have withdrawn the indulgence and demanded acceptance of the HICKMAN goods. 1875 ບ. HAYNES. It has never been decided that the party for whose benefit a condition precedent is to be performed may not waive it by parol though the contract is within the Statute of Frauds. The defendants are estopped from saying that the plaintiff was not ready to deliver in June, inasmuch as but for their own request the plaintiff was ready and willing to deliver. [He cited Tyers v. Rosedale Iron Co. (1); Leather Cloth Co. v. Hieronimus. (2)] Benjamin, Q.C., and Bosanquet, supported the rule. There never was any breach of the original contract, and the new agreement for delivery at a later period, being by parol only, cannot be valid. The contention of the plaintiff that there was a prospective breach before the expiration of the time for delivery, according to the principle laid down in Hochster v. De la Tour (3) and that class of cases, cannot be sustained; for, in order to make the prospective refusal of the defendants to perform a breach, it must be accepted as such. If the plaintiff does not accept it as such, but goes on with the contract, he cannot afterwards say it was broken before the time for performance: Frost v. Knight. (4) Here, the defendants' statement that they would not take delivery is not treated as a breach by the plaintiff. Then, if this be so, there is no evidence of a breach in June, because before the time for delivery, and before breach, the parties mutually arranged that the one should not make or the other accept delivery in June. There can be no refusal to accept in June, because there was no tender of delivery. Ogle v. Lord Vane (5) is not the present case; there, a breach having been committed, the plaintiff voluntarily forbore to insist on performance, and it was held that this might postpone the period of calculating the damages. Here, the agreement to postpone was before breach. It is clear that the parties did not contemplate that after that arrangement non-acceptance in June should constitute a breach of contract. (1) Law Rep. 8 Ex. 305; Law Rep. 10 Ex. 195. (2) Law Rep. 10 Q. B. 140. (3) 2 E. & B. 678; 22 L. J. (Q.B.) 455. (4) Law Rep. 5 Ex. 322; Law Rep. 7 Ex. 111. (5) Law Rep. 2 Q. B. 275; Law Rep. 3 Q. B. 272. [They cited Noble v. Ward (1); Marshall v. Lynn (2); Stead v. Dawber (3); Goss v. Lord Nugent. (4)] Cur. adv. vult. July 9. The judgment of the Court (Lord Coleridge, C.J., Grove, Archibald, and Lindley, JJ.,) was delivered by LINDLEY, J. This was an action for not accepting certain iron agreed to be sold by the plaintiff to the defendants. The contract for sale of the iron was in writing, and was required so to be by the 17th section of the Statute of Frauds. The bought-note was as follows: "Tipton, 6th March, 1873. Bought of Alfred Hickman, Esq., one hundred tons of Grey Forge Mine pig iron, at 77. 10s. per ton. Delivered at Tividale Street Mills, Tipton. Payment in cash, less 21 discount, monthly. Delivery twenty-five tons this month, and twenty-five tons per month during April, May, and June next. "The Tividale Iron Company. J. P. Haynes." Pursuant to this contract the plaintiff delivered and the defendants accepted and paid for seventy-five tons of the iron; but, owing to the circumstances stated below, the plaintiff did not deliver the last twenty-five tons, for the price of which the action is brought. It appears from the evidence taken at the trial, that, on the 2nd of June, and again in the middle of June, the defendant Haynes saw the plaintiff, and verbally requested him to allow the delivery of the last twenty-five tons to stand over, and that the plaintiff verbally assented to this request; and accordingly nothing further was done by either side until the 1st of August, 1873, when plaintiff wrote to defendants as follows:-"Permit me to call your attention to your contract with me for pig iron, of which twenty-five tons remain to be delivered. I have held them until now, as you requested, and shall be glad to know when you propose to take delivery. If it is not convenient for you to take the (2) 6 M. & W. 109. (3) 10 A. & E. 57. (1) Law Rep. 1 Ex. 117; Law Rep. 2 Ex. 135. 1875 HICKMAN V. HAYNES. VOL. X. (4) 5 B. & Ad. 58. 2 1875 .HICKMAN v. HAYNES. iron, I shall be glad to know if you will be willing to pay the difference in price, if I instruct Mr. Lewis to sell them." This led to some correspondence, which was terminated by a letter written by the defendants on the 9th of August, asking for more time. The plaintiff again waited for a reasonable time, but without result. On the 20th of October, 1874, the writ was issued. The case was sent for trial in the Dudley county court, and was tried there on the 28th of May, 1875, when a verdict was found for the plaintiff, damages 257., with leave for the defendants to move for a nonsuit, or for a reduction of the damages. Pursuant to the leave thus reserved, a rule was obtained to shew cause why a nonsuit should not be entered, on the ground that the parol agreement to postpone delivery of the iron was invalid under the Statute of Frauds, or why the damages should not be reduced to 217. 17s. 6d., or to 77. 5s., if the Court should be of opinion that they ought to be assessed on the 30th of June, 1873, or on the 2nd of June, 1873. The declaration was framed upon the contract above set forth, and averred as a breach, that, although the defendants had accepted and paid for seventy-five tons, they would neither accept nor pay for the last twenty-five tons; alleging also that the defendants had exonerated the plaintiff from delivering the twentyfive tons at the Tividale Street Mills, as agreed. Amongst other pleas, the defendants traversed the alleged exoneration, and also pleaded, thirdly, that the plaintiff was not ready and willing to deliver the said twenty-five tons according to the terms of the agreement; and, fifthly, that before breach the plaintiff discharged the defendants from further performance of the agreement. In this state of the record, and upon the evidence above set forth, it was contended before us that there was in fact a new and substituted agreement for delivery and acceptance of the last twenty-five tons of iron at a time subsequent to that originally agreed upon, which was sufficient to exonerate the defendants from the further performance of the original agreement, but which, not being in writing, could not be enforced, by reason of the Statute of Frauds, and that no amendment of the declaration, therefore, would enable the plaintiff to maintain his action; and also that the plaintiff's verbal assent to postpone the delivery of the twentyfive tons until the 1st of August established conclusively that he was not ready and willing to deliver in June, according to the terms of the written contract, and therefore he was not in a condition to recover upon the original contract as set out in the declaration. It is to be observed that there was no plea, in terms, of a new and substituted contract. The defendants' contention was based upon the fifth plea, i.e. of a discharge before breach, relying upon the evidence also in support of the plea alleging absence of readiness and willingness to deliver pursuant to the written agreement. The argument, in substance, was, that the plaintiff was nɔt in fact ready and willing to deliver the iron according to the written contract, and that in point of law it was immaterial that he would have delivered or been ready and willing to deliver the iron according to the written contract, had it not been for the previous verbal request of the defendants not to deliver it. It was frankly admitted by the defendants' counsel that this defence was quite beside the real merits of the case; but it was strenuously contended that, having regard to the Statute of Frauds, and to the decisions of Noble v. Ward (1), Stead v. Dawber (2), and Goss v. Lord Nugent (3), the plaintiff could not maintain his action, and ought to be nonsuited. The proposition that one party to a contract should thus discharge himself from his own obligations by inducing the other party to give him time for their performance, is, to say the least, very startling, and if well founded will enable the defendants in this case to make use of the Statute of Frauds, not to prevent a fraud upon themselves, but to commit a fraud upon the plaintiff. It need hardly be said that there must be some very plain enactment or strong authority to force the Court to countenance such a doctrine. The Statute of Frauds contains no enactment to the effect con (1) Law Rep. 1 Ex. 117; in error, Law Rep. 2 Ex. 135. (2) 10 A. & E. 57. 2 X 2 2 1875 HICKMAN v. HAYNES. tended for. The utmost effect of the 17th section is to invalidate HICKMAN any verbal agreement for the sale of goods in certain cases; and, 1875 บ. HAYNES. even if a verbal agreement for extending the time for the delivery of goods already agreed to be sold is within the statute,-as to which see per Martin, B., in Tyers v. Rosedale and Ferryhill Iron Co. (1) and Leather Cloth Co. v. Hieronimus (2),—the plaintiff in this case is not attempting to enforce any such verbal agreement, but is suing on the original agreement, which was in writing. The case of Noble v. Ward (3) 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 contract, and cannot in point of law be substituted for it. In Stead v. Dawber (4) there was a written agreement for the delivery of goods on a particular day, and a subsequent verbal agreement for their delivery on a later specified day; and the Court came to the conclusion that the parties intended to substitute the later verbal agreement for the previous written agreement. But, in the case now before the Court, there was no fresh agreement at all for the delivery of the twenty-five tons which can be regarded as having been substituted for the original written contract. There was nothing more than a waiver by the defendants of a delivery by the plaintiff in June of the last twenty-five tons of iron; and it should seem that in Stead v. Dawber (4) the Court would have been in favour of the plaintiff if they had come to the conclusion that there had been no substitution of one agreement for another. Marshall v. Lynn (5) was a somewhat similar case decided on similar grounds. Goss v. Lord Nugent (6) turned on the 4th and not on the 17th section of the statute; but we do not think this important. The plaintiff had agreed in writing to sell certain property to the defendant, and to make a good title to the whole; but this the plaintiff was unable to do. He never could, therefore, have maintained (1) Law Rep. 8 Ex. 305; in error, Law Rep. 10 Ex. 195. (2) Law Rep. 10 Q. B. 140. (3) Law Rep. 1 Ex. 117; in error, Law Rep. 2 Ex. 135. (4) 10 A. & E. 57. (5) 6 M. & W. 109. |