vessels by which it was to be sent; but any particulars respecting it that may arrive by the next mail shall be immediately transmitted to you."

On the 24th the defendant wrote and sent the following letter to Mr. Eaton :

"We are in receipt of your letter of yesterday, informing us that you are still unable to furnish us with the name of the vessel by which the parcel of Chassum we bought through you was to be sent. This being contrary to the clause in your contract of the 19th August last, wherein it was stipulated that we should have the name of the vessel on the arrival of last mail, at the latest, we beg to protest against this deviation from the contract: and we have to hold you and your principal responsible for any damage which may arise to us from this irregularity.'

Mr. Eaton thereupon sent a copy of the last-mentioned letter to the plaintiff, enclosed in the letter following:

"London, 24th September, 1853. "Upon informing my buyer that I was unable to give him particulars of the ships by which the parcel of Chassum sold for you, to arrive on the 19th of August last, was to be sent, he has sent me a letter, the *491] copy of which I now annex, protesting against the irregularity in not conforming to the clause in the contract which states that the names of the ships were to be furnished on receipt of the last mail from India."

After this, the following correspondence passed relating to the Chassum waste-silk purchased by the defendant from the plaintiff as aforesaid. The letters were respectively written and received by the persons by and to whom they respectively purport to be written and addressed, and they were so written and received in the order in which they are set out, and on the days on which they respectively bear date. Mr. Rodwell, to whom two of the letters were addressed, and by whom one of them was written, was the managing-clerk of Mr. Eaton.

"London, 12 mo. 13, 1853.

"Henry Rodwell (at H. W. Eaton's, 33, Old Broad Street.) "It is important for me to know whether your buyer wishes to have the 20,000 lbs. Chassum delivered to him at 9d., in accordance with the terms of contract. Please let me know definitely in the course of the day. "GILBERT GILKES.”

"London, 12 mo. 16th, 1853.

"Henry Rodwell (at H. W. Eaton's, 33, Old Broad St.)

"Not having a reply to my inquiry of the 13th relative to the 20,000 lbs. Chassum at 9d. per lb., I write to request thou wilt inform thy buyer, that, if he does not decide to accept my offer to cancel the contract by the end of the present week, I shall consider him bound to accept delivery at the price above stated, and act accordingly. The fairness of this course I am sure thou wilt admit.

"Mr. Gilbert Gilkes.

"GILBERT GILKES."

"17th December, 1853. "Sir,-As requested by you, I have seen Messrs. *Leonino *492] & Co. upon the subject of your contract dated 19th August,

1853, agreeing to deliver to them certain Bengal Chassum during the months of January and February, 1854, also to give them the names of the ships in which it was to arrive, on receipt of the next mail, or the next but one after date of the contract. I am sorry to say that the only reply I can obtain from them is, that it is their intention to claim of you compensation for the loss they have sustained by your not performing the latter condition of this contract. I will of course do all in my power to induce them to change their determination.

"for H. W. EATON, HENRY RODWELL."

"London, 10th January, 1854.

"H. W. Eaton, Esq., Old Broad Street.

"Dear Sir,-We beg to hand you on the other side our claim for damage sustained for the non-fulfilment of your contract of the 19th August, 1853, for 20,000 lbs. of Chassum. Damage, 3d. per lb., making 2501., for which please send me a check, or to name your principal in order that we may claim from him the amount.

"LEONINO BROTHERS." "13th January, 1854.

"Mr. Gilbert Gilkes. "Sir,--I beg to enclose you a copy of the contents of a note just received from Messrs. Leonino Brothers, to which I beg your immediate attention. "HENRY W. EATON."

The above letter of the 10th of January is the letter of which copy was then enclosed.

"Henry W. Eaton.

"1 mo: 14, 1854.

"I am duly in receipt of thy note accompanying a copy of one from Leonino Brothers relative to the contract for 20,000 lbs. Chassum at 9d. per lb., to be delivered in this and the following month. I am very much surprised in the manner in which they write, as the time for delivery is not yet arrived; and more *especially so when I take into account the proposal made to me to allow them to cancel the [*493 contract. Under the circumstances, I can do no other than deliver the Chassum to contract, which I intend to do in the course of this and the following month. I shall feel obliged by thy informing them of this. "GILBERT GILKES. "17th January, 1854.

"Messrs. Leonino Brothers.

"I beg to hand you a copy of a letter just received from my principal, Mr. Gilbert Gilkes, in reply to your letter of the 10th instant, a copy of which was forwarded to him. "H. W. EATON.'

The above letter of 14th of January is the letter of which a copy was then enclosed.

"Mr. Gilbert Gilkes. "London, 18th January, 1854. "Sir,-Mr. H. W. Eaton having sent us a copy of your letter to him 14th instant, in reply we beg to state that we give you one week from this day's date to give to us the name of the ship on which the 20,000 lbs. of Chassum is on board; and, in default of your compliance with our request, we shall consider the same as a breach of the contract of the 19th of August last on your part, and shall then take such measures as we may deem necessary for the protection of our interests. "LEONINO BROTHERS."

On the same 18th of January, 1854, and immediately after the receipt by him of the letter from the defendant last set forth, the plaintiff applied to Mr. Spensley, a silk-broker then carrying on business in London, to procure for him 20,000 lbs. of Chassum waste-silk equal to the above-mentioned sample; and, in order to enable him to do so, the plaintiff produced and gave to Mr. Spensley a sample of the said silk. *On the same day, the said Mr. Spensley secured for the plain*494] tiff the refusal of 41' bales of Chassum waste-silk which had been brought from Calcutta to London in the ship "Chalmers ;" and Mr. Spensley informed the plaintiff thereof, and at the same time informed him that he expected to secure for him the refusal of another parcel of Chassum waste-silk sufficient to make up the 20,000 lbs., which lastmentioned parcel of silk had been brought from Calcutta to London in the ship "Benares." The plaintiff's object in thus applying to Mr. Spensley, was, to obtain the means of delivering 20,000 lbs. of Chassum waste-silk to the defendant at the contract price, if the defendant would receive the same as for and in fulfilment of such contract.

On receiving this information, the plaintiff, on the same day, wrote and sent to the defendant the following letter:

"Leonino, Brothers.

"18. 1 mo., 1854. "Gentlemen,-Your favour of this date is duly received, and I am happy to be able to remove the uneasiness you feel respecting the arrival of the 20,000 lbs. Chassum to your contract of 19. 8. 53, by informing you that it is already arrived, and that you will receive invoice in due course. "G. GILKES."

On the 18th of January, 1854, Mr. Spensley secured for the plaintiff the refusal of 55 bales of Chassum waste-silk, being the aforesaid parcel of silk which had been brought to London in the "Benares;" and, on the following morning early, he informed the plaintiff thereof.

Except as above may appear, no notice or information was given to the defendant of what occurred between the plaintiff and Mr. Spensley, or of any steps taken by Mr. Spensley in consequence.

After this, the following correspondence passed *relative to *495] the said silk, and the aforesaid contract for the same, between the plaintiff and the defendant.

The letters were respectively written and received by the persons by and to whom they respectively purport to be written and addressed, and were so written and received on the days on which they respectively bear date, and in the order in which they are set out. Mr. Cotterill, the writer of one of the letters, was the attorney of the defendant, and Mr. Beavan, the writer of another of them, was the plaintiff's attorney.

66

"Mr. Gilbert Gilkes. "London, 19th January, 1854. Sir,-Your letter of yesterday is not an answer to ours of the same date, which required the name of the ship on which the Chassum had been shipped; and this is the information which we now again call for: but, as you say the Chassum has arrived, there is no occasion for the delay of a week in giving the information, which we now ask for in the course of to-morrow; in default of which, we shall act as indicated in our letter of yesterday. "LEONINO BROTHERS."

"Leonino Brothers.

"1 mo. 23, 1854. "Gentlemen,-Referring to my note to you of the 18th instant, I beg to inquire when it will be convenient for you or your broker to compare the 20,000 lbs. Chassum to contract with the sample.

"GILBERT GILKES."

"Mr. Gilbert Gilkes. "London, 23d January, 1854. "Dear Sir,--We have your letter of this date, and beg, as a preliminary to answering it, to know by what ship the Chassum you offer us has arrived. "LEONINO BROTHERS."

"1 mo. 24, 1854.

"Leonino Brothers. "Gentlemen,-In compliance with yours of *yesterday, received this morning, I now forward you samples of 41 bales of [*496 Chassum ex Chalmers,' Nos. 1/41, to your contract. The remaining quantity I purpose sending to-morrow, with all particulars. You will find them generally better than sample contracted for.

"GILBERT GILKES." "January 24th, 1854.

"Mr. Gilbert Gilkes. "Sir,-Messrs. Leonino Brothers have shown me their contract and correspondence with you. They consider you were bound to give them the name of the ship soon after she sailed, that is, as soon as information of her sailing had been received here: and they cannot accept in satisfaction of your contract a cargo which has been here for two or three months, and has been repeatedly offered for sale to them and others. Therefore, as you have not properly met their applications, they desire me, on their behalf, to give you notice that they consider the contract violated by you, and at an end; and that they will not take the silk per Chalmers,' or any other from you.

"Messrs. Leonino Brothers.

66

"W. H. COTTERILL."

"1 mo. 25, 1854.

Gentlemen, In accordance with my letter of yesterday, I beg to inform you that the name of the vessel by which the rest of the Chassum deliverable to your contract has arrived, is the 'Benares.' In consequence of your solicitor's letter, to hand this morning, I do not send the samples, as he therein informs me you decline to receive any silk whatever from me, or to this effect. "GILBERT GILKES."

"Messrs. Leonino Brothers. "London, 26 January, 1854. "Gentlemen,--Mr. Gilkes has consulted me on the subject of your refusal to accept 20,000 lbs. of Chassum silk pursuant to contract. I have, therefore, to request *the name of your solicitor, to whom I may send process, instead of troubling you personally.

[*497

"WILLIAM BEVAN."

The "Chalmers" sailed from Calcutta, on the 27th of April, 1853, with the said 41 bales of silk on board, and arrived in London on the 7th of October, 1853: and the "Benares," with the said 55 bales of silk on board, sailed from Calcutta on the 21st of August, 1853, and arrived in London on the 6th of December, in the same year. The said 41 bales and 55 bales together made up 20,000 lbs. of Chassum waste-silk; and such silk was equal to the sample mentioned in the bought and sold. notes. The plaintiff would have delivered the said silk to the defendant

within a reasonable time after the 25th of January, 1854: but the defendant refused to receive the same, contending that he was not liable so to do under the above-mentioned circumstances.

The defendant is to be at liberty to contend that the statements in the case as to Mr. Spensley, and what was done by him, are irrelevant, and would have been inadmissible in evidence for the plaintiff: and, if the court shall be of that opinion, such statements are to be treated as struck out of the case.

The court are to draw any inferences of fact from the premises, which the jury ought reasonably to have drawn.

The question for the opinion of the court, is, whether the plaintiff is entitled, under the above-stated circumstances, to recover in this action; and the verdict is to be entered on the several issues as the court shall direct.

Montague Smith, Q. C. (with whom was Unthank), for the plaintiff. (a) *498] -The facts stated in the special *case clearly sustain the declaration. Assuming that the naming of the ship or ships was a condition precedent as the contract originally stood, (b) the plaintiff performed his contract as amended by the new term introduced by the subsequent correspondence. The mail by which the name of the ship should have been communicated arrived in London on the 19th of September, 1853. The plaintiff being unable to comply strictly with the terms of the contract in that respect, a correspondence ensued between him and the defendant; and, on the 18th of January, 1854, the latter wrote, "We give you one week from this day's date to give us the name of the ship on which the 20,000 lbs. of Chassum is on board; and, in default of your compliance with our request, we shall consider the same as a breach of the contract of the 19th of August last." Upon the receipt of this letter, the plaintiff procured the necessary quantity of silk of the quality and description contracted for, and on the same day gave the defendant notice of its arrival, by a letter in which he said, "I am happy to be able to remove the uneasiness feel you respecting the arrival of the 20,000 lbs. Chassum to your contract of 19. 8. 53, by informing you that it is already arrived, and that you will receive invoice in due course." That was a clear acceptance of the terms of the waiver. [CROWDER, J.-The plaintiff does not even then communicate the name of the ship.] By the terms of the defendant's letter, he had a week to do so. [COCKBURN, C. J.-You say, that, provided the silk was of the description and quality contracted for, it need not have been afloat at the time of the contract?] It is not necessary to go so far: the vessels in *which the silk tendered was brought were afloat at the time the

--

*499] contract was made. On the 19th, the defendant wrote," Your

letter of yesterday is not an answer to ours of the same date, which required the name of the ship on which the Chassum had been shipped; and this is the information which we now again call for: but, as you say the Chassum has arrived, there is no occasion for the delay of a week in giving the information,-which we now ask for in the course of to-mor

(a) The points marked for argument on the part of the plaintiff, were,-"That the naming of the ship was not a condition precedent, or, if it was, that it was waived; and that such waiver could not be retracted by the defendant after it had been acted on by the plaintiff by his procuring the necessary silk through Mr. Spensley, as mentioned in the special case." (i) See Greaves v. Legg, 9 Exch. 709,† 11 Exch. 612.†