natively. 11. Alternatively the plaintiffs state as follows:- The The claim original contracts for sale in the 2nd and 4th paragraphs put altermentioned, and also the substituted contracts hereinafter mentioned, were from time to time by mutual consent rescinded, and other contracts substituted in lieu thereof for the residue of the yarn then undelivered under the said contracts of sale and such substituted contracts respectively. And on the 5th April, 1876, the defendant was under such substituted contracts bound to accept delivery from the plaintiffs upon certain dates, which expired before the 22nd August, 1876, of the quantities of yarn mentioned in the 6th paragraph. 12. The plaintiffs then withheld delivery of the same at the request of the defendant, in accordance with the facts stated in the 7th and 8th paragraphs, and the defendant neglected and refused to accept delivery, although the plaintiffs were always ready and willing to deliver the same, and the plaintiffs were thereby damnified as stated in the 9th and 10th paragraphs. The plaintiffs claim as damages £2,000. Statement of Defence and Counter-claim. 1. The contract in the 2nd paragraph of the statement of Defence. claim mentioned was made on the 15th of September, 1875, and thereby the defendant agreed to purchase from the plaintiffs, through the plaintiffs' agents, Messrs. W. & R. K. L., 50,000lbs. of "eighties" twist combed at 2s. 5d. per lb., the delivery to be at the rate of 8 ships per week. 2. The contract in the 4th paragraph of the statement of claim mentioned was made on the 17th of September, 1875, and thereby the defendant through the same agents agreed to purchase from the plaintiffs 50,000lbs. of hundreds twist combed at 3s. 1d. per lb., to be delivered at the rate of 6 or 7 ships per week. 3. The rates of delivery of the said yarns were as the plaintiffs well knew most important terms, and were of the essence of the said contracts; and the defendant in his business arrangements relied upon the deliveries being made as stipulated. At the rates mentioned in the said contracts the delivery of the eighties twist combed would have been completed by the 11th of Defence to claim against vendee for not accepting delivery. Counterclaim. February, and of the hundreds twist combed by the 30th of 4. The plaintiffs altogether failed to deliver the said yarns in accordance with the said contracts, nor did they make deliveries according to the defendant's instructions; on the contrary, the deliveries on the part of the plaintiffs were so irregular both in point of time and quantity that by the 5th of April, 1876, only 33,801 lbs. of the eighties had been delivered, and 19,2944 lbs. of the hundreds. 5. The defendant denies the allegation contained in paragraph 7 of the plaintiffs' statement of claim, that he requested the plaintiffs to delay the delivery of the residue of the yarn for an unspecified time. 6. The plaintiffs were not willing nor ready to make deliveries of the residue of the said yarns in accordance with the terms of the said sales. On the contrary, the plaintiffs failed to make such deliveries, notwithstanding numerous complaints made by the defendant, and notice by him to the plaintiffs that their default in delivery compelled the defendant to make purchases elsewhere. 7. The defendant denies that there were any such substituted contracts as stated in the 11th paragraph of the statement of claim. It is not the fact that the defendant was under such alleged substituted contract bound to accept delivery from the plaintiffs upon certain dates which expired before the 22nd of August, 1876, or at all of any quantities of yarn whatever. 8. The defendant denies that the plaintiffs withheld delivery at the defendant's request, as alleged in the 12th paragraph of the statement of claim. And by way of counter-claim 1. The defendant repeats the statements contained in the 1st, 2nd, 3rd, 4th, and 6th paragraphs of the above statement of defence. 2. Owing to the irregularities in delivery, and the deficiencies in quantity of the yarn supplied by the plaintiffs, the defendant sustained great loss, as it prevented his mill from fully working. 3. Moreover, the defendant was by the plaintiffs' said defaults compelled, as the plaintiffs knew, to purchase and did purchase large amounts of cotton yarn from other spinners in order to keep his machinery and hands employed. for not 4. The yarn as supplied by the plaintiffs was of such inferior Against quality, and so irregular in length, that the thread made from it vendee was unmarketable, and serious loss has thereby accrued to the accepting defendant. delivery. The defendant claims by way of set-off and counter-claim Counter£1500 damages. claim. Reply and Defence to Counter-claim. 1. The plaintiffs join issue with the defendant upon the 3rd, Reply. 4th, 5th, 6th, 7th, and 8th paragraphs of his statement of defence, except in so far as the same admit the case of the plaintiffs. 2. As to both defence and counter-claim, the plaintiffs state that if they did not deliver the said yarns or any of them according to the terms of their said contracts, but they withheld delivery at the request of the defendant. 3. Alternatively the plaintiffs further state that if they did commit any breaches of the said contracts in respect of the delivery of the said yarns, the same, with knowledge of the premises, were waived by the defendant. 4. The plaintiffs do not admit that the defendant sustained the losses mentioned in the 2nd and 3rd paragraphs of the counter-claim, or that if such losses were sustained the same arose through any default of the plaintiffs. 5. The yarn supplied by the plaintiffs was not of inferior quality or irregular in length, nor did the defendant sustain any loss thereby. 6. If any yarn so supplied was inferior or irregular as aforesaid, the defendant, with knowledge of the premises, waived any claim or right of action in respect thereof. 7. The plaintiffs deny the facts stated in the residue of the counter-claim, except in so far as they are hereinbefore admitted. Rejoinder. The defendant joins issue upon the plaintiffs' reply and Rejoinder. defence to counter-claim. Another claim against vendee for not accepting delivery. Against vendee for not accepting, and for charges incident to Action against Vendee for not accepting Delivery. 1. The plaintiff is a wholesale oil merchant carrying on business at No., Street, in the city of London, and the defendant is a retail oilman carrying on his business at No. Street, in the said city. 2. On the 1st of January, 1877, the plaintiff sold to the defendant tons of oil at £30, on the terms that half of the said oil should be delivered to the defendant on the 15th of January aforesaid, and the other half on the 1st of February, 1877, and that the defendant should accept such deliveries and should pay for the quantities so agreed to be delivered on the foregoing dates respectively, on delivery of each as aforesaid, after deducting £1 10s. per cent. discount. 3. The plaintiff on the said 15th of January tendered half of the said oil for delivery to the defendant, but the defendant refused to accept such delivery. 4. The defendant before the said 1st of February wrote to the plaintiff informing him that he would not accept delivery of the other half of the said oil. 5. The plaintiff on the 18th of March, 1877, sold the said oil to another person at £25 per ton, which was the highest price he could procure. The plaintiff claims £470 damages. Action for not accepting Goods and for Freight and Demurrage incurred in their Transit and Delivery. 1. The plaintiff is a merchant in London. The defendants are a joint-stock company with their head office at S. 2. On or about the 6th of May, 1875, the defendants contracted to buy from the plaintiff about 300 tons of old doubleheaded iron rails off the S. E. Ry., at the price of £4 118. per the transit. ton, to be delivered by the plaintiff alongside the S. Rail Mill Co.'s wharf at S., to be shipped by the plaintiff as fast as suitable freight could be obtained, payment to be in net cash on delivery of each cargo, railway company's weight to be given and taken. 3. The plaintiff subsequently shipped under the said contract. 130 tons of the said rails by the "William," which arrived at S., on or about the 29th of June, 1875, with the same on board, and the plaintiff was ready to deliver the goods to the defendants, and did all things on his part to be done to entitle him to have the goods accepted and paid for according to the said contract, but the defendants refused to take delivery of or to pay for the goods. 4. The plaintiff also in accordance with the said contract shipped the remainder of the said rails, amounting to 170 tons, by the "Margaret," and was at all times ready and willing to perform the said contract, but the defendants refused to take delivery of the said last-mentioned goods or to pay for the same, and repudiated the said contract, and wrongfully and improperly exonerated and discharged the plaintiff from performing the said contract. 5. In consequence of the said breaches by the defendants of their contract, the plaintiff was compelled to resell the whole of the said goods at a loss of £100 15s. 6. The plaintiff also by reason of the defendants' breach of the said contract and refusal to take delivery of the goods, became liable to pay and has paid to the master of the "William" the sum of £43 for demurrage of the said vessel at S., and for towage. 7. The defendants have been furnished with particulars of the plaintiff's claim. The plaintiff claims £250 damages. Action for refusing to accept Goods and not submitting Dispute to Arbitration as agreed. Claim for not accepting delivery and for incidental charges. 1. The plaintiffs are rice millers carrying on business at Claim for Lane, in the city of London. not accept ing deli 2. The defendants are merchants carrying on business at very, and Street, in the city of London. 3. On October 4th, 1875, the plaintiffs by their brokers Messrs. F. & Co. agreed to sell to the defendants, and the defendants agreed to buy and accept from the plaintiffs, 500 bags of cleaned broken rice or "smalls" as per sample, at 8s. 3d. per cwt., to be loaded into 2 cwt. bags and delivered free alongside, the sellers to give written notice of the rice being ready for shipment, the buyers to have the option of inspecting and sampling the rice either at the mills or in the lighters, and in default of such inspection or sampling by the N N refusing to refer to arbitration. |