handed over to them. This, for some reason which was not explained, the defendant refused to do. Mr. Hall, who was called as a witness on the part of the plaintiff, stated that his firm would have delivered the iron pursuant to the order, at any time before the 14th of February, upon the document being handed over to them. The learned judge intimated an opinion that the plaintiff had a complete cause of action on the dishonour of the cheque; and that the refusal of Messrs. Hall & Co. to deliver the iron upon the mere presentment or shew. ing them the order, even supposing it might afford the defendants a remedy by a cross-action, clearly was no defence on the present occasion: and he accordingly directed the jury to find for the plaintiff; reserving leave to the defendant to move to enter a verdict for him on the sixth issue, or a nonsuit. The jury accordingly returned a verdict for the plaintiff, damages 20007. Keating, on a former day in this term, accordingly obtained a rule nisi to enter a verdict for the defendant on the sixth issue, or a nonsuit, or to reduce the damages,— the court reserving leave to the plaintiff to enter judgment non obstante veredicto on the sixth issue, if necessary. Alexander and Gray shewed cause. The learned judge correctly told the jury that the plaintiff's cause of action was complete upon the dishonour of the cheque. The sixth plea is clearly a bad one; it tenders an issue which is altogether insensible and immaterial. [Jervis, C. J. The first question is, what does that plea mean? Then, is it proved? And, if proved, is it an answer to the action?] The plea was not proved; and it clearly is no answer. The declaration states correctly the legal effect of the contract,-that, in consideration that the plaintiff, at the request of the defendant, would 1853. BARTLETT v. HOLMES. 1853. BARTLETT v. HOLMES. sell to the defendant the said 1000 tons of pig-iron so nothing that has occurred since can operate to defeat that right. The refusal of Hall & Co. to deliver the iron clearly makes no difference. It may be that the defendant might have a remedy by cross-action against the plaintiff; but in such an action, the damages would depend upon a variety of circumstances,-the state of the market, amongst others. Besides, the defendant has his remedy in equity against Hall & Co., upon the principle laid down in Pooley v. Budd, 14 Beavan, 34, 48. There, A., who sold 500 tons of iron stacked on his wharf to B., in consideration of a bill accepted by a third party, gave an acknowledgment, engaging to deliver it to the bearer, he (A.) "having been paid for the same." B. mortgaged the iron, and, the bill having been dishonoured, A. refused to deliver the iron. The mortgagee proceeded in equity to make A. responsible for the iron: and it was held, that A. had no ownership or property in the iron so stacked, and was a trustee; and therefore a demurrer for want of equity was overruled. So, here, Messrs. Hall & Co. having notice of the claim of Holmes, a court of equity would declare them trustees of the iron for him, as in that case. [Williams, J. It was urged at the trial, that, assuming the sixth plea not to be a valid plea, the non-delivery of the iron might, in order to avoid circuity of action, be given in evidence in reduction of the damages,-upon the principle laid down by the court of Exchequer, in Mondel v. Steel, 8 M. & W. 858.] Here is an express contract to pay 20007. on a certain day : how can that be satisfied by payment of a less sum? Keating and Phipson, in support of the rule. The sixth plea was proved. Hall & Co. had no right to require the warrant to be delivered up to them before the delivery of the iron. The presentation of the warrant was not like the presentment of a bill or a cheque for payment, where the delivery up of the document and 1853. BARTLETT V. HOLMES. 1853. BARTLETT v. HOLMES. the receipt of the money take place at one and the same lutely refuse to deliver the iron. [Williams, J. That was after the breach, and after the commencement of the action.] JERVIS, C. J. I think this rule must be discharged, being of opinion that the allegation in the declaration which is substantially traversed by the sixth plea, is proved: it is unnecessary, therefore, to consider some of the points discussed. The main point depends upon the sense which is to be given to the word "presentation " in the document which bears date the 23rd of January, 1853. I am of opinion that the word "presentation in that document means, that, before the iron, or any part of it, is to be delivered to the person by whom it is presented, it must be handed over into the keeping and control of the persons who are to deliver the iron. No doubt the word "presentation" has many different significations; and, amongst others, the shewing or delivering up, as the context or the circumstances in which the expression is used may require. In the present case, I think it can only mean the latter. I see no hardship that can result from this construction. Confidence must be placed somewhere with regard to the custody of the document whilst it is being acted upon; and it seems to me to be manifestly more reasonable and convenient that it should in this case be placed in the party who is called upon to act on the order. Upon another ground, this occurs to me to be the proper construction. It was conceded, on the part of the defendant, that Messrs. Hall & Co. would be entitled to have the warrant handed over to them when the delivery of the 1000 tons was completed. Upon what word in the warrant, or in the contract which it evidences, would they be entitled to it at that period? Clearly, upon the construction which fairly belongs to the word "presentation." If so, I see no reason why a different sense should be put upon the 1853. BARTLETT v. HOLMES. |