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wiienmain- future day is fixed for payment, and default is then made(j'); or, where the vendee has agreed to pay according to a particular arrangement (though not otherwise binding upon him), which he afterwards fails to do (&). And, where nothing is specified by the contract as to the relative times of delivery and payment, it will be intended that the vendee ought to pay the price before he is entitled to possession (/). Blackstone says, "If a man agrees 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" (m). Even, where part has been delivered to a sub-vendee, trover cannot be maintained for the residue, without paying the price and the warehouse dues, if it do not appear that, by the transfer of part, the whole was intended to be delivered(n). Where the agreement was, that the goods should remain in the vendor's

(i) Bloxham v. Morley, 4 B. & C. 951.

(k) Norris v. Williams, 1 Cr. & Mees. 842.

(Z)See per Bayley, B., 2 Cr. & Mees. 511. But if the vendor takes a note in payment and consents to allow the goods to remain on his premises, the purchaser may support trover on his refusal to give them up; Atkinson v. Barnes, Lofft, 325.

(m) 2 Comm. p. 447.

(n) Miles v. Gorton, 2 Cr. & Mees, 504; S. C. 4 Tyrwh. 295. See Dixon v. Yates, 5 B. & Ad. 313, 341, 342; supra. Or, there may be circumstances to show that the delivery was intended to be qualified and conditional only; see per Lord Tenterden, C. J.i and Bayley, J., 8 B. & C. 619, 621.

hands until they were paid for, it was held, that, on when mainthe bankruptcy of the purchaser, the assignees could not maintain trover without payment or tender of the price (0). So, where it had been originally agreed that the duties were to be paid by the purchaser, it was held that the assignees on his bankruptcy could not maintain trover without such payment (p).

It may then be laid down, that, in general, the purchaser cannot maintain trover without a payment or tender of all the expenses to which he is liable (q): if, however, by the express terms of the agreement, the delivery is to take place immediately, or if the day of delivery is expressed to precede the time of payment, he may bring trover on the default of delivery, without paying or tendering the price (r).

(o) Bloxham v. Sanders, 4 B. & C. 941; Bloxham v. Morley, id. 951.

(p) Winks v. Hassell, 9 B. & C. 372; S. C. Dan. & Lloyd, Merc. Ca. 312.

(q) Holderness v. Shachels, 8 B. & C. 612. The action in this case, however, was not between vendee and vendor.

(r) See Shep. Touchst. 224, 5; 2 Stark. Ev. p. 889; Dyer, 30 a; Anon., Comb. 381; Crawshay V. Homfray, \ B. & A. 52, per Holroyd, J.

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CHAP. III.

OF ACTIONS FOUNDED ON WARRANTY AND DECEIT.

Where the vendor is guilty of a breach of warranty, the purchaser may bring an action of assumpsit or case to recover damages for such nonfeasance or misfeasance (a): or, if the vendor has been guilty of deceit in the sale, or has made a false representation, by which, although not amounting to a warranty, the purchaser is damnified, he may bring an action on the case for the deceit (b): or, if the deceit or breach of warranty be under such circumstances as to render it competent for the purchaser to rescind the contract, he may bring an action for money had and received to recover back the price paid, as on a failure of the consideration (c).

CASE FOR DECEIT.

Where the vendor has made a false affirmation concerning the chattel sold, which does not

(a) See below, p. 334.

(6) See below.

(c) See below, p. 327.

amount to a warranty, the vendee may bring an when

. . mainiain

action on the case for deceit, or in the nature of able.
deceit; and this form of action may be supported
in several cases where no action of warranty would
lie. Thus, it is reported in an old case (d), that
the declaration had been laid on a warranty to
deliver merchantable commodities, whereas defen-
dant had delivered dirty ashes instead; yet the
plaintiff, being unable to prove a warranty, was
afterwards forced to declare in deceit, and recovered
100/. damages therein.

To support the action, the plaintiff mustprove not only that the vendor made therepresentation/c&e/y, but also that he knew it: the falsity of the representation, and the scienter on the part of the defendant, must concur in order to constitute fraud in law.

1. What false representation will support the action.

The action may be supported against the vendor, for falsely affirming that he had a title to the goods and a right to sell them, without any express warranty of good title (e). So, it lies for selling a counterfeit jewel, knowing it to be such (/); or, .

(d) Beningsage v. Ralplison, 2 Show. 250.

(e) Crosse v. Gardner, 1 Show. 68; Turner v. Brent, 12 Mod. 243; S. C. Comb. 142; Springwell v. Allen, Aleyn, 91, 2 East, 443, n.; Anon., Moore, 467; Kenrick v. Burges, Moore, 126. See Selw. N. P. 652 (8th Ed.); Bull. N. P. 30.

(J) See Southern v. How, Cro. Jac. 468; S. C. Bridgm. 125; Poph. 143; 2 Rol. 5.

Y

When maintainable.

Although action on warranty might not lie.

for selling corrupt wines or victuals (g); or, for delivering ashes instead of merchantable commodities (A); or, for selling in short and defective measures (i). So, deceit will lie, if a merchant sells cloth that he knows to be badly fulled (/i); or, if a clothier sells bad cloths, upon which he puts the mark of another who makes good cloths (7). And if the vendor is guilty of deceit, the plaintiff is not prevented from maintaining the action, although the agreement were, that, if he objected to the chattel, it should be exchanged for another(ra).

Again, where the vendor has made false representations, although there may have been a written memorandum of the agreement, in which such representations are not embodied, the purchaser

(g) Rol. Abr. 95; Bac. Abr. Fraud, A.; Vin. Abr. Actions (P. b) 1.

(k) Beningsage v. Ralphson, 2 Show. 250.

(j) Miles v. Dell, 3 Stark. N. P. C. 23, 25. The plaintiff, however, was nonsuited, because, as the declaration was framed, it only appeared, that the seller had not delivered the whole quantity agreed upon, not that he had fraudulently delivered a less quantity as and for the stipulated quantity.

(k) Com. Dig. Action on the Case for a Deceipt, A. 8; Vin. Abr. Actions (P. b) 1,2, 3.

(/) Com. Dig. Action, %c. A. 9; Cro. Jac. 471, and Poph. 144, per Doderidge, J.

(m) Wallace v. Jarman, 2 Stark. N. P. C. 162. Lord Ellenborough, C. J. said, that such agreement was collateral: and, if the purchaser was tied down thereby from bringing the action, he might have no remedy; for the vendor might give a worthless article on each successive exchange. And see Hamer v. Alexander, 2 N. R. 241.

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