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Exch. of Pleas, 1841.

WILLIAMS and Another, Assignees, v. The GREAT WESTJuly 10.

ERN RAILWAY COMPANY. TROVER. The declaration stated, that the plaintiffs, waggons, wheel. barrows, iron as assignees of Henry Kirby, a bankrupt, were lawfully rails, &c. &c., a verdict was

possessed of certain waggons, bodies of waggons, sets given for the

of wheels, wheelbarrows, deal planks, 200 tons of iron, plaintiffs at the trial for £1850, 200 tons of iron rail, 500 pieces of wood, 500 pieces of but afterwards, on the argument wooden sleepers, and fifty casts; that they came into the of a special

possession of the defendants by finding, and that the deduced by con fendants converted them to their own use. The defendants sent to £600, and the follow. pleaded, first, except as to six bodies of waggons, nine sets ing rule was drawn up:

of wheels, seventy-six wheelbarrows, 165 planks, and 500 " It is ordered, pieces of wood--not guilty; secondly, except as to the by consent, that the verdict goods and chattels in the first plea mentioned, a denial of found for the plaintiffs on the the plaintiff's property as assignees; and thirdly, as to the trial of this cause be re

causes of action mentioned and excepted in the first plea, duced to the

payment into Court of £150. sum of £600, and that as to At the trial before Maule, B., at the Summer Assizes for the claim, the Somersetshire, 1840, it appeared that Kirby, the bankrupt, verdict be en

had agreed before his bankruptcy, with the Great Western tered for the defendants :- Railway Company, to execute certain works on their line, Held, that this was the pro

and had provided materials and implements for that purper course, the issue be

pose. At the time of his bankruptcy, some of these were ing divisible,

lying loose on the railway, others had been temporarily and that the plaintiffs were fixed there, and others were lying in an adjoining field, not entitled to have the ver

which Kirby had hired of the proprietor. The assignees dict entered generally for

contended, that none of this property (which formed the them, but the subject of the present action) had passed to the defendants; defendants were entitled to a the defendants insisted that all of it, with the exception of verdict and to their costs, as to the articles specified in the first plea, had vested in them so much of the under the contract. The value of the whole was agreed cause of action as they had between the parties at the sum of £1850, and a verdict succeeded on.

was taken for the plaintiffs for that amount, subject to a motion to enter a nonsuit. The parties afterwards agreed

1841.

WILLIAMS

on a special case, which was argued in last Trinity Term, Exch. of Pleas, when the Court, by consent of the parties, ordered a verdict to be entered for the plaintiff for £600. The rule was drawn up by the officer in the following terms :-" It is ordered, by consent, that the verdict found for the plain RAILWAY Co. tiffs on the trial of this cause be reduced to the sum of £600; and that, as to the residue of the claim, the verdict be entered for the defendants."

GREAT WESTERN

Bere, for the plaintiffs, now applied to the Court to alter the terms of the rule, and to direct the verdict to be entered generally for the plaintiffs; referring to Anderson v. Chapman (a), and Bird v. Penrice(6).

PARKE, B.—This case differs from Anderson v. Chapman. That was an action on the case for the negligent conveyance of merchandise shipped on board a vessel of the defendant, and the plaintiff's there were seeking to recover on one entire contract, and their failure of proof of negligence, as to a portion of the goods, merely went in reduction of damages. Here, however, the issue is divisible; and the defendants having succeeded as to a part of the cause of action, are entitled to their costs as to so much.

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Exch. of Pleas,

1841.

MONDEL V. STEEL.

Special assumpsit on a contract to build a ship plaintiff, at a certain rate per ton, and according to a ceraccording to a

tain specification (setting it out); and the breach assigned specification, assigning a was, for not building the ship with scantling, fastening, and breach in not building the planking, according to the specification; by reason whereof ship with scantling, fastening,

the ship, in a certain voyage, was so much strained that it and planking, became necessary to refasten and repair her; and thereby according to the specification, the plaintiff lost the use of her during the time she was and alleging special damage. undergoing such repairs. Plea, that the

Plea, that the plaintiff ought not further to maintain defendant had sued the plain. his said action in respect of the said alleged breach of contiff for the ba lance of the tract in the declaration mentioned, because the defendagreed price of the ship, after

ant says that he the defendant, heretofore, to wit, on &c., payment of

before the Barons of her Majesty's Court of Exchequer at £3,500, and also for a sum Westminster, in the county of Middlesex, impleaded the of £150 for extra work, in the plaintiff in an action on promises, and by the said action form of an action for work

sought to recover from the plaintiff, over and above a sum of and labour, and 21.4s. 9d, hereinafter mentioned, the sum of 861, 68, 4d., for goods sold and delivered; being the balance of the price of the said ship in the said that issue was joined, and, on

declaration mentioned, calculated according to the provithe trial of the sions and terms of the said memorandum of agreement cause, the now plaintiff gave evidence in his defence of the same breach of contract alleged in the declaration, and insisted, if the amount of compensation to which he was entitled exceeded or equalled the balance and value of the extra work, that he the now plaintiff was entitled to a verdict; if less, then he was entitled to a deduction, upon the amount of both, to the extent of such amount of compensation : that the Judge who tried the cause so directed the jury, and the jury found that the now de. fendant had committed a breach of the contract, and that the now plaintiff was entitled to some compensation, which they deducted from the price of the ship and the value of the extra work: that the now defendant had judgment for the amount, after such deduction had been made, since the commencement of this suit:-Held, that the plea was bad on general demurrer,

Held, also, that all that the plaintiff could by law be allowed in diminution of damages on the former trial, was a deduction from the agreed price, according to the difference between the ship as she was at the time of delivery, and what she ought to have been according to the contract: but that any claim for damages on account of the subsequent necessity for repairs could not be allowed in the former action, and might be recovered in this.

In all actions for goods sold and delivered with a warranty, or for work and labour, as well as in actions for goods agreed to be supplied according to a contract, it is competent for the defend. ant to shew how much less the subject-matter of the action was worth by reason of the breach of the contract: and to the extent that he obtains, or is capable of obtaining, an abatement of price on that account, he must be considered as having received satisfaction for the breach of contract; and he is precluded from recovering in another action to that extent, but no more.

STEEL.

therein also mentioned, and which remained unpaid to Erch. of Pleus,

1841. him the now defendant, after the payment by the now plaintiff to him of the sum of 31. 58., in the said declara MONDEL tion also mentioned, and after credit being given to the now plaintiff for two other sums hereinafter mentioned; and also to recover from the now plaintiff the further sum of 1341. 3. 2d., being the value of certain work, labour, and materials done and provided for the now plaintiff by the now defendant in and about the said ship, and which were extra of and in addition to the work, labour, and materials mentioned and included in the said memorandum of agreement.--[The plea then set out the whole of the pleadings in that action, which was indebitatus assumpsit in £4000, for work and materials, goods sold and delivered, and on an account stated :-pleas, Ist, except as to 21. 4s. 91d., parcel &c., non assumpsit; 2ndly, as to the 21, 4s. 9 d., payment into Court of that sum, which the now defendant accepted; 3rdly, except as to 21. 4s. 9d., payment, which was denied by the replication; 4thly, except as to 21. 48. 9 d., a set-off for work and materials, goods sold and delivered, money paid, and on an account stated. The plea then proceeded as follows:]-And the defendant further saith, that all the said issues were duly joined between him the now defendant, and the now plaintiff, and afterwards, to wit, at the General Sessions of Assize holden at Liverpool, in and for the southern division of the county palatine of Lancaster, on &c., before Sir William Henry Maule, Knight, one of the Justices of our Lady the Queen of her Court of Common Pleas at Westminster, and Sir Robert Mounsey Rolfe, Knight, one of the Barons of our said Lady the Queen of her Court of Exchequer at Westminster, Justices of our said Lady the Queen of her Court of Common Pleas of the said county palatine, the said issues so as aforesaid joined came on in due and regular form of law, to be tried before the said Sir Robert Mounsey Rolfe, and the same

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Esch. of Pleas, were then tried in due course of law, by a jury of the 1841.

county duly summoned, chosen, and sworn in that behalf, MONDEL between the now defendant and the now plaintiff. And STEEL. the defendant further says, that at the said trial he, the

now defendant, duly proved and gave in evidence the said memorandum of agreement in the said declaration mentioned, and further proved the delivery to and acceptance by the now plaintiff of the ship thereby contracted to be built, and that the price thereof, calculated according to the provisions and terms of the said memorandum of agreement in that behalf, amounted to the sum of 36081.3s. 10d., whereof the now plaintiff had paid him, the now defendant, the said sum of £3500 in the said declaration mentioned, and was also entitled to credit for two other sums, namely, 181.78. 6d. and 31. 108., leaving the said sum of 861. 68.4d., the balance, unpaid to the now defendant; and he the defendant further proved and gave evidence that he, the now defendant, had done and provided for the now plaintiff, and at his request, for the said ship, work, labour, and materials, to the value of 1341. 38. 2d., which was extra of and in addition to the work, labour, and materials in the said memorandum of agreement mentioned. And the now defendant further says, that the now plaintiff, at the said trial, and in defence of the said causes of action of him the now defendant, and in answer thereto, averred and gave evidence of the very same and identical breach of contract alleged by the now plaintiff to have been committed by the now defendant in the said declaration in this suit, that is to say, that the now defendant did not build the said ship of the very best materials, in conformity with the said specification in the said declaration mentioned, and did not build the same with the whole of the scantling, fastening, and planking inside and outside, such as is mentioned in Lloyd's Survey Book for a twelve years' ship, but omitted and neglected so to do. And the defendant further says, that the now plaintiff, at the said trial, produced witnesses and

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