網頁圖片
PDF
ePub 版

Rescission (a).

Reward (). 1. The defendant is a jeweller, &c.

Claim for

a reward 2. On the — of August, 1877, the defendant caused an

promised advertisement to be inserted in a newspaper called the Daily by the Vews offering a reward of £100 to any person who should give

defendant. such information as should lead to the detection of a person alleged in the said advertisement to have stolen certain property belonging to the defendant.

3. On the of September, 1877, the plaintiff gave information to the defendant which ultimately led to the apprehension and conviction of the person who stole the said property.

4. All conditions were performed, things happened, and times elapsed necessary to entitle the plaintiff to be paid the said reward of £100.

5. The defendant has not paid the said £100. The plaintiff claims £100.

Statement of Defence. 1. The defendant denies the allegation in the 3rd paragraph Defence. of the statement of claim. The defendant admits that the

(a) Rescission is the putting an end to a simple contract before breach How conby mutual consent. The rescission may be by parol agreement, even where tracts may the Statute of Frauds requires a writing signed for the validity of the be recontract. An agreement by parol to vary a written contract valid under scinded or the Statute of Frauds is not valid for that purpose, and it has been held varied. that it does not rescind the original contract. (Noble v. Ward, L. R. 1 Ex. 117; L. R. 2 Ex. 135, Ex, Ch.)

(6) Where the defendant promised a reward to whoever would give Rewards such information as would lead to the conviction of a felon, and the offered for plaintiff gave the necessary information, it was held that the service recovery of rendered was a sufficient consideration for the promise, and that the stolen plaintiff was entitled to recover the reward, although he was a constable property and police officer of the district in which the felony was committed. may be re(See England y. Davidson, 11 Ad. & E. 856; Smith v. Voore, 1 C. B. 438; covered. Turner v. Walker, 6 B. & S. 871 ; L. R. 1 Q. B. 641.). A person may But stating advertise a reward for a return of stolen property, but if he puts in his

that no advertisement a clause to the effect that no questions will be asked, he

question exposes himself to a penalty of £50, which can be recovered by any com

will be mon informer in an action of debt.' (See the 24 & 25 Vict. c. 96, s. 102.) asked ex

poses to penalty.

Defence to plaintiff gave certain information respecting one A. B., but claim for a the defendant was at the time he received such information from reward.

the plaintiff in possession of the same information, and much more relating to the said A. B., and which said last-mentioned information led to his arrest and conviction, and the information given by the plaintiff was wholly useless to the defendant.

Sale of Goods (a).

Action against Vendee for not accepting Delivery. Against 1. The plaintiffs are cotton-spinners carrying on business at vendee

B., in the county of L. The defendant is a manufacturer for not accepting carrying on business at S., in the county of C. delivery.

Generally (a) The rule may be taken to be that an ordinary contract of sale of goods contract of need not be in writing ; but this rule is subject to exceptions in two classes sale of

of cases. 1. By the 17th section of the Statute of Frauds it is provided goods need that no sale of goods, wares, or merchandise (and by Lord Tenterden's not be in Act, 9 Geo. 4, c. 14, it makes no matter though they may be intended writing to be delivered at some future time, or may not at the time of the con

tract be actually made, or fit or ready for delivery), for the price of £10

or upwards, shall be good, except the buyer shall accept part of the Exceptions goods so sold and actually receive the same, or give something in earnest to this rule, to bind the bargain or in part payment, or some note or memorandum under Sta of the said bargain be made and signed by the parties to be charged by tute of such contract or their agents thereunto lawfully authorised. 2. By the Frauds. 4th section of the Statute of Frauds no action shall be brought to charge

any person upon any contract which is not to be performed within one year from the making thereof, unless the agreement or some note thereof is in writing signed by the party to be charged or his agent. This latter section is general in its terms, and is by no means confined to the sale of goods ; in fact, it will seldom apply in such a case. It has been decided that it applies only to contracts, the complete performance of which is of necessity extended beyond the space of a year. (Souch r. Stranbridge, 2 C. B. 815; Knowlman v. Bluett, L. R. 9 Ex. 1 and 307.) Therefore a contract which can be performed on either side within a year is not within the section. (Donellan v. Read, 3 B. & Ad. 899; and see on the subject 1 Smith's Leading Cas., 7th ed., 335, notes to

Peter v. Compton.) Essential

Putting out of account the few contracts of sale that might come difference within the 4th section, the law regarding the sale of ordinary merin the evi- chandise, is essentially different where the value of the goods sold is less dence of the or more than £10. In the former case, the contract of sale is complete contract as soon as the parties have come to a verbal agreement. A. enters a shop where the and sees a watch. He asks the price, and the shopman says £7. He says goods are he will purchase, and the shopman agrees to sell it. The contract of sale above or is then complete, and if A., the purchaser, leaves the shop without taking below £10 with him the watch, or paying the price or any part of it, or signing any in value. acknowledgment of the contract, the sale is nevertheless complete, the

watch is his, remains in the shop at his risk, and he is liable to the shop2. On the 15th September, 1875, the plaintiffs, through Against their agents Messrs. W. and R. K. L., of M., sold to the defen- vendee

for not dant 50,000 lbs. of yarn of a certain quality and description at accepting

delivery.

keeper for its price. But suppose in the case stated the shopman had fixed Difference the value of the watch at £13, and A. had agreed to purchase and the shop; in the eviman to sell at that sum, and nothing more had taken place, but A. had dence of left the shop without the watch, without paying the price or any part, the contract and without signing any memorandum of the contract—in that case where the there would have been no contract, the property in the watch would not goods are pass to A., and he would not be liable in any action to the shopkeeper. above or To constitute a valid contract of sale of goods, wares, or merchandise below £10 which are above the value of £10, one or more of three things must in value. happen. Either the purchaser or his agent must sign some memorandum of the contract, or must pay the price or part of it, or give some earnest to bind the bargain, or the purchaser must accept and actually receive the goods. There are to be found in the books an infinite number of decisions upon what constitutes a good satisfaction of these conditions -the effect of which can only be given here. The memorandum in writing.]-The note of the contract upon

which

What the reliance is placed need not be made at the time the contract is entered

memoraninto, though it must be made before action brought (Bill v. Bament, 9

dum must M. & W. 36); and several documents, if sufficiently connected the one

contain, with the other by internal evidence, will constitute a good memorandum within the statute. (Jackson v. Lowe, 1 Bing. 9; Saunderson v. Jackson, 2 B. & P. 238 ; Warner v. Willington, L. J. 25 Ch. 662.) The note or notes which make up the memorandum must contain all the terms of the agreement. (Kenworthy v. Schofield, 2 B. & C. 947.) It or they must contain the names of both the contract parties or their agents (Williams v. Brynes, 1 Moo. P. C. N. S. 154, 198), the subject-matter of the contract, and the price and mode of payment if agreed upon. Where it The effect appears by parol that the price has been agreed upon, and it is omitted of the omisin the note of the contract, the written memorandum is imperfect, sion of the and cannot be given in evidence. (Elmore v. Kingscote, 5 B. & C. 583; price from Good man v. Grithths, 1 H. & N. 574; L. J. 26 Ex. 145.) But where the note. no price was really agreed upon, the contract will be good, and a reasonable price will be presumed. (Iloadley v. McLain, 10 Bing. 482.)

It has been stated that a good memorandum within the statute can be made up of several documents, as where there is an unsigned memorandum containing the order, and then a letter (not necessarily addressed to the other party to the contract (Gibson v. Holland, L. R. 1 C. P. 1) Where the signed by the defendant, in which he refers to the memorandum. note is (Saunderson v. Jackson, 2 B. & P. 238; Buxton v. Rust, L. R. 7 Ex. 1, made up 279, Ex. Ch.) And it has even been decided that where the vendee of several wrote a letter to the vendor, in which, after referring to all the essential documents. terms of the contract, he stated he had not received and declined to have the goods, because they had been damaged by the carriers, there was here a sufficient note in writing, notwithstanding the repudiation (Bailey v. Srceeting, 9 C. B. N. S. 843; L. J. 30 C. P. 150; Wilkinson v. Erans, L. R. 1 C. P. 407); but the plaintiff cannot avail himself of a subsequent letter from the defendant, in which, though he recognises the order, he disaffirms or adds to the terms of the memorandum. (Cooper v. Smith, 15 East, 103.)

As to the signature to the note, it is enough if it is signed by the de. As to sig. fendant (Laythoarp v. Bryant, 2 N. C. 735 ; and it makes no difference nature. that there is no remedy against the party who does not sign, (Allen v. Bennett, 3 Taunt. 169.) It is quite immaterial where the signature

Against 2s. 5d. per lb., and deliveries were to be made of the same at vendee a certain rate then agreed upon. for not accepting

3. The plaintiffs made deliveries under and in pursuance of delivery. What sig.

is placed in the document, provided it is so introduced as to govern and nature to authenticate every material part. (Hubert v. Turner, 4 Scott, N. R. 486; the note is (aton v. Caton, L. R. 2 H. L. 127.) Durrell v. Erans, 1 H. & C. 174; sufficient.

L. J. 31 Ex. 337, is a strong case. There the only signature of the defendant was his name written by the plaintiff's agent on the top of a sale note, the contents of which were known to the defendant at the time, and subsequently altered at his request, and it was held that this was a good signature within the statute. Where a person is in the habit of printing instead of writing his name, that will be a sufficient signature. (Saunderson v. Jackson, 2 B. & P. 238; Schneider

v. Norris, 2 M. & S. 286.) Signature

A signature by a duly authorised agent is by the express words of by an agent. the section enough. It is not necessary that the agent should have

the authority of his principal by a written instrument (Graham v. Musson, 5 N. C. 603 ; 7 Scott, 769); but an agent, to bind the defendant by his signature, must be some third person, and not the other contracting party. (Farbrother v. Simmons, 5 B. & A. 333 ; Sharman

v. Brandt, L. R. 6 Q. B. 720, Ex. Ch.) In the case of a sale by auction, Auctioneer which is within the section, the auctioneer becomes the vendee's agent the agent

after his bid is accepted; and if he then, as will usually be the case, of both writes down the vendee's name in the catalogue opposite the lot, together parties at with the price bid, it is a good memorandum, (Emmerson v. Heclis, 2 a sale. Taunt. 38 ; Kennorthy v. Schofield, 2 B. & C. 945.) But where the

conditions of sale are not annexed or referred to in the catalogue, signing the buyer's name in the catalogue is not a compliance with the statute. (Hinde v. Whitehouse, 7 East, 558; Peirce v. Corf, L. R. 9 Q. B. 210.) Where the broker is the agent of both parties, as he generally is, he may bind them by signing the same contract on behalf of the buyer and seller, and his signature to the bought or sold note will con

stitute a sufficient memorandum within the statute. (Parton v. Crofts, How far a 13 C. B. N. S. 11 ; L. J. 33 C. P. 189.) There has been some controversy broker can

as to whether the real contract is contained in the bought and sold notes bind buyer signed by the broker, and sent to the buyer and selier respectively, or and seller. in the entry which he makes in his book. (See Hleyman v. Neal, 2 Camp.

337; Thornton v. Meux, M. & M. 43 ; Sicrewright v. Archibald, 17 Q. B. 124; L. J. 20 Q. B. 538.) Where there is a material variance between the bought and sold notes, and the broker has not signed the contract in his book, there is no binding contract (Grant v. Fletcher, 5 B. & C. 436 : Gregson v. Ruck, 4 Q. B. 737); and if the two principals agree in the broker's presence, and the broker's note does not correspond with the terms agreed upon, then there is no written contract by an agent lawfully authorised, and a party who did not assent to the alteration is not

bound. (Pitts v. Beckett, 13 M. & W. 743.) Acceptance Acceptance and receipt within the statuté.]—In the case of goods above and actual the value of £10, failing a note in writing evidencing the contract, there receipt must be part payment or a delivery of the goods by the vendor with the required. intention of vesting the right of possession in the vendee, and an actual

receipt by the latter with the intention of taking to the possession as owner. (Phillips v. Bistolli, 2 B. & C.513.) Acceptance without delivery or something tantamount to delivery of the goods, as delivery of the key of the warehouse where they are at the time (Chaplin v. Rogers, 1 East, 192, 195) is insufficient; but the acceptance may be prior to the actual receipt, and need not be contemporaneous with or subsequent to it. (Cusack v. Robinson, 1 B. & S. 299; L. J. 30 Q. B. 261 ; Kershaw v. Ogden, the said sale on various dates, according to the defendant's in- Against

vendee structions, amounting in all to 33,801 lbs., and the same were

for not duly accepted and paid for by the defendant.

accepting delivery.

There may

3 H. & C. 717 ; L. J. 34 Ex. 159.) Where a joint order for several classes When acof goods is given, the acceptance of one class is a part acceptance of the ceptance of whole under this section (Elliot v. Thomas, 3 M. & W. 170); and accept- part is ance of part is sufficient, although the rest are not even made. (Scott sufficient. v. Eastern Counties Rail. Co., 12 M. & W.33.) The delivery of a sample if considered to be part of the thing sold is a sufficient acceptance (Ilinde v. Whitehouse, 7 East, 588); but it is otherwise where it is a sample merely, and forms no part of the bulk. (Cooper v. Elston, 7 T. R. 14.)

After some discussion it seems to be finally settled that there may be an acceptance and delivery of goods within the statute, although the be an buyer still has a right to object to the quantity or quality of the goods. acceptance (Kibble v. Gough, 38 L. T. N. S. 704; following Norton v. Tibbett, 15 though Q. B. 429 ; L. J. 19 Q. B. 382.) There may be an acceptance, although the buyer can vendee has had no opportunity of examining all the goods and equally still object there may be an acceptance, although it is open to the purchaser to dis- to the qualipute the terms of the contract as alleged by the vendor. (Tomkinson v. ty, &c. Straight, 17 C. B. 697 ; L. J. 25 C. P. 85.) There may also be a con- Construcstructive acceptance by acquiescence. Thus, where goods were sent by a tive acceptnamed carrier, and a letter of advice was forwarded to the vendee, ance by acstating that the credit was three months, and the goods after arrival quiescence. were seen by him in the warehouse of the carrier, when he told the carrier that he refused to take them, but made no communication whatever to the vendor till after five months, it was held that this was evidence of acceptance and actual receipt (Bushel v. Wheeler, 15 Q. B. +42); so dealing with a bill of lading as if the person were owner of the property is evidence of the same thing. (Meredith v. Meigh, 2 E. & B. 364; L.J.22Q. B. 401.) As to what constitutes a good acceptance, see also Rotide v. Thwaites, 6 B. & C. 388 ; Rayner v. Grote, 15 M. & W. 359 ; Marrin v. Wallis, 6 E. & B. 726; L. J. 25 Q. B. 369; Elmore v. Stone, Taunt. 458.) But there can be no acceptance and receipt by the purchaser No acceptwhile the vendor's lien remains, for the vendor's lien necessarily sup- ance while poses that he retains possession of the goods (Morton v. Tibbett, ante; vendor's (arter v. Toussaint, 5 B. & A. 855); and delivery of goods to a whar- lien finger or agent who has been accustomed to forward goods from the remains. plaintiff to defendant, and a delivery by him to the carrier, is not an acceptance, the carrier having no authority (though named by the vendee) to accept the goods for him, but only to receive them for the purpose of being carried. (Hanson v. Armitage, 5 B. & A. 557 ; Meredith v. Meigh, ante.) So where goods bought abroad were delivered at a foreign port on board a ship chartered by the purchaser, this was held to be no acceptance. (Acebal v. Lery, 10 Bing. 376 ; see also Baldey v. Parker, 2 B. & C. 37 ; Bentall v. Burn, 3 B. & C. 423; Mabberley v. Shepherd, 10 Bing. 99.)

Earnest or part payment. ]-Where there is no note in writing of the To consticontract, or no acceptance and receipt of the goods, there must be an tute a part actual payment of some amount or other, or some pledge given to make payment the bargain of sale binding. Customary forms of concluding bargains, as money when the purchaser draws the edge of a shilling across the hand of the must acvendor and returns the money into his own pocket, are not equivalent to tually pass. earnest or part payment within the statute (Blenkinsopp v. Clayton, 7 Taunt. 597); and a bargain that the vendor shall take in part payment a debt dne from him to the vendee is not in itself a sufficient part payment to dispense with writing, no money having in fact passed nor receipt for the debt been given by the vendee. (Walker v. Nusscy, 16 M. & W. 302.)

« 上一頁繼續 »