh. 260. Supra, p. 188—209.

(k) Waring v. Cox, 1 Campb. 369; Tucker v. Humphery, I Bingh. 522; Fearon v. Bowers, 1 H. Bl. 364, n.

(I) Dick v. Lumsden, Peake, 189; Salomons v. Nissen, 2 T. R. 674; Wright v. Campbell, 4 Burr. 2051.

(m) See 9 East, 516; Holliday v. Mann, 2 C. & P. 509. See above, p. 196.

(») Smaith v. Burridge, 4 Taunt. 684.

(o) Osey v. Gardner, Holt, N. P. C. 405.

(p) Ogk v- Atkinson, 5 Taunt. 759. See per Gibbs, C. J-, Nathan v. Giles, 5 Taunt. 575; Thompson v. Trail, 2 C. & P. 334; S. C. 6 B. & C. 36.

(q) Selleck v. Smith, 3 Bingh. 603.

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