THE LAW

OF

CONTRACTS AND PROMISES.

PART THE SECOND.

OF THE SUBJECT MATTER OF CONTRACTS
AND PROMISES.

CONTENTS.

I.

OF Contracts for the Sale and Delivery of Goods, &c., And of the Statute of Frauds Relating thereto; and also of Warranties by Sample or otherwise.

II.

OF Guaranties Or Promises to be Answerable for the Debt or Default of Another; And of the Statute of Frauds Relating thereto.

III.

OF Contracts For Services and Works.

IV.

ON Promises To Pay over Money Had and Received to the Use of Another; And in what Cases an Action lies for the Recovery thereof.

V.

ON Promises To Pay Money Lent and Advanced.

VI.

ON Promises To Pay for Money Paid, Laid out, and Expended to and for the Use of Another.

VII.

ON Promises To Pay Money Due upon an Account stated.

VIII.

ON Promises To Pay Interest; And in what Cases it is Recoverable.

IX.

OF Contracts To Accept or Transfer Public Stock.

X.

OF Agreements Not to carry on Trade within certaim

Limits.
XI.

OF Agreements For the Sale or Relinquishment
of Offices, &c.

XII.

OF Contracts To Marry; And to Pay Money in Consi

deration of Marriage; And of the Statute of Frauds upon the latter Contract.

PART THE SECOND.

CHAPTER I.

OF CONTRACTS FOR THE SALE OF GOODS, &c.

S this chapter will necessarily embrace a great variety of subjects, I propose to consider them in the following order; viz.

1. OF THE GENERAL RULES OF LAW RELATING TO CONTRACTS FOR THE SALE AND DELIVERY OF GOODS; AND OF GAMBLING SPECULATIONS UNDER COLOUR OF A SALE OF GOODS.

2. OF THE STATUTE OF FRAUDS RELATING TO CONTRACTS FOR THE SALE OF GOODS.

3. OF BOUGHT and sold NOTES MADE BY BROKers.

4. OF ABSOLUTE AND CONDITIONAL SALES, OR PARTICULAR STIPULATIONS ANNexed.

5. OF WARRANTIES BY SAMPLE AND OTHERWISE; AND OF DECEIT IN THe sale of goODS, &c.

6. OF SALE AND RETURN.

7. OF SALE AND EXCHANGE.

8. OF BARGAIN AND SALE OF GOODS WITHOUT DELIVERY. 9. OF SALES BY AUCTION.

10. OF THE DELIVERY UPON A SALE of goods, either to THE VENDEE PERSONALLY, OR AT HIS PREMISES, OR TO A PARTICULAR CARRIER, WHARF, OR OTHER PLACE; AND AT WHOSE RISK THE GOODS ARE WHILST IN THEIR TRANSIT, &c.

11. WHEN THE PROPERTY IN GOODS SOLD IS VESTED IN THE BUYER; AND OF THE SELLER'S LIEN OR RIGHT TO STOP

THEM IN TRANSITU.

12. OF THE SALE OF GOODS BY ASSIGNMENT OF A BILL OF

LADING.

13. OF SALES IN MARKET OVERT.

14. of a sale and delIVERY OF GOODS EFFECTED BY MEANS of fraud or SWINDLING; AND OF THE SELLER'S RIGHT

TO FOLLOW AND SEIZE THEM.

15. OF THE sale of smuggled goods, or of obscene and LIBELLOUS PRINTS, &c.

16. of CREDIT, AND THE TIME AND MODE OF PAYMENT; AND IN WHAT CASES PAYMENT MAY BE RESISTED, OR THE CONTRACT PRICE REDUCED TO A QUANTUM VALebant.

1. OF THE GENERAL RULES OF LAW RELATING TO CONTRACTS FOR THE SALE OF GOODS; AND OF GAMBLING SPECULATIONS UNDER COLOUR OF A SALE.

In Sheppard's Touchstone, (a) the law is said to be, “that if a man by word of mouth sell to me his horse, or any other thing, and I give him or promise him nothing for it, this is void, and will not alter the property of the thing sold. But if one sell me a horse or any other thing for money, or any other valuable consideration, and the same thing is to be delivered to me at a day certain, and by our agreement a day is set for the payment of the money; or all or part of the money is paid in hand; or I give earnest-money (albeit it be but a penny) to the seller; or I take the thing bought by agreement into my possession, where no money is paid, earnest given, or day set for the payment: in all these cases there is a good bargain and sale of the thing to alter the property thereof; and in the first case, I may have an action for the thing, and the seller for his money: in the second case, I may sue for and recover the thing bought: in the third, I may sue for the thing bought, and the seller for the residue of the money: in the fourth case, where earnest is given we may have reciprocal remedies one against another; and in the last case the seller may sue for his money." Again it is said, in Noy's Maxims, (b) " If I sell my horse for money, I may keep him until I am paid; but I cannot have an action of debt until he be delivered; yet the property of the horse is by the bargain in the bargainor or buyer: but if he do presently tender me my money, and I do refuse it, he may take the horse, or have an action of detainment.

(a) Page 224.

(b) Page 88. See also 7 East Rep. 571.

And if the horse die in my stable between my bargain and the delivery, I may have an action of debt for my money; because, by the bargain, the property was in the buyer." There is, however, this diversity, when the day of payment is limited, and when not in the first case, the contract is good immediately, and an action lies upon it without payment; but in the other not so: as if a man buy of a draper twenty yards of cloth, the bargain is void if he do not pay the money at the price agreed upon immediately; but if the day of payment be appointed by agreement of the parties, in that case one shall have his action for the money, and the other for not delivering the cloth. (c) So, if two are agreed upon the price, and the buyer departs without tendering the money, and comes the next day and tenders it, the other may refuse; for he is not bound to wait, unless a day of payment was agreed between them.'(d) And where A. having proposed to sell goods to B., gave him a certain time, at his request, to determine whether he would buy them or not; B. within the time determined to buy them, and gave notice thereof to A.; yet A. was not liable to an action for not delivering them; for B. not being bound by the original contract, it was held there was no consideration to bind A. Thus, in the case of Cooke v. Oxley, (e) which was an action of assumpsit; the declaration stated, that on, &c. a certain discourse was had, &c. concerning the buying of 266 hogsheads of tobacco; and in that discourse the defendant proposed to the plaintiff that the former should sell and deliver to the latter the said 266 hogsheads (at a certain price); whereupon the plaintiff desired the defendant to give him (the plaintiff) time to agree to or dissent from the proposal till the hour of four in the afternoon of that day, to which the defendant agreed; and thereupon the defendant proposed to the plaintiff to sell and deliver the same upon the terms aforesaid, if the plaintiff would agree to purchase them upon the terms aforesaid, and would give notice thereof to the defendant before the hour of four in the afternoon of that day; the plaintiff averred that he did agree to purchase the same upon the terms aforesaid, and did give notice thereof to the defendant before the hour of four in the afternoon of that day; he also averred that he requested the defendant to deliver to him the said hogsheads, and offered to pay to the defendant the said price for the same, yet that the defendant did not, &c. Upon this declaration the court determined, that the action could not be sustained, there being no consideration for the promise.

Lord Kenyon Ch. J. said, "Nothing can be clearer than that, at the time of entering into this contract, the engagement was all on one side;

(c) Per curiam, Dy. 30. a.

(d) Bro. Contract, pl. 26. 5 Vin, Abr.

515.

(e) 3 Term Rep. 653.