and the defendant, on being informed by letter that the iron had been dispatched, declined to receive it. Upon this evidence, the learned judge directed a verdict to be entered for the defendant, with leave to the plaintiffs to move to enter the verdict for them if the Court should be of opinion that there was any evidence of a delivery and acceptance within the contract. H. Matthews, Q.C., in Easter Term, 1875, obtained a rule nisi. Powell, Q.C., and Bosanquet, shewed cause. To sustain this rule, the plaintiffs must rely upon a new agreement for delivery of the 25 tons in October. What passed between the plaintiffs' manager and the defendant on the 15th of October did not amount to a contract; and, if it did, it was entirely a new contract, which, not being in writing, was not enforceable. Under the original contract, the delivery was to be completed in July, and at the defendant's works. There was clearly no delivery or acceptance under the original contract. In Marshall v. Lynn (1) it was held that the terms of a written contract for the sale of goods falling within the operation of the Statute of Frauds, cannot be varied ar altered by parol; and that, where a contract for the bargain and sale of goods is made stating a time for the delivery of them, an agreement to substitute another day for that purpose, must, in order to be valid, be also in writing. Parke, B., there says: "Here, there was an original contract in writing to send these goods by the first vessel; an alteration as to the time of their delivery was subsequently made by parol; and the point to be decided is, whether such an alteration by parol of the written contract can be binding. It appears to me that it cannot; and that the same rule must prevail as to the construction of the 17th section of the Statute of Frauds which has already prevailed as to the construction of the 4th section. The decision in Goss v. Lord Nugent (2), the principle of which I have no doubt is perfectly correct, has clearly established, with respect to the case of a contract relating to the sale of an interest in lands, that, if the original written contract be varied, and a new contract as to any of its terms substituted in (2) 5 B. & Ad. 58. (1) 6 M. & W. 109. 1876 PLEVINS V. the place of it, that new contract cannot be enforced in law, unless it also be in writing." And he treats Stead v. Dawber (1) as an DOWNING. authority in point. So, in Stowell v. Robinson (2), it was distinctly held that the day for the completion of the purchase of an interest in land inserted in a written contract cannot be waived by oral agreement, and another day substituted in its place. All that was decided in Noble v. Ward (3) was, that an invalid agreement for the extension of the time for the delivery of goods under a written contract, did not effect an implied rescission of the original contract. The facts in Hickman v. Haynes (4) were essentially different from those of the present case. There, the plaintiff voluntarily withheld delivery of the iron at the request of the defendants; here, the parol agreement (if any) to accept the iron was after breach, and therefore could only be relied on as a new contract; and, in giving judgment, the Court expressly says, “The result of the cases appears to be that neither a plaintiff nor a defendant can at law avail himself of a parol agreement to vary or enlarge the time for performing a contract previously entered into in writing, and required so to be by the Statute of Frauds. . . . In conclusion, we think that, although the plaintiff assented to the defendant's request not to deliver the 25 tons of iron in question in June, he was in truth ready and willing then to deliver them, and that the defendants are at all events estopped from averring the contrary." Here, there was no request on the part of the defendant to forbear to deliver in July, and therefore the plaintiff's cannot recover upon the original contract. Matthews, Q.C., and Jelf, in support of the rule. The only question is whether there was any evidence to go to the jury of an agreement to vary the time of delivery. [BRETT, J. Are you suing upon the original or upon a substituted contract?] Upon the original contract. There was evidence that the parties, for their mutual convenience, agreed to substitute one mode of performance for another; and that may be done by parol. [BRETT, J. Could the plaintiffs on the expiration of the month of July have sued the defendant for not accepting the iron ?] (1) 10 A. & E. 57. (3) Law Rep. 2 Ex. 135. Undoubtedly he could not. 1876 [BRETT, J. Could the defendant then have sued the plaintiffs PLEVINS for not delivering ?] In the judgment in Hickman v. Haynes (1), it is said: "The distinction between a substitution of one agreement for another and a voluntary forbearance to deliver at the request of another, was pointed out and recognised in Ogle v. Lord Vane. (2) In that case the plaintiff sued the defendant for not delivering iron pursuant to a written contract, and the plaintiff sought to recover as damages the difference between the contract price of the iron and the market price, not at the time of the defendant's breach, but at a later time, the plaintiff having been induced to wait by the defendant, and having waited for his convenience. It was contended that the plaintiff was in fact suing for the breach of a new verbal agreement for delivery at a later date than that fixed by the original agreement: but the Court held otherwise, and that, as the plaintiff had merely forborne to press the defendant, and had not bound himself by any fresh agreement, the plaintiff could sue on the original agreement, and obtain larger damages than he could have obtained if he had not waited to suit the defendant's convenience." A contract about the time of delivery of goods under a written contract, is not within the Statute of Frauds: Tyers v. Rosedale and Ferryhill Iron Co. (3) [GROVE, J. That would be overruling Stead v. Dawber (4), Noble v. Ward (5), and several other cases. BRETT, J. In Tyers v. Rosedale and Ferryhill Iron Co. (3), the second contract was in writing.] In Ogle v. Lord Vane (2), the only question was upon what principle the damages were to be assessed. [BRETT, J. How do you distinguish Noble v. Ward? (5)] As it was distinguished by the Court in Hickman v. Haynes (6),— it" merely shews that a parol agreement to extend the time for performing a contract in writing, and required so to be by the Statute of Frauds, does not rescind, vary, or in any way affect such written (1) Law Rep. 10 C. P. at p. 606. (2) Law Rep. 2 Q. B. 275; in error, Law Rep. 3 Q. B. 272. (3) Law Rep. 8 Ex. 305; in error, Law Rep. 10 Ex. 195. (4) 10 A. & E. 57. (6) Law Rep. 10 C. P. at p. 604. v. DOWNING. 1876 PLEVINS v. DOWNING. contract, and cannot in law be substituted for it." There clearly was some evidence to go to the jury. A waiver of the condition as to time may be either by words or by acts and conduct. An assent to the substituted performance of a contract for the transmission of goods in the change of route need not be in writing: Leather Cloth Co. v. Hieronimus. (1) If there was a new contract, there clearly was evidence of a delivery and acceptance under it which entitled the plaintiffs to sue for the price of goods sold and delivered. Cur, adv. vult. Feb. 18. The judgment of the Court (Brett, Grove, and Denman, JJ.,) was delivered by BRETT, J. In this case, which was tried before Quain, J., at the last spring assizes at Stafford, the action was for non-acceptance of iron. There was a plea that the plaintiffs were not ready and willing to deliver according to the terms of the contract. Upon the issue on this plea the learned judge directed the verdict to be entered for the defendant, with leave to the plaintiffs to move to enter a verdict for them if there was any evidence to go to the jury in support of their claim. A rule nisi having been obtained, the case was argued before us. 66 The action was founded on the following bought-note:'Bought of Messrs. Plevins & Co. 100 tons of grey forge pig-iron at 75s. per ton, delivered to my works. Payment in cash, less 23 per cent. discount, on the 10th of each month following delivery. Delivery, 25 tons at once, and 75 tons in July next." Signed by the defendant. By the end of July the plaintiffs had delivered and the defendant had accepted 75 tons. There was no evidence of any request by the defendant to the plaintiffs, made before the end of July, to withhold delivery of the remaining 25 tons till after the end of July. But there was evidence that in October the defendant verbally requested the plaintiffs to send him the remaining 25 tons, and that the plaintiffs did in October forward 25 tons addressed to the defendant; but the iron did not arrive at the defendant's (1) Law Rep. 10 Q. B. 140. works, and the defendant, on being informed by letter of the dispatch of the iron, wrote refusing to accept it. It was argued for the plaintiffs that they could maintain the action upon the original contract; that they were not driven to rely upon an alteration of it as to the period of delivery, or upon a new contract; that the request of the defendant, acceded to by the plaintiffs, was only an arrangement as to a mode of performing the original contract. It was further argued that, if there was a new contract, there was evidence of a delivery under it which entitled the plaintiffs to sue for the price of goods sold and delivered. It seems to us, however, that the verdict was rightly directed to be entered for the defendant. It is true that a distinction has been pointed out and recognised between an alteration of the original contract in such cases, and an arrangement as to the mode of performing it. If the parties have attempted to do the first by words only, the Court cannot give effect, in favor of either, to such attempt; if the parties make an arrangement as to the second, though such arrangement be only made by words, it can be enforced. The question is what is the test in such an action as the present, whether the case is within the one rule or the other. Where the vendor, being ready to deliver within the agreed time, is shewn to have withheld his offer to deliver till after the agreed time in consequence of a request to him to do so made by the vendee before the expiration of the agreed time, and where after the expiration of the agreed time, and within a reasonable time, the vendor proposes to deliver and the vendee refuses to accept, the vendor can recover damages. He can properly aver and prove that he was ready and willing to deliver according to the terms of the original contract. He shews that he was so, but that he did not offer to deliver within the agreed time because he was within such time requested by the vendee not to do so. In such case it is said that the original contract is unaltered, and that the arrangement has reference only to the mode of performing it. But, if the alteration of the period of delivery were made at the request of the vendor, though such request were made during the agreed period for delivery, so that the vendor would be obliged, if 1876 PLEVINS V. DOWNING. |