lieu of performance, probably the plaintiff could not maintain an action on the agreement; but nothing of the kind is shown to have been intended. The agreement provides for payment of the royalty every six months, the deed for payment every three months; and the deed contains a stipulation that if Holden shall refuse or neglect to supply alloy to any customer, of which an order unexecuted for thirty days shall be conclusive evidence, the plaintiff shall be at liberty to manufacture and vend the alloy for his own benefit. It will be contended that the defendant is thus discharged from the obligation to accept and pay for the royalty. But the defendant is put in a better position. He gets his royalty more quickly, and a right of re-entry to secure it. [Bramwell, B.-It cannot be denied that if there is a substantial variance between the right which the defendant bought and that which the plaintiff is able to confer on him, though there be no fraud in the transaction, the plaintiff cannot recover. Where should the line be drawn? Will not any difference between the two discharge the defendant?] It might be so, if the difference put the defendant in a worse position. Here there is nothing which prejudices him. [Bramwell, B.-By the agreement the defendant would have been entitled to a royalty on all alloy made and used by Holden. By the deed the plaintiff is not entitled to any royalty on metal used by Holden.] The replication is an answer to the plea. Even where a person has been induced to enter into a contract by fraud, if he does not repudiate it within a reasonable time, he is bound. Here, after the defendant found that the plaintiff had become party to a deed which prejudiced his rights, should have given notice of his desire to annul the agreement. [Bramwell, B.-His omission to do so may be evidence of a new contract to accept the royalty as it exists under the deed.] VOL. V.-N. S. E EXCII. 1859. WEBSTER v. NEWSOME. 1859. WEBSTER v. NEWSOME. Field, for the defendant.-The defendant has contracted for the purchase of a right under the agreement of the 16th of March, 1858. By that agreement the plaintiff was entitled to 1d. on every pound of alloy sold, used, or manufactured. The money was to be paid periodically every six months from the date of the letters patent, or from the making of the alloy; even though none. should have been used or sold. By the deed, Holden is to pay to the plaintiff, during the continuance of the patent, 1d. per pound on all alloy which he should make and sell, thus excluding what he should manufacture and use. The payments are to be made quarterly after the selling. There is also a provision in the deed that, if Holden refuses to supply a customer, the plaintiff may manufacture the alloy, so that, in that event, the plaintiff might send to the market a large quantity of alloy on which no royalty would be payable. By the deed, if the patent is repealed by scire facias the royalty is to cease. By the agreement there is a covenant by Holden to pay on all the alloy he may make during the existence of the letters patent. As to the replication.-It is admitted that at the time of the contract the defendant had no notice of the existence of the deed, but the replication goes on to allege that before suit he had notice of the deed, but did not repudiate the agreement. The doctrine of repudiation only applies when a contract is voidable as in the case of infancy. But when one party does not perform his part of an agreement, the other is not bound to repudiatc. Phipson, in reply.-It is a mistake to say that, by the agreement, Holden's obligation to pay is absolute: it is only during the continuance of the letters patent, that is, until they expire by lapse of time or are repealed. Then, as to the discrepancy between a royalty on metal made or used, and a royalty on metal made or sold. The contract between the plaintiff and the defendant is a contract to give to the defendant a royalty on metal sold. The defendant has no right to anything more than a royalty on metal sold. The deed secures that which the defendant contracted to buy. As to the objection that if Holden makes default in supplying a customer, the plaintiff may himself manufacture the alloy, there is no suggestion that Holden has made default, or is likely to do so. POLLOCK, C. B.-We are all of opinion that the plaintiff cannot recover. It is sufficient to say that the discrepancy between the provisions of the deed of assignment and the agreement of the 16th of March is such as to shew that the defendant contracted to buy that which the plaintiff has debarred himself from claiming. BRAMWELL, B.-I am of the same opinion. The defendant was not bound to pay unless he got that which he bargained for, viz., the plaintiff's rights under the agreement of the 16th of March. Though the defendant agreed in terms to buy a royalty on metal sold, when the agreement between the plaintiff and Holden is read, it appears that it gave 'the plaintiff no right to a royalty on metal sold. I should say that the contract made by the plaintiff with the defendant ought to be interpreted as meaning a royalty on metal made and used. Can the plaintiff give the defendant that right? By the agreement the royalty is to be paid at a certain time after the metal is made; by the deed, after the metal is sold. The plaintiff, therefore, is not in a position to give the defendant what he contracted to buy. Mr. Phipson admitted that to be true, but said that the defendant by not repudiating the agreement, agreed to take to the plaintiff's rights under the deed. This omission to 1859. WEBSTER v. NEWSOME. 1859. WEBSTER υ. NEWSOME. repudiate may be evidence of a new contract, on which possibly an action might be maintained, but the plaintiff is now seeking to recover on the original contract. The replication is therefore bad, though the facts stated may shew that the plaintiff may be entitled to maintain some other action. WATSON, B., concurred. CHANNELL, B.-By the deed of assignment the plaintiff incapacitated himself from vesting in the defendant the rights to which he would have been entitled under the contract. Looking at the whole deed, it is not necessary to decide whether all the variances are of such a character as, taken singly, would have disentitled the plaintiff to recover. I agree with the rest of the Court that the plaintiff cannot found a right to maintain this action on the mere non-repudiation of the contract by the defendant. Judgment for the defendant. MEMORANDUM. In this Term, Peter Burke, Esq., of the Inner Temple, was called to the degree of the coif. He gave rings, with the motto "Veritas et Judicium." MICHAELMAS VACATION, 23 VICT. WHITE v. LEESON. person TRESPASS built that the defendant at the time of the trespass was : and still is a tenant of divers lands and houses under leases granted by the plaintiff and his wife by virtue of the said Act, being parcel of the estates thereby authorized to be leased: that by the Act it is enacted, that it should 1859. Dec. 7. A private act ing leases and "to lay out and appropriate any part authorized to of the land be leased as and for a way or ways, street or streets, avenue or avenues, square or squares, passage or pas sages, sewer or sewers, or veniences for the general improvement of the estate and the accom modation of the tenants and occupiers thereof. Having appropriated certain land and laid it out for a general im way for the provement of exercise of the powers of the Act, by the estate, in deed he granted rights of way over it to two several tenants.—Held, that tenants under other leases, granted in pursuance of the powers of the Act, but containing no grant by deed of a right to use the way, were not entitled by the provisions of the statute to use it. |