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them the said one hundred quarters of malt, and were then and there ready and willing to pay the said D for the same according to the terms of the said sale, and were then and there ready and willing, and offered to accept and receive, the said one hundred quarters of malt, of and from said D; yet the said D did not, when requested, as aforesaid, or, at any other time before or since, deliver to the plaintiffs the said one hundred quarters of malt, or any part thereof, but wholly refused, and still refuses so to do.

NOTE. This declaration was held good on a motion in arrest of judgment; though objected that the plaintiffs should have averred an actual tender, and not a mere readiness and willingness to pay for the malt. Rawson et al. v. Johnson, 1 East's T. R. 203. (MSS.)

On a contract of sale; non-delivery; mutual promises: special damage,

&.c.

For that whereas heretofore, to wit, on &c., at &c., by a certain agreement then and there made, by and between the said A and the said C and G, it was agreed that the said C and G should, on or before — then next following, deliver to the plaintiff, on some convenient wharf in said S, at the option of the plaintiff, three thousand feet of good merchantable white pine plank, three inches thick, and of at least thirty feet in length, to be measured from the narrowest side thereof, and that the plaintiff should pay them, on delivery of said plank, $, that is to say, for each thousand feet of said plank, in money, current in the town of A, also to assist the master and crew of the vessel which should bring said plank, in unloading the same; and the said agreement, being so made as aforesaid, afterwards, to wit, on &c., at &c., in consideration thereof, and that the said A, at the special instance and request of the said C and G, had then and there undertaken and faithfully promised the said C and G to perform and fulfil the said agreement, in all things on his part and behalf to be performed and fulfilled, they, the said C and G, undertook, and then and there faithfully promised the said A to perform and fulfil the said agreement, in all things on their part and behalf to be performed and fulfilled; and the plaintiff saith, that the said

day of &c., hath long since past, and that although he, the said A, was always ready between said-day of &c., and day of &c., to accept and take the said plank so agreed to be delivered to him as aforesaid, and to pay the said $-, and to appoint the wharf in said S, where the

same should be landed, and to assist the master and crew in discharging the vessel as aforesaid; yet the said C and G, not regarding the said agreement, nor their said promise and undertaking, so by them made as aforesaid, but contriving and fraudulently intending to deceive the said A in this behalf, did not deliver said plank, but wholly neglected and refused so to do; by reason whereof the said A hath been necessitated, obliged, and compelled to buy another large quantity of good merchantable pine plank, to answer his occasions and use, to wit, three thousand feet of good merchantable pine plank, at a greater and more advanced price than the said plank so as aforesaid agreed by the said C and G, to have been delivered to the plaintiff, to wit, at and after the rate or price of $- per thousand feet of like good merchantable pine plank, to wit, at said S, and has also been put to great expense of time, and money and labor respecting the premises. B. MERRILL.

Counts on contract of sale; mutual promises; non-delivery, &c. -For that whereas, heretofore, to wit, on &c., at &c., to wit, at &c., the said E and C, at the special instance and request of said J and D, bargained with the said J and D, to buy of them the said J and D, and the said J and D then and there sold to the said E and C, a large quantity, to wit, one case of cotton cambricks, marked number two hundred and sixty-two, containing thirteen hundred and eighty-four yards of the same cambricks, at the rate or price of $-for each and every yard thereof, to be delivered by the said J and D, to the said E and C upon demand, and to be paid for by said E and C, on the delivery thereof as aforesaid, and in consideration thereof, and that the said E and C, at the like instance and request of said J and D, had then and there undertaken and faithfully promised the said J and D to accept and receive the said case of cotton cambricks, and to pay them for the same at the rate or price aforesaid, they, the said J and D, undertook and promised to deliver the said case of cotton cambricks to them, the said E and C, as aforesaid; and the plaintiffs aver, that afterwards, to wit, on &c. last, at said S, they paid for the same,. at the rate or price aforesaid, a sum of money, amounting to $, and they have ever been ready and willing to accept and receive the said case of cotton cambricks; yet the said J and D, though often requested, after said payment, have not delivered the same, but wholly neglect and refuse

so to do; whereby the plaintiffs have lost and been deprived of divers great gains and profits, which might and otherwise would have arisen and accrued to them, from the delivery of said case of cotton cambricks.

Also for that whereas, heretofore, to wit, on &c., at &c., to wit, &c., the said plaintiffs, at the special instance and request of said J and D, bargained with the said J and D to buy of them, and they then and there sold to the plaintiffs a certain other case of cotton cambricks, marked number two hundred and sixty-two, for the price and sum of $-, to be delivered to the plaintiffs by said J and D, upon the payment therefor of said last mentioned sum of money, to be made by the plaintiffs to said J and D, and to be paid for by the plaintiffs to said J and D, on demand; and in consideration thereof, and that the plaintiffs, at the like instance and request of said J and D, had then and there promised them to accept and receive the said last mentioned case of cotton cambricks, and to pay them the said last mentioned sum of money for the same, on demand, they, the said J and D, promised to deliver said last mentioned case of cotton cambricks to the plaintiffs, whenever the plaintiffs should pay said last mentioned sum to them, the said J and D; and the plaintiffs aver, that afterward, to wit, on &c., they paid the said last mentioned sum of $-, to said J and D, to wit, at said S, and that the plaintiffs have ever been ready and willing to accept and receive the same last mentioned case of cotton cambricks; yet the said J and D, though afterward, to wit, on &c. last, requested, have not delivered the same, but wholly neglect and refuse so to do; whereby the plaintiffs have lost and been deprived of divers other great gains and profits, which might and otherwise would. have arisen and accrued to them, from the delivery of said last mentioned case of cotton cambricks.

SECOND COUNT. Also for that whereas, heretofore, to wit, on &c. last, at B, to wit, at &c., the plaintiffs, at the instance and request of the said J and D, bargained with them to buy of them, and they then and there sold to the plaintiffs, a certain other case of cotton cambricks, consisting of one thousand three hundred and eighty-four yards of cambrick, at and after the rate and price of $- for each yard thereof, to be delivered to the plaintiffs by said J and D, upon the payment of said price therefor, by the plaintiff's to the said J and D, and to be paid for by the plaintiffs, on

demand; and, in consideration thereof, and that the plaintiffs, at the like instance and request of said J and D, had then and there promised to pay them the aforesaid price of $-for each yard thereof, amounting in the whole to the sum of $-, on demand, and to accept and receive the said last mentioned case of cotton cambricks, they, the said J and D, promised the plaintiffs to deliver to them the said last mentioned case of cotton cambricks, whenever the plaintiffs should pay the said last mentioned sum of $- to them, the said J and D; and the plaintiffs aver, that afterward, to wit, on &c. last, in pursuance and fulfilment of said last bargain and promise, they paid said last mentioned sum of $- to said J and D, to wit, at said S; and the plaintiffs have ever been ready and willing to accept and receive the same last mentioned case of cotton cambricks; yet the said J and D, though afterward, to wit, on &c., requested, have not delivered the same, but have wholly neglected and refused so to do.

Also for that said J and D, at said S, on &c. last, being indebted to the plaintiffs in another sum of $-, as well for so much money by said J and D, had and received to the use of the plaintiffs, as for a like sum by the plaintiffs before that time disbursed, laid out, and expended for the use of said J and D, then and there, in consideration thereof, promised to pay the plaintiffs the same last mentioned sum on demand; yet said J and D, though requested, said sum have not paid, but neglect so to do. B. MERRILL.

For not delivering corn according to agreement, within one month, at a stipulated place.

For that, on &c., at &c., in consideration that the plaintiff, at the special request of the said E had then and there bought of the said E, two hundred quarters of corn, at $20 per quarter, such price to be therefor paid by the plaintiff to the said E, the said E promised the plaintiff to deliver to him the said corn, at S, in one month from that time, viz. the time of sale. And the plaintiff avers, that he always, from the time of making such sale, for the space of one month then next fellowing, and afterwards, was ready and willing to receive the said corn, at said S, and was ready to have paid for it on delivery, according to the said stipulated terms; yet the said E, though requested, did not, within one month from the time of making such sale as aforesaid, or at any other time, deliver the said corn to the plaintiff, at said S, or elsewhere, but wholly refused so to do

NOTE. Judgment was arrested in this case, on motion for want of the averment printed in italics; the Court being of opinion, that it was neces sary to aver a performance, or what was equivalent thereto; or a readiness to pay, according to the case of Rawson v. Johnson. Morton v. Lamb, 7 T. R. 125. (MSS.)

For not delivering wheat at several times according to agreement.

For that the said N, on &c., at &c. in consideration that the plaintiff at the special request of said N, had agreed to purchase of him a large quantity, to wit, one hundred bags of wheat, each bag weighing three hundred pounds, and for forty bags, part of the same wheat, to pay the said N $8 per bag, and for the remaining sixty bags, to pay the market price, at the then next market day, promised the plaintiff to sell and deliver him the said forty bags immediately, and the remaining sixty bags, at the then next market day, at the said stipulated price; and the plaintiff avers that the said N, in part performance of his contract aforesaid, then and there sold and delivered the plaintiff the said first forty bags of wheat; but though the plaintiff was ready and willing to receive the remaining sixty bags of wheat, at the said next market day, to wit, at &c., on &c., and was then and there ready and willing to pay the said N therefor, on delivery, according to the said stipulated price, the said N, though requested, on the said next market day, or at any time before or since, did not deliver the plaintiff the said remaining sixty bags of wheat, but wholly refused and still refuses so to do.

NOTE. Upon breach of contract for the purchase of one hundred bags of wheat, forty or fifty of which were to be delivered on one market day, and the remainder on the next market day, the plaintiff cannot declare as upon an absolute contract for the delivery of forty bags on the first day &c., though forty bags were then in fact delivered, but the contract must be stated in the alternative according to the original terms of the contract. Penney v. Porter, 2 East's T. R. 2. (MSS.)

For not delivering barley, earnest being paid, and special request made. For that whereas the plaintiff, on &c., at &c., at the request of the said E, bought of the said E, five bushels of seed barley, at the rate or price of $1 for every bushel thereof, to be therefor paid by the plaintiff to the said E, and then and there paid to the said E, in hand, the sum of $1, in part payment of the said price to be paid for said barley, and then and there promised the said E, to pay the residue of the said rate or price, so to be paid for said barley, on the delivery of the said barley; in consideration whereof the

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