If A., without authority, makes a contract in writing for the purchase of goods by B., and B. subsequently ratifies the contract, such ratification renders the act of A. valid, as an agent within the statute of frauds. Maclean v. Dunn, 4 Bingh. 722.

A broker is the agent of both parties, and may bind them by signing the same contract on behalf of buyer and seller. Where bought and sold notes have been delivered by the broker to the parties, those notes, and not the entry by the broker in his book, are the proper evidence of the contract; Thornton v. Meux, 1 M. and M. 43; and such notes are admissible, though the entry in the broker's book has never been signed by him. Goom v. Aflalo, 6 B. and C. 117, 9 D. and R. 148, S. C. If the bought and sold notes materially differ, there will be no valid contract. Grant v. Fletcher, 5 B. and C. 436. Thornton v. Meux, 1 M. and M. 43. A bought note signed by the broker, and delivered to the purchaser, is not a sufficient note or memorandum within the statute. Smith v. Sparrow, 2 C. and P. 544; but see Dickinson v. Lilwal, 1 Stark. 129. If no bought and sold notes have been made out, the entry in the broker's book, signed by him, will, as it seems, be evidence of the contract. Grant v. Fletcher, 5 B. and C. 436. Henderson v. Barnewall, 1 Y. and J. 387. Where the broker, in the bought and sold notes, described the seller's firm as A., B., and C.; but the firm had, in fact, unknown to the broker, been changed to A., D., and E., it was held that A., D., and E. might sue on the contract, it not appearing that the defendant had been prejudiced or excluded from a set-off, and there being some evidence of his having treated the contract as subsisting with the plaintiffs. Michell v. Lapage, Holt, 258. A material alteration in the sale note, by the broker, at the instance of the seller, after the bargain made, and without the consent of the purchaser, will preclude the seller from recovering. Powell v. Divett, 15 East, 29.

Performance of conditions precedent.] Where it is the duty of the plaintiff to tender the goods to the defendant, such tender must be averred and proved. So in an action for not accepting stock, the plaintiff must show that he has done everything on his part towards the execution of the contract, by proving either a tender or refusal, or that he waited at the bank till the final close of the transfer books, on the day when the stock was to be transferred. Bordenave v. Gregory, 5 East, 107. But where, by the terms of the contract, it is incumbent on the purchaser to fetch away the goods, the averment and proof of a tender seem to be unnecessary, and it will be sufficient for the plaintiff to aver and prove a readiness to deliver. See Rawson v. Johnson, 1 East. 203. Wilks v. Atkinson, 1 Marsh. 412, post, p. 209.

Damages. In an action for not accepting goods to be paid for by a bill, the plaintiff is entitled to recover interest from the time the bill, if given, would have become due. Boyce v. Warburton. 2 Campb. 480. The difference between the contract price and the market price on the day the contract was broken is the measure of damages. Boorman v. Nash, 9 B. and C. 145.

Goods bargained and sold.] If the plaintiff should fail on the special count, he may resort to the count for goods bargained and sold, and will be entitled to recover the whole value of the goods. Hankey v. Smith, Peake, 42 (n). Where goods in bulk are sold at so much per ton, an action for goods bargained and sold will not lie before they have been weighed. Per Littledale, J., Simmons v. Swift, 5 B. and C. 857. In order to maintain a count for goods bargained and sold it must appear that the property passed, therefore where a machine is ordered to be made, the maker, having completed it, cannot sue for goods bargained and sold if there is no appropriation of the particular machine assented to by the buyer. Atkinson v. Bell, 8 B. and C. 277. In one case the vendor was allowed to recover on a count for goods bargained and sold, although before action brought he had resold the goods, on the ground that the purchaser might maintain an action of trover for them. Mertens v. Adcock, 4 Esp. 251. But in another case it was ruled by Lord Kenyon, that the plaintiff having resold the goods, had, by that act, abandoned his right to insist upon the defendant taking his goods, and could not recover on a count for goods bargained and sold; Hoare v. Milner, Peake, 42, a (n); and in a late case, where, by the contract, the vendor had power to resell, the Court of Common Pleas doubted whether such an action could be maintained, after a resale; for by the resale the seller rescinds the contract, and shows his dissent to the contract of bargain and sale. Hagedorn v. Laing, 6 Taunt. 166; see also James v. Shore, 1 Stark. 430, Greaves v. Ashlin, 3 Campb. 426, Langfort v. Tiler, 1 Sulk. 113. But it is now decided that an action for not accepting lies against a purchaser who refuses to take goods, although the vendor has resold them. Maclean v. Dunn, 4 Bingk. 722.

Defence.

If the bulk of goods sold by sample does not accord with the sample, the defendant may insist on it as a defence, although it be proved that the common mode of settling disputes of this kind, is by making an allowance for the difference. Hibbert v. Shee, 1 Campb. 113. So he may show that the goods do not correspond with the kind mentioned in the contract. Tye v. Tynmure, 3 Campb. 462. But where, upon the sale of goods, the seller produces a sample, and represents

that the bulk is of equal quality, and there is a sale note which does not refer to the sample, it is no defence that the goods are not equal to the sample. Meyer v. Ewerth, 4 Campb. 22; see also Pickering v. Dowson, 4 Taunt. 779, Kain v. Old, 2 B. and C. 634. But under a contract to purchase 300 tons of Campeachy logwood, at 35l. per ton, to be of real merchantable quality (such as might be determined to be otherwise by impartial judges, to be rejected), it was held that the vendee was bound to take so much of the wood tendered, as turned out to be of the sort described, at the contract price, though it appeared at the time that a part, which was afterwards ascertained to be 16 tons, was of a different and inferior description. Graham v. Jackson, 1 East, 498. Where a joint order is given for several articles, at several prices, the contract is entire, and the purchaser may refuse to accept one, unless the others are delivered. Champion v. Short, 1 Campb. 53. Baldey v. Parker, 2 B. and C. 47; and see infra. The purchaser by sample has a right to inspect the whole in bulk, at any proper and convenient time, and if the seller refuses to show it, may rescind the contract. Lorymer v. Smith, 1 B. and C. 1. See Parker v. Palmer, 4 B. and A. 387. If a man sell goods to be delivered on a future day, and neither has the goods at the time, nor has entered into any prior contract to buy them, nor has any reasonable expectation of receiving them by consignment, but means to go into the market and to buy the goods which he has contracted to deliver, he cannot maintain an action upon such a contract. Per Abbott, C. J., Bryan v. R. and M. 387.

Lewis,

ASSUMPSIT FOR NOT DELIVERING GOODS.

In assumpsit against the vendor of goods, for not delivering them, the plaintiff must prove the contract and the breach, ante, p. 204, the performance of all conditions precedent on his part, and the amount of damages.

Where A. by letter offered to sell to B. certain goods, receiving an answer by course of post, and the letter being misdirected by A. the answer notifying the acceptance of the offer arrived two days later than it ought to have done, and on the day following that when it should have arrived, had the first letter been rightly directed, A. sold the goods to a third person, it was held that there was a contract binding the parties from the moment the offer was accepted, and that B. was entitled to recover against A. in an action for the non-delivery. Adams v. Lindsell, 1 B. and A. 681. But in general, where an offer is made, the party who makes it may retract it at any time before acceptance by the other party. Cooke v. Oxley,

3 T. R. 653. Routledge v. Grant, 4 Bingh. 653. So the bidder at an auction may retract his bidding before the hammer is down. Payne v. Cave, 3 T. R. 148.

The terms of a contract were as follows:-" 1st April. Sold W. P. one bale of sponge at, &c., and bought of him yellow ochre at, &c., the value to be delivered on or before the 24th inst. J. R." In an action by W. P. for not delivering the sponge, it was held that the delivery of the ochre on the 24th, was a condition precedent to the plaintiff's right of action. Parker v. Rawlings, 4 Bingh. 280.

In support of the averment that the plaintiff was ready and willing to accept the goods, and to pay for the same, it will not be necessary to prove a tender of the money, it is sufficient to aver that the plaintiff was ready and willing to receive and pay for the goods, Rawson v. Johnson, 1 East, 203, Waterhouse v. Skinner, 2 B. and P. 447, and a demand of the goods seems to be sufficient evidence that the plaintiff was ready and willing. Wilks v. Atkinson, 1 Marsh. 412. Levy v. Lord Herbert, 7 Taunt. 318. And it is sufficient if the demand was by the plaintiff's servant. Squier v. Hunt, 3 Price, 68.

In case the goods are to be delivered at a future day, the damages are, the difference between the contract price and the price of the goods at or about the day when they ought to have been delivered. Gainsford v. Carroll, 2 B. and C. 624. Leigh v. Paterson, 8 Taunt. 540. But in an action for not replacing stock at a given day, the plaintiff is entitled to recover according to the price on the day of the trial. Shepherd v. Johnson, 2 East, 211.

ASSUMPSIT FOR GOODS SOLD AND DELIVERED.

The plaintiff in an action for goods sold and delivered must prove, 1. The contract of sale; 2. The delivery of the goods; 3. The value where there is no price agreed upon. In general, proof of the delivery of the goods to, and receipt of them by the defendant, is primâ facie evidence of the contract, and supersedes the proof of an order. Bennett v. Henderson. 2 Stark. 550.

The contract of sale.] In some cases, where goods have been wrongfully taken, the plaintiff may waive the tort, and sue on the implied contract. Thus where the defendant by fraud procured the plaintiff to sell goods to an insolvent, and afterwards got them into his own possession, he was held liable in an action for goods sold. Hill v. Perrot, 3 Taunt. 274, recog. Abbotts v. Barry, 2 B. and B. 369; but see B. N. P. 130. Bennett v. Francis, 2 B. and P. 554. So where a father fraudu

lently represented that he was about to relinquish his business in favour of his son, to whom (being a minor) goods were, upon such representation, supplied, which the father took into his own hands, he was held liable for goods sold and delivered. Biddle v. Levy, 1 Stark. 20; see also Bennett v. Francis, 4 Esp. 30, 2 B. and P. 550, S. C. Read v. Hutchinson, 3 Campb. 352. But where the plaintiff sold to the defendant beer in casks, giving him notice that unless he returned the casks in a fortnight he would be considered the purchaser, and the defendant omitted to return them, Lord Ellenborough held that the defendant was not liable on a count for goods sold and delivered. Lyons v. Barnes, 2 Stark. 39; but see Studdy v. Sanders, 5 B. and C. 628. Where the owner of property which has been taken away by another waives the tort, and elects to bring an action of assumpsit for the value, it is incumbent on him to show a clear and indisputable title to that property. Per Abbott, C. J., Lee v. Shore, 1 B. and C. 97.

The value of fixtures cannot be recovered under a count for goods sold and delivered; Lee v. Risdon, 7 Taunt. 188. 2 Mursh. 495, S. C.; nor the value of standing trees; Knowles v. Michel, 13 East, 249; see Smith v. Surman, 9 B. and C. 561; but the value of trees which the defendant has purchased, and felled, and carried away, may be recovered under a count for trees; sold and delivered. Bragg v. Cole, 6 B. Moore, 114. The value of growing crops may be recovered in a count for crops bargained and sold; Parker v. Staniland, 11 Eust, 362; and crops agreed to be taken by an in-coming from an outgoing tenant, may be recovered under a count for goods bargained and sold. Per Holroyd, J., Mayfield v. Wadsley, 3 B. and C. 364. See also Poulter v. Killingbeck, 1 B. and P. 397. Where a person builds a house for another, he is not entitled to reco ver the value of the materials under a count for goods sold and delivered. Cottrell v. Apsey, 6 Taunt. 322.

Where the contract was, that certain goods should be paid for partly in money and partly in buttons, Buller, J., held that the plaintiff could not recover under a count for goods sold, but should have declared specially. Harris v. Fowle, cited 1 H. B. 287. See also Talon v. West, Holt, 179; but see Hands v. Burton, 9 East, 349, supra. However, where A. agreed to give a horse in exchange for a horse of B. and a sum of money, and the horses were exchanged, but B. refused to pay the money, it was held that it might be recovered under the indebitatus count for horses sold and delivered, Sheldon v. Cox, 3 B. and C. 420. So in an action to recover the value of a gun, for which the defendant was to give another gun and fifteen guineas, Lord Ellenborough opinion, that upon the refusal of the purchaser to pay for the gun in that mode, a contract resulted to pay for it in money, and that the value might be recovered under a count for

was of