Sidebilder
PDF
ePub

action may be maintained by either party, without averring performance of the agreement on his part.

As where the declaration stated, that it was agreed that a race should be run between an horse of the plaintiff and one of J. S., and, in consideration that the plaintiff had agreed to deliver to the defendant a quantity of cloth, the defendant agreed to pay the plaintiff a sum of money in case J. S.'s horse should beat the plaintiff's horse, and then averred, that J. S.'s horse won the race. After verdict for the plaintiff, an exception was taken in arrest of judgment, because it was not averred in the declaration, that the cloth was delivered to the defendant; but the court over-ruled the exception, observing, that this was an action founded on mutual promises, and, therefore, it was not necessary for the plaintiff to make an averment of the delivery of the cloth; and Denison J. took this distinction, "where a plaintiff declares, that in consideration he would deliver to the defendant a piece of cloth, he, the defendant, should pay a sum of money for it, an averment of the delivery of the cloth is necessary; but if the plaintiff states an agreement, and then states that in consideration of such a promise or agreement, &c. in that case an averment is not necessary."

Having thus illustrated the nature of conditions precedent, concurrent acts, and mutual promises, it remains only to add, that there are not any technical words by which any of these considerations are constituted. The principal dif ficulty in the construction of agreements consists in discovering, whether the consideration be a condition precedent, a concurrent act, or a mutual promise. This, however, must be collected from the apparent intention of the parties to the agreement. The intention of the parties is, or is assumed to be, the governing principle of all the late determinations. When the nature of the consideration is ascertained, the rules respecting the averments before laid down invariably hold. If the reader wishes to pursue this subject further, he will find the cases relating to it fully collected, and commented upon, in Mr. Serjeant Williams's edition of Saunders, vol. i. p. 320. n. 4. vol. ii. p. 352. n. 3. See also Mr. Durnford's note in Willes's Rep. p. 157. and post, tit. Covenant. 457

z Hob. 106.

a Martindale v. Fisher, 1 Wils. 88.
b Per Grose J. in Glazebrook v. Wood-

sideration, must be gathered from,

row, 8 T. R. 372. per Sir J. Mansfield in Smith v. Woodhouse, 2 Bos. & Pul. N. R. 240.

and depends entirely upon, the

words and nature of the agreement." Per Lawrence J. in Glazebrook v. Woodrow, 8 T. R. 373.

IV. Of the Pleadings:

1. Of the General Issue, and what may be given in Evidence under it.

2. Accord and Satisfaction.

3. Infancy.

4. Payment.

5. Release.

6. Statutes,

1. Of Limitation. 2. Of Set-off.

7. Tender.

1. Of the General Issue, and what may be given in Evidence under it.

1. General Issue.-THE general issue in this action is non assumpsit. If by mistake not guilty be pleaded, instead of non assumpsit, such plea will be bad on demurrers, but aided after verdict.

To a declaration in assumpsit consisting of several counts upon several promises, the defendant may plead non assumpsit generally*.

The general issue may be pleaded, if there has not been any contract between the parties, or if the real contract be different from that on which the plaintiff has declared; e. g. if the contract was made with the plaintiff, and other persons not named in the actionf (64); or if the contract was made with the plaintiff only, and the action is brought by the plaintiff and another.

c Marsham v. Gibbs, 2 Str. 1022. and Ca. Temp. Hard. 173. Adjudged on special demurrer.

d Elrington v. Doshant, 1 Lev. 142. Corbyn v. Brown, Cro. Eliz. 470.

e Taylor. Willes, Cro. Car. 219.
f Per Raymond C. J. Leglise v. Cham-
pante, Str. 820.

g Wilsford v. Wood, 1 Esp. N. P. C.

182.

(64) In an action on a tort a different rule holds; for there, if one only of several persons, who ought to join, bring the action, the defendant can take advantage of it by plea in abatement only, al

Under the general issue every thing may be given in evidence which disaffirms the contract; e. g. the coverture of the plaintiff (65) or defendant at the time of making the contract. In like manner the defendant may give in evidence, in order to avoid the contract, gaming', infancy,

usury'.

If the contract be good in law, and not performed, the defendant may, under the general issue, in certain cases, give in evidence some legal excuse for the non-performance of it, as accord with satisfaction", a discharge before breach (66), foreign attachment", or a release.

Matter of law, which amounts to the general issue, may be pleaded or given in evidence.

Payment, before action brought, may be given in evidence, under the general issue.

h Adm. in James v. Fowks, 12 Mod.
101. and daily practice at Nisi Prius.
i Adm. by the Court in Hussey v. Ja-
cob, Lord Raym. 99.

k Darby v. Boucher, Salk. 279. Sea-
son v. Gilbert, 2 Lev. 144.
1 Bernard v. Saul, Str. 498. and Fort.
336. cited in Bull. N. P. 152.

m Adm. per Holt C. J. in Paramour

v. Johnson, 12 Mod. 376. Ld. Raym. 566. S. C.

n Welles v. Needham, Lord Raym.

180.

o Miller v. Aris, Middlesex Sittings after M.T. 41 G. 3. per Kenyon C. J. MSS. Hawley v. Peacock, 2 Camp.

N. P. C. 558. S. P.

p James v. Fowks, 12 Mod. 101

though the defect appear on the face of the declaration, Addison v. Overend, 6 T. R. 766. 5 East's R. 407. except for the purpose of preventing the plaintiff from recovering any inore than his share of the damages. Nelthorpe v. Dorrington, 2 Lev. 113. Indeed in assumpsit against one or more defendants, if any of the persons who ought to be joined are omitted, the defendant can only take advantage of it by a plea in abatement. Rice v. Shute, 5 Burr. 2611. Abbot v. Smith, 2 Bl. R. 947. Germain v. Frederick, B. R. T. 25 G. 3. 1 Saund. 291. c. Serjeant Williams's edit. Dixon v. Bowman, Mich. 1776, there cited. Evans v. Lewis, Exchequer, E. 1774. 1 Saund. 291. b. S. P.

(65) But if the plaintiff take husband after the suing out of the writ, and before declaration, the defendant can take advantage of the coverture by plea in abatement only. Morgan v. Painter, E. 35 G. 3. B. R. 6 T. R. 265.

(66) A promise, before it is broken, may be discharged by a parol agreement, but after it is broken it cannot be discharged with out deed, by any new agreement, without satisfaction. Per Holt C. J. 12 Mod. 538. S. P. adm in Edwards v. Weeks, 1 Mod. 262.

2. Accord and Satisfaction.

2. Accord and Satisfaction.-Accord with satisfaction is a good plea in bar to this action, because damages only are recoverable; and accord with satisfaction to one defendant is a bar to all'.

This plea is frequently pleaded specially; but it may be given in evidence on the general issues (67).

An accord to make a good plea must be perfect, complete, and executed'; for an accord executory is only substituting one cause of action for another, which might go on to any extent. Hence, a plea of accord to do several things, with an averment of performance of some only, and of an offer to perform the rest, is bad. So where to an assumpsit on a promissory note, the defendant pleaded an agreement* between the defendant and plaintiff, with other creditors of the defendant, that they would accept a composition in satisfaction of their respective debts, to be paid in a reason. able time, and then averred a tender and refusal on the part of the plaintiff of the composition: on demurrer, the plea was holden bad.

Acceptance of a security for a lesser sum cannot be pleaded in satisfaction of a similar security for a greater.

To an action of indebitatus assumpsit for 15l the defendant pleaded, that he gave the plaintiff a promissory note for 57. in satisfaction, and that the plaintiff received it in satisfaction; the plaintiff put in an immaterial replication, to which the defendant demurred: after judgment for the plaintiff in C. B. it was objected on error in B. R. that the plea was ill, it appearing that the note for 57. could not be a satisfaction for 15.; and per Pratt C. J. we are all of opinion that the plea is not good; as the plaintiff had a good cause of action, it can only be extinguished by a satisfaction which he agrees to accept, and it is not his agreement alone that is sufficient, but it must appear to the court to be a reasonable satisfaction. If 5l. be (as is admitted) no satisfaction for 157., why is a simple contract to pay 57. a satis

q Dyer, 75 b.

9 Rep. 79 b.

• See ante.

t Peytoe's case, 9 Rep. 79 h.

u Shephard v. Lewis, T. Jones, 6.

x Heathcote v. Crookshanks, 2 T. R.

24.

y Cumber v. Wane, Str. 426.

(67)" It is indulgence to give accord with satisfaction in evidence, upon non assumpsit, but it has crept in, and is now settled.” Per Holt C. J. 12 Mod. 377.

faction for another simple contract of three times the value? In the case of a bond, another bond has never been allowed to be pleaded in satisfaction, without a bettering of the plaintiff's case, as by shortening the time of payment. Judgment affirmed (68).

So where in an action of indebitatus assumpsit for goods sold and delivered, to which the def ndant pleaded non assumpsit, it appeared, that the defendant, prior to his in solvency, was indebted to the plaintiff in 50/. for goods sold and delivered: that the defendant, in consequence of his insolvency, had compounded with all his creditors, and paid them 7s. in the pound, aud at the time of such payment to the plaintiff, promised to pay him the residue of his debt, when he should be of ability so to do, which he was proved to have been before action brought. To meet this case, the

defendant produced a receipt signed by the plaintiff for the composition of 7s. in the pound for his debt, which he acknowledged to be in full of all demands, and then insisted that this receipt was a discharge of the promise. A verdict having been found for defendant, on a motion for a new trial, Knight v. Cox, Bull. N. P. 153. was cited for the defendant, where the creditor having accepted a composition, and signed a release to the defendant, who in consideration thereof promised to pay him the entire debt, it was holden, that the release was a good defence to an indebitatus assumpsit for the original cause of action: But Lord Ellenborough C. J. said, in that case the original contract was extinguished by the release; but it could not be pretended that a receipt of part only, though expressed to be in full of all demands, must have the same operation as a release; it was impossible to contend that an acceptance of 177. 10s. was an extinguishment of a debt of 50l.; He added, that there must be some

z Manhood v. Crick, Cro. Eliz. 716. a Fitch v. Sutton, 5 East's R. 230.
Cro. Car. 85. and Lovelace v.
v. Cocket,

Hob. 68, 69. S. P.

(68) Lord Ellenborough C. J. in speaking of this case of Cumber v. Wane, in Fitch v. Sutton, 5 East, 232. observed, that though it had been said by him in argument, in Heathcote v. Crookshanks, 2 T. R. 26. to have been denied to be law, and in confirmation of that, Buller J. afterwards referred to a case (stated to be that of Hardcastle v. Howard, H. 26 G. 3.) yet he (Lord Ellenborough) could not find any case of that sort; on the contrary the decision in Cumber v. Wane was directly supported by the authority of Pinnel's case, 5 Rep. 117. and it did not appear that Pinnel's case had ever been questioned,

I

« ForrigeFortsett »