FOR NOT DELIVER SOLD. for clearing away the same,) and thereupon afterwards, and after the expiration of the said space of one month, and whilst the residue of the said lots of ING GOODS goods remained uncleared and unpaid for, as aforesaid, to wit, on, &c. (day of re-sale or about it,) at, &c. (venue) he the said plaintiff, according to the said conditions of sale, and in pursuance thereof, did re-sell the residue of the said lots of goods (so remaining uncleared and unpaid for as aforesaid,) that is to say, by public sale, at and for certain sums of money, amounting in the whole to a much less sum of money, to wit, the sum of £—, (any sum sufficient to cover the loss,) less than the amount of the said sum of money so as aforesaid bid by the said defendant for the same, and thereby there was a deficiency upon such re-sale to a large amount, to wit, to the amount of the said sum of £—, over and besides the charges attending such re-sale, amounting to a certain other sum of money, to wit, the sum of £— and making, together with the said sum of £, the sum of £-, of lawful money of Great Britain, of all which said several premises the said defendant afterwards, to wit, on the day and year last aforesaid, at, &c. (venue) had notice; and was then and there requested by the said plaintiff to pay him the said sum of £—, and which said sum of £-, he the said defendant then and there ought to have paid to the said plaintiff, according to the said conditions of sale, and his said promise and undertaking so by him in manner and form aforesaid made.-[Add other special counts, as any doubt in the case may suggest; also counts for goods bargained and sold, sold and delivered, and the money counts, account stated, and breach.] For that whereas heretofore, to wit, on, &c. at, &c. the said plaintiff at the For not despecial instance and request of the said *defendant bargained with the said livering, (1) See the old Forms, 1 Lil. Ent. 16 to 19.-1 Rich. C. P. 470, 542.-Plead. A. 135, 283.-Morg. 160, 161, 163, 165. Clift. 97, pl. 82.-Plow. 180.Herne, 131.-2 Wentw. 189; and the modern precedents and notes, post, 270, &c. A special count is necessary, 3 Price, 68. If there was a special written agreement, begin with a count thereon, stating mutual promises. See a form, 1 East, 203, which, with the addition of an averment of notice of the plaintiff's readiness to pay, will be found useful. It is advisable in most cases in one count to set out the whole contract; in a second, to state the contract to be to deliver on request, averring a particular request; and in a third count, to state the contract to be to deliver within a reasonable time, averring that a reasonable time has elapsed. In each count a readiness to pay the price must be alleged, 1 East, 203.-2 B. & P. 447.-2 Saund. 352, n.3. When the contract is to deliver generally, or on request, a special request by the plaintiff must be averred, 5 T. R. 409, or else it must be shown that the defendant has incapacitated himself from delivering the goods as by his having resold them or the like, sce 5 B. & Ald. 712.—1 D. & R. 361. S. C.-10 East, 359; or else that defendant has discharged the plaintiff from completing the sale. It is not necessary to set out more of the contract than relates to the breach. 3 Price, 68. Ante, vol. i. but the contract must be set out correctly, and a variance would be fatal, 2 Campb. 328. Ante, vol. i. An agreement to sell a certain quantity of goods, expected by a particular vessel, on arrival, is a conditional contract, dependent on the arrival of the goods. No action, therefore, will lie for the nondelivery of the goods, if the ship arrive without goods within a specified them, 2 Campb. 327, n. 3 Id. 274, S. P. So where time(). the agreement is to sell all the hemp not exceeding [269] three hundred tons, which shall be shipped by the agent of a particular concern, and the agent only ships seventy-one tons for the vendors, they are not liable to an action for non-delivery of the residue of the three hundred tons, 2 Camp. 56. But if the engagement be absolute that the goods shall be shipped, an action may be supported for neglecting to do so, from whatever cause the circumstance has arisen, 2 Campb. 57, n.-10 East, 530. Though there may have been a sufficient delivery of the goods within the Statute of Frauds, the vendors may, nevertheless, be liable to this action. Thus, where upon the purchase of wine, the vendor's clerk cut the spills from the casks, and marked them with the purchaser's initials, the delivery was held to have been sufficient to take the case out of the Statute of Frands, 1 Campb. 235, n. but the delivery not having been perfected, it was held to be no bar to an action for not delivering the goods according to contract, Id. ibid. A delivery of goods by the vendor, on behalf of the vendee, to a carrier not named by the vendee, he having given general directions to the vendor to send the goods by a carrier, is a delivery to the vendec, 3 B. & P. 582. Evidence.-If a written contract for the sale of goods specifies no time for delivering them, the defendant in this action cannot give parol evidence that it was a condition of sale, that the goods should be taken away immediately, or that by the usage of trade where goods sold, are to be delivered at a distant day, the time is always mentioned in the written contract, 3 Campb. 426. FOR NOT ING GOODS defendant, to buy of the said defendant, and the said defendant then and there sold to the said plaintiff a large quantity of goods, to wit, [ten loads of wheat,] at the rate or price of [£- for each and every load thereof(u)] [or, if no price [ *270 ] named, say, "at and for *a reasonable price,"] to be delivered by the said defendant to the said plaintiff [in a week then next following, at For not delivering goods at a particular place(z). (e),] and to be paid for by the said plaintiff to the said defendant on the delivery thereof as aforesaid; and in consideration thereof, and that the said plaintiff, at the like special instance and request of the said defendant, had then and there undertaken and faithfully promised the said defendant to accept and receive the said goods, and to pay him for the same at the rate or price aforesaid; he the said defendant undertook, and then and there faithfully promised the said plaintiff to deliver the said goods to the said plaintiff' as aforesaid; and although the said time for the delivery of the said goods as aforesaid, hath long since elapsed(w), and the said plaintiff hath always been ready and willing(x) to accept and receive the said goods, and to pay(y) for the same at the rate or price aforesaid, to wit, at, &c. (venue) aforesaid, whereof the said defendant hath always had notice; yet the said defendant, not regarding his said promise and undertaking, but contriving and intending to deceive and defraud the said plaintiff in this behalf did not nor would within the time aforesaid, or at any time afterwards, deliver the said goods, or any part thereof for the said plaintiff, at, &c. aforesaid, or elsewhere, but wholly neglected and refused so to do, whereby the said plaintiff hath lost and been deprived of divers great gains and profits, which might and otherwise would have arisen and accrued to him from the delivery of the said goods to the said plaintiff as aforesaid, to wit, at, &c. (venue) aforesaid.— [Add one or more special counts, varying the statement—and one count like that in 1 East, 203, money had and received, and an account stated.] For that whereas heretofore, to wit, on, &c. (day of sale or about il) at, &c. the said plaintiff, at the special instance and request of the said defendant, bargained for and agreed to buy of the said defendant certain goods, to wit, [-quarters of oats,] upon the following terms, that is to say, that [here set out the terms of the contract of sale, and which may be thus:] [such oats should be of fair quality and color, and of the weight of pounds per bushel, and should be delivered for the said plaintiff within a reasonable time, free of expense, to him on board some ship or vessel in the river (u) The price of the goods must be stated, 13 East, 102.-2 B. & P. 425. Where there is a given latitude as to the price, that the goods shall not exceed such a sum, the declaration may aver that it was for a reasonable price, 6 Taunt. 108. (v) This must be stated accurately. Where on an agreement to sell goods on the arrival of a ship, a variance was made in the name of a ship, it was held fatal, 2 Campb. 328. The damages are to be calculated according to the market price of the same kind of goods on the day on which the contract ought to have been performed, 2 B. & C. 624.-4 D. & R. 161.-8 Taunt. 540.-9 B. & Cres. 145. (w) If the contract be to deliver goods gener. ally and not in any named time, a special request to deliver must be averred, 5 T. R. 409, or else it -, to be carried and must be shown defendant has incapacitated himself from completing the agreement by reselling, &c. 10 East, 359-5 B. & Ald. 712.—1 D. & R. 361, S. C. (x) In support of the averment that the plaintiff was ready and willing to accept the goods and pay for the same, it will not be necessary to prove a tender of the money, 1 East, 203.-2 B. & P. 447. A demand of delivery would be sufficient proof of this readiness, 3 Price, 68.-1 Marsh. 412.—7 Taunt. 318. (y) It is not necessary to state or prove an offer to pay, 1 J. B. Moore, 56.-1 East, 203.-1 Marsh. 512-2 B. & P. 447. (z) Sce the notes to the preceding form, ante, 268. conveyed in such ship or vessel from thence to FOR NOT DELIVER ING GOODS SOLD. -, at a freight not exceeding shillings per quarter, and that the said plaintiff should pay the said defendant for the said oats, at and after the rate of £- for each and every quarter thereof]; and thereupon, in consideration of the premises, and also in consideration that the said plaintiff, at the like special instance and request of the said defendant, had then and there undertaken and faithfully promised the said defendant to accept a delivery and shipment in the said river, of the said goods, and to pay the said defendant for the same at the rate in that behalf aforesaid, the said defendant on the day and year aforesaid, at, &c. (venue).undertook, and then and there faithfully promised the said plaintiff that he the said defendant would, within a reasonable time then next following, procure to be delivered and shipped for the said plaintiff in manner aforesaid, the said goods to be so carried and conveyed as aforesaid; and although a reasonable time for that purpose hath long since elapsed, and the said plaintiff was always during that time and until the commencement of this action, ready and willing to have accepted a delivery and shipment of such goods as aforesaid, and to have paid (a) the said defendant for the same, at the rate in that behalf aforesaid, to wit, at, &c. (venue) aforesaid, whereof the said defendant then and there had notice; yet the said defendant, not *regarding his said promise and undertaking, [271] but contriving and intending to deceive and defraud the said plaintiff, did not nor would, (although often requested so to do) within such reasonable time as aforesaid, or at any time since, procure to be delivered or shipped for the said plaintiff in manner aforesaid or otherwise, the said goods or any other goods whatsoever, but on the contrary thereof the said defendant hath hitherto wholly refused and still refuses so to do; by means and in consequence whereof the said plaintiff hath been deprived of sundry great gains and profits, which he might and would otherwise have acquired to himself by reselling the said goods at much higher and advanced prices, to wit, at, &c. (venue) aforesaid. in And whereas also heretofore, to wit, on the day and year aforesaid, at, &c. (venue) aforesaid, in consideration that the said plaintiff, at the like special stance and request of the said defendant, had then and there contracted and agreed with him to buy and purchase of the said defendant certain other goods, to wit, quarters of oats,] and to pay him a certain price, that is to say, the price of [£- for each and every quarter thereof,] within a reasonable time after the delivery and shipment of the said last-mentioned goods for the said plaintiff, he the said defendant undertook, and then and there faithfully promised the said plaintiff to procure the said last-mentioned goods to be delivered and shipped for the said plaintiff on board some proper ship or vessel in the said river —, and to be sent in such ship or vessel for the said plaintiff agreeably to the orders and directions which the said defendant might receive from the said plaintiff in that behalf; and although the said defendant afterwards, to wit, on the day and year aforesaid, at, &c. (venue) received orders and directions from the said plaintiff to procure the said last-mentioned goods to be so (a) There is no necessity to aver an actual ten- 1 J. B. Moore, 56, ante, 270. n. (y). der of the money. 1 East, 203.-2 B. & P. 447.— Second count for not delivering sonable within a rea time. FOR NOT DELIVER SOLD. delivered and shipped as aforesaid, and to be sent for him to and the said ING GOODS defendant could and might have so delivered and shipped the said last-mentioned goods, and sent the same long before the commencement of this action; yet the said defendant not regarding his said last-mentioned promise and undertaking, but contriving and intending to deceive and defraud the said plaintiff in this respect, hath not, (although often requested so to do) since the receipt of such orders and directions as aforesaid, or at any other time since procured the [ *272 ] said last-mentioned goods, or any goods whatsoever, to *be delivered or shipped for the said plaintiff on board any ship or vessel in the river ——, or elsewhere, neither hath he in any other manner delivered or sent such goods as aforesaid, or any part thereof for him to, &c. aforesaid, or any other place, but to procure the said last-mentioned goods or any part thereof, to be delivered or shipped for the said plaintiff, or to be otherwise sent to him, he the said defendant hath hitherto wholly refused and still refuses so to do; and the said last-mentioned goods remain altogether undelivered to the said plaintiff, to wit, at, &c. aforesaid.-[Add other special counts, as the circumstances of the case may suggest, also money counts, accounts stated, and breach.] Special damage that non-perfor mance of a contract to deliver goods the divers quan sons, and defendant not delivering them, [After framing the special counts for non-delivery, proceed as follows:]— by reason of And the said plaintiff further saith, that after the making of the said respective bargains and contracts with the said defendant as aforesaid, to wit, on, &c. and on divers other days and times between that day and the commencement of this suit, he the said plaintiff, confiding in the said promises and undertakings plaintiff sold of the said defendant, and expecting his performance thereof, to wit, at, &c. tities to dif- aforesaid, did make and enter into divers bargains and agreements with divers ferent perpersons for the sale to them respectively of divers quantities of such goods, so bargained for and purchased by the said plaintiff as aforesaid, to wit, with E. F. for the sale to him of one hundred hogsheads of crushed sugar, and with one G. H. for the sale to him of, &c. and with one J. K. for the sale of, &c. and other sugars for want of the said sugar, which the said defendant ought to have delivered to the said plaintiff *as aforesaid, he the said plaintiff was forced and obliged to deliver to them the said persons respectively, divers quantities, amounting in the whole to hogsheads of certain other sugar of the said plaintiff of much greater value, to wit, of £ more than the value of the said sugar, which the said defendant ought to have delivered to the said plaintiff as aforesaid; and thereby the said plaintiff hath sustained great loss, to wit, a loss amounting to the sum of £-, to wit, at, &c. aforesaid.-[Add the money counts, accounts stated, and breach.] plaintiff was obliged to procure at a much higher price. [*273 ] Against a party, who had sold plaintiff a mare, and promised, if For that whereas heretofore, to wit, on, &c. (day of bargain or about it) at, &c. (venue) in consideration that the said plaintiff, at the special instance and request of the said defendant, would buy of the said defendant a certain mare, at she proved and for a large sum of money, to wit, the sum of £- of lawful money of unsound, to Great Britain, he the said defendant undertook, and then and there faithfully provide another, or re- promised the said plaintiff that the said mare was sound and without blemish, turn the mo ney (b). (b) See a form, 3 Wentw. 3. FOR NOT ING GOODS and that if the said mare should prove unsound, he the said defendant would, on the same being returned to him, provide the said plaintiff with another mare or horse that was sound and unblemished in lieu thereof, or repay him the said sum of £—so paid by the said plaintiff to the said defendant for the said mare; and the said plaintiff in fact saith, that he, confiding in the said promise and undertaking of the said defendant, afterwards, to wit, on the day and year aforesaid, at, &c. did buy the said mare of the said defendant at and for the said price or sum of £— and did then and there pay to the said defendant the said sum of £- for the same; and the said plaintiff further saith, that the said defendant, not regarding his said promise and undertaking, thereby crafti ly and subtly deceived the said defendant in this, that the said mare, at the time of the making of the said promise and undertaking of the said defendant was not sound, but was unsound and blemished, whereupon the said plaintiff afterwards, to wit, on the day and year aforesaid, at, &c. aforesaid, returned the said mare to the said defendant, and the said defendant then and there accepted and took back the same; and the said plaintiff in fact further saith, that the said defendant afterwards, to wit, on the day and year aforesaid, at, &c. gave and delivered to the said plaintiff another mare in lieu of the said mare so returned to him as aforesaid; and the said defendant, again disregarding his said promise and undertaking so made as aforesaid, again craftily and subtly deceived the said plaintiff in this, that the said mare so given and delivered to the said plaintiff in lieu of the said first-mentioned mare returned to and accepted back by the said defendant as aforesaid, was not sound at the time of the delivery thereof as last aforesaid to the said plaintiff. but was then and there unsound and blemished; whereupon the said plaintiff afterwards, to wit, on the day and year aforesaid, at, &c. (venue) returned the said last-mentioned mare to the said defendant, and then and there requested the said defendant to provide the said plaintiff with another mare or horse, which was sound and unblemished or repay him the said sum of money so paid by the said plaintiff [ *274 ] for the said first-mentioned mare, according to the said promise and undertaking of the said defendant; and the said plaintiff further says, that although the said defendant did accept and take back the said last-mentioned mare so returned to him as aforesaid, yet the said defendant, not further regarding his said promise and undertaking, but contriving and intending to injure the said plaintiff in this behalf, hath not yet delivered to the said plaintiff a sound mare or horse, or any mare or horse whatsoever, in lieu of the said last mentioned mare so returned to the said defendant as last aforesaid, or repaid to the said plaintiff the said sum of £- so paid to the said defendant for the said first-mentioned mare, or any part thereof, but to provide the said plaintiff with a sound mare or horse, in lieu of the said last-mentioned mare so returned to the said defendant as last aforesaid, or with any other mare or horse, or to repay the said plaintiff the said sum of £- so paid to the said defendant for the said first-mentioned mare as aforesaid, he the said defendant hath hitherto wholly refused, and still refuses so to do, to wit, at, &c. (venue) aforesaid.-[Add other special counts, as any doubt in the case may suggest, counts for horse keep, money paid, and had and received, account stated, and breach.] |