[*41

equivalent to it by declarations or conduct: and the *question in each case, where there is no warranty in express terms, will be, whether there are such circumstances as to be equivalent to such a warranty." And the law is quite as firmly established, that, on the sale of a known ascertained article there is no implied warranty of its quality; Chanter v. Hopkins, 4 M. & W. 399.† But there is another class of cases in which it has been held that a party is not bound to accept and pay for chattels, unless they are really such as the vendor professed to sell, and the vendee intended to buy: of which Young v. Cole, 3 N. C. 724, 4 Scott, 489, and Gompertz v. Bartlett, 2 Ellis & B. 849 (E. C. L. R. vol. 75), are strong authorities. In the latter case, Lord Campbell says it is precisely as if a bar was sold as gold, but was in fact brass, the vendor being innocent. In this case, the thing sold was ascertained, viz. a moiety of a patent granted by her Majesty: there was no express warranty; and, whether it be said that the question raised on this plea impeaches the plaintiff's title to the thing sold, or its quality, no warranty can be implied. But, did the plaintiff profess to sell and the defendant to buy a good and indefeasible patent right? or, was the contract merely to place the defendant in the same situation as the plaintiff was in with reference to the alleged patent?-in which case, his position would be similar to that of the plaintiff in Kintrea v. Perston, 1 Hurlst. & Norm. 357.† The plaintiff professed to have invented a method for the prevention of boiler explosions. It is not alleged that he was guilty of any fraud. He must, therefore, have been an inventor; for, if he was not, he must have known it, and would have been guilty of fraud in pretending to have invented. Whether he was the true and first inventor within the meaning of the statute of James, is another question. The first material allegation in the plea is, that the alleged invention was wholly worthless, and of no utility to the public. Now, that was a matter as much within the *knowledge of the defend[*42 ants as of the plaintiff. The next allegation, viz. that it was not new as to the public use thereof in England, and that the plaintiff was not the first and true inventor, was also a matter as much within the knowledge of the defendants as of the plaintiff. They had the same means of inquiring into the fact, and of learning whether it had been in use, or the invention had been previously made known in England. Why, therefore, should we assume that the plaintiff meant to assert that the patent was indefeasible, and that the defendants purchased on that understanding, rather than that, each knowing what the invention was, and having equal means of ascertaining its value, they contracted for the patent such as it was, each acting on his own judgment? We think that the latter was the true nature of the contract, and that there was no warranty express or implied, and that the case does not fall within Young v. Cole or Gompertz v. Bartlett, which proceeded on the somewhat nice distinction before pointed out; nor is it within the prin

ciple upon which the case of Chanter v. Leese, 4 M. & W. 295,† and 5 M. & W. 698,† was decided; for, there the plaintiff contracted that the defendants should have the exclusive right to sell certain things for which patents had been obtained: there was no doubt as to what the parties contracted for; and as the plaintiff, if one of the patents was invalid, could not confer the privilege which he agreed to confer, and for which the defendant contracted to pay, the consideration for the defendants' promise failed, and (to use the language of Lord Abinger), the whole resting in contract, and nothing having been done under it, the contract was at an end. Here, the plaintiff was capable of fulfilling all that he contracted to do; he had already done it in equity. The defendants might have had all that they contracted to receive, and were therefore bound to pay.

*On these grounds, we hold that the plea gives no answer to *43] the declaration. The last plea was disposed of during the argument. It is pleaded to all the breaches. As to the first, it cannot be treated as a traverse of the breach, and, the breach being admitted, it gives no answer.

Judgment accordingly.

Field, who had unsuccessfully applied for leave to amend at the time judgment was given, on the 17th of April moved for leave to add a plea to the second and third breaches, traversing the requests and breaches therein respectively alleged. (a) [CROWDER, J.—Having taken your chance upon the issues in law, you now wish to raise issues of fact. Have you any authority for that?] It is submitted that it is warranted. by the 222d section of the 15 & 16 Vict. c. 76, which enacts that "it shall be lawful for the superior courts of common law, and every judge thereof, and any judge sitting at Nisi Prius, at all times to amend all defects and errors in any proceeding in civil causes, whether there is anything to amend by or not, and whether the defect or error be that of the party applying to amend, or not; and all such amendments may be made with or without costs, and upon such terms as to the court or judge may seem fit; and all such amendments as may be necessary for the purpose of determining in the existing suit the real question in controversy between the parties shall be *so made." There are issues *44] of fact now upon the record which must be tried. [CRESSWELL, J.-In effect you want to deny the contract declared on.] Not so. [CRESSWELL, J.-The plaintiff declares on an absolute agreement to pay him 25007.in a manner to be agreed on. You want to set up a conditional purchase. That is a denial of the contract stated in the declaration.]

(a) A previous application for the same purpose had been made to Coleridge, J., at Chambers, and referred by him to Cresswell, J., before whom the parties attended at Kingston on the 20th of March, when the learned judge refused to make any order, saying that the defendants might apply to the Court.

The written contract cannot be varied or controlled by the facts sought to be pleaded. That which the defendants are desirous of putting in issue, is, something which has happened since the making of the contract, the agreement subsequently come to. [COCKBURN, C. J.-If there are any circumstances to show that justice requires that you should be allowed to put a new defence upon the record, we ought at least to have them on affidavit.]

Affidavits were afterwards (on the 22d) produced, and a rule nisi granted. These affidavits stated, in substance, that, on the day on which the agreement was signed, viz. on the 30th of January, 1856, the plaintiff called at the defendants' office, and stated that he was in want of an immediate advance of money, and proposed to sell them the moiety of his invention for 25007.; that the deponent (one of the defendants) told him, that, as it was quite uncertain whether the invention would turn out well or not, they were not willing to pay so large a sum otherwise than out of the profits, but that they had no objection to the plaintiff being the first person remunerated out of the profits (which all parties then believed were likely to be realized), or to advance a small sum to meet the plaintiff's present necessities; that the plaintiff assented to this, and it was then agreed that 25007. should be the price, but that a small part only, the amount of which was not then fixed, should be paid in cash, and the balance should be paid out of the proceeds of the invention, less the costs of working the same; and the memorandum declared upon *was prepared upon the spot, with [*45 the intention of expressing such agreement; that on the 9th of February, the plaintiff called again on the defendants, and they then advanced him 201. on account of the sum which it had been so agreed should be paid in cash; and on the 19th he again applied for a further sum, and the defendants expressed their willingness to pay him the further sum of 2007. down as the balance of the sum which they had agreed to pay in that manner, but they declined to pay any more of the 25007. until profits had been realized to that extent; and the plaintiff then expressly assented, and the defendants thereupon paid him 2001. in cash, and he then wrote out and signed a receipt, as follows :— "London, February 19th, 1856. Received of Francis Conder & Co. the sum of 2001. as the balance of the sum agreed to be paid by them to me for the transfer of my patent for the prevention of explosions in steam-boilers, previous to the realization of any profit on the same. W. K. Hall:" that it was at such last-mentioned interview also agreed that the foreign patents should be immediately completed, and they were so completed by the defendants; and, in the month of July following, the plaintiff applied to the defendants for an advance of money to enable him to go to Paris with the view of selling the French patents, and they thereupon advanced him 251. for that purpose, and he thereupon signed a receipt, as follows: "London, July 2d, 1856. Received

of Messrs. Conder & Co. the sum of 251. for expenses attending sale of foreign patents. W. K. Hall:" and that neither at such time, or at any other time than the said 19th of February, 1856, did the plaintiff ever apply to the defendants for any payment on account of the 25007., nor did he at any time, except as above stated, ever request the defendants, or either of them, to make any agreement or arrangement respecting the manner or times of payment of the 2500l., nor had the *defendants, or either of them, ever refused to make such agree*46] ment or arrangement, but, on the contrary, they did, on the said 19th of February, make and enter into such agreement and arrangement as aforesaid for the purpose of carrying out the first agreement so made between the plaintiff and the defendants as aforesaid.

Lush, on a subsequent day (May 5th), showed cause, principally upon an affidavit of the plaintiff, alleging that the 2500l. was agreed to be paid to him by the defendants, without any regard to the profits of the invention, and that the receipt for the 2007. was prepared by the defendants, and his signature thereto obtained by fraud and coercion. The learned counsel submitted that the application was unconscientious and merely for the purpose of delay, that the proposed defence was manifestly in contradiction to the written agreement, and that, if the defendants had originally pleaded as now proposed, the judgment would probably have been for the plaintiff in a particular in which it now (somewhat erroneously) stood entered for the defendants, viz. as to the demurrer to the first plea. [CRESSWELL, J.-The court intended to give judgment for the defendants on that issue. The rule was advisedly and carefully and accurately drawn in the form in which it appears. Although the argument for the plaintiff on that issue was plausible, the court gave judgment against it. COCKBURN, C. J.-There being issues of fact to be tried, the plaintiff cannot be prejudiced by allowing the proposed traverses. If there is a defence, the defendants ought not in consequence of a mere slip of the pleader to be shut out from it.]

Field, in support of the rule.-The case is clearly within the 222d section of the Common Law Procedure Act, 1852: and there can be *47] no just reason why the *defendants should be deprived of the privilege of trying the case before a jury on its merits. It is contended on the other side that the second breach is good, as showing a refusal by the defendants to come to some arrangement as to the mode of payment. The agreement of the 19th of February is in truth the very agreement which the original agreement of the 30th of January contemplated. Cur. adv. vult.

WILLES, J.-In this case a rule was obtained by Mr. Field calling upon the plaintiff to show cause why the defendants should not have leave to add a plea to the second and third breaches, traversing the requests and breaches therein respectively alleged. Against this rule cause was shown on a former day in this term, when the court took

time to look into the affidavits. At the request of the Lord Chief Justice and my learned Brothers, I have done so; and I now proceed to give our judgment.

The action is brought for the breach of an agreement to pay 2500%. for the purchase of a moiety of a certain patent. By that agreement it was stipulated that the defendants should pay the plaintiff the 25007. "in such manner as should be mutually agreed on:" and, after the usual averments, the declaration sets out three breaches,-first, that, although a reasonable time had elapsed, and the defendants had been requested, they refused to pay the 25007. or any part thereof,-secondly, that, although a reasonable time had elapsed, and the defendants had been requested, they refused to enter into or make any agreement or arrangement with the plaintiff respecting the manner in which the 25001. should be paid,―thirdly, that, although a reasonable time had elapsed, and the defendants had been requested, they refused to fix upon or agree with the plaintiff respecting the time or times at which the 25007., or any portion or instalment thereof, should be paid. To that *declaration the defendants pleaded several pleas, the one mainly [*48 relied on being, "that the said invention was wholly worthless and of no public utility or advantage whatever, and was not new as to the public use thereof in England, and that the plaintiff was not the true and first inventor thereof." Upon the validity of that plea there was an argument, which resulted in a judgment for the plaintiff. The pleas were dated the 27th of November, 1856: and it appears from the affidavits filed in answer to this rule, that repeated applications had been made as well by the plaintiff as by his attorney for payment of the money; and that the defendants did not on those occasions object that no mode of payment had been mutually agreed on, but insisted that the plaintiff was not entitled to recover at all. It seems, then, that the defendants would not at that time have agreed on any mode of payment: and it is clear that the plea which is now sought to be added is an after-thought. Still, if it were a plea which could in any manner avail the defendants, and the plaintiff could sustain no detriment by its being put upon the record, it ought to be now allowed. Upon consideration, we think that on neither ground ought the proposed plea to be allowed. If it had been pleaded in November last, the plaintiff might have discontinued, and might have called upon the defendants then to agree as to the manner of payment, and might have brought a fresh action and gone to trial at once. It is plain, therefore, that the plea is in the nature of a dilatory plea, and puts the plaintiff in a worse position than he would have been in. Then, would it be any advantage to the defendants to have this plea upon the record? Clearly not. They state in their affidavit that they never agreed to pay the 2500l. absolutely and at all events, but only out of the net profits to be derived from the patent. That is not consistent with the terms of the written agreement. If,