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For not delivering residue of certain heifers to be delivered weekly and paid for proportionably.

1ST. COUNT.-In consideration of agreement; mutual promises, part delivery and special request averred.

For that whereas, on &c., at &c., the plaintiff bought of the said D, six heifers, at the rate and price of $96, to be therefor paid by the plaintiff to the said D, the said heifers to be delivered to the plaintiff, two thereof weekly from that time, until the said six heifers should be all delivered; and it was then and there agreed between the said D and the plaintiff, that the plaintiff should take and fetch away from the said D, two of the said six heifers weekly, from that time until the plaintiff should have fetched away the said six heifers, and that the said D should deliver to the plaintiff the said heifers, viz. two thereof weekly, when the plaintiff should come for the same, and that the plaintiff should pay the said price of the said heifers by proportionable payments, as he should fetch away the same; and the said agreement being so made, the said D then and there, in consideration that the plaintiff then and there promised the said D to perform all the said agreement on his part to be performed, promised the plaintiff to perform all the said agreement on his, the said D's, part to be performed; and although the plaintiff, on &c., in the week next after making the said agreement, at &c., paid the said D $32, in part payment of the said rate and price, to be therefor paid as aforesaid, and then and there fetched away two of the said heifers, which the said D then and there delivered him, and although the plaintiff afterwards, on &c., in the second week next after making the said agreement, at &c., paid to the said D $32 more, in further part payment of the said price to be paid, as aforesaid, and then and there fetched away two more of the said six heifers, which the said D then and there delivered; and although the plaintiff, on the last day of the third week, next after making the said agreement, to wit, on &c., at &c., went to the said D to fetch away, and was then and there ready to fetch away the remaining two heifers, and to pay, and offered to pay the said D the residue of the rate aforesaid, on the delivery of the said remaining two heifers to the plaintiff, and then and there requested the said D thereto; yet the said D did not then, or at any other time whatsoever, deliver the said two heifers, or either of them to the plaintiff, but wholly refused and still refuses so to do. Morg. Prec. 165.

In consideration plaintiff had bought &c.; part delivery and special request averred,

SECOND COUNT. For that, on &c., at &c., in consideration that the plaintiff, at the special request of the said T, had then and there bought of the said T other six heifers, to be delivered by the said T to the plaintiff, who should come and fetch away the same, in manner following, to wit; two every week from that time until the whole should be delivered, at and for the price of $96, to be therefor paid by the plaintiff, in proportional payments, as the plaintiff should fetch away the same, the said T promised the plaintiff to deliver the last mentioned heifers, two every week, from that time, as the plaintiff should come to fetch away the same, until the whole should be delivered; and the plaintiff avers, that though the said T, in part performance of the agreement last mentioned, did deliver to the plaintiff four of the last mentioned six heifers, to wit, two weekly, for the two first weeks, next after the making of the last mentioned agreement, which were paid for by the plaintiff on delivery, according to the rate last mentioned; and though the plaintiff, on the last day of the third week, next after the making the agreement last mentioned, to wit, on &c., at &c., went to the said T to fetch away, and was then and there ready and willing to fetch away the remaining two of the heifers last mentioned, and to pay, and offered to pay the said T the residue of the rate last mentioned, to wit, $32 on the delivery thereof, and then and there requested the said T thereto; yet the said T did not then or at any time before or since, deliver the plaintiff the remaining two of the heifers last mentioned, or any part thereof, but then refused and still refuses so to do.

NOTE. Add a third count, omitting the parts in italics; and a fourth, as on a general payment on delivery; a fifth, as for heifers to be delivered on request; and a sixth, in consideration plaintiff had bought &c., to be paid for on delivery, and had promised to pay therefor in proportional payments, &c., defendant promised to deliver upon request; so that the evidence may comport with some of the counts. (MSS.)

For other declarations under this head, see Plead. Assist. 61.

For not delivering linen in exchange for buckles.

For that, on &c., at &c., in consideration that the plaintiff, at the special request of the said T, would sell and deliver the said T a certain large quantity of buckles, to wit, twenty pair of buckles of great value, to wit, of the value

of $10, the said T promised the plaintiff to deliver him, for and in exchange for the same buckles, a certain large quantity of Irish linen, of great value, to wit, of other $10, and the plaintiff, in fact says, that he, relying on the said promise of the said T, did there afterwards on the same day, sell and deliver to the said T the said buckles; yet the said T hath not yet delivered the said Irish linen, or any part thereof, to the plaintiff, though then and there requested thereto, but wholly refused so to do. 2 Went. 191.

GRAHAM.

NOTE. Add second count, in consideration plaintiff had sold and delivered, leaving out the averment. Also add counts for goods sold and delivered and quantum meruit thereon.

For not delivering mare in exchange for plaintiff's cows, the said mare being a part only of the exchange.

For that whereas, on &c., at &c., the plaintiff was lawfully possessed of divers, to wit, seven cows, and the said T was then and there possessed of a certain heifer and a certain mare, and being so possessed, in consideration that the plaintiff, at the special request of the said T, had then and there agreed with the said T to exchange with the said T the said cows of the plaintiff for the said heifer and mare of the said T, and a certain sum of money, to wit, &c., to be paid by said T to the plaintiff, the said T then and there promised the plaintiff, to deliver him the said heifer and mare, and also to pay him the said sum &c., by way of, and in exchange for the said cows of the plaintiff; and the plaintiff avers, that thereafterwards on the same day, and in exchange for the said mare and heifer, and sum of &c., so agreed to be paid and delivered, as aforesaid, he did deliver to the said T the said cows, which the said T then and there accordingly had and received; and the plaintiff further says, that although the said T hath delivered his said heifer to the plaintiff, in part of said exchange, yet the said T hath not yet delivered to the plaintiff, by way of exchange, or otherwise, the said mare, nor hath he ever paid the said sum of &c., so by him agreed to be paid to the plaintiff, but hath wholly refused and still refuses so to do. 2 Went. 221. LAWES.

NOTE. Add counts for cattle sold and delivered, bargained and sold &c., for work and labor of plaintiff's mare, for money had and received &c.

For not delivering a mare according to bargain of exchange; earnest being paid.

For that whereas, on &c. at &c., it was agreed between the plaintiff and the said D, that the plaintiff should give the said D a colt, in exchange for the mare of the said D, and should pay the said D ten dollars to boot, on the 7th day of December, then next ensuing; and it was then and there further agreed by the plaintiff and the said D, that the plaintiff should keep the said colt until the 29th day of September, then next ensuing, in consideration whereof, and that the plaintiff then and there promised the said D, to perform faithfully all the said agreement on his part to be performed, the said D promised the plaintiff to perform faithfully all the said agreement on his, the said D's, part to be performed; and the said D then and there, to make the said agreement the more firm and binding, paid the plaintiff one cent in earnest of the said bargain; and the plaintiff in fact says, that, in pursuance of said agreement, he kept the said colt until the said 29th day of September; and the plaintiff further avers, that he was always ready and willing, and frequently offered to pay the said D the said ten dollars, and requested the said D to accept the same, but the said D would not receive the said money of the plaintiff, and the said D hath not delivered the said mare to the plaintiff, though on &c., at &c., thereto requested, but wholly refused and still refuses so to do.

NOTE. This declaration is founded on the case of Bach v. Owen, 5 T. R. 409, where the averments were similar, excepting a special request to deliver was not alleged as here, and it was attempted to quash the declaration on demurrer, because the plaintiff had not averred that he had delivered or offered to deliver the colt to the defendant. But, per Buller, "There is no foundation for the objection; the payment of the halfpenny vested the property of the colt in the defendant, and therefore it was unnecessary for the plaintiff to show that he had tendered the colt to the defendant. But the plaintiff should have averred a special request to deliver the mare, and the want thereof is a substantial defect." Quære of the effect of earnest, and see ante. (MSS.)

For not delivering plaintiff a vessel which defendant built for plaintiff according to agreement, &c.

For that, at &c., on &c., the said E, in consideration of the promise and agreement of the said plaintiffs hereinafter mentioned, agreed with and promised the said plaintiffs, that he would build for, and deliver to them, a certain vessel of the following dimensions and description, to wit: sixty-three

feet keel; twenty-three feet beam; eleven feet hold; payable for nine and a half feet hold, with four beams below the upper deck; two of them to the foremast, and two of them to the mainmast, with partners to wedge the mast in; the quarter deck to run over the main deck about eight feet, and to come just short of the mainmast; the cabin floor to be two and a half or three feet below the main deck, with proper beams and knees, and the waist to be eighteen. inches at the midship and thirty inches forward; and the said vessel to be built all of white oak, above the floor timbers, unless the said plaintiffs should wish and propose any other wood for top timbers and plank, in which case the said E promised to allow the price of white oak therefor; that the said E would caulk and grave the said vessel, fit for sea, the said plaintiffs finding oakum and naval stores; and that the said E would do the iron work for the hull of the said vessel, and for the rigging thereof, at twenty shillings, of the value of $3,334, by the hundred weight, the said iron work to be all weighed, and no hand work charged; and that he, the said E, should clear the said vessel of chips, stop the holes in her, and would launch the said vessel by the &c. day of &c., and would deliver the said vessel to the said plaintiffs, in a reasonable time after the said vessel should be launched, as aforesaid and not charge any thing for launching wedges, raising bolts, or rimming irons; in consideration whereof, the said plaintiffs then and there promised and agreed with the said E, to find oakum and naval stores for caulking and graving the said vessel, as aforesaid, to find iron for the iron work aforesaid, to pay the said E twenty shillings, of the value abovementioned, for every hundred weight of iron work done by the said E, as aforesaid, to pay and deliver to the said E, one barrel of West India rum for clearing the chips, stopping the holes and launching the said vessel, as aforesaid; that they would pay to the said E, for putting in the four beams below to wedge the mast in, as an extra bill, what the said E should reasonably deserve to have therefor, and would pay to the said E, for the said vessel, the sum of &c. by the ton, for every ton the said vessel should tonnage; one quarter part thereof in English dry goods, one quarter part thereof in iron and provisions, and one half part thereof in cash; the first and second payments to be at the customary cash price; all the payments aforesaid, to be made by the said plaintiffs, on the delivery of the said vessel, as aforesaid. Now the said plaintiffs aver,

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