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For the plaintiffs it was submitted that the defendant's letters amounted to a rescision or repudiation of the special contract, and that consequently the plaintiffs were entitled to sue for goods sold: and the following passage from the notes to Cutter v. Powell, 2 Smith's Leading Cases, 4th edit. 15, was relied on,— “It is an invariably true proposition, that, wherever one of the parties to a special contract not under seal has, in an unqualified manner, refused to perform his side of the contract, or has disabled himself from performing it by his own act, the other party has thereupon a right to elect to rescind it and may, on doing so, immediately sue on a quantum meruit for anything which he has done under it previously to the rescision: *this, it is apprehended, is established by Withers v. Reynolds, 2 B. [*713 & Ad. 882, Planché v. Colburn, 8 Bingh. 14 (E. Č. L. R. vol. 21), 1 M. & Scott 51, Franklin v. Miller, 4 Ad. & E. 599 (E. C. L. R. vol. 31), and other cases."

The learned judge proposed to allow the plaintiffs to amend their declaration but they declined to avail themselves of the permission. He then told the jury, that, if they thought the defendant had refused to pay the moiety in cash and to give a bill at the stipulated date for the residue, that would amount to a rescision of the contract, and entitle the plaintiffs to sue on a quantum meruit.

The jury returned a verdict for the plaintiffs, damages 881. 17s.

Coleridge, Q. C., in Michaelmas Term last, obtained a rule nisi for a new trial, on the ground of misdirection.-He referred to Chitty on Contracts, 6th edit. 390, and to the case of Paul v. Dod, 2 C. B. 800 (E. C. L. R. vol. 52).

O'Brien, Serjt., and H. Matthews, showed cause.-It may be conceded that it is not every breach of a contract that will entitle one party to it to treat it as being rescinded. It would perhaps be difficult to define the rule more clearly than is done in the note to Cutter v. Powell, 2 Smith's Leading Cases, 5th edit. 34, where it is said that "the breach of contract which entitles the other contractor to rescind, must consist of the non-performance of something essential." Where one of the parties does anything to prevent the obligations of the contract attaching upon him, that amounts to a rescision, according to the principle laid down by the Court of Queen's Bench in Hochster v. De la Tour, 2 Ellis & B. 678 (E. C. L. R. vol. 75). The contract here, as proved by the plaintiffs' foreman, was, that the defendant would pay for the goods, half in cash, the remainder by bill at six months. By his letter of the 17th of April, the defendant rendered the further performance of that contract impossible, and the plaintiff [*714 was entitled to treat it as rescinded. In Lee v. Risdon, 7 Taunt. 188 (E. C. L. R. vol. 2), where the agreement was that the goods should be paid for by a bill at three months, it was objected that the plaintiff was not entitled to sue for goods sold and delivered before the expiration of the three months, the defendant having refused to accept the bill; but Gibbs, C. J., overruled the objection, holding that, the defendant having by his refusal to accept the bill repudiated the contract, the plaintiff had a right to repudiate it also. In Paul v. Dod, 2 C. B. 800 (E. C. L. R. vol. 52), the contract was entirely performed on the one side: nothing remained to be done on the other side but the payment of the money. [ERLE, C. J.-No doubt, the plaintiff had a

right to say that the contract was at an end: the debateable ground is, whether he was entitled to sue for goods sold and delivered.] To the extent of half the goods, at all events, he was, upon the count on an account stated: Chisman v. Count, 2 M. & G. 307, 2 Scott, N. R. 569. Coleridge, Q. C., and Griffits, in support of the rule.-In Mussen v. Price, 4 East 147, it was distinctly held, that, where goods are sold upon a contract that the vendee shall pay for them in three months, by a bill at two months, that is a contract for a credit of five months, and therefore that assumpsit cannot be brought at the end of three months, upon the neglect of the vendee to give his bill at two months,-the vendor's remedy being by a special action on the case for damages for the breach of contract in not giving such bill. In Chitty on Contracts, 6th edit. 390, it is said, that, "where by the terms of the contract the goods are to be paid for by a bill of exchange or promissory note, or partly in money and partly in bills, and the vendee refuses to give either, it is necessary to declare against him specially for *715] such default; and neither the price of the goods nor the amount of the stipulated cash payment can be recovered on the common counts until the period of credit has expired:" for which the following authorities are cited,--Paul v. Dod, 2 C. B. 800 (E. C. L. R. vol. 52), Mussen v. Price, 4 East 147, Dutton v. Solomonson, 3 B. & P. 582, Swancott v. Westgarth, 4 East 75, Holt v. Odber, 11 East 118, Brooke v. White, 1 N. R. 330, and Helps v. Winterbottom, 2 B. & Ad. 431 (E. C. L. R. vol. 22). In Paul v. Dod, A. sold goods to B., to be paid for partly in cash and the residue by bills at intervals of three months each; and it was held that the payment of the money and the delivery of the bills did not constitute a condition, so as to entitle A. upon non-payment of the money and non-delivery of the bills to sue as for goods sold and delivered, without waiting the expiration of the credit; and that such action could not be maintained for the amount of the stipulated cash payment, but that A.'s remedy was by special action on the express contract. "No part of the goods," said Tindal, C. J., "can be singled out for payment by cash. The contract was, to pay for the entire goods 301. in cash, and the residue by instalments of 307. at each succeeding three months, to be secured by bills. The plaintiff should have declared upon the special contract, under which the defendants would have been clearly liable. He cannot, however, maintain an action upon an implied contract until the expiration of the period at which the entire debt would have become due." That case has never been overruled or doubted; and it is precisely applicable. There is no pretence for saying there was any contract for any definite amount of goods.

ERLE, C. J.-I am of opinion that this rule should be discharged The action is brought for goods sold and delivered. It appears that the plaintiffs and defendant *early in April last entered into a *716] treaty for the sale and delivery of a large quantity of furniture, which the defendant was to pay for half in cash and half by bill at six months. Under this contract, certain goods were delivered some of which, to the value of 887. 178., were retained by the defendant. Disputes then arose between the parties, and on the 17th of April the defendant wrote a letter, in which he says,-"The way you do your business will not suit me. I have an account for a large amount of

goods not purchased, and a demand made for payment, opposed to treaty. I now close all further orders, and desire what I have not purchased may be taken off my premises." Neither cash nor bill was given for the goods kept. No doubt, the plaintiffs could have maintained an action upon the special contract, if the contract had remained open; and for the purposes of this case it is conceded that he could not have sued for goods sold and delivered. But it appears to me that the defendant's letter amounted to a putting an end to the contract, and that the plaintiffs had a right to treat it as rescinded, and to sue for the fair value of the goods which had been delivered and kept. The authorities as to what will amount to such a rescision of a contract as to entitle the plaintiff to sue upon a quantum meruit, were very much discussed during my time in the Court of Queen's Bench, in the case of Hochster v. De la Tour, 2 Ellis & B. 678 (E. C. L. R. vol. 75), and in some subsequent cases.(a) Those authorities, I think, warrant us in holding that the plaintiff was entitled to treat the contract as rescinded, and to sue for goods sold and delivered.

The rest of the court concurring.

Rule discharged.

(a) See Avery v. Bowden, 5 Ellis & B. 714 (E. C. L. R. vol. 85), in error, 6 Ellis & B. 953 (E. C. L. R. vol. 88), and Reid v. Hoskins, 5 Ellis & B. 729, in error, 6 Ellis & B. 953.

*SMART and Another, Assignces of JOHN LEWIS, a Bankrupt, v. JONES and Others, Executors of ANTHONY HILL, deceased. Jan. 25.

[*717

A. agreed with B., that B. might dig and carry away cinders from a certain cinder-tip, the property of A., B. paying A. a certain price per ton :-Held, that this agreement need not be by deed.

THE declaration stated, that, before the bankruptcy of the said John Lewis, a certain agreement was made and entered into between the said Anthony Hill and the said John Lewis, which said agreement was and is in the words and figures following, that is to say,-"Memorandum of an agreement made and entered into this 13th day of March, 1862, between Anthony Hill, of Plymouth Iron Works, in the county of Glamorgan, of the one part, and John Lewis, of Cardiff, in the same county, broker, of the other part. The said Anthony Hill agrees with the said John Lewis that he the said John Lewis may dig and carry away cinders from a certain cinder-tip, the property of the said Anthony Hill, at New Weir, near Whitchurch, in the county of Hereford, the said John Lewis paying to the said Anthony Hill the sum of 2s. per ton of 2240 lbs. weight, for every ton of cinders so dug and carried away; the accounts between them to be made up and settled every quarter, that is to say, the 1st day of June, the 1st day of September, the 1st day of December, and the 1st day of March in every year; and the money then found to be due to the said Anthony Hill shall then be paid by the said John Lewis. The said John Lewis agrees to leave the sum of 501. already deposited in the West of England Bank as a security for the fulfilment of this agreement, and that the same remain to secure any loss that may be sustained by the said Anthony Hill for any breach or non-performance thereof, and

shall be deposited in the joint names of the said Anthony Hill and John Lewis; that this agreement may be terminable at any *718] time by one first giving to the other six months' previous notice in writing. And the said Anthony Hill agrees, on the fulfilment and completion of this agreement, and payment of all sums due to him hereunder, to pay over or transfer the said sum of 50%. to the said John Lewis. As witness our hands the day and year above written:" Averment, that all things were done and happened, and all times elapsed necessary to entitle the plaintiffs to maintain this action for the breaches hereinafter montioned; yet the said cinder-tip was not, at the time of the making of the said agreement, or at any time afterwards, the property of the said Anthony Hill, and the said John Lewis could not dig and carry away, and the said Anthony Hill never could authorize him to dig or carry away, cinders from the said cinder-tip; but the said John Lewis was wholly prevented from so doing; whereby the said John Lewis was unable to obtain the said cinders, and lost the profit which he would have made therefrom, and also lost the said sum of 50l. and all the use and benefit of the agree ment, and was put to great charges and expenses in bringing an action of trespass against the person entitled to the property of the said cinder-tip, and had to discontinue the said action, and to pay the costs thereof: Claim, 20007.

Second plea, that the said cinder-tip was part and parcel of the land, and of the earth and soil thereof, and that the said agreement was not under seal, nor the deed of the said Anthony Hill.

Demurrer, the ground alleged in the margin being, that "an agreement for digging gravel, sand, or other part of the soil of land, is perfectly valid though not made by deed." Joinder.

Gifford (with whom was Bovill, Q. C.), for the *plaintiffs.(a) *719] The plea seems to assume that there is some rule of law which

prohibits a man from entering into an agreement to convey an estate or to confer an easement. In the elaborate judgment of Alderson, B., in Wood v. Lead bitter, 13 M. & W. 838, the distinction is expressly taken between an action upon the contract and an action which assumes that some interest is conferred. Speaking of Wood v. Lake, Sayer 3, cited by Gibbs, C. J., in Tayler v. Waters, 7 Taunt. 374 (E. C. L. R. vol. 2), 2 Marsh. 551 (E. C. L. R. vol. 4) (where is was held that a beneficial license, to be exercised upon land, may be granted without deed), that learned judge says, "If the court proceeded on the ground that the plaintiff had acquired the easement by the parol license, we do not think it can be supported. But the case may perhaps have been decided on another ground. The defendant himself was the party who had agreed to give the easement to the plaintiff'; and, although the action is stated to have been an action on the case, it may have been a mere assumpsit,—an action on the case on promises; and in such an action the plaintiff would certainly be entitled to (a) The points marked for argument on the part of the plaintiffs were as follows:"That the plea is bad, because, though an irrevocable license to dig part of the soil cannot be granted without deed, yet a contract about such digging is perfectly valid, so as to entitle a party to sue for breach of contract, though not to claim an interest in the soil; and because a contract, for sufficient consideration, by which a man warrants that he is entitled to a tree, to gravel, or to any other part of the soil, and agrees that the other contracting party may cut the tree or dig the soil, is perfectly good as a contract."

recover, if the contract was not (and probably the court considered it was not) a contract concerning land, within the 4th section of the Statute of Frauds." That, it is submitted, is an express authority in favour of the plaintiffs' contention here. This contract is not [*720 open to the objection which was held to be fatal in Bird v. Higginson, 2 Ad. & E. 696 (E. C. L. R. vol. 29), 4 N. & M. 505. It is a contract for the sale of the cinder-tips, the vendee being at liberty to dig the cinders for himself. The agreement contains an express warranty that the cinder-tips are the property of the testator. In Bond v. Rosling, 1 Best & Smith 371, by an agreement not under seal the plaintiff agreed to let and the defendant to hire certain premises for seven years; and it was further agreed that a good and sufficient lease, embodying the terms of the agreement, should be prepared at the joint expense of the parties: in an action for not accepting a lease, it was held, that, though the instrument was void as a lease, by the 8 & 9 Vict. c. 106, s. 3, it was good as an agreement. "Why," says Blackburn, J., "should the instrument be void because it says, that, until a formal lease is executed, the party going into possession shall be tenant to the party letting him in? The words of stat. 8 & 9 Vict. c. 106, s. 3, mean no more than that the instru ment, not being a deed, shall pass no interest." Wightman, J., said: "This instrument is void as a lease; but it contains a valid agreement." And Cockburn, C. J., said: "The statute 8 & 9 Vict. c. 106, s. 3, makes void that part of the agreement which would operate as a present demise, but leaves an agreement to take a lease."

Coleridge, Q. C. (with whom was Coxon), contrà.(a)-The agreement declared upon is wholly inoperative *unless it is treated as an [*721 agreement with reference to a profit à prendre: and, if that be so, it is clearly void for not being under seal. The declaration is not for not granting, but for obstructing the bankrupt in the enjoyment of that which the agreement professed to grant. Whether the testator had or had not the right to grant, is wholly immaterial. Stratton v. Pettit, 16 C. B. 420, is expressly in point. There, by articles of agreement between A. and B., it was witnessed that A. agreed to let and B. agreed to take certain premises then in the possession of B., for the term of five years; and A. also agreed to sell and B. agreed to purchase the fee-simple of the premises, to be conveyed to B. his heirs, &c., absolutely, at the end of the said five years, provided B., his heirs, &c., should have in the meantime quietly occupied and not have been evicted from the premises; yielding and rendering by B. unto A., as well for the rent or use of the said premises for five years, as for the said purchase thereof, 701. in and by seventy shares of 17. each in the Birkbeck Life Assurance Company, the receipt and delivery unto A. of the said shares of the value of 70l., in full for the said rent and purchase, A. thereby admitted: and it was further agreed, that, should B. be legally ejected from the premises within or (a) The points marked for argument on the part of the defendants were as follows:"1. That the alleged agreement is for the enjoyment of a profit à prendre, by taking parcel of the soil, and, in order to be valid, it ought to have been under seal:

"2. That a profit à prendre can only be granted by deed:

"3. That, the alleged agreement not being under seal, no action will lie upon it for nonenjoyment of the profit à prendre :

"4. That there is no warranty of title, and, in the absence of fraud, no cause of action."

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