at the price of $- to be paid by the plaintiff to the defendant for the same, the defendant promised the plaintiff that the said horse was then sound; and the plaintiff bought the said horse of the defendant and paid him the said $ for the same; yet at the time of the making of the said promise by the defendant the said horse was not sound, whereby the said horse was of no use or value to the plaintiff, and the plaintiff has lost the expense incurred by him in keeping and feeding the said horse and attempting to cure the same.] (g)

2. On a Warranty on a Sale of Goods by Sample. (h)

For that the defendant sold to the plaintiff (ten quarters of barley) by producing to him a pretended sample thereof and warranting that the said barley was equal in quality and description to such sample; yet the said barley was not then equal in quality or description to the said sample, whereby the plaintiff lost divers gains and profits which would otherwise have accrued to him, as also the price which he paid the defendant for the same. [Add count for money had and received, and on an account stated.]

3. On a Warranty that Manufactured Goods were fit for the Purpose for which they were bought. (i)

For that the defendant, by warranting that certain copper was fit and proper for sheathing a ship of the plaintiff, sold the same to the plaintiff for such purpose, yet the said copper was not fit and proper for the said purpose; (k) and the plaintiff, after having used the said copper for the said purpose, incurred great expense in having the same removed from his ship, and causing the same to be sheathed with other and fit and proper copper.

4. On a Warranty of the Quality of Goods sold by Description.

For that the defendant, by warranting a cargo of Aracan rice "to arrive" to be fair average Necrensie rice, the plaintiff bought from the defendant, and the defendant sold to the plaintiff the said cargo; and although the plaintiff has performed all conditions precedent on his part, and all events have hap

(g) [Count on an implied warranty on the sale of a barge that it was reasonably fit for use; Shepherd v. Pybus, 3 M. & G. 868; on a warranty that a ship sold was copperfastened; Shepherd v. Kain, 5 B. & Ald. 240; on a warranty of the soundness of a yacht; Stucley v. Baily, 1 H. & C. 405; on a warranty that the carcass of a pig offered for sale was fit for human food; Burnby v. Bollett, 16 M. & W. 644; on a warranty that a cow was free from disease, claiming damages for loss of other cows infected by the cow warranted. Mullett v. Mason, L. R. 1 C. P. 559.]

(h) See ante, Obs., and a form on a warranty that wheat sold was equal to report and sample. Russell v. Nicolopulo, 8 C. B. N. S. 363. See, also, Parkinson v. Lee, 2 East, 314; Parker v. Palmer, 4 B. & Ad. 387. There is an implied warranty to the effect stated above, unless the contract be reduced into writing, and the sample be not referred to; Meyer v. Everth, 4 Camp. 22;

Gardiner v. Gray, Ib. 145; Tye v. Fynmore, 3 Camp. 462; in which case, if the sale be by sample, the remedy would lie in tort for the deceit. It would be incorrect in the above case to lay a promise that the goods should be of a particular quality, or good and merchantable. Ib.; Laing v. Fidgeon, 4 Camp. 169; 6 Taunt. 108.

(i) See ante, Obs.; Shepherd v. Pybus, 3 M. & G. 868. See forms, Jones v. Bright, 5 Bing. 533; Gray v. Cox, 4 B. & C. 108. Bargain and sale of a ship does not imply any contract that she is seaworthy or in a serviceable condition. Barr v. Gibson, 3 M. & W. 390; M. & P. on Shipping, 32, 3d ed.

(k) The purpose must be specially pointed out, and the above cause of action could not be given in evidence under a count alleging generally that the copper was bought under a warranty that it was reasonably fit for use, with breach of that warranty. Shepherd v. Pybus, 3 M. & G. 868.

* 280 in th

1 B

value to the plaintiff than it otherwise would have been, and he has been mentan
obliged to resell the same at a loss, and has incurred great expense in and
about ascertaining the quality of the said rice, and in and about warehousing
the same. (1)

5. For selling Pictures as Canaletti's which were not so.

Power v. Barham, 4 Ad. & E. 473.

6. On the Warranty of a Horse, on an Exchange of Horses. (m)

S

For that in consideration that the plaintiff would deliver to the defendant certain horse of the plaintiff, and also pay to the defendant £, in exchanges for a certain horse of the defendant, the defendant then warranted that the said last-mentioned horse was then sound; and the plaintiff then delivered to the

Dere is no

must pay him

bind the bills

with

defendant the said first-mentioned horse, and paid him the said sum of money of going
yet the said horse of the defendant at the time of the making of his said prom. Bing
ise was not sound, whereby the same became and was of no use or value to
the plaintiff, and thereby [&c.; state special damage, as in Form 1, ante, and
conclude as there directed].

Pre not previou , 1 B. Table dough h As an attorn express under ailed witnes 2002 make surv aatination as a

7. Upon a Warranty of a Vendor of Goods sold to the Plaintiff, that the Defendant had Power to sell them. (n)

to ne shilling

For that the defendant, by warranting that he then had lawful right and title to sell and dispose of certain goods, sold the same to the plaintiff the defendant had not lawful right or title to sell or dispose of the said goods whereby the plaintiff was obliged to deliver up the same to E. F., who has for more th the lawful right and title thereto, and the said goods were lost to the plainti and he has been deprived of the benefits and profits he would otherwise have derived and acquired from the same. [Conclude as directed in Form 1.]

WHARFAGE. See "Carriers," ante, 97.

13. The con by the perso

Against a Wharfinger, for losing Goods delivered to him to be shippe
by a Particular Vessel.
2 Chit. on Pl. 259, 7th ed.

(1) The allegation of damage must be according to the facts. [See forms; Wieler v. Schilizzi, 17 C. B. 619; sale of manure by warranty; Dingle v. Hare, 7 C. B. N. S. 145; sale of a cargo of rice; Vernede v.

the attenda c30 expenses I LJ Q. B. 39. S 24. Trombly, 9 N

(m) See a form, Fairmaner v. Badd Bing. 574; and form 1, ante, 259; W ster v. Hodgskins, 25 N. H. 128, 142 warranty of soundness is not implied the exchange of horses. See La Neuville 299.

tions for Wrong

1. By a W essarily inc this request, badant wa

account st

Weber, 1 H. & N. 311; Simond v. Braddon, Nourse, 3 Camp. 351; Emanuel v. Danes for no

2 C. B. N. S. 324; on a warranty that a cargo of corn had been shipped in good and merchantable condition; Dickson v. Zizinia, 10 C. B. 602; on a warranty on a sale of seed barley, charging special damages by liabilities to sub-purchasers. Randall v. Raper, El., Bl. & El. 84; Carter v. Crick, 4 H. & N. 412.]

94;

Keeble . Pay

(n) See ante, Obs.; Chit. jr. Contr.; M
ley v. Attenborough, 3 Ex. 500; Alle
Hopkins, 13 M. & W.
8 Ad. & E. 554; Lee v. Shore, 1 B. &
In cases of actual fraud, case would be
more appropriate form of action.

Agreement a

Dempsey, 7

WITNESS.

OBS. A witness cannot in general recover compensation for his loss of time, although an express promise be given him that he shall be paid for it; Willis v. Peckam, 1 B. & B. 515; [Dodge v. Stiles, 26 Conn. 463;] even in the case of a merchant coming from abroad as a witness; Moor v. Adam, 5 M. & S. 156; and see Lonergan v. The Royal Exchange Assurance Co. 7 Bing. 729; as also in the case of an attorney attending upon a subpœna. Collins v. Godefroy, 1 B. & Ad. 950. But there is a distinction between the case of a man who sees a fact and is called to prove it in a court of justice, and that of a man who is selected by a party to give his opinion on a matter with which he is peculiarly conversant from the nature of his employment in life. The former is bound, as a matter of public duty, to speak to a fact which happens to have fallen within his knowledge; without such testimony the course of justice must be stopped. The latter is under no such obligation. There is no such necessity for his evidence, and the party who selects him must pay him." Per Maule J. Webb v. Page, 1 C. & K. 23. Strictly no conduct money need be tendered to a witness in town in a town cause; Jacob v. Hungate, 3 Dowl. 456; although the usual practice is, in town causes, if the witness reside within the bills of mortality, to pay or tender to him one shilling. But if the cause is an assize cause, or the witness live beyond the bills of mortality, he must be paid or tendered his reasonable expenses of going to, staying at, and returning from the place of trial. Betteley v. McLeod, 3 Bing. N. C. 407; [2 Chitty Contr. (11th Am. ed.) 873 et seq. and notes.] A witness, though he refuse to give evidence because his expenses were not previously tendered, may sue for his reasonable expenses; Collins. Godefroy, 1 B. & Ad. 950; but the attorney in the cause is not personally liable though he issues the subpoena. Robins v. Bridge, 3 M. & W. 114. Nor is an attorney, being in the position of an agent for his client, without an express undertaking on his part, liable for the charges or expenses of a skilled witness retained by him, in pursuance of his general instructions, to make surveys, researches, calculations, or experiments, with a view to examination as a witness in his client's cause. The client in such a case is primâ facie liable. Lee r. Everest, 2 H. & N. 285; 26 L. J. Ex. 334. The party in the cause is liable for expenses, if reasonable, where a witness has received a subpoena to attend; Pell v. Daubeny, 5 Ex. 955; 20 L. J. Ex. 44; but not for more than has been actually expended, though that may not amount to one shilling per mile. Hunter v. Liddell, 16 Q. B. 402; 20 L. J. Q. B. 426. The conduct money received with a subpoena may be recovered back by the person paying it, in an action for money had and received, where the attendance of the witness becomes unnecessary and he has incurred no expenses under the subpoena. Martin v. Andrews, 7 El. & Bl. 1; 26 L. J. Q. B. 39. See, also, Hale v. Bates, 28 L. J. Q. B. 14. [But see Leighton v. Twombly, 9 N. H. 483.] For not attending upon a subpoena, see post, Actions for Wrongs, tit. "Witness."

1. By a Witness for his Expenses.

For expenses necessarily incurred by the plaintiff in attending as a witness for the defendant, at his request, to give evidence upon the trial of a certain action wherein the defendant was [plaintiff or defendant]. [Add a count for money paid and on an account stated.]

2. Against a Witness for not appearing at a Trial pursuant to his Agreement and without a Subpoena.

Yeatman v. Dempsey, 7 C. B. N. S. 628; 9 C. B. N. S. 881.

WORK AND MATERIALS.

OBS.-See, in general, Chit. jr. Contr.; Roscoe on Evid. tit. " Work." See the common indebitatus count, ante, 33; and as to when it lies, ante, 28, Obs. See the usual indebitatus counts for Attorneys, Surgeons, and Apothecaries, ante, 59, 49; Auctioneers, &c. ante, 62; Carriers, ante, 97; à Servant's salary or wages, ante, 207; Undertakers, &c. ante, 249.

Where the plaintiff was to be paid an entire sum on the completion of the work, and the defendant has wrongfully discharged the plaintiff from completing work agreed to be performed; or where, although the contract contains no particular clause as to payment, the plaintiff claims, not only the price and value of the work and materials actually done and provided, but also damages for the loss of the profits he would have acquired had the defendant allowed him to finish the work agreed for, the declaration should be special, see ante, tit. "Master and Servant," 208, note (g); Hulle v. Heightman, 2 East, 145. It is also proper to declare specially where the plaintiff was to be paid by a bill of exchange, and the bill would not, if given, have been due when the writ was issued. Ante, 234, Sale of Goods." And it is often prudent to declare specially on a written agreement to perform work, &c. although the common count would be sufficient. There may be a special count on an agreement, and the common count for extra work. As to which, see Pepper v. Burland, Peake's R. 103; Wilmot v. Smith, 3 C. & P. 453; Lovelock v. King, 1 M. & R. 60; [2 Chitty Contr. (11th Am. ed.) 823, 824, and notes.]

Where there is a special contract to perform work, &c. in a particular manner, and the plaintiff has done work, &c. but has departed from the contract in regard to the description or quality of the work or materials, he is entitled to recover to the extent of the real value of the work and materials actually done and provided, and the benefit whereof the plaintiff has received (not the sum fixed by the contract), but must not declare in such case specially upon the contract. See Chit. Contr.; Allen v. Cameron, 1 Cr. & M. 832. In Chapel v. Hicks, 2 Cr. & M. 214, which was an action on a special contract, for work done under the contract, and for work, labor, and materials generally, it was held that the defendant may give in evidence that the work has been done improperly, and not agreeably to the contract; and the plaintiff in that case will only be entitled to recover the real value of the work done and the materials supplied; and Lord Lyndhurst C. B. said: "If the plaintiff has not performed the work in the manner which by the contract he agreed to do, he cannot recover on the contract, but must recover on the counts in his declaration for the work which he has done. Suppose, on a contract to build a house of Baltic timber, the contractor builds it of timber of a different description, upon what principle is he entitled to recover, except for the work, labor, and materials? It cannot be consistent with reason that a party who has not performed his contract should recover the full amount for which he has stipulated, and that the other party should be driven to a cross-action against him for not performing the work according to the contract." And see Baillie v. Kell, 4 Bing. N. C. 638; [2 Chitty Contr. (11th Am. ed.) 825, and notes; Blodgett v. The Berlin Mills Co. 52 N. H. 215.]

In general, where the contract is to complete an article, no remuneration is recoverable for partial work done. Sinclair v. Bowles, 9 B. & C. 92; [Story Bailments (2d ed.), 441 b; Hill v. Millburn, 17 Maine, 316; St. Albans Steamboat v. Wilkins, 8 Vt. 54; Kettle v. Harvey, 21 Vt. 301; Faxon v. Mansfield, 2 Mass. 147; Morton J. in Olmstead v. Beale, 19 Pick. 528; Brown v. Vinal, 3 Met. 533; McCarren v. McNulty, 7 Gray, 139; Sloan . Hayden, 110 Mass. 141, 143; Clark v. Smith, 14 John. 326; Jenkins v. Camp. 13 John. 94; Pierce v. Schenk, 3 Hill, 28; Cobb v. West, 4 Duer, 38; Young v. White, 5 Watts, 460; Knox J. in Wade v. Haycock, 25 Penn. St. 383.] But a shipwright may recover to the extent of partial repairs done to a ship, though he were employed (generally) to put it in thorough repair. Roberts v. Havelock, 3 B. & Ad. 404; Cousins v. Paddon, 2 Cr., M. & R. 547; Fitt v. Cassanet, 4 M. & G. 898, 902. In the case of a contract to make an article with materials the property of or to be provided by the workman, if the specific article ordered

OBS. has not become the property of the person who employed the workman, by having been appropriated to the use of, or set apart and accepted by, the employer, or treated by both parties as his property, the price of work and materials cannot be recovered upon the common count; and the declaration should be specially framed for not accepting the article, stating that the plaintiff was to manufacture it, and did so, and was ready to deliver it, &c. See forms, ante, 237-239; and cases collected Chit. jr. Contr.; Atkinson r. Bell, 8 B. & C. 277; Carruthers v. Payne, 5 Bing. 270; Maberley v. Shepperd, 10 Bing. 99: Elliott v. Pybus, 10 Bing. 512; Alexander v. Gardner, 1 Bing. N. C. 671. A contract for goods of the value of £10 or upwards must be in writing, and signed by the party charged, although the goods are to be made, &c. at a future time. 9 Geo. 4, c. 14, s. 7. As to a parol agreement for additions, see Hoadley v. Maclain, 10 Bing. 482. [Where a contract stipulates that no extra work shall be paid for unless ordered in writing, the price of extra work done without such order cannot be recovered; Russel v. Viscount Sa da Bandiera, 13 C. B. N. S. 149; and the mere want of writing gives no claim in equity. Kirk v. Bromley Union, 2 Phil. 640. The want of the previous order cannot be supplied by an order given subsequently to performance. Lamprell v. Billericay Union, 3 Ex. 283. Where by the contract the architect was to certify the proper sum to be paid for work and extras, and his decision was to be final, it was held that his certificate that a sum was due precluded the defendant from raising the question whether there was a sufficient order in writing. Goodyear . Mayor of Weymouth, 1 H. & R. 67; 35 L. J. C. P. 12. Form of count for extra work provided to be done under the contract according to a written order, Lamprell v. Billericay Union, 3 Ex. 283; count, averring waiver of the writing; Rigby v. Mayor of Bristol. 29 L. J. Ex. 359; count on a contract under seal to build a ship, with a stipulation that no alterations should be made unless ordered in writing, averring a discharge of the stipulation, and claiming for alterations; Thames Iron Works & Shipbuilding Co. v. Royal Mail Steam Packet Co. 13 C. B. N. S. 358; count under a contract for work to be paid for upon the architect's certificate, charging that the architect neglected to certify in collusion with and by procurement of the defendant. Batterbury v. H. & C. 42.]

Vyse, 2

1. Special Form for Work done under an Agreement. (o) For that by an agreement made between the plaintiff and the defendant, the plaintiff agreed to make for the defendant [a three-horse power portable threshing machine, to be worked by a four-horse engine, to thresh from twenty to twenty-five quarters of wheat in a day; to put up the new machine at Tanholt, where an old one then stood, in a complete workmanlike manner, and to take down, at the plaintiff's own expense, the old one then standing at Tanholt, the defendant to deliver the old machine at the plaintiff's yard at P., and also to fetch the new one to T., the old one to be taken by the plaintiff at £20, and the defendant to pay to the plaintiff £30 in exchange for the new one, and the new machine to be put down in a complete working state in two months from the date of the agreement]; and although the plaintiff has performed all conditions precedent on his part, and all events have happened, and all times have elapsed, to entitle the plaintiff to a performance of the defendant's contract, and to enable the plaintiff to maintain this action, of which the defendant had notice, and the defendant was requested by the plaintiff to pay him the sum of £30, according to the said agreement, yet the defendant has not paid the same. [Add account stated.]

(0) See form, &c. Varley v. Manton, 9 for work done in getting up a company Bing. 363. [Declaration against company Savin v. The Hoylake Ry. Co. L. R. 1 Ex. 9.]