ASSUMPSIT FOR NOT DELIVERING GOODS.

In assumpsit against the vendor of goods for not delivering them, the plaintiff may be called upon, by proper pleas, to prove the contract and the breach, the performance of all conditions precedent on his part, and the amount of damages.

Where L. and Co., brokers, sold hemp by auction, described in the invoice as bought of "L. and Co.," and received part of the price, it was held that they had made themselves responsible as sellers, and that they could not defend themselves, in an action for non-delivery, by evidence that they sold as agents and that the invoice had been made out in their names according to a local custom of brokers to secure the passing of the purchase-money through their hands. Jones v. Littledale, 6 A. & E. 486.

A., by letter, offered to sell to B. certain goods, "receiving an answer by the course of post." In consequence of A.'s misdirection, B.'s acceptance of the offer arrived two days later than it ought to have done; and on the day following that when it should have arrived, A. sold the goods to a third person: It was held that there was a binding contract from the moment the offer was accepted, and that B. might sue A. in an action for the non-delivery. Adams v. Lindsell, | B. & A. 681. But, in general, where an offer is made, the party who makes it may retract it at any time before acceptance. Cooke v. Oxley, 3 T. R. 653. Routledge v. Grant, 4 Bing. 653. So the bidder at an auction may retract his bidding before the hammer is down. Payne v. Cave, 3 T. R. 148.

Where the contract was for the sale of sponge, to be paid for by ochre at &c., the value to be delivered on or before 24th inst. J. R.; in an action for not delivering the sponge it was held that the delivery of the ochre on the 24th was a condition precedent to the plaintiff's right of action. Parker v. Rawlings, 4 Bing. 280. Where the agreement was to pay a sum" for each load of straw delivered on the premises," it was held that this imported payment for each load as delivered, and that, the purchaser refusing so to pay, the vendor was not bound to send any more loads. Withers v. Reynolds, 2 B. & Ad. 882.

In support of the averment that the plaintiff was ready and willing to accept the goods and to pay for the same, it will not be necessary to prove a tender of the money; Rawson v. Johnson, 1 East, 203, Waterhouse v. Skinner, 2 B. & P. 447.; and a demand of the goods is sufficient evidence that the plaintiff was ready and willing. Wilkes v. Atkinson, 1 Marsh. 412. Levy v. Lord Herbert, 7 Taunt. 318. The demand may be by the plaintiff's servant. Squier v. Hunt, 3 Price, 68.

Damages] In an action for not replacing stock at a given day, the plaintiff is entitled to recover according to the price on the day of the trial. Shepherd v. Johnson, 2 East, 211. But where goods are to be delivered at a future day, the damages are the difference between the contract price and the price of the goods at or about the day when they ought to have been delivered. Boorman v. Nash, 9 B. & C. 145.; Startup v. Cortazzi, 2 C. M. & R. 165.

ASSUMPSIT FOR GOODS SOLD AND DELIVERED.

The plaintiff in an action of indebitatus assumpsit for goods sold and delivered must be in a condition to prove, 1. The contract of sale, express or implied; 2. The delivery of the goods; 3. The value or price. And all these facts are put in evidence by the plea non assumpsit. Cousins v. Paddon, 2 C. M. & R. 556.

The contract of sale.] In general, proof of the delivery of the goods to, and receipt of them by, the defendant is primâ facie evidence of the contract, and supersedes the proof of an order. Bennett v. Henderson, 2 Stark. 550. A trading corporation aggregate may sue and be sued in assumpsit for goods sold and delivered, and the contract may be implied or express as in the case of an individual; and this implication may arise from the object of the incorporation as compared with the subject-matter of the contract. Beverley v. Lincoln Gas Company, 6 A. & E. 829. Church v. Imp. Gas Company, ib. 846. But where the object of incorporation does not necessarily imply a power of contracting by parol, the old rule of law requiring the contract to be under seal remains unrelaxed. Mayor of Ludlow v. Charlton, 6 M. & W. 815.

In some cases where goods have been wrongfully taken, the plaintiff may waive the tort and sue on the implied contract. Thus where the defendant by fraud procured the plaintiff to sell goods to an insolvent, and afterwards got them into his own possession, he was held liable in an action for goods sold. Hill v. Perrott, 3 Taunt. 274. ; accord. Abbotts v. Barry, 2 B. & B. 369. But see B. N. P. 130.; Bennett v. Francis, 2 B. & P. 554. So where a father fraudulently represented that he was about to relinquish his business in favour of his son, to whom (being a minor) goods were, upon such representation, supplied, which the father took into his own hands, he was held liable for goods sold and delivered. Biddle v. Levy, 1 Stark. 20.; Read v. Hutchinson, 3 Camp. 352. Where goods are lent, or delivered on the terms of sale or return, and they are retained an unreasonable time, an action for goods sold lies; Bianchi v. Nash, 1 M. & W. 545.; Beverley v. Lincoln Gas Co., 6 A. & E. 829.; and the case of Lyons v. Barnes, 2 Stark. 39., is not law. Where the owner of property, which has been taken away by another, waives the tort, and elects to bring an action of assumpsit for the value, it is incumbent on him to show a title to the property. Per Abbot, C. J., Lee v. Shore, 1 B. & C. 97.

The value of fixtures cannot be recovered under a count for goods sold and delivered; Lee v. Risdon, 7 Taunt. 188.; S. C. 2 Marsh, 495.; nor the value of standing trees; Knowles v. Michel, 13 East, 249. ; see Smith v. Surman, 9 B. & C. 561. But the value of trees, which the defendant has purchased and carried away, may be recovered under a count for trees sold and delivered. Bragg v. Cole, 6 B. Moore, 114. The value of growing crops may be recovered on a count for crops bargained and sold; Parker v. Staniland, 11 East, 362. ; and the value of crops, taken by an incoming from an outgoing tenant, may be recovered under a count for goods sold. Per Holroyd J., in Mayfield v.

Wadsley, 3 B. & C. 364.; Poulter v. Killingbeck, 1 B. & P. 397. A builder is not entitled to recover the value of the building materials under a count for goods sold and delivered; Cotterell v. Apsey, 6 Taunt. 322.; nor can one who contracts to make and erect a steam engine recover the contract price in this form. Clark v. Bulmer, 11 M & W. 243. Where the contract was, that certain goods should be paid for partly in money and partly in buttons, Buller J., held that the plaintiff could not recover under a count for goods sold, but should have declared specially. Harris v. Fowle, cited 1 H. Bl. 287.; Talver v. West, Holt, N. P. C. 179.; but see Hands v. Burton, 9 East, 349. However, where A. agreed to give a horse in exchange for a horse of B. and a sum of money, and the horses were exchanged, but B. refused to pay the money, it was held that it might be recovered under the indebitatus count for a horse sold and delivered. Sheldon v. Cox, 3 B. & C. 420. So in an action to recover the value of a gun for which the defendant was to give another gun and fifteen guineas, Lofd Ellenborough was of opinion, that, upon the refusal of the purchaser to pay for the gun in that mode, a contract resulted to pay its value in money, and that it might be recovered under a count for goods bargained and sold. syth v. Jervis, 1 Stark. 437.; Ingram v. Shirley, 1 Stark. 185.

For

An auctioneer may maintain an action in his own name against the buyer of goods sold by him in the course of his employment. Williams v. Millington, H. Bl. 81. But the auctioneer has only the same right as the party employing him to sell, and the defendant may show that the rightful owner has claimed the value. Dickenson v. Naul, 4 B. & Ad. 638.

Proof of delivery.] A party cannot maintain this action unless he has either delivered the goods or done something equivalent to delivery; as, for instance, by putting it in the vendee's power to take away the goods himself. Per Holroyd J., Smith v. Chance, 2 B. & A. 755. An act may be equivalent to a delivery, though not amounting to an acceptance under the Stat. Frauds. Semb. Thompson v. Maceroni, 3 B. &C. 1. Where A. agreed to sell to B. certain goods, and earnest was paid, and the goods were packed in cloths furnished by B., and deposited in a building belonging to A. till B. should send for them, A. declaring at the same time that they should not be carried away till he was paid, it was held that this was not such a delivery as to entitle A. to maintain an action for goods sold and delivered. Goodall v. Skelton, 2 H. Bl. 316.; see Simmons v. Swift, 5 B. & C. 857. So where goods, sold for ready money, were packed up in boxes of the vendee for him and in his presence, but remained at his request on the premises of the vendor, it was held that goods sold and delivered would not lie. Boulter v. Arnott, 1 C. & M. 333. Where there is an entire contract to deliver a large quantity of goods consisting of distinct parcels within a specified time, and the seller delivers part, he cannot, before the expiration of that time, bring an action to recover the price of the part delivered; because the purchaser may, if the vendor fail to complete his contract, return the part delivered. But if he retain the part delivered after the seller has failed in performing his contract, the latter may recover the value of the goods so delivered. Oxendale v. Wetherell, 9 B. & C. 386.; Shipton v. Casson, 5 B. & C. 383. Where the defendant hired a musical snuff-box on the understanding that if it was damaged

he was to retain and pay for it, on its being so damaged it was held that the plaintiff might bring goods sold and delivered for the price. Bianchi v. Nash, 1 M. & W. 545.; Beverley v Lincoln Gas Co., 6 A. & E. 829. A contract to deliver means a delivery at usual and convenient hours. Thus an offer to deliver several tons of oil at an unseasonable hour of the night, was held not to satisfy a contract to deliver, generally, within a certain number of days. Startup v. Macdonald, 2 M. & G. 395. If the delivery deviates from the mode pointed out by the buyer, yet if notice is sent to him, and he does not repudiate it, he is liable. Richardson v. Dunn, 2 Q. B. 218.

To whom delivered.] Proof of a delivery to a third person, at the defendant's request, will support a count for goods sold delivered to the defendant. Bull v. Sibbs, 8 T. R. 328. A delivery to a carrier, by whom goods have been usually sent by the plaintiff to the defendant, is a delivery to the defendant; Hart v. Sattley, 3 Camp. 528.; and where a tradesman orders goods to be sent by a carrier, though he does not name any particular one, a delivery to the carrier operates as a delivery to the purchaser. Dutton v. Solomonson, 3 B. & P. 584.; Groning v. Mendham, 5 M. & S. 189. An order for delivery of a rick of hay on a third person, who consents to let it remain on his land, is a sufficient delivery as between the seller and buyer, the latter having undertaken to carry it away himself; but quære, whether the action should not be for goods bargained and sold, if the owner of the land afterwards wrongfully refuses to deliver to the buyer? Salter v. Woollams, 2 M. & G. 650. 654. See also Elliott v. Pybus, 10 Bing. 512. Where a tradesman makes out an account for goods sold to a particular person, it must be taken as against him that they were furnished on the credit of such person, unless it be shown by unequivocal evidence that the credit was in fact given to another. Storr v. Scott, 6 C. & P. 241.; and see Thomson v. Davenport, 9 B. & C. 86., post, p. 277. In these and similar cases where the goods are above the value of 101. a further question may arise, whether there has been a sufficient acceptance of the goods within the Statute of Frauds, so as to make the contract valid without a note or memorandum in writing; as to which see post, p. 278–281.

Delivery to partner.] A question frequently arises in actions for goods sold and delivered, whether the defendants are jointly liable as partners. Although the defendant cannot compel the joinder of a dormant partner by a plea in abatement, yet the dormant partner may, at the option of the plaintiff, be joined as defendant. Lloyd v. Archbowle, 2 Taunt. 327.; Ruppell v. Roberts, 4 Nev. & M. 31. It was held by the court of C. P. that the rule does not extend to the case of an express written contract formally drawn up inter partes; and that therefore, where K. and S. entered into a written engagement to employ the plaintiff in their trade for seven years, the plaintiff could not sue D. a dormant partner with K. and S., he not being a party to the agreement. Beckham v. Knight, 4 New Ca. 243. But this case was, in effect, overruled on error. S. C., 1 M. & G. 738., and see Beckham v. Drake, 9 M. & W. 79. Though a partnership is constituted by deed, it may, as already stated (antè, p. 2.), be proved by parol evidence. An examined copy of an answer in Chancery by two of

the defendants to a bill of a third defendant, charging them as partners and praying for an account, is good evidence to prove the partnership as against the person so answering. Studdy v. Sanders, 2 D. & R. 347.

Proof that the defendants suffered their names to be used as partners will be sufficient. If it can be proved that the defendant has held himself out to be a partner, not "to the world," for that is a loose expression, but to the plaintiff himself, or under such circumstances of publicity as to satisfy a jury that the plaintiff knew of it and believed him to be a partner, he is liable to the plaintiff in all transactions in which he gave credit to the defendant upon the faith of his being such partner. Per Parke J., Dickinson v. Valpy, 10 B. & C. 140. Though, in point of fact, parties are not partners in trade, yet if one so represents himself, and thereby gets credit for goods for the other, both are liable. Per Lord Kenyon C. J., De Berkom v. Smith, 1 Esp. 29. ; Kell v. Nainby, 10 B. & C. 21. So persons who have been appointed directors of a joint stock company are liable, not having expressly retired from the direction. Doubleday v. Muskett, 7 Bing. 110. And if the name of a clerk be used in a firm with his own consent, he is liable to third persons as a partner, though he receives no part of the profits. Guidon v. Robson, 2 Camp. 302. Persons may be partners in a particular concern or business, yet if they do not hold themselves out as general partners, it will not make them liable in other cases not connected with such particular business. De Berkom v. Smith, 1 Esp. 29. And where there is a stipulation between A., B., and C., apparent copartners, that C. shall not participate in the profit and loss and shall not be liable as a partner, he is not liable as such to those persons who have notice of the stipulation. Alderson v. Pope, 1 Camp. 404. (~); Ridgway v. Philip, 1 C. M. & R. 415. The plaintiff must show that the name of the defendant was used in the firm with his own consent. Newsome v. Coles, 2 Camp. 617.; 2 H. Bl. 235. (n), 4th ed. Where a person allows his name to remain in a firm, either exposed to the public over a shop-door, or used in printed invoices or bills of parcels, or published in advertisements, the knowledge of the party that his name is used, and his assent thereto, is the very ground upon which he is estopped from disputing his liability as a partner. Per Tindal C. J., Fox v. Clifton, 6 Bing. 794. If a firm, consisting o. several, carry on business in the name of one of the partners, the whole firm will be bound by acts done by him as representing the firm. South Carolina Bank v. Case, 8 B. & C. 427.; Vere v. Ashby, 10 B. & C. 293.

The liability of a person, as partner, may also be proved by showing that he participated in the profits of the concern; and it is immaterial whether he receives the profits for his own use, or as a trustee for others. Thus the executors of a deceased partner, carrying on trade for the benefit of the estate, are liable personally as co-partners. Wightman v. Townroe, 1 M. & S. 412. However small the portion o. profits received, it renders the party liable to all the engagements of the partnership. R. v. Dodd, 9 East, 527. And it is immaterial whether the plaintiff knew at the time of his dealing with the concern that the party, whom he charges as a partner, participated in the profits. Ex parte Gellar, 1 Rose, 297.; Vere v. Ashby, 10 B. & C. 288. The shareholders in a mining company, conducted by directors, are personally