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Claim by Owner of Land for Compensation agreed to be paid

by Defendant for Occupation of Land pending a Sale to

him. 1. The plaintiffs are the owners of certain land situate in the Claim for

use and parish of Stockton, in the county of Durham, which the de

occupation fendant desired to purchase of the plaintiffs.

under a

special 2. The defendant entered into and upon the said land, and

agreement. became and was possessed thereof, and so remained and continued from the month of June, 1874, until the commencement of this action.

3. On or about the 10th day of January, 1876, it was agreed between the plaintiffs and the defendant that the plaintiff's should sell and the defendant should buy the said land, and that the defendant should and would pay to the plaintiffs, as and by way of compensation for the defendant's use and occupation of the said land, money equal in amount to interest at the rate of £5 per cent. upon the sum of £1963, which was the amount of the money to be paid by the defendant for the said land, if he became the purchaser thereof, calculating such interest from the month of June, 1874, until the defendant became such purchaser of the said land, or ceased to occupy the same, and that a formal agreement for such purchase and sale of the said land should be executed by the plaintiffs and the defendant respectively.

4. The plaintiffs did all acts and all things happened and all times elapsed to entitle the plaintiffs to have the defendant perform his part of the said agreement as aforesaid.

5. The defendant broke his said agreement in this, that he has refused and omitted to execute such formal agreement as aforesaid, and before any breach thereof by the plaintiffs, he wholly and absolutely renounced and abandoned the said agreement, and refused then or ever to perform the same, and then wrongfully discharged the plaintiffs from the further performance of the same, contrary to the said agreement in that behalf, whereby the plaintiffs have lost the expense which they incurred in preparing such formal agreement, and in preparing to perform the said agreement on their part, and have been put to expense in endeavouring to procure the performance thereof by the defendant, and have lost the use and profits of the said land, and

Claim for use and occupation under a special agreement.

the said land has been greatly deteriorated and lessened in value.

6. At the time of the commencement of this action the sum of £277 16s. had become due and payable from the defendant to the plaintiffs for and in respect of the money agreed to be paid for such compensation to the plaintiffs for the defendant's occupation of the said land as aforesaid, and the same is still wholly unpaid.

7. As an alternative claim, the plaintiffs claim that they are entitled to recover from the defendant the said sum of £277 168. as compensation to them for the defendant's use and occupation of the said land during the time aforesaid, irrespective of the said special agreement.

The plaintiffs claim £277 168.

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Claim for

1. The plaintiff is a warehouseman carrying on business at warehouse Victoria wharf, in the city of London. rent.

2. On or about the 1st of May, 1876, it was agreed by and between the plaintiff and the defendant that in consideration that the plaintiff would keep and take care of 80 hogsheads of sugar, the property of the defendant, in his warehouses at Vic

rent.

toria wharf aforesaid, the defendant would pay to the plaintiff claim for the sum of £5 per month as warehouse rent.

warehouse 3. On the 1st of May, 1876, the plaintiff received into his custody the said 80 hogsheads of sugar, and has ever since taken proper care and charge of the same.

4. On the 1st of June, 1877, there was due to the plaintiff the sum of £65 in respect of warehouse rent.

5. The defendant has not paid the same or any portion thereof.

The plaintiff claims £65.

Warranty (a).
Action claiming Damages for Breach of Warranty on Sale of

Goods. 1. The plaintiffs are India-rubber and waterproof garment Claim for manufacturers carrying on business at Street, M.

breach of warranty on sale of

goods. (a) Warranty of title.]—If a man sells goods affirming them to be his own, Generally that amounts to a warranty of title. But there is no implied warranty no implied of title on the bare sale of a personal chattel. (Bagueley v. Ilanley, warranty L. R. 2 C. P. 625 ; Morley v. Attenborough, 3 Ex. 500.) The same holds of title. on an exchange of chattels. (La Neurelle v. Nourse, 3 Camp. 351.) To make the seller liable when it turns out he had no title, it must be shown that he was guilty of fraud in the transaction; and the concealment by the seller of defects in his title known to him amounts to fraud. (Early When a v. Garrett, 9 B. & C. 932.) Failing this it must be shown that there was person is an express warranty, or an equivalent to it, by his declarations or conduct; liable who or that there was a usage of the particular trade by which such warranty sells withis impliedly given. On the sale of goods in a shop kept professedly for out title. their sale, there is an implied warranty that the purchaser has a right to keep the goods. In such a case the vendor sells the goods as his own, and that is equivalent to a warranty of title. (Per Curiam in Vorley v. Attenborough, supra.) The same holds with regard to goods sold in the defendant's warehouse. (Eichholt: v. Bannester, 17 C. B. N. S. 708 ; 34 L. J. C. P. 105.) It appears to be different with regard to unredeemed pledges sold at an auction by a pawnbroker. (Vorley v. Attenborough, supra.) And semble the same holds with regard to goods bought at any auction. (See Bagueley v. Hawley, supra.) Where the plaintiff bought some goods from the defendant at an auction at which the defendant had himself purchased them, it was held that he could not recover the price paid for them as on a warranty of title. (Chapman v. Speller, 14 Q. B. 621.) An executory contract of sale of an unascertained chattel may import a warranty of title. (See per Park, B., Morley v. Attenborongh, supra.) Where there is no warranty and the

Claim for breach of warranty.

2. The defendants are manufacturing chemists at D., in the county of L.

title proves bad, the purchaser may recover the price paid as upon a

failure of consideration. Morley, v. Attenborough, supra.) Warranty

Warranty of quality.]-The following propositions were laid down in of quality. the judgment in Joner v. Just, L. R. 3 Q. B. 202, et seq., in which the

authorities in support of them will be found Where 1. Where goods are in esse, and may be inspected by the buyer, and goods in there is no fraud on the part of the seller, the maxim careat emptor existence applies, even though the defect is latent and not discoverable on exami. the maxim nation, at least where the seller is not the grower or manufacturer. caveat This applies to the sale of meat in a meat-market as to which there is no emptor

warranty that it is fit for human food. (Emerton v. Mathers, 31 L. J. applies. Ex. 139; 7 H. & N. 586.) It would appear to be different where the

goods are consigned under an agreement. Thus, where B., a wholesale provision dealer in London, contracted to send weekly from London by rail to W., a retail tradesman at Brighton, a quantity of Ostend rabbits, the cost of the railway carriage as well as the price of the rabbits being paid by W.: held that there was an implied warranty by B. that the rabbits should be fit for human food, not only when delivered at the railway station in London, but when in the ordinary course of transit they would reach W. at Brighton, and until he should have there a reasonable opportunity of dealing with them in the course of his business. (Beer v. Ialker, 46 L. J. 677.) It also applies in the case of sale by sample if the latter truly represents the bulk. (Smith v. Hughes, L. R. 6 Q. B. 597.)

2. On the sale of a definite existing chattel specifically described, the actual condition of which may be ascertained, there is no implied war

ranty of quality. So where a

3. Where a known, described, and defined article is ordered of a known and

manufacturer, to whom it is stated to be for a particular purpose on defined delivery by him of the article as known, described, and defined, there is article is

no implied warranty by him that it will answer such purpose. bought.

4. But where a manufacturer or dealer contracts to supply an article

which he manufactures or in which he deals to be applied to a particular When a

purpose, so that the buyer necessarily trusts to his skill or judgment, warranty

there is in that case an implied warranty that it is reasonably fit for the of quality purpose to which it is to be applied. will be

5. Where a manufacturer undertakes to supply goods manufactured by implied.

himself or in which he deals, but which the vendee has not bad the opportunity of inspecting, it is an implied term in the contract that he shall supply a merchantable article.

6. Where the contract is to supply goods of a specified description which the buyer has not had the opportunity of inspecting, the goods must not only answer the description, but must be also merchantable or

saleable under that description. Implied

By the 25 & 26 Vict. c. 88 (Merchandise Marks Act, 1862), ss. 19, 20,

on the sale or contract to sell (whether in writing or not), any article warranty

with any trade-mark on it, or on what it is contained in, or with any in the case description or indication of the number, quality, measure, or weight, or marks.

of the place where it was manufactured or produced, there shall be deemed to have been a warranty of the genuineness of the trade-mark, or of the truth of the description, &c., unless the contrary shall have been expressed in writing, signed by or on behalf of the vendor, and delivered to or accepted by the vendee. And by sect. 22 a right of action is specially given to the person aggrieved by the forging or improper use of trade-marks.

3. The plaintiffs from time to time ordered from the defend- Claim for

breach of ants, and the defendants supplied them with hypo, as the

warranty.

Warranty by agent.)-An agent or servant employed to sell a thing When a has not generally an implied authority to warrant. (Brady v. Todd, 9

servant C. B. N. S. 592 ; 30 L. J. C. P. 223.) Quare in the case of a foreman

may alleged to be a general agent. (Ib.) It appears, however, that in the

warrant. case of servants of horse-dealers they have such an implied authority, and their employers will be liable on a warranty given by them, even where there have been express directions not to warrant, unless they have notified that the general authority is limited. (Pickering v. Busk, 15 East, 45 ; Howard v. Shenard, L. R. 2 C. P. 148.) This doctrine does not apply to the case of an agent or servant of a person not a horse-dealer entrusted with the sale of a horse on one particular occasion. (Brady v. Todd, supra.) Where a thing is already sold a warranty given of its

A warranty quality in consideration of the purchaser having bought is not binding, after the the consideration being executed, and therefore incapable of supporting sale not any other promise than such as the law implies, and in such cases it only

binding. implies a promise to deliver on payment.

Breach of warranty.]-If the breach of the warranty of quality be denied, the plaintiff must give positive proof that the thing sold was not at the time of the sale of the description or quality warranted.

In pleading it need not be averred, and if averred it need not be It need not proved, that the defendant knew of the defect (Williamson v. Allison, 2 be averred East, 446), unless where it is necessary in order to establish fraud against the defenthe seller on an implied warranty of title.

dant knew A breach of warranty of a specific chattel sold does not entitle the of the de. purchaser to rescind the contract and return the chattel and sue for the fect. price, but only entitles him to an action for damages for breach of the

Where warranty. (Street v. Blay, 2 B. & Ad. 456 ; Gompertz v. Denton, 1 C. & M. 207.) And the purchaser could not in such circumstances defend an

specific

chattel sold action for the price on the ground of the breach; though he may give evidence of it in reduction of damages.

breach does Damages.]-The following decisions will probably be of use to the not entitle pleader in setting forth the claim for damages in this action :

vendee to If the chattel has been returned and accepted, the plaintiff will be rescind the entitled to recover the whole price ; if kept, the difference between the contract. real value and the price; and if resold, the difference between what he gave defendant and the price on resale. (See Caswell v. Coare, 1 Taunt. 566.) This case related to a warranty of a horse, but the decision applies to other chattels. Where the defendants broke a warranty in not sending The hemp that was merchantable, the plaintiff was held entitled to recover the difference between what the hemp was worth when it arrived and what the same hemp would have realized if it had been shipped in a

of damage. proper state. (Jones v. Just, L. R. 3 Q. B. 197.) Where the purchaser of a horse with a warranty resold with a warranty, and, the horse proving unsonnd, was sued on his warranty, and gave the seller, the defendant, the option of defending, but on his failing to do so defended it himself, it was held that he was entitled to recover from him the costs of the action. (Lewis v. Peake, 7 Taunt. 153 ; and see Rolf v. Crouch, L. R. 3 Ex. 44.)

In actions on warranties of horses, the plaintiff may in some circumstances include a claim for their keep. If the vendee on discovering the defect, tenders the horse to the vendor, he may recover for keep for such time as would be required to sell him to the best advantage. (UcKenzie v. Hancock, Ry. & M. 436.) So where after notice that the horse may be taken away by the vendor, he is resold by the vendee, the

measure

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