QJorn^U lUnm ^rl|0ol Htbrary
3 1924 062 061 225
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A TREATISE
ON THE
LAW OF CONTRACT
C. G. ADDISON
AUTHOR OF "the XAW OF TORTS *'
THIRD AMERICAN, FROM THE SEVENTH LONDON EDITION
OF LE\VIS \V. CAVE, Esq.
JAMES APPLETON MORGAN
OF THE NEW YORK BAR. AUTHOR OF " THE LAW OF LITERATURE;" AMERICAN EDITOR
OF *'dECOLVAR ON GUARANTY," tC. 4C.
VOL. II
NEW YORK
JAMES COCKCROFT & COMPANY
I 876
Entered, according to act of Congress, in the year 1876,
By James Appleton Morgan,
In the office of the Librarian of Congress, at Washington.
TOBITT & BUNCE,
Printers and Stereotypers,
131 William Street.
1264
CONTENTS OF VOLUME II.
BOOK II.
THE LAW OF PARTICULAR CONTRACTS.
CHAPTER I.
THE CONTRACT OF SALE.
PARAGRAPH PA&S
Sect, i . — Of contracts for the sale of land.
Contracts of sale .....
Sale of lands and corporeal hereditaments
Signature of the writing
Sales by auction ....
Enforcement of oral contracts for the sale
and purchase of estates . . • Sn
Transfer of the equitable estate by the bar-
gain before the execution of the con-
veyance
Production and proof of the vendor's title
Title to realty
Period for which the title ought to be
shown ......
Title to leaseholds .....
Waiver of proof of title, and of objections to
title
Production of the title deeds
Loss of title deeds after delivery of
the abstract ....
Effect of misdescriptions ....
Alterations in the condition of the property .
507
1
508
2
509
4
510
4
S"
12
513
IS
514
24
515
25
516
26
517
28
518
31
519
32
520
37
521
48
PARAGRAPH
PAGE
522
49
523
52
524
54
iv CONTENTS.
Time and mode of performance
Enlargement of the time of performance
Non-performance by the vendor
Non-performance by the purchaser — Forteit-
ure of deposit 525 56
Deposits in the hands of auctioneers and
third parties ....
Rights of the vendor ....
Damages ......
Damages from non-performance by the ven-
dor ......
Specific performance ....
Payment of purchase-money into court
Assignment of contract to purchase land
Invalid sales — Want of title in the vendor —
Eviction of the purchaser
Qualified covenants for title
Breach of covenants for title
Non-payment of purchase-money after the
execution of a conveyance
Sale of pretenced titles ....
Fraudulent concealment — Avoiding sales of
realty 538 86
Sale writh all faults, or without allow-
ance for any defect or error . . 539 87
Voluntary conveyances, gifts, and transfers
defrauding subsequent purchasers . 540 88
Fraudulent conveyances — Fictitious qualifi-
cations— Fictitious votes . . . 541 89
Conveyances and transfers constituting aa
act of bankruptcy . . . 542 91
Sect. 2. — Of contracts for the sale of goods and chattels.
Title to goods and chattels .... 543 93
Sale in market overt ..... 545 97
Sale of stolen horses, goods, &c., in mar-
ket overt — Right of restitution . 546 99
Sale out of market overt .... 547 100
Sales by factors and agents .... 548 102
Legal authentication of executory contracts
for the sale of goods and chattels . 549 102
526
58
527
59
528
61
529
62
53°
65
531
75
532
76
533
76
534
78
535
82
536
85
537
85
CONTENTS. V
PARAGRAPH PAGE
Requisites of the memorandum of tiie
contract 550 105
Brokers' bought and sold notes . • S5i 109
When the broker is himself liable
upon the contract . . . 552 in
Signature to the memorandum . . 553 112
Acceptance and actual receipt of goods
within the Statute of Frauds . 554 112
Receipt for inspection and approval . 555 115
Acceptance and receipt where goods
have been purchased by a bailee 556 117
Delivery at a named wharf . . 557 116
Constructive acceptance . . . 558 118
Constructive possession by the pur-
chaser and extinction of the
right of lien . . . 559 120
Acceptance of bills of lading, deliv-
ery orders, and dock warrants . 560 121
Acceptance and receipt of goods by car-
riers, forwarding agents, and agents
for custody 561 123
Part acceptance and actual receipt bind
ing the contract ....
Effect of the acceptance
Earnest and part payment ....
Transfer of the right of property in the thing
sold
Imperfect sales of unascertained chattels ,
Contracts for the sale and manufac-
ture of goods ....
Unascertained price ....
Perfect sales ....••
Selection and appropriation of
goods to the use of the pur-
chaser ......
Delivery to carriers
Delivery under a bill of lading .
Undivided shares
Conditional sale
Implied promises and undertakings resulting
from executory contracts of sale . 575 ^48
562
125
563
128
564
128
565
129
566
130
567
133
568
135
569
140
570
142
571
144
572
144
573
145
574
147
vi CONTENTS.
PARAGRAPH PACtt
When the sale is a sale of particular
classes and descriptions of goods . 576 149
Mercantile usage . . . . 577 150
Time of performance ..... 578 151
Enlargement of the time of performance 579 154
Non-delivery of goods sold . . . 580 154
Rejection and non-acceptance of goods sold . 581 157
Non-payment of the price — Goods bargained
and sold 582 161
Goods sold and delivered . . . 583 163
Sale of goods on credit . . . 584 163
Actual and constructive delivery of
goods . . ... 585 166
Proof of delivery .... 585 169
Delivery to carriers .... 587 170
Damages from non-performance by the pur-
chaser ..... 588 171
Damages from non-performance by the vendor 589 173
Specific performance of contracts for the sale
of goods ......
Abatement of the contract price
Vendor's lien for the price of goods sold
When the vendor may re-sell
Insolvency of the purchaser
Countermand of delivery orders
Shares and undivided quantities
sold as such .....
Intervention of the riglits of sub-
purchasers ....
Vendor's right of stoppage in transitu —
Goods in the hands of carriers and
forwarding agents
Goods in the hands of an agent for
custody .....
Conversion of carrier, wharfin-
ger, or packer, into an agent
for custody ....
Stoppage of part of goods sold
Notice of stoppage in transitu
Intervention of the rights of sub-
purchasers ..... 603 \fj(i
59°
177
591
179
592
180
593
181
594
182
595-
183
596
1 85
597
186
598
187
599
192
600
193
601
195
602
196
6o8
202
609
202
610
203
613
205
612
205
CONTENTS. vii
rARAGRAPH PACK
Transfer by bill of lading . . 604 197
Vendor's power of re-sale after stop-
page in transitu .... 605 199
Sale of goods to one of several partners in
trade — Dealings by one partner in
fraud of the form .... 606 200
Parties secretly interested in the subse-
quent disposition of goods pur-
chased by one of them . . . 607 201
Sub-purchasers of separate shares of
goods sold .....
Sale of goods to joint-stock companies
Avoidance of sales
Implied warranty of title . . 611 203
By persons who sell as owners
Sales by sheriffs, agents, trustees, or per-
sons assuming to sell in some special
character . . . . . 614 207
Sale by a vendor of such a title and in-
terest as he actually possesses
Implied warranty of quantity or quality
Warranty of merchantable quality .
Implied warranty where the vendor is
told that the thing ordered is re-
quired for a specific purpose . 618 215
Warranties by vendors who manufacture
and sell an article to be used for a
specific purpose .....
Implied warranties on sales of provisions
Implied warranty on sales by sample
Warranty as to genuineness of articles with
trade marks 623 220
Warranty of description as to quantity or
country 624 221
Representations amounting to a warranty . 625 221
Representations not amounting to a war-
ranty 626 225
Representations of matters of opinion
and belief 627 225
Warranty on sales of horses .... 628 227
Proof of warranties 629 229
6IS
209
616
211
617
2IZ
619
216
621
218
622
219
PARAGRAPH
PAGB
. 630
232
631
343.
- . 632
233
633
236
. 634
23&
viii CONTENTS.
Construction of express warranties .
Warranties by agents ....
Effect of a breach of warranty by the vendor
Conditional and defeasible sales .
Sale or return ....
Redhibitory defects enabling a purchaser
to annul a contract of sale and re-
cover the price .... 635 239^
Sales rendered voidable on the ground of
fraudulent misrepresentation . 636 239
Fraudulent concealment . . . 638 241
Sales " with all faults "... 639 246
When the purchaser disables himself from
avoiding the contract . . . 640 248
When a vendor is prevented from avoid-
ing a sale induced by the fraud of a
a purchaser .....
Determination of the election to avoid a
contract
Sales rendered nugatory from want of
title — Recovery of purchase-money
Void sales of things not in existence .
Effect of avoiding the contract .
Breach of warranty .....
Special damages — Re-sale with a warranty
— Costs of legal proceedings
Title to ships and shares in ships .
Transfers of ships and shares in ships
Sale and transfer of tenants' fixtures and trade
fixtures ......
Authentication of contracts for the sale of
fixtures ......
Sec. 3. — Of contracts for the sale of incorporeal property.
Grants and transfers of incorporeal rights and
incorporeal hereditaments . . .652 267
Reservation of privileges and easements
amounting to an express grant
Transfer of incorporeal heredita xients
Grants of rights of way
Contracts for the sale of growing crops
641
249,
642
250-
643
644
645
646
25a
252
254-
647
648
649
256
2S7
259
650
26a
651
263
653
270
654
271
655
275
65,6
27s
CONTENTS.
ix:
PARAGRAPH PACR'
Sale of copyright 657 275
Sale and assignment of patent right . . 658 2791
Title to shares in mining companies . 659 281
Title to shares, scrip, and letters of allot-
ment ...... 660 282
Executory contracts for the sale of shares 661 284
Agreements for the transfer of shares . 662 286
Mode of performance . . . 66£ 286
Time of performance .... 664 290'
Implied undertakings annexed to con-
tracts for the sale of shares-
Payment of calls . . 665 290.
Rights of scripholders . . . 666 292
Transfer deeds .... 667 29^
Transfer of shares in joint-stock com-
panies 668 295,
Registration of transfers — Pay-
ment of calls . . . 669 296-
Compulsory registration by man-
damus ..... 670 298'
Rectification of the register of the share-
holders in joint-stock companies . 671 299.
Registration of forged transfers , .672 301
Transfers of stock in the public funds , 673 304.
Specific performance of contracts for the sale
of stock and shares 674 304
CHAPTER II.
THE CONTRACT OF LETTING.
Sec. I . — Landlord and tenant.
Leases
Agreements for leases
Present demises .
Proof of the term of holding .
Lease by estoppel
67s 308;
676 309.
677 311
678 305
679 314.
CONTENTS.
Demises by agents .....
Ascertainment and identification of the
subject-matter of the demise
Things appurtenant ....
Commencement and duration of leases
Leases from year to year
Half yearly, quarterly, monthly, and week-
ly hirings ......
Tenancy at will .....
Tenancy by sufferance
Leases under powers ....
Demise of tolls .....
Rights and liabilities of lessor and lessee
Covenants for quiet enjoyment .
Covenants for the payment of rent
Covenants not to " let, set, or demise"
PARAGRAPH PACK
680 317
Non-execution of the lease by the lessee 694 337
681
682
683
684
685
686
687
688
689
690
691
692
Non-execution of the lease by the lessor
Concealment of latent defects
Demises of uninhabitable houses — Rooms
infested with bugs
Payment of rent .....'
Exception of damage by fire
Extinction and suspension of the rent by
eviction .....
Eviction by railway companies under
statutory powers .
Payment of ground rent by the tenant —
Deduction thereof from the ten-
ant's rent .....
Deduction of income-tax, land-tax, sewers-
rate, and other outgoings from the
rent ......
Distress for rent .....
Extinguishment of the right to distrain by
an assignment of the reversion .
Apportionment of rent ....
Compensation for the use and occupation
of land ......
Constructive occupation .
Use and occupation by one of several
69s
696
697
698
699
700
701
703
704
705
706
707
708
318
320
320
323
326
327
328
330
331
331
332
334
693 336
338
340
342
344
345
345
349
702 350
351
354
356
356
357
358
CONTENTS. xi
PARAGRAPH PACB
joint-tenants or tenants-in-
common 709 362
Covenants and agreements to repair dilapida-
tions ....... 710 363
Tenants liability for injury or damage done
to the demised premises . . .711 370
Timber trees 712 373
Duty of the tenant to preserve the landlord's
landmarks, and boundaries . .713 373
Fences 714 374
Restrictive covenants as to the user of premises 715 374
Defeasible leases . . . . • .716 374
Disclaimer and forfeiture .... 717 375
Provisos for re-entry ..... 718 377
Effect of re-entry on the lessee's liability
on his covenants . . . 716 381
Waiver of a forfeiture — Lessor's right of
election 720 382
Relief against forfeiture — Breach of cove-
nants or conditions respecting in-
surance or payment of rent . 721 384
Assignment after forfeiture . . . 722 384
Surrender — Deeds and agreements of surrender 723 384
Surrenders by act and operation of law . 724 387
Substitution of a new tenant in the place
of the original tenant . . 725 389
Surrender and acceptance of surrender by
joint tenants .... 726 390
Non-extinguishment by surrender of deri-
vative estates . . . . 727 391
Effect of the surrender on existing breaches
of covenant 728 391
Notice to quit, when necessary . . . 729 391
How the notice may be given, and by
whom 730 394
Form and effect of the notice — Alternative
and peremptory notice . • .
Length of the notices ....
Time of quitting specified in the notice .
Application of the notice to the cur-
rent term of hiring . . 734 397
731
396
732
397
733
397
735
400
736
402
737
403.
738
404
739
4o6.
CONTENTS.
PARAGRAPH PACK
Commencement of the current year of the
tenancy . . . . •
Calculation of the current year from
one of the usual feast days
Admissions by the tenant of the com-
mencement of the term
Different periods of entry .
Service of notice to quit
Service of notice through the post-
office 740 407
Acceptance of informal notice — Proof of
notice ......
Waiver of notice to quit ....
Proof and effect of holding over .
Double yearly value for holding over
Double rent for holding over
Determination of tenancies by railway
notices ... - . .
Recovery of possession .....
License to eject .....
Ejectment under provisos for re-entry
Where there is no sufficient distress
Recovery of possession, where the de-
mised premises are deserted . . 751 422
Recovery of possession of houses and
small tenements . . . . 752 423.
Rights of out-going and incoming tenants —
Away-going crops, allowance for tillage,
manure, &c. .....
Sale of straw off the land . .
Removal of superstructures and fixtures
Abandonment of the right of removal
Right of a purchaser or mortgagee to en-
ter and remove fixtures after a surren-
der of the term .... 757 432
Non-payment of tithe rent-charge by an
outgoing tenant ....
Inclosures of waste land by tenants
A short form of lease ....
Leases obtained by misrepresentation .
The cancellation of a lease
741
407
742
40S
743
409.
744
410.
745
415
746
4i6'
747
417
748
418.
749
419
75°
420.
753
425
754
43°'
755
431
756
943
758
433.
759
433
760
434
761
434
762
43 S
PARAGRAPH
PAGE
763
435
. 764
436
. 764
436
y-
76s
436
. 766
437
767
437
a 768
441
• 769
442
CONTENTS. xiii
Equitable assignees ....
Breach of contract to grant a lease .
Damages in actions for use and occupation
For breach of covenants for quiet enjoy-
ment .....
Not to assign ,
To repair
To consume hay and straw on a farm
For holding over . . . ,
Contracts for the letting and hiring of furnished
houses and lodgings . . . 77° 44^
Implied warranties on the part of lessors
of furnished apartments . . 772 444
Rights and liabilities of lodging-house
keepers and lodgers .
Destruction of buildings by fire
Proof of the duration of the term of hiring
Notice to quit
Letting and hiring of stowage and places of
deposit
Room or standing places in factories
Lodgings in common inns — Who may be said
to be a common innkeeper .
Duties of innkeepers ....
Protection of the guest from robbery and
theft 780 451
Exemption of the guest's property from
distress for rent . . . 781 452
Innkeeper's lien ...... 782 453
Gratuitous loans of realty . . . . 7^3 453
Sec. 2. — The letting of chattels.
Bailments for hire 7^4 454
Duties and responsibilities of the hirers of
chattels 7^5 457
Use of chattels let to hire — Losses from
negligence 7^6 45 ^
Losses from piracy, robbery, theft, disease,
and accident .... 7^7 459
Determination of the bailment . . 7^8 46°
Loans of money to be used for hire . 789 461
773
446
774
446
774
446
775
446
776
447
777
449
778
449
779
450
795
468.
796
46?
797
47°
798
471
799
473.
xiv CONTENTS.
PARAGRAPH PAGB
Commodatiim and mutuum or gratuitous loan 790 462
Liabilities of the borrower — Care to be
taken of things borrowed — Neg-
ligence of borrower . . 791 464
Losses from ordinary casualties . 792 466
Misuser by the borrower — Want of
skill 793 467
Restoration of the thing borrowed, or
its equivalent — Loss by robbery,
fire, or accident .... 794 46S
Adverse claimants. — Eviction by title para-
mount .......
Implied obligations and duties of the lender
Loans of money to one of several partners
Loans to registered companies
Damages in actions for not replacing stock .
CHAPTER III.
CONTRACTS FOR SERVICES.
Sec. I. — Work and labor.
Deposit or simple bailment .... 800 474-
What is necessary to constitute a deposit
— Executory and executed promises 801 475
Liabilities of the depositary — Negligent
keeping — Ordinary casualities . . 802 476-
Carelessness on the part of the depositor in
selecting a person notoriously unfit
to be trusted .... 803 478
Theft by the servant of the depositary . . 804 478.
Use and enjoyment by the depositary of the
subject-matter of the deposit . . 805 481
Transfer of a deposit to a stranger — Remedy of
the depositor .....
Restoration of the deposit ....
Joint and several deposits ....
Transfers of the subject-matter of the bailment
— Adverse cl.timants . . . 809 485,
806
482
807
483;
808
483.
CONTENTS. XV
PARAGRAPH PAGU.
Eviction by title paramount .... 8io 485
Stakes in the hands of shareholders to abide
the event of a lawful game . . 811 486
Power of the depositary to compel rival claim-
ants to establish their title by inter-
pleader 812 488
Liabilities of the depositary when he holds
possession wrongfully . . . 813 488
Liabilities resulting from the taking possession
of goods by finding . , . . 814 489
Liabilities of the depositor .... 815 490
Deposits of money with one of several part-
ners ........ 816 490
Deposits of money with bankers . . . 817 492
Deposits of bills, notes, and securities with
bankers 818 494
Receipt of cheques by bankers for their
customers 819 496
Duty of bankers to honor the drafts of their
customers — Payment of cheques . 820 498
Payment of cheques under suspicious
circumstances — Negligence . 821 500
Joint accounts and joint deposits with
bankers . . . . * . . 822 501
Deposits and accounts with bankers in the
names of trustees, agents, and receivers
Separate accounts opened by the same per-
son in different capacities
Loss of trust money in the hands of
bankers .....
Payment of forged cheques, facilitated
by the negligence of the cus-
tomer
Forged indorsements ....
Cheques paid by mistake ....
Payment of cheques at branch banks
Crossed cheques
Lien of bankers
Damages for non-payment of cheques by
bankers .....
Mandate or gratuitous commission .
823
502
824
503
82s
504
826
504
827
506
828
508
829
510
830
Si»
831
513
832
513
833
513
xvi CONTENTS.
PARAGRAPH PAGE
Non-feazance and mis-feazance . . 834 515
Bailment of money and chattels to be car-
ried gratuitously — Loss or dam-
age from negligence . . . 83s 517
Bailments of chattels to be repaired gra-
tuitously— Emplo)'ment of un-
skillful persons ....
Custody and safe keeping of the chattel .
Bailment of money for investment
Bailments of living animals — Negligent
management ....
Bailments of perishable commodities
Use of the subject-matter of the mandate
Theft and negligence by servants of the
mandatary .....
Payment of expenses ....
Taskwork 845
Distinction between contracts for work and
services and contracts of sale .
Executory and executed contracts for work
Work and services in preserving a lost chat-
tel, and restoring it to the owner .
Salvage services .....
'Service by trustees
Promise of presents in return for services
Honorary and gratuitous services .
Rights and liabilities of employer and
workmen .....
Defeasible contracts for work and services
Time of performance ....
Entire performance of a contract for work
is often a condition precedent to
payment .....
Divisible and apportionable work .
building contracts
Work to be approved of before payment
Relief against biased or corrupt deci-
sions of architects and sur-
veyors .... 860 545
Actions for wrongfully withholding
the certificate . . . . 861 545
836
S18
837
519
838
519
839
521
840
523
841
523
842
524
843
52s
84s
526
845^
526
846
528
847
529
848
530
849
534
850
535
851
536
852
537
853
538
854
539
8SS
540
856
540
857
541
858
542
CONTENTS. xvii
PARAGRAPH PAGB
Effect of the employers taking posses-
sion and making use of the
unfinished work . . 862 546
Defective work accepted by the em-
ployer 863 546
Substantial performance of building
contracts .... 864 547
Abatement of the contract price . 865 550
Effect of non-performance of building
contracts by the time specified 866 550
Penalties for non-performance of
building contracts by a time
specified .... 867 551
Security for the due performance of
the contract .... 868 551
Destruction of work before payment —
Loss of materials, and loss of
the price of the work . 869 552
Deviations from building contracts —
Extras 870 555
Prevention of performance of building
contracts . . . . 871 556
Lien of workmen and artificers . . 872 557
Liabilities of taskworkmen . . . 873 557
Implied obligation to do the work well —
skilled workmen .... 874 558
Work rendered useless by the negligence
or incompetence of the workman 875 559
Useless and unskilfull professional services 876 561
Negligence of solicitors, surgeons,
valuers, &c 877 562
Wilfull selection of unqualified persons 878 568
Bailment of materials to workmen to be
manufactured or repaired for hire 879 569
Re-delivery of materials furnished by
the employer . . . 800 570
Damages for prevention of performance . 881 570
Sec. 2. — Master and servant
Contracts of hiring and service . . . 882 572
Authentication and proof of the contract . 883 57
xviii CONTENTS.
PARAGRAPH PAGE
Yearly hirings — Domestic servants . 884 575
Indefeasible and defeasible yearly hir-
ings— Month's warning or a
month's wages . . . 885 578
Hiring by the month and week . . 886 579
Service at will 887 581
Rights and liabilities of master and servant 888 581
Dismissal of skilled servants for incom-
petency 889 591
Dismissal for misconduct .... 890 591
Discharge by order of justices . . 891 593.
Warning — Notice to leave . . . 892 593,
Payment of wages ..... 893 594
Disability from sickness . . . 894 594
Wrongful dismissal .... 895 594
Of the month's wages in lieu of a
month's warning . . . 896 594
Damages for a wrongful dismissal —
Dissolution of the contract —
Wages pro rata . . . 897 5 9&
Amount of wages recoverable — De-
ductions .....
Presumption of payment of wages
Jurisdiction of justices .
Dissolution of the contract by the death
of the parties
Seamen's wages
Contracts of apprenticeship ....
Rights and liabilities of parties to inden-
tures of apprenticeship . . 904 601
Misconduct of the apprentice — Dis-
solution of the contract . . 905 602
Discharge by award of justices . 906 604
Damages for refusing to employ, and
for wrongful dismissal . . 907 604
Damages against apprentices . 908 605
Skc. 3. — Principal and agent.
Agencies and commissions .... 909 606
Revocation of authority .... 910 606
When the agent's authority is irrevocable 911 6091
898
597
899
59?
900
59*
901
599
902
599
903
599
CONTENTS. xix
PARAGRAPH
Accounts 912 609
Liabilities of brokers, factors, and commission
agents to their principals
Del credere commissions ....
Liabilities of insurance brokers to their
principals
Share-brokers and stock-brokers
Solicitors .....
Sheriff's oflScers' ....
Estate and house agents .
Receipt of money and goods by agents on
account of their principals
Receipt of money by sub-agents .
Payment by one agent to another agent •
Purchases by the agent with the money of the
principal ......
Frauds by agents on their principals
Payment of commission ....
Extra work by agents ....
Right of ship-brokers to commission
Right of policy brokers to commission
Right of travelers for orders to commission
Commission of house-agents, estate-agents
and auctioneers .... 930 642
The right of the agent to be re-imbursed upon
the revocation of his authority .
Lien of factors and brokers ....
Of insurance brokers
Of solicitors
Of shipmasters
Indemnification of agents ....
Breach of warranty of authority by agents
913
610
914
613
9IS
615
916
919
917
621
918
(>Zi
919
633
920
634
921
636
922
637
9n
637
924
639
925
638
926
640
927
640
928
641
929
642
Sec, 4. — Contracts for carriage.
^ Contracts for the carriage of merchandise .
Contracts of aflfreightment — Charter parties .
When the contract operates as a demise or
bailment of the ship .
Parties to charter parties ....
Performance of the terms and conditions
of the contract .... 942 658
931
643
932
64s
933
646
934
647
935
649
92,^
650
937
642.
938
^5^
939
653
940
654
941
655
944
66i
945
662
946
664
947
665
948
665
XX CONTENTS.
PAKAGRAPH PAGE
Representations in charter parties . . 943 659
Substantial performance of conditions pre-
cedent .....
Time of pei;formance ....
Reasonable time of performance .
Waiver of time of performance .
Mode of performance — Complete cargo
Impossibility of performance — Contracts
to procure and carry cargoes and mer-
chandise ...... 949 666
Implied authority of the agents of ship-
charterers ..... 950 667
Shipment and carriage of merchandise under
bills of lading 951 667
Countermand of the shipment — Re-deli-
very of the goods to the consignor 952 669
Loss of or damage to goods by the way 953 670
Implied promise to carry safely , . 954 673
Limitation of liability Ciy special con-
tract 955 675
Loss by the act of God, dangers and
accideAts of the seas, rivers, and
navigation .... 956 676
When a loss occasioned by negligence
or misconduct is not a loss from
peril of the sea, though the sea
does the mischief . . . 957 678
Proof that the loss was occasioned by
negligence and not by a peril of
the sea ..... 958 681
Loss by fire — Limitation of the re-
sponsibility of owners and part
owners of ships by statute . . 959 681
Losses occasioned by the negligence
of licensed pilots
Delivery of goods by shipowners
Losses on board lighters conveying
goods from the ship to the shore
Payment of the freight or hire .
Calculation of the freight
Payment pro rata ....
960
685
961
685
962
688
963
689
964
692
965
693
CONTENTS. xxi
PARAGRAPH PAGE
Time freight ..... 966 693
Shipowner's lien for the freight — Pay-
ment of freight by the consignee 967 694
Liability for Ireight resulting from
the acceptance of goods under
bills of lading .... 968 696
Stipulated payments in lieu of freight
extinguishing the right of lien 969 699
Retainer of goods in the Queen's
warehouse for freight . ■ 970 700
Payment of demurrage on charter-parties and
bills of lading
Primage and average ....
General average and contribution
Damages for breach of charter-parties .
Restrictions on the carriage of dangerous goods
Carriage of passengers and merchandise by
land by parties not common carriers —
Injuries to passengers and goods
Loss of goods or money by the way .
Who is to be deemed a common carrier
The nature and extent of the duties of the
common carrier are regulated by
the nature and extent of his pub-
lic profession and practice . . 979 717
Public profession of railway com-
panies made through the me-
dium of their time-tables . 980 720
Booking places in coaches . . . 981 720
Implied undertaking of railway companies
to forward passengers without un-
necessary delay . . . 982 721
Contracts for the carriage of passengers . 983 721
Limitation of the liability of common car-
riers by. public notice — Carriage
of gold and silver, jewelry, title-
deeds, glass, silk, &c. 984 722 985 725
Common Carriers' Act — Declaration of
value by consignors . . . 986 727
Losses from robbery and theft by the
common carriers' servants . 987 729
971
700
972
703
973
703
974
709
975
711
976
712
977
713
978
71S
xxii CONTENTS.
PAKAGRAPH PACBT.
Liabilities of the common carriers'
servants 988 730-
Inability of common carriers to rid them-
selves by public notice of the
duties imposed upon them by the
ancient custom of the realm . 989 731
Common carriers may protect them-
selves by special contract . 990 733,
Stipulation exempting common car-
riers by water from loss of
luggage, unless a bill of lad-
ing has been signed for it . 991 73J.
When the carrier may by special con-
tract exempt himself from all
responsibility for damage to
certain classes and descrip-
tions of goods in transitu . 992 734.
Void limitations of liability . . 993 737
Loss of passenger's luggage by railway
companies .... 994 739^
Losses occasioned by the negligence of
the consignor. Defective pack-
ing
Loss arising from the nature and character
of the thing carried
Inability of railway and canal companies
to exempt themselves from respon-
sibility for negligence
Declaration of value .....
Special contracts with railway and canal
companies for the carriage of
goods ..... 999 742
What are unjust and unreasonable
conditions in special contracts 1000 743,
What are just and reasonable condi-
tions ..... 1001 745,
Liability of a railway company during sea
transit 1002 746.
Implied authority of the servants of a rail-
way company to bind the com-
pany by special contract . . 1003 747
995
740-
996
74a
997
74r
998
742-
CONTENTS. xxiit
PARAGRAPH PAGB-
Acceptance of goods to be carried beyond
the district traveled over by the
carrier to whom they have been
delivered . , . . . 1004 74S.
Effect of giving the carrier a wrong direc-
tion for the delivery of the goods
Payment of the fare or hire — Carrier's lien .
Common carrier's charges — Railway charges —
By laws . . ...
Carriage of packed parcels
Charge for luggage by excursion trains ,
Notice of action to railway companies .
Parties to be made plaintiffs in actions
against carriers for the loss of, or
injury tp, goods ....
Joint bailments to common carriers
Parties to be made defendants — Carriage of
goods and passengers over distinct
lines of railway ....
Damages in actions against carriers .
Contracts for the transmission of messages by
electric telegraph — Limitation of li-
ability
Proof of a jus tertii by the common carrier .
1005
750
1006
751
1007
753-
1008
754
1009
755
lOIO
755-
ion
756
IOI2
755^
1013
759-
IOI4
760-
IOI5
763.
IO16
764
THE
LAW OF CONTRACT
BOOK II.
THE LAW OF PARTICULAR CONTRACTS.
CHAPTER I.
THE CONTRACT OF SALE.
SECTION I.
OF CONTRACTS FOR THE SALE OF LANDS.
507. Contracts of sale. — The contract of purchase
and sale is founded upon a mutuality of engagement or
upon mutual promises, the promise or undertaking
of the one party to sell being the consideration for the
promise of the other to buy. It is completed and
rendered binding, consequently, if properly authenti-
cated, by the bare consent of the parties, and ranks
amongst that class of contracts called bilateral con-
tracts. It is essential to the creation of a contract of
sale that there be a price consisting of a sum of money
to be paid by the buyer to the seller ; for, if " there is
an agreement that I shall sell you my horse for one of
your books, this agreement does not constitute a sale,
2 LAW OF CONTRACT. [Bk. II. Ch. L
but a different kind of contract, viz., an ex-
change." (a) ^
508. Sale of lands and corporeal hereditaments. —
We have already seen that no action can be brought
whereby to charge any person upon any contract for
the sale of lands, tenements, or hereditaments, or an)r
interest in or concerning them, unless the contract, or
some memorandum or note thereof, is in writing, and
signed by the party to be charged therewith, or by
some other person by him lawfully authorized to sign
it ; but that it is not necessary to show that the
memorandum of the agreement has been signed by
both the parties to it, in order to render the one who
has signed it liable upon the contract. The note or
memorandum need not be drawn up in technical
language, or in words of form ; but both the subject-
matter of the sale and the price to be paid for it must
be specified ; and it must also mention who is the
purchaser. (^F) If, therefore, upon a treaty for the
{d) Pothier, Obligations, No. 6. field, 4 B. & Aid. 501. Bl.igden v.
{6) Bayley, J., Saunders v. Wake- liradbear, 12 Ves. 466. Seagood v.
' All that is essential to the sale of a chattel, at common
law, is the agreement of the parties that the property in the
subject-matter should pass from the vendor to the vendee, for
a consideration given or promised to be given by the vendee.
2 Parsons on C, ch. iv. sec. i. Taking of goods for a price
promised to be paid on approval, without returning them,
constitutes a sale. Spickler v. Marsh, 36 Md. 222. When^
upon purchase of a chattel the purchaser gave his note, under
a parol agreement that the chattel should belong to the sure-
ties until the note was paid, the agreement effects to a change
of title from the seller to the sureties direct, and not from the
seller to the purchaser and then to the sureties. Worthy v.
Cole, 69 N. C. 157. It is also essential to the contract of sale
that the seller must have a vested interest or title in the thing
sold. One may not sell "all the halibut that may be caught
by the master and crew of the schooner R., on tlie vcjyage on
which she is about to proceed." Low v. Pew, io8 Mass. 347.
Sec. I.] SALE OF LANDS. 3
purchase and sale of an estate, the owner writes a
letter which amounts to a distinct oflfer to sell the
property upon certain terms, and the party to whom
the letter is addressed answers it and accepts the offer
within a reasonable period, the contract is complete ;
and an action for damages may be maintained upon
it, or the owner may be compelled to perform it in
specie, (c) But, if there has not been a clear offer
and acceptance of one and the same set of terms, — if
the property has not been clearly described and de-
fined, or any material particulars are left unsettled
between the parties, — there is not a concluded con-
tract, capable of supporting an action for damages or
specific performance, (d) Where a draft agreement
had on the back of it, " We approve of this draft," and
this was signed by the intended parties to the agree-
ment, it was held that it merely amounted to evidence
of something they intended to agree to, and not to
an actual agreement. " If the words," observes Lord
Tenderden, " imported an agreement, there would
never be any necessity for any other instrument." {e)
" Still," observes Lord St. Leonards, " where the
parties themselves, not being professional persons,
sign such a memorandum, it is a question to be de-
cided in each case whether they signed in that form
as simply approving of the draft as such, or whether
they intended to give validity to it as an agreement."
(/) " It is not necessary that the note in writing, to
be binding under the statute, should be contemporary
with the agreement. It is sufficient, if it has been
Meale, Pre. Ch. 560. Ogilvie v. Pol- 527, pi. 17. Dunlop v. Higgins, I H
jambe, 3 Mer. 53. Skelton v. Cole, i L. C. 381 ; 12 Jur. 293.
De G. & J. 596. Boyce v. Green, {d) Kennedy v. Lee, 3 Mer. 451
Batt. 608. Thomas v. Blackmah, I Coll. Cli. 312
{c) Coleman v. Upcot, 5 Vin. Abr. W Doe v. Pedgrjph, 4 C. & P. 312.
(/) Sugd. Vend. 14th ed. 144.
4 LAW OF CONTRACT. [Bk. II. Ch. I.
made at any time and adopted by the party after-
wards ; and anything under the hand of the party
expressing that he has entered into the agreement
will satisfy the statute, which was only intended to
protect persons from having oral agreements im-
posed upon them." (^g)
509. Signature of the writing. — The various
modes of signing contracts by the party to be
charged, so as to satisfy the requirements of the
Statute of Frauds, have already been considered.
510. Sales by auction. — In the case of sales by
auction, the assent of the parties to the contract of
sale is manifested, as we have already seen, by the
knocking down of the auctioneer's hammer. The bid-
ding is a mere offer to buy at the price named by the
bidder, which offer may be retracted at any time be-
fore the hammer is down and the offer has been
accepted. {K) A stipulation in the conditions of sale,
to the effect that no person shall retract their bid-
dings, would not, at common law, prevent the bidder
from retracting, if he thinks fit so to do, before his offer
has been accepted and a contract has been actually
made. The vendor may, if he thinks fit, be his own
auctioneer ; but he can not, unknown to the bidders,
privately depute a third party to attend the sale and
bid progressively for the property on his account, as a
defensive precaution to prevent it from being sold at
an undervalue. ' The employment of a single person
to bid on behalf of the vendor will avoid the sale,
unless the fact is notified to the assembled bid-
(g) Shippey v. Derrison, 5 Esp. 192. Warlow v. Harrison, 28 L. J., Q. B.
(h) Payne v. Cave, 3 T. R. 148. 18 ; 29 lb. 14.
' Ante, vol. i. p. 41, and cases cited in note 2. Brent v.
Green, 6 Leigh, 16.
Sec. I.] SALE OF LANDS. 5
ders. (f) ^ And, if the vendor publicly reserves to him-
self the right " to make one bidding and no more,"
through a person who is named, and then secretly
employs another person to make general and repeated
biddings, this is a fraud and imposition upon the
parties who attend the sale, and entitles the person
who is eventually declared the purchaser to abandon
the contract, (^k) Formerly, there was a conflict be-
tween the courts of law and equity in respect of the
validity of sales by auction, where a puffer had bid,
although no right of bidding was reserved, the former
holding that all such sales were absolutely illegal, and the
latter giving effect to them under some circumstances,
although the rule was unsettled ; (/) but, by the 30 &
31, Vict. c. 48, s. 4, " whenever a sale by auction of
land would be invalid at law by reason of the em-
ployment of a puffer, the same shall be deemed invalid
in equity as well as at law." Sect. 5 of the same Act
requires that the particulars or conditions of sale shall
state whether the land is to be sold without reserve,
or subject to a reserve price, or whether a right to bid
is reserved. If it is stated that land will be sold with-
out reserve, or to that effect, it is unlawful for the
seller to employ any person to bid at the sale, or
for the auctioneer knowingly to take any bidding
(i) Parke, B., Thornett v. Haines, {^k) Rex v. Marsh, 3 You. & Jerv.
15 M. & W. 372. Green v. Baverstock, 331.
32 L. J., C. P. 181. (/) Mortimer v. Bell, L. R., I Ch.
10 ; 35 L. J., Ch. 25.
' Steele v. Ellmaker, 11 Serg. & R. 68 ; Towle v. Leavitt,
3 Fost. (N. H.) 360; Wolfe v. Luyster, 11 Hall 149; Latham
V. Morrow, 6 B. Mon. 630. But see contra, Pennock's Appeal,
2 Harr. p. 446 ; Staines v. Shore, 4 lb. 200 ; Nearie v. Wil-
liams, 8 How. 134; 3 Story, 611; Towle v. Leavitt, 3 Fost.
(N. H.) 360 ; Moncrief v. Goldsborough, 4 Har. & McHen.
6 LAW OF CONTRACT. [Bk. II. Ch. I.
from such person. If a right to bid is reserved, the
seller, or any person on his behalf, may bid as he may
think proper. (;«) But there is a distinction between
a reserved bidding and a reserved right to bid, and in
order to reserve to the vendor the right to bid up to
the reserve price, such right must be expressly stipula-
ted for ; it is not sufficient to state in the conditions
that the sale is subject to reserved bidding. (?«) The
effect of employing anyone to bid when the sale is
" without reserve is, that the sale is void, and the pur-
chaser is entitled to recover back his deposit from the
auctioneer." (<?) The term " without reserve " is under-
stood " to exclude all interference by the vendor, or
those coming under him, with the right of the public
to have the property at the highest bidding." Any
arrangement, therefore, between the vendor and a
third party, the result of which is to prevent the
property from being sold under a fixed sum, will
render the sale null and void. (/>) When the vendor
inserts in the conditions of sale that the property is to
be sold " without reserve," he, by so doing, contracts
with the highest bona fide bidder that the sale shall
be without reserve. If, therefore, a bid is made by
or on behalf of the vendor or the owner of the
property, the latter may render himself responsible in
damages to the highest bona fide bidder for a breach
of the conditions of sale. (^) But the auctioneer is
not responsible for a breach of the condition, unless
he has himself made a representation false to his
(m) 30 & 31 Vict. c. 48, s. 6. These Thornett v. Haines, 15 M. & W. 367.
secl-ions are not to alTect sales of land Warlow v. Harrison, I El. & El. 295,
under the order of the Court of Chan- 316 ; 29 L. J., Q. B. 14.
eery. (p) Robinson v, Wall, 16 L. J., Ch
(n) Gilliat v. Gilliat, L. R., g Eq. 401.
60 ; 39 L. J., Ch. 142. (51) Warlow v. Harrison, supra.
(p) Meadows v. Tanner, 5 Mad. 34.
Sec. I.] SALE OF LANDS. 7
knowledge, and has thereby induced the plaintiff to
incur expense and loss, as there is no contract be-
tween the auctioneer and the highest bidder that the
property offered for sale shall be knocked down to
him. (r)
As, on the one hand, the seller can not employ
secret bidders to run up the price, and delude the
purchaser with a fictitious contest, so, on the other
hand, if a purchaser by his conduct induces other
persons not to bid, the sale will not be binding on the
vendor, (s) ^ Where the known agent of the vendor
was employed by the purchaser to attend a sale by
auction and bid for him, and was thought by the
assembled company to be a puffer, which deterred
other persons from bidding, and the estate was
knocked down to the agent, under the false impres-
sion that he was acting for the vendor, the Court of
Chancery refused to assist the purchaser to enforce
the contract, as the employment of the vendor's agent
by the purchaser had hurt the sale, and had been de-
trimental to the vendor. (^) As soon as the hammer
of the auctioneer is down, and the bidding has been
accepted, an agreement for the sale and purchase should
be signed by the parties themselves, or by the auctioneer
as their agent, inasmuch as sales by auction are, as we
have before seen, within the Statute of Frauds, and must,
whenever the subject-matter of the sale consists of an
■estate or interest in land, be authenticated by a signed
writing. ^ The printed conditions of sale, containing
(r) Maiiiprice v. Westley, 6 B. & S. 316 ; 3 B. & B. 116.
420 ; 34 L. J., Q. B. 229. (/) Twining v. Morrice, 2 Bro. Ch.
(j-) Fuller V. Abrahams, 6 Moore, C. 331.
' Martin v. Runlett, 5 Rich. 541 ; Haynes v. Crutchfield,
7 Ala. 189.
" JnU, vol. i. pp. 296, 297, 298.
8 LAW OF CONTRACT. [Bk. II. Ch. I.
the terms on which the purchaser bids and the vendor
accepts his bidding for the estate, form, when signed,
a written contract between the vendor and purchaser,
sufficient to satisfy the requirements of the Statute of
Frauds ; and the auctioneer's receipt for the deposit,
signed by him, will amount to an agreement binding
upon the seller, if it contains the names of the seller
and purchaser, a description of the estate sold, and the
price to be paid ; or if it refers to the conditions or
particulars of sale, so as to enable the court to read
them together as one contract. '
When an estate is sold by auction in separate lots,
a separate contract is created as to each lot. {zi) But
it is otherwise, if a contract is made for the purchase
of several lots at one aggregate price ; or if the several
lots are so connected together that the possession of
all is essential to the use and enjoyment of any one or
more of them, and they have consequently been pur-
chased by the vendee as one property, (.r) We have
already seen that an auctioneer effecting a sale by
auction, or an auctioneer's clerk taking down the
bidding, is deemed to be the authorized agent both
of the vendor and purchaser, so as to be enabled
to bind both or either of the parties by signing their
names to the printed conditions of sale ; but, until the
hammer goes down, the auctioneer is exclusively the
agent of the vendor ; (jy) and, when the sale is over,
the auctioneer is no longer the agent of either party.
(5) But he is not necessarily the agent of both
parties ; for it may be shown that the purchaser bought
(11) Emmerson v. Heelis, 2 Taunt. P. C. 49. Boyer v. Blackwell, 3 Anstr.
38. James v. Shore, I Stark. 426. 657. Dykes v. Biake, 4 Bing. N. C.
Roots V. Lord Dormer, 4 B, & Ad. 77. 463 ; Sc. 345.
(jr) Chambers v. Griffiths, I Esp. (7) Warlow v. Harrison, a«fe.
150. Gibson V. Spurrier, 2 Peake, N. (z) Mews v. Carr, ante.
' Ante, vol. i., p. 330, 321, 322.
Sec. I.] SALE OF LANDS. 9
under an express contract between him and the ven-
dor, and not under the conditions of sale, {a) The
auctioneer generally puts down the purchaser's name
in his catalogue or in the conditions or particulars of
sale, with the amount of the bidding opposite the lot
purchased ; or he makes an entry of the particulars in
his books, inserting the name of the purchaser. In
either case the latter will be bound. If the conditions
of sale are pasted up in a conspicuous position in the
auction-room, the purchaser will be bound by the
terms and conditions, although it can not be proved
that he read them. (<5) These conditions can not be
contradicted, added to, or altered by verbal declara-
tions made by the auctioneer at the time of the sale.
{c) The reading of a lease at an auction by an auc-
tioneer is no excuse for a misdescription of the terms
of the lease in the particulars or conditions of sale. (</)
If the estate is sold by order of the Court of Chancery
and a bidder who is declared the purchaser sells again
in the auction-room at an additional price, the court
will order a re-sale, (e) If the auctioneer at a sale
does not disclose the name of the vendor, but makes
the contract in his own name, he will himself be per-
sonally responsible for the fulfillment of the con-
tract. (/) '
511. Of the enforcement of oral contracts for the
(a) Bartlett v. Purnell, 4 Ad. & E, {d) Jones v. Edney, 3 Campb. 286.
»g^ Flight V. Boote, i Bing. N. C. 370.
{b) Mesnard v. Aldridge, 3 Esp. 271. {e) Holroyd v. Wyatt, 2 Col. C. C.
Bywater v. Richardson, i Ad. & E. 327.
jQg (/) Franklyn v. I.amond, 16 L. J.,
(c) Higginson v. Clowes, 15 Ves. C. P. 221 ; 4 C. B. 637.
521.
' A sale at auction to an association, of which the auc-
tioneer is himself a member, is void. Kearney v. Taylor, 15
How. 494.
lo LAW OF CONTRACT. [Bk. II. Ch. I.
sale and purchase of estates.- — If liveiy of seisin is
made to a purchaser under an oral contract for the
sale of a freehold estate, or of a leasehold estate ex-
ceeding three years in duration, and he is actually put
into possession of the property agreed to be sold to
him, yet he will have only an estate or lease at will, by
reason of the fourth section of the Statute of Frauds,
which enacts, as previously mentioned, that all estates
of freehold, or terms of years, or any uncertain interest
in lands, tenements, or hereditaments, made or created
by livery and seisin only, or by parol, and not put into
writing and signed by the parties creating them or
their agents, shall have the force and effect of leases or
estates at will only, excepting leases not exceeding
the term of three years from the making thereof.
But the purchaser so let into possession will be en-
titled to a conveyance of the estate ; and the court
will compel the vendor to execute such a conveyance,
notwithstanding the provisions of the Statute of
Frauds, on the ground that there has been a part per-
formance of the contract, and that, possession having
been given and accepted in the fulfillment of the bar-
gain, it would be fraudulent in either party to withdraw
therefrom without the consent of the other, (^g) The
equity arising from part performance operates against
a company in like manner as against an individual,
the enactments of the Companies Clauses Act, 1845,
as to the mode in which contracts may be entered
into on behalf of a company, not precluding the en-
forcement against a company of the ordinary equity
based on part performance. (/^) The mere naked
ig) Butcher v. Stapely, i Vern. 364. R., i Ch. 137, 148 ; 35 L. J., Ch. 292,
Pyke V. Williams, 2 lb. 455. Fon- 295.
blanque, 175, n. Reynolds v. Waring, (h) Wilson v. West Hartlepool Rail-
I Younge, 352. Caton v. Caton, L. way Company, 2 De G., J. & S. 475 ;
34 L. J., Ch. 241.
Sec. I.J SALE OF LANDS.
II
transfer of the possession of land alone is not, it has
been said, sufficient to justify the courts in enforcing
the performance of an oral contract for the purchase
of the freehold and inheritance of such land on the
ground that the transfer of the possession is a part per-
formance of such oral contract. Acts done in perfor-
mance, it has been observed, must be such as could
have been done with no other view or design than to
fulfill the particular contract sought to be enforced, (z )
If, indeed, the change of possession is accompanied by
the payment of money on the part of the occupier to
the owner, under circumstances giving rise to the
presumption that it was an installment of purchase-
money, and not a rent paid in advance, there would
undoubtedly be a part performance of a contract,
which could be no other than a contract of sale, (^k)
So, if the change of possession has been accompanied
by the exercise of acts of ownership, such as the
expenditure of money in building, repairs, drainage,
and lasting improvements, quite inconsistent with the
notion of a contract for a yearly tenancy, it is evident,
from the acts done, that there has been a part perfor-
mance, either of a contract for the purchase of the
fee, (/) or for the grant of a lease for a long term of
years, (m) Such acts as are ordinarily introductory
or anciliary to contracts for the purchase and sale of
an estate or interest in land, such as the giving of
directions for a conveyance to be prepared, making
valuations, or fixing upon parties to value fixtures or
(j) Gunter v. Halsey, Ambl. 586. way Company, 2 De G., J. & S. 475.
Cole V. White, cited i Bro. Ch. C. 409. (k) Main v. Melburne, 4 Ves. junv.
Frame v. Dawson, 14 Ves. 388. Rey- 720. Coles v. Trecothick, g lb. 234.
nolds V. Waring, i Younge, 350. (/) Borrett v. Gomeserra, Bunb. 94.
O'Reilly v. Thompson, 2 Cox, 273. (;«) Sutherland v. Briggs, I Hare, 26.
Clinan v. Cooke, I Scho. & Lef. 22. Thornton v. Kamsden, 4 Giff. 519-
Watt V, Evans, 4 Y. & Coll. 579. But Nunn v. Fabian, L. R., i Ch. 35 ; 35
see Wilson v. West Hartle()Ool Rail- L. J., Ch. 14O.
12 LAW OF CONTRACT. [Bk. II. Ch. L
stock, or the making of admeasurements, or the pre-
paring of maps or plans, are not acts of perfor-
mance of an oral agreement for the purchase or
sale of an estate or interest in land, sufficient to take
the contract out of the statute, (it) But if " the pur-
chaser of lands under an oral contract files a bill
against the vendor to carry such contract into exe-
cution, and the vendor puts in an answer admit-
ting the contract as stated, it takes it entirely out of
the mischief of the Statute of Frauds, and, there being
then no danger of perjury, the court would decree it
to be performed." (^)
512. Of the transfer of the estate in equity by the
bargain before the execution of a conveyance. — -The
execution of a simple contract in writing for the sale
and purchase of an estate in fee, atlhough accompa-
nied by livery and seisin, or delivery of possession of
the land to the purchaser, does not, since the passing
of the Transfer of Property Act, transfer to the latter
the legal estate or interest agreed to be sold. The
written contract, if it amounts to a grant of the fee,
would be a feoffment, and would be avoided by the
section of the Act which enacts that " a feoffment
(other than a feoffment made under a custom by an
infant) shall be void unless evidenced by deed." A
right to have a conveyance of the land passes by the
contract to the purchaser, but not any legal estate or
interest in the land itself beyond an estate at will. It
is not necessary, however, for the alienation of propertj
that there should be a formal deed of conveyance ; a
contract for a valuable consideration, by which it is
(«) Clerk V. Wright, i Atk. 13. C. 400. Phillips v. Edwards, 33 Beav.
Cooke V. Tombs, 2 Anstr. 420. 440.
Whitechurch v. Bevis, " Bro. Ch. C. (0) Alt. -Gen. v. Day, I Ves. senr.
559. Redding v. Wilkes, 3 Bio. Ch. 220. Gunter v. Halsey, Ambl. 586.
Kondcau v. Wvait, 2 H, Bl. 68.
Sec. I.] SALE OF LANDS. 13
agreed to make a transfer of particular specified prop-
erty, passes the beneficial interest, provided the con-
tract is one which would be specifically enforced. (/>)
^' The estate, from the signing of the contract, becomes
the real property of the vendee. It is vendible as his,
<;hargeab]e as his, capable of being incumbered as his,
devised as his ; it may be assets, and will descend to
his heir." (^) The purchaser, therefore, in such a case,
is said to have the equitable interest in the land,
whilst the vendor has the legal estate, and is deemed
to be a trustee for the purchaser, holding the land
upon trust to convey it to the latter upon the terms
and conditions of the contract of sale, (r) whilst the
purchaser is a trustee of the purchase-money for the
vendor, (s)
This transfer of the equitable ownership is naturally
accompanied with a corresponding transfer of the risk
of loss, so that, if lands and houses are agreed to be
rsold, and the houses are burned down by fire, or
destroyed by an earthquake, between the time of the
making of the contract of sale and the execution of a
conveyance of the legal estate, the loss will fall upon
the purchaser, who will be compelled to accept a con-
veyance'of the land without the houses, and to pay
the full amount of the purchase- money to the vendor;
(t) nor will he be entitled to the benefit of any insur-
ance effected by the vendor in the absence of an
■express stipulation to that effect in the agreement for
the purchase. («) So, if a simple contract be entered
(q) Lord Eldon, Seton v. Slade, 7 (t) Harford v. Furrier, I Mad. 538,
(p) Holroyd v. Marshall, 10 H. L. 539. Rawlins v. Burgis, 2 Ves. & B.
■C. igi ; 33 L. J., Ch. 193. 387. Paine v. Meller, 6 Ves. 353. Cass
Ves. 274. V. Rudele, 2 Vem. 280. Poole v.
(?-) Davie v. Beardsham, I Ch. C. 39. Adams, 33 L. J., Ch. 639.
(s) Green v. Smith, i Atk. 572. Pol- («) Poole v. Adams, 33 L. J., Ch.
flexfen v. Moore, 3 Atk. 273. 639.
14 LAW OF CONTRACT. [Bk. II. Ch. I.
into for the sale of an estate holden for two lives, and
one of the lives drops before the conveyance is execu-
ted, the loss will be the loss of the purchaser, (x) And,
if a man signs an agreement for the purchase of an
annuity, payable during the life of a third party, and
the latter " happens to die before the annuity is legally
transferred to the purchaser, the death can form
no objection to the specific performance of the
contract," ( y) and the purchaser must pay his money,
although he can never enjoy that for which it was
agreed to be paid. If, on the other hand, any profit
or gain accrues, it will belong to the purchaser.
Therefore, if a reversionary interest is agreed to be pur-
chased, and lives drop between the time of the making
of the agreem.ent and the execution of a conveyance,
the purchaser will have the benefit of it. (z) If an
estate is sold for an annuity to be paid by the purchaser
during the life of the vendor, and the vendor dies
after the signing of the agreement and before the
execution of the conveyance, the purchaser will never-
theless remain the equitable owner of the property,
and will be entitled to call upon the heir at law of the
vendor for a conveyance of the legal estate ; and he
may thus acquire the property without the payment
of a single shilling of money, (a) But he must not
sleep over his rights, (d) And it must be observed
(x) White V. Nutts, i P. Wins. 61. modum pertinet : nam et commoduni
So by the civil law, '* cum autem enip- ejus essedebet cujus periculum est.'"
tio et venditio contracta sit, periculum Instit. lib. 3, tit. 24, § 3,
rei venditse -^talim ad eniptorem perti- (j/) Kenney v, Wexham, 6 Mad.
net, tametsi adhuc ea res emptori tra- 357.
diia noil sit. Itaque, si aut a.'des totce (2) Ex parte Manning, 2 P. Wms.
vel aliqua ex parte incendio consump- 410.
t;E fuerint, emptoris damnum est, cui (a) Mortimer V. Capper, I Bro. C,
ncccs-e est, licet rem non fuerii naclus, C. 156. Jackson v. Lever, 3 lb. 604.
prcliuni solvere. Scd et vi i«>^l omp- {//) Wyvill v. Bishop of Exeter, t
lionem fund') aliquid ad cmp!o;isct)ni- I'r. 2';j2.
Sec. I.] SALE OF LANDS. 15
that if the annuity becomes due before the death of
the vendor, and the purchaser has neglected to pay it
or tender payment, the court will render him no assis-
tance, {c) But the simple contract of purchase and
sale must, of course, be a complete and concluded
contract, in order to transfer the right of property and
the risk of loss to the purchaser. In the case of judi-
cial sales by the court in the master's office, the contract
of sale is not considered to be concluded until the
master's report is confirmed as to the party who is the
best purchaser, and the title is accepted, and in some
cases not until the purchase-money is brought into
court, or paid into the bank, (d) In order to transfer
the right of property and the risk of loss, it must also
appear that the vendor has a good title at the time of
the making of the contract, or before the disaster
happened, and that he was clothed with the estate or
interest he agreed to sell ; for, if he had not himself got
the estate, it can not of course have passed to the pur-
chaser.
513. Of the production and proof of the vendor s
title. — It is the first duty of the vendor, when an
executory contract of sale has been concluded, to
prepare and show to the purchaser satisfactory evi-
dence of title. " An agreement to make out a good
title is implied from every contract for the sale of
realty ; " {e) and a purchaser is not bound to accept a
doubtful title.^ If no precise time is fixed within which
the title is to be deduced, the vendor will have a rea-
W Pope V. Roots, I Bro. P. C. 370. W Hall v. Betty, 4 M. & Gr. 410 ;
(rf) Twigg V. Fifield, 13 Ves. 518. 5 Sc. N. R. 508. Dick v. Donald, i
Vincent v. Going. 3 Dru. & W. 75. Bligh, N. S. 655.
Mackrett v. Hunt, 2 Mad. 34, n.
• See Dearth v. Williamson, 2 Serg. & R. 500; Sweitzer v.
Hummell, 3 Id. 228.
16 LAW OF CONTRACT. [Bk. II. Cii. I.
sonable time for its establishment. (/) ^ He may, if
he thinks fit, stipulate for the sale of an estate with
such a title only as he happens to have ; and in such
(/) Sanson! v. Rhodes, 6 Bing. N. C. 261 ; 8 Sc. 544.
' A vendor of land who has covenanted to convey on a day-
certain, will not be in default until the party entitled to the
conveyance has demanded it, and having waited a reasonable
time for the preparation and execution of the deed, has de-
manded it a second time. But if the first demand was refused,
a second will not be necessary. Connelly v. Pierce, 2 Wend.
129 ; Blood V. Goodrich, 9 Wend. 68.
As to the essentiality of delivery to a deed, see Hulick v.
Scovil, 4 Gilm. 175 ; Church v. Gilman, 12 Wend. 656; Fair-
banks V. Metcalf, 8 Mass. 230; Stiles v. Brown, 16 Vt. 563;
Fletcher v. Mansur, 5 Ind. 267. Once delivered, a deed can
not be defeated by subsequent acts not conditioned in the
deed itself. Washburn on Real Property, vol. ii. p. 577. There
can be but one delivery of the same deed. (Id.) The deed
takes effect from the time of its delivery, not from its date,
though prima facie they are supposed to be identical. Id. ;
Jackson v. Bard, 4 Johns. 230; Harrison v. Phillips Academy,
12 Mass. 455; Geiss v. Odenheimer, 4 Yeates, 278; Cutts v.
York Co., 18 Me. 190; Colquhoun v. Alkinson, 6 Munf. 515.
The delivery must be intentional. If a deed be laid upon a
table by the grantor in the presence of the grantee, with the
intention of the latter taking it, that is a good delivery; but
if the grantor laid it down with no such intention, the
grantee's taking it up does not amount to a delivery. Wash-
burn, vol. ii., p. 604 ; Methodist Church v. Jaques, i Johns.
•Ch. 456. But see Fisher v. Beckwith, 30 Wis. 55, holding
that when a grantor has been guilty of negligence in having
made, signed, and acknowledged the deed, and keeping or
depositing it in a place where he knew the party named as
grantee might possess himself of it if so disposed, he is
estopped from setting up in title against an innocent pur-
chaser for value. And see as to what is not a delivery,
Deanesney v. Graveline, 56 111. 93; Duncan v. Pope, 47 Ga.
445 ; Stanton v. Miller, 65 Barb. 58 ; Ford v. James, 2 Abb.
(N. Y.) App. Dec. 159. Delivery by a corporation will
ordinarily consist in the attaching thereto of their common
seal by their consent. Washburn, vol. ii. p. 578. If they au-
thorize their attorney to deliver it, it is not their deed until
formally delivered by him Qd.). Delivery to the authorized
Sec. I.j SALE OF LANDS.
i;
a case the purchaser will be bound to take whatever
interest the vendor has in the premises, whether free-
hold, leasehold, or copyhold, {g) The vendor must
(g) Freme v. Wright, 4 Mad. 364. Duke v. Barnett, 2 Coll. C. C. 337.
agent cf a corporation, is a delivery to that corporation.
Western R. R. v. Babcock, 6 Met. (Mass.) 356.
A delivery of a deed to the agent of the grantee, to be held
while he considers whether or not to accept, is no delivery.
Ford V. James, 2 Abb. (N. Y.) App. Dec. 159. In Hatch v.
Hatch, 9 Mass, 307 ; and Foster v. Mansfield, 3 Met. (Mass.)
412, a father made a deed to his son, and left it in the hands
of a stranger, to be delivered to the son after his (the father's)
death, and the delivery was held good, although it was not
regarded as an escrow by the grantor; and see O'Kelly v.
O'Kelly, 8 Met. (Mass.) 439. See as to what will be considered
as an escrow. Marsh v. Austin, t Allen 238 ; Hulick v.
Scoville, 4 Gilm. 176 ; Buffum v. Green, 5 N. H. 71 ; Belden
V. Carter, 49 Day 66 ; Ruggles v. Lawson, 13 Johns. 285 ;
Morrison v. Kelly, 22 111. 626; Wheelright v. Wheelright, 2
Mass. 447 ; Foster v. Mansfield, 3 Met. 4r2 ; Wisson v. Stevens,
4 Ired. Eq. 557 ; Oliver v. Stone, 24 Ga. 63; Cincinnati, &c.,
R. R. V. Iliff, 13 Ohio St. 249; Church v. Gilman, 15 Wend.
656; Mallett v. Page, 8 Ind. 364 ; Guard v. Bradley, 7 Id. 600;
Stewart v. Weed, ti Id. 92 ; Berkshire, &c., Ins. Co. v. Sturges,
13 Gray (Mass.) 177 ; Phillips v. Houston, 5 Jones (Id.) 302;
Boody V. Davis, 20 N. H. 140; Cloud v. Calhoun, 10 Rich, (i
Eq.) 358; Mitchell v. Ryan, 3 Ohio St. 382 ; Bullit v. Taylor,
Miss. 741 ; Boardman v. Dean, 34 Pa. St. 252.
But there can be no delivery without an acceptance on
the part of the grantee, and an act of delivery and acceptance
must be mutual and concurrent. Washburn, vol. ii. p. 581 ;
Mitchell v. Ryan, 3 Ohio St. 386 ; Jackson v. Bodle, 20 Johns.
184; Dikes V. Miller, 24 Tex. 417.
Mere proof of acceptance at a time subsequent to the act
of delivery will not give validity to a deed unless, the act of
delivery were one in its nature continuing until acceptance,
■e. g., such as leaving a deed on deposit, to be accepted by the
grantee at his election. Maynard v. Maynard, 10 Mass. 456;
Rennell v. Weyant, 2 Har. 501 ; Elsey v. Metcalf, i Den. 326;
Jones v. Bush, 2 Harring. i ; Church v. Gilman, 15 Wend.
<556 ; Jackson v. Dunlap, i John's Cas. 114; Canning v.
Pinkham, i N. H. 353 ; Buffum v. Green, 5 N. H. 71 ; Hulick
i8 LAW OF CONTRACT. [Bk. II. Cn. L
furnish, at his own expense, an abstract of his title,
consisting of a written statement containing with
sufficient fullness the effect of every instrument which
V. Scovil,4GiIm. 177 ; Lloyd v. Giddings, 7 Ohio, 2. But see
Mitchel V. Ryan, 3 Ohio St. 377.
A deed handed to a party to see if it is satisfactory ; or to
an attorney, with the remark that it was not to be binding-
until something else w^as done, is not a delivery of that deed.
Graves v. Dudley, 20 N. Y. 76 ; Black v. Shreve, 13 N.J. L.
457. And consult Parker v. Parker, i Gray 407 ; How v.
Dewing, 2 Id. 476 ; Philadelphia, &c., R. R. Co. v. Howard,
13 How. 334; Worrall v. Muva, i Seld. 229; and it may be
shown by parol evidence that a deed has not been delivered.
Black v. Lamb, i Beasl. (N. J.) 116; Black v. Shreve, 13 N.
J. L. 457 ; Roberts v. Jackson, i Wend. 478; though where a
deed is found in a grantee's hands, the presumption is that it
has been delivered; Clarke v. Ray, 1 Harr. & J. 319; Ward v.
Lewis, 4 Pick. 518; Ward v. Ross, i Stew. (Ala.) 136 ; Can-
ning V. Pinkham, i N. H. 353 ; Cutts v. York Co., 18 Me. 190;
Green v. Yarnall, 6 Mo. 326; Houston v. Stanton, n Ala.
412 ; Chandler v. Temple, 4 Cush. 285 ; Southern Life Ins. Co.
V. Cole, 4 Fla. 359 ; though it may be shown to have been
surreptitiously obtained. Den v. Farlee, i N. J. 279; Morris
V. Henderson, 37 Miss. 501 ; Adams v. Frye, 3 Met. 109 ;
Williams v. Sullivan, 10 Rich. Eq. 217 ; Little v. Gibson, 39
N. H. 505 ; Black v. Shreve, 13 N.J. 459 ; but not if delivered
to a stranger; Church v. Gilman,6 Wend. 656. Depositing the
deed in the post office has been held to be a delivery ; Mc-
Kenney v. Rhodes, 5 Watts. 343; where the grantor has parted
with all control of the deed, and it is upon its face beneficial
to the grantee, its acceptance will be presumed, even if the
delivery was made to one without previous authority to re-
ceive it — that is, if the person claiming the deed show affirm-
atively that the grantee was in esse when the delivery was
made; Hulick v. Scovil, 4 Gilm. 190; Beasley v. Atwill, 2
Cal. 231, 236; Wall V. Wall, 30 Miss. 91. When a grantor,
after executing a deed ready for delivery, retains it, by agree-
ment with the grantee, it is neither a delivery nor an accept-
ance ; Jackson v. Dunlop, i Johns. Cas. 114; but if, under
those circumstances, the grantor declared that he delivered it,
it has been held to be a delivery. Stewart v. Weed, 11 Ind.
92 ; Souverbye v. Arden, i Johns. Cas. 253, 255 ; Scrugham
V. Wood, 15 Wend. 545.
Sec. I.] SALE OF LANDS. 19
constitutes part of his title, {h) The abstract ought
to show the state of the title for at least sixty years
immediately preceding the contract of sale, (i) And,
(h) Oakden v. Pike, 34 L. J., Ch. Ex. 175 ; 42 L. J., Ex. 108.
620. Want V. Stallibiass, L. R., 8 {t) Cooper v. Emery, i Phill. 388.
No particular words are necessary to accompany a de-
livery. Maynard v. Maynard, 10 Mass. 456. See in this con-
nection, Mitchell V. Ryan, 3 Ohio St. 377, where title was held
to have passed to an infant daughter from her father, who
died before she Icnew that the deed had been made to her. As
to delivery by means of registration in the register's office, see
Parker v. Hill, 8 Met. 447 ; Jackson v. Leek, 12 Wend. 107 ;
Barns v. Hatch, 3 N. H. 304; Denton v. Perry, 5 Vt. 382 ;
Harrison v. Phillips Academy, 12 Mass. 455; Jackson v.
Phipps, 12 Johns. 418; Jackson v. Richards, 6 Cow. 617;
Elsey v. Metcalf, i Denio, 326 ; Hedge v. Drew, 12 Pick. i4t ;
Powers V. Russell, 13 Pick. 69, 77; Parker v. Hill, 8 Met.
447. A delivery after record is good ; Porter v. Buckingham,
2 Harring. 197 ; Baldwin v. Maltsby, 5 Ired. 505 ; Stillwell v.
Hubbard, 20 Wend. 44; Rathbun v. Rathbun, 6 Barb. 98;
Oliver V. Stone, 24 Ga. 63 ; Berkshire M. F. Ins. Co. v.
Sturgis, 13 Gray, 177 ; Boardman v. Dean, 34 Penn. St. 252 ;
Boody V.Davis, 20 N. H. 140; Shaw v. Hayward, 7 Cash. 174;
Mills v. Gore, 20 Pick. 28.
In certain states a deed made to a married woman, without
her husband's consent, is void as to her; Foley v. Howard, 8
Clarke (Iowa) 36 ; Melvin v. Proprietors, 16 Pick. 167 ;
though a wife, after her husband's death, can not verbally
waive or disclaim a grant made to them both during his life-
time; Washburn on Real Property, vol. ii., p. 583. The rela-
tionship of a party to whom the deed is delivered, may be such
that the law will presume an acceptance ; as a delivery to a
father for his daughter ; Bryan v. Wash, 2 Gilm. 557 ; or to a
cestui que trust, who was the beneficiary under the deed ;
Souverbye v. Arden, i Johns. Ch. 240; Jaques v. Methodist
Church, 17 Johns. 577 ; S. C, i Johns. Ch. 456; Cloud v. Cal-
houn, 10 Rich. Eq. 362 ; Morrison v. Kelly, 22 111. 612.
Remaindermen can take under a deed poll delivered to a
tenant of the estate, though a stranger to the deed. Phelps v.
Phelps, 17 Md. 134. Where the deed conveys an estate to one
which is defeasible upon contingency, and the same is there-
upon to go over to another, as a contingent limitation, or
there is a contingent remainder limited after the expiration of
20 LAW OF CONTRACT. [Bk. II. Ch. I.
upon a sale of leasehold property without any con-
dition protecting the vendor against the production of
deeds, the vendor is bound to produce the lease which
a particular estate, a delivery of the deed to the first taker is a
delivery as to all who may be to take under it. Folk v. Varn,
9 Rich. Eq. 303. In the case of several grantees mentioned
in one deed, it may be delivered to one on one day, and to
another on another, and so take effect as to all. Washburn on
Real Property, vol. ii. p. 583. But, unless so expressed by
the grantor, a delivery as to one is not a delivery as to all.
Hannah v. Swarner, 8 Watts. 9. A class of cases is treated
by Washburn (on Real Property, vol. ii. p. 583), where debt-
ors and insolvents deliver deeds in assignment to third per-
sons, for the benefit of creditors. In one such case, Merrills v.
Swift, 18 Conn. 257, the deed took precedence of an attach-
ment, though not actually received and accepted by the cred-
itor until after the attachment was made; and see Wilt v.
Franklin, i Bin. 502. A deed in a grantee's hands is never an
escrow, although the title may pass, unless, under peculiar
circumstances. Fairbanks v. Metcalf, 8 Mass. 230, 238 ;
Brown v. Reynolds, 5 Sneed, 639 ; Cin. Wil. & Z. R. R. v.
Iliff, 13 Ohio St. 249-254. And see, as to conditional deliv-
ery of bonds., Lawton v. Sager, 11 Barb. 349; Williams v.
Green, F. Moore ; Foley v. Covvgill, s Blackf. 18; Gilbert
v. N. A. Ins. Co., 23 Wend. 43. In the case of an escrow
some condition is essential, upon performance of which the title
vests. Millett v. Parker, 2 Met. (Ky.) 608, 616 ; Worrall v.
Munn, I Seld. 229 ; Wight v. Shelby R. R., i6 B. Monr. 4.
And consult M. & I. Plank Road Co. v. Stevens, 10 Ind. i. A
delivery to a party vests the title as the deed of the grantor.
Herdman v. Bratten, 2 Harring. 396 ; State v. Chrisman, 2
Ind. 126; Plank Road Co. v. Stevens, 10 Id. i; Black v.
Shreve, 13 N. J. 458; Cincinnati, &c. R. R. Co. v. Iliff, 13
Ohio St. 249 ; Wheelright v. Wheelright, 2 Mass. 447 ; State
Bank v. Evans, 3 Green, 155 ; Foster v. Mansfield, 3 Met. 412 ;
O'Kelly V. O'Kelly, 8 Id. 434; Shaw v. Hayward, 7 Cush. 175 ;
Jackson v. Catlin, 2 Johns. 248, 259 ; Jackson v. Sheldon, 22
Me. 569; White v. Bailey, 14 Conn. 271; Hinman v. Booth,
21 Wend. 267; Green v. Putnam, i Barb. 500, 504; Frost v.
Beekman, i Johns. Ch. 297; Evarts v. Anges, 4 Wis. 351;
Ruggles V. Lawson, 13 Johns. 285 ; Shirley v. Ayres, 14 Ohio,
307 ; Jackson v. Rowland, 6 Wend. 666. A deed sent inclosed
in a letter to a third person, to be delivered to a grantee upon
Sec. I.] SALE CF LANDS.
21
is the root of his title, although the lease is more than
sixty years old. {k) The vendor is not bound to ab-
stract, at his own expense, deeds more than sixty years
old, when a good title for sixty years is apparently
deduced. But, when any circumstance transpires
throwing a serious doubt upon the title as deduced,
the vendor must then be at the expense of bringing
forward further and earlier evidence to remove the
doubt. A delivery of the vendor's title-deeds them-
selves is not equivalent to the delivery of an abstract
of title. (/)' But the right of the purchaser to have
{k) Frend v. Buckley, L. R., 5 Q. B. (/) Horne v. VPingfield, 3 Sc. N. R.
213 ; 39 L. J.. Q. B. 90. 340.
his paying a certain sum, is an escrow ; Clark v. Gifford, 10
"Wend. 310; Gilbert v. N. A. Ins. Co., 23 Id. 43; State Bank
V. Evans, 3 Green, 155 ; Millett v. Parker, 2 Met. (Ky.) 616.
If an escrow be delivered before the condition is performed,
no title will pass. Stiles v. Brown, 16 Vt. 563, 569; Jackson
V. Sheldon, 22 Me. 569 ; State Bank v. Evans, 3 Green, 155 ;
Rhodes V. Gardiner, 30 Me. no; unless the grantee holding
it convey the land to a bona fide purchaser, ignorant of the
fact as to the delivery. Blight v. Schenck, jo Penn. St. 285 ;
Peter v. Wright, 6 Ind. 183 ; Souverbye v. Arden, i Johns.
Ch. 240. Everts v. Agnes, 4 Wis. 343 ; Cincinnati, &c. R. R.
V. Iliff, 13 Ohio St. 249 ; Southern, &c. Ins. Co. v. Cole, 2 Fla.
359. If a feme covert deliver a deed as an escrow, and become
discovert before the second delivery, such second delivery will
give no validity to the deed, the first being void. Washburn
on Real Property, vol. ii. 587. And as to when the party
who makes the deed dies before the event happens, which was
to make it effectual, see Jackson v. Catlin, 2 Johns. 248, 259;
Hatch v. Hatch, 9 Mass. 307, 310; Jackson' v. Rowland, 6
Wend. 666 ; Shirley v. Ayres, 14 Ohio, 309 ; Ruggles v. Law-
son, 13 Johns. 285; Carr v. Hoxie, 5 Mason, 60; Evans v.
Gibbs, 6 Humph. 405 ; Frost v. Beekman, i Johns. Ch. 257.
' A question may arise in England, under certain circum-
stances, as to who has a right to the custody of title deeds.
But probably under the American system of registration no
such question would arise (Williams on Real Property, 375 ;
22 LAW OF CONTRACT. [Bk. II. Ch. I.
an abstract may, of course, be waived ; and, if the
agreement for the purchase provides for the delivery
of an abstract to the purchaser at the vendor's expense,
this stipulation may be waived by an acceptance on
the part of the purchaser of the title-deeds themselves,
and a perusal and consideration of them and approval
of the title on the part of the purchaser's attorney or
counsel ; but the fact of the approval and of the
waiver of the delivery of the abstract must be estab-
lished through the medium of letters and written evi-
dence of the same legal character and importance as
that by which the contract itself is authenticated, and
can not be established through the medium of oral
testimony.
A proviso that, in case the vendor can not deduce
a good title or the purchaser shall not pay the money
on the appointed day the agreement shall be void,
does not enable either party to vitiate the agreement
by refusing to perform his part of it. The meaning
is that, if the vendor can not make out a title, the
purchaser shall be at liberty to be off the bargain ; and
so e contra, if the purchaser is not ready with the
money, the vendor may refuse to carry out the con-
tract; but "the purchaser can not say, 'I am not
ready with my money ; therefore I will avoid the con-
tract ;' nor can the vendor say, ' My title is not good ;
therefore I will be off.' " (ot) Where there is a
proviso that, if the purchaser shall raise objections to
the title which the vendor shall not be able or willing
(m) Roberts v. Wyatt, 2 Taunt. 277.
Rawles' note ; Washburn on Real Property, vol. i. § 33). In
case of the granting of the fee the English deeds usually con-
tain a clause in relation to the transfer of the title deeds, but
there is of course no necessity for such a clause with us. Id.
vol. ii. § 65.
Sec. I.] SALE OF LANDS.
23
to remove, the vendor shall be at liberty to rescind
the contract, the vendor, when the objections are sent
in, must determine which of the two courses he will
adopt. If he expresses his willingness to remove the
objections, he is forever thereafter precluded from ex-
ercising the option given him to rescind the contract.
(n) If the time for making objections to the title is
limited, the limitation is waived by the vendor's re-
ceiving and considering the objections after the time
appointed, provided the fact can be established through
the medium of letters or any evidence in writing, (^i)
Where, after notice of rescinding the contract, a cor-
respondence on the title is continued under protest,
this gives to the transaction the character of a treaty
for the renewal of the rescinded contract. (/) If it
is provided that no further evidence of the identity of
the parcels shall be required beyond what is afforded
by the title-deeds and documents abstracted, and the
descriptions in the documents differ, the purchaser is
entitled to further proof of identity. (^) If it is pro-
vided that no other title shall be required than that
deduced by a particular abstract, the purchaser is not
precluded from objecting to the title as it appears
upon the face of the abstract, (r) If a party sells an
estate without having a title, but before he is called
upon to make a conveyance, gets such an estate
as will enable him to make a title, that is suffi-
cient, (s) '
(k) Tanner v. Smith, 10 Sim. 4ii- NichoU v. Chambers, 21 L. J., C. P.
(o) Cutts V. Thodey, 13 Sim. 206. 54.
(/) Southcomb v. Bishop of Exeter, {r) Sellick v. Trevor, 11 M. & W.
16 L. J., Ch. 378 ; II Jur. 275. 729.
{g) Flower v. Hartopp, 6 Beav. 476. (j-) Thompson v. Miles, i Esp. 185.
' Tison V. Smith, 8 Tex. 147 ; Wilson's Estate, 2 Burr. 325
24 LAW OF CONTRACT. [Bk. II. Cii. L
514. Of the title to reality. — An agreement to sell
a house or land generally, not specifying the estate or
interest of the vendor, is in contemplation of law an
agreement to sell an estate in fee : and the purchaser
may refuse to complete his contract, if the vendor is
unable to make out a title to, and convey, such an
estate. (/) But, if the abstract of title, when delivered,
shows that the vendor is possessed only of a life estate
or a term of years, and the purchaser, after the delivery
of such abstract, proceeds with the purchase and ac-
cepts the title, the contract will be deemed to be a
contract for the sale and purchase of the estate and
interest disclosed upon the face of the abstract. If the
agreement specifies the precise nature of the estate or
interest bargained for and agreed to be sold, and the
abstract discloses a title to a different estate in the
same land, and the purchaser accepts the title in writ-
ing, the contract for the sale and purchase of the first-
named estate will be deemed to be abandoned, and a
new contract set up for the purchase of the interest
disclosed upon the face of the abstract. But an oral
acceptance of the title, and an oral agreement to ac-
cept such subsequently disclosed interest in lieu of the
(0 Hughes V. Parker, 8 M. & W. 244.
Whenever the grantor of a defective title aftervsrards acquires,
a good title, it enures to the benefit of his grantee. McCall v.
Coover, 4 Watts. & Serg. 151. In Mays v. Swope (8 Gratt.
46), it was held that where a vendee of land discovered a tech-
nical defect Id the title, and thereupon abandoned it. and
brought a bill to enjoin the collection of the purchase
money, he nevertheless could not refuse to accept the title
upon its being made perfect. If a grantor convey the whole
of a tract of land of which he owns but a parcel — if he after-
ward come into possession of the rest, it enures to the
benefit of his grantee. Tyson v. Passmore, 2 Burr. 122.
Sec. T.J SALE OF LANDS. 25
estate originally bargained for, can not be set up in
opposition to the original contract, {u) A contract
to make a good title to an estate means, of course, a
title both good at law and in equity, {x) If, therefore,
the vendor has only a naked legal title as a trustee, or
a mere equitable interest' without the legal estate, the
contract as to title is not fulfilled, (^y) ' A title may
be good, and the purchaser be compelled to complete
the purchase, although there may be no title-deeds tO'
produce. " There are good titles of which the origin
can not be shown by deed or will ; but then you must
show something that is satisfactory to the mind of the
court, that there has been such a long, uninterrupted
possession, enjoyment, and dealing with the property,,
as affords a reasonable presumption that there is an
absolute title in fee-simple." (z) If a conveyance to
a purchaser has been accidentally burned, the vendor,
if living, will be compelled to execute a fresh convey-
ance, and supply the defect in the title occasioned hy
the accident, (a)
515. Of the period for which the title ought to be
shown — As an estate for life may last sixty years,,
and thirty years more may be required, in case of dis-
abilities, to bar the claim of the remainderman, it is
(«) Deverell v. Lord Bolton, i8 Ves. (>) Elliott v. Edwards, 3 B. & P.
510. 183. Cane v. Baldwin, i Stark. 65.
(jr) Maberly v. Robins, i Marsh. iz) Cottrell v. Watkins, i Beav. 365.
25S ; 5 Taunt. 625. Jeakesv. White, Scott v. Nixon, 3 Dru. & W. 405.
21 L. J., Ex. 265. Boyman v. Gutch, {a) Bennett v. Ingoldsby, Finch,
7 Bing. 279. 262.
' A tender of title is not good from another than the ven-
dor. So, in a contract for sale, when part of the land belongs
to a third person, the latter's tender to the purchaser of a deed
of that part owned by him. with covenants of warranty from
himself, is not a tender of the deed and covenants of the first
vendor. Cook v. Grant, 16 Sergt. & R. 198; and see as to de.
livery of a deed, ante, vol. i. p. 49 ; of an escrov/, Id. p. 51.
26 LAW OF CONTRACT. [Bk. II. Ch. I.
obvious that the period of sixty years for which the
title is, by the general practice of the profession, re-
quired to be carried back, is not too long, and that a
purchaser would not be safe in limiting his researches
to a shorter space of time. " By the Vendor and
Purchaser Act, 1874 (37 & 38 Vict. c. 78), s. i, in the
completion of any contract of sale of land made after
December 31, 1874, and subject to any stipulation
to the contrary in the contract, forty years shall be
substituted as the period of commencement of title
which a purchaser may require in place of sixty years,
the present period of such commencement ; neverthe-
less earlier title than forty years may be required in
cases similar to those in which earlier title than sixty
years may now be required." The Statute of Limita-
tions (3 & 4 Wm. 4, c. 27), consequently, although it
has made a sixty years' title, a better title than it was
before, has in nowise abridged the time for which the
title must be shown ; and every purchaser is still en-
titled, as we shall presently see, to the production of a
sixty years' title on the part of the vendor, (b) An
oral stipulation that the title is not to be made out,
beyond a limited period can not, as previously men-
tioned, be engrafted upon a written contract which
makes no mention of such a stipulation ; but, if a
notice in writing to that effect can be proved to have
been given to the purchaser prior to the making of
the contract, the latter must accept the title as limited,
unless he can show that he had refused to be bound
by the notice, and had declined to treat on the terms
sought to be imposed on him. (/)
516. Tiile to leaseholds. — If an agreement is
made for the sale of leasehold property (not being a
church lease), the vendor is bound to establish the
(/') Cooper V. Emery, i Phil. 383. {c) Ogilvie v, Foljambe, 3 Mer. 65.
Sec. I.] SALE OF LANDS. 2;
lessor's title to grant the lease, unless there is an ex-
press stipulation to the contrary in the contract ; and
no agreement to dispense with the production of the
lessor's title will be implied from the antiquity of the
lease, {d) the shortness of the term for which the lease
is granted, the small value of the property, or the
absence of a premium. " By the Vendor and Pur-
chaser Act, 1874 (37 & 38 Vict, c. 78), s. 2, it is
enacted in the completion of any contract made after
the 31st of December, 1874, and subject to any stipula-
tion to the contrary in the contract, under a contract
to grant or assign a term of years, whether derived or
to be derived out of a freehold or leasehold estate
the intended lessee or assign shall not be entitled to
call for the title to the freehold." (e) But there is no
such implied engagement in the case of a bargain for
the purchase of an agreement for a lease. (/" ) If the
vendor stipulates that he shall not be obliged to pro-
duce the lessor's title, this stipulation does not, of
course, preclude the purchaser from taking any objec-
tion derived from another source to the validity of
that title, {g) But, if the purchaser agrees to take
the title that the vendor has, and to purchase the lease
as holden by him, he will be precluded from objecting
to the title, {h) The obligation to produce the
lessor's title does not, it seems, extend to church
leases and bishops' leases, (i ) Upon the sale of a
leasehold for lives, expressed to have been granted by
a corporation in consideration of the surrender of a
(d) Frend v. Buckley, L. R.. 5 Q- (/) Kintrea v. Preston, I H. & N.
B. 213 ; 39 L. J., Q. B. 90. 357 ; 25 L. J., Ex. 287.
(e) Souter v. Drake, 5 B. & Ad. 992; (g) Shepherd v. Keatly, i C. M. &
3 N. M. 40. Hall V. Betty, 5 Sc. N. R. 117-
R. 508 ; 4 M. & Gr. 410. Purvis v. (h) Spratt v. Jeffery, 10 B. & C.
Rayer, 9 Pr. 488. Deverell v. Lord 249.
Bolton, 18 Yes. 505. W Fane v. Spencer, 2 Mad. 438.
28 LAW OF CONTRACT. [Bk. II. Ch. I.
prior lease, the title to the surrendered lease must be
shown. (I) When a man professes to grant or sell a
lease, it is, of course, understood to be a lease which
the lessee or purchaser may insist upon as good
against all the world. If, therefore, a covenant or
condition has been broken, and a right to re-enter has
accrued to the superior landlord, and the vendor is
unable to put the purcha.ser into possession of a good
lease, he is responsible in damages for a breach of
contract. (/) If the consent of the original lessor is
essential to the validity of the transfer or assignment
of the lease to the purchaser, it is, of course, the duty
of the vendor to procure that consent, (jit) When
leaseholds, consisting of several houses held under the
same lease, are sold in several lots to distinct pur-
chasers, and the lease contains covenants affecting the
whole, with a proviso enabling the landlord to re-
enter in the case of the breach of any one covenant,
the purchaser of one lot may be evicted without any
default on his own part, but solely through the default
of another purchaser, (n) Very great inconveniences
ma)'^ arise and great risk be run of the loss of the
entire purchase from such a state of circumstances:
the covenants of the original lease, therefore, should
be strictly examined. When such covenants exist,
the purchaser is not bound to accept the title with an
indemnity, {o)
517- Waiver of proof of title and of objections to
title. — Where a person contracted for the purchase of
a lease of a public-house, and of the stock and good-
will, and entered into possession, paid part of the
(/(■) Hodgldnson v. Cooper, 9 Beav. (m) Lloyd v. Crispe, 5 Taunt 249.
304; 15 L.J., Cli. i5o. Mason v. Corder, 7 Id. 9 ; 2 Marsh.
(/) Penniall v. Harborne, II Q. B. 332.
368; 17 L. J,, Q. B. 94. Nouaille v. («) Patterson v. Long, 6 Beav. 597.
Flight, •/ Beav. 521. (e) Blake v. Phinn, 3 C. B. 976.
Sec. I. SALli OF LANDS. 29
purchase-money, and mortgaged his interest, it was
held that he had waived his right to call for the pro-
duction of the lessor's title. (/)' The mere taking
possession of lands and tenements under an agreement
for the purchase of them, before any abstract has been
delivered, or proof of title produced, does not, of
course, amount to a waiver of the purchasers right to
have an abstract delivered and title proved in the
usual and ordinary course ; (^) nor does the taking
possession by the purchaser, after the delivery of an
abstract, amount to an acceptance of the title, where
the vendor has no title at all to the estate and in-
terest bargained for and agreed to be conveyed. But,
if possession is given under the contract, and the
abstract of title is delivered, and the purchaser con-
tinues in possession for a lengthened period, making
no objections at all to the title, or only frivolous
objections, with a view of delaying payment of the
purchase money, the court will decree payment with-
out going into an/ investigation of title, unless the
title is clearly shown to be bad. (r) Proof of title to
transfer the estate agreed to be sold is a condition
precedent to the vendor's right to the purchase
money ; and the court can not, of course, make a
purchaser accept a title which does not exist, and will
not compel him to pay the purchase money, when it
can not give him the estate for which he agreed to
pay it. (s) A purchaser can not be held to have
(p) Haydon v. Bell, I Beav. 337. i Mad. 310. Hall v. Laver, 3 You. &
(q) Burroughs v. Oakley, 3 Swanst. C. 196.
171. (s) Blachford v. Kirkpatrick, 6 Beav.
(r ) Margravine of Anspach v. Noel, 236.
' One entering upon land, under a contract to purchase, or
those claiming under him, is estopped from denying his ven-
dor's title. See Pyles v. Reeve, 4 Rich. 555.
30 LAW OF CONTRACT. [Bk. II. Ch. 1.
waived objections to title because his counsel has ap-
proved of the title, (t) And, even if he expressly
accepts the title as satisfactory, such acceptance does
not preclude him from subsequently showing that the
vendor has no title at all, and that the acceptance had
been made under a misapprehension and mistake. (?/,)
If it is stipulated by the contract that objections to
title are to be considered as waived unless made
within a certain time, the time is made of the essence
of the contract ; so that, if the objection is not sent in
within the time, the vendor has a right to take the
benefit of the condition, and say that the title has
been accepted, unless the abstract is so defective that
no title is shown upon the face of it. (v) If the pur-
chaser takes possession under the contract, and after-
wards rejects the title, he may be turned out of pos-
session by the vendor, and can not, in general, claim
compensation for improvements, (jj/) Lastly, it may
be observed that, whenever a third person, having any
right or title to lands or tenements about to be sold,
knows of the sale and of his own title, and neglects to
give the purchaser notice thereof, " he shall never after-
wards be admitted to set up such right to avoid the
purchase ; for it was an apparent fraud in him not to
give notice of his title to the intended purchaser; and,
in such case, infancy and coverture shall be no ex-
cuse." (z) A purchaser may, by taking possession of
the estate agreed to be sold to him after the delivery
of an abstract apprising him of the existence of cer-
tain incumbrances, waive his right of objecting to
(0 DeverfU v. Lord Bolton, i8 Ves. Oakden v. Pike, 34 L. J., Ch. 620.
505. {y) Nicloson v. Wordsworth, 2
(;() Warren v. Richardson, I Vou. I. Swanst. 365.
Ward V. Trathen, 14 Sim. 82. Bous- (z) Savage v. Foster, g Mod. 38.
field V. Hodges, 33 Beav. yo. Sharpe v. Foy, L. R., 4 Ch. 35.
iv) lilaeklow V. Laws, 2 Hare, 40.
Sec. I.] SALE OF LANDS. 31
the title, on the ground of the existence of such in-
cumbrances. Where, for example, a purchaser took
possession of an estate after the delivery of an ab-
stract of title, on the face of which it appeared that
part of the estate was subject to a right of sporting, it
was held that he had waived his right to object to
the title on the ground of the existence ol such a
right, {a)
518. Of the production of the title-deeds. — After
the title, as disclosed upon the abstact, has been ap-
proved of and accepted by the purchaser or his legal
advisers, the title-deeds themselves must be produced
for inspection and examination and verification with
the abstract. If they are not produced, the purchaser
will not be bound to complete his purchase. In the
case of a sale of a copyhold estate, the copies of court-
roll are the documents of title, and must be furnished
to the purchaser for comparison with the abstract. ((5)
The vendor is in all cases bound to produce and show
to the purchaser all deeds and writings in his posses-
sion or under his control that in anywise relate to or
concern the property agreed to be sold, whatever be
their date or age ; but he is not in general bound, as
we shall presently see, to furnish an abstract of any
deed of an earlier date than sixty years. If the deeds
abstracted refer to prior deeds, settlements, or wills
not in the possession or under the control of the ven-
dor, and the absence of the deed so referred to throws
a serious doubt upon the title, the purchaser will
not be bound to complete his purchase. " When
the title under the conveyance which contains the re-
cital is fortified by sixty years' undisputed possession,
the loss of the deed recited throws no reasonable doubt
(a) Burnell v. Browne, 1 Jac. & (b) Whitbread v. Jordan, i You. &
Walk. l68. C. 318.
32 LAW OF CONTRACT. [Bk. II. Ch. I.
upon the title." {c) If a deed or will in the abstract
professes to have been made in execution of a power
of appointment contained in a previous deed or will
more than sixty years old, and not abstracted, the pur-
chaser will be entitled to call for the production of the
deed, if it is in the possession of the vendor, to see that
the power has been properly executed. But, if there
has been sixty years' undisputed possession by the
parties entitled under the appointment, and the deed
creating the power is not in the possession or under
the control of the vendor, the presumption is in favor
of a valid execution of the power, and the purchaser
will be compelled to complete his contract, unless he
-can bring forward evidence impeaching the validity of
the appointment, and throwing a reasonable doubt
upon the title.
519, Loss of title-deeds after delivery of the ab-
stract.— If the title-deeds are destroyed by accident
after approval of the title, the vendor must furnish the
purchaser with the means of proving the actual exist-
ence of the deeds, their contents, and that they were
duly delivered and executed by all necessary parties. '
if) Prosser v. Watts, Mad. & Geld. 60. Moulton v. Edmonds, 2g L. J.,Ch. l3l.
' The system of registering deeds prevalent in the United
States, and which in spite of efforts in Parliament and of able
publicists, has been steadily resisted in England (with the
■exception, it seems, only of the West Riding of Vorkshire)
differs from the old enrollment of deeds of bargain and sale
required by the statute 27 Hen. viii. ch. 16, in that, with few
exceptions, the registration has nothing to do with the valid-
ity of the deed; and in Indiana (Gwair v. Doe, 7 Blackf. 210)
and in New York (Jackson v. Wood, 12 Johns. 74), this enroll-
ment itself has been held to be unnecessary to the validity of
this description of deed. Each state with us, however, has
provided for the appointment of public officers who shall
register the deeds of the jurisdiction, and preserve and per-
jpetuate such records for public reference, which thereafter are
Sec. I.] SALE OF LANDS. 33
If the abstract of title has been delivered and com-
pared with the deeds themselves prior to their destruc-
tion, this may afford the means of proving the contents
of the deeds ; but it must then be shown who the at-
a public and constructive notice to all persons interested, of
any prior conveyance, lien, or incumbrance, as effectual in
law as if given personally to a party. Hill v. Epley, 31 Pa.
St. 335; and see Morrison v. Kelly, 22 Til. 610; Belk v. Mas-
sey, II Rich. (Law) 614; Godbold v. Lambert, 8 Rich. (Eq.)
155 ; Moore v. Jourdan, 14 La. An. 414; Nutting v. Herbert,
37 N. H. 346; Pomroy v. Stevens, 11 Met. 244; Mara v.
Pierce, 9 Gray, 306 ; Dooley v. Wolcott, 4 Allen, 406 ; Billing-
ton V. Welsh, 5 Binn. 129 ; 4 Dane, Ab. 85 ; Watkins v. Ed-
wards, 23 Texas, 443; Partridge v. McKinney, 10 Cal. 181 ;
Stafford v. Lick, 7 Cal. 479; Hunter v. Watson, 12 Cal. 363;
Helms V. May, 29 Ga. 121 ; Wyatt v. Elam, 23 Ga. 201 ; Berg
T. Shipley, 1 Grant Cas. 429 ; Coleman v. Barklew, 3 Dutch.
357 ; Lea v. Polk Co. Copper Co., 21 How. 493.
The duty of registering the deeds is a ministerial one simply,
and not a judicial one ; and any instrument properly acknowl-
edged by a magistrate (who must certify in effect that the
maker who is personally known to him has appeared before
him and acknowledged the same to be his voluntary act) is
entitled to be copied upon the books of the registrar's office.
This provision, although framed to prevent a fraudulent use
of the record books, has not always proved effectual for that
purpose ; and it has been suggested, that, as in France and
other countries, the magistrate who takes the acknowledgment
be authorized to keep the original instruments, giving dupli-
cates to the parties, which, in addition to our presenit system
of registry, would, it is thought, make the forgery of instru-
ments of title practically impossible. At present, a registra-
tion not in the proper district, or by an officer beyond the
limits of his appointment, is void. Harper v. Tapley, 35 Miss.
510; Lynch v. Livingston, 8 Barb. 463; Harris v. Burton, 4
Harring. 66 ; Jackson v. Humphrey, i Johns. 498 ; Jackson v.
Colden, 4 Cow. 287 ; Howard, &c. Association v. Mclntyre, 3
Allen, 572 ; Thurman v. Cameron, 24 Wend. 91 ; contra, Or-
■diorne v. Mason, 9 N. H., 30.
The certificate, to entitle to registry, must show affirma-
tively that all acts required by the statute have been substan-
tially complied with. Jackoway v. Gault, 20 Ark. 190 ; Bryan
V. Reming, 8 Cal. 461. The certificate is, however, not so
II— 3
34
LA IV OF CONTRACT. [Bk. II. Cil. L
testing witnesses were, and that the deeds were duly
executed and delivered, and the purchaser must be
furnished with the means of proof thereof, for the pur-
pose of asserting his title and defending his possession,
conclusive that it can not be impeached. Jackson v. Schoon-
maker, 4 Johns. 161 ; Dodge v. Hollinshead, 6 Minn. 46.
The certificate is received as evidence of its own genuine-
ness, without its first being shown affirmatively by whom the
certificate is made, if it be in proper form. Thurman v. Cam-
eron, 24 Wend. 87 ; Tliompson v. Morgan, 6 Minn. 295 ; Tracy
V. Jenks, 15 Pick. 465. But it is competent for a party con
testing the deed to show with what intent the grantor acknowl-
edged it, in order to establish that the deed was only inchoate,
and never fully executed and delivered. Hutchinson v. Rust,
2 Gratt. 394. In Minnesota the certificate of acknowledgment
of a married woman, made by a magistrate upon a deed, may
be controlled or contradicted by evidence. Dodge v. Hollins-
head, 6 Minn. 25 ; Annan v. Folsom, Id. 300. But in Indiana
such certificate is conclusive evidence. M'Neely v. Rucker.
6 Blackf 397.
In certain states, viz. : Alabama, Iowa, Kentucky, Massa-
chusetts, Mississippi, Missouri, New Jersey, Ohio, Rhode
Island, South Carolina, and Virginia, it appears to have been
held that the date of a deed is constructively the date of its
registration. Mallory v. Stodeter, 6 Ala. 801 ; Dubois v.
Young, 10 Id. 365; Warnock v. Wightman, i Green, 52 ; Hop-
ping V. Burnam, 2 Id. 39 ; Gill v. Fannelleroy, 8 B. Mon.
177 ; Mass. Gen. Stat. ch. 17, § 93 ; McRaven v. McGuire, 9 S.
& M. 34; Harold v. Simond, 9 Mo. 326; Davis v. Ownsby, 14
Mo. 175 ; Nichols v. Reynolds, i R. I. 30; Horsley v. Garth,
2 Gratt. 471 ; and see CJuirk v. Thomas, 6 Mich. 76; McCabe
V. Gray, 20 Cal. 509. A deed duly recorded is constructive
notice of its existence, and its contents to all persons claim-
ing what is thereby conveyed under the same grantor by sub-
sequent purchase or mortgage, but not to other persons.
Bates V. Norcross, 14 Pick. 224, 231 ; Tilton v. Hunter, 24 Mc.
35 ; Little v. Megquier, 2 Id. 176; Crockett v. Maguire, 10 Mo.
34. See Flynt v. Arnold, 2 Met. 619 ; Whittington v. Wright,
9 Ga. 23 ; Shults v. Moore, 1 McLean, 520 ; Doe v. Beardsley.
2 Id. 412; Shaw V. Poor, 6 Pick. 85, 88. But the record is
not constructive notice of its existence or contents, unless all
the prerequisites prescribed by law in respect to its registra-
tion be observed, such as its acknowledgment or w'rnessing ;
Sec. I.] SALE OF LANDS.
35
If no such proof is aflTorded, the purchaser is dis-
charged, {d) If, after the making of the contract, the
purchaser is let into possession, and the contract is
{d) Bryant v. Busk, 4 Russ. 4.
Meighen v. Strong, 6 Miss. 177 ; have been complied with. Nor
would it be constructive notice, if the deed were on record in
any way not authorized by law, or if the instrument were not
required by law to be recorded. Shults v. Moore, i McLean,
520; Isham V. Bennington Co., 19 Vt. 230; Choteau v. Jones,
II 111. 300; Herndon v. Kimball, 7 Ga. 432 ; Tillman v. Cow-
and, 12 S. & M. 262; Blood v. Blood, 23 Pick. 80; De Witt
V. Moulton, 17 Me. 418; Carter v. Champion, 8 Conn. 549;
Heister v. Fortner, 2 Binn. 40; Shaw v. Poor, 6 Pick. 88;
Cheney V. Watkins, i Harr. &J.527; Doe v. Smith, 3 McLean,
362 ; Lewis v. Baird, Id. 56 ; Kerns v. Swope, 2 Watts, 75 ;
Graves v. Graves, 6 Gray, 391 ; Burnham v. Chandler, 15
Texas, 441 ; Bossard v. White, 9 Rich. Eq. 483 ; Galpin v. Ab-
bott, 6 Mich. 17 ; McKean v. Mitchell, 36 Penn. St. 269 ; Dus.
saume v. Burnett, 5 Clark, Iowa, 95 ; Peck v. Mallams, 10 N.
¥.518; Harper V. Barsh, 10 Rich. Eq. 149. The registry of
a defective deed is no notice of title to any one. Isham v..
Bennington Iron Co., 19 Vt. 245; Harper v. Barsh, 10 Rich.
Eq. 149. So a record of a deed in a wrong county has no
effect as a notice.
The record limits by its terms the extent to which it will
be constructive notice to strangers where the condition of a
mortgage as written was for three thousand dollars, but as
recorded, it showed the condition to be three hundred dollars,
it was held to be a constructive notice as to three hundred
dollars only. Beekman v. Frost, 18 Johns. 544; Frost v.
Beekman, Johns. Ch. 299 ; and see Chamberlin v. Bell, 7 Cal.
292 ; Baltimore, &c. v. White, 2 Gill. 444; Jackson v. Living-
■ston, 10 Johns. 374; Brush v. Ware, 15 Pet. ^2>'< Daughaday
V. Paine, 6 Minn. 452. If an ordinary diligent search will in-
form the stranger of incumbrances, he is presumed to know
tiiem ; Flynt v. Arnold, 2 Met. (Mass.) 619 ; Gilbert v. Peleler,
38 Barb. 488; one purchasing of another who holds a recorded
deed, will acquire precedence over one holding a prior unre-
corded deed, of which he was ignorant, although the holder
of such recorded deed knew of the existence of such prior
deed when he took his own, and could not himself have
claimed any precedence. " But if the holder of the earlier
deed, have it recorded before the holder of a deed of a later
36 LAW OF CONTRACT. [Bk. II. Ch. I.
abandoned or rescinded and comes to nothing, the
purchaser can not be treated as a lessee, and can not
be compelled to pay rent, or to pay for the use, occu-
date but an earlier record, shall have actually conveyed the
estate to another, though he is ignorant of such earlier deed,
the record would be constructive notice to such purchaser from
the holder of the later deed, and defeat his precedency of
title." Washburn on Real Property, vol. ii. p. 595; and see
in the various states, Boynton v. Rees, 8 Pick. 329; Hagthor
V. Hook, I Gil. & J. 270; Adams v. Cuddy, 13 Pick. 460; Cof-
fin v. Ray, I Met. (Mass.) 212; Trull v. Bigelow, 16 Mass.
406 ; Flynt v. Arnold, 2 Met. (Mass.) 619 ; Den v. Richman, i
Green, 43 ; Schutt v. Large, 6 Barb. 373 ; Jackson v. Leek, 19
Wend. 339 ; Irvin v. Smith, 17 Ohio, 226; Martin v. Quattle-
bam, 3 McCord, 205 ; Lillard v. Rucker, 9 Yerg. 64, 73 ; Cor-
liss v. Corliss, 8 Vt. 373; Turner v. Stip, i Wash. 319; Sicard
v. Davis, 6 Pet. 124; Van Rensselaer v. Clark, 17 Wend. 25;
Swan V. Moore, 14 La. Ann. 833 ; Morrison v. Kelly, 22 111.
610; Burkhalter v. Ector, 25 Ga. 55 ; Miller v. Chittenden, 2
Clarke (Iowa), 315 ; Blain v. Stewart, Id. 378 ; Ricks v. Reed,
19 Cal. 571 ; Ohio Life Insurance Co. v. Ledyard, 8 Ala. 866 ;
Doe V. Reed, 4 Scamm. 117; Givan v. Doe, 7 Blackf. 210;
Doe V. Beardsley, 2 McLean, 421 ; Hopping v. Burnam, 2
Greene, 39, 48 ; Applegate v. Gracy, 9 Dana, 224 ; Boling v.
Ewing, Id. 76 ; Nason v. Grant, 21 Me. 160; Dixon v. Doe, i
S. & M. 70; Rogers v. Jones, 8 N. H. 264; Wark v. Willard,
13 Id. 389. Where there are several grantees, notice to the
one who takes the deed is notice to all. Stanley v. Green, 12
Cal. 148.
In Kentucky (Edwards v. Brinker, 9 Dana, 69 ; Ring v.
Gray, 6 B. Mon. 368), Tennessee (Washington v. Trousdall,
M. & Y. 385 ; Lillard v. Rucker, 9 Yerg. 64), and Virginia
(Guerrant v. Anderson, 4 Rand. 208), an unrecorded deed, if
known to a subsequent purchaser, is good notice to him, but
not against creditors, although known to him. It seems that
in Alabama, Georgia, Illinois, Kentucky, Mississippi, Missouri,
New Jersey, New York, Pennsylvania, and Virginia, a deed
duly recorded is prima facia evidence ; and courts will presume
that all requirements necessary to give the record validity
have been complied with. But in the others it seems that the
deed must be proved as at common law, in order to be used in
evidence in matters involving its own validity.
In the following states : Alabama, Georgia, Illinois, Mis-
Sec. I.] SALE OF LANDS. 3;
pation, and enjoyment of the property. (Post, ch. 2,
s. I.)
520. Effect 0/ misdescriptions. — The vendor must
sissippi, Missouri, New Jersey, New York, North Carolina,
Pennsylvania, and Virginia, a deed duly acknowledged seems
admissible without further proof. Note to § 299, vol. ii. Green-
leaf on Evidence. In Massachusetts, the registry copy of a
deed of land is not admissible in evidence against the grantee
therein, without notice to him to produce the original. Com-
monwealth V. Emery, 2 Gray, 80 ; Brown v. Boston, Id. 94.
In Warren v. Wade, 7 Jones (L.) 494, it is said that an office
copy of a deed inter partes executed in pais, and acknowledged
and recorded in the courts of another state, is not such a record
or judicial proceeding as can be authenticated under the act
of Congress of 1794; though it might perhaps be included under
the supplemental act of 1804. Greenleaf on Evidence, vol. ii.
§ 299, note. See Young v. Ringo, i Mon. 30; Toulmin v.
Austin, 5 Stew & P. 410.
In Maryland the enrollment of a deed of bargain and sale
is evidence of a title in an action of ejectment, without
production of the original (Hunn v. Soper, 6 Harr. & J. 276);
and in Indiana, Massachusetts, Mississippi, and New Hamp-
shire, and other states, the registry or certified copies of deeds,
without the authentication of witnesses, are evidence. Dickson
v. Doe, 5 Blackf. 106; Cogan v. Frisby, 36 Miss. 178; Eaton
v. Campbell, 7 Pick 10; Scanlan v. Wright, 13 Id. 523 ; Ward
V. Fuller, 15 Id. 185; Farrarr v. Fessenden, 39 N. H. 268;
Harvey v. Mitchell, n Fost. (N. H.) 582. A deed, even though
not so acknowledged as to be entitled to record, may convey
a title as against a grantor and his heirs. Blain v. Stewart,
2 Iowa, 383 ; Doe v. Naylor, 2 Blackf. 32 ; Gibbs v. Swift,
12 Cush. 393; Ricks v. Reed, 19 Cal. 571 ; but see in Ohio,
Smith V. Hunt, 13 Ohio, 260.
A question of great importance to the American prac-
ticing lawyer, was discussed in Doe d. Beanland v. Hurst (11
Price, 475, 489-492), as to whether a deed respecting real
estate will be presumed in a county where deeds were regis-
tered. The English Act (see Id. p. 492) for registering deeds
and conveyances, in the West Riding of Yorkshire, provides
that they be so registered to protect the grantee against sub-
sequent bona fide conveyances or mortgages, and in effect is
the same as the Registry acts in the United States. In that
case a presumption of a grant of care in the West Riding was
38 LAW OF CONTRACT. [Bk. II. Ch. I.
be prepared and able to convey and transfer to
the purchaser an estate or interest substantially cor-
responding with that bargained for and agreed to be
urged as arising from certain circumstances, which was resisted
on the ground that the registry should determine the matter,
and that there was no registry of any such grant. The omis-
sion was relied upon as effectually rebutting the presumption
The point does not appear to have been expressly decided, but to
have been left to the jury by Bailey, J. On the argument at
bar, Rex v. Long Buckby (7 East, 45) was cited, and appears
to be conclusive that such a case presents as fair a subject of
presumption as any other. In Rex v. Long Buckby, an in-
denture of apprenticeship had been lost, and was sought to be
proved by parol. There was no evidence that it had ever been
stamped, and no registry of such stamping existed at the
stamp office where it would have naturally existed, had there
been no irregularity. But the court held that after a lapse of
nearly twenty years, during which the indenture of appren-
ticeship had been acted upon as valid, the evidence of non-
registry was not per se sufficient to repel the presumption that
it had been properly stamped, but that it would rather pre-
sume that the stamping had been performed, and the registry
in the proper office omitted by mistake. In Cowen and Hill's
notes to Phillips on Evidence, it is pointed out, as throwing
light upon the question as to the presuming of a deed of con-
veyance, where no registration of such deed exists, that the
case of the stamp is much stronger as to the presumption of
irregularity, than the case of the registry of a deed could be.
For " this was a case virhere without a stamp, the indentures
would have been a nullity to all intents, and where in the
regular course of things there must have been a registry. It
was surely much stronger against the presumption that the
omission to register a deed of conveyance. The latter are
valid as against the party without registry, and the grantee
being in possession, they would be valid against all the world,
purchasers and mortgagees included. Governeur v. Lynch, 2
Paige, 300, 301, and cases cited. Neither are registering acts
imperative, nor is there, in case of a deed, any great danger in
omitting to register. It is entirely optional with the party,
and if purchasers or mortgagees are uninjured by lack of con-
structive notice, none others can complain. Where notice
alone is the object, it is given by a change of possession to
the practice ; and an absolute deed may ordinarily be held
Sec. I.] SALE OF LANDS. 39
sold, both as regards the tenure and the situation and
condition and natural advantages of the property.
Any misdescription of the estate or interest, or of the
from the record without any danger. Indeed, this is often so"
in practice. And it follows that there is nothing in the omis-
sion to register necessarily inconsistent with the common
presumption, which involves the previous existence and loss
[of the deed] and may equally well include the non-registry."
Adverse possession, it seems, must be shown, before any pre-
sumption will be made in favor of a claimant. Wadsworth-
ville School v. Meelze, 4 Rich. 347. Permissive possession
will raise no such presumption. Roxbury v. Huston, 37
Maine, 42 ; and see Morgan's Best on Evidence, vol. ii., note
I, p. 48. In some of the states a time is prescribed within
which a deed when recorded takes effect by relation back from
its delivery, and gives it precedence over intermediate con-
veyances, even as to persons ignorant of such unrecorded
deed. Washburn on Real Property, vol. ii. p. 593.
In Ohio such a time is six months for deeds, but mortgages
must be recorded forthwith. The record of a deed recorded
after the six months is constructive notice only after the actual
time when it is made (Ii.). In Kentucky, this time is eight
months (Applegate v. Grace, 9 Dana, 217); and mortgages
must be recorded in sixty days (Id. Dale v. Arnold, 2 Bibb.
605). In Mississippi the time is three months, but, if recorded
after that, it is notice from the date of the registry (Id. Mc-
Raven v. McGuire, 9 S. & M. 34). In Georgia the time is
twelve months, but if after the expiration thereof, the registry
is notice from the time of the record, but does not date back
to any prior time (Id. Helms v. O'Bannon, 26 Ga. 132 ; An-
derson V. Dugar, 29 Id. 440). If two successive deeds are
made of the land within the twelve months, but neither is
recorded, the recording of the second deed after that time does
not give it precedence over the first (Id. Doe v. Reddin, Dudl.
(Ga.) 177 ; Martin v. Williams, 27 Ga. 406). The same rule,
says Washburn, applies to the effect of a record in South Car-
olina (Id. Ledgfer v. Doyle, 11 Rich. (Law) 109). In Pennsyl-
vania, where the time is six months, in the above case, if the
second deed were taken without actual notice of the first, and
were recorded first, it would have precedence over the one first
executed (Id. Lightner v. Worney, 10 Watts. 407). Mortgages
are to be recorded in sixty days (Poth v. Anstall, 4 Watts. &
S. 307 ; Berg v. Shipley, i Grant Cas. 429 ; Souder v.
40 LAW OF CONTRACT. [Bk. II. Cii. I.
nature, or situation, or extent, or value of the property
in a material and substantial point, so far affecting the
subject-matter of the contract that it may reasonably
be supposed that, but for such misdescription, the con-
tract would never have been made, at once releases the
purchaser from the bargain, (e) If the conditions
and particulars of sale provide that errors and misstate-
ments shall not vitiate the sale, but that an abatement
shall be made in the purchase-money by vi'ay of com-
pensation, the provision will extend only to uninten-
tional errors and misstatements in matters of detail^
not amounting to fraud, (/) and not materially alter-
ing the nature of the subject-matter of the contract
itself; for no man is bound to take an estate or interest
essentially different from that which he agreed to pur-
chase. (£■') A general agreement to sell a house or
(e) Dimmock y. Hallett, L. R., 2 more v. Whittemore, L. R., 8 Eq.
Ch. 21 ; 36 L. J., Ch. 146. 603 ; 38 L. J., Cli. 17.
(/) Dimmock v. Hallett, L. R., 2 (^) Plight v. Booth, I Bing. N. C.
Ch. 21 ;'36 L. J,, Ch._; 146. Whitte- 377; I Sc. 190.
Morrow, 33 Pa. St. 83). So in Ohio (Id. Northrup v.
Breiimer, 8 Ohio, 392). In New Jersey, in the case above
given, the time cited is six months, though the deed may-
be recorded after, but not so as to affect a subsequent
bona fida deed, lodged for record before the first. If
the prior deed is lodged for record before the second, after
the expiration of the six months, it will take precedence of the-
second (Id. Den v. Richmond, i Green, 43). The time is said
to be reduced to fifteen days by statute of 1820. 4 Kent Com.
457, note. In Alabama, the time is six months, but if the deed
is recorded afterwards, it is notice from the time of the record.
Mallory v. Stodder, 6 Ala. Soi. If to secure the debt, the time
is three months. Washburn, note, p. 593, vol. ii. The times
allowed for recording deeds in Delaware, Tennessee, and
Indiana, are twelve; in Virginia, eight; and in Maryland,
North and South Carolina, six months. 4 Kent Com. 457.
In Massachusetts, in determining the question of precedence
between a purchaser or mortgagee and a creditor, no time is
allowed for the former, in which to record his deed. Gushing
V. Hurd, 4 Pick. 252.
Sec. I.] SALE OF LANDS. 41
land means, as we have already seen, that the owner of
the property will sell an estate in fee. The purchaser,
therefore, may refuse to complete the purchase, if the
vendor is unable to transfer a freehold property; but,
if he chooses to take such an estate as the vendor has
in the land, the latter will be bound to transfer his
whole interest to the purchaser. (/^) And, if an ab-
stract of title has been delivered to the purchaser, show-
ing that the vendor has a different estate and interest
from that bargained for and agreed to be sold, and the
purchaser returns the abstract and accepts the title in
writing, the purchaser will be deemed, as we have al-
ready seen, to have assented to take the estate and in-
terest disclosed upon the face of the abstract.
If an estate is subject to a right of sporting, or a
right of common, or a right to dig fjr mines, or a right
on the part of third persons to have extensive under-
ground watercourses, and to enter upon the land to
open, cleanse, and repair such watercourses, and the
purchaser contracts for the estate in ignorance of these
rights he may refuse to complete his purchase as soon
as he is aware of their existence ; and he can not be
compelled to take the estate with an abatement on
the amount of the purchase money, (z)^ If a man
contracts for the purchase of a house and wharf, or a
wharf and jetty, he may refuse to take the house with-
out the wharf, or the wharf without the house, or
without the jetty, if they are contiguous to each
(h) Bower V. Cooper, 2 Hare, 408. (i) Shackleton v. Sutcliffe, 12 Jur.
199.
' But a covenant to a vendor to execute a deed in fee of
land, "free of all incumbrances," will not be held unper-
formed if there be a public road upon the land in question, fit
least in absence of evidence to rebut presumption of knowl-
edge in the purchaser. Patterson v. Arthurs, 9 Watts, 152.
42 LAW OF CONTRACT. [Bk. II. Ch. I.
other, and were clearly intended to go together, (y^)
And, whenever mansion-houses, farms, woods, or
meadows are sold together as one estate, and the hope
of possessing the one was the inducement to the
purchaser to buy the others, he may insist upon
having the whole or none. (/) "The court wil
determine as a jury would the question, ' Did or did
not the party purchase the one with reference to the
other.? Would he or would he not have taken the
one, had he not reckoned also upon having the
other } ' " (m) If a purchaser, has contracted for the
purchase of a freehold interest, he is not bound to
accept a copyhold estate, (n) nor a leasehold interest,
however long the duration of the term, (o) If he has
bargained for a fee-simple in possession, he is not
bound to take a remainder in fee expectant upon the
determination of a life estate, however advanced in
life the tenant for life may be, or however liberal
may be the compensation offered in the shape of
an abatement of the purchase money. (/) If he
has bargained for the purchase of a lease having
eight years to run, he can not be compelled to
take a lease of only six, although the vendor may
offer him a proportionate reduction in the amount
of the purchase money. (^) But, if there is only a
slight difference in the duration of the term, as between
the lease offered to be assigned and that bargained for
— if it substantially corresponds with the description
(i) Peers v. Lambert, 7 Beav. 546. («) Hick v. Phillips, Pr. Ch. 575.
(/) Poole V. Shergold, 2 Bro. C. C. [ff) Drewe v. Corp, 9 Ves. 36S.
118. Gibson v. Spurrier. 2 Peake, 49. Wright v. Howard, i Sim. & Stu. 190.
Dykes v. Blake, 4 Bing. N. C. 477 ; 6 Price v. Ley, 4 Giff. 235.
Sc. 320. Chambers v. Griffiths, I Esp. {fi) Collier v. Jenkins, I You. 295.
151. {//) Farrer v. Nightingal, 2 Esp.
(?«) Casamajor v. Strode, 2 Myl. & 639. Long v. Fletcher, 2 Eq. Ca.
Kee. 730. Lewin v. Guest, i Russ. Abr. 5, pi. 4.
330.
Sec. I.] SALE OF LANDS. 43
given of it in the contract for the sale — the purchaser
will be bound to take it, and the deficiency must be
compensated for in an abatement of the price, (r) '
If, therefore, the purchaser bargains for a term of
ninety-nine years in land, and the vendor has only
ninety-eight or ninety-seven years, the purchaser will
be bound to take the smaller term, receiving a propor-
tionate abatement in the amount of the purchase
money, (s)
If a man has not the entirety of the estate he pro-
fesses to sell, the purchaser is not bound to accept at
a proportionate price the share which he actually has
in the estate. And, if tenants in common of an estate
contract for the sale of it, and one of them dies, the
purchaser can not be compelled to take the share of
the survivors without the share of the deceased. (^)
If the purchaser elects to take such an interest as the
vendor has in the land agreed to be sold, subject to a
fair and proportionate abatement in the amount of the
purchase-money, the vendor is not entitled to object
to his so doing. The purchaser is entitled to take
what he can get with compensation for what he ought
to have had, but can not obtain, (u) provided the
contract is capable of being carried out by a decree
for specific performance, {v) Where, however, the
purchaser knows that the land is in the occupation of a
tenant he is affected with notice of the tenant's inter-
est, and is not entitled to specific performance with
(r) Belworth v. Hassell, 4 Campb. 45. Thomas v. Dering, I Kee. 744,
140. Graham v. Oliver, 3 Beav. 124. Barnes
is) Halsey v. Grant, 13 Ves. 77. v. Wood, L. R., 8 Eq. 424 ; 38 L. J.,
Mortlock V. Butler, 10 Ves. 305. Ch. 683.
(t Att.-Gen. v. Day, I Ves. senr. {v) Price v. Griffith, i De G. Mac.
218. & G. 80 ; 21 L. J„ Ch. 78.
iu) Wood 1. Griffith, I Wils. Ch. C.
' King V. Bardeau, 6 Johns. Ch. 38,
44 LAW OF CONTRACT. [Bk. II. Ch. L
compensation if the tenant has a lease. (_)') Quit
rents, being incidents of tenure, are proper subjects of
compensation by abatement of the purchase-money.
An omission, therefore, of the fact of an estate being
charged with a quit-rent will not invalidate the con-
tract for the sale of it ; but it is otherwise if the charge
is a rent-charge. {£)
The following misstatements and misdescriptions
have been held so far material and important as to en-
title the purchaser to refuse to complete his contract,
and to enable him to recover back his deposit, on the
ground that the vendor had not tendered him that
which he bargained for and intended to buy, although
the contract contained the usual provision that errors
and misstatements should not vitiate the sale, — i. e., a
public-house described in the printed conditions as a
" free public-house," whereas it was held upon the
terms that all the beer should be taken from a partic-
ular brewer {a) — a lease described as containing a re-
striction against offensive trades, whereas it contained
a restriction, not only against offensive trades, but also
against some trades that were perfectly inoffensive {b)
— houses described as Nos. 3 and 4, whereas they were
Nos. 2 and 3 {c) — a reversionary estate described as
" absolute on the death of a person aged sixty-six,"
whereas the party was only sixty-four, and the rever-
sion was not absolute (d) — a public-house and yard
described as being holden for a term, of which twenty-
three years were unexpired, at a rent of ;^55 per annum,
whereas the yard was held distinct from the public-
house, under a demise from year to year only, at an
{y) James v. Lichfield, L. R., 9 Eq. (b) Flight v. Booth, 1 Sc. 203 ; i
51 ; 39 L. J., Ch. 248. Bing. N. C. 377.
{z) Esdaile v. Stephenson, i S. & S. (c) Leach v. Mullelt, 3 C. & P. I15.
22. Bowles V. Waller, i Hayes, 441, {d) Sherwood v. Robins, 3 C. & P.
(a) Jones v. E iney, 3 Campb. 2->5 ; & M. 194.
339 ; Mood.
Sec. I.] SALE OF LANDS. 45
additional rent of ;^8 per annum {/) — a redeemable
estate, or a redeemable annuity issuing out of land,
described generally as "an estate," or "an annuity," no
notice being taken of its being subject to redemption
(/) — ^a plot of ground described generally on a plan,
without notice of any right of way over it, or right of
sporting, whereas it was held subject to a right of sport-
ing, {g) or to a right of way on the part of the occupiers
of an adjoining house, their servants and families (^) —
leases described as containing particular covenants on
the part of the lessees, whereas no such covenants ex-
isted (z) — or described as leaseholds renewable by cus-
tom, when no custom to renew existed (^) — dwelling-
houses described as being holden on a ground-rent lease
at a net annual ground-rent of £/^2, whereas the rent
■was a rack-rent (/) — a dwelling-house described as a
brickbuilt dwelling-house, whereas parts of the external
walls were composed of only lath and plaster (m) — a
steam factory described as being well supplied with
" water," whereas there was no natural supply, but all
the water was furnished at very great cost by a water
■company {n) — a house described as being held at a
low ground-rent of ;^ 15 per annum,whereasthe ground-
jent was £2,S psr annum (0) — a lease described as an
original lease, whereas it was an under-lease (/) — and
described as in the occupation of a tenant, whereas the
occupier was a hostile claimant {q) — meadows de-
(e) Dobell v. Hutchinson, 3 Ad. & (j) Waring v. Hogart, R. & M. 39.
E. 356. W Newby v. Pinter, 17 Jur. 483.
(/) Coverley v. Burrell, 5 B. & Aid. (/) Stewart v. AUiston, i Mer. 26.
357. Ballard v. Way, : M. & W. 520. {m) Robinson v. Musgrove, 2 Mood.
(g) Bumell V. Brown, I Jac. & W. & R. 92.
168. («) Leyland V. lUingworth, 3 De G.
(h) Dykes ». Blake, 4 Bing. N. C. F. & J. 248 ; 29 L. J., Ch. 611.
.463 ; 6 Sc. 320. If the right of way is (0) Mills v. Oddy, 6 C. & P. 728.
patent and obvious, the principle of (/) Mason v. Corder, 2 Marsh. 336.
■caveat emptor applies. Bowles v. (?) Lachlan v. Reynolds, 23 L. J.,
J'iound, 3 Ve3. 509. Ch. 8.
46 LAIV OF CONTRACT. [Bk. II. Ch. L
scribed generally, without notice of any right of com-
mon over them, whereas one of the meadows was held
subject to the exercise of such a right every third year
(r) — a timber estate described as comprising a wood
of sixty-five acres of fine oak timber-trees of the aver-
age size of fifty feet, whereas the average size of the
trees appeared to be only twenty-two feet (s) — a sum
in gross payable under a covenant described as a free-
hold ground-rent. (/) Where a purchaser surveyed
the property with a plan in his hand which had been
furnished to him by the vendors, and was naturally
misled into thinking that the boundary included cer-
tain trees which it did not include, the court held that
he had been misled by the fault of the vendors, and
refused to decree specific performance against him. {tiy
But, if the thing tendered to the purchaser sub-
stantially corresponds with the description given in
the contract of sale, and there only exists some trifling
defect, easily measurable by a pecuniary standard, the
purchaser will be bound to complete his contract, on
receiving a proportionate abatement of the purchase
money. Thus, where a piece of meadow-land, im-
perfectly watered, was described by a vendor as " un-
commonly rich water-meadow," and where a leasehold
estate was represented to be nearly equal to freehold,
being renewable upon a small fine, whereas the fine
was a large one, it was held that the misrepresentation
did not avoid the contract, but afforded ground for
compensation to the purchaser, {x) And, if the
purchaser must have known the true state and con-
(r) Gibson v. Spurrier, Peake's Ad. («) Denny v. Hancock, L. R., 6 Ch.
Cas. 49. i; 40 L. J., Ch. 193.
(j) Lord Brooke v. Rounthwaite, 5 W Scolt v. Hanson, i Sim. 13.
Hare, 298 ; 15 L. J., Ch. 332. Fenton v. Browne, 14 Ves. 144.
(/) Riiliiiis V. Evans, 2 U. & C.410; Tiower v. Newcome, 3 Mer. 704.
33 I-. J , Ex. OS.
Sec. ].] SALE OF LANDS. 47
dition of the property, and could not have been misled
or deceived by the misdescription, he will not be per-
mitted to avail himself of it for the purpose of de-
feating the contract. So, too, if he proceeds with the
treaty after he is aware of the misstatement or misde-
scription, and makes no objection, he will be deemed
to have waived his right to object, and to have assented
to take the estate as it is, and not as it was described
to be, subject in certain cases to an abatement in the
amount of the purchase money. If the misrepresen-
tation, moreover, does not in anywise affect the value
or enjoyment of the property, it will not invalidate
the contract. Thus, where fines payable to the lord
of a manor were described as arbitrary, whereas they
were both arbitrary and certain, but the annual
value of the property was conectly stated, it was held
that the purchaser had no ground for refusing to com-
plete the purchase, (jv) If the price of an estate is
not regulated by the acreage of the property, but by
its peculiar situation or advantitious value, and the
quantity is stated as mere matter of description or
opinion, and not as the result of actual admeasure-
ment, the purchaser may be compelled to take the
estate, and will not be entitled to any abatement of
his purchase money, if the actual quantity falls short
of the estimated quantity. If the price has been
regulated by the acreage, and the quantity has been
innocently misrepresented by the vendor, " the pur-
chaser has a right to have what the vendor can give,
with an abatement out of the purchase money for so
much as the quantity falls short of the representation.
This is the rule, though the land is neither bought nor
sold professedly by the acre, the presumption being
that, in fixing the price, regard was had on both sides
CjC) White V. Cuddon, 8 CI. & Fin. 785.
48 LAW OF CONTRACT. [Bk. II. Ch. I.
to the quantity which both supposed the estate to
consist of." (2) But, where a mistake of quantity is
of such a nature that it can not fairly and equitably
be made the subject of compensation, it is not a case
for compensation, but a ground for avoiding the con-
tract, (a) If the purchaser has never seen the estate,
but relies solely on the representations made to him
by the vendor, and there is any great or material dif-
ference between the actual and represented quantity,
the purchaser will not be bound to complete his pur-
chase. The words, " more or less," or " thereabouts,"
will only cover a moderate excess or deficiency, and
will never be suffered to be the instrument of fraud.
{(5) If the vendor makes a mistake against his own
interest, as if he sells an estate with the* timber, and
the timber is by mistake sold at too low a price, he
can not have the sale re-opened, and the purchaser is
entitled to his bargain. (^)
521. Alterations in the condition of property. —
The vendor must be prepared also to transfer the
estate in the same state and condition that it was in
at the time of the making of the agreement for the
sale ; otherwise the purchaser may repudiate the con-
tract and recover his deposit. Thus, where the vendor
pulled down and removed a summer-house, it was
held that the purchaser might refuse to complete the
purchase and recover back the deposit, {d) So, where,
after an agreement had been entered into for the
purchase and sale of an estate, and before the com-
pletion of the contract by the execution of the deed
(z) Hill V. Buckley, 17 Ves. 401. v. Winchester, i Ves. & B. 377. Port-
King V. Wilson, 6 Beav. 129. man v. Mill, 2 Russ. 570.
(«) Durham (Earl of) v. Legard, 34 {c) Griffiths v. Jones, L. R., 15 Eq.
L. J., Ch. 589. 279 ; 42 L. J., Ch. 468.
(^) Day V. Fynn, Owen, 133. Winch. (1/) Granger v. Worms, 4 Campb.
83.
Sec. I.] SALE OF LANDS. 49
of conveyance, the vendor cut down some ornamental
timber, it was held that the purchaser might refuse to
complete his contract, {e) If a man contracts for the
sale of the land and trees, the purchaser is not bound
to take the estate without the timber. (/") If it is
stipulated that the purchaser shall pay for timber
growing on the land, he must pay for all trees which
are considered to be timber by the custom of the
country, (^g)
522. Time and mode of performance. — The time
appointed for the conveyance of the legal estate, or
the delivery of the abstract of title, or the performance
of the other preliminaries, is not of the essence of the
contract ; and the parties, although precise days are
fixed, will be allowed a reasonable time for per-
formance, regard being had to all the circumstances of
the case, and the nature of the title to be made. (Ji)
If the vendor will not complete his part of the con-
tract within a reasonable time, the purchaser may
withdraw from the contract, and decline to have any-
thing further to do with it. (z)
Time may, however, be made of the essence of
the contract, before the sale, by a proper condition, {Jz)
and after the sale, by giving a proper notice of com-
pletion or rescission by a limited time ; (/) and, if it
plainly appears to have been the intention of the
parties that time should be of the essence of the con-
tract, {ni) or that the sale should be conditional, and
{e) Magennis v. Fallon, 2 Moll. 58S. 539. Nott v. Riccard, Id 307.
(/) Duke of St. Albans v. Shore, I (i) Hudson v. Temple, 29 Beav.
H. Bl. 280. 536 ; 30 L. J., Ch. 251.
{g) Duke of Chandos v. Talbot, 2 (/) Taylor v. Brown, 2 Beav. 180.
P. Wms. 601. Aubrey v. Fisher, 10 Wells v. Maxwell, 32 Beav. 408 ; 33
East, 446. L. J., Ch. 45.
(/^) Hipwellv. Knight, I You. & Col. (»;) Darnley (Earl of) v. London
416. Hearne v. Tenant, 13 Ves. 287. and Chatham, &c., Ry. Co. 33 L. J.,
(«) Macbryde v. Weeks, 22 Beav. Ch. 9.
II.— 4
50 LAW OF CONTRACT. [Bk. II. Ch. I.
be made to depend on the performance of the con-
tract by an appointed period, the court will not decree
performance after the time has elapsed, {n) Thus, in
a condition that objections to the vendor's title are to
be sent in within a given period, time is of the essence
of the contract, (o) But, if a vendor does not deliver
the abstract of title within the time specified, the
purchaser is not bound to send in his objections with-
in the specified time. (/) Time is considered to be
material, and to a very considerable extent, to be of
the essence of the contract, from the nature of the
property or the surrounding circumstances, (^) as
where the subject-matter of the sale is exposed to
daily variations in value, such as stock, shares, scrip,
(r) reversionary estate, (i) mines, factories, and
buildings used for trading purposes, (t) and public
houses, (?/) and in the case of contracts made with
ecclesiastical corporations, where the value of the sub-
ject-matter of the contract, and the persons who are
to participate in the benefit of it, are liable to con-
stant change, (x) If a person, seeking to enforce a
contract for the sale of land, has himself been guilty
of delay— if he has slept over his rights, and allowed
an unreasonable time to elapse before seeking for
performance — the court will not assist him. (jj/)
(n) Reynolds v. Nelson, Mad. & Stu. 590.
Geld. 26. Hudson V. Bartram, 3 Mad. (j-) Newman v. Rodgers, 4 Bro. C,
440. Hipwell V. Knight, i Y. & C. C. 391.
401. Ranelagh (Lord) v. Melton, 34 (t) Coslake v. Till, 1 Russ. 376.
L. J., Ch. 227 ; 2 Dru. & Sm. 278. Walker v. Jeffreys, I Hare, 348.
(o) Oakden v. Pike, 34 L. J., Ch. («) Cowles v. Gale, L. R., 7 Ch. 12 ;
620. 41 L. J., Ch. 14.
{p) Upperton v. Nicholson, L. R., (x) Carter v. Dean, &c., of Ely, 7
6 Ch. 436 ; 40 L. J., Ch. 401. Sim. 211.
(jj) Roberts v. Berry, 3 De G. M. & (y) Lloyd v. CoUett, cited 4 Ves.
G. 284. Tilley v. Thomas, L. R., 3 690. Guest v. Homfray, 5 Ves. 818.
Ch. 61. Watson v. Reid, I Russ. & Myl. 236.
(/-) Doleret v. Rothschild, i Sim. & Colby v. Gadsden, 34 Deav. 416.
?EC. I.] SALE OF LANDS. 51
Where a purchaser agrees that if, " from any cause
whatever," the purchase shall not be completed on the
day fixed, he will pay interest, he must pay such in-
terest, unless the delay has been occasioned by mis-
conduct on the part of the vendor, (z)
Where time is of the essence of the contract,
mutual promises or covenants between a vendor and
purchaser, for the conveyance of an estate on the one
hand, and the payment of the purchase-money on the
other, at an appointed period, constitute mutual con-
ditions to be performed at the same time ; so that,
'' one party was ready and willing, and offered to per-
form his part of the contract, and the other neglected
or refused to perform his, he who was ready and will-
ing has fulfilled his engagement, and may maintain an
action for the default of the other, though it is not
certain that either is obliged to do the first act." {a)
It is a sufficient performance, however, of the vendor's
part of the contract, if he is " ready and willing " to
execute a conveyance, inasmuch as it is the duty of
the purchaser to prepare the conveyance, and tender
it to the vendor for execution, (J>) unless the latter
has previously declared that he will never execute it,
or has refused to deliver the abstract, and intimated
his intention not to complete the purchase, or has
sold the estate to another person, or done any other
act incapacitating himself from fulfilling his engage-
ment, (c) The conveyance, when tendered, must be
a conveyance of the estate and interest bargained for
(z) Williams v. Glenton, 34 Beav. Kingston v. Preston, cited Id. 6gl.
528 ; 35 L. J., Ch. 284. Palmerston {b) Poole v. Hill. 6 M. & W. 835.
(Lord) V. Turner, 33 Beav. 524; 33 L. (c) Franklyn v. Lamond, 4 C. B.
J.,Ch. 457. 637 ; 16 L. J., C. P. 221.
(a) Jones v. Barklay, Doug. 684.
S2 LAW OF CONTRACT. [Bk. II. Ch. I.
and agreed to be sold, or the vendor will not be
bound to execute it. (d)
If one time has been appointed for the execution
of the conveyance and another for the payment of the
purchase-money, the mutual promises do not con-
stitute mutual conditions, but the several acts must
be strictly performed in the order of time agreed
upon. And, if a time is appointed for the payment of
the purchase money, but no time has been specified
for the execution of the conveyance, the purchaser is
bound to pay the money at the time appointed,
whether he has or has not obtained a conveyance of
the property. In such a case the execution of the
conveyance is not a condition precedent to, or con-
current with, the payment of the purchase money ;
and the vendor may consequently sue for the money,
if it is not paid at the time appointed, without offer-
ing or expressing his readiness to execute a convey-
ance, (e)
523. Enlargement of the time of performance. —
The time limited for the performance of a contract
required to be in writing by the Statute of Frauds
can not be extended by a mere oral agreement ; " for,
to allow the substitution of a new stipulation as to the
time of completing the contract, by reason of a sub-
sequent oral agreement of the parties to that effect, in
lieu of a stipulation as to time contained in the
written agreement signed by the parties, is virtually
and substantially to allow an action to be brought on
an agreement relating to the sale of land, partly in
writing, signed by the parties, and partly not in writ-
ing but by parol only, and amounts to a contra v^en-
{d') Vonhollen v. Knowles, 12 M. & {e) Mattock v. Kinglake, lO Ad. &
W, 602. E. 50.
Sec. I.] SALE OF LANDS. S3
tion of the Staute of Frauds." (/) Where a contract
for the sale and purchase of land provided that a good
title to the land should be produced, and a defect was
discovered in the title which could not be cured, and
the purchaser then agreed, by word of mouth, to
waive the defect, and take the land with such a title
as the vendor himself possessed, but afterwards, re-
penting his subsequent promise, he refused to com-
plete the purchase, it was held that the oral waiver
could not be given in evidence ; that it had the effect
of creating a new contract, altogether different from
the original contract, and ought to have been authen-
ticated by writing, {g) But, even where time is of
the essence of the contract, it may be waived by the
conduct and actions of the parties, and by the con-
tract being treated and acted upon as a continuing
contract after the appointed period, (^k)
524. Non-performance by the vendor. — Where the
vendor has reserved to himself a right to rescind the
contract if the purchaser raises objections to the title,
which the vendor is unable or unwilling to remove,
the vendor can not refuse to complete the contract, if
the purchaser is willing to waive the objections he
has made, (z) If the purchaser intends to sue for the
recovery of a deposit paid by him under the contract,
and for general damages, by reason of the non-perfor-
mance of the contract by the vendor at the time agreed
upon, the purchaser should give the vendor notice of
his intention, and allow the latter a reasonable time,
from the date of the notice, to complete the contract.
(/) Stowell V. Robinson, 3 Bing. {h) Webb v. Hughes, L. R., 10 Eq.
N. C. 937 ; 5 Sc. 212. 281 ; 39 L. J., Ch. 606.
{g) Goss V. Lord Nugent, 2 N. & {i) Turpin v. Chambers, 30 L. J.,
M. 35. Harvey v. Giabham, 5 Ad. & Ch. 470.
E. 74.
54 ^AlV OF CONTRACT. [Bk. II. Ch. I.
(Ji) If there has been a general breach of contract
by the vendor, independently of the question as to the
time of performance, or the title to relief has been
barred by notice, an action is maintainable for the
recovery of the deposit, with interest, when the deposit
has been paid into the hands of the vendor himself.
If the vendor has no title to the property agreed to
be sold, or if he has a naked legal title, or an equitable
interest only, the deposit is recoverable, (/) unless
there is an express agreerfient to the contrary ; (w)
and so it is, if the estate is shown to be subject to an
equitable incumbrance, {ji) The purchaser, in these
cases, is entitled, as we shall presently see, to recover
the costs and expenses incurred by him in investigat-
ing the title ; {p) also the costs of preparing and ten-
dering a conveyance where that has been done, and,
where the vendor has acted with bad faith, and will-
fully refused to fulfill his contract, damages for the
loss of his bargain. It will be no defense to the action
that the vendor has a title at the time of the trial, or
after the commencement of the action. (/) Where a
purchaser paid a deposit on a contract for the pur-
chase of a lease of a house, and afterwards discovered
that the house was comprised with another in an
original lease, under which the lessor had a right to
re-enter for breach of covenant in respect of either
house, it was held that the purchaser might rescind
the contract and sue for his deposit and expenses, {(j)
In order to entitle himself to maintain an action
ik) Parkin v. Thorold, 22 L. J., Ch. Ex. 73.
175. King V. Wilson, 6 Beav. 126. («) Elliot v. Edwards, 3 B. & P. l8i.
(/) Maberly v. Robins, 5 Taunt. (p) Richardson v. Chasen, 16 L. J.,
625 ; I Marsh. 258. Cane v. Baldwin, Q. B. 341.
I Stark. 65. Roper v. Coombes, 6 B. {f) Cornish v. Rowley, I Selw. N.
& C. 534. P. 1 2th ed., 203.
()h) Ashworth v. Mouiisey, 23 L. J., (q) lilake v. Phinn, 3 C. B. 976.
Sec. I.] SALE OF LANDS. 55
against the vendor for the damages resulting from the
non-execution of the conveyance, the purchaser must
prove a tender of a conveyance to the vendor for
execution, and his own readiness and willingness to
pay the purchase-money, unless the vendor has inca-
pacitated himself from executing a conveyance by
selling the estate to another, and has thus discharged
the purchaser from his obligation, (r) But it is not
necessary for the purchaser to prepare and tender a
conveyance, in order to entitle himself to maintain an
action for the recovery of his deposit, and the expenses
of investigating the title, (s) If the vendor's failure
to make out a good title arises from circumstances
over which he has no control, and is not the result of
fraud or mala fides on his part, the purchaser will not
be entitled to recover damages in respect of the pre-
sumed or fancied value of his bargain ; but if the
vendor's conduct has been fraudulent, the case is
otherwise. If the title has been made out and ac-
cepted by the purchaser, and the latter has then re-
sold to a second purchaser, and the original vendor re-
fuses to execute a conveyance on being tendered the
purchase-money, the purchaser will be entitled, on
tendering a conveyance, to recover the profit realized
on the re-sale, and all the costs and expenses attending
it, in addition to his costs of investigating the title.
If the purchaser sues the vendor upon the contract,
for the recovery of his deposit as part of the damages
resulting from the vendor's neglect to complete the
sale, he will be entitled to recover interest upon his
deposit ; and he may also, in certain cases, recover
interest upon the purchase-money, if it has been lying
(r) Knight v. Cockford, i Esp. 193. (s) Lowndes v. Bray, Sugd. Vend.
I4ih ed., 364.
56 LAW OF CONTRACT. [Bk. II. Ch. I.
idle, awaiting the vendor's acceptance. (/) But, if it
should turn out that the contract was not binding
upon the vendor, by reason of its not being properly
authenticated by writing, or if the contract has been
abandoned or rescinded by mutual consent, interest on
the deposit can not be recovered, nor any of the costs
and expenses incurred in the investigation of the title.
(«) It is frequently stipulated in contracts of the sale
and purchase of estates that if either party shall neglect
to fulfill his part of the contract, he shall pay to the
other a fixed, ascertained sum of money, as the liqui-
dated and agreed damages. The amount so agreed to-
be paid may, as we have already seen, under certain
circumstances and with certain qualifications, be re-
covered by action, (v) And where the vendor is in
default, the purchaser will generally be held to be
entitled to a lien on the estate for his deposit and
interest, (j)/)
525. Non-performance by the purchaser — For-
feiture of deposit. — In case of the non-performance of
the contract by the purchaser, the deposit is generally
forfeited, {z) but, to entitle the vendor to retain the
deposit, he must show that he has faithfully fulfilled
his own part of the contract, and has not done any-
thing amounting to a waiver of his right to take
advantage of the forfeiture. If he has himself prevent-
(t) Farquhar v. Farley, 7 Taunt. {%) Palmer v. Temple, I P. & D.
592 ; I Moore, 322. Hodges v. Earl 387 ; 9 Ad. & E. 521. Whether it
of Litchfield, I Sc. 443 ; i Bing, N. would be held to be forfeited where
C. 492. Gardom V. Lee, 34 L. J., Ex. no stipulation to that effect is ex-
113. pressed or can be inferred, would
{11) Walker v. Constable, I B. & P. seem to admit of doubt, see Palmer v.
306. Gusbell V. Archer, 2 Ad. & E. Roberts, 9 Ad. & E. 508. Casson v.
500 ; 4 N. & M. 485. Casson v. Roberts, 32 L. J., Ch. 105. Depree
Roberts, 32 L. J., Ch. 105. v. Bedborough, 4 Giff. 479 ; 33 L. J.,
(v) Ante. Ch. 134. Hinton v. Sparkes, L. R., 5
{y) Rose v. Watson, 33 L. J., Ch. C. P. l6l ; 37 L. J., C. P. 81.
38.5.
Sec. I.J SALE OF LANDS. S7
ed the purchaser from fulfilling the contract at the
time appointed, or has himself asked for delay, or has,
induced the purchaser to incur the forfeiture by fraud-
ulent statements and deceitful promises, he will not
be permitted to take advantage of such forfeiture, (a)
Where it was stipulated by the contract that objec-
tions to the title not made within twenty-one days
should be considered as waived, and the deposit for-
feited, and the vendor at liberty to re-sell in case of
the non-completion of the purchase by the purchaser,,
and the vendor's solicitor received the objections long
after the twenty-one days, and entered into a written
correspondence respecting them, it was held that the
vendor had waived his right to insist on the forfeiture
of the deposit and to re-sell the estate. (J>) The per-
sonal representative of the purchaser, and not his heir,
is the proper party to be made plaintiff in an action
brought for the recovery of the deposit, (c) A pur-
chaser who is entitled to a return of his deposit can
not be compelled to take the stock in which it may
have been invested, unless the investment was made
with his assent and direction, or under the authority
of the Court. His assent to the investment can not
be inferred from the fact of notice having been given
him thereof, and no reply having been made to such
notice, (d^ A stipulation for the forfeiture of the de-
posit, in case of the non-completion of the contract by
the purchaser, does not, as we have already seen, pre-
clude the vendor from suing the purchaser for the re-
covery of the general damages resulting from the
breach of contract ; but, if the deposit has been paid
to the vendor and forfeited, it must be treated as so
(a) Carpenter v. Blandfoid, 8 B. & (<r) Oime v. Erougton, 4 Moo. & Sc.
C. 575 ; 3 M. & R. 95. 417 ; TO Ring. 533.
(i) Cutts V. Thodcy, 13 Sim. 206. (d) Roberts v. Massey, 13 Ves. 561.
58 LAW OF CONTRACT. [Bk. II. Ch. I.
much money paid to the vendor on account of such
damages, (^e)
526. Deposits in the hands of auctioneers and
third parties. — When a deposit has been paid into the
hands of an auctioneer, soHcitor, or any third party,
the latter stands in the position of a stakeholder, and
is responsible for the payment of the amount to the
vendor in case of the completion of the contract, and
also for the return of it to the purchaser in case of the
abandonment of the contract, or the neglect of the
vendor to complete his part of it. The depositary,
therefore, should not part with the deposit until the
sale has either been abandoned, or has come to noth-
ing, or until it has been duly completed and carried
into effect, and it appears by the result to whom the
deposit properly belongs. (/") If he pays it over to
the vendor, and the title turns out to be defective, he
will be bound to make good the amount to the pur-
chaser, (^g) unless it appears to have been the inten-
tion of the parties that the amount should be paid
over to the vendor, and it has accordingly been done ;
(Ji) as, for instance, where the deposit is to be paid to
the vendor's solicitor "as agent for the vendor," in
which case the solicitor is not a stakeholder, but must
pay the deposit to the vendor on demand. (?) If the
auctioneer makes away with the deposit, and becomes
bankrupt, the loss will in general fall upon the vendor,
who selects and appoints him, and constitutes him his
agent for the receipt and keeping of the money, {k)
{e) Ockenden v. Henly, El. Bl. & (g) Gray v. Gutteridge, I M. & R.
El. 485. As to when the forfeit of the 614.
<leposit can be treated as liquidated (h) Hurley v. Baker, 16 M. & W.
damages, see Lea v. Whitaker, L. R., 26.
8 C. P. 70, (i) Edgell V. Day, 35 L. J., C. P. 7.
(/) Post, ch. 3, s. I, Stakehold- (/£■) Annesley v. Muggridge, i Mad.
ERS. 593. Smith v. Jackson, i Mad. 618.
Sec. I.] SALE OF LANDS. 59
No notice need be given to the auctioneer of tlie
abandonment of the contract, or of the default made
by the vendor prior to the commencement of the
action against him for the recovery of the deposit. (/)
When the action for the return of the deposit is
brought against the auctioneer, interest thereon is not
recoverable by the purchaser, although the money has
been placed in the funds, and interest has been
made, (m) But it is otherwise, as vve have already
seen, when the deposit has been paid to the vendor,
and the action for its recovery is brought against
him.
527. Rights of the vendor. — Before the vendor
can maintain an action for the recovery of damages
by reason of the neglect of the purchaser to tender
and accept a conveyance of the estate and pay the
purchase money, he must produce and establish a
good title to the estate agreed to be sold, and
it must appear that he vpas ready and willing
to execute a conveyance thereof to the purchas-
er, on receiving payment of the purchase money.
(n) But, if he can prove this, he is entitled, as we
shall presently see, to recover all the damages he has
sustained by the breach of contract, and all the costs,
charges, and expenses he has incurred. Before he
brings an action to recover such damages by reason of
the non-payment of the purchase money at the time
appointed, he should give notice to the purchaser, and
require the latter to pay the money within a reason-
able time. If the purchaser takes possession of the
estate, and receives the rents and profits, he will, in
(/) Duncan v. Cafe, 2 M. & W. 244. (») Martin v. Smith, 6 East, 555.
{m) Harington v. Hoggart, I B. & Hallewell v. Morrell, i M. & Gr.
Ad. 577. Curling v. Shuttleworth, 6 367. Poole v. Hill, 6 M. & W. 835.
Eing. 121 ; 3 Moo. & P. 368. Gaber Phillips v. Fielding, 2 H. Bl. 132.
V. Driver, 2 Y. & J. 549.
6o LAW OF CONTRACT. [Bk. II. Cii. I.
general, be compelled to pay interest on the purchase
money from the time that he became possessed of the
property. If he neglects to fulfill his part of the con-
tract at the time appointed, or within a reasonable
period after request, if no time was appointed, the ven-
dor will be entitled, after a reasonable notice, to re-sell
the estate and sue for damages. If a second purchaser
has taken a conveyance and paid his purchase money
without notice of a prior sale, he has equal equity with
the first purchaser; and, having clothed himself with
the legal estate, he comes within the rule that, where
parties have equal equity, he who has the legal title
shall prevail. But, if such second purchaser had notice
of the first contract, the court will, if the first pur-
chaser's right to a specific performance has not been
barred, compel such second purchaser to convey the
estate to the first purchaser. To obviate difficulties
and objections to a re -sale, it has been usual to insert
in agreements for the sale of realty a stipulation to
the eflFect that, if the purchaser shall fail to complete
the purchase and pay the price at the time appointed,
the agreement shall be utterly void, and the vendor be
at liberty to re-sell the estate, and that the deficiency,
if any, by such re-sale, together with the costs and
charges attending the same, shall be made good by
the defaulter, {o) This stipulation, and also a vendor's
notice of re-sale, may be waived, and the right to take
advantage of it lost, if objections to title made by the
purchaser have been considered by the vendor or his
attorney subsequently to the time fixed for the re-sale,
and if it can be shown, through the medium of written
evidence, that the vendor, after such time of re-sale
had elapsed, still continued to deal with the purchaser
as a purchaser, and still continued to treat the con-
(o) Ex parte Hunter, 6 Ves. 94.
Sec. I.] SALE OF LANDS. 6i
tract as a subsisting contract. (/) When the vendor
has re-sold and conveyed the property under these
circumstances, he will be considered as selling it for
the benefit of the original purchaser, for whom, by
the first agreement, he became trustee, and he will be
compelled to account to him for the purchase
money. (^)
528. Damages from breach of contract for the
sale of realty — Non-performance by the purchaser. —
If an estate agreed to be sold has been actually con-
veyed by the vendor to the purchaser, and has become
the property of the latter, and the vendor sues for
the non-payment of the purchase money, the measure
of damages is the price agreed to be paid, with inter-
est; but, if no conveyance has been executed, and the
estate still remains the property of the vendor, the
measure of damages is the difference between the price
agreed to be paid and the marketable value of the
property ; for the vendor can not have both the estate
and the purchase money, {r) So long as the right of
property in the thing agreed to be sold has not passed
to the purchaser, the vendor is entitled, in case of the
non-completion of the contract by the purchaser, to
le-sell it ; and, if the re-sale has taken place within a
reasonable period from the breach of contract, the
difference between the price reahzed on the re-sale
and that agreed to be paid by the purchaser will be
the measure of damages which the vendor will be en-
titled to recover, in addition to the costs, charges, and
expenses of the re-sale. If the vendor does not re-sell
the estate, but elects to keep it in his own hands, he
will then be entitled to recover the difference between
the agreed price and the presumed marketable value
(;>) Cutts V. Thodey, 13 Sim. 206 ; (?) Daniels v. Davison, 16 Ves. 255
1 Col. 223. W Laird v. Pim, 7 M. & W. 478.
62 LAW OF CONTRACT. [Bk. II. Ch. I.
of the property, together with his costs, charges, and
expenses. Amongst these costs and charges may be
included the expense of making out the title ; for,
although the expense is, by custom and usage, de-
frayed by the vendor, yet that is done upon the under-
standing that the contract will be duly fulfilled by the
purchaser. In many cases of sales of realty there will
be no difference between the contract price and the
marketable value of the property agreed to be pur-
chased ; and in such cases, if the vendor elects to keep
the property in his own hands, and not to re-sell it, he
will be entitled to recover nominal damages only in
respect of the loss of the purchase, in addition to the
costs and expenses he has incurred in carrying out
and completing his part of the contract. If the con-
ditions of sale provide for the payment of a deposit by
the purchaser, and for the forfeiture of such deposit in
case of the failure of the purchaser to comply with the
conditions, the deposit must, nevertheless, be brought
into account by the vendor, if he seeks to recover the
deficiency on a re-sale of the property, (s^
529. Damages from non-performance by the Ven-
dor.— If the action is brought by the purchaser in
respect of a breach of the contract by the vendor, the
nature and amount of the damages recoverable will
depend, to a certain extent, upon the existence or
non-existence or bad faith on the part of the vendor.
If the sale goes off because the vendor refuses to fulfill
his contract, the purchaser will be entitled to full
compensation for the loss of his bargain. (/) If the
vendor had reasonable ground for believing that he
Wf s the owner of the property and had a right to sell
(s) OckeiKlen v. [lenly. El. BI. & El. [t) Ld. Campbell, C. J., Simons v.
4S5. But see Hinton v. Sparkes, L. Patchett, 26 L. J., Q. B. 199.
R.,3 C. P. 161 ; 37 L. J., C. P 81.
Sec. I.] SALE OF LANDS. 63
at the time he agreed to sell, but is prevented by an
unexpected defect of title from completing his en-
gagements, and is ready to do all that he possibly
can to fulfill the contract, the purchaser will only be
entitled to recover nominal damages, together with
his deposit (if a deposit was paid), with interest, and
the expenses he has in incurred investigating the title
and searching for judgments. He can not recover
damages in respect of the presumed or fancied value
of his bargain over and above the price agreed to be
paid, (li) nor the costs of any proceedings taken to
enforce performance, (v) If he re-sells before he has
investigated the title of his vendor, and the sub-con-
tract fails by reason of a defect in that title, and not
from any mala fides on the part of the original vendor,
he will not be entitled to recover damages in respect
of any profit that he would have realized on such re-
sale ; for, " if premises for which a party has con-
tracted are by him offered for re-sale too soon, that is
at his own peril ; and the damage (if any) resulting
from that offer arises from his own premature act, and
not from the fault of his vendor." (jj/) If, however,
the breach of contract arises, not from the inability of
the vendor to make a good title, but from his refusal
to take the necessary steps to give the purchaser pos-
session pursuant to his contract, the purchaser may
recover, not only the deposit and the expenses of
investigating the title, but also damages for the loss
of his bargain, which will be measured by the diifer-
(u) Flureau v. ThornhiU, 2 W. Bl. L- R-. 6 Ex. 59 ; 40 L. J., Ex. 34
1078. Sugd. Vend. 1077, 1078. Gray v. Fowler, L. R., 8 Ex. 249 ; 42.
Robinson v. Harman, i Exch. 855. L, J-. Ex. 61.
Pounsett V. Fufter, 17 C. B. 676 ; 25 (^) Maiden v. Fyson, 11 Q. B. 292.
L J C P 145. Sykes v. Wilde, I B. (v) Bayley, J.. Walker v. Moore, 10
& i: 587 ; 4 Id. 421 : 30 L. J.. Q. B. B. & C. 421. Poth. Obligations, No.
325 ; 32 Id. 375. Hiin v. Fothergill, 168.
64 LAW OF CONTRACT. [Bk. II. Ch. I.
ence between the contract price and the value at the
time of the breach of contract ; and the profit which
the purchaser could have made on a re-sale, will be
evidence of this enhanced value ; (^z) for if the vendor
acts with bad faith, and fails to do all that it is in his
power to do to perform and fulfill the contract, he will
be bound to compensate the purchaser for all the loss
he has sustained. If the title shown on the abstract
has been examined with the deeds, and found correct,
and the purchaser, acting upon the title so shown,
enters into a sub-contract for the re-sale of the estate,
and the original vendor then refuses to complete the
first purchase, in consequence whereof the contract
for the re-sale fails, the purchaser will be entitled to
recover the profit that he would have realized on the
re-sale, and all the costs and expenses attending it.
And if the vendor has nothing at all in the shape of
title, but has taken upon himself to offer an estate for
sale, without having a shadow of interest in the land,
holding himself out as the legal owner, when in point
of fact he never was the legal owner, and could have
had no reasonable ground for thinking so, if he had
•examined into his own rights, he must pay such
damages as the purchaser has really sustained by not
having that which the vendor contracted that he
should have, (a)
Expenses incurred in getting a survey made of the
estate, or plans prepared preparatory to the making
■of the contract, but before the contract was actually
entered into, can not be recovered by the purchaser,
nor can the expense of a conveyance prepared before
(z) Engel V. Fitch. L. R., 3 Q. B. {a) Hopkins v. Grazebrooke, 6 B. &
314 ; 37 L. J., Q. B. 145. Godwin v. C. 31; 9 D. & R. 26. Sykes v. Wilde,
Francis, L. R., 5 C. P. 295 ; 39 L. J., ante.
C. P. 121.
Sec. I.j SALE OF LANDS. 65
the title has been approved of, and before it is known
whether objections raised to the title can be answered
by the vendor, {b) And, if there has been no written
contract of sale binding on the vendor, but the matter
rests merely upon an oral agreement rendered invalid
by the Statute of Frauds, the purchaser has no means
of recovering the expenses incurred by him in inves-
tigating the title. He may, however, recover the
deposit and auction duty, as money paid upon a
consideration that has failed, (c)
In the case of the non-performance of an agree-
ment for the sale of an estate, damages for non-per-
formance are not given in addition to specific per-
formance, except where special damage has occurred
from the delay, (d)
530. Specific performance. — As the estate agreed
to be sold vests in equity in the purchaser from the
time of the signing of the agreement, the court will in
all ordinary cases, decree a specific performance by the
vendor of all such acts as are necessary to be done by
him to transfer the legal estate to the purchaser, and
clothe the latter with the legal as well as the equitable
ownership of the property, and thus carry the con-
tract into complete effect. If the vendor has no title,
a specific performance can not be decreed, as he can
not be compelled to convey an estate which he has
not got. {e) If, therefore, he has signed an agree-
ment for the sale of property under the impression
that he was seized in fee and it subsequently
appears that he has only a life estate, a specific perfor-
mance of the contract can not be decreed ; but the
{b) Hodges v. Earl Litchfield, I Sc. (</) Chinnock v. Ely, 34 L. J., Ch,
443. 399 ; 2 H. & M. 221.
(<r) Gosbell v. Archer, 2 Ad. & E. (e) Nicolson v. Wadsworth, 2
500. Swanst. 369.
II.— 5
66 LAW OF CONTRACT. [Bk. II. Cll. L
purchaser may, if he pleases, have a decree for a con-
veyance of the life estate, with compensation by way
of reduction of the amount of the purchase-money. (/")
If the remainder, after the determination of the ven-
dor's life interest, is vested in his wife for life, with
remainder to his son in fee, the court will not com-
pel him to use his marital and parental authority to
to induce the wife and son to part with their interests
in the property, (^g) Where a husband and wife
agreed to sell the wife's estate, the purchaser being
aware that the estate belonged to the wife, and the
wife afterwards refused to convey it, it was held that
the purchaser could not compel the husband to convey
his interest and accept an abated price. (/^) The
court will not compel a purchaser to take a doubtful
title ; and a title is regarded as doubtful where there
has been a decision adverse to it or the principle upon,
which it depends, or a decision in favor of it which
the court is of opinion is wrong, or where there is a
known difficulty in the title, or when the validity of
the title depends upon a fact or facts of the exact ac-
curacy of which the court has no means of judging. (/)
A contract established through the medium of
letters may be enforced in specie ; but it must appear
to be a complete and concluded contract ; (/^) and it
must be sufficiently certain. (/)' The courts grant
the decree only in those cases where there is a mutual-
ity of obligation, and where the remedy is mutual.
(/) Barnes v. Wood, L. R., 8 Eq. {k) Huddleston v. Briscoe, ii Ves.
424 ; 38 L. J., Ch. 683. 591. Stratford v. Boswortli, 2 Ves. &
(g) Howel V. George, i Mad. 6. B. 341. Cowley v. Watts, 17 Jur. 172.
{h) Castle v. Wilkinson, L. R., 5 Ch. (/) Rummens v. Robins, 3 De G. J.
634 ; 39 L. J., Ch. 843. & S. 88. Dear v. Verity, 38 L. J., Ch.
i,i) Mailings v. Trinder, L. R., 10 297.
Eq. 449 ; 39 L. J., Ch. 833.
' Ante, vol. i. p. 43, note 1.
Sec. I. SALE OF LANDS. 67
If, therefore, an infant signs a contract for the purchase
of an estate, the court will not decree specific perfor-
mance in his favor, because he is not himself bound bj
the contract, by reason of his infancy, (m) ' Specific
(?«) Flight V. BoUand, 4 Russ. 301. HiJls v. Croll, 2 Phill. 62, n. {b).
' " If an infant has made a deed of a conveyance of land,
inasmuch as he has parted with his seizin thereby, it has been
held, and, it is believed, is the better doctrine, that he can only
avoid it by re-entry, unless he has retained possession, or unless
it was wild and vacant land, in which case a deed of it to a
stranger would be a disaffirmance of his first conveyance."
Washburn on Real Property, vol. i. p. 301 ; and see Worces-
ter V. Eaton, 13 Mass. 371; Whitney v. Dutch, 14 Id. 463 ;
Roberts v. Wiggin, i N. H. 75 ; Murray v. Shankin, 4 Dev. &
Bat. 289 ; Bool v. Mix, 17 Wend. 133; Jackson v. Burchin, 14
Johns. 124; Tucker V. Moreland, 10 Pet. 65.
It has been held that a deed, without a formal prior entry
to regain seizin, would be sufficient. Cresinger v. Welch,
[5 Ohio, 192; Scott V. Buchanan, 11 Humph. 468; Drake v.
Ramsay, 5 Ohio, 251 ; Jackson v. Carpenter, 11 Johns. 539 ;
Jackson v. Burchin, 14 Johns. 124, where the land was vacant ;
where the minor was all the time in occupation of the prem-
ises. See Tucker V. Moreland, 10 Pet. 65. One who executes
an agreement while too intoxicated to understand its meaning
and effect, may avoid it. Washburn, vol. i., p. 304. Leases
by married women are void, unless relating to their own
sole property, over which, by chancery or the statute of the
state where they live, they are authorized to act as femes sole.
Smith, Land & Ten. 48; i Piatt, Leases, 48; Murray v. Em-
mons, 19 N. H. 483. So leases obtained by duress are voidable,
but not void. Worcester v. Eaton, 13 Mass. 371. So, also, leases
made by infants. Worcester v. Eaton, 13 Mass. 375 ; Scott v. Bu-
chanan, II Humph. 468 ; Kendall v. Lawrence, 22 Pick. 540 ;
Roof V. Stafford, 7 Cow. 179 ; Stafford v. Roof, 9 Id. 626 ; Rob-
erts V. Wiggin, I N. H. 73; Tucker v. Moreland, 10 Pet. 71 ;
Jackson v. Carpenter, 11 Johns. 539 ; Drake v. Ramsay, 5 Ohio,
251 ; Bool v. Mix, 17 Wend. 131. So a lease maybe avoided for
fraud. But if the ' lessee be the party defrauded, he must
rescind the contract promptly, and so long as he retains pos-
session of the premises, he is liable for the rent. McCarty v.
Ely, 4 E. D. Smith, 375.
Infants' leases may be affirmed and made effectual by ratifi-
68 LAW OF CONTRACT. [Bk. II. Ch. I.
performance will not be decreed in favor of a person
who has been guilty of an unreasonable delay in ful-
filling his part of the engagement, or who has slept
tion, or disaflfirmed and avoided, by the acts and declarations
of the lessor, done or made at the proper time. Right to
disaffirm a lease is a personal privilege, and must be exercised
by the lessor himself or his heirs, and not by a stranger. Wor-
cester V. Eaton, 13 Mass. 371; Wheaton v. East, 5 Yerg. 6t.
The law permits an infant to disaffirm the sale of a chattel
where it would not allow the disaffirmance of a conveyance of
land, since he may do the one before arriving at age, but he
can not disaffirm his deed of conveyance while an infant. "It
would seem by the analogy there is between the chattel
interest in a term for years, in which no seisin passes,
and the property in personal chattels, that a lease may
be disaffirmed by an infant before arriving at age, and
from the well-settled principle that, though an infant can
not defeat his deed until he is of age, he may enter and
take the profits of the land while an infant. An infant
lessor may enter and avoid his lease during his infancy.
However this may be held by the courts, the following
authorities are clear, that while an infant may not avoid his
deed until after arriving at age, he may disaffirm and avoid a
sale of a chattel, but he may enter and take the profits."
Washburn on Real Property, vol. ii. pp. 305-306, citing
Zouch V. Parsons, 3 Burr. 1808 ; Bool v. Mix, 17 Wend. 132 ;
Scott V. Buchanan, 11 Humph. 473. Roof v. Stafford, 7
Cow. 179, to the effect that an infant can avoid neither as
to personalty nor lands until of age, was overruled as to
personalty, and affirmed as to lands, in Stafford v. Roof,
9 Cow. 628 ; Shipman v. Horton, 17 Conn. 481 ; Matthew-
son v. Johnson, 1 Hoff. Ch. 560. Though an infant may
not avoid his deed till of age, he may enter and take the
profits of the land. An infant must avoid his deed of
lands after arriving at age, within the period of limita-
tion for making an entry. Drake v. Ramsey, 5 Ohio, 251;
Cresinger v. Welsh, 15 Ohio, 193; but see Richardson v.
Boright, 9 Vt. 368 ; Holmes v. Blogg, 8 Taunt. 35 ; Kline v.
Beebe, 6 Conn. 494; Scott v. Buchanan, 11 Humph. 468; 2
Kent Com. 238; Hoyt v. Underbill, 9 N. H. 436; which hold
that he must do it, if at all, within a reasonable time after
arriving at age. Still other cases hold that in order to make
Sec. I.] SALE OF LANDS. 69
for a lengthened period over his rights, and comes
forward at last, when circumstances have changed in
his favor, to enforce a stale demand, {n) If the con-
tract of sale provides that immediate possession shall
be given to the purchaser, and possession is accord-
ingly taken by him, and the vendor afterwards evicts
him, the latter forfeits his right to a specific perfor-
mance. {0) If there is a mistake between the parties
as to what was sold, or as to the quantity sold, or the
price, the court will not interfere in favor of either of
them. (/) If there has been surprise on third parties
at a sale by auction, and they have been deterred from
bidding, or if the purchaser has made false statements
which have kept persons away from the sale, the
decree will not be granted in his favor ; {q) nor will it
(n) Lloyd v. CoIIett, 4 Bro. C. C. B. 524. Neap v. Abbott, Coop. Ch.
469. Alley V. Deschamps, 13 Ves. 225. Pr. 333. Malins v. Freeman, 2 Kee.
Southcomb v. Bishop of Exeter, 16 L. 25. Durham (Earl of) v. Legard, 34
J., Ch. 378. Colby v. Gadsen, 34 L. J., Ch. 589. Swaisland v. Dear.sley,
Beav. 416. Moore v. Marrable, L, R., 2q Beav. 430. Day v. Wells, 30 Beav.
I Ch. 217. 220.
{0) Knatchbull v. Grueber, 3 Mer. (q) Twining v. Morice, 2 Bro. C. C.
124. 330. Mortlock V. Buller, 10 Ves.
(/) Clowes V. Higginson, i Ves. & 305.
his contracts binding as such, the minor must affirm them after
coming of age, by some distinct act, with full knowledge that
it would not be binding without such confirmation. Curtin v.
Patton, II S. & R. 305 ; Thompson v. Lay, 4 Pick. 48 ; 2 Kent
Com. 8th ed. 239, n. ; Hoyle v. Stowe, 2 Dev. & Bat. 320. So
of a deed. Tucker v. Moreland, 10 Pet. 76.
See Houser v. Reynolds, i Hayw. 143, where an infant
told the grantee to keep the deed, and that he would not take
advantage of his infancy, upon coming of age. If an infant
receive rent after coming of age for land leased by him in his
minority, it is an affirmation of the lease. Cheshire v.
Barrett, 4 McCord, 241 ; Smith v. Low, i Atk. 489. Where an
infant vendor saw his vendee making extensive improvements
upon the land, and said that he had been paid and satisfied, it
was held a ratification. Wheaton v. East, 5 Yerg. 62.
■JO LAW OF CONTRACT. [Bk. II. Ch. I.
be granted in any case where there has been a misre-
presentation, fraud or deceit, or the plaintiff does not
appear before the court with " clean hands ; " {r) nor
where there has been a misapprehension by the de-
fendant to which the plaintiff has by his acts, even
unintentionally, contributed ; (^s) nor where a person
has been induced to sign an agreement whilst he was
in a state of complete intoxication ; (/) but, if the
defendant was only a little drunk, and knew what he
was about, and there was no fraud, the decree will be
made, {ti) Where owners of a colliery contracted to
purchase an estate without disclosing the fact that they
themselves had got coal from under it and were liable
for damages, the court declined to enforce the contract
in their favor, although they had agreed to give the
full value of the property, {v') If a person knowingly
contracts for the sale of an estate without a title, and
the owner offers to make the seller a title, yet the
court will not force the buyer to take it ; for every
seller ought to be a bona fide contractor ; (jy) but, if
the vendor has contracted bona fide in ignorance of
the defect of title, and procures a good title within
a reasonable time, and then calls upon the purchaser
to complete his contract, and the latter refuses, a decree
for specific performance will be granted against the
purchaser. {£) Extravagance, unreasonableness, or
inadequacy 6f price, form no ground in general, for
refusing the specific performance of a contract, unless
(»■) Cadman v. Horner, i8 Ves. lo. 590.
Clermont v. Tasburgh, I Jac. & Walk. (v) Philips v. Homphray, L. R. 6
120. Phillips V. Duke of Bucks, i Ch. 770.
Vern. 227. {y) Tendring v. I.oudon, 2 Eq. Cas.
(J-) Baskomb v. Beckwith, L. R., 8 Abr. 680.
Eq. 100 ; 38 L. J., Ch. 586. (z) Boehm v. "Wood, i Jac. & Walk.
(/) Cooke V. Clayworth, l8 Ves. 12. 421. Chamberlain v. Lee, 10 Sim. 444.
Say V. Barwick, I Ves. & B. 195. Eyston v. Simonds, I You. & C. C. C.
(«) Lightfoot V. Heron, 3 You. & C. 608.
Sec. I.] SALE OF LANDS. 71
" it is such as shocks the conscience and amounts in
itself to conclusive evidence of fraud in the transac-
tion." (a) But an exception is made in favor of heirs
dealing with their expectancies, and in the case of sales
of reversions by them, w^hich are closely scrutinized and
generally discountenanced. (^)
Specific performance w^ill also be decreed in favor
of a principal v^ho purchased through the medium of
an agent, although the agency vi^as not known or dis-
closed until after the contract had been signed, unless
there was some fraud or misrepresentation in the
matter, (c)
If the price to be paid for an estate is to be fixed
by a third party, there can, of course, be no action for
damages, or decree for specific performance, until the
price is fixed, (d^ Neither party can be compelled
to appoint an arbitrator to name the price ; (e) and, if
an arbitrator is actually appointed, the death of either
party before award made will revoke the submission,
(f) unless there be mutual covenants between the
parties for themselves and their heirs, executors, and
administrators, for the conveyance of the estate and
payment of the money to be awarded to the vendor.
( g) When the person who is to make the valuation
is named in the agreement for the sale, the court will
compel the vendor to permit the valuation to be made
(a) Coles V. Trecothick, 9 Ves. 246. (c) Hall v. Warren, 9 Ves. 605.
Eut see Baker v. Monk, 33 Beav. 419. (d) Wilks v. Davis, 3 Mer. 507.
(6) Sugd. Vend. I4lh ed. 276-287. Vickers v. Vickers, L. R., 4 Eq. 529 ;
See, however, the 31 Vict. c. 4, s. 2, by 36 L. J., Ch. 946.
which no purchase, &c., made bona (<■) Agar v. Macklevif, 2 Sim. & Stu.
fide, without fraud or unfair dealing, 418.
of any reversionary interest in real or (/) Blundell v. Brettargh, 17 Ves.
personal estate, is to be opened or set 232.
aside merely on the ground of under- (g) Belchier v. Reynolds, 2 Ken.
value. Ch. C. part 2, 87.
72 LAW OF CONTRACT. [Bk. II. Ch. L
according to the contract, (^h) If a party, having
power to revoke the authority given to the arbitrator
to name a price, exercises his power contrary to good
faith, the court will not give him any aid or assistance
in furtherance of his misconduct, (z) A revocation
of the submission after it has been made a rule of
court is a contempt. (/^) If an action is brought for
specific performance, and a valid contract of sale is
clearly established, the court will grant an injunction
to prevent either of the parties from doing any act
which may be injurious to the estate, such as cutting
down timber, removing boundaries, pulling down
buildings and walls, presenting to a living, &c. ; (/)
and the vendor will, in general, be restrained from re-
selling the estate and executing a conveyance of the
legal estate in the property to a third person, (m)
But, if the validity of the contract is brought into-
doubt, or there is good reason for thinking that a final
and concluded agreement had not been entered into,,
the court will decline to interfere by way of in-
junction.
Sales by trustees will not be enforced by the courts
if they are improvident sales. " If the trustee has.
been negligent, not taking that care to preserve the
interest of his cestui que trust which he ought to have
done, it will not permit the party dealing with him ta
take advantage of that negligence ; " for the court will
not enforce any contract involving a breach of trust,
(n) If trustees are authorized and empowered to sell
{h) Morse v. Merest, Mad. & Geld. 138. Nicholson v. Knapp, 9 Sim.
26. 326.
(i) Pope V. Lord Duncannon, 9 Sim. {m) Echlifif v. Baldwin, 16 Ves.
179- 267.
(/■) Harcourt v. Ramsbottom, i J. & («) Ord v. Noel, 5 Mad. 440.
W. 511. Thompson v. Blackstone, 6 Beav.
(/; Crockfnrd v. Alexander, 15 Ves. 472.
Sec. I.] SALE OF LANDS. 73
at the request of a tenant for life, the trustees have a
discretion which the court has no power or jurisdic-
tion to control ; and they can not, consequently, be
compelled to give effect to a contract entered into by
the tenant for life, without their concurrence, for the
sale of the estate, (o) If trustees, acting in the exer-
cise of a power of sale, make an agreement for the
sale of an estate, the contract binds the estate ; and„
though by subsequent events it can not be executed
under the power, yet it will be decreed to be specifi-
cally p>erformed by those who have acquired the in-
terest in the estate bound by the contract. (/) If an
agent, authorized to sell by public auction, sells by
private contract, a specific performance will not be
decreed against the principal, although the estate was
sold for a greater price than he required for it. (^)
An agreement by one of two joint tenants to sell his
share of the joint estate, amounts to a severance of
the joint tenancy ; and a specific performance of the
contract will be decreed as against the survivor, {r)
A married woman can not bind herself by a contract
to sell her property ; and, if a husband agrees to sell
his wife's lands, a specific performance can not be de-
creed against him. [s)
If, after making a contract of sale, the vendor has re-
sold the estate and executed a conveyance to the second
purchaser, and the latter has bought and accepted the
conveyance, and paid the purchase-money, in ignorance
of the first contract of sale, a specific performance of
such first contract will not be decreed. But, if the
second purchaser has bought with notice of the first
(o) Thomas v. Deling, i Keen, 729. (j) Emery -t. Wase, 8 Ves. 515.
(/) Mortlockv. BuUer, 10 Ves. 315. Martin v. Mitchell, 2 Jac. & Walk.
(q) Daniel v. Arfams, Ambl. 495. 425.
(r) Brown v. Raindle, 3 Ves. 257.
74 LAW OF CONTRACT. [Bk. II. Ch. I.
sale, the first purchaser is entitled to a decree for a
spcific performance against the vendor and the second
purchaser, the latter being considered to take subject
to the equity of the first purchaser to have the premises
conveyed to him at the price originally agreed upon. (/) '
If the vendor re-sells, without having any right in
equity so to do, he will be considered as a trustee for the
purchaser, re-selling the estate for the benefit of the
latter, and will be compelled to account to him for the
purchase money, (u) If the vendor is seized in fee or
pur autre vie, and dies before a conveyance is executed,
his heir-at-law will be decreed to perform the agreement
in specie, and will be compelled to execute a conveyance
of the estate, (x) although the purchase money is not
payable to him, but to the personal representatives of
the vendor. If the latter is only tenant in tail, his
agreement to sell can not be enforced in equity against
the issue in tail, although he may have entered into
the strongest covenants to that effect, and although a
decree for specific performance may have been ob-
tained against him in his life-time, and he may have
died in contempt and in prison for not obeying the
decree, and although he may have received part or
even the whole of the purchase money ; (jj/) for the
issue in tail claim per formam doni from the creator
of the estate tail, and not from the tenant in tail him-
self; and the court can not take away their rights by
title paramount. But, if the entail is barred by the
vendor in his life-time, and his estate is thus convert-
ed into a fee, then, as there are no issue in tail, a
(/) Daniels V. Davison, i7Ves. 433. 199.
(;<) Daniels v. Davison, 16 Ves. (jv) Fox v. Crane, 2 Vern. 306. Frank
255. V. Mainwaring, 6 Beav. 126. 3 & 4
(jt) Gell V. Vermedun, 2 Freem. Wm. 3, c. 74, a. 47.
' Glover V. Fisher, 11 111. 666.
Sec. I.J SALE OF LANDS.
75
specific performance will be decreed as against his
heir-at-law. By the 3 & 4 Wm. 4, c. 74, it*is provided
(s. 47) that, in cases of dispositions of lands by tenants
in tail under that Act, the jurisdiction of courts of
equity shall be altogether excluded in regard to speci-
fic performance and the supplying of defects in the
execution of the powers of disposition given to
tenants in tail by the Act, and that no disposition
thereof by a tenant in tail in equity shall be of any
force, unless such disposition would at law be an
effectual disposition under the Act. This provision,
therefore, prevents the court from treating a contract
or covenant to bar an estate tail as an actual bar of
the estate, and prohibits a decree for the specific per-
formance of any such contract as against the issue in
tail ; yet it does not prohibit the exercise of the old
power of enforcing a specific performance of a contract
against the tenant in tail himself. By the 1 1 Geo. 4
& I Wm. 4, c. 36, s. 15, the court itself may execute
the decree against a tenant in tail in custody for a
contempt, {z)
531. Payment of purchase money into court. — In
certain cases, where an action has been brought for a
specific performance, and the purchaser has been let
into possession of the property, the purchase money
will be ordered to be paid into court. This has been
done where an unexpected delay occurred in making
out the title, and the purchaser insisted on his right to
retain possession and receive the profits of the land
during the delay (a) — where the purchaser became
insolvent, and attempted to re-sell the estate (b) —
where the purchaser, after being let into possession
(z) Sugd. Vend., 14th ed., 205. (i) Hall v. Jenkinson, 2 Ves. & B.
{a) Gibson v. Clarke, i Ves. & B. 125.
500.
76 LAW OF CONTRACT. [Bk. II. Ch. L
dealt improperly with the land, cut down timber and
underwood, and opened and worked mines {c) — where
the title was accepted, and the purchaser made frivol-
ous objections, still keeping possession of the property.
In some cases where a purchaser retains possession^
and unexpected delay has occurred in the completion
of the title, an occupation rent has been fixed and de-
creed by the court, after deducting interest on the
deposit, (^) in others a receiver has been appointed,
(e) and in others the purchaser has been ordered to
give up possession or pay the purchase money into
court, (y)
532. Assignment of contract to purchase land. —
A vendor of land may receive the balance of the pur-
chase money, and convey the estate to the purchaser
without regard to the receipt of a notice that the pur-
chaser has agreed to assign the contract ; for the
vendor is not bound to see that the purchaser carries
out his agreement with the sub-vendee ; but it would
be otherwise if the vendor had notice that the contract
had been actually assigned, and that the sub-vendee
insisted on its being completed with him instead of
with the purchaser, (^g)
533. Invalid sales — Want of title in the vendor —
Eviction of the purchaser. — We have already seen
that, whilst a contract of sale remains executory, and
before a transfer or conveyance under seal has been
executed, a purchaser is entitled to recover any de-
posit he may have paid, if it turns out that the vendor
is unable from want of title to transfer the estate or
(<r) Cutler v. Simons, 2 Mer. 103. (e) Hall v. Jenkinson, 2 Ves. & B.
Buck V. Lodge, 18 Ves. 450. Pope v. 125.
Great Eastern Railway Company, 36 (/) Cilrling v. Austin, 2 Drew &
L. J. Ch. 5o. But see Robertshaw v. Sm. 129.
Bray, 35 L. J., Ch. 844. (g) Shaw v. Foster, L. R., 5 H. L.
i. J) Smith V. Jackson, i Macl.6lS. 321 ; 42 L., Ch. 49.
Sec. I.] SALE OF LANDS. yj
interest he has agreed to sell; and, if the whole
purchase money has been paid in advance, the whole
is recoverable. Thus, where a contract for the
sale and purchase of the residue of a term of one
thousand nine hundred years was entered into,
and' a deed of assignment of the lease prepared and
-executed by some of the vendors, and the purchase
money paid and possession given, but, before the deed
had been completely executed, it was discovered that
the vendors had no title to the lease, and the purchas-
■er was evicted, it was held that he was entitled to
recover the purchase money, as the vendors had never
transferred to him that which they had agreed to sell,
and he to buy. (^k) But if, after a deed of conveyance
has been executed, and the purchase money paid, it
appears that the vendor had no title and the purchaser
is evicted, the latter can not recover back the purchase
money, or obtain compensation for the damages he
has sustained, if the ordinary covenants for title are
not inserted in the deed, and it does not appear upon
the face of the conveyance that any particular estate
•or interest in the land was bargained for, and cove-
nanted or agreed to be sold. For the purchaser
might have protected himself by proper covenants for
title ; and if he has neglected to do so, he will be
deemed to have been content to take such estate or
interest in the land as the vendor actually possessed ;
:and, having got that, he has got all he bargained for,
(?) If he might, by a careful investigation of the
(h) Johnson v. Johnson, 3 B. & P. Wakeman v. Duchess of Rutland, 3
126. Farrer v. Nightingall, 2 Esp. Ves. 235. Browning v. Wright, 2 B. &
'639. Cripps V. Reade, 6 T. R. 666. P. 23. Thackeray v. Wood, 34 L. J.,
-Cod. lib. 8, tit. 45, lex. 5. Q. B. 226. Goodtitle v. Morgan, i T.
(i) Bree v. Holbech, 2 Doug. 655. R. 762. Roswell v. Vaughan. Cro.
Johnson v. Johnson, 3 B. & P. 170. Jac. 197. Chapman v. Speller. 14 Q.
'.Duke V. Barnett, 2 Coll, C. C. 337- B. 624 ; ig L. J., Q. B. 239. Delnu-r
78 LAW OF CONTRACT. [Bk. II. Ch. I.
title have discovered that he was buying another
man's property and not the estate of the vendor, he is
concluded by his own laches, unless there has been
actual fraud on the part of the vendor. (/&)
534. Qtialijied covenants for title. — If the vendor
by the conveyance transfers the premises so far as he
himself possesses them or can grant them, and cove-
nants that, notwithstanding any act done by him, he
hath in himself good right to grant and assure, &c.,
he limits his covenants for title to that which he
actually has, or but for his own act would have had to
convey, and does give a general and absolute warranty
of title. (/) So by the Scotch law, " When one sells
with warrandice from fact and deed, the intention is
not to sell the subject absolutely, which would be the
same as selling it with absolute warrandice, but only
to sell it so as the seller himself has it — that is, to sell
what title and interest he has in the subject. The
purchaser takes upon himself all other hazards ; and,
therefore, if eviction happen otherwise than through
the fact and deed of the disponer, he bears the
loss." {ni)
In the Roman law, if the vendor was not in the
actual possession of the subject-matter of the sale, and
was not clothed with the visible and apparent owner-
ship of it, but sold only a naked title or right to a
thing which was in the possession of a third party, it
was considered to be the duty of the purchaser to in-
quire into the title of the vendor before he entered
into the contract of sale. (?«) But, whenever a person
V. McCabe, 14 Ir. C, L. R. 377. Anon. B. 275 ; 34 L. J., Q. B. 226.
2 CW. C. ig. Maynard v. Moseley, 3 (ot) Craig v. Hopkins, 2 Collect.
Swanst.655. Decisions, 517, 518. Brown's Law of
{k) Anon., 2 Cli. C. ig. M.iynard v. Sale, 27g.
Mo^clcy, 3 Swanst. 655. («) The maxim, "Caveat emplor,
^/) Thackeray V. Wood, 33 L. J., Q. qui ignorari non dubuit quod jus
Sec. T.J SALE OF LANDS. 79
sold property of which he had the actual possession
and the visible and apparent ownership at the time of
sale, there was an implied warranty of title on the
part of the vendor ; and, if the purchaser was evicted,
he had a claim to restitution of the price and to com-
pensation for all the loss and damage he had sus-
tained by the eviction ; (0) and, in the case of sales
of hereditary estates, the heir was bound by the war-
ranty of his ancestor. (/) By the Code Napoleon,,
" although at the time of the sale no stipulation was
made respecting warranty, the seller is obliged by law
to warrant the purchaser against eviction and against
incumbrances not declared at the time of the sale."
{g) " In the Scotch law," observes Mr. Bell,,
"although there be no express stipulation of warran-
dice, there is an implied convention, where a full,
onerous consideration is given for the conveyance,
that the transference shall be effectual ; and this not
merely to the effect of restoring the consideration
given, but of indemnifying the grantee in all respects
for the loss, &c., in case of eviction." (r) In the
Roman law a formal stipulation was frequently super-
added to the contract of sale by the parties, binding
the vendor to defend the possession of the purchaser,
and in case of eviction to pay him double the amount
of the price, (s)
By the common law the words "give " or " grant "
alienura emit " (Hobart, gg, Broom's bus), lex 6. Dig. lib. 21, tit. 2, lex. i,
Maxims, 2nd edition), applies to the 60, 70.
question of title as between the pur- {p ) Cod. lib. 8, tit. 45, lex. 20.
chaser of property sold by a person Doraat, liv. i, tit. 2, s. 10, 6.
who had no right to sell it and the (?) Code Napoleon, liv. 3, s. 3.
true owner who claims it, rather than Pothier, Contract de Vent, No. 83 to
to the question of compensation as No. 233.
between [he vendor and his immediate {r) i Bell's Com. p. 644.
purchaser. (-f) Rig- lib. 2i, tit. 2, lex. 5.
(0) Cod. lib. 8, tit. 45 (De Evictioni-
So LAW OF CONTRACT. [Bk. II. Ch. I.
in a deed of feoffment, or any equivalent words pass-
ing the estate, raised an implied covenant on the part
of the grantor to warrant, and defend, and secure to
the grantee the estate or interest granted, which im-
plied covenant was annexed to the estate and ran
with the land, so that the right to take advantage of
it passed to the heirs and assigns of the grantee, who
might in case of eviction by title paramount, sue the
grantor upon the covenant. Now, however, by the
8 & 9 Vict. c. 1 06, s. 4, it is enacted, " that the word
' give ' or the word ' grant ' in a deed shall not imply
any covenant in law respect of any tenements or
hereditaments, except so far as the word ' give ' or the
word ' grant ' may, by force of any Act of Parliament,
imply a covenant." Consequently, if the purchaser of
an estate be evicted, he has no longer any remedy
against the grantor upon any implied covenant for
title or quiet enjoyment. But, if the deed of convey-
ance recites that the vendor is seized of an estate in
fee, and that he has agreed to sell such an estate, this
amounts to an express covenant that he is so seized,
and has a right to convey such an estate to the pur-
chaser ; (J) and, if he was not seized in fee, and no fee
in the lands passed by the conveyance, he would be
responsible in damages for a breach of covenant.
Where a man had bought his own estate in ignorance
of his title, and accepted a conveyance thereof, and
paid the purchase money, the vendor was compelled
to repay the amount ; " for, there being a plain mis-
take, the court can not suffer the vendor to run away
with the money in consideration of the sale of an
estate to which he had no right." (u) If a man, hav-
ing nothing at all to sell, bargains as if he had, and
(t) Severn •/. Clerk, I Leon 122. (a) Bingham v. Bingham, I Ves.
Bar oot v. FrSswell, 3 Ke 1. 4f 5. sen. 126.
Sec. l.J SALE OF LANDS. 8i
thereby prevails on another party to become a pur-
chaser and pay him money or give him a bond, that
is what is called a fraud in equity, although the vendor
might have thought at the time that he had something
to sell, {v) Therefore, " if I sell you a thing which,
without the knowledge of either of us, has ceased to
exist, there will be no contract." (jv)
If a vendor affirms that he is the owner of certain
property, believing what he says to be true, and so in-
duces another party to buy, an action for deceit will
not lie against him, if the purchaser was furnished with
the means of ascertaining for himself the truth or false-
ness of the representation. (£) The mere assertion by
a vendor that he has a good title, on the faith of which
the purchaser relies without investigation, is not neces-
sarily such a misrepresentation as will preclude the
vendor from enforcing the contract, where at the time
of making the representation, he was ignorant of the
c'efect in his title, (a) But, if the vendor knew at
the time that his title was defective, and kept back the
fact from the purchaser, this is a fraudulent conceal-
ment which avoids the contract ab initio, and entitles
the purchaser to recover back bis purchase money; ((5)
and in such a case the court will not allow him to
force the title upon the purchaser, although in the
conditions of sale he has employed general words large
enough to include the defect, (c) In every contract
of sale there is an implied undertaking or covenant,
according as the contract may or may not be under
(v) Hitchcock v. Giddings, 4 Pr. (a) Hume v. Pocock, L. ;R., I Ch.
141. 379 ; 35 L. J., Ch. 731.
(y) Cod. lib. 4, tit. 38. Domat. liv. (b) Edwards v. M'Leay, Coop. Ch.
I, tit. 2, s. lO, 24. Pothier, Obliga- 313 ; 2 Swanst. 287. Early v. Garrett,
TIONS, No. 6. Tayler v. Caldwell, 3 9 B. & C. g32.
B. & S. 837 ; 33 I,. J., Q. B. 164. (c) Edwards v. Wickwar, In re
z) Uoswel V. Vaughan, 2 Cro. 196. Erayne, 35 L. J. Ch. 48.
II.— 6
82 LAW OF CONTRACT. [Bic. II. Ch. I.
seal, that the vendor does not, at the time he assumes
to be the owner of the property and to have a right to
sell it, know that he is not the owner and has no right
to sell ; and if the knowledge of his want of title can
be brought home to him, there is a direct breach of
this implied undertaking or covenant, which will en-
able the purchaser to recover all the damages he has
sustained, (d) If an action is brought by a vendor
to compel a specific performance by a purchaser of a
contract of sale, and the purchaser pays the purchase
money without putting in an answer, and afterwards
discovers that he was deceived and defrauded by the
vendor, he is not precluded from bringing an action
against the latter and recovering damages, if he comes
speedily after discovering the fraud. (^)
535- Breach of covenants for title. — If, after the
purchase has been completed by the execution of the
conveyance and payment of the purchase money, it is
discovered that the vendor had no title to the estate
he professed to sell, and the purchaser is evicted, and
brings his action for a breach of the ordinary cove-
nants for title and quiet enjoyment, the measure of
damages will be the amount of purchase money paid
for the estate, and all incidental damages flowing from
the breach of contract, such as the costs and expenses
of preparing the conveyance and investigating the
title. If the breach has not been followed by any
eviction of the purchaser, the latter should wait until
the ultimate damage has been sustained by eviction ;
and he may then recover the whole amount of pur-
chase money paid, with interest, and his costs and ex-
penses ; but he can not do this so long as he has not
(a') Peto V. Blades, 5 Taunt. 457. ing v. Freeman, Styles 310. Warner
Furnis •!. Leicester, Cro. Jac. 474. v. Tallerd, i Rol. Abr. 91.
Crosse v. Gardner, Carth. 90. Hard- (<•) Jendwine v. Slade, 2 Esp. 572.
Sec. I.] SALE OF LANDS. 83
been disturbed in his possession and enjoyment of the
property. (/) " If," observes Domat, " the thing sold
is diminished in value by the effect of time, or from
other causes, so that it is worth less at the time of the
eviction than the price paid by the purchaser, the latter
is entitled to recover from the vendor only the dimin-
ished value as it existed at the time of the eviction ; for
it is only in that value that the purchaser's loss doth
consist. The diminution in value which preceded the
eviction regarded only the purchaser, who ought not
to be made a gainer by the eviction." (^g)
If, between the time of the execution of the con-
veyance and the period of eviction, the purchaser has
expended money upon the land in drainage, build-
ings, and improvements, he will not be allowed to re-
cover from the vendor the amount of capital so
expended, unless the latter has been guilty of a
downright fraud in the sale of the estate ; (/^)
neither could he by the common law recover the
money so expended from the party who evicted him ;
he sustained, therefore, in general, a dead loss of the
amount. But, in equity, if the land was known to
have been purchased for the erection of buildings, and
the purchaser was evicted after having expended
money in building, the purchaser had, in certain cases,
a claim upon the land for the amount of his expen-
diture. (?) In the civil law, the purchaser was en-
titled to be reimbursed the money he had expended
in improvements, and had a lien upon the estate for
the amount. If the vendor had been guilty of a fraud
(/) 2 Saund. 181, b. Shep. Touch. B. & Aid. 392. Worthingion v. War-
170. King V. Jones, 5 Taunt. 428. rington, 8 C. B. 134.
ig) Domat. liv. i, tit. 2, a. 10. (i) Bunny v. Hopkinson, 29 L. J.,
(h) Dallas, C. J., and Robertson, J., Ch. 93 ; 27 Beav. 565.
Lewis V. Campbell, 8 Taunt. 715 ; 3
84 LAW OF CONTRACT. [Bk. II. Ch. I.
in making the sale, and had knowingly sold the prop-
erty of another man, he was bound to make good to
the purchaser the capital expended by the latter ; but,
if there was no fraud in the case, and the vendor sold
under a mistake, it was considered that the expense of
the improvements ought to fall upon the person who
evicted, rather than upon the vendor ; (/&) and the
former consequently could not obtain possession of
the estate without paying the value of the improve-
ments. The vendor in this case had to idemnify the
purchaser according to what the estate would have
been worth at the time of the eviction, if it had not
been improved ; and the evicting party had to make
good the improvements, and was never allowed to
reap the profit of them. " In making an estimate of
these improvements,'' observes Domat, " we must set
the expense of making them against the profits the
purchaser has received from them, so that, if the
profits he has received equal the expenditure of the
principal and interest he laid out, there will be no
reimbursement due, it being enough for the purchaser
that he loses nothing. If the profits come short of
the expenditure, the purchaser will be entitled to the
difference." (/) If the purchaser has not been evicted,
but has entered into a fair compromise with the real
owner or party having title paramount, he will be en-
titled to recover the whole amount paid by way of
compromise, together with his costs and expenses, (m)
If an estate has been sold as freehold, with a general
(k) Si mihi allenam aream vendide- pertineat. Dig. Ijb. 19, tit. i, lex. 45,
ris, et in ea ego asdificavero, atque ita § i. Cod. lib. 8, tit. 45, lex. 16.
earn domisnus evincit ; nam quia (/) Domat. liv. i, tit. 12, s. 10. Poth.
po sum petentem dominum, nisi im- Vent. No. 133—135. Cod. lib. 8, tit.
p msam cedificiorum solvat, doli mali 45. i Bell's Comm. 645.
ixceptione summovere, magis est, ut (m) Smith v. Complon, 3 B. & Ad.
.-a res ad periculum venditoris nou 407.
Sfx. I.] SALE OF LANDS. 85
covenant that the vendor is seized in fee, and the
estate proves to be a copyhold estate, the measure of
damages will be the difference between the value of a
freehold and copyhold estate, (ti)
536. Non-payment of purchase money after the
execution of a conveyance. — If the conveyance expresses,
contrary to the fact, that the purchase money is paid,
though the legal estate passes, yet the purchaser will
not be permitted to possess and enjoy the estate for
his own use, benefit, and advantage, unless he pays
down the purchase money. {0)
537. Sale of pretenced titles. — By the 32 Hen. 8,
c. 9, s. 2, it is enacted that no person shall bargain for,
buy, or sell, or obtain, or grant, or covenant to have
any " pretenced rights or titles " of any person to any
manors, lands, tenements, &c„ unless the person bar-
gaining, selling or granting the same, or his ancestors,
or the parties through whom he claims, have been in
possession of the same, or the reversion or remainder
thereof, or taken the rents or profits thereof, for one
year next before the said bargain, sale, or grant. But
persons in possession of manors, lands, &c., and in
receipt of the rents and profits thereof, may buy (s. 4)
or acquire the pretenced title of other persons after-
wards to be made. " A pretenced right or title is
where one is in possession or receipt of the rents and
profits of lands, &c., as owner, and another that is out
of possession claims them." (/) A person, therefore,
who has been turned out of possession and deprived
of the rents and profits of land to which he is entitled,
has no saleable interest. He may enforce his right
through the medium of an action ; and, when he has
(«) Gray v. Briscoe, Noy's R. 142. (/ ) Partridge 1. Strange, Plowd.
(0) Winter v. Lord Anson, i Sim. & 88.
Stu. 444.
86 LAW OF CONTRACT. [Bk. II. Ch. I.
got possession of the land, he may then sell it ; but he
can not sell or transfer his right of action, {q)
538. Fraiidiilcnt concealment. — Avoiding sales of
realty. — Where a vendor, knowing that he has no
right or title to property, or being cognizant of the
existence of incumbrances or outgoings upon it, or of
latent defects materially lowering its value in the
market, sells it, and neglects to disclose such defects
to the purchaser, (r) there is a fraudulent concealment
vitiating the contract; and conditions of sale, not
drawn bona fide, but intended to cover difficulties
arising from such uncommunicated defects, will not
preclude the purchaser from objecting to them, {s)
So it is, where the vendor of a lease which becomes
forfeited if the premises are not put into repair after
notice, receives such notice, and then sells the prem-
ises in a dilapidated state without informing the pur-
chaser of the notice, {t) There may also be a fraudu-
lent concealment by a purchaser which will vitiate a
sale, as where a person having secret information of the
death of one of two tenants for life, went and purchased
the reversion without disclosing the fact to the rever-
sioners of whom he bought. (?/) But in a general sale
of an estate, if the vendor has said or done nothing to
throw the purchaser off his guard or to conceal a
patent defect, there is no fraudulent concealment on
the part of the vendor, {y) The purchaser has an op-
{q) Doe V. Evans, i C. B. 717 The (j) Jackson v. Whitehaad, 28 Beav.
32 Hen. 8, c. g, contains prohibitions 154. Hume v. Pocock, L. R., i Ch.
against maintenance, champerty, and 379 ; 35 L. J., Ch. 731.
emliracery. {t) Stevens v. Adamson, 2 Stark.
{r) Edwards v. M'Leay, 2 Swanst. 422.
287 ; Coop. Ch. G. 308 Peto v. (a) Turner v. Harvey, i Jac. R.
Blades, 5 Taunt. 657. Wilson v. Ful- 169.
ler, and Fuller v. Wilson, 3 C. B. 58, (v) Jones v. Bright, 3 Moo. & P.
68. Shirley v. Stratton, i Br. C. C. 175. F. N. B. 94 C.
440.
Sec. I.j SALE OF LANDS. 87
portunity ot inspecting and judging for himself; and
the principle of caveat emptor applies, (j)/) Where a
meadow is sold without any notice being given to the
purchaser of a public footway around the meadow and
another across it, there is no fraudulent concealment
■on the part of the vendor. " Certainly," observes the
Lord Chancellor, "the meadow is very much the
worse for a road going through it; but 1 can not help
the carelessness of a purchaser who does not choose to
inquire. It is not a latent defect", {/) So, Vi^here
property was sold which was represented as standing
on a fine vein of anthracite coal, it was held that it was
the business of the purchaser to inquire as to the
extent to which the coal had already been vs^orked.
{a) On the other hand, the purchaser may use his
own knowledge, and is not bound to give the vendor
information of the value of the property ; as, if an estate
is offered for sale, and I treat for it, knowing that
there is a mine under it, and the vendor makes no
inquiry, I am not bound to give him any information
of it. {b)
539. Sale with all faults^ or without allowance for
any defect or error. — If it be made a term of the con-
tract that the subject-matter of the sale is to be taken
with all faults, the term or stipulation will release the
vendor from the obligation of disclosing all such
defects as are susceptible of discovery by a rigid exam-
ination of the subject-matter of sale, if) Where the
vendor of a house, being conscious of a defect in the
main wall, plastered it up and papered it over for the
purpose of concealing it from the purchaser, it was
(/) Turner v. Harvey, I Jac. 178. {b) Turner v. Harvey, I Jac. 178.
<2) Bowles V. Round, 5 Ves. 509. {f) Pickering v. Dowson, 4 Taunt.
<a) Colby v. Gad,,den, 34 Beav. 416. 779.
88 LAW OF CONTRACT. [Bk. II. Ch. L
held that this was a direct fraud, which avoided the
contract of sale and enabled the purchaser to recover
back the purchase money, (a?)
540. Voluntary conveyances, gifts, and transfers
defrauding subsequent purchasers are made void by
the 27 Eliz., c. 4, s. 2, and penalties are imposed (s. 3)
upon all persons who are parties or privies to such con-
veyances, «&c. ; but any conveyance, lease, &c., made
bona fide upon good consideration, is not invalidated.
This statute is to a great extent declaratory only of
the common law, which inv^alidates every voluntary
conveyance or gift and voluntary settlement of propertj^
made without valuable consideration as against a sub-
sequent purchaser for value of the same property, even
though he had notice of the prior voluntary convey-
ance or settlement ; for, whenever the question is
between one who has paid a valuable consideration for
an estate and another who has given nothing for it, it
is a just presumption of law that such voluntary con-
veyance founded only on considerations of afFectiorv
and regard, if coupled with a subsequent sale, was
made to defraud those who should afterwards become
purchasers for a valuable consideration ; and it is more
fit that a voluntary grantee should be disappointed
than that a fair purchaser should be defrauded, (f)
If, therefore, after marriage, either the husband or wife,,
or both of them, make a conveyance of lands to the
use of themselves or their children, such conveyance
is absolutely null and void against a subsequent pur-
chaser for value. (/) But a deed can not be set aside
merely because it is a voluntary conveyance ; and one
(■</) Anon, cited by Gibbs, J., Pick- L. J., Exch. 113.
ering v. Dowson, 4 Taunt. 785. ( /) Goodriglit v. Moses, 2 W. BL
{e) Doe V. Manning, 9 East, 59. 1019. Eutteifield v. Heath, 22 L. J.,
Clai-ke V. Wright, 6 H. & N. 849 ; 30 Ch. 270.
Sec. I.]* SALE OF LA.VDS. 89
voluntary conveyance can not defeat another ; and it
has been held that, if there be two voluntary convey-
ances or gifts of land by deed, the first voluntary con-
veyance is not annulled by the second, and that a pur-
chaser from the second voluntary grantee or doaee
can not avoid the estate created by the first gift ; so
that, if a man makes a voluntary conveyance or gift
of land to A, and then devises the same land to B,
and B sells to C for value, C has no title to such land,
aad can not defeat the gift to A. (£■) A husband
acquiring an estate by marriage, or under a post-nup-
tial settlement not made in pursuance of articles en-
tered into before marriage, is not a purchaser within
the meaning of the statute, and is not entitled to
avoid a previous voluntary conveyance. (,^) In con-
sidering the operation of the statute, the court only
considers whether the transaction is one purely vol-
untary, or whether it is one of bargain, and the mere
quantum of consideration is not material. (?) Evi-
dence is admissible to show valuable consideration
beyond what appears on the face of the deed, (k) A
conveyance, though voluntary upon the face of it, and
at first void against a purchaser for value, may yet
become valid by force of subsequent events; (/)
and consequently a purchaser is not bound to take
a title with a voluntary settlement as a part of it,
but may decline to complete, and may recover his
deposit, {m)
54 1 . Fraudulent conveyances — Fictitious qualifica-
tions— Fictitious votes. — By the 7 & 8 Wm. 3, c. 25, s.
7, it is enacted, that all conveyances of any messuages^
(^•) Doe V. Rusham, 21 L. J., Q. B. 446 ; 35 L. J., Ch. 608.
I3g _ i6Jur. 359. {k") Townendv. Toker, supra.
(h) Douglas V. Ward, I Ch. C. gg. (/) Prodgers v. Langham, i Sid. 133.
Doe V. Lewis, 20 L. J., C. P. 180. {m) Clarice v. Willott, L. R., 7 Ex.
(i) Townend v. Toker, L, R., i Ch. 313 ; 41 L. J., Ex. I07.
90 LAW OF CONTRACT. [Bk. ll. Ch. I.
lands, tenements, &c., in order to multiply voices or
to split and divide the interest in any houses and lands
among several persons to enable them to vote at elec-
tions, shall be "void and of none effect;" and the lo
Anne, c. 23, s. i, enacts that all estates and convey-
ances made to any person in any fraudulent or collu-
sive manner on purpose to qualify him to give his
vote at elections (subject to conditions or agreements
to defeat or determine such estate, or to re-convey the
same), shall be deemed and taken, against those
persons who executed the same, as free and absolute,
and be holden and enjoyed by such persons, dis-
charged from all manner of trusts, conditions, clauses
of re-entry, powers of revocation, provisoes of redemp-
tion, or other defeasances whatsoever for defeating
such estates or for the re-conveying thereof A deed
may be void by statute, and yet it may not be com-
petent to the parties thereto to set up its invalidity ;
and it has been held that the true construction of
these two statutes is that, dealing only with the sub-
ject of parliamentary law, they prevent a man from
acquiring a right to vote vi^hich it was contrary to the
policy of the law he should acquire, but that they
leave the conveyance to operate upon the land freely
and absolutely in all other respects, (w) '
(«) Philpotts V. Philpotts, lo C. B. 85. Doe v. Roberts, 2 B. & Aid. 367.
' Says Dr. Washburn : " There is a class of conveyances
ot lands which, though formal in all respects, and effectual
between the parties, are, b}' the policy of the law or by statute,
held to be void to a certain extent. This embraces what are
known as fraudulent conveyances, where the intent of the par-
ties to the same is to defraud the creditors or the subsequent
purchasers of the grantor, by means of such conveyance. The
questions arising under this are usually referred to the statutes of
13 Eliz. ch. 5,and27 Eliz.ch. 4,though these are said to be in affir-
mance of the common law, and, in one form or the other, prevail
Sec. I.] SALE OF LANDS. 91
542. Conveyances and transfers constituting an
act of bankruptcy. — By the 32 & 33 Vict. c. 71, s. 6, a
fraudulent conveyance, gift, delivery, or transfer of his
all over the United States. The first of these statutes relates to
creditors, and provides, in general terms, that all conveyances
of lands intended to defraud or delaj' creditors, shall, as to such
creditors, be void. Story Eq. § 353-356; Sands v. Cadwise, 4
Johns. 536 ; Penneman v. Cole, 8 Met. 499. As to the ques-
tion in these cases depends upon the bona fides with which
the transaction takes place. A few general principles
jna}- be staled. In the first place, such conveyance, though
fraudulent, is, if otherwise sufficient, and for a valuable
consideration, valid as to all innocent purchasers not privy
tu the fraudulent intent. Thus, if a fraudulent grantee con-
veys the estate to a bona fide purchaser, for a valuable con-
sideration, the conveyance is good, and the first grant may
be purged of the fraud. Oriental Bank v. Haskins, 3 Met.
340; Jackson v. Henry, 10 Johns. 185 ; Somer v. Brewer, 2
Pick. 180; Clapp V. Torrell, 20 Pick, 247. So, though the
grantor makes the conveyance with a fraudulent intent, it will
not affect the validity of the transaction unless the grantee
was cognizant of his intent, or participated in it. Bridge v.
Eggleston, 14 Mass. 250; Harrison v. Trustees, &c., 12 Mass
462. And though the design be originally fraudulent, as to
creditors, and known to the grantee, so as to be void as to
creditors so long as the transactions had that character, yet it
may become valid by being purged of the fraud by matter ex
post facto, if the fraudulent intent is abandoned. Oriental
Bank v. Haskins, 3 Met. 340; Verplank v. Sterry, 12 Johns.
552; Sterry v. Arden, i Johns. Ch. 261. But if vendor and
vendee participate in the purpose of the vendor, to defraud or
delay creditors, by conveying his land, it will be void as to
such creditors, though a full and valuable consideration may
have been paid for the same. Story Eq. § 369 ; Wright v.
Brandis, i Ind. 336; Ruffing v. Tilton, 12 Ind. 260. In respect
to conveyances that are voluntary, that is, made without a
valuable consideration, the cases are not uniform. Such con-
veyances are not void as against subsequent creditors, where
no intent exists to defraud such creditors, seems to be admitted.
And while, as to previous creditors, different courts have ap-
plied different degrees of stringency in the rule, it may be laid
down as a general proposition that if such conveyance be
made to any person other than a child, it will be void as to
92 LAW OF CONTRACT. [Bk. II. Ch. L
property or any part thereof made by a debtor, is an
act of bankruptcy. It is not necessary that the as-
signment should be fraudulent, in the strict sense of
existing creditors, and when made to a child, or as a settlement
upon a wife, whether it shall be void or not depends upon the
condition of the grantor as to his ability to pay his debts out
of his remaining property at the time of its being made. And
it may be added that such voluntary conveyances are uniformly
recognized as valid between the parties and their representa-
tives. Sexton V. Wheaton, 8 Wheat. 229; Salmon v. Bennett,
I Conn. 525; I Am. Lead. Cases, 49-85; Doe v. Hurd, 7
Blackf 510; Bullitt v. Taylor, .^4 Miss. 708, 737, and cases
cited in the argument ; Story Eq. §§ 362, 364, 371 ; Reade v.
Livingston, 3 Johns. Ch. 500, 501 ; Hinde's Lessee v. Long-
worth, II Wheat. 199. See Washband v. Washband, 27 Conn.
424, for the distinction between an inadequate and no consid-
eration, in its effect where grantor owes existing debts; in the
former the deed will be good, unless made with a fraudulent
intent. Where the conveyance is made with an actual fraudu-
lent intent, it may be avoided by subsequent as well as previous
creditors. Parkman v. Welch, 19 Pick. 231. But see Bullitt
V. Taylor, 34 Miss. 740, 741. But that a voluntary conveyance,
made in good faith, will be good against a subsequent pur-
chaser with notice, seems to be the better rule of law, as now
prevailing in the United States, though held otherwise in Eng-
land. And it would not be good against a subsequent pur-
chaser without notice, if for a valuable consideration. Story
Eq. § 427; Cathcart v. Robinson, 5 Peters, 264, 280; Beal v.
Warren, 2 Gray, 447 ; Doe v. Rushan, 17 A. & E. N. S. 724;
Jackson v. Town, 4 Cow. 603 ; Sterry v. Arden, i Johns.
Ch. 261. Another class of conveyances which were good
at common law, have been declared fraudulent, by statute,
under the doctrine of modern bankrupt and insolvent laws,
and that is, conveyances intended to give undue preferences
to creditors, and to prevent an equal distribution of a bank-
rupt's assets among his creditors. Penniman v. Cole, 8 Met.
500. And it may be added that, though the deed be
voluntary, and fraudulent in its intent, it is, nevertheless,
valid and effectual against the grantor and his heirs. Jack-
son V. Garnsey, 16 Johns. 189. In Bunn v. Winthrop a
voluntary deed settling lands, in which the grantor had a
chattel interest, upon a natural daughter, was sustained in a
court of equity, although, after executing it, but without deliv-
Sec. I.] SALE OF LANDS.
93
the term, in order to make it an act of bankruptcy.
It is sufficient if the necessary effect of it is so to
cripple the resources of the trader as to produce in-
solvency, and deprive him of the present power of
satisfying his creditors. (<?) '
SECTION II.
OF ORDINARY CONTRACTS FOR THE BUYING AND SELL-
ING OF GOODS AND CHATTELS.
543. Of the title to goods and chattels. — The title
to goods and chattels does not rest upon title-deeds,
nor, in general, upon documentary evidence, but is
founded, prima facie, upon visible possession and ap-
parent ownership. (/) The mere possessor of goods
by finding is entitled to hold them as against every
person but the true owner,^ and can convey an inde-
feasible title by sale in market overt, and a good title,
(<j) Ante. (p) Hiern ■/. Mill, 13 Ves. 122 ; T.
R. 589, 750.
«ry, the grantor sealed it up with his will, and retained the
custody of it till his death. Bunn v. Winthrop, i Johns. Gh.
329; Souverbye V. Arden, i Johns. Ch. 255. And in respect to
•deeds obtained by duress or fraud at common law, if the party
so obtaining a deed, which is duly executed in matter of form,
convey the estate to a bona fide purchaser, ignorant of the
duress or fraud, for a valuable consideration, the latter will
hold the estate purged of such fraud or duress. Somes v.
Brewer, 2 Pick.' 184, 203; Worcester v, Eaton, 11 Mass. 379;
iDeputy v. Stapleford, 19 Cal. 302." Real Property, vol. ii.,
p. 592-
' See United States Bankruptcy Act, ante, vol. 1., p. 660,
aiote I.
' 2 Parsons on Contracts, 97.
94 Zy^fF OF CONTRACT. [Bk. II. Ch. I.
against everybody but the true owner, by sale not in
market overt. (^) '
But possession is only prima facie evidence of
title ; and no purchaser can be secure of a safe title to
the goods and chattels he buys, unless the purchase
has been effected in market overt, nor even then, if
the property he buys should happen to be stolen
property. He may purchase a horse, or he may
buy merchandise or furniture in the ordinary way of
trade from a party in possession thereof; but, if
the vendor was not the owner, and had no authority
from the owner to sell, the purchaser will have no
title whatever to the property he has bought as
against the true owner, (r) unless the vendor was a
(<7) Bridges v. Hawkesworth, 21 L. 311. Cooper v. Willomat, I C. B. 672^
J., Q. B. 75. Dyer v. Pearson, 3 B. & C. 38 ; 4 D.
if) Loeschman v. Machin, 2 Stark. & R. 648.
' We have no market overt in the United States (i Parsons
on Contracts, p. 520; Wheelwright v. Depeyster, i Johns.
479; Hosack V. Weaver, i Yeates, 478; Easton v. Worthing-
ton, 5 S. & R. 130 ; Lance v. Cowan, i Dana, 195 ; Ventress v.
Smith, 10 Pet. 161; McGrew v. Browder, 14 Mart. (La.) 17;
Roland v. Gundy, 5 Oliio. 202; Browning v. Magill, 2 Har.
&J.308; Dame v. Baldwin, 8 Mass. 518), but the original
owner may claim his property wherever he finds it, and take it
without any payment to the holder, any more than if the
holder were the thief himself (Id.). Even an auctioneer selling
stolen goods, and paying over the money to the tliief in good
faith; is liable in trover to the true owner of the goods. Hoff-
man V. Carrow, 22 Wend. 2S5). But if an owner is deceived
into parting with his property, he might claim it from the
taker, but if he voluntarily parts with it, he can not reclaim
it from one who in good faith buys it of the fraudulent party ;
even if the fraud amounted to felony. Caldwell v. Bartlett,
3 Duer, 341 ; Jennings v. Gage, 13 111. 610; Malcom v. Lov-
eridge, 13 Barb. 372; Keyser v. Harbeck, 3 Duer. 373.
Williams v. Given, 6 Gratt. 268; Titcomb v. Wood. 38
Me. 561 ; Smith v. Lynes, i Seld. 41; Sawyer v. Fisher, 32
Me. 28.
Sec. II.] SALE OF GOODS. 95
factor or agent for the sale of goods as presently
mentioned. By the French Code (art. 2279)
the mere possession of movables is equivalent ta
title in all cases excepting where property has been
lost or stolen ; and, as regards lost or stolen property,
it is provided (art. 2280) that the party who has lost
anything, or from whom it has been stolen, may reclaim
it within three years from the party in whose hands
he finds it, saving to the latter his remedy over against
the person from whom he obtained it; but, if the
actual possessor of the thing stolen or lost has pur-
chased it in a fair or market, or at a public sale, or
from a merchant who sells similar articles, the original
proprietor can only procure it to be restored to him
on repaying to the possessor the price which it cost
him.
By the common law the right of property in, and
the title to, goods and chattels may be transferred to
a purchaser, as we shall presently see, by a contract of
sale, without any delivery of the goods or payment of
the price, so that, after the bargain has been concluded^
the goods may become the property of the buyer, al-
though they still continue in the possession of the
vendor ; and, if the vendor sells them again by sale
not in market overt, and actually delivers them to a
second bona fide purchaser who pays him the price,
yet the latter will have no title to the goods as against
the first purchaser, although the first purchaser by
leaving the goods in the hands of the vendor enabled
him to commit the fraud, {s) By the civil law actual
tradition or delivery was essential to the transference
of the ownership of moveables ; and no right of prop-
erty passed to the purchaser until possession was given.
(s) Cooper V. Willomat, i C. B. 672.
96 LAW OF CONTRACT. [Bk. II. Ci-i. I.
As between the vendor and purchaser, the contract of
sale so far altered the situation of the parties that, from
the time of the making of it, the price became a debt
due to the vendor, and the thing sold (when the sale
was of an ascertained subject at an ascertained price)
remained at the risk of the purchaser ; but the con-
tract conveyed to the latter a mere jus ad rem, or
chose in action, and not the jus in re or right of
property, (^i) The vendor, so long as delivery had
not been made, preserved as between himself and
third parties the full dominion and ownership over
the thing sold.'
543. " Qui nondum rent emptor itradidit, adhuc
ipse dominus est." {u) — Consequently, whenever the
(t) Troplong(DelaVente), vol. i,p. («) Instit. lib. 3, tit. xxiv. § 3.
50, 4th ed.
' When the sale has been made but the goods have not
passed, the vendor has no special remedy growing out of the
relations of vendor and vendee : his remedies rather are the
ordinary ones for breach of contract, and the measure of
his damage the difference between the value of the goods at
the time when the contract is broken and the contract price.
Dana v. Fielden, 12 N. Y. 40 ; Gordon v. Norris, 49 N. H. 376 ;
Deming v. Grand Trunk Railway, 48 N. Y. 455 ; Clement &
Hawke M'f 'g. Co. v. Meserole, 107 Mass. 362 ; Smith v. Berry,
18 Maine, 122 ; Donald v. Hodge, 5 Hayw. 85 ; Bailey v. Clay,
4 Rand. 346 ; Wells v. Abernethy, 5 Conn. 222 ; West v.
Pritchard, 19 Id. 212 ; Connell v. M'Clean, 6 Harr. & J. 297 ;
Gilpins V. Consequa, Peters C. C. 85, 94 ; Willings v. Conse-
qua. Id. 172, 176; Shaw v. Nudd, 8 Pick. 9; Thompson v.
Alger, 12 Met. 428, 443; Quarles v. George, 23 Pick. 400;
Worthen v. Wilmot, 30 Vt. 555 ; Shepherd v. Hampton, 3
Wheat. 200, 204 ; Orr v. Bigelow, 14 N. Y. 556 ; Dey v. Dox,
9 Wend. 129; Davis v. Shields, 24 Id. 322; Stanton v. Small,
3 Sandf 230 ; Mallory v. Lord, 29 Barb. 454, 465 ; Pitcher v.
Livingston, 4 John. 15 ; Clark v. Pinney, 7 Cowen, 687 ; Gor-
don V. Norris, 49 N. H. 376; McHose v. Fulmar, 73 Pa. St.
3S5. And the question as to the market value is for the jury.
Smith V. Griffith, 3 Hill, 333; Blydenburg v. Welsh, i Bald-
Sec. II. J SALE OF GOODS. 97
same thing was sold by the same owner to two dif-
ferent individuals successively, he who was first put
into actual possession became the true owner.
545. Sale in market overt. — Our Saxon ancestors,
■were greatly opposed to all private and secret trans-
fers of property. By the laws of Athelstan all per-
sons were absolutely prohibited from buying and
selling goods out of the open public market ; and by
the ordinances of other Saxon kings, no bargain and
sale, or exchange of goods and chattels, was allowed
to be valid, unless it was made publicly at a fair or
market, or in the presence of two or more credible
witnesses, {x) Things purchased at shops in the city
of London in the ordinary way of trade have always
been considered to have been bought in market overt,
so as to exempt the purchaser from the obligation of
inquiring into the title of the shopkeeper to the goods
he sold, (j)/) But shops in country towns, although
openly and notoriously used as public places of pur-
chase and sale accessible to all comers, are not markets
(x) Ancient Laws and Institutes of of Macclesfield v. Chapman, 12 M. &
England, 14, 15, 87, go, 116, 117, 120, W. 18.
■ed. 1840. The Minor, u. i, ». 3. 2 {y) Godb. 131, pi. 148. 5 Co. 83, b.
Jnstit. 220. Mosley v. Walker, 9 D. Lyons v. De Pass, 11 Ad. & E. 326.
& R. 863 ; 7 B. & C. 54. Mayor, &c.,
win, 331, 340; Joy v. Hopkins, 5 Denio, 84; Furlong v. Pol-
leys 30 Maine, 493 ; Hanna v. Harter, 2 Pike, 397. In Fur-
long V. Polleys, 30 Me. 493, Shepley, C. J., held that "if it
appears that as goods of a kind like those sold could not be ob-
tained at the time and place of delivery, and that no market
price there existed, the party entitled to damages must, upon
principle, be allowed to ascertain the market price at the near-
est and most suitable place where the goods could have been
purchased, and the difference between the market value there
at the time, and the price paid, adding the necessary cost of
their transportation to the place of delivery, would be the
measure of damages."
98 LAW OF CONTRACT. [Bk. II. Ch. L
overt for the sale of the goods and commodities ordi-
narily sold or exposed for sale therein, (z)
A wharf in the city of London is not a market
overt like a shop; (a) and a shop in London is not a
market overt for the sale of any other commodities
than those which are customarily bought and sold
therein. (J>) And the distinction must be observed
between a sale over the counter to a customer of
things exposed in a shop for sale, and a sale to the
shopkeeper himself of things bought by him to be
added to his stock-in-trade. The one may be a sale
in market overt, but not so the other. If a servant,
for example, steals his master's books, and goes and
sells them to a bookseller in the city of London, the
sale to the bookseller is not a sale in market overt,
and the bookseller would acquire no right to the
books as against the true owner from whom they had
been stolen; (c) but, if after the books have been
added to the bookseller's stock-in-trade, and exposed
for sale in his shop in the city, they are purchased
bona fide by a customer in the ordinary way of trade,
the purchase would be a purchase in market ' overt,
which would change the ownership and give the pur-
chaser a title to the books, defeasible only on the
conviction of the thief So, if the hirer of household
furniture takes it to a furniture-broker, and sells it,
and receives the money, the sale does not alter the
ownership, or give the broker any right to detain the
(z) Prior of Dunstable's case, ii 6S. The Bishop of Worcester's case.
Hen. 6, ig, pi. 13; 25 pi. 2 ; 2 F. Moore, 360. Clifton v. Chancellor,
Brownl. 28S. Harris v. Shaw, Cas. ib. 624 ; 5 Co. 83 b.
temp. Hardw. 349. Anon., 112 Mod. (ir) White v. Spettigue, 13 M. & W.
521. Lee V. Bayes, 18 C. B. 601. 603. Crane v. London Dock Com-
{a) Wilkinson v. King, 2 Campb. pany, 5 B. & S. 313 ; 33 L. J., Q. B.
335. 224.
(p) Taylor v. Chambers Cro. Jac,
Sec. II.j SALE OF GOODS. 99
furniture from th& owner who has let it out on hire ;
{d) but, if the furniture is brought into a furniture-
broker's shop in the city, and exposed for sale, and is
then bought by a customer in the ordinary way of
trade, the right of property is altered, and the owner
can not follow the subject-matter of the sale into the
hands of such second purchaser. His remedy is either
against the party to whom he let out the goods, and
who is responsible for the breach of trust, (e) or
against the furniture-broker who bought from him.
(y) The goods, moreover, must be corporeally pre-
sent in the shop of the vendor at the time of the sale,
so that a sale by sample or a sale of goods to be
afterwards manufactured and sent from the manufac-
tory to the residence of the purchaser without ever
having been in the shop, is not a sale in market
overt. ( g)
546. Sale of stolen horses, goods, etc., in market
overt — Right of restitution. — At common law the
ownership or right of property in goods sold in mar-
ket overt was changed permanently by the sale ; and
the purchaser acquired an indefeasible title against all
the world : but, formerly by the 21 Hen. 8, c. 11, and
the 7 & 8 Geo. 4, c. 29, and now by the 24 & 25 Vict,
c. 96, s. 100, the property in all chattels which have
been stolen reverts, on conviction of the thief, to the
original owner from whom they were stolen, so as to
entitle him to maintain an action against the purchaser
for the goods, or the value of them, without obtaining
an order of restitution, {fi) The statutes 2 & 3 Ph
{d) Cooper v. Willomat, i C. B. 672. (^) Crane v. London Dock Com
Loeschman v. Machin, 2 Stark. 311. pany, 5 B. & S. 313 ; 33 L- J-. Q- B.
{i) 18 Ed. 4, 23, pi. 5. 5 Hen. 7, 224. Hill v. Smith, 4 Taunt. 520.
I-_ pi, 5, (h) Scattergood v. Sylvester. 15 Q.
(/) Peer v. Humphrey, 2 Ad. & E. B. 510 ; 19 L. J., Q. B., 447. And see
495-
the 30 & 31 Vict. c. 35, ». g.
loo LAW OF CONTRACT. [Bk. II. Ch. I.
& M. c. 7, and 31 Eliz. c. 12, provide for the sale of
horses in markets and fairs, and impose " sundry good
ordinances touching the manner of selling and tolling
horses for the purpose of repressing or avoiding horse-
stealing." They prevent the property in any stolen
horse from being altered by sale in market overt ijntil
six months have elapsed from the time of the sale,
and enable the owner at any time afterwards to re-
cover the horse on payment of the price to the pur-
chaser. The names and addresses of all the parties to
contracts for the sale of horses are to be entered in
the toll-gatherer's book, together with the price of the
horse, its color, marks, etc. ; and, if the requisites of
the Acts, as regards these and other particulars, are not
complied with, the sale is void, (z)
547. Sale Old of market overt. — The rule of law,
that a person from whom goods have been stolen can
not bring an action against the thief for damages until
after he has prosecuted him for felon)^ does not pre-
vent him from recovering from a third innocent person
property which has been stolen from him and sold to
the latter out of market overt, {k) It is said to be a
general rule of the common law, that a vendee out of
market overt can not acquire a better title than his
vendor. There are, however, some important excep-
tions to this rule. Where, for example, a man obtains
possession of goods through the medium of a preten-
ded contract of sale, buying the goods and paving for
them by a cheque on a bank where he has no funds,
or by a fictitious bill of exchange, he himself has no
title to the goods after they have been demanded back
by the vendor ; but, if he re-sells thera and delivers
(«■) Gibb's case, Owen, 27. P. 249. White v. Spettigue, 13 M. &
(/■) Lee V. Bayes, 18 C. B. 602 ; S. W. 605. Stone v. Marsh, 6 B. & C.
C. Himi. Lee v. Robinson, 25 L. J., C. 551.
Sfx. II.] SALE OF GOODS.
lOI
them into the hands of a bona fide purchaser, before
the vendor interferes to recover posession of them,
the title of such bona fide purchaser can not be
defeated. (/) If, however, the party selling the goods
obtained possession of them through the medium of
false pretenses, and not by virtue of a contract of sale,
the purchaser will have no title to the goods as against
the true owner, (nt)
If several joint owners of goods and chattels per-
mit one of them alone to have the possession of the
joint property, and the one so trusted with the pos-
session sells to a bona fide purchaser, the latter will
acquire a good title as against them all. (n) If, too,
the owner of goods has intrusted another with the
possession of them, or with documentary evidence of
title to them, for purposes of sale, and the party so
intrusted has sold contrary to the express directions
of the owner, the purchaser will nevertheless acquire a
complete and perfect title by the sale. If the owner
of goods stands by and voluntarily allows another to
deal with the goods as if he were the owner, and there-
by induces some third party to purchase them, he
can not afterwards, though he acted under a mistake,
claim them from such thirdparty. (o)^ But he may,
in general, claim the price of them, if such price has
not previously been paid over to the immediate ven-
(/) White V. Garden, lo C. B. gig ; {n) Morgan v. Marquis, 23 L. J.
20 L. J., C. P. I67. Pease v. Gloahec, Ex. 21.
L. R., I P. C. 2ig. W) Pickering v. Busk, 15 East, 43.
(in) Kingsford v. Merry, I H. & N. Gregg v. Wells, 10 Ad. & E. go. Wal-
515 ; 26 L. J., Ex. 83. ler v. Drakeford, 22 L. J., Q. B. 275.
' See Western Transportation Co. v. Marshall, 37 Barb.
509 ; Saltus V. Everett, zo Wend. 267 ; Crocker v. Crocker, 31
N. Y. 507; Labdell v. Baker, 1 Met. 202; Wooster v. Sher-
wood, 25 N. Y. 278.
I02 LAW OF CONTRACT. [Bk. II. Ch. I.
dor and apparent owner. (/>') ' If goods are deposited
in thie hands of a warehouseman or wharfinger, and
the owner sells them, and hands to the purchaser a
delivery order or dock-warrant for their delivery, which
is accepted by such warehouseman or wharfinger, and
the purchaser then re-sells the goods, the original
vendor can not prevent the delivery of the goods to
the sub-purchaser, although the first purchaser has be-
come bankrupt without paying the price. (^) Hav-
ing been a party to the creation of the title of the
sub-vendor, he is bound by the re-sale.
548. Sales by factors and agents. — By the 6 Geo.
4, c. 94, s. 4, it is enacted, that it shall be lawful for
any person to contract with an agent intrusted with
goods, or to whom the same may be consigned for
sale, for the purchase of such goods, and to receive
the same of, and pay for the same to, such agent ; and
such contract or payment shall be binding upon and
good against the owner, notwithstanding the person
dealing with the agent knew at the time that he was
only an agent. But the contract and payment must
be made in the usual course of business ; and the
party must not be aware of any want of authority on
the part of the agent to sell or to receive the purchase-
money.
549. Legal authentication of executory contracts
for the sale of goods and chattels. — We have already
seen that, by the seventeenth section of the Statute
{p) Dickenson v. Naul, 4 B. & Ad. {q) Hawes v. Watson, 4 D. & R.
638. Allen V. Hopkins, 13 M. & W. 22. Wuodley v. Coventry, 2 H. & C.
94. As to intrusting documents of 164 ; 32 L. J., Ex. 1S5. Knights v.
title to factors and agents, s^efost, Wiffen, L. R., 5 Q. B. 660; 40 L. J.,
ch. 5, s. 3, Factors Acts. Q. B. 51.
' See remarks as to this rule in Benjamin on Sales, ist
American Edition, § 64c.
Sec. II.] SALE OF GOODS.
103
of Frauds, it is enacted that no contract for the sale
of any goods, wares, and merchandise, for the price
of ten pounds sterling or upwards, shall be allowed
to be good, except the buyer shall accept part of the
goods so sold, and actually receive the same, or give
something in earnest to bind the bargain or in part
payment, or unless some note or memorandum in
writing of the bargain be made and signed by the
parties to be charged by such contract or their agents
thereunto lawfully authorized.'
' Ante, vol. i, § 207. References to the Statutes of Frauds
as re-enacted in the states, will be found in a note to page 332,
•of vol. I. " Earnest " is now generally understood as meaning
■a part payment of the purchase money, under and to satisfy
the statute. Howe v. Hayward, 108 Mass. 54. Earnest must
be either money or money's worth. Brown, Statute of Frauds,
§ 341 ; Artcher v. Zeh, 5 Hill, N. Y. 200. The earnest must
not only be given, but accepted by the vendor. Edgerton v.
Hodge, 41 Vt. 676, Hicks v. Cleveland, 48 N. Y. 84; Hawley
V. Keeler, 53 Id. 115; or his agent, Id. The part payment
must be actual and not merely an agreement or condition to
pay. Brabin v. Hyde, 32 N. Y. 519; Matticev. Allen, 3 Keyes,
492 ; Teed v. Teed, 44 Barb. 96. The part payment need not
be made at the time of the sale. Sprague v. Blake, 20 Wend.
61 ; Thompson v. Alger, 12 Met. 435 ; Davis v. Moore, 13
Maine, 424; Gault v. Brown, 48 N. H. 183, !%<).• But see
Hawley v. Keeler, 53 N. Y. 114 ; Bissell v. Balcom, 39 Id. 275.
Nor can the part payment be made by merely crediting the
amount against another indebtedness of the vendor to the
purchaser. Such a transaction is merely a contract, if any-
thing, to pursue that mode of payment, and will have no
•effect under the statute. Clark v. Tucker, 2 Sandf. 157; Gil-
man V. Hill, 36 N. H. 319; Brabin v. Hyde, 32 N. Y. 519;
Mattice v. Allen, 3 Keyes, 492. But it may be different in
case of a promise by the purchaser to pay the price to a cred-
itor of the vendor, which promise, if accepted by the creditor,
who thereupon discharges the vendor, maybe such apart pay-
ment as will satisfy the statute. Cotterill v. Stevens, 10 Wis.
422. Or the part payment may consist of a settlement for,
and an actual transfer of the title to, property previously de-
livered by the purchaser to the vendor. Dow v. Worthen, 37
Vt. 108.
104 LAIV OF CONTRACT. [Rk. II. Cii. I
550. Requisites of the memorandum of the
contract. — We have already seen that the note
or memorandum of the bargain should disclose the
names of the vendor and purchaser, or their
agents (r) ' the thing sold, and the price to be paid,
if the price was fixed and agreed upon at the time of
the making of the contract ; {s) ^ but, if no price vi^as
(y) Ante. 583 ; 8 D. & R. 343. Goodman v.
(j) Elmore v. Kingscote, 5 B. & C. Griffiths, ante.
' See note * to page 187 of Morgan's De Colyar on Guar-
anty, as to this rule in the case of the 4th section of the
statute.
^ That is to say, apparently, that a distinction is to be made
between the contract itself and a memorandum of the con-
tract; the contract may be made at one time, and the memo-
randum at a subsequent time. Indeed, the statute presupposes
a parol contract which may be proved by parol, while the
memorandum may be supplied by letters or other documents,
written at certain times after the contract, and referring to it..
Marsh v. Hyde, 3 Gray, 333 ; Gale v. Nixon, 6 Cow. 445 ;
Williams V. Bacon, 2 Gray, 387; Lerned v. Wannemacher, 9.
Allen, 412; Davis v. Shield, 26 Wend. 341; Coddington v.
Goddard, 16 Gray, 436; Ide v. Staunton, 15 Vt. 690; Webster
V. Lielly, 52 Barb. 482; Davis v. Moore, 13 Me. 424; Hunter
V. Giddings, 97 Mass. 41 ; Jonness v. Mount Hope Iron Co.^
53 Me. 20; Dana v. Hancock, 30 Vt. 66. But the writings
must be attached or connected by their internal evidence ;
parol evidence can not be admitted for the purpose. Kurtz
v. Cummings, 24 Penn. St. 25 ; Adams v. McMillan, 7 Porter,,
73 ; Moale v. Buchanan, 11 Gill & J. 314; Williams v. Bacon,
2 Gray, 391 ; Johnson v. Buck, 6 Vroom (N. J.) 344 ; Knox v.
King, 36 Ala. 367 ; Freeport v. Bartol, 3 Greenl. 340 ; Morton-
v. Dean, 13 Met. 385 ; Lerned v. Wannemacher, 9 Allen, 417 ;
Smith V. Arnold, 5 Mason, 416 ; O'Donnell v. Leeman, 43,
Me. 158; Fowler V. Rendican, 52 111. 405. Nor to vary the
terms expressed in the writing. Reed v. Jones, 8 Wis. 392 ;.
Peers v. Davis, 8 Jones (29 Mo.) 184. But parol evidence is
admissible to identify the subject-matter. Miller v. Stevens,.
105 Mass. 518; Pike V. Fay, loi Id. 134; Stoops v. Smith, loa
Id. 63 ; Swett V. Shumway, 102 Id. 367 ; Hart v. Hammett, 18
Vt. 127; George v. Joy, 19 N. II. 544; Gray v. Harper, 1
Sec. II.] SALE OF GOODS. 105
positively and definitely fixed and agreed upon, the
note or memorandum will be sufficient without any
statement of price, and the law will infer that a reason-
able price was to be paid, {t) Any note or entry in
a book or ledger, or any letter, {u) acknowledging the
fact of the sale, mentioning the name of the vendor
and the thing sold, and signed by the purchaser or his
agent, will take the case out of the statute, although
it subsequently contains a repudiation of the bargain
on bad and insufficient grounds, (x) The contract
may also be authenticated and established through the
medium of bills of parcels, entries in books, letters, and
separate writings, provided they refer to each other
and to the same persons and things, and manifestly
relate to the same contract and transaction. (_j/) Where
divers articles ordered by the defendant were entered
in the plaintiflF's order-book, and the defendant wrote
his name at the foot of the entry, it was held that the
entry and signature of the defendant might be taken
in connection with an entry of the plaintiff's name in
(/) Hoadley v. Maclaine, 4 M. & (x) Bailey v. Sweeting, 9 C. B. N.
Sc. 340; 10 Bing. 482. Joyce v. S. S43 ; 30 L. J., C. P. 150. McCleam
Swaon, 17 C. B. N. S. 103. Acebal v. Nicolle, 9 W. R. 811. Newell v.
V. Levy, 4 M. & Sc. 217, 227, 229. Radford, L. R., 3 C. P. 52 ; 37 L. J.,
Valby V. Gibson, 4 C. B. 864 ; 16 L. C. P. I.
J., C. P. 248. iy) Saunderson v. Jackson, 2 B. &
(«) Buxton V. Rust, L. R., 7 Ex. P. 238. Allen v. Bennett, 3 Taunt
279 ; 41 L. J., Ex. 173. 169.
«
Story, 574; Hill v. Rewee, 11 Met. 268; Foley v. Mason, 6
Md. 37 ; Swett v. Shumvvay, 102 Mass. 365 ; Noyes v. Can-
field, 27 Vt. 29; Rhoades v. Castner, 12 Allen, 130; Dana v.
Fielder, 2 Kernan, 40. See Morgan's De Colyar on Guaranty,
ch. 3, " What is a sufficient Memorandum in writing to Satisfy
the Requirements of the Statute." And see a note to p. 179
of that chapter, as to the rules in the different States, as to
the expression of the consideration in the memorandum, as
required or dispensed with under the fourth section of the
statute.
io6 LAW OF CONTRACT. [Bic. II. Ch. I,
the book showing the book to be his book, so as to
establish the requisite written memorandum of the
contract, (z) ' Where goods were sold by auction to
(z) Sail V. Bourdillon, i C. B. N. S. 195 ; 26 L. J., C. P. 78-
' The signature is to be by the party to be charged, and
maybe in pencil; Clason v. Bailey, 14 Johns. 484; Draper
V. Patcina, 2 Speare, 292 ; McDowell v. Chambers, i Strobh.
{Eq.) 347 ; Merritt v. Classon, 12 Johns. 102 ; or stamped upon
the paper, or by mark, see Meehan v. Rowke, 2 Bradf. 385 ;
Campbell v. Logan, Id. 90 ; Morris v. Kniffin, 37 Barb. 336 ;
Barnard v. Heydrick, 49 Id. 62 ; or by initials ; Sanborn v.
Flager, 9 Allen, 574; Palmer v. Stephens, i Den. 471. The
Christian name may be set out at length, expressed by ini-
tials, or left out altogether. Morgan's De Colyaron Guaranty,
p. 205 ; Boardman v. Spooner, 13 Allen, 353 ; and see ante,
vol. I, § 215 ; or printed, Salmon Falls M'f g. Co. v. Goddard,
14 How. 456; Merritt v. Clas'Son, 12 Johns. 102; 14 Id. 484,
per (Tij/z/ra, Zacrisson v. Poppe, 3 Bosw, 171; and maybe in
an unusual place, as at the beginning, or in the body of the
paper; Coddington v. Goddard, 16 Gray, 444; Battens v.
Sellers, 5 Har. & J. 117; Fessenden v. Mussey, 11 Cush. 127;
Penniman v. Hartshorn, 13 Mass. 87 ; M'Comb v. Wright,
4 Johns. Ch. 663 ; Anderson v. Harold, 10 Ohio, 339; Argen-
bright V. Campbell, 3 H. & Munf 144, 198 ; Higdon v. Thomas,
I H. & Gill, 139 ; Hawkins v. Chace, 19 Pick. 502. Though in
some of the states the statute used the words " subscribed,"
and in these, it is said, the signature must appear at the end.
See Davis v. Shields, 23 Wend. 322 ; 26 Id. 341 ; Vielie v. Os-
good, 8 Barb. 130. The statute maybe satisfied by an indorse-
ment of the defendant's name on a mere draft of the agree-
ment. Morgan's De Colyar on Guaranty, p. 205. And the
contract made by the signature is good or not, at the election
of the party who has not signed. M'Farson's Appeal, 11
Penn. St. 503; De Cordova v. Smith, 9 Texas, 129; Lansing
V. Cole, 3 Green Ch. 229 ; Young v. Paul, 2 Stockt. Ch. 402 ;
Ide v. Stanton, 15 Vt. 687 ; Shirley v. Shirley, 7 Blackf. 452;
Barstow v. Gray, 3 Greenl. 509; Old Colony R. R. Co. v.
Evans, 6 Gray, 25; Hawkins v. Chace, 19 Pick. 502; Penni-
man V. Hartshorn, 13 Mass. 87 ; Getchell v. Jewett, 4 Greenl.
350 ; Douglass v. Spears, i Nott & McC. 207 ; Adams v.
McMillan, 7 Port. 73 ; Ballard v. Walker, 3 Johns. Cas. 60 ;
Justice V. Lang, 52 N. Y. 323; The Same, 42 Id 494; Hig-
don v. Thomas, 1 Harr. & G, 139 ; Clason v. Bailey, 14 Johns.
Sec. II.] SALE OF LANDS. 107
an agent acting on behalf of an undisclosed principal,
and the auctioneer wrote the initials of the agent's name,
together with the prices, opposite the lots purchased
by him, in the printed catalogue, it was held that the
entry in the catalogue and a letter afterwards written
by the principal to the agent, recognizing the purchase,
might be coupled together to constitute and establish
the requisite written memorandum of the contract. («) '
(a) Phillimore v. Barry, i Campb. 513. Gibson v. Holland, L. R., i C.
P. i; 35L.J., C. P. 5.
387 ; Dresel v. Jordan, 104 Mass. 412 ; Hunter v. Giddings, 97
Mass. 41; Newby v. Rogers, 40 Ind. 9; Smith v. Smith, 8
Blackf. 208 ; Cook v. Anderson, 20 Ind. 15 ; Davis v. Shields,
26 Wend. 340 ; Lent v. Padelford, 10 Mass. 236.
' Signature by an agent has been elsewhere treated [Ante,
vol. i. §§ 57, 215). The American decisions holding that an
auctioneer at a public sale, is the agent of both parties, to sign
memoranda, are numerous. Harvey v. Stevens, 43 Vt. 655,
656 ; Brent v. Green, 6 Leigh, 16 ; White v. Crew, 16 Geo.
416; Anderson v. Chick, i Bailey Eq. 118; Adams v. M'Mil-
lan, 7 Porter, 72; Smith v. Arnold, 5 Mason, 414; Hart v.
Woods, 7 Blackf. 568; Jenkins v. Hogg, 2 Const. Ct. Rep.
S20 ; Bent v. Cobb, 9 Gray, 397 ; Gordon v. Sims, 2 McCord
Ch. 164; Pugh v. Chesseldine, u Ohio, 109; Burke v. Haley,
2 Gilm. 614; M'Comb v. Wright, 4 Johns. Ch. 659; Johnson
V. Buck, 6 Vroom (N. J.) 338, 342 ; Hathaway, J., in Pike v.
Balch, 38 Maine, 302, 311; Morton v. Dean, 13 Met. 388;
Cleaves v. Foss, 4 Greenl. i. But the memorandum must be
made and completed at the time of the sale. Horton v. Mc-
Carty, 53 Maine, 394; Gill v. Bicknell, 2 Cush. 355; Alna v.
Plummer, 4 Greenl. 258; O'Donnell v. Leeman, 43 Maine,
158, 160; Smith V. Arnold, 5 Mason, 414 ; Horton v. McCarty,
53 Maine, 394. The auctioneer is the agent for the purchaser
from the moment the hammer falls ; up to that time he is only
the seller's agent, and may retract the bargain, as may the
purchaser. Benjamin on Sales, ist Am. Ed. § 270. After the
sale is over, he is agent for the seller only, as before, Horton
V. McCarty, 53 Me. 394. Or the auctioneer's clerk may sign
these memoranda with the above effect. Smith v. Jones, 7
Leigh, 165. See Smith v. McGregory, 34 N. H. 414, 418, 419 \
Alnav. Plummer, 4 Greenl. 458; Meadows v. Meadows, 3
io8 LAW OF CONTRACT. [Bk. II.Ch. L
And, where a buyer wrote to the seller, " I give you
notice that the corn you delivered to me, in part per-
formance of my contract with you for one hundred
sacks of good English seconds flour, at 45s. per sack,
is so bad that I can not make it into saleable bread,"
and the seller replied, " I have your letter or notice of
the 24th September, in reply to which I have to state
that I consider I have performed my contract as far
as it has gone," it was held that the first letter and the
answer might be coupled together and incorporated,
and were sufficient evidence in writing to satisfy the
terms of the Statute of Frauds, and enable the buyer
to sue the seller for the non-delivery of an article cor-
responding with that mentioned in the buyer's,
letter. (6)
But, if there is any material discrepancy between
the letters and entries — if they describe the quality
and quantity of the thing sold differently, or vary in
the statement of the terms of the contract, and do not
recognize the same contract and refer to the same
transaction — they will fail in establishing the bargain.
(^) Where the entry and the letter referred to differ-
ent contracts, the one being evidence of an absolute
(6) Jackson v. Lowe, 7 Moore, 2ig, (c) Smith v. Surman, 9 B, & C. 561,
228 ; I Bing. g. 569.
McCord, 457 ; Gill v. Bicknell, 2 Cush. 558 ; Cathcart v. Keir-
naghan, 5 Strobh. 129; Johnson v. Buck, 6 Vroom, 338, 342,
343. There is another party who may sometimes affix the
signature and thereby make a valid contract, viz., a telegraph
operator. See ante, vol. i, note i, § 22 ; Taylor v. Steamboat
Robert Campbell, 20 Mo. 254; Durkee v. Vermont Central R.
R., 29 Vt. 127; Henkel v. Pape, L. R. 6 Exch. 7 ; Leonard v.
N. Y. &c. Tel. Co., 41 N. Y. 544; Beach v. Raritan &c. R. R.
Co., 37 Id. 457; Rommel v. Wingate, 103 Mass. 327. Similar
rules determine whether a contract has been made by letter.
Ante, vol. i, § 22, note i, and Trevor v. Wood, 36 N. Y. 307;
Story on Contracts, § 498.
Sec. II.J SALE OF GOODS. 109
and unconditional contract of sale, and the other of a
•qualified and conditional bargain, it was held that the
plaintiff could not avail himself of the letter for one
purpose — to bind the defendant within the statute —
and renounce it for another purpose, but that he must
take it altogether ; and then it was no recognition, but
a repudiation, of the contract sought to be established
by the entry, {d) But, if the letter acknowledges the
essential particulars of the contract, and then repudiates
it on bad or insufficient grounds, there will, as we have
;seen, be a good memorandum of the bargain, {e)
551- Brokers' bought and sold notes. — When sales
are efiected through the medium of brokers acting be-
tween the parties buying and selling, the broker is the
agent of both parties, and as such may bind them by
signing the same contract on behalf of buyer and seller.'
But, where the broker delivers notes of the contract
materially diflFering in their terms, and there is no signed
■entry in the broker's books to cure the discrepancy,
there is no proof of the assent of the parties to the
same terms, and no valid bargain between them. (/")
It is the duty, but not always the practice, of brokers
,to make a memorandum of the contract in their
books, ^ to sign such memorandum, and to transcribe
therefrom the bought and sold notes. If these notes
{d) Cooper v. Smith, 15 East, 103, 337. Gregson v. Ruck, 4 Q. B. 747.
108. Ilichards v. Porter, 6 B. & C. Thornton v. Kempster, 5 Taunt. 786,
437. Archer v. Baynes, 5 Exch. 625 ; 788. But an unimportant or immate-
20 L. J., Ex. 55. rial variation will not avoid the bar-
(e) Ante. gain. Maclean v. Dunn, i Moo. & P.
(/) Grant v. Fletcher, 5 B. & C. 773. 779.
.437. Heyman v. Neale, 2 Campb.
' See Shaw v-. Finney, 13 Met. 453 ; Coddington v. God-
dard, 16 Gray, 442 ; Henckley v. Arey, 27 Me. 362 ; Merritt v.
Clason, 12 Johns. 102 ; Davis v. Shields, 26 Wend. 341 ; Suy-
rdam V. Clark, 2 Sandf. 133 ; Toomer v. Dawson, i Cheves, 68.
" Coddington v. Goddard, 16 Gray, 442.
no LAW OF CONTRACT. [Bk. II. Ch. L
are signed by the broker and agree, but differ from an
unsigned entry in the book, the notes constitute the
contract. If they agree, but differ from a signed entry,
and the signed notes so agreeing have been received
and adopted by the vendor and purchaser, they will,
it seems, constitute a new contract in substitution and
extinguishment of the contract evidenced by the signed
entry, (^g) If they differ from each other, and one of
them agrees with the signed entry, the entry and note
agreeing with it may, it seems, be taken together as con-
stituting the contract, to the exclusion of the other
note. ' " A broker has only a special authority, not a
(g) Thornton v. Charles, 9 M. & & K. 22. Goom v. Aflalo, 9 D. & R-
W. 807, 808. Sievewright V. Archi- 148; 6 B. & C. 117. Thornton v.
bald, 17 Q. B. 103 ; 20 L. J., Q. B. Meux, i Mood. & Malk. 43.
535. Townend v. Drakeford, i Car.
' The broker is the agent of both parties. M'Comb v.
Wright, 4 Johns. Ch. 659; Morton v. Dean, 13 Met. 385;,
Adams v. McMillan, 7 Port. 73 ; Meadows v. Meadows, 3
M'Cord, 458; Doty v. Wilder, 15 III. 407 ; Cleaves v. Foss, 4
Greenl. i; Alna v. Plummer, Id. 248; Anderson v. Chick,
Bailey Eq. 118. But if the bought and sold notes vary, and
there is no signed entry in the broker's book, nor other writ-
ing, showing the terms of the bargain, there is no valid con-
tract between the parties. Benjamin on Sales, ist Am. Ed.
§ 301, and see Suydam v. Clark, 2 Sandf 133; Parsons on
Contracts, vol. i, p. 543. The bought note is addressed to the
purchaser, notifying him that the broker has this day bought
for him, &c. ; the sold note is a similar statement addressed to
the vendor ; each describes the goods, terms, &c. ; and the signed
entry in the broker's own books must be simultaneously made
by him to satisfy the statute of frauds. Cabot v. Winsor, r
Allen, 546. Parsons on Contracts, vol. i, p. 543, says that the
bought and sold notes are the best evidence of the bargain.
" Where the contract is made through the agency of two
brokers, one acting for the vendor and the other for the pur-
chaser, and the sold note given by the purchaser's to the
vendor's broker, states that the sale is made on account of the
latter, instead of his principal, the vendor may nevertheless
treat the contract as his own, and enforce it upon the terms of
the sold note."
Sec. II.] SALE OF GOODS. in
general one ; and, if you employ a broker to buy one
kind of goods, and he buys another, you are not bound
by his act." {h) In an action by the purchaser against
the vendor on a contract made through a broker, it is
sufficient for the purchaser to produce the bought note
handed to him by the broker, and to show the employ-
ment of the latter by the vendor. If the sold note
varies from the bought note, it lies on the vendor to
prove that variance by producing the sold note, (z)
So, if the action be brought against the purchaser for not
accepting goods sold, the sold note bearing the signa-
ture of the broker acting for both buyer and seller is
a sufficient memorandum of the bargain, (^k) An ap-
parent variance between bought and sold notes may
be explained by mercantile usage. (/) Letters consti-
tuting a sufficient contract to satisfy the Statute of
Frauds are not abrogated and annulled by bought and
sold notes differing from them, unless it plainly appears
that the notes were to constitute the contract to the
exclusion of the letters, {m)
552. When the broker is himself liable ttpon the
contract. — -A usage of trade to the effect that, when-
ever a broker purchases or sells for his principal with-
out disclosing the name of such principal, the broker
himself is liable to be looked to as purchaser or
seller, may be given in evidence to fix the broker on
the contract, {n)
{h) Pitts V. Beckett, 13 M. & W. Kempson v. Boyle, 3 H. & C. 763 ; 34
743. 747- Bostock v. Jardine, 34 L. L. J., Ex. 191.
J., Ex. 142. im) Heyworth v. Knight, 17 C. B.,
(t) Hawes v. Forster, i Mood. & N. S. 298 ; 33 L. J., C. P. 298.
Rob. 368. (k) Humfiey v. Dale, 27 L. J., Q.
(k) Parton v. Crofts, 16 C. B., N. S. B. 390. Fleet v. Murton. L. R., 7 Q.
II ; 33 L. J., C. P. 189. B. 126 ; 41 L. J., Q. B. 49.
(/) Bold V. Rayner, i M. & W. 343.
' See Raymond V. Proprietors, &c., 2 Met. 319; Winsor v.
Griggs, 2 Cush. 210 ; Taintor v. Prendergast, 3 Hill, 72.
M2 LAW OF CONTRACT. [Bk. II. Ch. I.
553- Of the signature to the memorandum. — The
<3uestion as to what is and what is not a signing of a
■contract so as to meet the requirements of the Statute
•of Frauds has already been considered. '
554, Acceptance and actual receipt of goods with-
in the Statute of Frauds, — We have already seen
that " no contract for the sale of goods for the price
of ^10 or upwards is good, unless the buyer has ac-
cepted part of the goods sold and actually received
the same, or given something in earnest," &c.^ The
acceptance of the goods may be either before or at
the time of the receipt of them. Thus, if the pur-
chaser selects the goods himself, and orders them to
be sent to his residence or place of business, and the
-selected goods are sent and delivered to him or his
servant, at the place indicated by him, there is evi-
dence of an acceptance and an actual receipt of the
goods within the meaning of the statute. {0) If there
has been an acceptance and an actual receipt of the
thing only for an instant, the purchaser is bound by
the bargain, and can not afterwards withdraw his ac-
ceptance and reject the article, except on the ground
of fraud. Thus, where the purchaser selected some
sheep from the plaintiff's flock, and had them sent
down to his own residence, and there counted them
over, and said, " It is all right," and then sent them
into his field, and the day after refused to keep them
saying they were not the sheep he bought, it was
held that there was evidence for the jury of an ac-
ceptance of the sheep, and that, if the defendant had
(d) Cusack v. Robinson, i B. & S. v. Ogden, 3 H. & C. 717 ; 34 L. J.,
299 ; 30 L. J., Q. B., 261. Hodgson Ex. 159.
V. Le Bret, I Campb. 233. Kershaw
' Ante, vol. i, § 214, and note i.
' Ante, vol. i, § 207.
•Sec. II.] SALE OF GOODS. 113
once really accepted them, his rejection of them after-
^vards would be of no avail. (/>) * The acceptance
must be made with the consent of the vendor ; and
if, after goods are delivered to a carrier consigned to
the vendee, and before any order has been given, or
act done constituting an acceptance of the goods, the
contract is rescinded, no subsequent act by the ven-
dee or by his assignees in the event of his bankruptcy
will amount to an acceptance, so as to change the
property in the goods, without the consent of the
vendor. (^) "
To constitute an actual receipt as well as an ac-
ceptance of the goods, it must appear that the vendor
has parted with the possession of the goods, and
placed them under the control of the purchaser, so as
to put a complete end to all the rights of the unpaid
vendor as such, (r) " Although, therefore, goods are
(/) Saunders v. Topp, 4 Exch. ton v. Lancashire Railway Company,
-390; iS L. J., Ex. 374. L. R., I C. P. 431 ; 35 L. J., C. P.
(ij) Smith V. Hudson, 34 L. J., Q. 137.
C 145 ; 6 B. & S. 431. And see Bol- (r) Cusack v. Robinson, supra.
' Gibbs V. Benjamin, 45 Vt. 124. The question is not
-whether he ought to have accepted them, or whether his rea-
sons are frivolous, but whether he actually has accepted them.
There may be an acceptance without a receipt. Prescott v.
Lockee, 51 N. H. 94.
' A carrier is an agent to receive, not an agent to accept.
Maxwell v. Brown, 39 Me, 98; Frostburg Mining Co. v.
New England Glass Co., 9 Cush. 115 ; Rodgers v. Phillips, 40
N. ¥.519.
' These acts need not be simultaneous; Bush v. Holmes, 53
31e. 417 ; Sprague v. Blake, 20 Wend. 61 ; McCarty v. Nash, 14
Minn. 127 ; Marsh v. Hyde, 3 Gray, 331 ; Damon v. Osborn, i
Pick. 480 ; Davis v. Moore, 13 Me. 437 ; McKnight v. Dunlop, i
Seld. 537 ; Richardson v. Squires, 37 Vt. 640 ; Danforth v.
Walker, Id. 239; Vincent v. Germond, 11 Johns. 283;
Sale V. Darragh, 2 Hilt. 184; Thompson v. Alger, 12 Met.
435 ; Chapin V. Potter, i Hilt. 360; but the intention to do
this must be clear ; Brand v. Fockt, 3 Keyes, 409 ; Marsh v.
II.— 8
114 LAW OF CONTRACT. [Bk. II. Ch. I.
selected by a purchaser, and ordered to be sent to the
residence of the latter, yet, if the purchaser refuses to-
take them in when they arrive, or the vendor gives the
Rouse, 44 N. Y. 643; Dole v. Stimpson, 21 Pick. 384; Shep-
herd V. Pressey, 32 N. H. 49; Shindler v. Houston, i Comst.
261; Young V. Blaisdell, 60 Me. 272; Gray v. Davis, 10 N.
Y. 285; Messer V. Woodman, 22 N. H. 172, 182; something-
more than mere words is necessary ; Shindler v. Houston, i
Comst. 261 ; Dole v. Stimpson, 21 Pick. 384; Artcher v. Zeh,
5 Hill, 205 ; Denny v. Williams, 5 Allen, 3 ; Howard v. Bor-
den, 13 Id. 299; Edwards v. Grand Trunk Railway Co., 54.
Me. in; Brabin v. Hyde, 32 N. Y. 519; mere words
which are part of the original contract, or employed as to its
carrying out, and not iatended as an acceptance, are not suffi-
cient ; Shepherd v. Pressey, 32 N. H. 49. In Maxwell v. Brown^
39 Me. 101, Appleton, Ch. J., holds that there must further be
an acceptance and receipt by the purchaser, else he will not
be bound ; and to that effect, see Boardman v. Spooner, 13
Allen, 357; Prescott v. Locke, 51 N. H. 94; Denny v. Wil-
liams, 5 Allen, 3 ; Shindler v. Houston, i Comst. 261 ; Gibbs
V. Benjamin, 45 Vt. 124, 130, 131 ; Johnson v. Cuttle, 105
Mass. 449. The question as to whether the facts of the case
amount to a constructive, acceptance is for the jury; Frost-
burg Mining Co. v. New England Glass Co., 9 Cush. 118;
Borrowscale v. Bosworth, 99 Mass. 381 ; Rappleye v. Adee, 6^^
Barb. 589; Sawyer v. Nichols, 40 Me. 212; Kirb)- v. John-
son, 22 Miss. 465; Bailey V. Ogden, 3 Johns. 399, 420; Parker
v. Wallis, 5 E. & B. 21 ; but if the facts are not in dispute, it
has been held that the court may instruct the jury as tO'
whether or not they constitute an acceptance; Shepherd v.
Pressey, 32 N. H. 56, 57. "It is for the court to withhold
the facts from the jury when they are not such as can afford
any ground for finding an acceptance ; and this includes cases
where, though the court might admit that there was a scintilla
of evidence tending to show an acceptance, they would still
feel bound to set aside a verdict finding an acceptance on
that evidence." Browne, St. Frauds, § 321; Denny v.
Williams, 5 Allen, 5 ; Howard v. Borden, 13 Id. 299 ; and
see Prescott v. Locke, 51 N. H. 94; Snow v. Warner, 10 Met.
136 ; Chapman, J., in Denny v. Williams, 5 Allen, 3; Dole v.
Stimpson, 21 Pick. 384; Boynton v. Veazie, 24 Me. 286;
Gibson V. Stevens, 8 How. (U. S.) 384; Carver v. Lane, 4 E.
D. Smith (N. Y.) 168; Snow v. Warner, 10 Met. 132.
Sec. II.] * SALE OF GOODS. 115
person carrying the goods directions not to leave
them without receiving the money, and no money is
forthcoming, and the goods are not left, there is no
actual receipt of them by the purchaser, (s)
555. Receipt for inspection and approval. — When
the specific articles have not been selected by the
purchaser, there is no acceptance until he has had an
opportunity of exercising his judgment with respect
to the things sent ; for he can not be made the accep-
tor of whatever the vendor chooses to send him. (J)
If, therefore, an intended purchaser merely receives
the article on examination or trial, and returns it
within • a reasonable period, there is no acceptance. '
And, if a small quantity, but no more of it than was
absolutely necessary, has been experimented upon for
the purpose of testing its quality, such user does not
constitute an acceptance and receipt of the entire
commodity, {iiy If a purchaser sends his servant for
(j) Baldey v. Parker, 2 B. & C. 37 ; («) Heilbut y. Hickson, L. R., 7 C.
3 D. & R. 220. P. 438 ; 41 L. J., C. P. 228.
{t) Hunt V. Hecht, 8 Exch. 817.
' In sales on trial, a failure to return the goods within the
time specified, makes the sale absolute ; Johnson v. McLane,
7 Blackf. 501 ; Aiken v. Hyde, 95 Mass. 183 ; Hartford v.
Sorghum Mfg. Cp., 43 Vt. 528; or within a reasonable time;
Moore v. Piercey, i Jones (L.) 131 ; Hunt v. Wyman, 100
Mass. 198 ; BufFum v. Merry, 3 Mason, 478 ; Ray v. Thomp-
son, 12 Cush. 281; Jameson v. Gregory, 4 Met. (Ky.) 363;
Chamberlain v. Smith, 44 Penn. St. 431 ; Witherby v. Sleeper,
loi Mass. 138; Sargent v. Gile, 8 N. H. 325; Porter v.
Pettengill, 12 N. H. 300; Hurd v. West, 7 Cow. 752;
Washington v. Jones, 7 Humph. 468 ; Johnson v. McLane, 7
Blackf 501 ; Buswell v. Bicknell, 7 Me. 344 ; Perkins v.
Douglass, 20 Me. 317; Holbrook v. Armstrong, i Fairf
31 ; Walker v. Blake, 37 Me. 373 ; Crocker v. GuUifer, 44
Me. 491 ; Schlesinger v. Stratton, 9 R. J. 478.
' But see the ruling in Smith v. Love, 64 N. C. 439. If
in the trial a portion of the goods are consumed, or used so
ii6 LAW OF CONTRACT. '[Bk. II. Ch. I.
goods, and, after they have been brought to him,
sends them back, there is no acceptance and receipt.
And the delivery of the goods into the hands of the
intended purchaser, and the unpacking of them by
the latter, are not sufficient, if it appears that he has
taken them and had them in his possession for no
greater time than would reasonably suffice for him to
examine the quantity and quality of the goods, and
declare his approval or disapproval thereof (x)
Where the defendant gave an oral order for a bale
of sponge, which was sent to him in the country by
carrier, and the sponge was returned, accompanied
by a letter from the defendant saying he had sent it
back as he did not think it worth the price charged,
it was held that there had been no acceptance and
receipt of the sponge. ( jj/) Where a pair of ear-rings
at a sale by auction were knocked down to the de-
fendant, and delivered into his hands, but in a few
minutes he handed them back and declined the pur-
chase, on the ground that he had been mistaken in
the value of the stones with which they were set, it
was held that, as by the conditions of sale the defen-
dant had no right to remove the ear-rings until the
deposit was paid, the mere delivery of them into his
hands the moment he was declared the purchaser, was
not of itself evidence of an intention to part entirely
with the possession of them, and that consequently
there was not a complete delivery nor an acceptance
and actual receipt, (z) And, where the purchaser,
tx) Curtis V. Pugh, lo Q. B. iii ; (;/) Kent v. Huskisson, 3 B. & P.
16 L. J. (N. S.), Q. B. 199. Jordan 233, 235.
V. Norton, 4 M. & W. 155. Lucy v. («) Phillips v. Bistolli, 3 D. &. R.
Mouflet, 5 H. & N. 233 ; 29 L. J., Ex. 822 ; 2 B. & C. 511.
no.
as to make them second-hand, the question as to a fair trial
is one for the jury. Benjamin on Sales, Am. Ed. § 596.
Sec. II.] SALE OF GOODS. 117
having inspected a heap of mixed bones, orally agreed
to purchase a quantity of ox-bones and cow-bones,
to be separated from the heap and sent to a place of
deposit indicated by him, and the bones were for-
warded there, and the purchaser went and inspected
them, and then gave the vendor notice that he did
not intend to take them, it was held that there was no
acceptance and actual receipt of the bones by the
purchaser, (a) But acceptance may be inferred from
the goods having been kept an unreasonable time, {b')
556. Acceptance and receipt where goods have
been purchased by a bailee. — Whenever goods are in
the hands of a hirer or bailee of them, and an oral bar-
gain is made by him for the purchase of the goods,
and the purchaser then takes to the goods as such
and changes the character in which he holds them, it
is an acceptance as against him, and there will be a
binding contract for the purchase of the goods ; but, if
the parol authority to take to the goods as owner, re-
sulting from the oral bargain with the vendor, has
been revoked, and the vendor has withdrawn from
the bargain, a subsequent taking to the goods by
the buyer is unauthorized and tortious, and can not
be an acceptance, which to bind the bargain must be
with the assent of the vendor, (c)
557. Delivery at a named wharf ox at a railway-
station pursuant to the verbal order of the purchaser,
is no evidence of an acceptance and actual receipt
within the statute, {d^
(a) Hunt V. Hecht, 8 Exch. 814. Rob. 168.
Coombs V. Bristol and Exeter Rail- (<r) Taylor v. Wakefield, 6 Ell. & Bl.
way Company, 27 L. J., Ex. 402. 769.
Smith V. Hudson, 6 B. & S. 431 ; 34 (d) Hart v. Bush, 27 L. J., Q. B.
L. J., Q. B. 145. 271. Smith v. Hudson, 34 L. J., Q.
(/') Coleman v. Gibson, i Mood. & B. I45-
ii8 LAW OF CONTRACT. [Bk. II. Ch. I.
558. Constructive acceptance. — There may be a
constructive acceptance, within the meaning of the
statute, manifested by the exercise of acts of domina-
tion and ownership over things incapable of manual
occupation and transfer from hand to hand, {e) If
the purchaser sells, or offers to sell, the chattel, or
deals with it in a manner which is inconsistent with
the right of property and possession being in any one
else but himself, his conduct affords evidence of an
acceptance and actual receipt of the thing. (/") But
it has been held that, so long as the vendor retains
his right of lien for the price over the whole com-
modity sold, there can be no such acceptance and re-
ceipt as the statute requires. Thus, where the de-
fendant, being on a visit at the plaintiff's house, orally
agreed to purchase a horse of him for forty-five
guineas, and the horse was taken out of the stable by
his orders, and was mounted, galloped, and leaped
both by himself and servant, and was afterwards
cleaned by the latter, and various things were done to
the animal by the defendant's directions, and the de-
fendant then asked the plaintiff to keep the horse for
him until he could send for it, and the horse died be-
fore it was fetched away, whereupon the defendant
refused to pay the price, it was held that there had been
no acceptance and receipt of the horse within the
meaning of the statute, the plaintiff never having
parted with the possession or control of the horse, or
lost his lien for the price, ( g) So where the defend-
(f) Williams, J., Bushel v. Wheeler, tie v. Sworder, 6 H. & N. 832 ; 30 L.
15 Q. B. 445. Beaumont v. Biengeri, J., Ex. 310.
5 C. B. 301. Parker v. Wallis, 5 Ell. (g) Tempest v. Fitzgerald, 3 B. &
6 Bl. 28. Currie v. Anderson, 2 Ell. Aid. 684. Carter v. Toussaint, 5 B. &
& Ell. 592 ; 29 L. J., Q. B. 87. Aid. 855. As to feeding of cattle by
(f) Morton v. Tibbett, 15 Q. B. the purchaser's servant, see Holmes v.
428 ; 19 L. J., Q. B., 382. Edan v. Hoskins, 23 Law T. R., Ex. 70.
Dudfield, 1 Q. B. 302. But see Ca.,-
Sec. II.] SALE OF GOODS. 119
ant ordered the plaintiff to make him a wagon, and,
whilst it was in progress of construction, the defend-
ant employed and paid a smith to furnish and affix
certain ironwork thereon, and also a tiltmaker to put
■on a tilt, but the wagon still remained on the prem-
ises of the plaintiff, it was held that, as the acts relied
on as acts of ownership were performed before the
wagon was finished and capable of delivery, and the
wagon afterwards remained on the plaintiff's prem-
ises to be finished by him, and the latter retained
his lien upon it for the price, there had been no ac-
ceptance and receipt within the , meaning of the
statute, (/i) ' Where the defendant came to a cop-
pice where some ash trees were being cut down, and
agreed to purchase the timber at so much a foot, and
the trees were marked and numbered, and the defend-
ant gave some directions to the workmen as to the
mode in which they were to be cut, and the timber
was measured, and the measurement communicated
to the defendant, who then offered to sell the butts of
the trees, declaring it to be his intention to convert
the tops into building stuff, it was held that this was
no acceptance and receipt of the timber by the defend-
ant within the meaning of the statute, as the vendor
had not lost his right of lien over it for the price, (z) '^
(h) Maberley v. Sheppard, 3 M. & 577 ; 4 M. & R. 455, 470. Acraman
Sc. 436 ; 10 Bing. gg. v. Morrice, 8 C. B. 449. Bill v-. Ba-
(i) Smith V. Suiman, g B. & C. 561, ment, g M. & W. 40, 41.
' See Arnold V.Delano, 4 Cush. 38; South-western Freight
Co. V. Stanard, 44 Mo. 71 ; South-western, &c. Co. v. Plant,
45 Id. 517.
" And so where the goods at the time of the sale are in
the possession of a third person, such a delivery as will
•extinguish a vendor's lien would ensue upon the vendor, the
purchaser, and the third person, agreeing that the third per-
son shall cease to hold the goods for the vendor, and retain
custody of them as the agent of the buyer. See Weld v. Came,
120 LAW OF CONTRACT. [Bk. II. Cii. L
559- Constructive possession by the purchaser and
extinction of the right of lien. — Possession of goods
and chattels may be given up, and the right of lien
extinguished, although the goods are never actually
removed from the premises of the vendor ; (/&) and
it has been held that, if an oral bargain is made for
the purchase of goods, and the purchaser desires the
vendor to keep them in his possession for an especial
purpose, and the vendor assents thereto, there may be:
(k) Jacobs V. Latour, 2 Moo. & P. 205. Martin v. Reid, u C. B., N. S.
730; 31 L. J., C. P. 126.
98 Mass. 152; Plymouth Bank v. Bank of Norfolk, 10 Pick_
459 ; Tuxworth v. Moore, 9 Pick. 349 ; Bullard v. Wait, i6-
Gray, 55 ; Linton v. Butts, 7 Barr. 89; Parks v. Hall, 2 Pick.
212 ; Hall V. Jackson, 20 Id. 198. The following cases as to-
constructive delivery are presented, as covering a variety of
circumstances, and illustrating the rule in the different states-
on the subject: Terry v. Wheeler, 25 N. Y. 520 ; Bethel Steam
Mill Co. V. Brown, 57 Me. 9 ; Webber v. Davis, 44 Me..
147 ; Morse v. Sherman, 106 Mass. 430, 432, 433 ; Barrett v^
Goddard, 3 Mason, 107, no; Hotchkiss v. Hunt, 49 Me.
213; Arnold v. Delano, 4 Gush. 33 ; Willis v. Willis, 6 Dana,.
48; Plall V. Richardson, 16 Md. 396; Currie v. White, i
Sweeny (S. C), 166; Hooban v. Bidwell, 16 Ohio, 509;,
Frazer v. Hilliard, 2 Strobh. 309 ; Willis v. Willis, 6 Dana^
48; Crawford v. Smith, 7 Dana, 59, 60; Martin v. Adams, 104
Mass. 262 ; Merchants' National Bank v. Bangs, 102 Id. 295 ;
Thayer v. Lapham, 13 Allen, 28, Foster, J.; Page v. Car-
penter, 10 N. H. 77 ; Buffington v. Ulen, 7 Bush. (Ky.) 231 ;
Means v. Williamson, 37 Me. 556; Waldron v. Chase, 37
Id. 414 ; Merrill v. Parker, 24 Id. 89 ; Wing v. Clark,
Id. 366; Bailey v. Smith, 43 N. H. 143; Felton v. Ful-
ler, 29 N. H. 121; Rice V. Codman, i Allen, 377; Hurlburt
v. Simpson, 3 Ired. (Law) 233 ; Olyphant v. Baker, 5 Denio,.
379 ; Sweeney v. Ousley, 14 B. Mon. (Ky.) 413 ; Terry
V. Wheeler, 25 N. Y. 520; Warden v. Marshall, 99 Mass.
305 ; Bigelow, C. J., in Gardner v. Lane, 9 Allen, 498 ;.
Marble v. Moore, 102 Mass. 443 ; Chase v. Willard, 57 Me..
157-
Sec. 11.] SALE OF GOODS. 121
a constructive acceptance and constructive actual re-
ceipt, so as to satisfy the words of tlie statute. In
cases of this sort, the quostion will be whether the
vendor had the subject-matter of the sale in his own
possession, retaining his right of lien for the price, or
whether he had the bare custody of the chattel as the
servant of the purchaser, having no possession and
no right of lien. (/) Where a couple of horses had
been sold by a livery-stable keeper at a fixed price,
and the purchaser told the vendor that, as he had
neither servant nor stable, the vendor must keep the
horses at livery for him, whereupon the latter removed
them from his sale-stable to his livery-stable, and
there kept them at livery, it was held that this
amounted to an actual delivery of the horses, that
the vendor had parted with the possession of them,
lost his lien for the price, and held the horses only as
any other livery-stable keeper might have held them,
having the bare custody of the horses, and not the
right of possession, (m) And, where there was an
oral bargain for the sale of a horse, and the vendor
asked the purchaser to lend him the horse for a few
days till he got another, and the purchaser agreed to
this, and the vendor kept the horse for a week, and
then sent it to the purchaser, who refused to receive it
or pay for it, it was held that the purchaser by lending
the horse to the seller had taken to it as owner, and
that the possession of the vendor under the loan was
the possession of the purchaser, (n)
560. Acceptance of bills of lading, delivery orders,,
and dock-warrants. — The acceptance of a bill of
(/) Castle V. Sworder, 6 H. & N. L. J., Q. B, 261.
828; 30 L. J., Ex. 310; overruling (?«) Elmore v. Stone, 2 Taunt. 458.
Castle V, Sworder, 5 H. & N. 285. (k) Marvin v. Wallis, 6 Ell. & BL
Cusack v. Robinson, i B. & S. 299 ; 30 735 ; 25 L. J., Q. B. 369.
122 LAW OF CONTRACT. [Bk. II. Ch. I.
lading of goods on board ship in transitu to the pur-
chaser is not an acceptance and receipt of the goods,
xinless the purchaser exercises dominion and owner-
ship over the bill of lading, and deals with it so as to
transfer the right of property in the goods to some
third party, (o) The acceptance and receipt also by
a purchaser of a delivery order or dock-warrant is not
an acceptance and actual receipt of the goods men-
tioned or comprised in such order or warrant, until it
has been presented to and accepted by the warehouse-
keeper or dock-keeper, and the latter has attorned to
the purchaser, and consented to hold the goods on his
account. (/) Before the order or warrant has been
presented to, and accepted by, the warehouse-keeper,
it may be countermanded ; (^) but, as soon as it has
been presented to and accepted by him, the accep-
tance, whether made orally or by writing, and whether
it is or is not filed in the warehouse, constitutes the
warehouse-keeper the agent or trustee of the pur-
chaser, and binds him to hold the goo'ds at the dis-
posal of the latter, and there is then an executed
■delivery as much as if the goods had been delivered
into the purchaser's own hands, or had been removed
to his warehouse and there put under lock and key.
(r) And, although the goods are not, at the time of
the acceptance of the order, in the actual possession
of the warehouseman, yet, if they afterwards come
to hand, he is bound to hold them at the disposal of
the party in whose favor the order has been made, {s)
(o) Meredith v. Meigh, 2 Ell. & Bl. (q) Lockington v. Atherton, 7 M.
368 ; 22 L. J., Q. B, 403. Currie v. & G. 360 ; 8 Sc. N. R. 42.
Anderson, 2 El. & EI. 5g2 ; 2g L. J., (?•) Pearson v. Dawson, Ell. Bl. &
Q. B. 87. Ell. 456. Harman v. Anderson, 2
(f) Bendall v. Burn, 5 D. & R. 284 ; Campb. 242. Dickenson v. Marrow,
3 B. & C. 423. Farina v. Home, 16 14 M. & W. 713.
M. & W. 119 ; 16 L. J., Ex. 75. (.r) Holl v. Griffin, 3 M. & Sc. 732 ;
10 Bing. 246.
Si<:c. II.] SALE OF GOODS. 123
The bailee of the goods can not, as between him-
self and the purchaser, after he has once accepted
the order, deny the rights of the purchaser, unless the
latter has become bankrupt or insolvent before the
thing to be delivered has been identified and put into
a deliverable state, and the unpaid vendor has inter-
fered to prevent the delivery in the manner presently
mentioned. (/) '
561. Acceptance and receipt of goods by carriers,
forwarding agents, and agents for custody. — The ac-
ceptance and receipt of a carrier or wharfinger, or mere
forwarding agent, appointed by the purchaser to be
the vehicle of transmission to him, are not the accept-
ance and receipt of the purchaser, (u) unless the latter
so deals with the carrier or forwarding agent as to con-
vert him into an agent for custody holding the goods
as the purchaser's servant or agent. ' When the pui-
(f) Gillett V. Hill. 2 Cr. & M. 536 ; & P. 168. Stonard v. Dunkin, 2
4 Tyr. 290. Gosling v. Birnie, 5 Moo. Campb. 344.
(«) Smith V. Hudson, ante,
' A bill of lading is in general a receipt or representation of
the goods for which it is given, and its indorsement and delivery
is such a constructive delivery of the goods as will divest a
vendor's lien, though, in so far as it is a receipt, it might be
■competent to show under it that the goods were not of the
same quality or number stated in the bill ; Bissel v. Price, 16
111. 408 ; Wolfe v. Myers, 3 Sandf 7 ; Sutton v. Kettell, i
Sprague, 309 ; Shepherd v. Naylor, 5 Gray, 591 ; O'Brien v.
Gilchrist, 34 Me. 554; Dickinson v. Ledge, 12 Barb. 102;
Grimes v. Harwood, 9 Barb. 447 ; Wayland v. Mosely, 5 Ala.
430 ; McTyer v. Steele, 26 Ala. 487 ; or it might be shown by
parol that the goods were not in the quality or good order
mentioned in the bill when received; Ellis v. Willard, 5
Selden, 529; Barrett v. Rogers, 7 Mass. 297 ; Clark v. Barn-
well, 12 How. 272. And see the rule as to bills of lading
treated under the subject of stoppage in transitu, and will be
found referred to post, this section, paragraph S97-
» See/w/, this section, paragraph 592 ; Shepherd v. Pressey
124 LAW OF CONTRACT. [Bk. II. Ch. I.
chaser refuses to receive the goods from the carrier, the
latter holds them as the agent of the consignor from
whom he received them, and there is no acceptance
and actual receipt by the purchaser within the mean-
ing of the statute, although the latter has directed the
mode of conveyance, and pointed out the particular
carrier to be employed, (^x) Where, therefore, an oral
order had been given by the defendant to the plaintiff
for two chests of tea to be sent by the usual convey-
ance, and the tea was shipped on board a vessel which
was lost at sea, and the defendant refused to pay the
price, it was held that the shipmaster was not the de-
fendant's agent for the acceptance and receipt of the
tea, and that, as the defendant had not himself accepted
and received it, there was nothing to bind the bargain
within the statute, (jv) And, where the defendant
(x) Astey v. Emery, 4 M. & S. 262. v. Meigh, 22 L. J., Q. B. 401 ; 2 Kll.
Norman v. Phillips, 14 M, & W. 277. & Bl. 364. Hart v. Bush, Ell. Bl. &
{y) Hanson v. Armitage, 5 B. & Ell. 498.
Aid. 557 ; I D. & R. 128. Meredith
32 N. H 49 ; Maxwell v. Brown, 39 Me. 98 ; Frostburg-
Mining Co. v. New England Glass Co., 9 Cush. 115;
Spencer v. Hale, 30 Vt. 315 ; Cross v. O'Donnell, 44 N. Y.
661 ; Quintard v. Bacon, 99 Mass. 185 ; Magruder v. Gage,
33 Md. 344; Foster v. Rockwell, 104 Mass. 167; Cobb v.
Arundell, 26 Wis. 553 ; Everett v. Parks, 62 Barb. 9; Putnam
V. Tillotson, 13 Met. 517 ; Orcutt v. Nelson, i Gray, 536 ; Jan-
vrin V. Maxwell, 23 Wis. 51; Barrett v. Goddard, 3 Mason,
107 ; Weld V. Carne, 98 Mass. 152 ; Kirby v. Johnson, 22 Mo.
354 ; Johnson v. Cuttle, 105 Mass. 447 ; Boardman v.
Spooner, 13 Allen, 353 ; Grimes v. Van Vechten, 20 Mich.
410; Rodgers V. Phillips, 40 N. Y. 519 ; Denmead v. Glass, 30-
Geo. 637 ; Jones v. Mechanics' Bank, 29 Md. 287. But a de-
livery to his carrier is delivery to the vendor, after acceptance
by him ; Cross v. O'Donnell, 44 N. Y. 661 ; and there appears
to be no reason why delivery to a warehouseman might not
have the same effect ; per curiam. Hunter v. Wright, 12 Allen,
548.
Sec. II.] SALE OF GOODS. 125
gave an oral order for cider to be forwarded to his resi-
dence, and it was sent there by the wagon, but the de-
fendant refused to take it in, and caused it to be lodged
in an adjoining warehouse not belonging to him, where
it remained, and no notice was given by the defendant
to the vendor of the defendant's intention not to take
the cider, it was held that there had been no acceptance
and actual receipt of the cider by the defendant. {£)
But, if a purchaser directs goods to be taken to a place
of deposit indicated by him, and they are accordingly
sent there, it is the same as if they are sent to his own
house, (a) ' And a purchaser may, by his conduct and
course of dealing with the carrier, convert the latter
into an agent for custody holding the goods on his,
the purchaser's, behalf. (J>)
562. Pari acceptance and actual receipt binding
ihe contract. — If the defendant receives a portion of
the bulk, and keeps it, he is responsible in damages for
the non-acceptance of the whole of the commodity he
agreed to buy. {c) But, where the acceptance of a
part of goods sold is relied upon to take the case out of
the statute of frauds, it must be an acceptance of a
part of goods bought under one entire contract.
Where, therefore, the traveler of a mercantile house,
(z) Nicholle v. Plume, I C. & P. {b) Post. Bushel v. Wheeler, 15 Q.
^72. B. 442.
(a) Dodsley v. Varley, 12 Ad. & E. (<:) Gilliat v. Roberts, 19 L. J., Ex.
■632. 410.
' Hunter V. Wright, 12 Allen, 548; or delivering the key
of a warehouse, may be a delivery of the goods ; Wilkes v.
Ferris, 5 Johns. 335 ; Chappel v. Marvin, 2 Aikens, 79 ; or " less
than this, where the goods are bulky, as for instance, a quan-
tity of timber floating in a boom, or a large stack of hay."
3 Parsons on Contracts, 43; Jewett v. Warren, 12 Mass. 300;
Boynton v. Veazie, 24 Me. 286 ; Gibson v. Stevens, 8 How.
384; Calkins v. Lockwood, 17 Conn. 154. But see Shindler
V. Houston, I Denio, 48; i Comst. 261.
126 LAW OF CONTRACT. [Bk. II. Ch. I.
received an order in the country from a carpet-manu-
facturer for a cask of cream of tartar at a fixed price,
and also an order for two chests of lac dye, provided
they could be furnished at a given price, and reserved
to his employers a right to decline to fulfill the con-
tract for the lac dye at the price named, if they
should think fit, and, the cream of tartar and the chest
of lac dye being forwarded, the manufacturer accepted
the cream of tartar, but refused to take the lac dye, it
was held that there were tw^o distinct and independent
contracts of sale, and that the acceptance of the cream
of tartar could not take the contract as to the lac dye
out of the operation of the statute, (d) Where a pur-
chaser had ordered two dozen of port wine, and the
same quantity of sherry, to be returned if not approved,
and the vendor sent four dozen of each, and the pur-
chaser kept thirteen bottles and returned the rest, it
was held there was no part acceptance of the whole
quantity, so as to take the wine returned out of the
operation of the statute. (^) Generally speaking, how-
ever, when a person goes into a shop and buys various
different articles at the same time, he does not make
as many different contracts as there are articles pur-
chased ; (y) but there is one contract for the whole,
and the acceptance and receipt of any one of the arti-
cles so purchased will take the contract as to all of
them out of the operation of the statute.' Where the
(rf) Price V. Lea, 2 D. & R. 295 ; i (/) Alderson, B., 12 M. & W. 38 ;
B. & C. 158. 3 M. & W. 178. Baldey v. Parker, 3
{e) Hart v. Mills, 15 M. & W. 85 ; D. & N. 220; 2 B. & C. 37.
15 L. J., Ex. 200.
' 3 Parsons on Contracts, 44 ; in general, a delivery of a
part is a delivery of the whole, " if it be an integral part of one
whole, but not if many things are bought and sold as distinct ar-
ticles, and some of them are delivered, and some of them are
not." Id.; Seymour v. D.ivis, 2 Sandf. 239; Davis v. Moore,
Sec. II.] SALE OF GOODS. 127
traveler of a steel manufacturer, at Sheffield, took an
oral order from an edge-tool maker, at Birmingham,
for thirty-five bundles of common steel, at 34.9.,''and
five bundles of cast steel, at 48^-., it was held that this
was one entire contract, and that the acceptance of the
common steel took the cast steel out of the operation
of the statute, {g) But, where growing crops were
put up to auction in several lots, and separately-
knocked down to a bidder at separate prices, it was
held that there was a distinct contract of sale as to
each lot. (/^)
Where a party under one contract purchases goods
ready made, and orders others to be made, an accep-
tance of the former goods is a sufficient compliance
with the Statute of Frauds and the 9 Geo. 4, c. 14, s.
7. (i) If after a purchase, the purchaser draws sam-
ples from the bulk of the commodity, this amounts to
an acceptance of it. (/^) Certain sugars in a ware-
house were advertised for sale by auction, and samples
of half a pound weight from each hogshead, drawn after
the sugars had been weighed, were produced to the as-
sembled bidders, and after the biddings were closed, the
samples were delivered to and accepted by each pur-
chaser, as part of his purchase, to make up the quan-
{g) Elliott V. Thomas, 3 M. & W. (i) Ante. Lord Abioger, C. B.,
i''6. Rohde v. Thwaites, 9 D. & R. Scott v. Eastern Counties Railway
2g3 ; 6 B. & C. 388. Bigg v. Whisk- Company, 12 M. & W. 38.
ing, 14 C. B. 198. (k) Gardner v. Grout, 2 C. B., N.
{h) Roots V. Lord Dormer, 4 B & S. 340.
Ad. 77 ; I N. & M. 667.
13 Me. 424; Mills V. Hunt, 20 Wend. 431. "Where several
owners make a joint sale, and one of them sells a part of his
portion, the delivery of this is said to satisfy the statute as to
all." 3 Parsons on Contracts, 44; Field v. Runk, 2 N. J. 523 ;
and as to whether the delivery of the part is intended to be a
delivery of the whole, is a question for the jury ; Pratt v.
Chase, 40 Me. 269.
T28 LAW OF CONTRACT. [Bk. II. Ch. I.
tity and weight of each lot, as specified in the cata-
logue, and it was held that the delivery and accept-
ance of the sample were an acceptance and receipt of
part of the things sold, so as to remove the contract
from the operation of the statute. (/)
563. The acceptance takes the whole contract
vut of the statiite, leaving it open to the parties to
supply the terms of the bargain by oral evidence. —
If, therefore, the contract is made defeasible on certain
conditions, the conditions will stand good as part of
the contract. Where a mare was sold on the terms
that, in case she should prove in foal, she should be
returned together with part of the price ; and the
mare was delivered and accepted, and afterwards
proved to be in foal, but the purchaser refused to
return her, it was held that the acceptance took the
whole agreement out of the statute of frauds, and that
the plaintiff might sue the defendant for the refusal to
return the mare, (w)
564. What zV earnest and part payment within
the second exception of the statute. — The giving of
any quantity of money, however small, by way of
earnest or part payment, has the effect of taking the
whole contract out of the operation of the statute.
It binds the bargain as between the parties, provided
the other requisites necessary to the completion of a
contract of sale have been duly complied with, and
operates as a transfer of the right of property to the
purchaser. {71) The vendor can not sell to another,
until he has requested the vendee to remove the
goods and pay the price, and the latter has neglected
(/) Hinde v. Whitehouse, 7 East, B. 707 ; 25 L. J., C. P. 85. Collis v.
570. Talver v. West, Holt, 178. Botthamley, 7 W. R. 87.
(ill) Williams v. Burgess, 10 Ad. & (n) Bach v. Owen, 3 T. R. 409.
E. 499. Tomkinson v. Staight, 17 C. Blakey v. Dinsdale, 2 Cowp. 664.
Sec. II.] SALE OF GOODS.
129
to comply with the requisition within a reasonable
period. {0) If there is a bargain for the sale of
goods at a certain price, and subsequently an agree-
ment that a debt due from the purchaser shall be
wiped off from the amount of the price, and the debt
is accordingly released and discharged, this may be
equivalent to earnest and part payment. (/) The
civil law respecting earnest provides that, " if earnest
has once been given, the sale is perfected, whether
the contract be in writing or be made merely by word
of mouth." " If the buyer neglects to perform the
contract, he loses what he has paid as earnest ; and,
if the seller makes default, he is bound to render to
the buyer double the value of what he has received.
But the price of the thing sold must always be fixed ;
for without a price there can be no sale." {q)
565. Transfer of the right of property in the
thing sold. — A contract for the sale of goods, wares,
and merchandise, of the value of less than ;^io, and
so not requiring authentication by a signed writing,
■or duly authenticated in the mode previously pointed
out, may operate as a direct transfer of the ownership
and right of property in the thing sold to the pur-
chaser, or may amount only to an agreement for a fu-
ture transfer, giving the purchaser a right of action
against the vendor for a breach of contract, but not
effecting any alteration of ownership. When the
bargain operates as a transfer of ownership, the sale
is perfect and complete ; when it amounts only to an
agreement to procure Or manufacture an article of a
given character and description, and then transfer it
to the purchaser, and does not effect any immediate
(p) Langford v. Administratrix of 306, 505 ; 16 L. J., Ex. 120.
Tyler, 6 Mod. 162. (?) Instit. lib. 3 tit. 24. Cod. iv.,
(/) Walker v. Nussey, 16 M. & W. tit. 38, 40.
II. — 0
I30 LAW OF CONTRACT. [Bk. II. Ch. I.
alteration of ownership, the sale is imperfect and in-
complete. A transfer to the purchaser of the right
of property in the thing sold, is naturally accompanied
by a transfer of the risk of loss, so that, if, between
the time of the making of the bargain and the deliv-
ery, the thing sold is consumed or destroyed, without
any neglect or want of care for its preservation on
the part of the vendor, the loss is the loss of the pur-
chaser, and he may be compelled, as we shall presently
see, to pay the price, although he can never have the
thing for which he agreed to pay it. (r) To consti-
tute a perfect and complete sale, the precise thing-
sold must be ascertained and identified, except where
the sale is of shares and undivided quantities expressly
sold as such, and the price must be ascertained and
fixed. Personal engagements may subsist between
the parties ; but there can be no transfer of ownership-
and risk, until such ascertainment and identification
have been accomplished.'
566. Imperfect sales of unascertained chattels. — -
Until the parties are agreed on the specific individual
goods, the contract can be no more than a contract
to supply goods answering a particular description ;
and, since the vendor would fulfill his part of the con-
tract by furnishing any parcel of goods answering-
that description, and the purchaser could not object
to them if they did answer the description, it is clear
there can be no intention to transfer the property in
(r) Post. As to loss of goods by see Greaves v. Hepke, 2 B. & Aid.
distress for rent after sale of them, 133.
' The risk of loss is in the purchaser, in an actual sale^
while in an agreement to sell, the risk remains in the vendor;
Benjamin on Sales, 1st Am. Ed. §§ 78, 314, 315 ; the risk of
property follows the title; Taylor v. Lapham, 13 Allen, 26;
Willis-v. Willis, 6 Dana, 49 ; Joyce v. Adams, 4 Selden, 296 ■,,
Terry v. Wheeler, 25 N. Y. 324.
Sec. I I.J SALE OF GOODS. 131
any particular lot of goods more than another, until
it is ascertained which are the very goods sold. (.$•)
"Thus," observes Pothier, "in the sale of things
which consist in quantity and which are sold by
weight, number, or measure, as if one should sell fifty
quarters of corn out of a larger bulk in a granary,
ten thousand weight of sugar, a hundred carp, &c.,
the sale is not perfect (so as to vest any right of
property in the purchaser) so long as the wheat has
not been measured, the sugar weighed, and the fish
counted ; for up to that time nondum apparet quid
venierit. It does not sufficiently appear which is the
wheat, which the sugar, and which the fish that con-
stitute the object of the sale. . . . The sale is of an
unascertained subject, and one which can not be
ascertained but by the measuring, the weighing, or
the counting. It is not, therefore, until these have
been accomplished, that the thing sold remains at the
risk of the buyer ; for risk can only attach on an
ascertained subject." (^) '
Although the vendor has given a delivery order,
or a dock-warrant, to a warehouse-keeper, wharfinger,
or bailee, having the custody of the goods, command-
ing him to deliver them to the purchaser, yet, so long
as the precise quantity of goods to be delivered under
the order has not been identified and ascertained, and
separated from the mass of the commodity in bulk,
the sale is not perfect and complete, and the right of
property is not altered. Thus, where a vendor, hav-
is) Blackburn on the Contracts of Rawson, 27 L. J., C. P. 191 ; 4 C. B.,
Sale, 122. White v. Wilks, 5 Taunt. N. S. 85.
178. Logan V. Le Mesurier, 6 Moo. (t) Pothier, Contrat de Vente, No.
P. C. 116; II Jur. logi. Heseltine 179.
V. Siggers, I Exch. 861. Hale v.
' See ante, note 2, paragraph 564.
132 LAW OF CONTRACT. [Bk. 11. Ch. I.
ing eighteen tons of Riga flax in mats lying at a
wharf, sold ten tons thereof to a purchaser, and gave
him a delivery order on the wharfinger for ten tons,
which order was accepted by the latter, and entered in
his books, it was held that the ownership was not
altered, nor the right of property transferred from the
vendor to the purchaser, until the flax had been
weighed, and the precise quantity to be delivered
under the order had been separated from the bulk and
put into a deliverable state, and placed at the disposal
of the purchaser, (u) ' If, however, the bulk of the
commodity has been identified, and the sale is a sale
of an undivided quantity thereof, expressly sold as
such at an ascertained price, the ownership of the
share and the risk of the loss of the subject-matter
thereof will pass to the purchaser, although the shares
have not been separated and divided, (^x) '
(u) Busk V. Davis, 2 M. & S. 403. Moakes v. Nicholson, 34 L. J., C. P.,
Shepley v. Davis, 5 Taunt. 617. 273.
(;<:) Post.
' Until identification or " appropriation," the contract is
merely executory, and the property does not pass ; Browning
V. Hamilton, 42 Ala. 484 ; so the sale of a certain number out
of a large lot of barrels of pork, stored in a cellar ; Scudder
V. Worster, 11 Cush. 593 ; Warren v. Buckminster, 24 N. H.
336 ; but to the contrary, see Chapman v. Shepard, 39 Conn.
413 ; Pleasants v. Pendleton, 6 Rand. (Va.) 473 ; Waldron v.
Chase, 37 Me. 414 ; Cashing v. Breed, 4 Allen, 380 ; Warren
V. Millikin, 57 Me. 97; Hall v. Boston, &c. R. R. Co., 14
Allen, 439. The decisions in the various states are far from
uniform on this subject. See Wood v. McGee, 7 Ohio, 466 ;
Foot V. Marsh, 51 N. Y. 288; Redee v. Wade, 47 Barb. 63;
Field V. Moore, Hill & D. 418 ; Ropes v. Lane, 9 Allen, 502 ;
Golder v. Ogden, 15 Penn. St. 528; Waldo v. Belcher, 11
Ired. 609; Merrill v. Hunnewell, 13 Pick. 215; Gardner v.
Dutch, 9 Mass. 427; Messer v. Woodman, 22 N. H, 172;
Bailey v. Smith, 43 Id. 141 ; Hutchinson v. Hunter, 7 Barr,
140 ; Bell V. Farrar, 41 111. 400.
' Post, chapter 3.
Sec. II.] SALE OF GOODS. 133
567. Contracts for the sale and manufacture of
goods. — Where any specific chattel is ordered to be
made, the right of property is not vested in the party
who gives the order, nor the right to the price in the
vendor, until the thing ordered is completed and
made ready for delivery, and has been approved of by
the purchaser, or some person appointed on his be-
half to inspect the materials and workmanship. The
builder or maker is not bound to deliver to the pur-
chaser the identical chattel which is in progress,
although the purchase money may have been paid in
advance, but may, if he pleases, dispose of it to some
other person, and deliver to the purchaser another
chattel, provided it answers to the specification or
description contained in the contract, (jy) But,
where the contract provides that the article shall be
manufactured under the superintendence of a person
appointed by the purchaser, and also fixes the pay-
ment by instalments regulated by particular stages in
the progress of the work, the general property in the
materials used, vests in the purchaser at the time when
they are put together under the approval of the
superintendent, or, at all events, when the first instal-
ment is paid, subject to the right of the builder to
retain the fabric, in order to complete it and earn the
rest of the price ; and the rights of the parties are
then in the same state as if so much of the article as
is then constructed had originally belonged to the
purchaser, and had been delivered by him to the
builder to be added to and finished. {£) And, when
(7) Atkinson v. Bell, 8 B. & C. 282; 470. Woods v. Russell, 5 B. & Aid.
2 M. & R. 301. Mucklow V. Mangles, 942. Bead v. Fairbanks, 22 L. J., C.
1 Taunt. 318. Laidler v. Burlinson, P. 206; 13 C. B. 692. Wood v. Bell,
2 M. & W. 615. Elliott V. Pybus, 4 6 EU. & BI. 361 ; 5 ib. 772 ; 25 L. J.,
M. & Sc. 389 ; 10 Bing. 512. Q. B. 148, 321.
(«) Clarke v. Spence, 4 Ad. & F.
134 LAW OF CONTRACT. [Bk. II. Ch. I.
the article is completed and made ready for delivery,
and has been approved of by the purchaser, the gen-
eral property therein is transferred to the latter,
although the chattel may remain in the hands of the
builder for the purpose of receiving some subsequent
additions and improvements, (a)
There is a great analogy, it has been observed by
the civilians, between this description of contract of
sale, and the contract of letting and hiring of work
and labor ; and we are told in the Digest, and in the
Institutes, how to discriminate between the one and
the other. If, it is said, the materials for the work, as
well as the work itself, have been furnished by the
workman, then the contract is a contract of sale. If,
on the other hand, the employer has furnished the
materials, and the undertaker of the work contributes
his labor merely, the contract is a contract of the let-
ting and hiring of labor. Thus, to quote an example
from the Roman law, " If Titius should agree with a
goldsmith for the making of a certain number of
golden rings, of a specified size and weight, for ten
aurei, the goldsmith to furnish both the gold and
workmanship, the contract would be a contract of
buying and selling. But if Titius should give his
own gold, and agree to pay only for the workman-
ship, then the contract would be a contract of letting
and hiring simply." (i^) '
(a) Carrutliers v. Payne, 2 Moo. & tit. 65. Lee v. Griffin, i B. & S. 272 ;
P. 441. Wilkins v. Bromhead, 7 Sc. 30 L. J,, Q. B. 252. Atkinson v. Bell,
N. R, 921. 8 B. & C. 277. Grafton v. Armitage,
(b) Dig. lib. ig, tit. 2, lex. 2. Instit. 2 C. B. 341 ; 15 L. J., C. P. 20.
lib. 3, tit. 25, § 4. § 1. Cod. lib, 4,
' Considerable apparent diversity exists in thie rule as tc
articles to be manufactured, where work and labor is to be
done as to materials to be found in the United States ; Er-
chelberger V. McCauley, 5 Harr. & J. 213; but it is believed
Sec. II.] SALE OF GOODS. 135
568. Imperfect sales — Unascertained price. —
Moreover, although the subject-matter of the sale
may be ascertained, and identified, and selected, and
that a reconciliation of them is not impossible; see Oilman v.
Hill, 36 N. H. 317; Abbott V. Gilchrist, 38 Me. 260; Cason
V. Cheely, 6 Ga. 554; Gorham v. Fisher, 30 Vt. 428; Sewall
V. Fitch, 8 Cow. 215; Cummings v. Dennett, 26 Me. 397;
Dovvs V. Ross, 23 Wend. 270; Jackson v. Covert, 5 Wend.
139; Courtwright v. Stewart, 19 Barb. 455. In Story on
Sales (p. 274, § 260 c), it is said '"that where the labor and
service were the essential considerations, as in the case of the
manufacture of a thing not in esse, the contract would not be
within the statute ; where the labor and service were only in-
<;idental to a subject matter z'« esse, the statute would apply."
Said Shaw, C. J., in Lamb v. Crafts, 12 Met. 356; " The dis-
tinction, we believe, is now well understood. When a person
■stipulates for the future sale of articles which he is habitually
fnaking, and which at the time are not made or finished, it is
•essentially a contract of sale and not a contract for labor;
otherwise when the article is made pursuant to the agree-
ment ;" and see Smith v. New York Central R. R. Co., 4 Keyes,
180; Mixer v. Holworth, 21 Pick. 205; held that in case of
an agreement with a workman to put materials together and
construct an article for the employer, whether at an agreed
price or not, though, in common parlance, it may be called a
purchase and sale of the article, to be completed in future, it
is not a sale until an actual or constructive delivery and accept-
ance, and the remedy for not accepting, is on the agreement."
See Clark v. Nichols, 107 Mass. 47, where an oral agreement
to deliver certain timber sawed into a certain shape, was a
Bale of the timber, and not a contract to manufacture ; and
:see Hight v. Ripley, 19 Me. 137; Fickett v. Swift, 41 Me. 68;
Crookshank v. Burrell, 18 Johns. 58; Cummings v. Dennett,
26 Me. 397; Abbott v. Gilchrist. 38 Id. 260; Edwards v.
Grand Trunk Railway Co., 48 Id. 379 ; Pitkin v. Noyes, 48
N. H. 294; Prescott v. Lock, 51 N. H. 98. So a contract to
sell all the sheep pelts taken off by the seller, a butcher, be-
tween certain months, was held to be a contract for the sale
of goods, and not for work and labor. Gilman v. Hill, 36 N.
H. 313. In Crookshank v. Burrell, 18 Johns. 58, a contract
to make the woodwork of a wagon, was held to be a contract
for labor and services, and not a sale. In Sewall v. Fitch, 8
Cow. 215, a contract for nails of a certain pattern, not then
136 LAW OF CONTRACT. [Bk. II. Ch. L
approved by the purchaser, yet, so long as anything-
remains to be done, as between the purchaser and
vendor, for the purpose of ascertaining the price of
the article, the right of property and the risk of loss
are not altered, (c) ' Thus it has been said, " If I
sell you all my corn for 12^?! a bushel, you may not
{c) 2 Wms. Saund. 122, note (in), ed 1871.
made, was held to be a contract for labor, and not within the
statute ; and see Robertson v. Vaiighan, 5 Sandf. i. So a
contract for flour to be manufactured from wheat ; Bronson v.
W,iman, 10 Barb. 406 ; but in Downs v. Ross, a contract for
the sale of wheat,, then in existence, to be delivered in six
days, notwithstanding portions of the same were to be cleaned
and threshed, was held to be a contract of sale (Cowen, J.,,
dissenting); 23 Wend. 270. It is believed that the above are
sufficient to guide the student to the distinction attempted in
these cases ; but see also Passaic Mfg. Co. v. Hoffman, 3 Daly,
495 ; O'Niel v. New York Mining Co., 3 Nev. 141 ; Gorham
V. Fisher, 30 Vt. 428 ; Mead v. Case, 33 Barb. 202 ; Gardner v.
Joy, 9 Met. 178; Parker v. Schenck, 28 Barb. 38; Cook v.
Millard, 5 Lans. 243. Under a contract for supplying labor
and materials, no property passes while any thing remains ta
be done, and while the thing to be manufactured is unfinished
or incomplete, unless the contrary be clearly expressed in,
or implied by, the terms of the contract; Williams v. Jack-
man, 16 Gray, 517 ; Elliot v. Edwards, 6 Vroom, 265 ; and this-
rule applies to property already in esse, as well as to property
to be manufactured; Halterline v. Rice, 62 Barb. 593. And
after the manufacture, the chattel must be accepted by the
purchaser before the title will pass ; Sandford v. Wiggins
Ferry Co., 27 Ind. 522; Merritt v. Johnson, 7 Johns. 473;
Gregory v. Stryker, 2 Den. 628 ; West Jersey R. R. Co.
V. Trenton Car Works, 3 Vrtiom, 517; Middlesex Co. v.
Osgood, 4 Gray, 447 ; Rider v. Kelley, 32 Vt. 268; Mclntyre
V. Kline, 30 Miss. 361 ; Andrews v. Durant, i Kern. (N. Y.)
35 ; Blasdell v. Souther, 6 Gray 149, 152; Mixer v. Howarth,
21 Pick. 205; Gamage v. Alexander, 14 Tex. 414; Johnson
V. Hunt, II Wend. 139 ; Bennett v. Piatt. 9 Pick. 558; Veazie
v. Holmes, 40 Me. 69 ; nor does tender thereof on the part ol
the manufacturer, pass the title; Moody v. Brown, 34 Me-.
107.
' Post, note I, at the end of this section.
Sec. II.] SALE OF GOODS. 137
take it before it is measured, whereby the number of
the bushels may be known, and also the certainty of
the sura which is to be paid for it, so that before the
certainty is known, it can- not be adjudged any good
contract or agreement." Where a vendor sold the
bark stacked at Redbrook at £<) ^s. per ton of 2 1
cwt., to be weighed before delivery, and 8 tons, 14
cwt. of the bark were weighed and delivered ; but, be-
fore the residue was weighed and the quantity there-
of ascertained, a high flood arose and destroyed it, it
was held that the right of property in the unweighed
residue had not been altered, neither, consequently,
had the risk of loss, (d) And, where several hun-
dred bales of skins, containing five dozen in each
bale, were sold at ^js. 6d. per dozen; and by the
usage of trade it was the duty of the seller to count
the bales before delivery, to see that each bale con-
tained the number specified, and before any enumera-
tion the skins were destroyed by fire, it was held that
the seller must bear the loss. (/) So, where 1,391
pieces of red pine timber measuring 50,000 feet, more
or less, were sold at the rate of g^of. per foot to be
measured off before delivery, it was held that, until
a measurement had been effected, the sale was not
perfect and complete, so as to transfer the ownership
and risk. (/") '
So, observes Pothier, " if the sale is of all the
merchandise or corn stored in a particular granary at
so much per thousand weight, or so much a quarter,
{if) Simmons v. Swift, 8 D. & R. (e) Zagury v. Furnell, 2 Campb.
703 ; 5 B. & C. 862. Martineau v. 239.
Kitchen L. R., 7 Q. B., 436, 454 ; 41 (./) Logan v. Le Mesurier, II Jur,
L. J., Q. B. 227. Hanson v. Meyer, 1091.
6 East, 627.
' Post, note 1, at the end of this section.
138 LAIV OF CONTACT. [BK. II. Ch. I
the sale is not considered to be perfect, and the things
sold are not at the risk of the buyer, so long as they
have not been weighed or measured; for up to that
time the quantity has not been ascertained, and, the
price being determined only by each thousand weight
that shall be weighed, or each quarter that shall be
measured, there is no ascertained price until the
weighing or measuring shall have been accomplished ;
and the sale, consequently, before that time, is not
sufficiently perfected for the risk of the things sold
to belong to the buyer ; and he ought not to be
charged with it until the weighing and measuring
have been accomplished." (^) '
But the distinction must be observed between a
sale by measure or weight requiring the measuring or
weighing to be accomplished for the purpose of deter-
mining and fixing the price, and a sale of specific
goods in the lump at an ascertained price, accom-
panied with a representation or warranty of the weight
or quantity, where the weighing or measuring is nec-
essary only for the purpose of satisfying the purchaser
that he has got the quantity bargained for. (/^) The
mention of the quantity has no further effect in this
case than to oblige the vendor to make good to the pur-
chaser any deficiency that may be found to exist, (z)
Moreover, if it appears by the terms of the contract
that it was the intention of the parties that the prop-
erty should pass to the buyer, it will pass, although
the goods have still to be weighed, measured, or
(g-) Pothier, Contr. de Vente, No. Ex. 43 ; S. C. nom. Turley v. Bates,
309. Dig. lib. 18, tit. I, lex. 35. 2 H. & C. 200. Kershaw v. Ogden,
(/i) Swanwick v. Sothern, g Ad. & 3 H. & C. 717 ; 34 L. J., Ex. 159.
E. 900. Gilmour v. Supple, 11 Moore, {{) Pothier, Vente, No. 310.
P. C. 571. Furley v. Bates, 33 L. J.,
' ^"^e, note 2, §§ 565, 566.
Sec. II.] SALE OF GOODS.
139
tested, provided the subject-matter of the sale is as-
certained and identified ; (/&) and there may be a
complete contract so as to pass the property in the
goods, although the price has not been definitely
agreed on, (/) or although the goods are still unfin-
ished, {in) or unweighed. (n)
When the quantity is ascertained, the mere omis-
sion to add up the total^contents according to weight
•or measure, will not prevent the right of property
and the risk from passing to the purchaser. (0) If
certain specific cases, bales, or packages of goods are
sold in the lump, at the customary and reasonable
price paid for such articles, the price is sufficiently
ascertained, and the right of property will pass,
although no definite sum has been agreed upon, and
the time or mode of payment has not been speci-
fied. (/) '
(k) Turley v. Bates, 2 H. & C. 200 ; («) Martineau v. Kitching, anti.
S. C. nom. Furley v. Bates, 33 L. J., (0) Tansley v. Turner, 2 Sc. 241 ; 5 "
Ex. 43. Martineau v. Kitchen, ante. Bing. N. C. 151.
(/) Joyce V. Swann, 17 C. B., N. S. (p) Valpy v. Gibson, 4 C. B. 837 ;
■84. 16 L. J., C. P. 248. Joyce v. Svrann,
(m) Young v. Mathews, L. R., 2 C. 17 C. B., N. S. 102. Hoadley v. Mac-
P. 127 ; 36 L. J., C. P. 61. laine, 10 Bing. 482 ; 4 M. & Sc. 340.
' A price must be money paid or promised ; Benjamin on
Sales, Am. Ed. §§ 2, 85. The law will imply a reasonable
price when none is mentioned, btit parol evidence is admissi-
ble to show that a price was actually agreed upon, in order to
establish the insufficiency of a memorandum which is silent
as to the price ; Id. § 249 ; until the price is fixed there is no
■contract ; Id. § 87 ; even if it be the fault of one of the par-
ties that no valuation was fixed, in which case, however, it is
for the jury to fix the value; Id. § 87; if the price can be
made certain, it will be sufficient; Fuller v. Bean, 34 N. H.
304. In the civil law it was a settled rule that there could be
no sale without a price certain. " Pretium autem constitui
oportet, nam nulla emptio sine pretio esse protest consed et
ccrtum esse debet," was the language of the Institutes. Lib.
3, tit. 23-1. And it was a subject of long contest among the
140 LAW OF CONTRACT. [Bk. II. Ch. L
569. Perfect sales operating as transfers of the
ownership and risk. — When the subject-matter of the
sale is ascertained and identified at the time the bar-
earlier jurisconsults whether the necessity for a certain price
did not render invalid an agreement that the price should be
fixed by a third person; but Justinian put an end to the ques-
tion by positive legislation : " Alioquin si inter aliquos ita
convenerit, ut quanti Titius rem asstirnaverit tanti sit empta,
inter veteres satis abundeque hoc dubitabatur sive consKct
venditio, sive non. Sed nostra decisio ita hoc constituit, ut
quotiens sic composita sit venditio, quanti ille asstirnaverit,
sub hac conditione staret contractus ; ut si quidem ipse qui
nominatus est pretium definierit, omnimodo secundum ejus
aestimationem et pretium presolvatur et res tradatur, et vendi-
tio ad effectum perducatur, emptore quidem ex empto actione,
venditore ex vendito agente. Sin autem ille qui nominatus
est, vel noluerit vel non potuerit pretium definire, tunc pro
nihilo esse venditionem quasi nuUo prqtio statuto. Quod jus,
cum in venditionibus nobis placuit, non est absurdum et in
locationibus et conductionibus trahere." These rules have
been adopted into the Code Napoleon. Art. 1591: " Leprix de la
vente doit etre determine et designe par les parties." 1592 :
" II peut cependant etre laisse a I'arbitrage d'un tiers; si le
tiers ne veut ou ne peut faire I'estimation, il n'y a point de
Terrte." -B-enjamin on Sales, § 89. " The language of the
civil law upon this subject is the language of common sense."
Story, J., in Flagg v. Mann, 2 Sumn. 538.
Differing rules have been adopted in the various states as-
to whether this consideration must be expressed in the memo-
randum required by the statute. By the 19 and 20 Vict. ch. 97,.
§ 3, in England its expression is no longer necessary. In
Alabama, ch. 1852, § 1551 ; California, L. April 19, 1850, ch.
4, § 8 ; Minnesota, R. S. 1866, ch. 41, tit. 2, § 6 ; Nevada, L..
1861, ch. 9, § 57 ; Oregon, C. C. tit. 8, ch. 8, § 775 ; and Wis-
consin, R. S. 1849, tit. 20, ch. 76, § 2 ; it is expressly enacted
by statute that the consideration shall appear. In Indiana,
R. S. 1852, ch. 42, § 2 ; Kentucky, R. S. 1852, ch. 22, §§ i, 2 •,,
Massachusetts, G. S. i860, part 2, tit. 6, ch. 105, §§ i and 2 ; but
this is not made expressly applicable to the 5th section of the
statute; Packard v. Richardson, 17 Mass. 122 ; New York, L.
1863, ch. 464, p. 802, amending 3 R. S. p. 221, jth Ed.; and
Virginia, C. 1849, ch. 143, § i (8) ; the consideration may
appear, or may be proved by any other legal evidence. la
Sec. II.] SALE OF GOODS. 141
gain is struck, and the price is likewise agreed upon
and reduced to a certainty, the sale is a perfect and
complete sale from the time of the making of the bar-
Louisana the civil law prevails, and no consideration is neces-
sary to he stated or proved. Ringgold v. Newkirk, 3 Ark. 96.
In those states whose statute couples the word " promise "
with the word " agreement," the courts, it will be observed,
have generally dispensed with the statement of the consider-
ation. Browne on Statute of Frauds, 409, § 391 ; see also
Morgan's De Colyar on Guaranty, notes *, page 50, and *
page 24. In Georgia (Browne on Statute of Frauds, App. p.
514; T. R. Cobb, N. D. App. III.) and Maryland (Browne on
Statute of Frauds, App. p. 520 (Kelty's Report of English
Statutes, p. 242) the English statute, as unamended, is
still in force ; and the rule in Wain v. Warlters, 5 East, 10,
that the consideration moving to the agreement must appear
in the writing (see Morgan's De Colyar on Guaranty, p. 176)
has received the sanction of the courts. Henderson v. John-
son, 6 Ga. 390; Hargroves v. Cooke, 15 Id. 321. In Maryland,
Sloan v. Wilson, 4 Harr. & J. 322; Elliot v. Giese, Id. 457 ;
Wyman v. Gray, Id. 409 ; Edelen v. Gough, 5 Gill. 103 ; Hut-
ton v. Padgett, 26 Md. 228; but see Brooks v. Dent, 1 Md.
Ch. Dec. 530. In the states whose statutes are silent on the
subject, the point has been decided as seemed to its courts
■"wisest in point of policy or most commended by authority."
Browne on Statute of Frauds, p. 408. Of the states not above
mentioned (all of which retain the word "agreement " in their
particular statute of frauds), the ruling in Wain v. Warlters
has been rejected in Maine, Levy v. Merrill, 4 Greenl. 189;
Gilligham v. Boardman, 29 Me. (16 Shep.) 81 ; Vermont,
Smith V. Ide, 3 Verm. 299 ; Patchin v. Swift, 21 Id. 297 ; Con-
necticut, Sage V. Wilcox, 6 Conij. 81 ; North Carolina, Miller
V. Irvine, i Dev. & Bat. 103 ; Ashford v. Robinson, 8 Ired. 114 ;
Ohio, Reed v. Evans, 17 Ohio, 128; and Missouri, Bean v.
Valle, 2 Mo. 103 ; but it has received the sanction of the courts
in New Hampshire, Neelson v. Sanborn, 2 N. H. 414 ; Under-
wood V. Campbell, 14 Id. 393 ; New Jersey, Buckley v. Beard-
sley, 2 South. 572; Laing v. Lee, Spencer, 337; South Caro-
lina, Stephens v. Winn, 2 Nott & McC. 372, note a ; ^er contra,
however, see Lecat v. Tavel, 3 McCord, 158; Michigan, Jones
v. Palmer, i Doug. 379; Wisconsin, Reynolds v. Carpenter, 3
Chand. 31 ; Taylor v, Pratt, 3 Wis. 674 ; Mississippi, Wren v.
Pierce, 4 Sm. & M. 91 ; Tennessee, Taylor v. Ross, 3 Yerg,
142 LAW OF CONTRACT. [Bk. II. Cn. I.
gain, and the right of property in the thing sold and
the risk of loss are transferred to the purchaser,
although the right of possession may continue in the
vendor until the purchase money has been paid or ten-
dered. (^) Where the vendor agreed to sell, and the
purchaser to buy, " a stack of hay standing in Canon-
bury Field, Islington, at the sum of ^145, the hay to be
allowed to stand on the premises until the first of May
next, and not to be cut till paid for," it was held that
there was an immediate transfer of the right of prop-
erty to the purchaser, and the hay having been acci-
dentally destroyed by fire whilst it remained in the
possession of the vendor, that the purchaser must bear
the loss. " If," observes Pothier, " things have been
sold per aversionem, that is to say, in the mass for a
fixed price, the sale is complete from the time of the
making of the contract, and the thing sold remains at
the risk of the purchaser, although it has not yet been
delivered to him, so that, if between the bargain and
delivery it should happen to perish without the fault
of the seller, the latter becomes released from his obli-
gation to deliver, but the buyer is not, on account
thereof, released from his obligation to pay the con-
tract price, (r)
570- Selection and appropriation of goods to the
use of the purchaser. — If the commodity was selected
in the bulk by the purchaser, the ownership and risk
(q) Bloxam v. Saunders, 4 B. & C. 8, tit. 6, lex. 8. Noy's Maxims, ch. 42,
948 ; 7 D. & R. 405- Knight v. Hop- p. 88. Bro. Abr. Contr. pi. 26.
per. Skin. 647. Sweeting v. Turner, (r) Pothier, Contrat de Vente, Nos.
L. R., 7 Q. B. 310 ; 41 L. J., Q. B. 58. 307, 308. Tailing v. Baxter, 9 D. &
Si id quod venierit appareat, quid, R. 272 ; 6 B. & C. 360. Taylor v
quale, quantum, sit et pretium, et pure Caldwell, 3 B. & S. 837 ; 32 L. J., Q
venit, perfecta est emptio. Dig. lib. B. 164.
330 ; Kentucky, RatclifF v. Trout, 6 J. J. Marsh. 606 ; Florida,
Doorman v. Big-elow, i Fla. 281.
Sec. II.] SALE OF GOODS. 143;
pass as soon as the quantity sold has been separated
from the mass and tendered to the purchaser, or placed
at his disposal. Thus, where a quantity of turpentine
was sold by auction at a fixed price per hundred-weighty
to be delivered in casks, and taken at the net weight
printed in the catalogue, the casks to be filled up by
the vendor and removed by the purchaser, and all the
casks were filled up except ten, and were placed in the
vendor's warehouse at the disposal of the purchaser,
and before they were removed, the whole quantity was
consumed by fire, it was held that the right of property
in the casks that had been filled up and placed at the
disposal of the purchaser, had passed to the latter, and
that he must stand to the loss ; but as to the remain-
ing quantity, which had not been selected and weighed
and made ready for delivery, that it continued in the
vendor and at his risk, {s) And the right of property
and the attendant risk may be transferred by the buyer
to a third party by another contract of sale, although
the price may not have been paid and the right of
possession divested out of the original vendor, {i) If
the bulk of the commodity or the specific article
bought and sold has not been selected by the purchaser
and identified in the first instance, the sale may be
rendered perfect and complete, so as to operate as a
transfer of the property and risk, by a subsequent selec-
tion by the vendor and approval thereof by the pur-
chaser, such subsequent selection and approval being
the same as if the article had been fixed upon in the
first instance ; {u) but a selection by the vendor only,
(j) Rugg V. Minett, II East, 210. (/) Scott v. England, 14 L. J., Q.
Aldridge v. Johnson, 7 Ell. & Bl. 899. B. 43.
Langton v. Higgins, 4 H. & N. 402. {u) Rhodes v. Thwaites, 6 B. & C.
I.angton v. Waring, iS C. B. N. S. 388. Sparkes v. Marshall, 3 Sc. 185 ;
315. Blackburn on the Contract of 2 Bing. N. C. 775. Campbell v. Mer-
Sale, p. 123. sey Docks, 14 C. B. N. S. 412.
144 LAW OF CONTRACT. [Bk. II. Ch. I.
without the approval of the purchaser, will not transfer
the property in the goods so selected, (x) '
571. Delivery to carriers. — If the vendor is au-
thorized and empowered to select the goods and for-
ward them to the purchaser, the selection by the ven-
dor, and the delivery of the goods to a carrier to be
conveyed to the purchaser, will have the effect of trans-
ferring the ownership and risk to such purchaser, pro-
vided there is a binding contract by note in writing,
by part payment, or by part acceptance, and the selec-
tion is made according to the orders or authority given,
(jv) As soon as the goods are delivered into the
hands of the carrier, in execution and fulfilment of a
properly authenticated contract of sale,^ the carrier be-
comes responsible to the purchaser to whom they are
consigned, and there is an executed delivery, as we
shall presently see, as well as a transfer of the ownership
and risk ; {£) but if by the terms of the contract the
delivery of the goods at their place of destination is
made a condition precedent to the payment of the
price, and the goods perish in the hands of the carrier,
the vendor is not entitled to the price, {a) And if
the purchaser's right to possession of the goods is made
conditional on the prior performance of some act on
his part, such as an acceptance of a bill of exchange,
or the giving of a promissory note for the price, the
(x) Jenner v. Smith, L. R., 4 C. P. Swain y. Shepherd, I Mood. & Rob.
270. 223. Wiltshire Iron Company, In re,
(y) Fragano v. Long, 4 B. & C
221. Alexander v. Gardner, i Sc,
641 ; I Bing. N. C. 671. Browne v.
Hare, 4 H. & N. 830 ; 29 L. J., Ex. 6.
(z) Anderson v. Clark, 2 Bing. 20
Bryans v. Nix, 4 M. & W. 791, 793
L. R., 3 Ch. 443 ; 37 L. J., Ch. 554.
(ci) Ld. Cottenham, Dunlop v. Lam-
bert, 6 01. & Fin. 621. Calcutta,
&c.. Steam Navigation Company v,
De Mattos, 32 L. J., Q. B. 322 ; 33 L.
J.. Q. B. 214.
' Ante, note 2, § 564.
* Ante, note 2, § 559.
Sec. II.] SALE OF GOODS. 145
vendor may stop the goods intran.situ, and resume the
possession of them, if the purchaser neglects to fulfill
the condition at the time appointed, (b) '
572. Delivery under a bill of lading. — Where
j^oods are consigned to a merchant abroad under a
bill of lading expressing that the goods are shipped
by order and on account of the consignee, the prop-
erty vests in the consignee from the time they are
put on board. {/) But if goods are delivered to a
ship-master, to be carried under a bill of lading,
whereby the latter undertakes to carry them for and
on account of the vendor, and deliver them to the
vendor at the port of destination, or to the assignee
•of the bill of lading, there is no transfer of the prop-
erty until the bill of lading has been indorsed to the
purchaser, {d') unless from all the facts it may fairly
be inferred that it was the intention of the seller that
the property in the goods should pass, (e) Where
^oods destined for a foreign port are put on board
ship, and the bill of lading and policy of insurance
are handed over in exchange for a part payment, the
property and risk in the goods forthwith vest in the
purchaser. (/")
573. Undivided shares. — If things of quantity,
such as corn, coals, &c., are laden on board a vessel, and
the ship-master is directed to deliver certain ascertained
but undivided quantities to diflFerent consignees, the
{B) Com. Dig. Condition (B. 13). L. J., Ex. 307. Jenkyns v. Brown, 14
Brandt v. Bowlby, 2 B. & Ad. 932. Q. B. 503.
Moakes v. Nicholson, 19 C. B. N. S. {e) Joyce v. Swann, 17 C. B. N. S.
270 , 34 L. J., C. P. 273. 84.
(<r) Brown v. Hodgson, 2 Campb. 35. (/) Tregelles v. Sewell, 7 H. & N.
Coxe V. Harden, 4 East, 211. 574.
(</) Wait Y. Baker, 2 Exch, I ; 17
' Ante, note 2, § 559.
II. — 10
146 LAW OF CONTRACT. [Bk. II. Ch. L
latter have a right, as against the carrier, to the due
conveyance and delivery of their several undivided
shares of the cargo, although no right of property in
any specific measures of corn or coal can pass to
them until the cargo has been divided, and their sev-
eral shares set apart for them and identified. In cases
of this kind the goods are at the risk of the purchas-
er ; and, if the vessel is lost by perils of the sea, and
the whole cargo is destroyed, they must bear their
several proportions of the loss according to their sev-
eral shares in the cargo, although those shares were
undivided. In these cases they have a right of prop-
erty in an undivided share, but not in any specific
ascertained portion of the cargo, (^g)
When everything that the seller is to do to com-
plete the sale has been performed, the property and the
attendant risk pass to the purchaser, although the lat-
ter may not have got the right of possession of the
subject-matter of the sale, or perfect control over it„
by reason of the non-performance of some act to be
done exclusively by him, such as procuring wines and
spirits to be gauged by a custom-house officer, in
order to ascertain their strength preparatory to the
calculation of the duty, payment of the duty when
calculated and ascertained, or the non-performance of
any other act which it is incumbent on the buyer
alone to perform. Qi) But it is not competent to the
buyer to perfect the contract, and vest the property
in himself by the performance of acts which it is the
{g) Jenkyns v. Usborne, 7 M. & Hinde v. Whitehouse, 7 East. 558.
Gr. 6g8. Furley v. Bates, ante. Sweeting v.
(h) Rugg V. Minett, 11 East, 210. Turner, L. R., 7 Q. B. 310.
Sluddy V. Saunders, 8 D. & R. 403.
' Ante, note 2, § 564.
Sec. II.] SALE OF GOODS. 147
duty of the vendor to perform, unless the acts are
done with the sanction and by the authority of the
vendor, (z)
574. Conditional sale. — If the article is to be se-
lected by the vendor, or to be made or manufactured
by him, and the purchaser makes its acceptance de-
pendent upon his approval of it as regards workman-
ship, convenience, and taste, the latter will be entitled
to reject it, if it does not meet his approval upon
some one or more of the grounds stated. {M) ' A
contract for the sale of goods " on arrival," (/) or
that may arrive, or be shipped, or loaded, (m) or ex-
pected to arrive, (;«) is conditional on the arrival or
shipping of the goods, so that, if no goods arrive or
are shipped, there is no sale and no liability to deliver
on the part of the vendor ; ^ but if a man takes upon
himself to sell goods expected to arrive by a certain
ship, and the goods afterwards arrive consigned to
some third party, so that the intended vendor has no
power of disposing of them, he is precluded from
setting up that, in addition to the contingency of
their arrival, there was implied the further contingency
of their coming consigned to him. Flaving dealt
with them as his own, he can not be allowed to im-
port into the contract a new condition, viz., that the
goods on their arrival shall prove to be his ; {0) for
(i) Acraman v. Morrite, 8 C. B. Lovatt v. H.imilton, 5 M. & W. 639.
459 ; 19 L. J., C. P. 57. (") Smith v. Myers, L. R., 5 Q. B.
(k) Andrews v. Belfield, 2 C. B. N. S. 429 ; ib-, 7 -Q B. 139 ; 39 L. J., Q. B.
789. Lucy V. Mouflet, 5 II. & N. 210 ; 41 ib. 91.
229; 29 L. J., Ex. no. (o) Fischel v. Scott, 15 C. B. 69.
(/) Boyd V. Siffkin, 2 Campb. 325. Gorrissen v. Perrin, 2 C. B. N.S. 701 ;
(m) Hayward v. Scougall, ib. 56. 27 L. J., C. P. 29.
' Benjamin on Sales, Am. Ed. § 595.
' Nelcon v. Smith, 7 Vr. 148; Bendict v. Field, 16 N. Y.
597 ; Rerniers v. Redner, 2 Rob. (N. Y.) 11.
148 LAW OF CONTRACT. [Bk. II. Ch. I.
whenever the agreement is conditioned upon an
event which happens, the vendor will be liable for
non-performance, although he is prevented from ful-
filling his contract by reason of some mistake or
accident over which he had no control ; for he ought
to have provided against the possible contingency by
his contract. If, therefore, he agrees to sell certain
cases of East Indian tallow to be delivered to the
purchaser on the safe arrival of a certain ship, and the
ship arrives, but without the tallow, the vendor is re-
sponsible for the non-performance of his contract. (/)
Where the plaintiff sold to the defendant a certain
unascertained quantity of oil, part of a large quantity
lying at the plaintiff's wharfinger's, and sent an order
to the wharfinger to transfer the oil to the defendant,
and the wharfinger made the transfer in his books to
the defendant, and gave the plaintiff's clerk a paper
acknowledging the transfer, and the clerk went with
this paper to the defendant's counting-house, and de-
manded a cheque in payment, and was refused, but
the defendant took and retained the paper, and sent
to the wharfinger and obtained possession of the oil,
it was held that, as there was no intention to part
with the paper or the property in the goods without
payment, there was no change of property in the
goods in the hands of the wharfinger, and that the
plaintiff was entitled to recover the oil or the value
of it from the defendant. (^)
575- Iinplied promises and undertakings result-
ing from executory contracts of sale. — Although a
bargain and sale may be so far incomplete and imper-
fect as not to operate as an immediate transfer of
property, yet the engagements which naturally result
(/) Hale V. Rawson, 4 C. B. N. S.' (?) Oodts v. Rose, 17 C. B. 229 ; 25
85 ; 27 L. J., C. P. iSg. L. J., C. P. 64.
Sec. II.] SALE OF GOODS. 149
from the contract are in existence as soon as it has
been entered into. There is an implied promise or
undertaking on the part of the vendor to put the
vendee into possession of the thing sold without de-
lay, if the contract makes no mention of the time of
delivery, and a promise or undertaking by the vendee
to accept the goods and pay the price on the delivery
of the subject-matter of the sale by the vendor.
There is also an implied undertaking, on the part of
the vendor, of a specific chattel to be delivered at a
future day, to take the same care of it as of a thing
borrowed for his own use (^post, ch. 2) ; and, if he
wastes or re- sells the property, he is responsible in
damages to the purchaser, (r)
576. When the sale is a sale of particular classes
and descriptions of goods to be selected by the ven-
dor, such as a sale of so many measures of corn,
wine, oil, or fruit, and not of any specific ascertained
parcel of goods, the vendor will fulfill his contract by
furnishing any goods fairly answering the description
given by him. When, on the other hand, the precise
article intended to be bought and sold was ascer-
tained and identified at the time of the making of the
bargain, the vendor must deliver the identical thing
so fixed upon and ascertained, and can not fulfill his
contract by tendering or delivering anything else of a
corresponding nature. If the purchaser, instead of
going in person to a shop, and selecting the goods
himself, sends an order describing what he wants, the
vendor, if he accepts the order, must select and send
an article which fairly corresponds with the descrip-
tion. Thus, where a purchaser forwarded a written
order to the vendor for "scarlet cuttings," to be
shipped on his account for the Chinese market, and
(>-) Chinery v. Viall, 5 H. & N. 293 ; 20 L. J., Ex. 180.
ISO LAW OF CONTRACT. [Bk. II. Ch. I.
the vendor sent on board a different article, it was
held that the plaintiff was entitled to recover from
the vendor all the loss he had sustained in conse-
quence of his not having had in China the goods
which he had ordered, (i) So, where the purchaser
sent an order in writing for " seventy-five barrels of
best pork, branded Scott and Co.," a description of
pork well-known in the market as cured by Scott
and Co., and paid the ordinary price for the article,
and the vendor sent an inferior commodity, cured by
another person, it was held that the vendor was re-
sponsible in damages for having sent a different
article. (/") And, where one vendor had contracted
to sell Skirving's Swede turnip seed, and another
foreign refined rape-oil, it was held that they were
responsible in damages for sending seed and oil which
did not answer the description given. (?/) If, there-
fore, a ship owner supplies a ship ordered to be
copper-fastened which is not copper-fastened, or if a
diamond-merchant sells a piece of cut glass or crystal
for a diamond, or a silversmith sells plated goods for
silver, or if a merchant sells wine or beer described as
" fit," or ordered by the purchaser to be " fit, for the
Mediterrane'an," or " India market," and sends out a
liquid which turns sour on the voyage, and is not
saleable on its arrival as wine or beer, he is liable to
an action for the breach of an implied undertaking
to furnish the article described and ordered, (z^)
577. Mercantile usage. — -Where a contract was
{s) Bridge v. Wain, i Stark. 504. L. J., C. P. 198. Wieler v. Schilizzi,
Gardinei- v. Gray, 4 Campb. 144. 17 C. B. 619.
(t) Powell V. Horton, 3 Su. no ; 2 (v) Fisher v. Samuda, t Camp. 189.
Bing. N. C. 668. Shepherd v. Kain, 5 B. & Aid. 240.
[li) Allan V. Lake, iB Q. B. 567. Tye v. Finmore, 3 Campb. 461. As
Nichol V. Godts, 10 Exch. igi. Sim- to implied warranties, %z& post.
ond V. Braddon, 2 C. B. N. S. 336 ; 26
■Sec. II.] SALE OF GOODS. 151
entered into for the supply of a certain quantity of
" best palm oil, usual tare and draft, wet, dirty, and
inferior, if any, at a fair allowance," it was held that
■evidence was admissible to show that there was an
■established usage in the trade regulating the propor-
tions of good and bad oil, and that the vendor under
such a contract was bound to supply a certain pro-
portion of the best oil. {y)
578. Time of performance. — If the sale is a sale
of things of quantity generally, and no right of prop-
erty in the things agreed to be sold passes by the
bargain from the vendor to the purchaser, time will,
in general, be of the essence of the contract, so long
as the contract remains executory, and the purchaser
will not be bound to accept and pay for the goods,
if they are not tendered on the day specified ; {£) '
but if the sale is a perfect and complete sale of spe-
cific, ascertained chattels, and the ownership and right
of property in the thing sold have been transferred
by the bargain to the purchaser, time is not of the
■essence of the contract, and the vendor can not repu-
diate the sale, and re-vest the right of property in
himself, and refuse to deliver the goods at a subse-
quent period on tender of the price, on the ground of
the non-payment thereof at the time appointed, {a)
unless the sale has been made conditional on payment
at the time named. When different times are not
expressly appointed for payment and delivery, the
(y) Lucas y. Biistow, 27 L. J., Q. (a) Martindale v. Smith, i Q. B
Jj. 364. 395. Wilinshurst v. Bowker, 8 Sc. N.
(z) Gath V. Lees, 3 H. & C. 55S. R. 571 ; 7 M. & Gr. 8S2. Chinery
Coddington V. Paleologo, L. R., 2 Ex. v. Viall, 5 H. & N. 293 ; 29 L. J., Ex.
.193 ; 36 L. J.. Ex. 73. 180.
' Sumner v. Parker, 36 N. H. 449 ; Haines v. Tucker, 50
3d. 307 ; Dwinel v. Howard, 30 Me. 258.
152 LAW OF CONTRACT. [Bk. II. Ch. I
acts of payment and delivery are, as we have seen^
concurrent, and constitute mutual conditions to be
performed at the same time ; (6) but if a precise time
has been appointed for the payment of the price, and
another and different time is fixed for the delivery,,
the acts are not concurrent, and do not constitute
mutual conditions, (t) unless they are made so by
custom and usage of trade, {d) If it appears to-
have been the intention of the parties that the sale
should be void, and the right of property in the thing
sold re-vested in the vendor, in case of the non-
payment of the purchase money, or the non-delivery
of the goods, on an appointed day, this does not en-
able the purchaser to say, " I am not ready with my
money, therefore 1 will avoid the contract," nor the
vendor to say, " I am not ready to deliver, therefore I
will be off the bargain."
If the time appointed for delivery or payment is
not of the essence of the contract, the delivery and
payment must be made within a reasonable time after
notice and request of performance ; and if no time at
all has been appointed for the performance of these
acts, the vendor is bound to deliver within a reason-
able period after request and tender of the price, and
the purchaser must in like manner accept the goods
and pay for them on delivery, or offer of delivery,,
being made by the vendor ; and if the contract is not
sought to be carried into effect within a reasonable
period, either on the part of the vendor or the pur-
(i) Callonel v, Briggs, i Salk. 113. (c) Ante. Thorpe v. Thorpe, I
Lock V. Wright, i Str. 571 ; 8 Mod. Salk. lyr ; i Raym. 665.
41. Withers v. Reynolds, 2 B. & Ad. {d) Field v. Lelean, 30 L. J., Ex>
S82. Atkinson v. Smith, 14 M. & W. 168.
695.
Sec. II.] SALE OF GOODS. 155
chaser, it is deemed to be dissolved and abandoned by
mutual consent, (i) '
When a particular day is appointed for the deliv-
ery of the goods, or the payment of the price, the party
has the whole of the day, and if one of several days^
the whole of those days, for the performance on his
part of the contract ; but he must do all he can to
make the payment or perform the act at a convenient
hour before midnight. Therefore, if he is to pay a sum
of money, he must tender it a sufficient time before
midnight for the party to receive it. If he is to deliver
goods, he must deliver them in sufificient time for ex-
amination and receipt. If the payment or delivery is.
to be performed at a certain place on a specific day„
(f) Ellis V. Thompson, 3 M. & W. Eiomat (Sale), L. i. Lanyon v. Too-
457. Langfort V. Tyler, i Salk. 113. good, 13 M. & W. 27.
' And what is a reasonable time, is to be determined
by all the circumstances of each case, and is a question
of law. 2 Parsons on C, pp. 535, 661. Adams v. Adams,
26 Ala. 272 ; Crocker v. Franklin, &c., Mfg. Co., 3 Sumn.
530; Attwood V. Cobb, 16 Pick. 227; 5 Md. 12I ; Sawyer
V. Hammott, 15 Me. 40; Howe v. Huntington, Id. 350;,
Atkinson v. Brown, 20 Id. 67 ; all other questions of rea-
sonableness are questions of fact ; but in the case of time,,
where a time is not mentioned, it is a presumption of
law that a reasonable time is meant, and courts will treat
such an agreement as if it had expressly stated that the
thing contracted to be done should be done in a reasonable
time; Crocker v. Franklin Mfg. Co., 3 Sumn. 530. But this
statement of Judge Parsons (2 Contracts, pp. 535, 661), that
the reasonableness of the time is a question of law, does not
seem to be universally acquiesced in; it has been held that it
may be a question for either or both according to circum-
stances; Attwood V. Clark, 2 Greenl. 249; Howe v. Hunting-
ton, 15 Me. 350 ; Kingsley v. Wallis, 14 Id. 57 ; Hill v. Hobart,
16 Id. 164; Murray v. Smith, i Hawks, 41 ; Greene v. Ding-
ley, 24 Me. 131 ; Cameron v. Wells, 30 Vt. 633. Benjamin, in
his work on sales (§ 700), says distinctly that such question is
one of fact for the jury.
154 LAW OF CONTRACT. [Bk. II.Ch. I.
the tender must be to the other party at that place ;
and, as the attendance of the other is necessary at that
place to complete the act, the law, though it requires
the other to be present, does not require him to be
present through the whole day ; and therefore it fixes
a particular part of the day ; and it is enough if he is
at the place a convenient time before sunset, so that
the act may be completed ; and if the party who is to
perform tenders to the party present, or, if absent,
if the tender is made, before sunset, that is sufficient,
(y) Orders for goods to be delivered as soon as pos-
sible do not oblige the vendor who accepts the order
to put everything else aside and execute it without
any delay at all. He is only bound to execute the
order within a reasonable time. (^)
579. Ejilargement of the thne of performa?ice. —
The time appointed for the performance of a contract of
sale required by the Statute of Frauds to be in writing,
can not be extended by an oral agreement, so as to
enable a party to sue partly upon the written contract
and partly upon the subsequent oral agreement. (Ji)
580. Non-delivery of goods sold. — If the contract
is entire for the purchase of a certain quantity of goods,
the vendor can not becompelled to deliver a part only
of the goods ; and if the purchaser declines to take the
whole quantity he has ordered, the vendor may at once
abandon the contract or sue for damages, (z) If the
ownership and right of property in the thing sold, pass
by the bargain to the purchaser, the vendor is not, as
we have already seen, released from his obligation to
(/) startup V. Macdonald, 7 Sc. N. log. Stead v. Dawber, 10 Ad. & E.
R. 297 ; 12 L. J., Ex. 483 ; ante. 57 ; overruling Cuff v. Penn, I M. &
{g) Attwood V. Emery, i C. B. N. S. 27.
S. 114 ; 26 L. J., C. P. 73. (/) Kingdom v. Cox, 5 C. E. 522.
{h) Marsliall v. Lynn, 6 M. & W.
Sec. II,] SALE OF GOODS. 155
■deliver the goods by reason of the non-payment of the
price at the time appointed, unless the acts of payment
and delivery have been made concurrent acts, and the
sale is made conditional on the payment of the pur-
chase money by an appointed period. If goods which
have become the property of the purchaser by bargain
are to be delivered at a future day, and before the day
the vendor sells and delivers them to another, he is
immediately liable to an action for damages at the suit
of the first purchaser. (/&) If the goods are to be de-
livered " forthwith," and the price is to be paid in a
■" fortnight " or " month," the delivery must be made
without delay. (/) ^ If a bought note specifies that
certain goods have been " bought to be paid for by
(k) Bowdell V. Parsons, lo East, (/) Staunton v. Wood, i6 Q. B.
359. Hochester v. De la Tour, 2 Ell. 638.
A Bl. 688 ; ante.
' The construction of words is of course for the court ; so
the word " month " will be construed to mean a " calendar,"
and not a " lunar " or other month. Churchill v. Merchants'
Bank, 19 Pick. 532 ; Thomas v. Shoemaker, 6 Watts. &,S. 179.
Where a certain number of days is mentioned, they must be
counted exclusively of the day of the contract. Weeks v. Hull,
19 Conn. 376; Bigelow v. Wilson, i Pick. 485; Wiggin v.
Peters, i Met. 127, 129; Henry v. Jones, 8 Mass. 453; Blake
V. Crowninshield, 9 N. H. 304; Avery v. Stewart, 2 Conn. 69;
Aiken v. Appleby, i Morris, 8; Cornell v. Moulton, 3 Denio,
12; Farwell v. Rogers, 4 Cush. 460; Buttrick v. Holden, 8
■Cush. 233; Oatman v. Walker, 33 Me. 71 ; Winslow v. China,
4 Greenl. 298 ; Howes v. Smith, 16 Me. 181 ; Ewing v. Bailey,
4 Scam. 420; Woodbridge v. Brigham, 12 Mass. 403. And it
seems the act to be done must be done before midnight on the
last day; see McClartey v. Gokey, 31 Iowa, 505. Where two
■days are mentioned as "between the 15th and 28th," or "from
the 15th to the 28th," both days are to be excluded from the
running time; Atkins v. Boylston, &c. Ins. Co., 5 Met. 440;
Richardson v. Ford. 14 111. 332 ; Cook v. Gray, 6 Ind. 335 ;
Newby v. Rogers, 40 Ind. 9; and the word "until" is ex-
clusive; People V. Walker, 17 N. Y. 502.
iS6 LAW OF CONTRACT. [Bk. II. Ch. L
cash in one month," the buyer is entitled to call for
delivery at any reasonable time from the making of
the contract ; but the vendor-has no right to the money
until the month has expired, unless a usage of trade,
authorizing the vendor to keep possession of the goods
until the day of payment arrives, can be estab-
lished, (in)
If the goods are in the hands of a warehouse-
keeper, wharfinger, or other agent, for safe custody,
and are to be fetched away by the purchaser, and the
goods are weighed and set apart for the purchaser, and
the agent consents to hold them at the disposal of the
latter, there is, as we have seen, a sufficient delivery
on the part of the vendor; and, if the goods are im-
properly taken away by a third party, the vendor can-
not then be sued for the non-delivery of them, {n)
Where, by the terms of the contract, the goods were
to be taken away at the purchaser's expense in four-
teen days from the day of the sale, and the purchase-
money was to be paid on or before the delivery of the
goods, it was held that the seller was bound to deliver
when called upon, at any time during the fourteen
days, and had not fourteen days to deliver the goods,
although the purchaser had fourteen days to take them
away. (<?) If goods are sold upon credit, upon the
terms of immediate delivery and payment at a future
day, and the purchaser suffers the vendor to retain pos-
session until the period of credit has expired, and the
money is not then paid, it has been said that the ven-
dor's lien for the price revives, and that he will not then
be bound to deliver the goods until he has received pay-
ment of the price. (/) If the purchaser has the option
(;«) Field v. Lelean, ante. i66.
(n) Wood V. Tassell, 6 Q. B. 234. (p) New v. Swain, i Dans. & LI.
(0) Hagedorn v. Laing, 6 Taunt. 193. But see Parsons on Contracts,
Sec. II.] SALE OF GOODS. 157
of paying either by bill or cash, and he fails to give or
tender a bill, he will be deemed to have made his
election to pay cash. (^)
Some auctioneers sold two ricks of hay which had
been distrained by a landlord for rent. By the condi-
tions of sale, the hay was to be removed by the pur-
chaser, and, the time specified for its removal being
considered too short, the tenant gave a written per-
mission for the hay to remain on the land for a longer
period. The price of the hay was paid at the time of
the sale, and a few days afterwards, the purchaser re-
ceived from the auctioneers a written order, addressed
to the tenant, requiring him to permit the purchaser
to remove the hay; but the tenant then refused, and
would not suffer him to come upon the land to take
it. The purchaser then brought an action against the
■defendants for the non-delivery ; and the defendants
pleaded that they did deliver possession to the plain-
tiff; and it was held that this plea was supported by
the facts ; that the permission given by the tenant for
the hay to remain on the land for the convenience of
the purchaser amounted to an attornment from the
tenant to the purchaser, and was equivalent to an ex-
press undertaking on the part of the tenant to hold
the hay for the purchaser's use and at his disposal, (r)
581, Rejection and non-acceptance of goods sold. —
If more goods are sent than the purchaser agreed to
buy, under circumstances which seem to render it
incumbent upon him to take the whole or none, he
may refuse to receive any portion of the goods so sent,
p. 441. Blackburn on the Contract of (r) Salter v. Woollams, Sc. N. R.
Sale, p. 324, and Castle v. Sworder, 6 65, 67. Noy, 55. Wood v. Manley,
H. & N. 834; 30 L. J., Ex. 310. II Ad. & E. 34. And see post, Con-
{q) Schneider v. Foster, 2 H. & structive Delivery.
N.4.
158 LAW OF CONTRACT. [Bk. II. Ch. L
and is not bound to incur risk or trouble in selecting
some of the things and sending back others, (s) So,
also, a contract for the sale of cotton of a given quality,
is not performed by a tender of a larger quantity, out
of which the buyer is required to select those bales
which answer the description of the cotton contracted
for. (t) But, if the right of property in the subject-
matter of the sale has passed by the bargain from the
vendor to the purchaser, the latter is not justified in
refusing to accept it and pay the pi^ice, by reason of
its turning out on examination to be different from
what it vi^as supposed and intended to be, or by reason
of some unintentional misrepresentation of the quan-
tity or quality by the vendor, or some deterioration
in the article between the time of the bargain and de-
livery, {u) Where the vendor agreed to sell, and the
purchaser to buy, " the cargo prima donna as it stands,
consisting of about 1,300 quarters Ibraila corn, at 30J.
per quarter, the quantity to be taken from the bill of
lading," and the bill of lading described the cargo as
being 1,667 quarters ; and afterwards, when the corn
came to be measured, it was found to consist of only
1,614 quarters, it was held that the purchaser must put
up with the loss, as there had been no intentional mis-
representation, and no fraud on the part of the vendor.
(v^ If the right of property has not passed by the
bargain, the purchaser can not be made responsible for
the non-acceptance of the subject matter of the sale
and non-payment of the price, unless the vendor can
show that the article or chattel tendered for acceptance
{s) Levy v. Green, I £1. & El. 969 ; {u) Street v. Blay, 2 B. & Ad. 462.
28 L. J., Q. B. 319. Cunliffe v. Har- Dawson v. Collis, lo C. B. 531. Par-
rison, 6 Exch. 903. .sons v. .Sexton, 16 L. J., C. P. 184 ; 4
(/) Rylands v. Kreitman, 19 C. B. C. B. 907.
N. S. 351. Boswell V. Kilborn, 15 (v) Covas v. Bingham, 2 Ell. & Bl.
Moo. P. C. 309. 836 ; 23 L. J., Q. B. 27.
Sec. II.] SALE OF GOODS. 159
fairly corresponded in quantity and quality with the
thing bargained for and agreed to be bought ; for no
man can be compelled to take more than he agreed to
buy, or a commodity different from that which he pur-
chased, (jj/)
If a purchaser has agreed to buy " about 300 quar-
ters (more or less) of foreign rye, &c.," he is not bound
to accept 350 quarters, (z) If the vendor has agreed
to sell, and the purchaser to buy, a certain quantity,
" say not less than 100, &c.," the words amount to a
contract to deliver at least the quantity specified, (a)
If the quantity is to be between 1,800 and 2,200
quarters, the purchaser is not bound to accept more
than 2,200 quarters, nor to accept less than 1,800. (by
If a man agrees to sell wool or sugar generally accord-
ing to sample, and the sample exhibited is a sample
of wool in good, dry condition, or a sample of fine
white sugar, the purchaser will not be bound to accept
damp and mouldy wool or moist brown sugar, unless
it be proved that the sample was fairly taken from the
bulk, and that the property passed by the bargain, (c)
Nor is the purchaser bound to accept goods partly of
the quality bargained for and partly of an inferior
quality, if they are mixed together so that the whole
bulk becomes of an inferior quality to that bargained
for. (of) If a vendor agrees to manufacture and de-
liver a specific chattel to a purchaser at a distant
place, the vendee is not justified in refusing to accept
(y) Hart v. Mills 15 M. & W. 85 ; Johnasson v. Young, 32 L. J., Q. B.
15 L. J., Ex. 200. 385.
(2) Cross V. Eglin, 2 B. & Ad. 106. {c) Sieveking v. Dutton, 3 C. B.
(a) Leeming v, Snaith, 16 Q. B. 331 ; 15 L- J-. C. P. 276. Josliiig v.
275 ; 20 L. J., Q. B. 165. Kingsford, 13 C. B. N. S. 447 ; 32 L.
(b) Tamvaco v. Lucas, I El. & El. J., C. P. 94.
581 ; 28 L. J., Q. B. 153. Hoare v. {d) Nicholson v. Bradfield Union^
Ren'nie, 5 H. & N. 27 ; 29 L. J., Ex. L. R., i Q. B. 620 ; 7 B. & S. 747 I 3S
73. Hibbert v. Shee, I Campb. 114. L. J., Q. B. 176.
i6o LAW OF CONTRACT. [Bk. II. Ch. I.
it by reason of deterioration necessarily incident to
the transit, (e) If the article was not inspected by
the purchaser at the time of the sale, but was selected
by the vendor, the purchaser has a right to inspect and
examine it before acceptance ; and if, on inspection,
it turns out to be a different article from that which
was bargained for and agreed to be sold, he may reject
it. (/) But, if the article has been inspected and
selected by the purchaser prior to the sale, or has been
purchased with all faults, the purchaser lias no right of
inspection before payment, (^g)
If a time for delivery is appointed, and the pur-
chaser, before the time arrives, gives notice to the
vendor that he will not accept the goods if delivered,
such notice is not an immediate breach of contract,
and does not enable the vendor immediately to bring
action to recover damages. The vendor is " bound to
wait until the time for delivery arrives, to see whether
the purchaser will retract his refusal and receive the
goods and pay for them." (/^) But, when a bargain
has been made for the manufacture of a certain speci-
fied quantity of goods to be supplied from time to
time, and paid for after delivery, if the purchaser, hav-
ing accepted and paid for a portion of the goods con-
tracted for, gives notice to the vendor not to manufac-
ture any more, as he has no occasion for them, and
will not accept or pay for them, the vendor may
without manufacturing and tendering the rest of the
goods, maintain an action against the purchaser for
(t) Bull V. Robison, lO Exch. 346 ;B. & C. i. Isherwood v. Whitmore,
24 L. J., Ex. 165. II M. & W. 347.
(/) Tye V. Finmore, 3 Campb. 461. (g) Peltitt v. Mitchell, 4 M. & Gr.
Toulmin v. Hedley, 2 Car. & K. 157. 836.
Curtis V. Pugh, 10 Q. B. iii ; 16 L. {h) Phillpotts v. Evans, 5 M. & W.
J., Q. B. 199. Lorymer v. Smith, i 477. Ripley v. M'Clure, 4 Exch.
359-
Sec. II.] SALE OF GOODS. i6i
damages, (z) In an action on a contract of sale for
the non-acceptance of goods sold, the vendor must
show that he was ready and willing to deliver the
goods to the purchaser according to the terms of the
icontract. (^ky
582. Non-payment of the price — Goods bargained
<and sold. — A contract of barter can not be changed
into a contract to pay in money, unless the parties
come to a fresh agreement to that effect. (/) If goods
are sold subject to a condition that, if the purchase
money be not paid by a particular day, they may
l»e re-sold by the vendor, and the loss on the re-
sale recovered from the purchaser making default, and
the right of re-sale is exercised, or if the purchaser has
refused to take and pay for the goods, and the goods
have been re-sold by the vendor, the vendor can not,
after such re-sale, recover the price of the goods, but
only the damage he has sustained by reason of the
(») Cort V. Araberg., &c., 17 Q. B. Hannuic v. Goldner, 11 lb. 856.
1148 ; 20 L. J., Q. B. 466. (/) Havrison v. Luke, 14 M. & W.
(k) Boyd V. Lett, i C. B. 222. 141. Atkinson v. Smith, lb. 695.
■Granger v. Dacre, 12 M. & W. 434.
' " Where a contract to deliver goods at a certain price is
"broken, the proper measure of damages in general is the dif-
ference between the contract price and the market price ot
such goods at the time when the contract is broken, because
the purchaser, having the money in his hands, may go into the
market and buy. So if a contract to accept and pay for goods
is broken, the same rule may be properly applied, for the sel-
ler may take his goods into the market and obtain the current
price for them." Benjamin on Sales, Am. Ed. § 758, and see
Ballantine v. Robinson, 46 Penn. 177; Ganson v. Madigan,
13 Wis. 67 ; Davis v. Shields, 24 Wend. 322 ; Whittemore v.
Coates, 14 Mo. 9; Northup v. Cook, 39 Id. 208; Haines v.
Tucker, 50 N. H. 307 ; Griswold v. Sabin, 51 Id. 167 ; Whelan
V. Lynch, 65 Barb. 329; Hewitt v. Miller, 61 Id. 571 ; Gordon
V. Norris, 49 N. H. 376; Haskell v. Hunter, 23 Mich. 305.
n. — II
i62 LAW OF CONTRACT. [Bk. II. Ch. I.
non-acceptance of the goods and non-payment of the
price, (m) If the price to be paid for the goods is to-
be fixed by the valuation or award of a third party, to-
be named by the purchaser, and the latter refuses to
name or appoint such valuer, the vendor can not sue.
for the price, but must bring an action against the
purchaser for refusing to make the nomination or ap-
pointment, (n) Everything that is to be done on the
part of the vendor to complete the sale, and transfer
the ownership of the thing sold to the purchaser,,
and place it at his disposal, so far at least as to enable
the latter to obtain possession of it, and deal with it
as he may think fit, on payment or tender of the price,
must be performed before an action for the price caa
be maintained. (^)
When the right cf property in the subject-matter
of the sale has passed by ihe bargain to the pur-
chaser, the latter is not released, as we have already-
seen, from his obligation to pay the price, by reason
of the vendor's neglect to deliver the goods at the
time appointed for delivery, unless the time for deliv-
ery is of the essence of the contract, and it appears to.
have been the intention of the parties that the sale
should be at an end in case of non-delivery on the
day appointed. If the sale is a sale of an ascer-
tained share of a particular chattel, such as a share of
a coach or a horse, or a share of a butt of wine, or a
cistern of oil, or a cargo of corn, sold as an undivided
quantity at an ascertained price, the sale is complete,,
and the vendor is entitled to the price as soon as he
has transferred his share and interest by a properly
(m) Lamond v. Davall, g Q. B. W. 786.
1030 ; 16 L. J., Q. B. 136. Hore v. (p) Smith v. Chance, 2 B. & Aid.
Miiner, I Peake, 58. 753. Boswell v. Kilboin, 15 Moo P.,
{«) Thurnell v. Balbiinie, 2 M. & C. 309.
Sec. II.] SALE OF GOODS. 631
authenticated contract. In sales of this kind, the ven
dor only undertakes to sell and transfer the share,
and to convey to the purchaser the same right to the
undivided quantity that he himself possessed. He
does not engage to put the purchaser into possession
of the coach, or the horse, or to divide the wine, or
measure off the oil or the corn, and put the purchaser
into separate possession of the share.
583. Goods sold and delivered. — When goods and
chattels have been actually delivered to, and received
by, a third party, under circumstances fairly giving rise
to a presumption that they were bought and sold, a
jury may infer, as we have already seen, the existence
of a contract of sale between the parties, although
not one word was said about buying and selling, and
no price was mentioned or fixed. (/) When an Act
of Parliament, for the purpose of protecting buyers,
prescribes regulations to be followed in the sale and
delivery, the vendor can not, if he neglects to observe
such regulations, recover the price, {q)
584. Sale of goods on credit. — If goods are sold
on credit, the vendor can not sue for the price until
the period of credit has expired, {r) unless the giving
of credit has been made conditional on the perform-
ance of some precedent act by the purchaser. If the
goods are sold upon the terms that the purchaser is
to give his acceptance at two or more months for the
price, and are then delivered to the purchaser, and the
latter refuses to give his acceptance according to the
contract, the vendor can not forthwith bring an
action for goods sold and delivered, but must either
sue on the promise to give the acceptance, or wait
(/) Ante. Bennett v. Henderson, 2 (?) Cundell v. Dawson, 4 C. B. 378.
stark. 550 Coles v. Bulman, 6 C. B, (r) Paul v. Dod. 2 C. B. 800. Price
X8^_ V. Nixon, ,5 Taunt. 338.
i64 LAW OF CONTRACT. [Bk. II. Ch. I.
the termination of the period during wiiich the bill
had to run. {s) If however, the goods are sold on
the terms that the vendor is to have a bill at three
months or cash, and the purchaser fails to give the
bill, the vendor may at once sue for a fair and reason-
able price in cash. (/) Where, by the terms of a
contract of sale, the purchaser was to pay down ^30
and ^214 by bills of ^30 each, payable in succession
every three months, and the purchaser omitted to pay
the £2)0 and to give the bills, it was held that the
vendor could not maintain an action for the price of
the goods until the expiration of the period at which
the last bill would become due, but must sue on the
special contract for the non-payment of the money
and the non-delivery of the bills, (u) But where the
defendant, when a portion of the goods has been
delivered under the contract, repudiates the trans-
action and refuses to receive any more, the plaintiff
has a right to treat the contract as rescinded, and to
sue for the value of the goods which have been
delivered, (v) If the contract is entire for the
delivery of an undivided quantity of goods at a cer-
tain price by a certain time, the vendor can not, after
delivering part of the goods, sue for the price of that
part until the whole has been delivered ; but, if he
delivers part, and such part is retained and used by
the purchaser after the time for the delivery of the
whole has expired, the purchaser is bound, notwith-
standing the non-performance of the contract by the
{s) Mussen v. Price, 4 East, 147. («) Paul v. Dod, 2 C. B. 800 ; 15 L,
Dutton V. Solomonson, 3 B. & P. 582. J., C. P. 177.
(t) Rugg V. Weir, 16 C. B., N. S. (-v) Bartliolomew v. Markwick, 15
477. Nickson v. Jepson, 2 Stark. C. B., N. S. 711 ; 33 L. J., C. P. 145.
227. And see post. Conditional Lee v. Risdon, 7 Taunt. 189.
Sales.
Sec. II.] SALE OF GOODS. 165
vendor, to pay what the part retained and used by
hina may be reasonably worth, (jj/)
585. Actual and constructive delivery of goods. —
The delivery of goods may be either real or symboli-
cal, actual or constructive.' When the subject-matter
of the sale is capable of manual delivery and occupa-
tion, such as a watch, a book, or a gun, and is actually
transferred from the hand of the vendor to that of the
purchaser or his agent, there is a real or actual delivery.
So, if, being a bulky commodity, it is removed from
the warehouse of the vendor to that of the purchaser,
and placed under the power and control of the latter,
there is an actual delivery. But, although there has
been no manual transfer from hand to hand, and the
goods have not been removed from the place where
they were deposited at the time of the sale, if the
vendor has handed the key of a box or warehouse
where they were deposited, to the purchaser, in order
that he may remove them, or has given to the
purchaser a delivery order or warrant for their re-
rhoval, and placed them at the disposal of the latter,
there is a symbolical or constructive delivery, pro-
vided, at the time of the delivery of the key or
warrant, the particular goods to be removed had been
weighed out or measured, or separated from the bulk
and identified, and nothing but delivery remained to
be performed by the vendor in order to complete his
part of the contract of sale. {zY
(j)') Oxendale v. Wetherell, 4 M. & (z) Chaplin v. Rogers, i East, 194.
R. 431. Greaves v. Hepke, 2 B. & Aid. 133.
" Sumner v. Hamlet, 12 Pick. 82.
'^ 2 Kent Com. 496; Crofoot v. Bennett, 2 Comst. 260. But
a flock of sheep sold at so much a head, they to be counted
after the sale, is a valid sale; Groat v. Gile, 51 N. Y. 431 ; and
see Arnold v. Delano, 4 Cush. 33 ; Hyde v. Lathrop, 2 Abb.
i66 LAW OF CONTRACT. [Bk. II. Ch. I.
When goods and chattels are incapable of manual
occupation and delivery, such as a haystack standing-
in a meadow, the same strict evidence of transfer can
App. Dec. (N. Y.) 436; Kimberly v. Patchin, 16 N. Y. 330;
Foot V. Marsh, 51 Id. 288. But a contract to sell a "fare of
fish " does not change the property in the fish ; Shaw v. Niidd,
8 Pick. 9; the general principle being that as long as any
operation of weighing, measuring, counting, or the like,
remains to be done, in order to ascertain the quantity, price, or
quality, to be delivered, there is no sale ; Macomber v. Parker,
13 Pick. 175; Gibbs v. Benjamin, 45 Vt. 124; Hale v. Hunt-
ley, 21 Id. 147; Fuller v. Benn, 34 N. II. 290; Hutchings v.
Gilchrist, 23 Vt. 88; Prescott v. Locke, 51 N. H. 94; Messer
V. Woodman, 22 Id. 172; Gilman v. Hill, 36 Id. 311,320;
Jones V. Pearce, 25 Ark. 545; Abat v. Atkinson, 21 La. Ann.
414; Bailey v. Smith, 43 N. H. 141; Kaiifman v. Stone, 25
Ark. 336 ; Strauss v. Ross, 25 Ind. 300 ; McClung v. Kelley,
21 Iowa, 508 ; Mason v Thompson, 18 Pick. 305. But where it
appears from the circumstances that it was the intention of the
parties to make a sale withotit a measurement being ascer-
tained, the rule may be different. So, in a case where a ques-
tion arose as to whether certain timber lying in a mill-pond
at the end of a water-course had been delivered, where the
purchaser had signed a memorandum, as follows : " Received
of the vendor four shots of white oak plank, .... for
which I promise to pay him twenty-six dollars per thousand,
board measure. The above timber delivered in the mill-pond,"
&c., the seller signing, at the same time a writing acknowl-
edging " that he had received of the purchaser two hundred dol-
lars in part pay for 'the timber in question,' remainder to
be paid in ninety days from surve3'ing. The canalage to be
paid by the purchaser, when he takes the plank and timber
from the pond ;" and providing that the purchaser might pro-
care a measurement of the timber by the superintendent of the
canal, and that he would abide by that measurement ; it was
held that a jury would be warranted in finding such intention ;
Reddle v. Varnum, 20 Pick. 175 ; and see Marble v. Moore, 102
Mass. 443 ; Stone v. Peacock, 35 Me. 385 ; where the ascertain-
ment of the price is a mere mathematical computation, which
can have no further effect in bringing the minds of the con-
tracting parties together, the sale may be considered as com-
plete without it ; see Adams Mining Co. v. Senter, 26 Mich. 73 ;
Tyler v Strong, 21 Barb. 198; Sewell v. Eaton, 6 Wis. 490.
Sec. II.] SALE OF GOODS. 167
Tiot ordinarily be given, and it is enough for the vendor
to show that the purchaser was himself to have fetched
away the article, and that the vendor has given him
the power and opportunity of removing it. («) ' But
if the thing sold remains in the vendor's dwelling-house
■or warehouse, the mere circumstance that the vendor
has placed the article at the disposal of the purchaser,
and given him an opportunity of removing it, if he had
thought fit, would not, it is apprehended, afford even
primS, facie evidence of delivery. ((5) And it must be
observed that the mere placing of goods at the disposal
•of the purchaser, or putting it in his power to remove
them, will not in any case constitute a delivery, if the
vendor retains his lien for the price, or possesses any
dominion or control over them, (c) Thus, if a contract
{a) Smith v. Chance, ■z B. & Aid. (S) Thompson v. Maceroni, 3 B. &
755. Wood V. Manley, 11 Ad. & E. C. 2.
35. Tansley v. Turner, 2 Sc. 238 ; 2 (c) Goodall v. Skelton, 2 H. Bl.
Bing. N. C. 151. 316.
'" This was the case in Dyer v. Libby, 61 Me. 45, the court
saying, " The fact that it was one of the conditions of the sale
that the plaintiff should haul the hay to the depot, is not in-
consistent with the proposition that it might have been deliv-
ered so as to become the property of the defendant at the
barn." And see Comfort v. Kiersted, 26 Barb. 472; South-
western Freight, &c. Co. v. Stanard, 44 Mo. 71; Dexter v.
Norton, 55 Barb. 272 ; Bradley v. Wheeler, 44 N. Y. ; Mc-
Crae v. Young, 43 Ala. 622 ; Kaufman v. Stone, 25 Ark. 336 ;
Abat v. Atkinson, 21 La. Ann. 414; Browning v. Hamilton, 42
Ala. 484; Chase v. Willard, 57 Me. 157 ; Frost v. Woodruff,
54 111. 155; McDonald V. Hewett, 15 Johns. 349; Rapelye v.
Mackie, 6 Cowen, 250 ; Russell v. NichoU, 3 Wend. 112 ; Out-
water V. Dodge, 7 Cowen, 85 ; Downes v. Thompson, 2 Hill,
137 ; Damon v. Osborn, i Pick. 476; Sewell v. Eaton, 6 Wis.
490; Watts V. Hendry, 13 Fla. 523 ; Houdlette v. Tallman, 14
JMe. 400; Craig v. Smith, Sup. Ct. of Pa. 5 Law R. 112 ; Davis
•V. Hill, 3 N. H. 382 ; Woods v. McGee, 7 Ohio, 128 ; Jewett v.
"Warren, 12 Mass. 300; Decker v. Furniss, Hill & D. 611 ; Kein
V. Tupper, 52 N. Y. 550; Ford v. Chambers, a8 Cal. 13.
i68 LAW OF CONTRACT. [Bk. II. Ch. I..
has been entered into for the sale of oil, wine, or
brandy, and the portion to be delivered is separated
from a mass of the commodity in bulk, and put intO'
casks marked with the name of the purchaser, and
placed at his disposal, there is no delivery, if the article
remains at the time, and notwithstanding such trans-
position and appropriation, in the warehouse of the
vendor, and under his dominion and control. And if
a portion of the quantity so separated is actually de-
livered into the hands of the purchaser, this will not
vary the condition of the vendor, if the contract is
entire and indivisible, as he has a lien upon the residue,
and has not done that which is tantamount to a de-
livery of the whole. ' But if the contract of sale is.
divisible, and the portion removed can be referred to
a separate and distinct contract of sale, then the vendor
will be entitled to sue for the price of the portion so-
handed over to the purchaser, (a?) ^ If the goods,,
however, are put into the possession of a third party,,
on the understanding that they are not to be removed
by the purchaser until the price is paid, an action may,,
it seems, be maintained by the vendor for the price of
them as goods sold and delivered. (^) A contract for
the sale of cotton of a given quality is not performed
by a tender of a larger quantity, out of which the buyer
is required to select those bales which answer the de-
scription of the cotton contracted for. (y )
(d) Holderness v, Shackels, 8 B. & (/) Rylands v. Kreitman, ig C. B.
C. 621 ; 3 I\[. & R. 33. N. S. 351. Boswell v. Kilborn, 15 Moo.
(e) Dodsley v. Varley, 12 Ad. & E. P. C. 309.
634.
' Russell V. Minor, 22 Wend. 259; Whipple v. Gilpatrick,
19 Me. 427; Hussey v. Thornton, 4 Mass. 405; Riley v.
Wheeler, 42 Vt. 528; Buckmaster v. Smith, 22 Id. 203; Allen
V. Delano, 55 Me. 113.
" See cases cited in last note.
Sec. II.J sale OF GOODS. 169
586. Proof of delivery — The question of delivery,
is a question of fact, and is to be determined by refer-
ence to all the surrounding circumstances, which must
be looked at in order to see if there has been a virtual
change of possession as well as a change of ownership.
{g) The taking of samples, coopering casks, and
the general exercise of acts of ownership by the pur-
chaser over the subject-matter of the sale, in those
cases where nothing but delivery remains to be per-
formed to execute the contract, are circumstances from
which an actual transfer of the possession of the article
to the purchaser may be fairly presumed ; (A) but
they are equivocal acts, open to explanation, and afford
no sufficient or satisfactory proof of delivery, if they
have been done without the knowledge or sanction of
the vendor. (?) The marking of goods, and packing
them up in boxes, or cloths, belonging to the pur-
chaser does not constitute a delivery so long as the
goods remain in the possession of the vendor, in as
much as the latter has not, until he has actually parted
with the possession of them, lost his lien for the price ;
(y^) and the delivery of part of the goods does not
as before mentioned, operate as a constructive delivery
of the whole, so as to deprive the vendor of his right
to the possession of the residue until payment of the
price. (/) The unpacking or unloading of goods for
the purpose of inspection and examination by a pur-
chaser who has not previously selected or examined
them, is not necessarily an acceptance and taking pos-
(^f) Blenkinsopv. Clayton, I Moore, Taunt. 433. See post ; Delivery Or-
331, ders. Dock Warrants.
(/i) Wood V. Tassell, 6 Q. B 236. {k) Boulter v. Arnott, I C. & M
(i) Dixon v. Yates, 5 B. & Ad. 313 ; 333.
2 N. & M. 177. Craven •/. Ryder, 6 (/) Bunney v. Poyntz, 4 B. & Ad.
568.
\^o LAW OF CONTRACT. [Bk. II. Ch. I.
session of the goods by the purchaser so as to render
him liable to an action for the price, (w) But if he
lands and stores the goods, and keeps them an unrea-
sonable time, or does more than is necessary to be
done for inspection and examination, he makes the
goods his own. {n) '
587. Delivery to carriers. — Although the accept-
ance and receipt of a carrier to whom goods are de-
livered to be conveyed to a purchaser, are not the
acceptance and receipt of the purchaser within the
meaning of the Statute of Frauds," yet a delivery, by
a vendor to a carrier, of goods sold, is a sufficient de-
livery to the purchaser to enable the vendor (if the
contract of sale is properly authenticated by a memo-
randum in writing signed by the purchaser or by earnest
or part payment), to maintain an action for the price.
The delivery of the goods to the carrier operates as a
delivery to the purchaser; the whole property imme-
diately vests in him ; he alone can bring an action for
any injury done to the goods ; and, if any accident
happens to the goods, it is at his risk, (<?) unless by
the terms of the contract the transfer of the right of
property and risk are made dependent on the arrival
of the goods at their place of destination. (/) The
only exception to the purchaser's rights over the
goods is that the vendor, in case of the insolvency of
the purchaser, may stop them in transitu. The placing
{m) Curtis v. Pugh, 10 Q. B. Ill ; 584. Gronin v. Mendliam, 5 M. & S.
16 L. J., Q. B. igg. Toulmin v. Hed- 191. Lord Cottenham, Diinlop v.
ley, 2 Car. & K. 157. Lambert, 6 CI. & Fin. 621. Tregelles
(«) Chapman v. Morton, 11 M. & v. Sewell, 7 H. & N. 574.
W. 540. {p) Calcutta, &c., Steam Naviga-
[p) Button V. Solomonson, 3 B. & P. tion Company v. De Mattes, ante.
' And see ante, § 576.
' Ante, § 561, and note.
Sec. II.] SALE OF GOODS.
171
of goods ordered on board ship is good evidence
of delivery, but not of acceptance and receipt within
the Statute of Frauds. The vendor, after he has once
parted with the goods in fulfillment of an absolute and
unconditional contract of sale, and placed them in a
•course of transmission to the purchaser, can not, as
we have already seen, lawfully re-take them from the
carrier, unless the purchaser becomes bankrupt or in-
solvent whilst they are in the hands of the carrier, or
unless the goods have been sent merely on approval,
or under some special contract or conditional sale,
reserving to the vendor certain rights over the
goods, {q) "
588. Damages for non-performance of a contract
for the sale of goods and chattels — Non-performance
Ay the purchaser. — If a vendor brings his action
against a purchaser for the non-payment of the price
of goods sold and delivered at a fixed price, and the
•delivery is proved, the measure of damages is obviously
the price agreed to be paid.^ If no price was fixed
and determined upon, the measure of damages will be
(?) Ante. Wilmshurst v. Bowker, 8 Sc. N. R. 571 ; 7 M. & Gr. 882.
Key V. Cotesworth, 22 L. J., Ex. 4.
' And stQ post, section 597.
" The ordinary action of the vender against the purchaser,
where the default of payment does not rescind the contract,
is for goods sold and delivered. Messer v. Woodman, 22 N.
'H. 172 ; Gordon v. Norris, 49 N. H. 382 ; Thompson v. Alger,
12 Met. 428; Gauson v. Madigan, 13 Wis. 67; Bement v.
Smith, 15 Wend. 493 ; Ockington v. Richey, 41 N. H. 279 ;
Sands v. Taylor, 5 Johns. 395. Payment by a check is a pay-
ment in cash, and if the check be dishonored, it seems this is
a breach of the condition of the sale. See Smith v. Miller,
43 N. Y. 171. As to payments by promissory notes, see
Clark V. Draper, 19 N. H. 419 ; Milliken v. Warren, 57 Me.
46 ; Arnold v. Delano, 4 Cush. 41 ; Thurston v. Blanchard, 23
Pick. 18.
172 LAW OF CONTRACT. [Bk. II. Ch. L
the usual and customary price for goods of a similar
character quality, and description. If the goods have
not been delivered to the purchaser, but the ownership
and right of property therein have been transferred by
the bargain to the latter, and the vendor sues for the
price of them as "goods bargained and sold," the
measure of damages is, in like manner, the price agreed
upon, which must be paid in full, without any deduc-
tion in respect of losses by fire, or tempest, or accident.
But, if the right of property has not been divested out
of the vendor, and transferred to the purchaser, the
vendor can not bring an action for the price of the
goods ; for he can not have both the goods and the
price ; but he may sue the purchaser for his breach of
contract in not accepting them, in which case the
measure of damages will be the difference between the
agreed price and the marketable value of the goods' at
the time they were tendered to, and refused acceptance
by, the purchaser, in addition to the costs, charges, and
expenses necessarily incurred by the vendor in fulfill-
ing his part of the contract. If the market price of
the article has declined after the making of the con-
tract, and the purchaser gives notice to the vendor
that he w^ill not accept, the proper measure of dam-
ages is not the difference between the contract price
and the market price on the day the notice was given„
but at the time when the contract ought to have been
fulfilled by the acceptance of the goods, if it had been
carried into effect as originally intended, (r) If the
goods have been resold by the vendor within a reason-
able time after the breach of contract by the purchaser,
the measure of damages will be the difference between
the price agreed to be given and the price realized on
{r) rhilpotts V. Evans, 5 M. & W. 145. Startup v. Cortazzi, 2 C. M. &
475. Boorman v. Nash, 9 B. & C. R. 165.
Sec. II.] SALE OF GOODS. 173
the re-sale, with the costs and expenses of the re-sale ;
but, if the re-sale has been unreasonably delayed until
the market has fallen, the price realized on such re-
sale will not afford a true criterion of the damage, {s) '
589. Damages for non-performance by the vendor!
— If a purchaser brings his action against the vendor
for a breach of contract in not delivering goods sold,
or not tendering them for acceptance, or for re-selling
and converting them to his own use, the measure of
damages will be the difference between the price
agreed to be paid and the marketable value of the
goods at the time and place when and where they
ought to have been delivered to the purchaser, {f)
(s) Stewart v. Cauty, 8 M. & W. 29 L. J., Ex. i8o.- Dingle v. Hare, 7
162. Pott V. Flather, 16 L. J., Q. B. C. B., N. S. 145. Peterson v.Ayre, 13
366. C. B. 353.
{t) Chinery v. Viall, 5 H. & N. 288 ;
' And in Chicago v. Green, 9 Wall. 726, evidence that the
plaintiff was left, by the breach of the contract, with a large
amount of raw material on his hands, was also admitted as to
the measure of damages.
' In the case of a steam-engine which was not delivered
upon a certain day named in the contract, the rent of the
factory, which would have been obtained had the engine been
in its place, was recoverable as damages. Griffin v. Colver, 16
N. Y. 489; and see, Blanchard v. Ely, 21 Wend. 342; Free-
man V. Clute, 3 Barb. 424. In McHose v. Fulmer, 73 Pa. St.
365 (said Sharswood, J.), " When a vendor fails to comply with
his contract, the general rule for the measure of damages un-
doubtedly is the difference between the contract and the
market price of the article at the time of the breach. This is
for the evident reason that the vendee can go into the market
and obtain the article contracted for at that price. But
when the circumstances of the case are such that the vendee
can not thus supply himself, the rule does not apply, for the
reason of it ceases. The ordinary measure would not re-
munerate him when the article could not be obtained else-
where. If an article of the same quality can not be procured
in the market, its market price can not be ascertained, and
we are without the necessary data for the application of the
general rule. This is a contingency which must be considered
174 J^AW OF CONTRACT. [Bk. II. Ch. I.
Where the defendant did not deliver a quantity of
iron in three equal proportions as agreed, it was held
that the true measure of damagfes in the absence of
proof by the defendant that the plaintiff might have
mitigated the loss, was the sum of the differences be-
tween the contract and market prices of each third of
the quantity on the respective dates at which they
ought to have been delivered, (u') If the contract is
for the sale and delivery of articles which can be
(ti) Brown v. Muller, L. R., 7 Ex. Johnson, L. R., 8 C. P. 167 ; 42 L. J.,
319 ; 41 L. J., Ex. 214. Roper v. C. P. 165.
to have been within the contemplation of the parties, for they
must be presumed to know whether such articles are of
limited production or not. In such a case the true measure is
the actual loss which the vendee sustains in his own manu-
facture, by having to use an inferior article or not receiving-
the advance on his contract price upon any contracts which
he had himself made in reliance upon the fulfillment of the
contract by the vendor. We do not mean to say, that if he
undertakes to fill his own contracts with an inferior article,
and in consequence such article is returned on his hands, he
can recover of his vendor, besides the loss sustained on his
contracts, all the extraordinary loss incurred by his attempting-
what was clearly an unwarrantable experiment. His legiti-
mate loss is the difference Between the contract price he was
to pay to his vendor and the price he was to receive. This is
a loss which springs directly from the non-fulfillment of the
contract." If the vendor knows that the purchase is made in
order to enable the buyer to fulfill an existing contract for re-
sale at a profit, the vendcjr is liable, if the non-delivery be his
fault, for the amount of such prospective profits ; Mossmere
V. New York Shot, &c., Co., 40 N. Y. 422 ; but the plaintiff
can not recover damages for his trouble and expense in pro-
curing the contract ; Stevens v. Lyford, 7 N. H. 360; and see
Merrimack Mfg. Co. v. Quintard, 107 Mass. 127; Western
Gravel Road Co. v. Cox, 39 Ind. 260; 2 Chitty Contr. (11 Am.
ed.) 1325, note (A) ; Wolcott v. Mount, 7 Vroom, 262 ; Bridges
V. Stickney, 38 .» e. 361 ; Fox v. Harding, 7 Cush. 516 ; Mas-
terton v. iMiiyor of B.-ookl}n, 7 Hill,'6i ; Philadelphia &c. R.
R. Co. V. Howard, ij lljw. [U. S.) 307.
Sec. II.] SALE OF GOODS.
175
readily bought in tiie public market, the measure of
damages is the difference between the agreed price
and what it would have cost the buyer if he had gone
into the market and purchased similar goods at the
time the contract was broken, (v) But where, after
breach of a written agreement to deliver goods, the
buyer, at the seller's request, waited several months
before buying goods in the place of those contracted
for, it was held that the true measure of damages was
the difference between the contract price and the price
of the substituted goods, though this price was greater
than that of such goods when the contract was first
broken, (jj/) But if the goods are ordered in Eng-
land by a merchant abroad, for the purpose of being
exported and re-sold in a foreign market, and the
order is accepted, and the vendor, knowing that the
goods are required for a foreign market, undertakes to
forward the goods, but neglects so to do, the measure
of damages is not the difference between the agreed
price and the marketable value of the goods in Eng-
land, but between the price and the marketable value
of the goods at the place where they would have been
re-sold by the purchaser. {£) The purchaser can not
recover as special damage the loss of anticipated prof-
its in the home market ; nor, if he has contracted to
re-sell the goods at a profit, can he recover such
profit, (a)
If the vendor has a month, or any specific period
(v) Josling V. Irvine, 3«^^. Jonesv. 4^5; 34 L. J., C. P. 169. O'Hanlan
Just, L. R., 3 Q. B. 197 ; 37 L. J., Q. v. Gt. West. Rail. Co., 6 B. & S. 484 ;
B. 89. 34 L. J-, Q. B. 154.
(7) Ogle V. Vane (Earl), L. R., 2 (a) Williams v. Reynolds, 34 I-. J.,
Q. B. 275 ; L. R., 3 Q. B. 272 ; 36 L. Q. B. 221, qualifying and restricting
J., Q. B. 77 ; 37 L. J., Q. B. 77. Dunlop ». Higgins, i H. L. C. 403,
(z) Bridge v. Wain, i Stark. 504. and overruling Waters v. Towers, 8
Borries v. Hutchinson, 18 C. B., N. S. Exch. 401.
176 LAW OF CONTRACT. [Bk. II. Ch. I.
of time, allowed to him for making the delivery, and
finds, before the time has elapsed, that he will be un-
able to complete the delivery, and gives notice to the
purchaser that he refuses to proceed therewith, and the
price rises, the measure of damages is the difference
between the contract price and the higher price of the
subject-matter on the last day of the period within
which the delivery ought to have been made, {b) ' If
the vendor of shares neglects to deliver the shares, or
complete the transfer, the measure of damages is the
difference between the price agreed to be paid and the
market price on the day on which the sale should have
been perfected ; and the purchaser is not entitled to
damages in respect of a further advance of price tak-
ing place afterwards, {c) In a case where the purchase-
money had been paid in advance, the true measure of
damages was held to be, not the amount of the pur-
chase money, but the marketable value of the property
at the time it ought to have been delivered to the pur-
chaser ; for to that extent only was the purchaser dam-
nified, unless he had sustained some special damage
by reason of the non-delivery at the time appointed.
((/) But in the case of a contract for the sale and
purchase of shares, when the vendor holds in his hands
the money of the purchaser, and thereby prevents him
from using it, and from buying other shares therewith,
the proper measure of damages would seem to be the
highest price for which the same number of shares
might be purchased in the market, either on the day
the contract was broken, or at any time between that
(b) Leigh v. Paterson, 8 Taunt, 540. Shaw v. Holland, 15 M. & W. 145.
Loder v. Kekule, 3 C. B., N. S. 140. {d) Dutch v. Warren, cited 2 Burr.
(f) Tempest v. Kilner, 3 C. B. 253. ion, 1012. Valpy v. Oakeley, 16 Q.
Gainsford v. Carroll, 2 B. & C. 624. B. 941.
' See Merrimack M'f'g. Co. v. Quintard, 107 Mass. 127.
Sec. II.] SALE OF GOODS. 177
day and the day of trial, if the action has been brought
■without any unreasonable or improper delay, {e) When
the action is not brought upon the special contract,
but for the recovery of the purchase money, as money
had and received, on the ground of a total failure of
the consideration for the payment, the whole pur-
chase money is recoverable. If special damage has
been sustained by reason of the non-delivery, such
special damage may, under certain circumstances, be
recovered. {/)
If a bill has been given for the price of the'goods,
and the bill has been dishonored before delivery, nom-
inal damages only are recoverable from the vendor in
an action for not delivering the goods according to his
contract, (^g)
590. Specific performance of contracts for the sale
■of goods and chattels. — Performance of a contract for
the sale of goods and chattels will not generally be
decreed, not because of their personal nature, but be-
cause damages at law, calculated on the market price
of the goods, are in general as complete a remedy for
the purchaser as the delivery of the goods contracted for,
inasmuch as with the damages, he may ordinarily pur-
chase the same quantity of the like goods. (Ji) But
a contract for the sale of a specific chattel, such as a
barge or a vessel, (z) or a chattel having a "pretium
affectionis" or a peculiar value resting on its individu-
ality, such as "the Pusey Horn;" {k) St. Margaret's
silver tobacco-box; (/) the silver altar-piece of the
{e) Owen v. Routh, 14 C. B. 337 ; {h) Story's Eq. Jur. § 717. Buxton
23 L. J., C. P. 105. Shaw V. Holland, v. Lister, 3 Atk. 383. Pooley v. Budd,
imte. Sedgwick on Damages, 265. 14 Beav. 43.
(/) Black V. Baxendale, i Exch. (j) Claringboald v. Curtis, 21 L. J.,
410. Ch., 541.
(g) Griffiths V. Perry, l Ell. & Ell. (k) Pusey v. Pusey, I Vern. 272.
680 ; 28 L. J., Q. B. 204. (/) Fells v. Read, 3 Ves. 70.
II. — 12
178 LA IV OF CONTRACT. [Bk. II. Cn. I.
Duke of Somerset ; (m) the insignia and decorations
of a lodge of freemasons ; (n) and old family pictures,
(c) and heirlooms, {/>) will be enforced in specie. A
contract for the sale of 500 chests of tea is not a con-
tract which can be specifically performed, because it
does not relate to any chests of tea in particular ; but
a contract to sell certain chests of a particular kind
of tea deposited in a particular locality may be en-
forced in specie ; and the purchaser may obtain an
injunction to prevent the seller from delivering
it to any other person. (^) Wherever the object of
sale is such that there is an uncertainty whether the
purchaser can procure another chattel of the same kind
and value, or the possession of it is desirable for cer-
tain purposes which no other chattel of the same kind
will answer, a specific performance will be decreed, (r) '
{in) Duke of Somerset v. Cookson, {p) Earl Macclesfield v. Davis, 3.
3 P. Wms. 389. Ves. & B. 16.
(k) Lloyd V. Loaring, 6 Ves. 773. {q) Lord Westbury, Holroyd v .
{o) Lady Arundell v. Phipps, 10 Marshall, 33 L. J., Ch. Ig6 ; 10 H. L.
Ves. T3g. Lowther v. Lowther, 13 C. 209,
Ves. 95. {r) Falcke v. Gray, 29 L. J., Ch.
2S.
' A court will decree specific performance wherever the arti-
cle is of such a nature as that it can not be readily purchased, as-
in the English case of Thorn v. Commissioners of Public
Works, 32 Beav. 490; where the articles were the arch stone,
span-drill stone, and tlie " Bramley Fall" stone, of the old West-
minster bridge; Sarter v. Gordon, 2 Hill Ch. 126 ; Young v_
Burton, i IMcJMullan, 255 ; so contracts to deliver a certain sort
of clay; Forman v. Clark, 3 Stoct. (N. J.) 306; Clark v. Flint,
22 Pick. 231 ; or bank shares, Cowles v. Whitman, 10 Conn.
121 ; but where a quantity of articles are contracted to be
delivered, some of which can be readily procured, and some of
which can not, specific performance will be decreed as to them
all; McGowin v. Remington, 12 Pa. St. 56; but not of a con-
tract to deliver stock, because stock ordinarily can be obtained
in the market. Leach v. Forbes, 11 Gray, 506 ; Todd v. TufFt,
7 Allen, 371 ; Treasurer, &c. v. Commercial, &c. Co., 23 Cal..
Sec. II.] SALE OF GOODS.
179
591. Abatement of the contract price. — In con-
tracts for the sale of goods and chattels, the agreed
price may be reduced by evidence showing that the
goods were not of the proper quality or description ;
(.y) and the purchaser is not, by reason of his having
given such evidence, and obtained a reduction in the
amount of the contract price in an action brought
against him by the vendor, precluded from bringing
his cross action to recover compensation for any
special damage that he may subsequently sustain by
reason of the breach of the contract. (/) Care, how-
ever, must be taken to mark the distinction between
an action on the contract itself for the agreed price,
and an action upon a bill of exchange or promissory
note given by way of payment for the amount. In
the former, the value only can be recovered ; in the
latter, the party holding bills given for the price of
the goods supplied can recover on them, unless there
has been a total failure of the consideration. If the
consideration fails partially, as by the inferiority of the
{s) Cutler V. Close, 5 C. & P. 337. if) Mondel v. Steel, 8 M. & W. 858.
Allen V. Cameron, i Cr. .& M. 832. Riggev. Burbridge, 15 M. & W. 598.
Turner v. Diaper, 2 M. & Gr. 241.
390; Ross V. Union Pacific R. R. Co., Wooler v. C. C. R. 26.
But equity will not decree specific performance of a- contract
of an actor to act ; Ford v. Jermon, 6 Phila. 6. " The reason,"
as was said by the court, Hare, J., in that case, "why the
courts will not attempt to force an unwilling performer before
the public, is the harshness of compelling obedience by im-
prisonment, and the difficulty, or rather impossibility, of know-
ing whether his obedience is real or illusory, when he finally
consents to appear. In order to render such a decree effectual,
it would be necessary to appoint a master whose duty it
should be to frequent the theatre and decide whether the mis-
takes and incongruities by which the part might be dis-
figured, were in contempt of the order of the court or unin-
tentional ; and see the question considered and cases cited ia
Morgan's Law of Literature, vol. 2, § 325.
i8o LAW OF CONTRACT. [Bk. II. Ch. I.
article furnished, the buyer must seek his remedy by
a cross action, (u) Thus, where a contract was
entered into for the purchase of goods of " good
quality and moderate price," and the price was esti-
mated at ^i,ooo, and bills were given for that amount,
it was held to be no defense to an action on the bills
that the goods turned out to be worth much less than
the estimated price, and that the acceptor had paid on
the bills more than the real value of the goods, (v)
The contract also may be divisible ; but the security
is entire.
592. Of the vendors lien for the price of goods
sold. — When diflFerent times are not expressly ap-
pointed for payment and delivery, the acts of payment
and delivery are, as we have seen, concurrent, and con-
stitute mutual conditions to be performed at the same
time, so that the purchaser can not demand the thing
sold without paying or offering to pay the price, nor
the vendor the price without delivering or offering to
deliver the subject-matter of the sale. " If I sell you
my horse for £\o, if you will have the horse, I must
have the money ; or, if I will have the money, you
must have the horse." (^y) '
(«) Tye V. Gwynne, 2 Camp. 346. {y) Callonel v. Briggs, I Salk. 113.
Moggridge v. Jones. 3 Camp. 38 ; 14 Lock v. Wright, i Str. 571 ; 8 Mod.
East, 486. Camac v. Warriner, i C. 41. Withers v. Reynolds, 2 B. & Ad.
B. 357. 882. Atkinson v. Smith, 14 M. & W.
{v) Obbard v. Betham, M. & M. 695.
483.
' See Meany v. Head, i Mason, 319 ; Cornwall v. Haight,
8 Barb. 328; Bowen v. Burk, 13 Penn. St. 146; Milliken v.
"Warren, 57 Me. 46 ; Arnold v. Delano, 4 Cush. 38 ; Clark v.
Draper, 19 N. H. 419, 421 ; Wilde, J. in Parks v. Hall, 2 Pick.
212 ; Barrett v. Pritchard, 2 Pick. 515 ; Burr v. Logan, 5 Har-
ming) 52- But a lien may be waived by an agreement, express
or implied; Pickett v. Bullock, 52 N. H. 354. General de-
livery of a part of the goods is a sufficient delivery to destroy
Sec. II.] SALE OF GOODS. i8i
593. When the vendor may re-sell. — If ascertained
chattels have been bargained and sold by a properly-
authenticated contract, and the right of property has
passed to the purchaser, the vendor can not, as we
have already seen, rescind the contract and re-vest the
right of property in himself, and re-sell the goods, by
reason of the neglect of the vendee to take and pay
for the goods at the time appointed ; {£) but if the
purchaser continues in default, and will not perform
his part of the contract, the vendor may re-sell them
within a reasonable period after he has given the pur-
chaser express notice of his intention so to do.' A
mere notice to remove the goods and pay the price
will not justify the vendor in re-selling; {a) but if the
latter gives to the purchaser a distinct intimation of
his intention to re -sell in case of the non-removal and
non-payment of the goods within a reasonable period
from the receipt of the notice,^ and the purchaser then
(2) Martindale v. Smith, I Q. B. 22 L. J., Ex. 4. Page v. Cowasjee, L.
395. Milgatev. Kebble, 3 Sc. N. R. R., i P. C. 127.
358 ; 3 M. & Gr. 100. Wilmshurst v. (a) Greaves v. Ashlin, 3 Campb.
Bowker, 8 Sc. N. R. 571 ; 7 M. & Gr. 426.
882. Key V. Cotesworth, 7 Exch. 607 ;
the vendor's lien; Buckley v. Furniss, 17 Wend. 507; Parks
V. Hall, 2 Pick. 206 ; French v. Freeman, 43 Vt. 93 ; Haskell
V. Rice, II Gray, 240; the giving of a promissory note is not
such a payment as Wfill divert a Jien ; Clark v. Draper, 19 N.
H. 419; Thurston v. Blanchard, 22 Pick. 18; Arnold v. De-
lano, 4 Cush. 41 ; as to whether the indorsement of a bill of
lading, dock warrant, or warehouse certificate will destroy a
vendor's lien, see Arnold v. Delano, 4 Cush. 39.
' Haines v. Tucker, 50 N. H. 313; Redmon v. Smock, 28
Ind. 365; Saladin v. Mitchell, 45 111. 80; Rosenbaums v.
Weeden, 18 Gratt. 785.
" Id. Girard v. Taggart, 5 Serg. & R. 19 ; Debbie v. Cor-
bett, 5 Bosw. 202; Newhall v. Vargus, 15 Me. 314; Neil v.
Cheves, i Bailey (S. C), 537 ; Warren v. Buckminster, 24 N.
H. 336, 344; Pollen v. Le Roy, 30 N. Y.558; Sands v. Taylor,
i82 LAW OF CONTRACT. [Bk. II. Ch. I.
refuses to take and pay for the goods, he may fairly
be deemed either to have himself repudiated or aban-
doned the contract, or to be an assenting party to the
sale, or to have given the vendor an implied authority
to re -sell. (J>) If the goods are of a perishable nature,
and the purchaser refuses to receive them, the vendor
is entitled to re -sell them, to prevent their deteriora-
tion or destruction, after giving the purchaser due
notice of his intention.'
594. Insolve7icy of the purchaser. — When the pur-
chaser becomes insolvent before the contract for sale
has been completely performed, the seller, notwith-
standing he may have agreed to allow credit for the
goods, is not bound to deliver any more goods under
the contract until the price of the goods not yet de-
livered is tendered to him ; and if a debt is due to him
for goods already delivered, he is entitled to refuse to
deliver any more till he is paid the debt due for those
already delivered, as well as the price of those still to
{b) Maclean v. Dunn, i Moo. & P. 7S0, 781 ; 4 Bing. 722. Lanjfort v.
Tyler, I Salk. 113.
5 Johns. 395; Adams v. Mirick, cited in 5 Serg. & R. 32 ;
Girard v. Taafgart, 5 Serg. & R. 19; M'Combs v. M'Kennan,
2 Watts & S. 216.
' And this re-sale rescinds the original sale ; see Warden
V. Marsliall,99 Mass. 305 ; Priest v. Wheeler, loi Id. 479; and
the vendor sell them as the agent of the original purchaser,
and may recover of him the difference between the contract
and the re-selling price; Gordon v. Norris, 49 N. H. 383;
Haines v. Tucker, 50 Id. 313. But the sale must be in good
faith, for the best procurable price, and in the most reason-
able method that can be adopted to procure the best price,
Wfhether it be private or public sale. Crooks v. More, i Sandf.
297 ; Conway v. Bush, 4 Barb, 564; Pollen v. Le Roy, 31 N.
Y. 558 ; Appleton v. Hogan, 9 B. Mon. 69; Haines v. Tucker,
50 N. H. 307, 313.
Sec. II.] SALE OF GOODS. 183
be delivered, (c)' And it makes no diflference in this
respect whether the contract is for the sale of specific
goods or for the sale of goods to be delivered by in-
stalments, {dy
595, Countermand of delivery orders. — Similarly,
if possession has not been given, and the delivery
completed, under a delivery order or dock-warrant, the
vendor may, if the purchaser becomes insolvent before
payment, countermand the order or warrant, although
it has been accepted by the person to whom it is ad-
dressed, and require the latter to hold the goods on
his, the vendor's, account, as before the order was
made, provided the goods have not been re-sold, and
the warehouse-keeper or bailee has not attorned, to the
sub-purchaser in the manner presently mentioned. It
has been holden that possession had not been given,
and that delivery was not complete, so as to prevent
the vendor from countermanding his dehvery order
by reason of the insolvency of the purchaser, in the
following cases : — where ten tons of Riga flax were
sold at ;^i 18 per ton, to be paid for by the purchaser's
acceptance at three months, and the ten tons were to
be separated from a larger qaantity lying in bulk upon
a wharf, and the vendor gave to the purchaser a de-
livery order on the wharfinger for the ten tons, which
{c) Ex parte Chalmers, in re Ed- {d) Ex parte, Chalmers, in re Ed-
twards, L. R., 8 Ch. 289. wards, supra.
' Or if he has agreed to receive the note of a third party
in payment for the goods, and that party becomes insolvent;
Roget V. Merritt, 2 Carnes, 117 ; Benedict v. Field, 16 N. Y.
■595- . , . ,
" See as to vendors' rights on bankruptcy or insol-
vency of the purchaser, Frazer v. Milliard, 2 Strobh. 309 ;
Jewett V.Warren, 12 Mass. 300; Rice v. Austin, 17 Mass.
204.
i84 LAW OF CONTRACT. [Bk. II. Ch. L
order was accepted by him and entered in his books,,
but, before the weighing and separation of the ten
tons from the bulk, the purchaser became insolvent,
{e) — where fifty tons of oil were sold at a fixed price ;
and an order for the delivery thereof was given to the
purchaser, and forwarded to the wharfinger who had
the custody of the oil, but it was the custom of the
trade for the casks to be searched by the cooper of the
vendor, and for the broker of both parties to examine
them to ascertain the foot, dirt, and water in each, with
a view to certain allowances in respect thereof, and
then the casks were to be filled up by the cooper at
the expense of the vendor, and the purchaser became
insolvent before these preliminary acts had been per-
formed ; (y) — where a purchaser agreed to purchase
the "small parcel of starch" belonging to the vendor,,
which he had seen lying at *the warehouse of a third
party, at ^6, per cwt., to be paid for by bill at tw^o
months, fourteen days to be allowed for delivery,
and the vendor gave a note to the purchaser addressed,
to the warehouse-keeper, directing him to " v^^eigh and
deliver " to the purchaser " all his starch," which order
was forthwith lodged at the warehouse, and a large por-
tion of the starch, on that and two subsequent days, was
weighed and delivered to the purchaser, and removed
pursuant to the order, but the purchaser became bank-
rupt whilst the residue remained unweighed in the
warehouse, and the vendor countermanded the delivery
of the unweighed residue, {g)
Where, on the other hand, 130 bales of bacon,,
lying at a wharf, were sold and weighed by the
vendor, and set apart for the purchaser ; and the price
(e) Busk V. Davis, 2 M. & S. 402. (/) Wallace v. Breeds, 13 EasU
Shepley v. Davis, 5 Taunt. 617. 522.
(g) Hanson v. Meyer, 5 East, 625.,
Sec. II.j SALE OF GOODS. 185
was ascertained, and was to be paid by bill at two
months; and an order was given to the wharfinger to
deliver the goods to the purchaser, who went to the
wharf and presented the order, and with the assent of
the wharfinger took possession of them and weighed
the whole, and took away part, but became bankrupt
before he had removed the residue, whereupon the
vendor countermanded the delivery order, it was held
that, the order having been executed, and the goods
actually delivered under it to the purchaser, they had
irrecoverably become the property of the latter. Qi)
And where a specified quantity of oats in a particular
bin in a warehouse was sold at an ascertained price,
and a delivery order was entered by the warehouse-
keeper in his books, and the oats were transferred
into the names of the purchasers, and there were no
oats in the bin besides the oats in question, it was
held that the delivery was complete by the transfer in
the books of the warehouse-keeper, (z) Whenever
the vendor has given the purchaser actual possession
of the goods sold, all the vendor's rights over them
are completely gone, although the things have not
been removed from the vendor's premises, (^k)
596. Shares and undivided quantities sold as
suck. — If the vendor himself is possessed only of an
undivided share of a commodity, such as a quarter of
a particular pipe of wine, or cistern of oil, or the half
of a specific cargo of sugar in the hands of other
part owners, or of a common bailee, and he sells his
share and interest as an undivided quantity, just as he
possesses it, and gives the purchaser credit for the
payment of the price, and hands him a delivery
(h) Hammond v. Anderson, I B. & E. 895.
p N. J<. 6q. (^) Tansley V.Turner, a«fe. Cooper
(0 Swanwick v. Sothern, 9 Ad. & v. Bill, 34 L. J., Ex. 161.
i86 LAW OF CONTRACT. [Bk. II. Cii. I.
order, which is accepted by the party having the
custody of the property, the vendor can not, if the
purchaser becomes bankrupt before payment, annul
the sale and prevent his assignees from obtaining
separate possession of his share. (/)
597. Intervention of the rights of sub-pur^
chasers. — The indorsement and transfer of a delivery
order from one purchaser to another w^ill effect no
change of possession of the goods, so long as the
delivery order has not been presented to, and accepted
by, the warehouse-keeper, or party holding the goods,
as the agent of the vendor, and will not deprive the
unpaid vendor of his right of countermand in case of
the insolvency of the first purchaser, (in) If the
vendor is his own warehouseman, and gives to the
purchaser a delivery order, or an acknowledgment
that he holds the goods on account of, or to the order
of, the latter, he has a right to revoke the order and
retain possession of the goods in case of the insol-
vency of the purchaser before actual payment, so
long as the delivery order remains in the hands of the
latter, and the goods have not been re-sold, and the
rights of third parties do not intervene. (?z) But if
the goods have been re-sold, and the second purchaser
has received from his immediate vendor, the first pur-
chaser, a delivery order addressed to ' the original
vendor, which has been accepted by him, the original
vendor can not, after he has thus attorned to such
second purchaser, refuse to deliver the goods to such
second purchaser, pursuant to his acceptance, although
the first purchaser to whom he sold, becomes bankrupt
before delivery and before payment of the price, and
(/) Whitehouse v. Frost, 12 East, 309.
614. (n) Townley v. Crump, 4 Ad. & E.
Im) M'Ewan v. Smith, 2 H. L. C. 58 ; 5 N. & M. 606.
Sec. II.J
SALE OF GOODS.
187
the goods were not weighed or measured over prior
to the bankruptcy of the first purchaser, (o) But it is
otherwise if the original vendor has given his imme-
diate purchaser, the sub-vendor, no delivery order or
•dock-warrant, and has not furnished him with any
evidence of title, or in any way been a party to the
sub-sale. (/)
598. Of the vendors right of stoppage in transitu.
— Goods in the hands of carriers and forwarding
agents. — If the purchaser becomes bankrupt or insolv-
ent before payment of the price, the vendor is entitled,
so long as the goods are in transitu, and have not
reached their final destination or come into the
manual possession of the purchaser, or that of any
other party whom he may have appointed his agent
finally to take possession of and keep the goods for
him, to re-take them and put himself into the same
situation as if he had never parted with the actual
possession of them. (^) ' And this right of the vendor
(p) Hawes v. Watson, 2 B. & C. 542
Green v. Haythovne, I Stark. 447,
Stoveld V. Hughes, 14 East, 316,
Pearson v. Dawson, 27 L. J., Q. B
248. Woodley v. Coventry, ante.
Cooper V. Bill, 3 H. & C. 722 ; 34 L,
J., Ex. 161. Knights v. Wiffen, L
R., 5 Q. B. 660 ; 40 I.. J., Q. B. 15.
(/) Craven v. Ryder, 6 Taunt. 433.
Griffiths v. Perry, 28 L. J., Q. B. 204.
Moakes v. Nicholson, ig C. B., N. S,
290 ; 34 L. J., C. P. 273.
{q) Gibson v. Carruthers, 8 M. &
w. 338-341.
' It was held in Rogers v. Thomas, 20 Conn. 54, that the
insolvency or bankruptcy must occur between the dates of the
sale and the stoppage ; but it has been said in Ohio, that the
vendor may stop the goods upon discovering that the pur-
chaser was insolvent at the date of the sale ; Benedict v.
Schaettle, 12 Ohio St. 515 ; and see Nay lor v. Dennie, 8 Pick.
198; Reynolds v. Boston & Maine R. R., 43 N. H. 589; Con-
yers v. Ennis, 2 Mason, 236; Buckley v. Furniss, 15 Wend.
137 ; S. C. 17 Id. 504; Biggs v. Barry, 2 Curtis, 259 ; Stevens
V. Wheeler, 27 Barb. 663 ; Thompson v. Thompson, 4 Cush.
127, 134; Lee V. Kilburn, 3 Gray, 594, 600; Herrick v. Borst,
4 Hill, 650; Chandler v. Fulton, 10 Texas, 2; Benedict v.
i88 LAW OF CONTRACT. [Bk. II. Ch. I.
is not defeated or destroyed by part payment of the
purchase money, or by the acceptance of a bill of
exchange or promissory note for part of the price, (r)
But it is strictly confined to the unpaid vendor of
goods sold, (i) ' or to persons who stand in the posi-
tion of an unpaid vendor, as, for instance, a merchant
who purchases goods on his own credit for another, (f)
and does not extend to persons who have forwarded
goods to a creditor by way of payment, or in satis-
faction and discharge of a debt due to the consignee.
(u) The stoppage may be effected either by the
vendor himself or his authorized agent, but not by a
person who has no authority from the vendor to stop
the goods ; and a subsequent ratification by the vendor
of an unauthorized stoppage is not equivalent to a
precedent authority, and will not cure the defect of
want of authority. (^)
Goods delivered to a carrier to be conveyed from
a vendor to a purchaser, are held to be in transitu ;
although they may have been consigned to a carrier
ir) Hodgson v. Ley, 7 T. R. 440. {i) The Tigress, i B. & L. 38 ; 32
Feise v. Wray, 3 East, 93. New v. L. J., Adm. 97.
Swain, i Dans. & Lid. Merc. C. 193. {u) Vertiie v. Jewell, 4 Campb. 31,
Edwards v. Brewer, 2 M. & W. 375. (x) Bird v. Brown, 4 Exch. 796.
(j) Sweet V. Pym, i East, 4. Jenkyns Hutchings v. Nunes, I Moo. P. C. N.
V. Ushorne, 7 M. & Gr. 678. S. 243.
Schaettle, 12 Ohio St. 515 ; Blum v. Marks, 21 La. Ann. 268.
Or if the purchaser had died and his administrator received
the goods, the transit is ended and the goods can not be
stopped; Conyers v. Ennis, 2 Mason, 236.
' The right of stoppage in transitu is nothing more than
an extension of the vendors' common-law lien upon goods
for his price, and has no effect of itself upon the contract.
Rowley v. Biglow, 12 Pick. 313; Rogers v. Thomas, 20 Conn.
53; Atkins V. Colby, 20 N. H. 153; Grout v. Hill, 4 Gray,
361, 366; Jordan v. James, 5 Ham. 98; 2 Kent, 541 ; Chandler
V. Fulton, 10 Texas, 2 ; Newhall v. Vargas, 13 Me. 93, 104; S^
C. 15 Id. 315 ; Hunn v. Bowne, 2 Caines, 38, 42.
Sec. II.] SALE OF GOODS. 189
specially appointed by the purchaser to receive them,
or may be under the charge of a general forwarding
agent {y) of the purchaser, or in the hands of a
packer, or wharfinger, or innkeeper, or any other
middleman forming a mere link in the chain of com-
munication or transmission from the buyer to the
seller ; and the transitus continues, into whatever
hands they may happen to fall, until they have reached
their destination, {£) or have been actually delivered
to the consignee or his agent for custody, although
the goods may have been shipped, and the prior car-
riage and wharfage dues paid, by the general shipping
agent of the purchaser.' But goods are not in transitu,
when they are journeying in the purchaser's own cart
or carriage, under the custody or care of his own ser-
vant or agent. If the purchaser charters and de-
spatches a vessel to a distant port to receive the
goods, and they are put on board, the fact of their
being in transitu will depend upon the character in
which the master or commander receives them. If
the charter-party amounts, as it generally does, merely
to a contract for the carriage of merchandise, the cap-
{y) Slater v. Le Feuvre, 2 Sc. 146 ; (z) Bolton v. The Lancashire and
2 Bing. N. C. 81. Coates v. Railton, Yorkshire Railway Company, L. R., I
9 D. & R. 593 ; 6 B. & C. 422. C. P. 431 ; 35 L. J., C. P. 137.
' The transfer of a bill of lading by the vendor to his
agent, vests a sufficient property in the latter to entitle him to
stop in transitu the goods in his own name. Seymour v.
Newton, 105 Mass. 272; Newhall v. Vargas, 13 Me. 93; nor
does it seem that he need any express authority to do so ; lb. ;
Bell V. Moss, 5 Whart. 189. The vendor's right is not impaired
by his having negotiated bills given in payment for the goods ;
Donath v. Broomhead, 7 Penn. St. 301 ; Hays v. Mouille, 14
Id. 48; Stubbs V. Lund, 7 Mass. 453; Bell v. Moss, 5 Wheat.
189 ; Arnold v. Delano, 4 Cush. 33 ; and see Clark v. Mauran,
3 Paige. 373; Wood v. Roach, i Yeates, 177.
igo LAW OF CONTRACT. [Bk. II. Ch. I.
tain having the general control and management of
the vessel, and continuing the servant of the ship-
owners, the goods will be received by him in the
character of a carrier, and will be in transitu, {a)
But if the charter-party amounts to a demise or bail-
ment of the ship, the charterer becoming the tempor-
ary owner, and the master or commander his servant
or agent, the delivery of the goods on board will be a
delivery to the charterer or purchaser, and the posses-
sion of the master his possession, and the vendor will
have no right to re-take them, ((5) unless the goods
are shipped under a bill of lading reserving to the
vendor the dominion and control over them. ' If the
vendee takes the goods out of the possession of the
carrier into his own before their arrival at their destin-
ation, with or without the consent of the carrier, there
seems no doubt that the transit will be at an end,
although in the absence of the carrier's consent, there
may be a wrong to him for which he would have a
right of action, (c)
A delivery on board the purchaser's own ship and
to his own master is not inconsistent with the vendor's
annexing terms to the delivery by bill of lading, which
may enable him to retain a right to claim the goods,
and prevent delivery if the terms are not complied
with, (^d) Where goods shipped on board a vessel
(a) Rodger v. Comptoir d'Escompte (c) Whitehead v. Anderson, 9 M. &
de Paris, L. R., 2 P. C. 393 ; 40 L. J., W. 518.
P. C. I. (d) Ogle V. Atkinson, 5 Taunt. 750.
(b) Bothlingk v. Inglis, 3 East, 397. Turner v. Trustees, &c., Liverpool
Schotsmans v. Lancashire and York- Dock, 6 Exch. 543. Moakes v. Nichol-
shire Railway Company, L. R., 2 Ch. son, 19 C. B., N. S. 2go ; 34 L. J., C.
332 ; 35 L. J., Ch. 100. P. 273.
' Where the goods are carried by a ship chartered by the
buyer, see Newhall v. Vargas, 13 Me. 93; Stubbs v. Lund,
7 Mass. 453; Rowley v. Bigelow, 12 Pick. 307.
Sec. II.J sale OF GOODS. 191
were to be delivered to the purchaser " in the port of
London," and the vessel arrived at her moorings in the
river Thames, and the goods were put into the lighters
of a wharfinger employed and paid by the purchaser,
it was held that the transitus was not determined, {e)
Neither is the transitus determined by the actual
arrival of the goods in boats or lighters alongside the
purchaser's wharf, if the boats and lighters are used
merely as the vehicle of conveyance, and not as places-
of deposit and ultimate reception, (^f) The transitus
is not determined merely by the arrival of the goods
at the place of destination, but is deemed to continue
until they have come into the actual possession of the
purchaser. If, therefore, they are in the hands of
custom-house officers at the port of destination, or are
placed in quarantine, the transz'tzcs is not determined,
and the right of stoppage is not taken away. (^) If
the goods are not addressed directly to the consignee,,
but to the vendor's own agent at the place of destina-
tion, accompanied by an order directing him to deliver
them to the purchaser, the goods continue in the con-
structive possession of the vendor until they have been
actually handed over to the purchaser, or until the
vendor's agent has attorned to the latter and agreed to
hold the goods on his account, and subject to his
orders as previously mentioned.'
{/) Jackson v. Nichol, 7 Sc. 577 ; 5 & P. 378 ; 4 Bing. 516.
Bing. N. C. 508. (g) Northey v. Field, 2 Esp. 614.
(/) Tucker v. Humphery, i Moo Hoist v. Pownall, i Esp. 240.
' The entry of goods in a custom-house, without payment
of duties, is not a termination of the transit ; Motram v.
Heyer, 5 Den. 629; unless entered in tlie purchaser's name ;
Parker v. Byrne, i Lowell, 539 ; if deposited, but not entered,,
the transit is not ended ; Donuth v. Broomhead, 7 Pa. St.
301.
192 LAW OF CONTRACT. [Bk. II. Ch. I.
599. Goods in the hands of the purchaser s agents
for custody, on the other hand, are not in transitu,
but are in the actual possession of the purchaser, and
can not be re-taken by the unpaid vendor. An agent
for custody, as distinguished from a forwarding agent,
is a person who has received goods by the direction
and authority of the purchaser as a depositary or bailee
invested with authority to receive goods and sell them
for the purchaser, or to hold them generally on account
of the latter, at his disposal, and not for the purpose of
helping the goods on a stage further in a direct course
of transmission to him. The delivery to such agent is
a delivery to the principal, and the transitus, conse-
quently, is determined as soon as the goods reach his
hands ; and, if the transit be once at an end, it can not
commence de novo, merely because the goods are again
sent up n their travels towards a new and ulterior
destination. (^) Where goods ordered by a purchaser
for the Valparaiso market, were forwarded by railway
to the shipping agents of the purchaser at Liverpool,
and were put on board a vessel bound for Valparaiso,
but were afterwards re-landed by order of an agent of
the purchaser, to be re-packed, it was held that the
transitus was determined, and that the goods had
come into the actual possession of the purchaser, (z)'
(h) Dixon v. Baldwen, 5 East, 184. (z) Valpy v. Gibson, 4 C. B. 837 ;
Kllis V. Hunt, 3 T. R. 464. Leeds v. 16 L. J., C. P. 241.
Wright, 3 B. & P. 320.
' And see peculiar circumstances in Grout v. Hill, 4 Gray,
361 ; Stubbs V. Lund, 7 Mass. 453 ; Naylor v. Dennie, 8 Pick.
198. Calahan v. Babcock, 21 Ohio St. 281 ; Guilford v.
Smith, 30 Vt. 49, 71, 72 ; Sawyer v. Joslin, 20 Vt. 192 ; Buck-
ley v. Furniss, 15 Wend. 137. A vendee has, it seems, a right to
intercept the goods and take them before they have arrived at
their destination. See Jordan v. James, 5 (Ham.) Ohio, 88 ;
Biggs V. Barry, 2 Curtis, 259; Atkins v. Colby, 20 N. H. 154;
Sec. II.J SALE OF GOODS. 193
600. Conversion of a carrier, wharfinger, or
fiacker, into the purchaser s agent for custody. — So
long as the carrier holds the goods as a mere instru-
ment of conveyance, or in the character of a forward-
ing agent, the transitus continues, and the unpaid
vendor has a right to stop them ; but if the carrier
enters expressly, or by implication, into a new agree-
ment with the purchaser, distinct frbm the original con-
tract for carriage, to hold the goods for the purchaser
as his agent, not for the purpose of expediting them to
the place of original destination pursuant to that con-
tract, but in a new character for the purpose of custody
on his account, and subject to some new or further
order to be given by him, the transitus is at an end,
and the goods are constructively in the possession of
the purchaser, and can not be re-taken by the vendor.
iji) " But the assent of the carrier to hold the goods
(k) Whitehead V. Anderson, 9 M. & W. 518.
Wood V. Yeatman, 15 B. Mon. 270; Seccomb v. Nutt, 14 Td.
324, 327 ; Mohrv. Boston & Albany R. R. Co., 106 Mass. 67 ;
Cabeen v. Campbell, 30 Penn^ St. 254; Covell v. Hitchcock,
23 Wend. 611; Aguirre v. Parmelee, 22 Conn. 473. And a
portion of the goods maybe stopped even though the remain-
der have been delivered. Buckley v. Furniss, 17 Wend. 504.
' Whatever amounts to a delivery of the goods to the pur-
chaser, puts an end to the transitus and defeats the right of
stoppage ; Guilford v. Smith, 30 Vt. 49 ; Cabeen v. Campbell,
30 Pa. St. 254 ; Mohr v. Boston & Albany R. R. Co , 106 Mass.
67 ; Sawyer v. Joslin, 20 Vt. 172 ; Hays v. Mouille, 14 Penn.
St. 48; Biggs V. Barry, 2 Curtis, 259; Harris v. Pratt, 17 N.
Y. 249; Pottinger v. Hecksher, 2 Grant, 109; Rowley v.
Bigelow, 12 Pick. 307 ; if the carrier become the purchaser's
bailee, of course the right is lost ; Reynolds v. Boston &
Maine Ry. Co., 43 N. H. 591; Atkins v. Colby, 20 Id. 154;
the right can not probably be exercised ; goods landed upon
a wharf subject 'to the purchaser's disposition are delivered to
the purchaser; Sawyer v. Joslin, 20 Vt. 172 ; and see a con-
struction of a variety of circumstances, in Harris v. Pratt, 17
N. Y. 249; Covell V. Hiichcock, 23 Wend. 613; Mattram v.
I!.— 13
194 LAW OF CONTRACT. [Bk. II. Ch. L
as an agent for custody on behalf of the purchaser
must be clearly established in order to put an end to
the transitus and deprive the vendor of his right to
stop the goods. A mere promise by the carrier to
deliver the goods to the purchaser as soon as they can
be got at is not enough to bring them into the posses-
sion, actual or constructive, of the purchaser. (/) If
the purchaser, having no warehouse of his own, is in
the habit of using the warehouse of his wharfinger, or
carrier, or packer, as his own, and making it the re-
pository of his goods until he has sold them or shipped
them for exportation, the transitus is at an end, and
the delivery is complete, when the goods arrive at that
warehouse and customary place of deposit ; although
they may immediately afterwards have received a fresh
destination by command of the purchaser, {nt) Where
twenty mats of flax were sold by a merchant of Hull
to a manufacturer near Leeds, and were forwarded by
railway to Leeds, and arrived at the carriers' shed at
the railway terminus at Leeds, and it was the custom
of the carriers to give notice to the manufacturer of
the arrival of goods consigned to him, and for the
latter to send wagons to convey them to his mills to
be manufactured ; and, on the arrival of the flax,
notice was given to the manufacturer by letter that,
(/) Coventry v. Gladstone, L. R. 6 B. & C. 107, Dodson v. Wentworth,
Eq. 44 ; 37 L. J., Ch. 492. 5 Sc. N. R. 832 ; i Smith's L. C. 5th
(w) Scott 1. Pettit, 3 B, & P. 465. ed., 729-747. Cooper v. Bill, 3 H. &
Allan V. Gripper, 2 Cr. & J. 218. C. 722 ; 34 L. J., Ex. 161. Rowe v.
Foster v. Frampton, g D. & R. 108 ; 6 Pickford, 8 Taunt. 83 ; i Moore, 526.
Heyer, i Denio, 487 ; Hays v. Mouille, 14 Penn. St. 48 ; Guil-
ford v. Smith, 30 Vt. 49 ; Buckley V. Furniss, 15 Wend. 137-;
S. C, 17 Wend. 504 ; Hoover v. Tibbetts, 13 Wis. 79 ; Aguirre
V. Parmelee, 22 Conn. 473 ; Sturtevant v. Orser, 24 N. Y. 538;
Markland v. Creditors, 7 Cal. 213; Pottinger v. Hecksher, 2
Grant, 309; Harris v. Hart, 6 Duer, 606.
Sec. II.] SALE OF GOODS. 195
unless the goods were sent for, they would remain at
warehouse rent ; and the manufacturer sent his cart,
and took away ten of the mats, but before the others
were removed, he became bankrupt ; it was held that
the goods had arrived at the place of destination, and
had come into the constructive possession of the
vendee, and that the transitiis consequently was at an
end. {n) But although the goods may have been
landed and warehoused at a place commonly used by
the purchaser as a place of deposit, yet, if the latter,
finding himself to be in failing circumstances, has
previously declared it to be his intention not to accept
the goods, and not to take possession of them as
owner, there has been no actual delivery, and the un-
paid vendor's right of recovering possession has not
been destroyed, {d) The vendor's right to stop in.
transitu can not be defeated by any claim of lien on
the part of a carrier, wharfinger, or any other middle-
man, nor by a foreign attachment laid upon the goods
by a creditor. (/)
601. Stoppage of ^art of goods sold under one
entire contract of sale does not have the effect of re-
vesting in the vendor that portion of them which has
been actually delivered to the bankrupt purchaser ;
and a delivery of part will not have the effect of de-
stroying the vendor's right of stoppage of the portion
remaining undelivered. " What the effect of stoppage
in transitu is," observes the Court of Exchequer,
" whether entirely to rescind the contract, or only to
replace the vendor in the same position as if he had
not parted with the possession, and entitle him to hold
(«) Wentworth v. Outhwaite, lO M. 8 Ell. & Bl. 428 ; 28 L. J., Q. B. 79.
& W. 450, 451. (f) Crawshay v. Eades, 2 D. & R.
{o) James v. Griffin, 2 M. &W. 623. 2S8. Oppenheim v. Russell, 2 B, &
Nicholson v. Bower, i Ell. & Ell. I73 \ P- 42- Richardson v. Goss, lb. iig.
28 L. J., Q. B. gy. Heinekey v. Earle,
196 LAW OF CONTRACT. [Bk. II. Ch. I.
the goods until the price be paid down, is a point not
yet finally decided, and there are difficulties attending
each construction. If the latter supposition be adopted
(as most of us are strongly inclined to think it
ought to be on the weight of authority), the vendor is
entitled to retain the part actually stopped m transitu,
until he is paid the price of the whole, but has no
right to re-take that which has arrived at its journey's
end. His right of lien on the part stopped is re-
vested, but no more." {g)
602. Notice of stoppage in transitu. — The old rule
of law, that a stoppage in transitu could be effected
only by the corporeal touch of the goods, no longer
prevails, (r) A notice to a carrier having charge of
the goods is sufficient ; but, if given to an employer
whose servant has the custody, it must be given at
such a time and under such circumstances, that the
employer may be able to communicate it to his ser-
vant in time to prevent a delivery to the con-
signee, (s) *
603. Intervention of the rights of sub-purchasers.
— If the purchaser re-sells the goods whilst they are
in transitu, and receives the price, and then becomes
insolvent, the first vendor may stop the goods at any
time before they have come into the possession of
(q) Wentworth v. Outhwaite, 10 M. Litt v. Cowley, 7 Taunt. 169 ; 2 Marsh,
& W. 452. Tanner v. Scovell, 14 M. 457. Hatchings v. Nunes, i Moo. P.
& W. 35. Valpy V. Oakeley, 16 Q. B. C. N. S. 243.
■941. Ex parte Chalmers, in re Ed- (s) Whitehead v. Anderson, 9 M. &
wards, L. R., 8 Ch. 289. W. 518.
(r) Mills V. Ball, 2 B. & P. 457.
' The notice must require that the carrier hold the goods
subject to the vendor's orders. Reynolds v. Boston &
Maine Railroad, 43 N. H. 591 ; Bell v. Moss, 5 Whart. 189 ;
Newhall v. Vargas, 13 Me. 93, 109 ; Mottram v. Heyer, 5
Denio, 629; Seymour v. Newton, 105 Mass. 272.
Siic. II.J SALE OF GOODS. • 197
such second purchaser, and hold them as a security
for the due payment of the original purchase-money,
unless the second purchaser claims as the bona fide in-
dorsee and holder of a bill of lading. As between a
vendor and his immediate vendee, a bill of lading may
be countermanded, in case of the insolvency of the
latter, at any time before it has been actually exe-
cuted, like any other order or direction to a common
carrier. But as between a first vendor and bona fide
sub-purchasers, the case is different. The first vendor,
by indorsing and delivering a bill of lading to his
immediate purchaser, accredits the title of the latter
to the goods, and holds him out to the mercantile
world as the owner of them ; and the bona fide in-
dorsement and delivery by such purchaser of such bill
of lading to a second purchaser deprives the first
vendor of all power and control over the goods, and
destroy his right to stop in transitu as against the
latter, {f) If the assignee of the bill of lading, how^
ever, has given no value or consideration for the in-
dorsement of such bill of lading, or if he knew of the
insolvency of his vendor at the time he took the bill,
he will be in no better situation than the latter. («)
and a pre-existing debt is not such a consideration for
the indorsement of a bill of lading as to defeat the
right of the unpaid vendor to stop in transitu, {v)
604. Transfer by bill of lading, — Goods will not-
pass to third parties by the mere delivery of a bill of
(/) LickbaiTow v. Mason, 6 East, Argentina, L. R., i 'Ad. & Ec. 370.
20 {a) ; I H. Bl. 357. Guiney v. Pease v. Gloahec, L. R., i P. C. 219.
Behrend, 23 L. J., Q. B. 265 ; 3 Ell. & The Marie Louise, L. R., i P. C. 219.
Bl. 622 ; I Smith's Leading Cases, 459, ^li) Waring v. Cox, I Campb. 370.
739. .Slubey v. Heyward, 2 H. Bl. Cuming v. Brown, 9 East, 514.
504. Caldwell v. Ball, i T. R. 205. (v) Rodger v. Comptoird'Escompte
Hibbert v. Carter, lb. 745. In re de Paris. L. R., 2 P. C. 393 ; 38 L. J.,
Westzinthus, i '&. h Ad. 817. Jones P. C. 30.
V. Jones,* 8 M. & W. 431. The
198 LAW OF CONTRACT. [Bk. II. Ch. I.
lading without indorsement ; and the operation of the
bill may be qualified and restricted by a conditional
indorsement, (jj-) ' The vendor may annex terms to
the bill of lading preserving his control over the cargo
and the jus disponendi of the goods on their arrival at
their destination, although they may be shipped on
board the purchaser's ship, and may be in the hands
of the purchaser's shipmaster. (5:) Every consignee of
goods named in a bill of lading, and every indorsee of
a bill of lading to v^^hom the property in the goods
mentioned therein passes, has transferred to him all
such rights of action and suit, and is subject to the
same liabilities in respect of such goods, as if the con-
(y) Akeiman v. Humphery, i C. & Brown, 14 Q. B. 503. Berndtson v.
P. 57. Mitchell V. Ede, II Ad. & E, Strang, L. R., 4 Eq. 486 ; lb. 3 Ch.
903. Barrow v. Coles, 3 Campb. g2. 588 ; 36 L. J., Ch. 879. Eraser v.
(z) Turner v. Trustees, Liverpool Witt, L. R., 7 Eq. 64 ; 37 L. J., Ch.
Dock, 6 Exclv 569. Van Casteel v. 665.
Booker, 2 Exch. 708. Jenkyns v.
' Otherwise than by a bona fide transfer of the bill of
lading, a sale of the goods by the purchaser will not defeat
the right of stoppage ; Kitchen v. Spear, 30 Vt. 545 ; O'Brien
V. Norris, 16 Md. 122; Hays v. Mouille, 14 Penn. St. 48;
Ilsley V. Stubbs, 9 Mass. 65 ; Stanton v. Eager, 16 Pick. 473 ;
Gardner v. Howland, 2 Pick, 399. And as to when the de-
livery may be without indorsement, see Walter v. Ross, 2
Wash. C. C. 283; Seymour V. Newton, 105 Mass. 275 ; Seccomb
V. Nutt, 14 B. Mon. 324 ; Atkins v. Colby, 20 N. H. 154; Saw-
yer V. Joslin, 20 Vt. 172 ; Covell v. Hitchcock, 23 Wend. 611 ;
Harris v. Hart, 6 Duer, 606 ; neither will an attachment of the
goods for a debt of the consignee; Seymour v. Newton, 105
Mass. 272; Hays v. Mouille, 14 Penn. St. 48; O'Brien v.
Norris, 16 Md. 122; Calahan v. Babcock, 21 Ohio St. 281;
Naylor v. Dennie, 8 Pick. 197 ; Buckley v. Furniss, 15 Wend.
137 ; Hause v. Judson, 4 Dana, 13; Wood v. Yeatman, 15 B.
Mon. 270; Newhall v. Vargas, 13 Me. 514; Pratt v. Park-
man, 24 Pick. 42; Winslow v. Norton, 29 Me. 414; Rowley
V. Bigelow. 12 Pick. 307, 314; Stanton v. Eager, 16 Pick. 467,
474; Saltus V. Everett, 2c Wend. 268.
Sec. II.] SALE OF GOODS. 199
tract contained in the bill of lading had been made
with himself; (a) and eveiy bill of lading representing
goods to have been shipped on board is conclusive
against the master or person signing the same in the
absence of fraud on the part of the shipper or
holder, {b)
605. Of ike vendor's power of re-sale after stop-
page in transitu. — If a specific, ascertained chattel has
been sold by a properly authenticated contract, so
that the right of property has passed to the purchaser,
the exercise of the right of stoppage in transitu will
not at once have the effect of re-vesting the right of
property in the vendor, {c) The assignees of the
bankrupt purchaser are entitled to call upon the
vendor to deliver the goods on being paid or tendered
the price ; but, if they refuse to take and pay for the
goods, the vendor will be entitled to re-sell them in
the same way that he is entitled to re-sell in ordinary
cases after the refusal of a purchaser to take and pay
for the things he has ordered and bought. If the
sale is a sale of things of quantity generally, and the
vendor will fulfill his contract by delivering any
articles of the character and description mentioned in
the contract, the vendor may, after he has recovered
possession of the goods by the exercise of the right
of stoppage, re-sell them ; {jT) ' but he may be obliged
to furnish other goods of a similar character and
(a) 18 & 19 Vict. c. Ill, ss. I, 3. (f) Martindale v. Smith, i Q. B.
The Figlia Maggioie, L. R., 2 Ad. & 395.
E. 106 ; 37 L. J., Adm. 52. {d) Clay v. Harrison, 10 B. & C.
{b) Meyer v. Dresser, 33 L. J., C. P. 106. .
289.
' And should a balance of the original purchase money-
remain due him on his contract, after such sale he may-
recover it of the purchaser. Newhall v. Vargas, 13 Me. 514.
200 LAW OF CONTRACT. [Bk. II. Ch. I..
description to those originally bargained for, on'
tender of the price by the assignees.
606. Sale of goods to one of several partners in
trade — Dealings by one partner in fraud of the
firm. — A sale of goods of the same description as
those ordinarily dealt in by the firm in the exercise
of its trade to one of the partners who is known by
the vendor, at the time of the sale, to be a member of
the co-partnership, and is presumed by him to be
dealing on account of the firm, is a sale to the firm
at large, with whatever view the goods may have
been bought by such single partner, and to whatever
purposes they may subsequently be applied by him ;
and all the members of the firm, consequently, are
liable for the payment of the price of them, (e)
But, if the goods are not of the same character and
description as those dealt in by the partnership in the
way of its trade, and are not forwarded by the vendor
to the place of business of the partnership, but to the
private dwelling of the partner giving the order, and!
the goods have not reached the hands of the partner-
ship, but have been appropriated to the private use of
the partner ordering them, the vendor can not theui
look to the firm for payment, (y^) If an acceptance
of a bill of exchange is given by one partner in his.
own name for goods supplied to the firm, and the
partner giving the acceptance becomes bankrupt, and
a portion of the amount of the bill is realized from
his estate, the drawer may proceed against the other
members of the firm, or against the partnership estate,
for the balance due to him. (^) '
(e) Bond v. Gibson, i Campb. 185. {g) Bottomley v. Nuttall, 5 C. B.,.
(/) Story on Partnership, § 112. N, S. 141 ; 28 L. J., C. P. no.
' See ante, vol. i, § 93, et seq., as to Partners.
Sec. II.] SALE OF GOODS. 20t
607. Parties secretly interested in the subse-
quent disposition of goods purchased by one of them
on his own individual credit, are not necessarily liable
for the payment of the price of them. Thus, where
three parties agreed to bring out and publish a
periodical called the Sporting Review, on their
joint account, upon the terras that one of them,
who was an author, was to write the book, and furnish
manuscript and drawings, and another, who was a
printer, was to furnish the paper for the work, and to
charge it to the account at cost price, and was also to
charge the printing at " master's prices," and the
third, who was a publisher, was to publish the work,,
make and receive general payments, keep the ac-
counts, and divide the profits between the three, and
the printer ordered paper for the work, but became
bankrupt before he had paid for it, whereupon the
stationer sought to recover the price from the other
two, it was held that they were not liable, as it was-
bought upon the individual credit of the printer, (fi)
Generally speaking, however, where goods are ob-
tained for the joint use and benefit of several persons,
with their authority, they are all responsible as the
real principals in the transaction, so that the full value
of the goods may be recovered from any one of
them, although they were purchased on the credit of
the ostensible buyer alone. Where a publisher gave
an order to a stationer to deliver to the defendant,
who was a printer, " two hundred reams of super-royal
paper for Jeremy Taylor's works, and seventy-two
reams for Doddridge's Expositor," and the paper was
delivered at the printer's office, and it was afterwards
discovered that the printer was at the time of the
giving of the order a partner with the pubhsher in
{Ji) Wilson V. Whitehead, 10 M. & W. 503.
202 LAW OF CONTRACT. [Bic. II. Cn. I.
both the works mentioned in the order, it was held
that he was liable, together with the publisher, for the
price of the paper. (?)
608. Siib-purchasers of separate shares of goods
sold. — Where parties are not jointly interested in the
disposal of goods when purchased, they can not be
sued jointly, and one can not be made to pay the price
of the whole, but each is separately responsible for his
•own separate share only of the things so bought, {k)
Where three persons agreed amongst themselves to
purchase jointly a quantity of oil on speculation, and
Eyre, one of their number, was to go into the market and
be the ostensible buyer, and the others were to share
in the purchase at the same price which he might give,
and Eyre accordingly bought the oil, but never paid
for it, it was held that the other two persons could not
be sued jointly with him as his secret partners in the
transaction, that the agreement was a sub-contract to
share severally in certain proportions in the purchase
to be made by the ostensible buyer on his own credit,
and that the failure of such buyer to pay the price did
not render the two other sub-contractors responsible
for the price of the whole bargain. (/)
609. Sale of goods to registered joint-stock com-
panies.— A vendor who seeks to make a registered joint-
stock company responsible for the payment of the
price of goods delivered at the offices or ordinary place
■of business of the company, pursuant to the orders of
officers of the company apparently intrusted with the
management of the business of the company, is not
confined to proving his case by the articles of associa-
tion or the authorized regulations of the company ;
be may show that the whole of the shareholders
(i) Gardiner v. Childs, 8 C. & P. 345. (/) Coope v. Eyre, i H, Bl. 37.
(>^) Hoare v. Dawes, i Doug. 372.
Sec. II.] SALE OF GOODS. 203
have by usage or otherwise sanctioned contracts
not sanctioned thereby. If the company has
been in the habit of intrusting one director, or
any public officer, or any shareholder, or other party
with the duty of ordering goods required by the com-
pany in the exercise of its trade, or for carrying out
the purposes for which it was registered, and has been
in the habit of paying for goods supplied pursuant to
the orders of such director, officer, or other party, the
company will be responsible for the payment of the
goods so ordered, whether that particular course of
dealing is or is not sanctioned or authorized by the
articles of association ; for, although they point out
the mode in which the directors are to exercise their
functions, and by which the company may be bound,
yet the articles do not prevent them from binding
themselves in some other way, and from appointing
an agent and recognizing his contracts, and rendering
themselves responsible as principals under the ordin-
ary law of principal and agent.
610. Avoidance of sales. — It has been held that a
sale by a debtor of the whole of his stock-in-trade to
a bona fide purchaser for a fair price, does not necces-
sarily constitute an act of bankruptcy, though his
creditors may be ultimately delayed or defeated, and
the misapplication of the proceeds was contemplated
by the trader at the time of the sale, because the trader
gets a present equivalent for his goods, {m) It would
be otherwise, however, if the assignee has express or
implied notice that the bankrupt is selling with a
fraudulent intention, {n)
611. Of the promise or warranty implied from
(m) Baxter v. Pritchard, 1 Ad. & & N. 410. Whitmore v. Claridge, 2 B.
E. 456. Grahsm v. Chapman, 21 L. & S. 213 ; 33 L. J., Q. B. 87.
J., C. P. 176. Bell V. Simpson, 2 H. (k) Fraser v. Levy, 6 H. & N. 16.
204 LAW OF CONTRACT. [Bk. II. Ch. I,
a vendor that he does not at the time he sells know that
he has no title of right to sell. — In Noy's Maxims it
seems to be affirmed to be a principle of law that, if a
man steals a horse and sells it on credit, and the owner
takes it away from the purchaser before the price is
paid, the thief may, nevertheless, sue the purchaser for
the price. " If I take," it is said, " the horse of another
man and sell him, and the owner take him again, I
may have an action of debt for the money; for the
bagain was perfect by the delivery of the horse, et
caveat emptor." {o) Such a proposition ne^^er could
have been the settled law of this country. There are
several ancient authorities opposed to it ; and all the
modern decisions in our courts of justice are quite at
variance with such a doctrine. It has always been
held that, if a man sells a chattel, knowing it to be the
property of another, and the purchaser is evicted, the
vendor can not maintain an action for the price ; and,
if the price has been paid over to him, the purchaser
is entitled to maintain an action to recover it back.
(/) If goods are sold by a person who is not the
owner, and the owner is found out and paid for
the goods, the vendor who sold them can not then
call upon the purchaser for payment, {q) " If a man
takes the goods of S tortiously and sells them to me
for money as his own goods, and afterwards S takes
them away from me, I may have an action on the case
against my vendor." "If the vendor affirm that the
goods are the goods of a stranger, his friend, and that,
he had authority from him to sell them, and upon that
B buy them, when in truth they are the goods of an-
other, yet, if he sell them fraudulently and falsely on
(o) Noy's Maxims, 209, p. 8g. (q) Dickenson v. Naul, 4 B. & Ad.
(/) Furnis v. Leicester, Cro. Jac. 638. Allen v. Hopkins, 13 M. & W.
474. Peto V. Blades, 5 Taunt. 657. 102.
Sec. II.] SALE OF GOODS. 205
this pretense of authority, though he do not warrant
them, and though it be not averred that he sold them
knowing them to be the goods of the stranger, B shall
have an action for this deceit." (r) By the civil
law, if the vendor knowingly sold a thing belong-
ing to another person, the purchaser might sue for
the recovery of damages without waiting for an evic-
tion, (s)
612. Warranty of title. — "Where one having the
possession of any personal chattel, sells it, the bare
affirming it to be his amounts to a warranty of the
fact : and an action lies on the affirmation ; for his
having possession is a color of title, and perhaps no
other title can be made out. Aliter, where the seller
is out of possession ; for then there may be room to
question the seller's title; and caveat emptor in such a
case to have either an express warranty or a good
title. (/) " This distinction by Holt," observes Buller,
J., "is not mentioned by Lord Raymond, who reports
the same case; and if an affirmation at the time of
.sale be a warranty, 1 cannot perceive a distinction be-
tween the vendor's being in or out of possession. The
thing is bought of him in consequence of his assertion ;
and, if there be any diflFerence, it seems to me that the
case is strongest against the vendor when he is out of
possession, because then the vendee has nothing but
the warranty to rely on. {u)
613. Implied warranties of title on the part of
(r) I RoUe Abr. go pi. 5 ; 91 pi. 7. I, lex. 30, § i.
:See Pasley v. Freeman, 3 T. R. 59. (/) Medina v. Stoughton, I Salk.
(s) Si sciens alienam vem ignoranti 210. Crosse v. Gardner, Carth. 90.
imihi vendideris, etiam priusquam Adamson v. Jarvis, 4 Bing. 73.
evincatur, utiliter me ex empto actu- Harding v. Freeman, Sty. 310. Rose-
Tnm putavit in id, quanti mea interest well v. Vaughan, Cro. Jac. 197.
imeam esse factam. Dig. lib. 19, tit. («) Pasley v. Freeman, 3 T. R. 58.
2o6 LAW OF CONTRACT. [Bk. II. Ch,L
persons who sell as owners. — -Wherever a man sells
goods as owner, he impliedly undertakes and promises
that the goods are his own goods, and that he has a
right to make the sale and transfer he professes to
make ; and if he was not the owner at the time of the
sale, and was not selling his own goods but the goods
of a third party, who subsequently claims them and
deprives the purchaser of them, he is responsible in
damages for the breach of such implied undertaking.
{x) " By the civil law," observes Blackstone, " an
implied warranty was annexed to every sale in respect
of the title of the vendor; and so, too, in our law, a
purchaser of goods and chattels may have a satisfaction
from the seller, if he sells them as his own and the title
proves deficient, without any express warranty for that
purpose." {y) Such is the case in the Roman law, (^z)
the French law, («) the Scotch law, and all the various
systems of jurisprudence founded on the Roman code :
and this, too, is the case in the American law, founded
on the principles of our own common law. (<5) It has
been decided by the Court of Exchequer that the law
does not imply from the mere fact of the sale of a
specific chattel any undertaking or warranty from the
vendor that he is the owner of, or has a good title to,
the thing he sells, (f) But the Court of Queen's
Bench has held that, whenever a man sells goods
generally, and not in any particular character or
capacity, such as auctioneer, agent, sheriff, pawn-
(x) Eichholz V. Bannister, 17 C. B. (a) Cod. Civ. Art. 1626, Troplong,
N, S. 708 ; 34 L. J., C. P. 105. And ch. 4, Be la Vente.
see the French Cod. Civ. Art. 1599. (b) Armstrong v. Percy, 5 Wend.
Troplong, ch. 3. 535. Blasdale v. Babcock, I J. R.
(y) 2 Bl. Com. 451. 2 Kent's Com. 517. Sedgwick on Damages, 2d ed.,
47S. 2 Stephen's Com. 126. 293. 2 Kent's Com. 478.
(z) Cod. lib. 8, tit. 45. Dig. lib. 21, (c) Morley v. Attenbnroiigh, 3
tit. 2. Exch. 500 ; 18 L. J., Ex. 15T.
Sec. IL] sale OF GOODS. 207
broker, pledgee, &c., he must be taken to sell as
owner, (d) '
614. Sales by sheriffs, agents, trustees, or persons
(d) l.ee, C. J., commenting on the senr. 351). Sirams v. Marryat, 20 L.
case of L'Apostre v. Le Plastiier J., Q. B. 458.
(cited in Ryall v. Rowles, i Ves.
' The rule is unquestioned with us, and such title is taken
to be implied if the vendor have possession. Whitney v.
Heywood, 6 Cush. 82; Sargent v. Currier, 49 N. H. 310;
Storm V. Smith, 43 Miss. 497 ; Butler v. Tufts, 13 Me. 302^
Huntington v. Hall, 36 Id. 501 ; McCabe v. Morehead, i
Watts & S. 513; Chism v. Wood, Hardin, 531; Bennett v.
Bartlett, 6 Cush. 225; Vibbardv. Johnson, 19 Johns. 78; Case
V. Hall, 24 Wend. 102; Dorr v. Fisheifc i Cush. 273; Burt v.
Dewey, 40 N. Y. 483; Hoe v. Sanborn, 21 Id. 552; Thurs-
ton v. Spratt, 52 Me. 202; Hale v. Smith, 6 Greenl. 420;
Eldridge v. Wadleigh, 3 Fairf 372 ; Payne v. Rodden, 4 Bibb.
304; Cozziiis V. Whittaker, 3 Stew^. & Port. 322 ; Inge v. Bond,
3 Hawks, loi ; Mockbee v. Gardner, 2 H. & Gill, 176 ; Cooi-
idge V. Brigham, i Met. 551 ; Sweet v. Colgate, 20 Johns. 196 ;
Reid v. Barber, 3 Cowen, 272 ; Vibbard v. Johnson, 19 Johns.
77 ; McKnight v. Devlin, 52 N. Y. 399, 401 ; Darst v. Brock-
way, II Ohio, 462; Lines v. Smith, 4 Fla. 47 ; Chancellor v.
Wiggins, 4 B. Mon. 201 ; Colcock v. Goode, 3 McCord, 513;
Ricks v. Dlllahunty, 8 Porter, 134; Williamson v. Sammons,
34 Ala. 691; Gookin v. Graham, 5 Humph. 484; Scott v.
Scott, 2 A. K. Marsh, 215; McCoy v. Artcher, 3 Barb. 323;.
Heermance v. Vernoy, 6 Johns. 5 ; per Shaw, Ch. J., in Dorr
v. Fisher, i Cush. 273; Emerson v. Brigham, 10 Mass. 202;
Bucknam v. Goddard, 21 Me. 71 ; Shattuck v. Green, 104
Mass. 42, 45 ; McCoy v. Artcher, 3 Barb. 233. The exception
is when the seller has no actual or constructive possession,
but a mere naked interest ; Whitney v. Heywood, 6 Cush. 82 ;
and where the goods are in possession of a third party the
vendor buys at his own peril ; Andres v. Lee, i Dev. & Bat.
Eq. 318; Emerson v. Brigham, 10 Mass. 202; Pratt v. Phil-
brook, 32 Me. 23 ; Scranton v. Clark, 39 N. Y. 220; Hunting-
don V. Hall, 36 Me. 501; McCoy v. Artcher, 3 Barb. 323 ;
Dresser v. Ainsworth, 9 Id. 619; Edick v. Crim, 10 Id.
445 ; Long V. Hickingbottom, 28 Miss. 772. If one knows he
has no title to what he is selling, he can not recover it from
the purchaser, but the purchaser himself is liable to the real
2o8 LAW OF CONTRACT. [Ek. II. Ch. I.
assuming to sell in some special character or capacity,
and not as owners — Caveat emptor. — Whenever a man
does not sell goods as owner, but in some special
character or capacity, and the purchaser has notice
thereof, he is bound to look into the title of his
vendor ; for there is not, under such circumstances,
any implied v^^arranty of title on the part of the
vendor, {e) The latter merely undertakes and prom-
ises that he does not, at the time he sells, knovi? of
any defect in his authority or title to sell ; and he can
not be made responsible for the re-payment of the
purchase-money, unless it can be proved that he knew
he had no right or title to sell, and that consequently
his conduct was fraudulent. Thus, in the case of sales
by sheriffs of goods and chattels taken in execution,
the sheriff does not impliedly warrant his title to sell,
or warrant the purchaser against eviction ; he merely
promises that he does not, at the time he sells, know
of any defect in his authority, or that he has no right
or title to sell. (/") ^ So in the case of sales by pawn-
er') Bagueley v. Hawley, L. R., 2 C. {f) Chapman v. Spillev, 14 Q. B.
P. 625 ; 36 L. J., C. P. 328. 621.
owner for detention and use of the property; Sweetman v.
Prince, 62 Barb. 256. The implied warranty of title has been
held to extend to a prior lien or incumbrance ; Sargent v.
Currier, 49 N. H. 310; Dresser v. Ainsworth, 9 Barb. 619;
there is no such implied warranty of title in a sale by execu-
tors or administrators, or trustees ; Prescott v. Holmes, 7
Rich. Eq. 9 ; Blood v. French, 9 Gray, 197 ; Mockbee v. Gard-
ner, 2 H. & Gill, 176; Ricks V. Dillahunty, 8 Porter, 133;
Forsythe v. Ellis, 4 J. J. Marsh. 298; Brigham v. Maxey, 15 111.
295 ; as to title implied, but not in the vendor at the time of
the sale, and whether it inures to the purchaser, consult Sher-
man V. Champlain Transportation Co., 31 Vt. 161.
' Davis V. Hunt, 2 Bailey, 412; Yates v. Bond, 2 McCord,
382; Puckett V. U. S., 19 L. Rep. 18; Rodgers v. Smith, 2
Cart. (In.d.) 526; Bashore v. Whisler, 3 Watts, 490; Stone v.
.-Bec. II.] SALE OF GOODS. 209
brokers of unredeemed pledges, the pawnbroker only
warrants the subject-matter of the sale to be a pledge,
the time for the redemption of which has expired.
He does not warrant or promise that the pledgor had
a title to pledge the article ; nor does he impliedly
warrant the purchaser against eviction. As he has
sold in a special character or capacity, he impliedly
sells and agrees to transfer his own title and interest
in the subject-matter of the sale, and no more ; and
that being so, it is the duty of the purchaser to inquire
into the title ; and if he neglects so to do, and it sub-
sequently appears that the pledgor had no title to
pledge, nor the pawnbroker, to sell, and the purchaser
is evicted, he can not recover compensation for his
loss, unless he can establish a case of fraud, (g)
615. Sale by a vendor of such a title and interest
as he actually possesses. — A distinction has been made
in some cases between a sale by a person who is in pos-
session of the goods he sells and by a person who is out
of possession, and sells merely his right or title to goods
which are in the possession of a third party. Thus it
is said that, if a man sells a horse, whereof another is
possessed, without any covenant or warranty for the
enjoyment, it is at the peril of him who buys ; and
the latter shall have no action at law for the recovery
of his money, because he might have protected him-
self by the contract. (Ji) This is undoubtedly the
case, if the possession of the third party is an adverse
possession, and the title is disputed, and the vendor
{g) Morley v. Attenborough, 3 {h) Ante.
:Exch. 500; 18 L. J., Ex. 151.
Pointer, 5 Munf. 287 ; The Monte Allegre, 9 Wheat. 694 ;
Worthy v. Johnson, 8 Geo. 236 ; Hensley v. Baker, 10 Mo.
157 ; Bostick v. Winton, i Sneed. 525 ; Morgan v. Tencher, i
Blackf. 10; I Parsons on Contracts, 594.
II. — 14
2IO LAW OF CONTRACT. [Bk. II. Ch. L
merely sells all the title and interest he possesses
submitting that title to the scrutiny or investigation
of the purchaser. But, if a man sells a thing in the
hands of a third party, absolutely as owner, and
receives the full value for it, he impliedly undertakes
to put the purchaser into possession of the subject-
matter of the sale, (z) By the civil law, the vendor
of rights to movables in the possession of third
parties, and of rights of action, impliedly warranted
that he had the right or title which he pretended to
sell or transfer ; and, if he had no such right, the
sale was void, and he might be compelled to refund
the money he had received and make good the
damages sustained by the purchaser. (/§) The vendor
of a debt impliedly warranted that the debt was due
to him, but not the solvency of the debtor. (/) If
the purchaser of a chattel, who had been sued and
evicted for want of title, neglected to give notice to
the vendor of the action brought against him, or if
he allowed judgment to go against him by default, or
defended himself negligently, or consented to a
reference without the knowledge of the vendor, he
was not permitted to proceed against the latter upon
the warranty, as the eviction might have resulted from
his own negligence, (in) But, where the purchaser,
at the time of the making of the contract, is afforded
the means of inspection and examination, there is no
implied warranty on the part of the vendor of the
peculiar character, quality, or condition of the thing
sold. The purchaser must judge for himself; and the
maxim of caveat emptor applies. («) Where, how-
(0 Coe V. Clay, 5 Bing. 440; 3 («) Dig. 21, tit. 2, I. 51, 53, 56. Cod.
Moo. & P. 59. lib. 8, tit. 45. Domat, liv. i, lit. 2, s.
{k) Dig. lib. 18, tit. 4. Cod. lib. 4, 11, 21.
tit. 3. (») Hall V. Conder, 2 C. B., N. S.
(/) Dig. lib. 18, tit. 4, lex. 4. 41.
Sec. II.] SALE OF GOODS. 211
ever, goods are sold under a certain denomination, the
buyer is entitled to have such goods delivered to
him as are commercially known under this denom-
ination, though he may have bought after inspection
of the bulk and without warranty. (0)
616, Implied warranty where nothing is said
respecting qttantity or quality. — Caveat emptor. — The
law does not imply from the mere seller of an article
in its natural state, who has no better means of
information than the purchaser, as, for instance, where
the goods are in existence and can be inspected by
the buyer, (/>)* and who does not affirm that the
article is fit for any particular purpose, any warranty
or undertaking beyond the ordinary promise, that he
makes no false representation calculated to deceive
the purchaser, and practices no deceit or fraudulent
concealment, and that he is not cognizant of any
latent defect materially affecting the marketable value
of the goods. (^) " In the general sale of a horse,
the seller only warrants it to be an animal of the
description it appears to be, and nothing more ; and,
if the purchaser makes no inquiries as to its sound-
ness or qualities, and it turns out to be unsound and
restive, or unfit for use, he can not recover as against
the seller, as it must be assumed that he purchased
the animal at a cheaper rate." So, on the sale and
transfer of wares and merchandise, if nothing is said
(0) Josling V. Kingsford, 13 C. B., (/) Jones v. Just, L. R., 3 Q. B.
N. S. 447 ; 32 L. J., C. P. 94. 197 ; 37 L- J-. Q- B. 89.
(y) Bluett V. Osborn, i Stark. 384.
' So in the case of a sample, if the sample and the goods
both have the same defect, there is no implied warranty that
the goods have not the defect, even though, in both the sample
and in the goods delivered, the defect was latent. Dickinson
V. Gay, 7 Allen, 29.
212 LAW OF CONTRACT. [Bk. II. Ch. I.
as to the character or quality of the thing sold, the
buyer takes the risk of all latent defects unknown to
the seller at the time of the execution of the contract
of sale, all that the seller answers for being that the
article is, as far as he knows, what it appears to be.
Where the plaintiff bought a quantity of hops of the
defendant, who was not the grower, by sample taken
from the pockets, and at the time of the sale the
bulk fairly answered to the sample, and no inherent
defect was perceptible or known to the defendant,
the vendor, but the grower, in order to increase the
weight of the hops, had fraudulently watered them
after they were dried, and the effect of a proceeding
of this kind did not usually become perceptible for
several months, and was not known to the defendant
at the time he sold the hops, but became manifest in
a few months after the sale, whilst the hops remained
in the plaintiff's possession, and rendered them un-
saleable, it was held that there was no implied
warranty on the part of the defendant that the hops
were good, sound, and merchantable, at the time he
sold them, and that, as the defendant had acted bona
fide, he was not answerable for the loss, (r)
617. Warra7ity of merchantable quality. — Under
a contract to supply goods of a specified description,
which the buyer has no opportunity of inspecting, the
(>-) Parkinson v. Lee, 2 East. 314. county, or place where, or tlie year
Emmerton v. Matthew, post. The when, the said hops were grown,
sale of hops is regulated by the 48 .shall be deemed to contract that the
Geo. 3.1;. 134. the 54 Geo, 3, c. T23, said desciiption, date, trade-mark, and
and the 29 Vict. ^. 37. lly sect. 18 of symbol were genuine and true, and
the last-named Act every person who that such description, date, trade-
shall sell any hops in any bag or mark, and symbol were in accordance
pocket having marked thereon any with that and the therein recited Acts
name, description, date, trade-mark, or (the 48 Geo. 3, c. 134, and the 54 Geo.
symbol intended to indicate the name 3, c. 123).
of the person by whom or the parish.
Sec. II.] SALE OF GOODS. 213
goods must not only in fact answer the specific de-
scription, but must be saleable or merchantable under
that description.' The maxim caveat emptor does not
apply to a sale of goods when the buyer has no oppor-
tunity of inspection. (J) ^
(s) Jones V. Just, anti.
' See Gallagher v. Waring, 9 Wend. 10; Gaylord M'f'g.
Co. V. Allen, 53 N. Y. 518; Merriam v. Field, 24 Wis. 508;
Hamilton v. Ganyard, 3 Keyes (N. Y.) 45 ; McClung v. Kel-
ley, 21 Iowa, 508 ; Hyatt v. Boyle, 5 Gill & J. no ; Hanks v.
McKee, 2 Litt. 227; Walton v. Cody, i Wis. 420; Lespard v.
Vankirk, 27 Id. 152 ; Brenton v. Davis, 8 Blackf. 317 ; Cham-
bers V. Crawford, Addison, 150; Howard .v. Hoey, 23 Wend.
350 ; Moses v. Mead, i Denio, 378 ; i Parsons on Contracts,
578; Misner v. Granger, 4 Gilman, 69; Whitmore v. South
Boston Iron Co., 2 Allen, 58 ; Leflore v. Justice, i Sm. & Mar.
381 ; Rogers v. Niles, 11 Ohio St. 48 ; Bird v. Mayer, 8 Wis. 362.
" See Gaylord M'f'g. Co. v. Allen, 53 N. Y. 515; where
the purchaser is told by the seller to examine for himself, and
does examine the merchandise, by cutting open as many bales
as he chooses; it is not a sale by sample, and implies no
warranty that the interior of the bales shall correspond to their
exterior; Salisbury v. Stainer, 19 Wend. 159; and see Williams
V. Spofford, 8 Pick. 219; Dickinson v. Gay, 7Allen, 29. In
Barnard v. Kellogg, 10 Wall. 383, the U. S. Supreme Court
held that where a merchant in Boston placed certain wool
which he had received from Buenos Ay res, on which he had
made advances, in the hands of brokers for sale, with instruc-
tions not to sell unless the purchaser came to Boston and
examined the wool for himself; and the brokers sent to the
respnodents, who resided in Hartford, in the state of Connec-
ticut, at their request, samples of the wool, and the latter
offered to purchase it at fifty cents a pound, all round, if equal
to the samples furnished, and this offer was accepted, provided
that the respondents examined the wool on the succeeding
Monday, and reported on that day whether or not they would
take it, and the respondents agreed to this, and went to Bos-
ton and examined four bales in the broker's office, as fully as
they desired, and were offered an opportunity to examine all
the bales and to have them opened for inspection, but declined
to do this, and concluded the purchase, and afterwards
found some of the bales deceitfully packed, by placing in
214 LAW OF CONTRACT. [Bk. II. Ch. I.
When goods are sold by sample under circum-
stances in which, in the absence of a sample, there
would have been an implied warranty that they were
merchantable, such warranty is excluded only with
respect to such matters as can be judged of by the
sample. Where manufacturers contracted to supply
to the plaintiffs a quantity of grey shirtings according
to sample, each piece to weigh seven pounds, and
goods according to sample and of the agreed weight
were delivered and accepted, but it was afterwards dis-
covered that the weight was made up by introducing
into the fabric 15 per cent, of china clay, which made
the goods unmerchantable, but which could not have
been discovered by an ordinary examination of the
sample, it was held that the implied warranty of mer-
chantable quality was not excluded, {i) '
{i) Nusserwanjee Bomanjee Mody v. Hickson, L. R., 7 C. P. 438 ; 41 L.
V. Gregson, L. R., 4 Ex. 49. Heilbutt J., C. P. 228.
the interior rotten and damaged wool and tags, concealed by
an outer covering of fleeces in good condition, and demanded
indemnity for the loss (it being conceded that the vendor had
acted in good faith and knew nothing of the false packing of
the bales): ist. That the sale was not by sample ; 2d. that by
the rule of the common law, where a person inspects for him-
self the specific goods sold, and there is no express warranty,
and the seller is guilty of no fraud, and is neither the manu-
facturer nor grower of the goods sold, the maxim of caveat
emptor applies ; and 3d. that since the law in such a case implies
no warranty of quality — evidence of custom that such war-
ranty is implied is inadmissible, and the custom or usage is
invalid and void, especially so in the case before the court,
as the parties were shown to have had no knowledge of the
custom, and could not have dealt with reference to it.
' See ante, note i, § 615 ; the sale must be made specifically
and expressly with reference to the sample, or it will not be
held to be a sale by sample ; Bierne v. Dord, i Seld. 95 ; the
question as to whether a sale was by sample, was left to the
jury in Atwater v. Clancy, 107 Mass. 369 ; and upon evidence
Sec. II.] sale OF GOODS. 215
618. Implied warranty where the vendor is told
that the thing ordered is required for a specific
purpose. — If the vendor is informed that an article of
a certain quality, character, or description, suited for
some specified purpose, is required, the law implies a
promise from him that he will supply to the purchaser
an article of the quality, character, or description
ordered, and reasonably fit for the purpose for which
it is required. Where the plaintiflF sent to the shop
of the defendant, who was a rope dealer, for a crane
rope, and the defendant's foreman went to the plain-
tiff's premises and took the necessary admeasurement,
saw the crane, and was told that the rope was wanted
for the purpose of raising pipes of wine, and the rope
was brought and fixed, but it broke, and a cask of wine
was precipitated into the street and wholly lost, it
was held that the defendant, by accepting the retainer
and employment under the circumstances, had impli-
edly undertaken to furnish a rope reasonably fit for
the purpose for which it was ordered, and was liable
for the damage occasioned by its breaking, although
that the seller, in the presence of the purchaser, put his hand
into a package of tobacco and exhibited him some bunches,
saying that he would warrant it to be all of the same quality
as that exhibited, a jury may find the sale to have been one
by sample, Id. See Gallagher v. Waring, 9 Wend. 20 ; Beebe
V. Robert, 12 Id. 412; Boorman v. Jenkins, Id. 566; Sands v.
Taylor, 5 Johns. 359 ; Williams v. Spofford, 8 Pick. 219 ; Hast-
ings V. Lovering, 2 Id. 219; Borrekins v. Bevan, 3 Rawle, 37 ;
Rose V. Beatie, 2 Nott & McC. 538 ; Moses v. Mead, i
Denio, 386; Brower v. Lewis, 19 Barb. 574; Beirne v. Dord,
I Seld. 95 ; 2 Sandf. 89 ; Hargous V. Stone, i Seld. 73 ;
Bradford v. Manly, 13 Mass. 139 ; Henshaw v. Robins, 9 Met.
86; Oneida Manuf. Co. v. Lawrence, 4 Cow. 440 ; Andrews
V. Knceland, 6 Id. 354; Lathrop v. Otis, 7 Allen, 435 ; Mes-
senger V. Pratt, 3 Lans. 234, Leonard v. Fowler, 44 N. Y.
aS9.
2i6 LAW OF CONTRACT. [Bic. 11. Ch. I
he was not in fact the maker or manufacturer of it, he-
having employed a ropemaker to execute the order,
and the latter having, in his turn, employed a third
manufacturer of ropes for the purpose, (u)
619. Warranties by vendors who manufacture and
sell an article to be used for a specified ptirpose. — The
law implies a promise or undertaking from a manu-
facturer that all goods manufactured and sold by him
for a specific purpose, and to be used in a particular
way, are reasonably fit and proper for the purpose for
which he professes to make them, and for which they
are known to be required. Thus, where a tradesman
manufactured and sold copper sheathing for vessels, it
was held that he impliedly warranted and undertook
that the copper he manufactured was reasonably fit
for the purpose of sheathing vessels ; (v) and it would
seem, indeed, that the mere seller of copper described
as fit for sheathing vessels would be presumed to have
a reasonable knowledge of the article so described and
sold, and that the law would imply a wan^anty that the
article was reasonably fit for the purpose specified, (jj/)
Where a manufacturer invented and sold a " smoke-
consuming furnace," and the defendant ordered it for
his brewery, it was held that the law would imply no
warranty that the machine was fit for the defendant's
brewing-copper, and that the utmost that the vendor
could be considered to undertake under such circum-
stances was that the machine would consume smoke,
which it appeared to have done in other instances
when applied to a different purpose.
620. "But," observes Lord Abinger, "if the
(k) Brown v. Edgingtori, " Sc. N. (v) Jones v. Bright, 3 Moo. & P.
R. 496, And see Bigge v. Parkinson, 155 ; 5 King. 533.
7 H. & N. 955 ; 31 L. J., Ex. 301. (j) Gray v. Cox, 6 D. & R. 208 ; 4
B. & C. io3.
Sec. I I.J SALE OF GOODS. 217
vendor had said, ' I will send you one of mj
smoke-consuming furnaces which will suit your
brewery,' in such a case that would be a warranty
that it should suit the brewery." (z) In an actiom
for the price of a printing-machine, it appeared that
the plaintiff had obtained a patent for a machine of
which he was the inventor, which he called " Olip-
hant's patent two-colored printing machine," the object
of which was to print calico of two colors ; that the
defendant, hearing of the invention, wrote to the plains
tiff to know the price, when the latter in reply said,,
" I undertake to make you a two-color printing
machine on my patent principle;" whereupon the
defendant ordered the machine but could not make it
print two colors, and therefore refused to pay the
price ; but it was held that, as the defendant had got
a machine made on the plaintiff's " patent principle,"
he had got all he had bargained for, and that there
was no implied undertaking that it would, in the de-
fendant's hands and under his management, answer
the purpose for which he wanted it. (a) Where the
defendant undertook to supply the plaintiff who had
entered into an agreement with the East India
Company for the conveyance of troops to Bombay,,
with troop stores guaranteed to pass survey of the
East India Company's oflficers, it was held that this;
express warranty did not exclude the warranty implied
by law that the stores should be reasonably fit for the
purpose for which they were intended. (<5)
{z) Chanter v. Hopkin.<;, 4 M. & W. (a) Oliphant v. Bailey, 5 Q. B. 288 ;
39g, Camac v. Warriner, I C. B. 367. 13 L. J., Q. B. 34.
Prideaux v. Bunnett, i C. B., N. S. (/;) Bigge v. Parkinson, 7 H. & N.
616. Shepherd v. Pybus, 4 Sc. N. R. 955 ; 31 L. J., Ex. 301.
444-
' See Swett v. Shumway, 102 Mass. 365 ; Hoginsv. Plymp-
ton, II Pick. 97.
2i8 LAW OF CONTRACT. [Bk. II. Ch. I.
62 1 . Implied warranties on sales of provisions. —
Every victualler and dealer in provisions who sells
provisions impliedly warrants them to be wholesome
and fit for food. " If I come to a tavern to eat, and
the taverner gives and sells me meat and drink
corrupted, whereby I am made sick, an action lies
against him without any express warranty, because it
is a warranty in law." {c) If a man contracts to
supply victuals to a ship's crew, he impliedly warrants
them to be good and wholesome, and fit for the susten-
ance of man. But, where the purchaser examines
and selects the article himself, the vendor is not re-
sponsible for its being unwholesome, if he sold it
without fraud and in ignorance of its being unfit to
eat. {d) '
(<r) Year Book, 9 Hen. 653. i RoUe v, Matthews, 31 L. J., Ex. 139 ; 7 H.
Abr. 90, P. pi. 2. & N. 586. But see Bigge v. Parkin-
{d) Burnby v. BoUet, 16 M. & W. son, 7 H. & N. 955 ; 31 I,. J., Ex.
^44; 17 L. J., Ex. igo. Emniierton 301.
' " In case of provisions it will be presumed that the ven-
dor intended to represent them as sound and wholesome, be-
cause the very offer of articles for food for sale implies this,
and it may readily be presumed that a common vendor of arti-
cles of food, from the nature of his calling, knows whether
they are unwholesome and unsound or not. From the fact of
their being bad, therefore, a false and fraudulent representa-
tion may readily be presumed. But these reasons do not
apply to the case of provisions packed, inspected, and pre-
pared for exportation in large quantities as merchandise;"
per Shaw, Ch. J., in Winsor v. Lombard, 18 Pick. 57; and
see French v. Vining, 102 Mass. 132, 136; Van Bracklin v.
Fonda, iz Johns. 468; Marshall v. Peck, i Dana, 612 ; Hum-
phreys v. Comline, 8 Blatchf. 508; Moses v. Mead, i Denio,
378; Hoover v. Peters, 18 Mich. 51; Divine v. McCormick,
50 Barb. 116; Davis v. Murphy, i4lnd. 158; Osgood v. Lewis,
3 H. & Gill, 495 ; Emerson v. Brigham, 10 Mass. 197. It has
been held that there is no implied warranty in selling pro-
visions as articles of merchandise, to one to sell again ; Win-
sor v. Lombard, 18 Pick. 57 ; Mosev. Mead, 5 Denio, 678; Hart
V. Wright, 17 Wend. 267 ; Emerson v. Brigham, 10 Mass. 197.
Sec. II.] SALE OF GOODS. 219
622. Sale by sample — Implied warranty. — In all
cases of sale by sample, there is an implied under-
taking or promise on the part of the vendor that the
sample is fairly taken from the bulk of the com-
modity ; but there is no warranty that the bulk is, at
the time the sample is exhibited, of the same
quality and description as the sample, {e) When
there is a written contract of sale, or any note or
memorandurh of the bargain in writing, the circum-
stance of the sale being by sample, and of a represen-
tation having been made that the bulk corresponded
with the sample, can not be imported into the
contract and made use of by the purchaser, if the
note or memorandum is silent as to the sample,
unless the vendor knew of the defect, and there was
consequently a deceitful and fraudulent representa-
tion ; for, wherever the contract is reduced into
writing, the false affirmation or statement must be
incorporated into the written contract to enable any
of the contracting parties to avail themselves of it,
unless it can be shown to have been false to the
knowledge of the party making it, and therefore
fraudulent. (/") If goods are sold by a written
contract, which contains a description of their quality
without referring to any sample, and the goods do
not correspond with that description, the vendor can
not exonerate himself from the consequences of the
misdescription by showing that they corresponded
with a sample exhibited at the time of the sale, {g)
(e) Ormrod v. Huth, 14 M. & W. Freeman v. Baker, 5 B. & Ad. 804.
651. Sayers v. London and Birming- Moens v. Heyworth, 10 M. & W.
ham Flint-Glass and Alkali Company, 147.
27 L. J., Ex. 294. (:?')Tye v. Fynraore, 3 Campb.
(/) Meyer v. Everth, 4 Campb. 23. 461.
Hyland v. Sherman, 2 E. D. Smith, 234; Goldrich v. Ryan, 3
Id. 324.
220 LAW OF CONTRACT. [Bk. II. Cii. L
But, where both parties intended the written contract
to contain a stipulation that the article purchased was
to be according to sample, and that stipulation is
omitted by mistake, the purchaser may decline tO'
accept the article if it does not agree with the sample.
{k) Where goods have been sold by sample, evi-
dence of a custom of trade, as to returning or making
an allowance for such of the goods as do not answer
the sample, is receivable, (z) '
623. Warranty as to genuineness of aj' tides with
trade-marks. — By the 25 & 26 Vict. c. 88, s. 19, in
every case in which any person shall sell or contract to
sell (whether by writing or not) to any other person any
chattel or article with any trade-mark thereon or upon
any cask, bottle, stopper, vessel, case, cover, wrapper,
band, reel, ticket, label, or other thing, together with
which such chattel or article shall be sold or con-
tracted to be sold, the sale or contract to sell
shall in every such case be deemed to have
been made with a warranty or contract by the
vendor to or with the vendee that every trade-mark
upon such chattel or article, or upon any such cask^
bottle, stopper, vessel, case, cover, wrapper, band, reel,
ticket, label, or other thing as aforesaid, was genuine
and true, and not forged or counterfeit, and not
wrongfully used, unless the contrary shall be ex-
pressed in some writing signed by or on behalf of
the vendor, and delivered to and accepted ty the
vendee.
{K) Borrowmau v. Rossell, i6 C. B., {i) Cooke v. Riddelien, i Car. &
N. S, 68 ; 33 L. J., C. P. in. Kirw, 561.
' But a custom of trade will not be allowed to reverse a
rule of law ; Boardman v. Spooner, 13 Allen, 353 ; e. q., a usage
that a manufacturer is held not to warrant against latent de-
fects; Whitmore v. South Boston Iron Co., 2 Allen, 52; and
see Dickinson v. Gray, 7 Id. 34; Dodd v. Farlow, 11 Id. 426.
Sec. II.] sale OF GOODS. . 221
624. Warranty of description as to quantity or
•of the place or country of its manufacture. — By
the 25 & 26 Vict. c. 88, s. 20, in every case in which
any person shall sell or contract to sell (whether by
writing or not) to any other person any chattel or
article upon which, or upon any cask, bottle, stopper,
vessel, case, cover, wrapper, band, reel, ticket, label, or
other thing together with which such chattel or
article shall be sold or contracted to be sold, any
description, statement, or other indication of or
respecting the number, quantity, measure, or weight
of such chattel or article, or of the place or country
in which such chattel or article shall have been made,
manufactured, or produced, the sale or contract to
sell shall in every such case be deemed to have been
made with a warranty or contract by the vendor to or
with the vendee that no such description, statement,
or other indication was in any material respect false
or untrue, unless the contrary shall be expressed in
some writing signed by or on behalf of the vendor,
and delivered to and accepted by the vendee.
625. Representations amounting to a Tvarranty.
— Many representations and descriptions of the
subject-matter of a contract are of such a nature and
have been made under such circumstances, that the
party making them may fairly be considered to
warrant or vouch his knowledge of their truth and
accuracy, so as to be estopped from afterwards setting
up his want of knowledge. This is the case when
the means of information are peculiarly within his
reach, or he pretends to have informed himself upon
the subject, and to know all about it, when in truth
he knows nothing at all about it. {k) Where the
(k) Haycraft v. Creasy, 2 East, 103, W. 155. Fitzherbert v. Mather, i
i04. Moens v. Hcywortli, 10 M. & T. R. 15.
222 LAW OF CONTRACT. [Bk. II. Ch. L
vendor of a ship published a written description of
the vessel, which represented the hull to be nearly as
good as when launched, whereas it was worm-eaten
and unseaworthy and the keel was broken, and it
appeared that the vendor had caused the description
to be written and circulated without having examined
the bottom of the vessel, and without knowing
whether the description was true or false, and the
vessel was afloat and the hull covered with water, so
that the purchaser had no means of examining the
hull himself, it was held that the vendor must be
considered to have warranted the fact to be as he as-
serted. (/)' If a jeweller represents a piece of crystal
to be a diamond, or a common stone to be a bezoar
stone, this would now be considered to amount to a
warranty of the fact to a purchaser, and the jeweller
would be responsible accordingly, whether he knew
the representation to be true cr false ; (m) for>
(/) Schneider v. Heath, 3 Campb. (m) Chandelor v, Lopus, Cro. Jac. 4,
508, Pawson V. Watson, 2 Cowp. 788. and the note, I Smith's Leading Csises
Adamson v. Jarvis, 4 Bing. 73. 5th ed. 161.
' But it has been held with us that a description of
articles sold, contained in the bill of sale or elsewhere, is not
a Warranty. See Carley v. Wilkins, 8 Barb. 557 ; Sweet v.
Colgate, 20 Johns. 196 : Hotchkissv. Gage, 26 Barb. 141 ; Bar-
rett V. Hall, I Aiken, 269 ; Hastings v. Lovering, 2 Pick.
220; Seixas v. Wood, 2 Caines, 48; Whitman v. Treese, 25
Me. 213; Gosser v. Eagle, &c. Refinery, 103 Mass. 331 ; Daily
V. Green, 15 Pa. St. 118; Jennings v. Gratz, 3 Rawle, 168;
Carson v. Baillie, 19 Pa. St. 375 ; Wetherill v. Neilson, Id.
448; Borrekins V. Bevan, 3 Rawle, 23; Ender v. Scott, 11 111.
35 ; Hyatt v. Boyle, 5 Gill & J. no; Hawkins v. Pemberton,
6 Rob. 42. But see the rule stated in the text asserted in
Winsor v. Lombard, 18 Pick. 60; Lamb v. Crafts, 12 Met.
355; Bradford v. Manly, 13 Mass. 139; Hastings v. Loverin;-,
2 Pick. 214; Morrill v. Wallace, 9 N. H. u., ; Wolcott v.
Mount, 7 Vroom, 262.
Sec. II.] SALE OF GOODS. 223
wherever the means of obtaining correct information
lie peculiarly with the party makina; the assertion, and
he asserts a falsehood to be the truth, not knowing-
whether it is or is not, he is as much responsible as if
he had known the falsehood of what he asserted, (n) '
(«) Rawlins v. Wickham, 28 L. J., Ch. 192.
' An affirmation, at the time of a sale by the vendor, if it
be not a mere expression of judgment or opinion, upon which
he intends the purchaser shall rely, is a warranty; Rogers v.
Akerman, 22 Barb. 134; Beeman v. Buck, 3 Vt. 53; Hawkins
V. Beny, 5 Gilm. 36; McGregor v. Penn, 9 Yerg. 74; Ricks
V. Dillahunty, 8 Port. 133 ; Towell v. Gatewood, 2 Scam. 24;
Blythe v. Speake, 22 Texas, 430 ; Weimer v. Clement, 37 Penn.
St. 147 ; House v. Fort, 4 Blackf. 296 ; Carter v. Black, 46
Mo. 384; Lawton v. Keil, 61 Barb. 588; Wolcott v. Mount, 7
Vroom, 262; Otts V. Alderson, 10 Sm. & M. 476; Kinley v.
Fitzpatrick, 4 How. (Miss.) 59; Anderson v. Burnett, 5 Id.
165 ; Hanson v. King, 3 Jones (N. C.) Law, 419 ; McFarland v.
Newman, 9 Watts, 56 ; Morrill v. Wallace, 9 N. H. in ; Hen-
shaw V. Robbins, 9 Met. 83, 87, 88 ; Hillman v. Wilcox, 30
Me. 170; Bryant v. Crosby, 40 Id. 18; Ender v. Scott, 11 111.
35 ; Humphreys V. Comline, 8 Blackf 508; Murphy v. Gay,
37 Mo. 535 ; Wilbur v. Cartwright, 44 Barb. 536 ; Bond v.
Clark, 35 Vt. 577 ; Swin v. Denny, 4 Met. 151 ; Osgood v.
Lewis, 2 H. & Gill, 495 ; Chapman v. Murch, 19 Johns. 290 ;
Roberts v. Morgan, 2 Cow. 438; Whitney v. Sutton, 11 Wend.
441 ; Cook V. Moseley, 13 Id. 277 ; O'Neil v. Bacon, i Houst.
215 ; Beals v. Olmstead, 24 Vt. 114; Randall v. Thornton, 43
Me. 226 ; Hahn v. Doolittle, 18 Wis. 197 ; and this is generally a
question of fact for the jury ; see Tuttle v. Brown, 4 Gray, 457 ;
Morrill v. Wallace, 9 N. H. in ; Stroud v. Pierce, 6 Allen,
413; Whitney v. Sutton, 10 Wend. 411 ; Foster v. Caldwell, iS
Vt. 176 ; Baum v. Stevens, 2 Ired. (N. C.) Law, 411 ; House v.
Fort, 4 Blackf 293 ; Duflee v. Mason, 8 Cow. 25 ; Whitney v.
Sutton, 10 Wend. 411; Chapman v. Murch, 19 Johns. 290^
Starnes v. Erwin, 10 Ired. 226; Fogart v. Blackweller, 4 Id.
238 ; McFarland v. Newman, 9 Watts, 56 ; Wolcott v. Mount,
7 Vroom, 262; Foster v. Caldwell, 18 Vt. 176; Bradford v.
Bush, 10 Ala. 386; Humphreys v. Comline, 8 Blackf 508;
House V. Fort, 4 Blackf 296 ; but the construction of a
written contract is, of course, for tbe court; Brown v. Bige-
224 LAW OF CONTRACT. [Bk. II. Ch. I.
If the vendor of a house and the goodwill of a busi-
ness represents the business done on the premises to
be greater than it really is, and so induces the pur-
chaser to give more than the house or the goodwill is
worth, this amounts to a warranty of the fact stated,
although the statement may have been the result of
mistake, because the annual profit of the trade lies
peculiarly within the private knowledge of the ven-
dor, {o) It must be imputed to him that he knew
the fact ; and whether he did or did not is of no mat-
ter ; " he undertook to know, by undertaking to give
the description." (/) A purchaser of a house gave
^7,350 for the house upon the faith of letters from the
vendor stating that, "the house was in so good a state
as not to require any repairs whatever," whereas the
house was, at the time the letters were written, affected
with the dry rot, and the floors gave way shortly after
the purchaser took possession of it ; and it was held
that the vendor was responsible to the purchaser for
such a sum as would put the house into the state he
had represented it to be in. (^)
626. Representations not amountmg to a war-
ranty.— But there is no warranty of the party's knowl-
edge, or of the fact being as it is stated to be, if the
representation is made concerning some matter, the
knowledge of which lies as much within the power of
the one party as the other, and the correctness or in-
correctness of which may be ascertained by the party
interested in knowing the truth by the exercise of or-
(tf) Risney v. Selby, i Salk. 211. (/ ) Calverly v. Williams, i Ves.
Mummery v. Paul, I C. B. 316. Tay- junr. 212.
lor V. Green, 8 C. & P. 319. {q) Grant v. Munt, Coop. Ch. C.
J73.
low, 10 Allen, 242; Watson v. Rowe, 16 Vt. 525; Stroud v.
Pierce, i Allen, 413 ; Smith v. Justice, 13 Wis. 600.
Sec. II.] SALE OF GOODS. 225
dinary inquiry and diligence, provided the representa-
tion is not made for the purpose of throwing the latter
off his guard and preventing him from making those
inquiries and examinations which every prudent per-
son ought to make, (r) Thus, where a house was
represented as a residence fit for a respectable family,
the court said the purchaser might have seen the house
and judged for himself, and he could not complain that
the house did not answer the description, when ordin-
ary diligence would have enabled him to make sure ; it
was merely a puff, (s) So, where an estate was des-
cribed as being within a ring-fence, but did not an-
swer the description, and it appeared that the purchaser
had gone over the estate before he entered into the
contract, that he had lived in the neighborhood all his
life, and must have known, at the time he made the
bargain, whether the property did or did not lie within
a ring-fence, it was held that there was no warranty
and no deceit. (/) When a general warranty is given
on a sale, defects which were apparent at the time of
the making of the bargain, and were known to the
purchaser, can not be relied on as a ground of action.
(7/) " If one sells purple to another, and saith to him,
'This is scarlet,' the warranty is to no purpose; for
that the other may perceive this ; and this gives no
cause of action to him. To warrant a thing that may
be perceived at sight is not good." (v)
627. Representations of matters of opinion and
belief — A representation, morever, frequently amounts
(r) Attwood V. Small, 6 01. & Fin. (k) Margetson v. Wright, 5 Moo. &
J538. Clapham v. Shillito, 7 Beav, P. 610 ; 7 Bing. 603 ; i M. & Sc. 622 ;
146. 8 Bing. 454. Ekins v. Tresham, 1
(j-) Magennis v. Fallon, 2 Moll. 561. Lev. 102.
(ODyerv. Hargrave, 10 Ves. 505. (i/) Baily v. Merrell, 3 Bulstr. 95.
Cowen V. Simpson, I Esp. 2go.
11.— I.";
226 LAW OF CONTRACT. [Bk. II. Ch. 1.
to a mere statement of the party's own opinion and
belief upon a matter concerning which the other con-
tracting party is to exercise his own judgment, and
does not amount to a positive affirmation or statement
of a fact. Thus, if the vendor of a picture, submitted
to the inspection and examination of the purchaser,
states it to be the work of a particular artist, it is
always a question for the jury to determine whether
the statement amounted to a mere expression of the
vendor's own opinion and belief upon a matter con-
cerning which the buyer was to exercise his own judg-
ment, or whether it was understood to be a positive
affirmation or warranty of the fact. (_y) Where a pur-
chaser inquires for himself, and acts upon his own
opinion, he can not say that he has been misled by the
false statement of another; {z) and, if he inspects and
examines the article for himself, and selects it after
exercising his own judgment upon its character
and quality, the vendor only warrants that the article
is, so far as he knows, what it appeared to be, and what
he believed it to be, at the time he sold it. (a) Thus,
where the plaintiff, having heard that the defendant
had some barley to sell, went to the defendant's count-
ing-house, where a person who managed the defend-
ant's business produced a sample of barley which he
said was seed barley, and the plaintiff then looked at
the barley, and said it was a good sample of seed bar-
ley, and bought it and it turned out that both parties
were mistaken, and that the barley was not what was
ordinarily known in the market as " seed barley," but
{y) Jendwine v. Slade, 2 Esp. 572. Dunlop v. Waugh, Peake, 167.
Lomi V. Tucker, 4 C. & P. 15. De (2) Jennings v. Broughton, 17 Jur,
Sewhanberg v. Buchanan, 5 C. & P. 905.
343. Power V. Baiham, 4 Ad. & E. (a) Ormiod v. Huth, 14 M. & W.
473 ; 6 N. &: M. 62 ; 7 C. & P. 356. 664.
Sec. IL] sale OF GOODS. 227
what was called " barley bigg," and it appeared that
both parties had equal means of knowledge of the true
character of the article, that both had believed it to be
seed barley, and that it was bought and sold as such,
it was held that what the defendant's servant said
about the article amounted, under the circumstances,
merely to an expression of his own opinion and belief
about it, and did not amount to a warranty, {fi) But
where the purchaser has not examined for himself, and
has not relied upon his own judgment in the matter,
but has acted upon the faith of the representation made
to him, then the representation amounts, as we have
seen, to a warranty of the fact. '
628. Warranty on sales of horses. — The owner
of a horse who has used and driven it, or has had the
means of doing so, has greater means of knowledge
than a stranger who knows nothing about the animal.
If, therefore, the owner offers the horse for sale, every
representation that he makes to the buyer respecting:
the qualities and capabilities of the animal amounts
to a warranty, although the word warrant is never
used by him. " If parties are dealing for a horse, and
the seller says, ' You may depend upon it that the
horse is perfectly free from vice,' that is a very suffi-
cient warranty, though the word warrant was not
used." (c) If the purchaser of a horse tells the vendor
in a letter, " You represented the horse to me as a five-
year-old," and the defendant answers, "The horse is
as I represented," this is evidence from which a
warranty may be inferred, (d') If a horse offered for
{b) Car;er v. Crick, 4 H. & N. 416 ; b. Cave v. Coleman, 3 M. & R. 4.
28 L. J., Ex. 238. {d ) Salmon v. Ward, 2 C. & P.
(f) Thorogood's case, 2 Co. Rep. ga, 211.
' See ante, note i, § 624.
228 LAW OF CONTRACT. [Bk. II. Ch. I.
sale has a cough and running at the nose, and the
vendor says that it is a mere cold, and that he will
deliver the horse sound and free from blemish in a
week, that amounts to a warranty to a purchaser that
the horse has nothing more than a cold upon him. (e)
"If a purchaser," observes Best, C. J., "asks for a
carriage-horse, or a horse fit to carry a lady, or a timid
or infirm person, the seller who knows the qualities
of the horse he supplies in answer to the demand,
undertakes, on every principle of honesty, that it is fit
for the purpose specified." (_/) We have already
seen that a warranty will not bind a man in a thing
that i|| apparent, as to warrant that a horse has both
his eyes, when he has manifestly lost one of them.
(^g) If, therefore, at the time of the sale of a horse,
the animal is warranted sound in wind and limb, that
is understood to mean saving those manifest and
visible defects which were obvious to all observers ;
and, if the horse was manifestly blind or obviously
lame, and the purchaser examined the animal before
he bought it, and must have been aware of these
patent defects, the vendor's representation will give
no cause of action. But a purchaser who relies upon
a warranty is not bound to make any particular ex-
amination of a horse before he buys, to ascertain
whether a defect exists. If, relying upon a warranty,
he omits to make any particular examination of the
animal, and consequently fails to discover a defect
which might have been ascertained by examination,
he is, nevertheless, entitled to maintain an action ; (^h)
and if a manifest defect is not necessarily of a perma-
nent nature — if a horse has a cough and running at
{e) Liddard v. Kain, 9 Moore, 356. {g) Ekins v. Tiesham, i Lev. 102.
(/) Jones V. Bright, 3 Moo. & P. {h) Holyday v. Morgan, 28 L. J.
I75. Q- B. 9.
Sec. II.] SALE OF GOODS. 229
the nose, and the vendor says that it is merely a cold,
and that the horse will be sound and well in a given
time, and the purchaser buys in reliance upon the
truth of the representation — the vendor, as we have
seen, will be responsible in damages if the horse con-
tinues unsound and permanently diseased. (?) '
629. Proof of warranties. — It has been held that
a warranty made orally, on the completion of a written
contract of sale, can not be introduced as part of the
contract, if the contract itself is silent as to the fact of
the warranty, as it is a rule of law that oral evidence
shall not be given " to superadd any term to a written
agreement, for it would be setting aside all written
contracts, and rendering them of no effect." But
although a warranty can not be superadded to a
written contract by oral testimony, yet, if it can be
shown that the contract was induced by an oral
warranty made by one of two contracting parties,
which was false to the knowledge of the party making
it, and was made for the purpose of throwing the
other contracting party off his guard, and fraudulently
obtaining his consent to the bargain, this is a circum-
stance altogether collateral to the contract, and the
proof of it by oral testimony does not in anywise in-
fringe upon the preceding rule of law. The oral evi-
dence can not be received to show that the contract
itself was diflFerent from that authenticated by the
written instrument ; but it is admissible to show that
{{) Liddard v. Kain, sufra.
' Roberts v. Jenkins, 21 N. H. 116; Burlon v. Young, 5
Harr. 233 ; and see Whitney v. Taylor, 54 Barb. 536 ; Fou-
dren v. Durfee, 39 Miss. 324 ; Kornegay v. White, to Ala. 255 ;
Brown v. Bigelow, 10 Allen, 244; Hook v. Stovall, 21 Geo.
69; Crouch V. Culbreath, 11 Rich. 9; Woodbury v. Robbins,
10 Cush. 520.
230 LAW OF CONTRACT. [Bic. II. Ch. I.
the assent of the party to the contract was obtained
under false pretenses, and that the contract is bot-
tomed in fraud, and has therefore no legal existence.
Ex dolo non oritur contractus. The oral evidence of
the false and fraudulent representation in such a case
has not the effect of altering, varying, or adding to the
written contract ; but admitting the contract in all its
terms, it seeks to show that the party guilty of the
fraud ouffht not to have the assistance of a court of
justice for the enforcement of it. " If duress be
pleaded, or a false reading of the deed, you avoid the
deed at law by parol evidence : but then these facts
are collateral to the import of the instrument ; they
do not vary or alter it." The oral evidence is offered,
not to affect the terms of the contract itself, but to
destroy the remedy by way of action upon it. (i) An
unstamped written agreement may be given in evi-
dence to prove fraud, if it is used merely for the pur-
pose of showing that a person paying money has been
imposed upon. (/) Where representations which
may amount to a warranty are contained in letters
which constitute a contract of sale, evidence is ad-
missible of the surrounding circumstances for the
purpose of showing that no warranty was contem-
plated by the parties, {vt)
630. Construction of expess warranties. — Where
there was an agreement for the sale and purchase of
all the naphtha the defendant might make during two
years, "say from 1,000 to 1,200 gallons a month," it
was held that these words did not amount to an un-
dertaking or warranty that that quantity of naphtha
(k) Collins V. Blantern, 2 Wils. 347. (/) Holmes v. Sixsmith, 7 Exch.
Davis V. Symonds.i Cox. 405. Wrighi 807 ; 21 L. J., Ex. 312.
V. Crookes, I Sc. N. R. 69S. Hutch- {m) Stucley v. Bailey, i H. & C.
inson v. Morley, 7 Sc. 341. 405 ; 31 L. J., Ex. 483.
Sec. II.] SALE OF GOODS. 231
should be manufactured and sold per month, (n)
But, where the agreement was to prepare and sell
"say not less than 100," &c., it was held that the
words did amount to a warranty or undertaking that
at least the quantity specified should be prepared and
sold. (0) Warranties of quantity and quality made on
sales of goods and chattels will be regulated by the
apparent intention of the parties at the time the con-
tract was entered into. There is no necessity that the
word " warrant " or " promise " should occur in the
bargain ; but the promise or representation must form
part of the contract of sale. (/) Where a sale note
made on the purchase of a horse described the animal
as " a black gelding, about five years old, constantly
driven in the plough — warranted," it was held that, if
the w^ord " warranted " had been placed at the com-
mencement of the sentence, it would have extended
to the sex and age of the horse, and his fitness for the
plough ; but as it concluded the sentence, it extended
only to the soundness of the animal, the preceding
sentences being merely descriptive of the horse, and
of the work to which it had been accustomed. (^)
And where the seller gave the purchaser a written
receipt for the purchase-money, describing the horse
as a bay gelding, got by Cheshire Cheese, warranted
sound, it was held that the warranty was confined to
the soundness of the animal, and did not extend to
the description of his parentage. So, where a written
receipt described the horse sold as " a gray four years'
•old colt, warranted sound in every respect," it was
(») Gwillim V. Daniell, 2 C. M. & R. proceeds." Caine v. Horsfall, i Exch.
61. 523-
(tf) Leeming v. Snaith, 16 Q. B, 275. (/) Hopkins v. Tangueray, 15 C. B.
As to the effect of the words " about " 138.
■or "more or less,'' see ante. Bouine {q) Richardson v. Brown, 8 Moore,
V. Seymour, 25 L. T. R. 162, " net 338.
232 LAW OF CONTRACT. [Bk. II. Cit. I.
held that the warranty did not extend to the descrip-
tion of the age of the animal, and that if the parties
had meant to warrant the age as well as the sound-
ness of the colt, the words should have been " war-
ranted a four years' old colt, and sound in every
respect." (r) Where, on the sale of a horse, the seller
signed the following warranty, — '' Mr. C. bought of
Mr. G. G. a bay horse for ninety pounds, warranted
sound. £90. Warranted sound for one month," — it
was held that the latter words limited the duration of
the warranty, and meant that it was to continue in
force for one month only, and that complaint of un-
soundness must, therefore, be made by the purchaser
within one month of the sale, (i) But the construc-
tion to be put upon contracts and representations of
this description will be regulated by the surrounding
circumstances of each particular case, which must be
regarded in order that the true meaning and intention
of the parties may be discovered. '
631. Warranties by agents. — The general pre-
sumption is that, where a principal intrusts property
to an agent to sell, he authorizes him to make all
such warranties as are usual in the ordinary course of
that particular business of selling, and that, if it is
(?■) Budd V. Fairmaner, I M. & Sc. (s) Chapman v. Gwyther, L. R., I
78. As to unsoundness, see Kiddell Q. B. 643 ; 35 L. J., Q. B. 142.
V. Burnard, 9 M. & W. 670.
' Parol evidence is admissible to explain a warranty;
Bradford v. Manly, 13 Mass. 139; Atwater v. Clancy, 107 Id.
369 ; Hazard v. Loring, 10 Cush. 267 ; Frost v. Blanchard, 97
Mass. 155 ; not if the warranty be in a receipt, which is a com-
plete contract. But see Niles v. Culver, 8 Barb. 205 ; Good-
year V. Ogden, 4 Hill, 104 ; Batturs v. Sellers, 5 Har. & J. 117 ;
Chapman v. Searle, 3 Pick. 38 ; or bills of parcels ; Boardman
V. Spooner, 13 Allen, 353 ; Harris v. Johnston, 3 Cranch, 311 •,.
Foot v. Bentley, 44 N. Y. 166; Sutton v. Crosby, 54 Barb, So..
Sec. II.] SALE OF GOODS. 235
usual to sell with a warranty, he has an implied
authority to warrant. (/) ^ The agent or servant of a
horse-dealer has an implied authority to bind his-
principal or master by a warranty, even although (un-
known to the buyer) he has express orders not to.
warrant ; and evidence of an alleged custom among
horse-dealers not to give a warranty where the
purchaser obtained a veterinary-surgeon's certificate
of soundness, is not admissible to contradict such
implied authority, (u) But a servant intrusted on
one particular occasion to sell has no implied authority
to warrant so as to bind the owner, (v)
632. Effect of a breach of warranty by the ven-
dor.— If it appears to have been the intention of the
parties that a sale of chattels should be an absolute sale
with a warranty, superadded, the purchaser can not an-
(0 Dingle v. Hare, 7 C. B., N. S. [v) Brady v. Tod, 9 C. B., N. S.
145 ; 29 L. J., C. P. 148. 592 ; 30 L. J., C. P. 223. But as to-
(11) Howard v. Sheward, 36 L. J., this, see ante.
C. P. 42.
' Woodford v. McClenahan, 4 Giltnan, 85 ; Bradford v.
Bush, 10 Ala. 386 ; Peters v. Farnsworth, 15 Vt. 155 ; Boothby
V. Scales, 27 Wis. 626; Skinner v. Gunn, 9 Porter, 305 p
Gaines v. McKinley, i Ala. (N. S.) 446 ; Bryant v. Moore, 26'
Me. 84; Sandford v. Handy, 23 Wend. 260; Nelson v.
Cowing, 6 Hill, 337; Hunter v. Jameson, 6 Ired. 252; Wil-
liamson V. Connaday, 3 Id. 349 ; Taggart v. Stanberry, 2 Mc-
Lean, 543; Upton V. Suffolk, &c. Mills, 11 Cush. 416 ; Lane v.
Dudley, 2 Murph. 119; Ezell v. Franklin, 2 Sneed (Tenn.)
236 ; Croom v. Shaw, i Fla. 211 ; Morris v. Bowen, 52 N. H.
416; Palmer v. Hatch, 46 Mo. 585 ; Randall v. Kehlor, 60 Me.
37 ; Fay v. Richmond, 43 Vt. 25 ; the agent may sell by sam-
ple and warrant ; Andrews v. Kneeland, 6 Cow. 353 ; but it is
said, he may not warrant for the future, as, e. g., that flour should
keep sweet on a voyage to California ; Upton v. Suffolk &c.
Mills, II Cush. 586; and see Randall v. Kehlor, 60 Me. 37 ?
a broker may not, it seems, bind his principal by warranty ;.
Dodd V. Farlow, 11 Allen, 426; neither can an auctioneer-
Blood V. French, 9 Gray, 197.
234 LAW OF CONTRACT. [Bk. II. Cn. I.
nul the sale and return the thinsf sold, unless there has
been actual fraud, and the vendor knew, at the time of
the sale, that the thing sold did not answer the warranty ;
but, if the sale is conditional on the thing sold being
in accordance with the warranty, the purchaser will
be entitled to annul the sale, and return the article
and recover the price, if the condition is not fulfilled.
Where the plaintiff exchanged a watch with the
defendant for a pair of candlesticks, warranted to be
silver, which turned out to be base metal, it was held
that the defendant could not rescind the contract and
return the candlesticks and claim back his watch
without proving that the plaintiff knew that the
candlesticks were not silver at the time he gave the
warranty, (jj/) Lord Eldon is reported to have said
that, if a person purchases a horse which is warranted
sound, and it afterwards turns out that the horse was
unsound at the time of the warranty, the buyer might
return the horse and bring an action to recover the
full money paid, but that the seller had a right to ex-
pect that the horse should be returned in the same
state he was in when sold, and not by any means
diminished in value. (2) " It is, however, impossible,"
justly observes Lord Tenterden, " to reconcile this
doctrine with those cases in which it has been held
that where the property in the specific chattel has
passed to the vendee, and the price has been paid, he
has no right, upon the breach of the warranty, to
return the article and re-vest the property in the
vendor, and recover the price as on a consideration
which has failed, but must sue upon the warranty,
unless there has been a condition in the contract
authorizing the return, or the vendor has received
{y) Emanuel v. Dane, 3 Camp. (s) Curtis v. Hannay. 3 Esp, S3.
?oo.
Sec. IL] SALE OF GOODS. 235
back the chattel, and has thereby consented to re-
scind the contract, or has been guilt)^ of a fraud,
which destroys the contract altogether." " If these
■cases," observes his lordship, ''are rightly decided, —
and we think they are ; and they certainly have
always been acted upon, — it is clear that the purchaser
■can not by his own act alone, unless in the excepted
cases above mentioned, re-vest the property in the
seller and recover the price, when paid, on the ground
of the total failure of consideration." (a) Where
goods are sold "guaranteed equal to sample," if the
sale is not of specific goods, such a clause is a con-
dition going to the essence of the contract, and the
buyer may reject them if they are not equal to
sample ; but, where the sale is of specific goods, such
a clause is collateral to the covenant, and, if the goods
are not equal to sample, only entitles the buyer to a
reduction of the price, or to an action for damages.
(U) If, however, the thing delivered does not answer
the description of that which was sold, if, that is, it
differs in kind and not in quality only, the buyer is
not bound to take it ; and, if he has paid for it, he
may recover back the money as upon a failure of
consideration, (t)'
(a) Street v. Blay, 2 B. & Ad. 462. Gottorno v. Adams, 12 C. B., N. S
Dawson v. Collis, 10 C. B. 153. Par- 566.
sons V. Sexton, 4 C. B. 907 ; 16 L. J., {b) Heyworth v. Hutchinson, L. R.,
C. P. 184. Toulmin v. Hadley. 2 C. 2 Q. B. 451 ; 36 L. J., Q. B. 270.
& K. 157. Foster v. Smith, 18 C. B. {c) Azemar v. Casella, L. R., 2 C.
160. Heyworth v. Hutchinpon, L. R., P. 431 ; lb., 677 ; 36 L. J., C. P. 124,
2 Q. B. 447 ; 36 L- J-. Q- B. 720. 263.
' The buyer may bring his action for breach of warranty at
once, without returning the goods ; but his continued posses-
sion of them, and their actual value would be considered in
estimating the damages; i Parsons on Contracts, 591, citing
Gary v. Gruman, 4 Hill (N. Y.) 625 ; Voorhees v. Earl, 2 Id.
288; Comstock V. Hutchinson, 10 Barb. 211; Hitchcock v.
236 LAW OF CONTRACT. [Bk. II. Ch. L
633. Conditional and defeasible sales. — If on the
sale of a horse it is part of the bargain that the
animal shall be taken back if it is unsound, or does
not answer the wairanty, the purchaser will be
entitled to return the animal, and recover back the
purchase money, on proof of the unsoundness of the
horse. Where an agent intrusted to sell a mare, but
not being authorized to warrant her, refused to do so,
but at the time of the sale told the purchaser that, if
the mare was not all right, she was not his, and the
purchaser then paid the price and took away the mare.
Hunt, 28 Conn. 343 ; Krabton v. Kile, 21 IlL 180. If he has
sold a part before the discovery of the breach, and therefore
can not return them, he may still rescind the sale, and will be
liable for the market value of what he does not return.
Shields V. Pettee, 4 Comst. 122. If the vendor refuses to re-
ceive them again, the purchaser may sell them, and recover
from the vendor the loss, if any, upon the resale, with the ex-
pense of keeping the goods and of the resale ; Buffington v.
Quantain, 17 Pa. St. 310; Woodward v. Thatcher, 21 Vt. 580.
" We should sa)% on the reason of the thing, that if the buyer
sells the goods with all proper precautions as to time, place,
and manner, to insure a fair sale, the vendor will be bound by
the price the goods bring, whether that be in fact equal to
their value or not; but this may not yet be established by
adjudication." 1 Parsons on Contracts, 593. " If he has a
right to return the goods, his tender of them completes his
right to sue for the price, whether the vendor receives them
or not." Id. Thornton v. Wynn, 12 Wheat. 193. But this right
to return for breach of warranty has been limited to cases of
fraud, or where the parties had so expressly agreed. Thorn-
ton V. Wynn, 12 Wheat. 183. In Pennsylvania, Kase v. John,
10 Watts, 107. In Tennessee, Allen v. Anderson, 3 Humph.
581; Carter v. Walker, 2 Rich. L. 40; Cary v. Gruman, 4
Hill (N. Y.) 625 ; Voorhees v. Earl, 2 Id. 288; Lightburn v.
Cooper, I Dana, 273. Breach of warranty has been held not
to be a bar to an action by the vendor for the price; West v.
Cutting, 19 Vt. 536; Freeman v. Clute, 3 Barb. 424; delay in
returning may be construed as an acceptance by the purchaser
if occurring after the discover)' of the deficiency in the goods.
Clements v. Smith's Administrraors, 9 Gill, 156.
Sec. II.] SALE OF GOODS. 237
and, the animal proving to be unsound, he returned
her and sued for the price, it was held that there was
evidence for a jury of the sale being accompanied
with a condition authorizing a return of the mare and
■enabling the purchaser to recover the price on proof'
of her unsoundness; (a?) so, where, pending a nego-
tiation for a sale of hops, the growth of 300 acres,
the purchaser declared that he would not have the
hops if the bine had been sulphured, and required and
received a written undertaking from the vendor that
no sulphur had been used, and the hops were then
delivered to and received by the purchaser, and it was
then ascertained that sulphur had been used on five
acres by way of experiment without the knowledge
of the vendor, and that these sulphured hops were so
mixed with the unsulphured as to be undistinguish-
able, it was held that the purchaser had a right to
avail himself of the breach of the condition and
annul the bargain, {e) If a horse is sold on the
terms that the buyer is to have the horse a certain
time on trial, the sale is conditional on the purchaser's
approval of the horse after trial, so that, if he tries
the horse and then returns it, there is no sale. In
these cases the right of property in the specific thing
sold passes subject to a condition. If the condition
is fulfilled or waived, the sale becomes an absolute
sale ; if it is not fulfilled or waived, the party in
whose favor and for whose protection the condition
was imposed is entitled to repudiate the contract and
return the subject-matter of the sale and recover the
price. {/) Where a mare was sold on the terms that,
if she proved in foal, she was to be returned, and the
(d) Foster v. Smith, i8 C. B. 156. (/) Behn v. Burness, 32 L. J., Q.
(f) Bannerman v. White, 10 C. B., B. 204.
N. S. 844 ; 31 L. J., C. P. 28.
238 LAW OF CONTRACT. [Bk. II. Ch. I.
mare proved in foal, it was held that the vendor had
a right to have the animal returned to him. (^g)
Where the sale is defeasible within a certain time, the
fact that the thing sold has within that time, and
without any negligence on the part of the purchaser,,
ceased to exist, does not disable the purchaser from
avoiding the contract. Where a horse was sold with
a condition that he might be returned within a
specified time if he did not answer the description
given of him, and within the time the horse died,
without any negligence on the part of the purchaser,,
it was held that the latter was ent'tled to rescind the
contract and recover the price of the horse which did
not answer the description. (^)
634. Sale 07'' return. — When goods are sold under
a contract of " sale or return," the sale is a conditional
or defeasible sale. The right of property in the goods
passes to the purchaser subject to be divested out of
him and re-vested in the vendor by a return of the goods
to the latter, in accordance with the terms of the con-
tract. If the goods are returned or tendered back to the
vendor within a reasonable time, the sale is annulled,,
and the latter can not recover the price of them ; but
if the purchaser, having got possession of the goods,
fails to exercise his option of returning them within a
reasonable time, the contract is discharged of the con-
dition, the sale stands as an absolute sale, and the
price of the goods may be recovered in an action for
goods sold and delivered, (z) So, if goods are
sold and delivered on the terms that the purchaser
is to have three or six months' credit, provided
{g) Williams v. Burgess, 10 Ad. & {i) Moss v. Sweet, 16 Q. B. 493 ; 20-
E. 502. L. J., Q. B. 167, overruling Iley v.
(/;) Head v. Tattersall, L. R , 7 Ex. Frankenstein, as reported, 8 Sc. N. R,
7 ; 41 L. J., Ex. 4. 841.
Sec. II.] SALE OF GOODS. 239
he gives the vendor the security of a bill or note at
three or six months, and the purchaser refuses to give
the bill or note, the sale stands as an absolute sale, and
the price is immediately recoverable. (/&)
635. Redhibitory defects enabling a purchaser to
annul a contract of sale and recovered the price. — It is a
maxim of the civillaw, that " he who has sold one thing
for another, an old thing for a new, or a less quantity
than what he undertook to sell, is bound to take back
the thing or abate the price, and make good the dam-
ages sustained by the purchaser." (/) All defects which
deprived the purchaser of the use and enjoyment of
the subject-matter of the sale altogether, or which ren-
dered it unfit for the purpose for which it was known to
be required, were, by the Roman lawyers, called red-
hibitory defects, because they gave rise to the redhibi-
tory action, which was brought to compel the vendor
to take back the thing sold and refund the price, {ni)
When the defects in the thing sold gave rise to a red-
hibition and dissolution of the sale, the vendor and pur-
chaser were restored to the condition they were in
before the sale. The vendor was bound to restore the
price paid, with interest, and the purchaser was bound
to restore to the vendor the subject-matter of the sale
with all the profits and advantages he had reaped from
it whilst it was in his possession, {n) '
636. Sales rendered aT)oidable on the ground of
{li) Rugg V. Weir, ante. law, see Troplong, ch. 4, De LA.
(/) Domat. liv. X, tit. 2, s. II, 15 Vente.
Dig. lib. 18, tit. I, lex. 45 ; lib. 19, tit. («) Facta redhibitione, omnia in
I, lex 21, § 2. integrum restituuntur, perinde ac si
(in) Dig. lib. 21, tit. I, 21, 27. As neque emptio neque venditio inter-
to redhibitory defects in the French cessit. Dig. lib. 21, tit. I, lex. 60, U
23. § 7.
• See ante, § 632, and note i.
240 LAW OF CONTRACT. [Bk. II. Ch. I.
yraudtilent misrepresentation. — It is not every willful
false statement, made with full knowledge of its false-
hood, that will amount in judgment of law to a fraud,
so as to enable a purchaser to avoid a contract of sale.
The ordinary praise or commendation, for example,
bestowed by a vendor on the wares he sells, though
embodying statements of fact known by the party
making them to be not strictly true, does not vitiate
the contract of sale.
637. A misrepresentation, moreover, to enable a
purchaser to avoid a sale on the ground of deceit and
fraud, must be made concerning some matter very
material to the value of the contract, so that there may
be fair ground for thinking that the contract would
never have been entered into if the false statement
had not been made. De minimis non curat lex, and,
therefore, if a man represents his house to be in good
repair, and a few tiles are off the roof, or two or three
of the joists under the floor near the ground are rotted
with the damp, or a pane of glass is broken in a garret
window, such trifling defects, to use the language of
Lord Kenyon, " are mere bagatelles," and afford no
evidence of mala fides. {0) To all trifling and tmim-
portant representations, not seriously affecting the
value of the contract, and to all affirmations of matters
of opinion and judgment, not amounting to positive
assertions of fact with knowledge of their falsehood,
the maxim of caveat emptor must apply ; (/) for,
whilst we ought not, on the one hand, to suffer plain
dealing, simplicity, and good faith to become a prey
to double dealing and treachery, so, on the other hand,
we ought not readily to annul contracts, because
(0) Geddes v. Pennington, 5 Dow.
(p) Lowndes v. Lane, 2 Cox, 363.
163, 164.
Benham v. Un. Guar. &c., 7 Exch,
744-
Sec. II.] SALE OF GOODS. 241
everything has not been conducted within the bounds
of a perfect sincerity, {q) " Nothing but what is
plainly injurious to good faith ought to be considered
as a fraud sufficient to impeach a contract ; dolum non
nisi perspicuis indiciis probari convenit." (r)
638. Fraudulent concealment. — If a vendor has
resorted to any contrivance for the purpose of con-
■cealing any defect in the subject-matter of a contract
of sale, the purchaser may avoid the contract on the
ground of fraud ; but the vendor is not bound to point
out defects which may be seen on examination, {i)
It has been held that there was a .fraudulent conceal-
ment vitiating a contract of sale in the following cases :
— where a partner who had the exclusive management
and control of the partnership business, agreed to pur-
chase the share of his co-partner, but kept back from
the knowledge of the latter the true state of the
accounts and of the amount of profit realized, and by
that means effected the purchase for a less sum than
would have been taken if the state of the partnership
had been fully disclosed and fairly stated \—{f) where
the purchaser of a policy of insurance, having secret
information of the alarming illness and imminent
danger of death of the party on whose life the policy
had been effected, treated with an assignee of the
policy for the purchase of it without disclosing the
condition and state of health of the assured ; — {tc)
where the vendor of a mare stated, at the time of sale,
that he believed the mare to be sound but would not
warrant, and the mare was at the time unsound to his
(jf) Domat. liv. i, tit. i8, s. 3, § 2. {s) Horsfall v. Thomas, I H. & C.
(r) Poth. Obligations, No. 30. As 98 ; 31 L. J., Ex. 322.
to the avoidance of contracts on the (t) Maddeford v. Austwick, i Sim.
ground of fraudulent misrepresenta- 89.
tion, see ante. («) Jones v. Keene, 2 Mood. & Rob.
350.
II. — 16
242 LAW OF CONTRACT. [Bk. II. Ch. L
knowledge ; — (v) where the vendor of pimento, know-
ing it to be sea-damaged, sold it without disclosing
the fact to the purchaser ; — (jv) where the agent of
the vendor of a picture, knowing that he had induced
the purchaser to labor under a delusion with respect
to the picture, which materially influenced his judg-
ment as to the value of it, permitted him to purchase
without removing the delusion, (z) ' But the vendor
(v) Wood V. Smith, 5 M. & R. 124. the obsei-vations on this case by
{y) Jones v. Bowden, 4 Taunt. S47. JERVIS, C. J., Keates v. Earl Cadogan,,
(z) Hill V. Gray, I Stark. 434. See 20 L. J., C. P. 78.
' As to concealment of a material fact which it was a vend-
or's duty to reveal, see Otlis v. Raymond, 3 Conn. 413 ; Brown
V. Montgomery, 20 N. Y. 287 ; Van Arsdale v. Howard, 5 Ala.
596; Castleman v. Griffin, 13 Wis. 535 ; Hagee v. Grcjssman, 31
Ind. 223 ; Irvine v. Kirkpatrick, 7 Bell S. C. App. 186 ; Matthews
V. Bliss, 22 Pick. 48 ; Paddock v. Strobridge, 29 Vt. 470 ; Sides v.
Hilleary, 6 Harr. & J. 86 ; Nickley v. Thomas, 22 Barb. 652 ;
Hanson v. Edgerly, 29 N. H. 343. If the vendor use any de-
vice calculated to induce the other party to refrain from in-
quiring into a material fact, upon which the former has in-
formation (although such information be not exclusively
within his reach), in order to induce the sale, such transac-
tion is voidable; Prentiss v. Russ, 16 Me. 30; Smith v.
Richards, 13 Peters, 26; Howell v. Biddlecom, 62 Barb. 131 ;
Coddington v. Goddard, 16 Gray, 436 ; silence on the part of
the vendor, as to a known defect, has been held to amount to
a fraud. So, where one sold part of a lot of hay on which he
knew white lead to have been spilt without informing the
purchaser, who bought the hay for the purpose of feeding it to
a cow, and the cow dies from eating the hay, the vendor of
the hay is liable for the loss of the cow, even though he care-
fully endeavored to separate and remove the damaged hay,
and thought that he had succeeded ; French v. Vining, 102
Mass. 13s ; and see Hoitt v. Holcomb, 32 N. H. 185 ; Veasey
V. Doton, 3 Allen, 380; Brown v. Castles, 11 Cush. 350;
Aberaman Iron Works v. Wickens, L. R. 4 Ch. Ap. loi ; S.
C. L. R. 5 Eq. 485 ; Stephens v. Orman, 10 Florida, 9 ; Dicken-
son v. Lee, 106 Mass. 556. Where an action was brought on
notes given for guano sold, and the defense set up was that
the article was worthless and not reasonably suited to the use
Sec. II.] SALE OF GOODS. 243
is not bound to inform the purchaser that the latter
is under a mistake, when such mistake is not induced
by the act of the vendor. Thus where the plaintiff
offered to sell some oats to the defendant, and the
defendant agreed to buy them supposing them to be
old oats, but the plaintiff did nothing to induce the
defendant, to suppose so, it was held that the sale was
valid, (a) '
(a) Smith v. Hughes, L. R. 6 Q. B. 597 ; 40 L. J., Q. B. 22].
intended, upon which point the evidence was conflicting, and
it appeared that at the time of the sale plaintiffs' agent de-
livered to defendants a jar containing some of said guano,
telling them to keep it until the crop matured, and if dissatis-
fied they might select any chemist in the United States to
analyze the sample, and if it did not come up to plaintiffs'
published analysis they need not pay for the same, but the jar
was lost and its contents never were analyzed : Held, that it
was error in the court to refuse to charge the jury " that to
entitle the defendants to a verdict in their favor they must
show clearly that their bad crop resulted from the worthless-
ness of the guano;" Wilcox v. Howard, 51 Ga. 298.
' The fraud must be successful ia procuring the purchase
in order to be actionable; Taylor v. Fleet, i Barb. 471;
Doggett v. Emerson, 3 Story, 732, 733 ; Bowman v. Carithers,
4oInd. 90; Hagee V. Grossman, 31 Ind. 223 ; Mason v. Crosby,
I Wood. & M. 342; Clark v. Everhart, 63 Penn. St. 347 ; Van-
dewalker v. Osmer, 65 Barb. 556; Phipps v. Buckman, 30
Penn. St. 402; Morris Canal Co. v. Everett, 9 Paige, 168;
Stebbins v. Eddy, 4 Mason, 414. Though it need not be the
sole inducement; Shaw v. Stone, 8 Bosw. 157; the presump-
tion, however, in such a case is that false representa-
tions of the vendor were relied on by the purchaser; Hol-
brook V. Burt, 22 Pick. 546 ; he has a right to rely dn the
vendor's representations; Young v. Harris, 2 Ala. 108; Clap-
ton V. Cogart, 3 Sm. & M. 363; Bean v. Herrick, 12 Me. 262 ;
Vandevvalker v. Osmer, 65 Barb. 556; Rose v. Hurley, 39 Ind.
82, 83 ; Mead v. Bunn, 32 N. Y. 275 ; but as to w.here the
vendor honestly believed his representations to be true, see
French v. Vining, 102 Mass. 132; Beach v. Bemiss, 107 Mass.
49 1 ; Russell v. Clark, 7 Cranch, 6g ; Young v. Covell, 8 Johns.
25; Boyd V. Browne, 6 Barr, 310; Lord v. Goddard, 13 How.
244 ^AW OF CONTRACT. [Bk. II. Ch. I.
In sales of manufactured articles and provisions, if
the vendor is cognizant, at the time he sells the arti-
cles, of latent defects materially lowering their value,
(U. S.) 196 ; Weeks v. Burton, 7 Vt. 67 ; Cooper v. Lovering,
106 Mass. 78, 79; Brown v. Castles, 11 Cush. 34S, 351; Mc-
Donald V. Trafton, 15 Me. 225 ; King v. Eagle Mills, 10 Allen,
548; Stone V. Denny, 4 Met. 151 ; Stevens v. Fuller, 8 N. H.
463. Akin to these are actions for sales of dangerous or
poisonous articles, where the vendor, either through careless-
ness or willfulness, neglects to give notice of its character. So
a druggist who sells poison so labelled as to give the idea that
it is harmless, is liable for any damage done by it, if there is
no negligence on the part of others contributing. Norton v.
Sewell, 106 Mass. 143; Thomas v. Winchester, 2 Selden, 397;
Davidson v. Nichols, 11 Allen, 519, 520; McDonald v. Snell-
ing, 14 Allen, 290, 295. And so, one who sells inflammable oil
for illuminating purposes, is liable lor the consequences, if
not too remote; Wellington v. Downer Kerosene, &c. Co., 104
Mass. 64 ; or gunpowder to one too young to know how to
use it ; though in a case where it appeared that the child's
parents had permitted him to use it, the defendant might not
be liable for a result to which their own negligence con-
tributed; Carter v. Towne, 103 Mass. 507.
Another kind of misrepresentation avoiding a contract was
examined in Holtz v. Schmidt (59 N. Y 253). There defend-
ants agreed that if plaintiff would purchase from them such
goods as he should, from time to time, require in his business,
they would sell as low as they sold the same description of
goods to any other dealer. With this understanding, plaintiff
made various cash purchases from time to time, the prices
being fixed by reference to defendants' printed price lists
which they represented to be as low as they sold to any
other dealer. Defendants were at the time of the purchases
selling the same kind of goods at lower prices. Jle/d
(Grover, J., dissenting), that plaintiff, upon a subsequent dis-
covery of this fact, could maintain an action ex contractu, to
recover the difference between the prices paid and what the
goods were sold for to others ; that although the agreement
created no valid obligation at the time it was made, it hav-
ing been acted upon and purchases made in reference thereto,
became as to such purchases a material part of the contract
between the parties; and that the assent of plaintiff to pay
the prices named, relying upon defendants' assurance, did
not preclude him from resorting to the contract.
Sec. II.J SALE OF GOODS. 245
and rendering them totally unfit for the purpose for
which they are known to be required, and neglects to
disclose such defects to the purchaser, he is guilty of
a fraudulent concealment, (b) But, in a general sale
of a horse, the vendor is not bound to disclose any
unsoundness in the animal, although he may be aware
of its existence ; and, if the purchaser makes no
inquiries as to its soundness or quahties, and the
vendor has said or done nothing to throw the pur-
chaser off his guard or to conceal a defect, there is no
fraudulent concealment on the part of the vendor, {c)
The purchaser has an opportunity of inspecting and
judging of the animal himself; and the principle of
caveat emptor applies. '
(b) Ante. Fitz. N. B. 94, C. 175. Fitz. N. B. 94, C. Hill v. Balls,
(f) Jones V. Bright, 3 Moo. & P. 27 L. J., Ex. 48.
' Where the vendor of cattle made declarations of opinion
as to their weight, which he knew to be false, and the vendee
was induced by those declarations to purchase the cattle at a
certain price per head ; and he was not aware that the vendor
knew (approximately) their true weight ; and it was in his
power, without any great difficulty, to have had them weighed
before agreeing to purchase ; and in an action upon a note given
for a part of the purchase price of the cattle, the jury having
found the sale to have been effected by fraud and deceit, and
having awarded a certain sum to defendant by way of recoup-
ment for his damages resulting from such fraud, a judgment
pursuant to the verdict is here affirmed, and the fact that the
vendee weighed the cattle before making any payment thereon,
will not prevent his recouping damages for the vendor's
fraud, it appearing that he was not aware, when such pay-
ment was made and the note given, that the plaintiff had
actual knowledge that the statements made by him were
false. The cattle having been purchased by defendant at
Chicago, the measure of his damages is the difference between
their actual value in the Chicago market at the time of the
purchase, and the value which they would have had in the
same market if their weight had been as represented. Bird-
sey V. Butterfield, 34 Wis. 52.
246 LAW OF CONTRACT. [Bk. II. Ch. I.
639. Sales " with all faults" — If it be made a term
of the contract that the subject-matter of the sale is
to be taken with all faults, the stipulation will release
the vendor from the obligation of disclosing all such
defects as are susceptible of discovery by a rigid ex-
amination of the subject-matter of the sale, {d^ If
the vendor is not to be responsible for any defect or
"error," the stipulation will protect him from all unin-
tentional misdescription and mis-statement. There-
fore, where a shipowner advertised for sale "the fine
teak-built barque, Intrepid, A i, as she now lies in
dock, well adapted for a passenger-ship," but stipulated
that the vessel was to be taken with all faults, without
any allowance for any defect or error whatever, and it
turned out that the barque was not teak-built, nor of
class A I, nor adapted for a passenger-ship, it was
held that, as the defendant distinctly stated that he
would warrant nothing, the advertisement must be
taken as a mere description of the vessel, and that the
real meaning of the contract was this — There is the
vessel in dock; I describe her as A i, and call her a
teak-built barque ; I do not mean to warrant anything.
Go and look at her, and examine and judge for your-
self; and if you take her, you take her with all her
faults, without any allowance for any error or misde-
scription on my part. (<:)
But an agreement " to take a thing with all faults
does not mean that it is to be taken with all frauds;"
and the stipulation will be of no avail to the vendor,
if he has knowingly and willfully misled the purchaser,
or thrown him off his guard by a willful and inten-
tional false representation, or has resorted to any art
or contrivance to conceal a defect. Thus, where the
{d) Pickering v. Dowson, 4 Taunt. {e) Taylor v. BuUen, 5 Exch. 779 ;
779- 20 L. J. Exch. 21.
Sec. II.] SALE OF GOODS. 247
■owners of an unseaworthy vessel, whose hull was
worm-eaten and keel broken, removed the vessel from
the ways where she lay dry, and where the state of her
bottom and keel might easily have been discovered,
and kept her afloat in deep water where her defects
were completely concealed, and then issued a printed
advertisement of the sale of the vessel, which de-
scribed the hull as being nearly as good as when
launched, but stated that it was "to be taken with all
faults," it was held that as the vendors had knowingly
given a false representation of the state of the vessel,
and attempted to conceal the defects in the hull, and
to throw the purchaser off his guard, they could not
shelter themselves under the stipulation that the
vessel was to be taken with all faults. (/") Where
the vendor of a vessel, " to be taken with all faults,"
Icnowingly represented the vessel in his handbills and
advertisements as having been built in 1816, in order
to get an increased price, whereas she had been
launched in 181 5, it was held that this was a fraud.
"The vendor," observes Abbott, C. J., "ought to be
silent or to speak the truth. In case he spoke at all,
he was bound to disclose the real fact." {g) If the
•defect, moreover, is of such a nature that a purchaser
can not, by the most diligent examination, discover it,
and the defect is known to the vendor at the time of
the sale, the latter ought not, according to the opinion
of Lord Kenyon, to be permitted to shelter himself
from the consequences of a fraudulent concealment,
under a stipulation that the thing is to be taken with
all faults. (/I) According to Lord Ellenborough,
however, " if aa article is sold with all faults, it is
(/) Schneider v. Heath, 3 Campb. 561.
508. W Mellish V. Motteux, I Peake,
(f) Fletcher v. Bowsher, 2 Stark. 157.
248 LAW OF CONTRACT. [Bk. II. Ch. L
quite immaterial how many belonged to it within the
knowledge of the seller, unless he used some artifice
to disguise them, and to prevent their being dis-
covered by the purchaser. The very object of intro-
ducing such a stipulation is to put the purchaser on
his guard, and to throw upon him the burthen of ex-
amining all faults, both secret and apparent." (z) An
examination, however, is useless if the defect is of such
a nature that it can not be detected by any examina-
tion, however careful ; and a vendor who, knowing
this, sens with all faults for the purpose of exonerating
himself from liability to disclose the secret defect,,
seems to make use of the stipulation, "to be taken with
all faults," in order to cover the perpetration of a fraud.
(/^) In the case of Mellish v. Motteux, (/) which
has been disapproved of by Lord Ellenborough,
(m') the twenty-two broken futtocks of the vessel
were concealed only by the ballast. The defect was
disclosed as soon as the ballast was taken out after
the sale, and might have been easily discovered before
the sale by a diligent and careful examination of the
vessel. It is, therefore, wrongly described as "a defect
which the purchaser could not, by any attention,
possibly discover." The question whether the ballast
had been put there for the purpose of concealing the
defect does not appear to have been raised.
640. When the purchaser disables himself from
avoiding the contract. — When a contract of sale is.
voidable at the option of the party defrauded, the
latter must, when he exercises his option to avoid the
contract, be in a situation to restore the subject-matter
(0 Baglehole v. Walters, 3 Campb. (/) Mellish v. Motteux, i Peake, 1561
155. 156- (in) Baglehole V. Walters, 3 Campb,
{k) Sugd. Vend, and Pur, 386, 3S7. 156.
Sec. IL] sale OF GOODS. 349-
of the sale to the vendor. If he has kept the article
an unreasonable time, or changed the nature of it so
that he can not restore it in the same state it was in
when bought, he can not avoid the contract, but must
resort to his cross action, {ri) Thus, where a log of
mahogany was sold on the faith of a representation
that the log was sound throughout, and the represen-
tation was fraudulently made, but the fraud was not
discovered until the log had been cut through by the
purchaser, it was held that the latter, by cutting the:
log, had made it his own property, and could not
afterwards return it to the vendor. (0)
641. When a vendor is prevented from avoiding cc
contract of sale induced by the fraud of a purchaser. —
If a vendor has parted with the possession of goods
in fulfillment of a contract of sale, obtained by fraud
on the part of the purchaser, he can not, after the
goods have been re-sold and passed into the hands of
a bona fide sub-purchaser, disaffirm the contract, and
annul the title of the latter to the property ; for, where
one of two innocent parties must suffer, it is con-
sidered to be more just that the burthen should fall
upon the vendor who parted with his goods, rather
than upon the bona fide sub-purchaser, who trusted to-
the actual possession of them by the party with whom
he dealt. (/) But if the relation of vendor and
vendee does not subsist between the defendant and
the person who commits the fraud, and the goods
have been obtained by false pretenses, and afterwards
disposed of to a bona fide purchaser by sale not in
market overt, the latter does not acquire a title to-
(k) Clarke v. Dickson, Ell. Bl. & 777-
£jj J, . {f) White V. Garden, 10 C. B. 927.
(0) Udell V. Atherton, 7 Jur. N. S. Slieppard v. Shoolbred, Car. & M. 63.
2SO LAW OF CONTRACT. [Bk. II. Cn. I.
the goods as against the person who has been de-
frauded. (^)
642. Determination of the election to avoid a con-
tract.— When a party has a right to determine or
annul a contract on the ground of fraud, or to rely
upon it and treat it as a subsisting contract, he must
make his election within a reasonable time, and the
election when once made is final and can not be re-
tracted, if)
643. Sales rendered nugatory from want of title
— Recovery of purchase money. — There may be no im-
plied warranty of title on the part of a vendor, and
yet the purchaser may be entitled to recover back the
purchase money, on the ground of a total failure of
consideration. Thus in the case of a sale of stock,
scrip, or shares in joint-stock companies, the law does
not imply any undertaking or warranty from the ven-
dor that the scrip, stock, or shares he sells are genuine,
but if the vendor has innocently sold forged or coun-
terfeit stock, scrip, or shares, the purchaser is entitled,
as we have seen, to a return of the purchase money,
•on the ground that there has been a total failure of
consideration, (s) Where the plaintiff succeeded the
defendant as the tenant of a dwelling-house, and agreed
with him for the purchase of the tenant's fixtures in
the house, and paid him the purchase money, and it
subsequently appeared that the fixtures belonged to
the landlord, and that the tenant had no right to sell
them, and the plaintiff was obliged to pay the value
-of them to the landlord, it was held that he was enti-
tled to recover back the money he had paid to the
•defendant, on the ground that there had been a total
(?) Higgins V. Burton, 26 L. J., Ex. (r) Ante.
342. Kingsford v. Merry, 1 H. & N. (j) Westropp v. Soloman, 8 C. B.
503' 371. Ante.
Sec. II.] SALE OF GOODS. 251
failure of the consideration, and that the money had
been paid under a mistake, although it appeared that
the defendant had himself bought the fixtures bona
fide of a preceding tenant in ignorance of the title of
the landlord. (/)
But if the vendor does not pretend himself to be
the owner of the goods he sells, but sells only such a
title and interest as the law gives him in the subject-
matter of the sale, the purchase money can not be re-
covered back on the ground of a failure of the consid-
eration, if it turns out that the vendor had not the title
or interest which he was' supposed to have, unless the
vendor knew of his want of title at the time of the
sale, and there has been a fraudulent concealment.
Where the plaintiflF and defendant both attended a
sheriflF's sale where goods seized under a writ of exe-
cution were being sold by auction, and the defendant
purchased a lot for ;^i8, and the plaintiff offered the
"defendant ^5 "to let him stand in his shoes," which
offer the defendant accepted, and with the assent of
the sheriff made over his bargain to the plaintiff, and
the plaintiff paid down £22,, £1% of which were handed
to the sheriff as the price of the lot, and the remaining
^5 were retained by the defendant as his share of the
purchase money, and it was subsequently discovered
that the goods had been seized by mistake, and were
not the property of the debtor against whom execution
had been issued, and the plaintiflF was obliged to return
the goods, and then brought an action against the de-
fendant for the recovery of the ;^5 on the ground that
there had been a total failure of consideration, it was
held that the true consideration was the transfer to
(fj Robinson v. Anderton, I Peake, Lloyd, 7 Q. B. 43 ; 14 L. J., Q. B.
129. Leeman v. Lloyd, Wilkinson v. 163.
252 LAW OF CONTRACT. [Bk. II. Ch. I-
the plaintiff of the defendant's right, such as it was, to
the /i8 lot; and, having got that, the plaintiflT had
got all that he had bargained for, and agreed to buy„
and the defendant to sell, and that there was no ground
for claiming a return of the purchase money. In de-
ciding for the defendant, observes the court, "under
the circumstances, we wish to guard against being
supposed to doubt the right to recover back money
paid upon an ordinary purchase of a chattel, where the
purchaser does not have that for which he paid, (u)
644. Void sales of things not in existence. — If the
thing intended to be bought and sold has ceased to
exist at the time of the making of the bargain, the con-
tract is a void contract, and the purchase money is re-
coverable, {v) Where a contract was made for the
purchase and sale of an annuity payable during the life
of a third party, who resided abroad, and the latter was
dead and the annuity was at an end at the time of the
conclusion of the bargain, but the circumstance was
not known either to the vendor or the purchaser, it
was held that the purchase money was recoverable, as
the purchaser had got nothing at all for his money,
and there was a total failure of consideration. (;»/)
Every vendor of specific ascertained chattels impliedly
undertakes that they exist and are capable of being
transferred at the time of the sale ; and, if they have
been previously sold and delivered to other parties,
and the vendor has not the power of making the trans-
fer he professes to make, there is no consideration for
the payment of the purchase money. Where a con-
tract was made between two merchants, for the sale
and purchase, at a fixed price, of an ascertained cargo
(a) Chapman v. Speller, 14 Q. B. Troplong, ch. 3, De LA Vente.
621 ; 19 L. J., Q. B. 239. (_)') Strickland v. Turner, 7 Exch.
{v) Ante. Cod. Civ. Art. 1601. 208; 22 L. J., Ex. 115.
Sec. II.] SALE OF GOODS. 253
■of corn then on board a vessel at sea on its way from
Turkey to Great Britain, and, at the time of the mak-
ing of the contract, the vessel had been driven by stress
of weather into an African port, and the cargo had be-
come heated, and had been sold by the ship-master to
prevent its total destruction, it was held that the con-
tract of sale made between the two merchants was a
void sale, as the vendor had nothing to sell at the time
of making the bargain ; but it would have been other-
wise, if the cargo had been in existence on board the
ship at the time of making the contract, and had been
subsequently damaged and sold. (2)
645. Effect of avoiding the contract. — If the
purchaser is entitled to treat the contract of sale as a
void contract, by reason of the fraud or deceit of the
vendor, he may return the article and bring an action
for the recovery of the money paid under the void
■contract, or, treating the contract as a subsisting con-
tract, he may retain the thing sold in his own hands,
or re-sell it, and sue to recover the damages he has
sustained, {a) If the purchaser elects to treat the
sale as a nullity, he must forthwith return or tender
the subject-matter of the sale, or give notice to the
vendor to take it back ; for, if the purchaser keeps it
an unreasonable time, or uses it and exercises the
dominion of an owner over it, he can not afterwards
treat the sale as a void sale, and recover the purchase
money on the ground of a failure of consideration.
(b) If a purchaser, having a right to return the
"goods sold to him, offers to return them, and the
vendor refuses to accept them, the goods remain at
(z) Hastie v. Couturier, g Exch. Bl. ig. Poulton v. Lattimore, g B.
102 ; 22 L. J., Ex. 2gg. Barr v. Gih- & C. 265.
son, 3 M. & W. 400. • ('*') Fisher v. Samuda, i Camp. ip3.
(a) Anie. Fielder v. Starkin, I H. Adam v. Richards, 2 H. Bl. 573-
Hunt V. Silk, 5 East, 452.
254 LAW OF CONTRACT. [Bk. II. Ch. I.
the risk of the vendor; and, if they are destroyed by
accident, without any want of reasonable care for
their preservation, the loss will be the loss of the ven-
dor, (c) It does not follow that the contract is
rescinded and put an end to by the return of the
thing sold, although its return and acceptance are
circumstances from which a jury would be at liberty
to infer that the contract had been dissolved by the
mutual agreement of the parties, (^d)
646. Breach of warranty. — If a vendor sells
property absolutely as owner, and warrants his title
and right of possession to the purchaser, and the
purchase money is paid, and after that the warranty
is broken and the purchaser evicted and deprived of
the possession and enjoyment of the thing sold, the
measure of damages is the highest marketable value
of the article between the time of eviction and the
day of trial. If the purchaser brings his action
against the vendor for a breach of warranty of the
quality or soundness of the thing sold, expressly or
impliedly made at the time the contract of sale was
entered into, and the goods have been received back
by the vendor,' the measure of damages is the
marketable value which the goods would have
possessed in the hands of the purchaser at the time
of the delivery, if they had corresponded with the
warranty given. If they have not been returned by
the purchaser, the measure of damages is then the
difference between their marketable value to the
purchaser in their defective state at the time of de-
livery, and the value they would have possessed, had
(c) Okell V. Smith, i Stark. 107. {d) Long v. Preston, 2 Moo. & P.
262.
' See ante, § 630.
Sec. II.] SALE OF GOODS. 255;
they answered the warranty; and if they have been
re-sold by the purchaser without delay, and before any
considerable fluctuations in the market have taken
place, it is the difference between the price realized on
the re-sale, after deducting the costs and expenses of
the re-sale, and the price they would have fetched if
they had answered the warranty.
Where goods have been purchased with a warranty^
in England, to be exported and re-sold in China, and
the goods, on their arrival in Canton, were found not
to answer the warranty, the measure of damages was
held to be, not the difference between the agreed
price and the price realized on the re-sale in China,
but between the last-named price and what they would
have sold for in the Chinese market had they corre-
sponded with the warranty, {e) And where a horse-
dealer purchased horses in Wales with a warranty of
soundness, with a view of re-selling them at a profit
in the London market, and the horses on their arrival
in London were found to be unsound, the fair measure
of damages was held to be the difference between
their marketable value in London as unsound horses,
and what would have been their marketable value if
they had been sound, and had corresponded with the
warranty : and it was also held that, if any of them
had been re-sold in London with a warranty before
the unsoundness was discovered, the price realized on
such re-sale would be evidence of their marketable
value in a sound condition corresponding with the
warranty; and, if they were subsequently returned
and sold a third time as unsound horses, without a
warranty, the price realized on such third sale would
be evidence of their actual marketable value in an
{€) Bridge v. Wain, I Stark. 504. Chesterman v. Lamb, 2 Ad. & E. 129.
■2i,6 LAW OF CONTRACT. [Bk. II. Ch. I.
unsound state ; and the difference between the price
realized on the two sales would be the measure of the
-damages fairly recoverable from the original vendor as
resulting from his breach of warranty. If the pur-
chaser estimated his damages according to the last-
named standard, he would not, of course, be entitled to
recover the costs, charges, and expenses of bringing
the animals up from Wales ; but if he recovered only
the difference between the price paid in Wales and
the actual value of the horses in their unsound condi-
tion, he would be entitled to recover the costs and ex-
penses of bringing them up to market. The expenses
of obtaining a certificate of unsoundness from the
"Veterinary College can not be recovered from the
vendor; nor can any legal expenses which were not
the necessary result of the defendant's breach of con-
tract. {/) If the purchaser, as soon as he has dis-
covered the unsoundness of a horse and consequent
breach of warranty, tenders back the horse to the
vendor, he may recover the expense of the keep
during the time that he is preparing to re-sell the
animal to the best advantage, {g)
647. Special damages — Re-sale with a warranty
— Costs of legal proceedings. — If special damages have
been sustained by the purchaser, they may be re-
covered from the vendor. ' Thus, where the plaintiff,
having bought of the defendant a horse warranted
sound, re-sold the horse with a like warranty, and was
sued for a breach thereof by the second purchaser, and
then gave the defendant notice of the action, and
(/) Clare v. Maynard, 7 C. & P. (^) Caswell v, Coare, I Taunt. 566.
741 ; 6 Ad. & E. 523. Cox v. Walker, Cress v. Bartlett, 3 M. & P. 543.
7 C. & P. 744, cited 6 Ad. & E. 523. Mackenzie v. Hancock, R. & M. 436.
•Curtis V. Hannay, 3 Esp. 82. Ante.
' Ante, vol. i, § 488.
Sec. II.J sale OF GOODS. 257
offered him the option of defending it, but the de-
fendant gave no answer, and the plaintiff failed in the
action and had to pay damages and ;!^88 costs, it was
held that he was entitled to recover these costs, in ad-
dition to the damages he had been compelled to pay
to his immediate purchaser, (^h) So, where the dcr
fendant sold the plaintiff a picture warranted to be
painted by Claude, and the plaintiff afterwards re-sold
the picture with a like warranty, and the picture
turned out not to be a Claude, and the second pur-
chaser sued the plaintiff for the breach of warranty, and
recovered a certain sum for damages and costs, and
the plaintiff then sued the defendant, it was held that
he was entitled to recover the amount of the damages
and costs paid to the second purchaser, and also his
own costs incurred in defending the action brought
by the latter. (?) But if the plaintiff has made a rash
and improvident defense, if, for instance, he has had
an opportunity of testing the thing purchased, and
might have ascertained by examination whether it did
or did not correspond with the warranty, and has ne-
glected so to do, and runs his chance of an action, he
will not be permitted to recover the cost of his
defense. (/§) But where the purchaser is justified in
defending the action brought against him by a sub-
purchaser, it would seem that he is entitled to recover
his costs as between attorney and client, and not
merely as between party and party. (/)
648. Of the title to ships and shares in ships. —
The ownership and right of property in ships and
(/5) Lewis V. Peake, 7 Taunt. 153. (It) Wrightup v. Chamberlain, 7 Sc.
(0 Pennell v. Woodburn, 7 C. & P, 598.
118. Dingle v. Hare, 7 C. B., N. S. (/) Howard v. Lovegrove, L. R., 6
157 ; 29 L J., C. P. 143. Randall v. Ex. 43 ; 40 L. J., Ex. 13, commenting
Raper, ante. Hughes v. Grceme, on Grace v. Morgan, 2 Sc. 793 ; 2
ante. Bing. N. C. 534.
II.— 17
258 LAW OF CONTRACT. [Bk. II. Ch. L
shares in vessels are authenticated and regulated by
the Merchant Shipping Act, 1854 (17 & 18 Vict. c.
104), part 2, and the Acts amending it. (w.) When-
ever there is more than one owner, the right of prop-
erty in the vessel is required to be divided into shares,
atid the number of shares held by each owner to be
registered. But partners in any house, or co-partner-
ship, may hold any vessel, or any shares therein, in the
name of such house or co-partnership as joint-owners,,
without distinguishing the proportionate interest of
each. No greater number than thirty-two persons,,
however, are entitled to be legal owners, at one and
the same time, of any ship or vessel as tenants in
common, or to be registered as such ; but any number
of persons may hold or enjoy equitable interests, and
have an equitable claim or title, as against the regis-
tered legal owners. Joint-stock companies also,,
formed for the purpose of owning ships or vessels,
may appoint any number of their members, not being
less than three, to be trustees of the property in such
ships or vessels, who are to subscribe the declaration
of ownership required before registry, stating the name
and description of the company to which the vessels
belong. If a person who has no title as ov/ner, gets
his name put upon the register, the court will rectify
the error and cause the ship to be registered in the
name of the legal owner. (;^) After all the particu-
lars necessary to ascertain the ownership, build, and
description of the vessel have been duly declared and
registered, a certificate of such registry embodying
such particulars is to be granted, and on the back of
this certificate is to be indorsed the names of the
(m) 18 & ig Vict. u. gi. 25 & 26 (n) Holderness v. Lamport, 30 L,
Vict. c. 63. 34 & 35 Vict. c. no. 35 J. Ch. 489.
& 36 Vict. c. 73.
Sec. II.] SALE OF GOODS. 259
owners and the number of shares they hold. If this
certificate is lost, mislaid, or detained, the vessel may
be registered de novo. Copies of the declaration of
ownership, and of the ship's register, are made evidence
without production of the originals ; and provision is
made for registration de novo, in certain cases where
the bill of sale or instrument of transfer can not be
produced. Examined copies of the register or copies
purporting to be certified under the hand of the person
having the custody of the original, and all certificates
of registry purporting to be signed as required by law,
are prima facie evidence of all matters contained or
recited in the registers, or indorsed on the certificates.
(£1.) The certificate of registry, therefore, affords evi-
dence of the ownership and right of property of every
registered vessel, and should be produced to every in-
tended purchaser of the vessel, or of any share or
shares therein, and be compared with the register. If
the vendor of a vessel is not himself the builder or the
original owner, but derives his title by purchase after
registry, the bill of sale or instrument of transfer under
which he claims should be produced, as well as the
certificate of registry.
The master of a vessel has no authority to sell the
vessel, except under very special circumstances of
urgent necessity. (/) '
649. Transfers of ships and shares in ships must
be made by bill of sale containing such description of
the ship as is contained in the certificate of the sur-
veyor, or such other description as may be sufficient
(6) 17 & 18 Vict. c. 104, part 2. Lush. 252 ; 30 L. J., Ad. 145. Lap-
Maude & Pollock on Shipping. raik v. Burrows, 13 Moo. P. C. 132.
(f) The Eliza Cornish, 17 Jur. 738. The Bonita, 30 L. J., Ad. 145.
The Bonita and the Charlotte, i
' Ante, vol. i, § 71, ^Z' seq.
26o LAW OF CONTRACT. [Bk. II. Cii. I.
to identify the siiip to the satisfaction of the registrar,
according to the form given in the Merchant Shipping
Act, 1854. The provisions of this statute extend to
an executory contract for the transfer of a ship at a
future day as well as to the immediate instrument of
transfer itself, so that, if the directions of the Act with
regard to the form of the writing and the registration
thereof are not complied with, the executory contract
will not support an action for specific performance or
for damages. (^) The duty of registering a transfer
of ownership rests with the vendee ; and immediately
on the execution of the bill of sale the vendee be-
comes entitled to all the benefits and liabilities of
ownership, (r) A ship is not like an ordinary chattel
which passes by delivery ; and there is no market
overt for ships. The purchaser of a foreign ship is,
therefore, bound to make inquiries as to the title, and
will take subject to existing rights and equities, {s) '
650. Sale and transfer of tenants^ fixtures and
trade fixtures.— \i an article affixed to the freehold is
sold with a view to its immediate severance therefrom,
the contract is simply a contract for the purchase and
sale of a chattel. If it is not purchased with a view
to immediate severance, the contract is then a contract
for the sale and purchase of a fixture. A contract for
the sale and fixing up in a dwelling-house of a copper
{q) Liverpool Borough Bank v. (r ) The Spirit of the Ocean, 34 L.
Turner, zg L. J., Ch. 827 ; 30 L. J., J., Ad. 74. Stapleton v. Haymen, 2
Ch. 37g. Chapman v. Callis, 30 L. H. & C. gi8 ; 33 L. J., Ex. 170.
J., C. P. 241. Hughes V. Morris, 2i {s) Hooper v. Gumm, L. R., 2 Ch.
L. J., Ch. 761. Duncan v. Tindal, 22 282 ; 36 L. J., Ch. 282.
L. J., C. P. 137 ; 13 C. B. 258
' And see as to ship-building contracts; Sanford v. Wig-
gins Ferry Co., 27 Ind. 522 ; Elliot v. Edwards, 6 Vroom, 265 ;
Williams V. Jackman, 16 Gray, 514; Andrews v. Durant, i
Kernan, 35 ; Briggs v. A Light Boat, 7 Allen, 287.
Sec. II.] SALE OF GOODS. 261
or a stove is not a contract for the sale of fixtures, but
of goods and chattels, and for the performance of work
and labor. If a contract is made for the erection upon
the soil, or in a dwelling-house, of machinery, presses,
&c., the contract is properly a contract for work and
labor and the supply of materials. It is a contract for
the erection, and not for the sale, of a fixture, and is
the same in principle as a contract to erect a pillar or
build a house. (/).
We have already seen that, by the grant of land,
all fixtures attached to the soil and freehold and be-
longing to the grantor, pass with the land as accessorial
thereto ; and that, by the grant of a house, all things
incident and accessorial to the building, pass, such as
window-frames, windows, doors, and wainscots attached
to the house, and furnaces, coppers, vats, and tables
fastened to the walls or to the ground in the middle
of the house, and all fixtures of every^ description
annexed to the building and belonging to the grantor
or landlord, (u) But tenants' fixtures and trade fix-
tures, which were put up by the tenant or occupier,
and which the latter has a right to remove at the ex-
piration of his tenancy or occupation, do not, of
course, pass by the grant of the fee, unless the grantor
is himself the occupier of the house and owner of the
fixtures. The question as to what are and what are
not tenants' or trade fixtures, removable by the occu-
pier, and not forming part of the freehold and inheri-
tance, principally arises between three classes of
persons: ist; — between different descriptions of
{i) Pinner v. Arnold, 2 Cr. M. & R. B. & Ad. 715. Hitchman v. Walton,
616. 4 M. & W. 414, 416. Mather v.
(«) Longstaff v. Meagoe, 2 Ad. & Fraser, 2 Kay & J. 536 ; 25 L. J., Ch.
E. 167. Birch V. Dawson, ib. 37. 361.
Hare v. Horton, 2 N. & M. 428; 5
262 LAW OF CONTRACT. [Bk. II. Ch. I.
representatives of the same owner of the inheritance,
viz., between his heir and executor. In this first case,
the rule as to severance obtains with the most rigor
in favor of the inheritance and against the right to
disannex therefrom anything which has been affixed
thereto, (v) 2ndly ; — between the executors of tenant
for life or in tail and the remainderman or reversioner;
in which case the right to fixtures is considered more
favorably for executors than in the preceding case be-
tween heir and executor. The 3rd case, and that in
which the greatest latitude and indulgence have
always been allowed in favor of the claim of sever-
ance, as against the claim in respect of freehold
or inheritance, is the case between landlord and
tenant, (w) '
(v) Fisher v. Dixon, I2 CI. & Fin. (w) Elwes v. Maw, 3 East. 53. 14
312. . & 15 Vict. c. 25.
' The question as to what are fixtures is always a mixed
question of fact and law; Campbell v. O'Neil, 64 Pa. St. 290 ;
as to the principles g-overning the question as to what will be
a fixture see Flanders v. Wood, 24 Wis. 527 ; Meigs' Appeal,
62 Pa. St. 28 ; Richardson V. Borden, 42 Miss. 71 ; Weathersby
V. Sleeper, Id. 732; Peikins v. Swank, 43 Id. 349; Barthole-
mew V. Hamilton, 105 ]Mass. 239 ; Lampton v. Preston, i J. J.
Marsh, 454; English v. Foote, 16 Miss. (18 Smedes& JNI.) 444;
Wadleigh v. Janvrin, 41 N. H. 403 ; Potts v. New Jersey Arms
&c. Co., 14 N. J. (2 Greenl.) 395 Ford v. Cobb, 20 N. Y.
344; Hill V. Wentworth, 2i Vt. 428; Teaff v. Hewitt, i Ohio,
St. 511; Pickerell v. Carson, 8 Iowa, 544; State v. Bonham,
18 Ind. 231; Prescott v. Wells, 3 Nev. 82; Heaton v. Findlay,
12 Pa. St. 304; Gardner v. Finley, 19 Barb. 317 ; Providence
Gas Co. V. Thurber, 2 R. I, 15 ; McClintock v. Graham, 3
McCord, 553; Hensley v. Brodie, 16 Ark. 511; a fixture,
when lawfully severed, becomes personal property, and may
be sued for in replevin; Heaton v. Findlay, 12 Pa. St. 304.
What particular things are fixtures, is a question of mixed
law and fact, and when one for the jury, they should be
enabled to decide it by a clear explanation of the legal
meaning of the word. Grand Lodge, &c. v. Knox, 27 Mo.
Sec. II.] SALE OF GOODS. 263
651. Authentication of contracts for the sale of
fixtures. — We have already seen that a contract for
the sale of fixtures is not a contract for the sale of an
315. The tests usually to be applied are well stated in
Voorhees v. McGinnis, 48 N. Y. 278, to be as follows :
I. Actual annexation of a permanent character, except in
•case of those articles not themselves annexed, but deemed
to be of the freehold, from their use. 2. Adaptability to
the use of the freehold. 3. The intention of the parties at
the time of making the annexation ; and, to the same effect,
see Pea v. Pea, 35 Ind. 387 ; Eaves v. Estes, 10 Kan. 314;
Funk v. Brigaldi, 4 Daly (N. Y.) 359. Subjoined is a cata-
logue of articles as to which the question has arisen or may
arise, drawn principally from American reported cases.
Addition to a House — see Buildings, House. Agricultural
Erections — Dubois v. Kelly, 10 Barb. 496. Barn — Landon v.
Piatt, 34 Conn. 517. Bars — Farrar v. Stackpole, 6 Greenl. 154.
Bell — Alvord, &c. M'f 'g Co. v. Gleason, 36 Conn. 86. Boards
— Whiting V. Barstow, 4 Pick. 310. Blower Pipe — Alvord, &c.
M'f 'g Co. V. Gleason, 36 Conn. 86. Boilers— HjU v. Hill, 43
Pa. St. 521. Bowling Alley — Hanrahan v. O'Reilly, 102 Mass.
2Q\. Bricks — Lampton v. Preston, i J. J. Marsh, 454. Bridge
Piers — Wagner V. Cleveland, &c. R. R. Co., 22 Ohio St.; Cow-
.an V. Cowan, 12 Ohio St. 629; Northern, &c. R. R. Co. v.
Canton, &c. R. R. Co. 30 Md. 347. Building — Kelly v. Austin,
46 111. 156 ; Richtmyer v. Moss, 4 Abb. App. Dec. (N. Y.) 55 ;
Welgen v. Gettings, 21 Iowa, 177; see house, barn, mill.
Building materials — Beard v. Durald, 22 La. Ann. 289. Card-
ing machine — Graves v. Pierce, 53 Mo. 423 ; Taffe v. Warwick,
.3 Blackf. Ill ; Walker v. Sherman, 20 Wend. 636 ; see Machin-
■ery. Chain — Farrar v. Stackpole, 6 Greenl. 154. Chandeliers
— Rodgers v. Crow, 40 Mo. 91. Chimney pieces; Peck v.
Batchelder, 40 Vt. 233. Cisterns — Bletkin v. Towle, 40 Me.
JIG ; Bainway y. Cobb, 99 Mass. 457 ; Wall v. Hinds, 4 Gray,
256. Coffee mills — Hill on Fixtures, 34. Cotton gin — Fairis v.
Walker, i Bailey (S. C.) 540; McKenna v. Hammond, 3 Hill
i(S. C.) 331 ; Degraifenried v. Scruggs, 4 Humph. 231 ; Latham
v. Blakeley, 70 N. C. 369 ; Bratton v. Classon, 2 Strobh. 478.
Crops — Whipple v. Foot, 2 Johns. 418 ; Newcqmb v. Raner,
Id. 421 (note). Counters — Pope v. Garrard, 39 Ga. 471. Cup-
boards^Kempton v. Eve, 2 Ves. & B. 349. " Dogs " — Farrar
v. Stackpole, 6 Greenl. 154. Doors — Philbrick v. Ewing, 97
Mass.- 133. Door-step — Woodman v. Pease, 17 N. H. 282.
264 LAW OF CONTRACT. [Bk. II. Ch. L
interest in land, nor for the sale of goods and chattels.
A signed writing, consequently, is not necessary, as
between vendor and purchaser, for the authentication
Engines — Rice v. Adams, 4 Har. 332 ; Sparks v. State Bank,
7 Blackf. 469; Trull v. Fuller, 28 Me. 545 ; Corliss v. Med-
agin, 29 Id. 115 ; Parsons v. Copeland, 38 Id. 537 ; Symonds.
V. Harris, 51 Id. 14; Sweetzer v. Jones, 35 Vt. 314; Witmer's-
Appeal, 45 Pa. St. 507 ; Murdock v. Harris, 20 Barb. 407 ;
Union Bank v. Emerson, 15 Mass. 159 ; Richardson v. Copeland,
6 Gray, 536; Phillipson v. Mallanphy, i Mo. 620; Baker v_
Davis, 19 N. H. 325 ; Buckley v. Buckley, 11 Barb. 43 ; Pyle
V. Pennock, 2 Watts & S. 390 ; Voorhees v. Freeman, Id. 116 ;
Oves V. Oglesby, 7 Watts, 106; Plarlan v. Harlan, 15 Pa. St..
507 ; Roberts v. Dauphin Bank, 19 Id. 71 ; Christian v. Dripps,
28 Id. 271 ; Hull V. Alexander, 20 Id. 303; Leland v. Gassett,
17 Vt. 403. Evergreens — -Empson v. Sodden, 4 B. & Ad. 655 ;
Fences; Hines v. Ament, 43 Mo. 298; Gibson v. Vaughan, 2
Bailey (S. C.) 389; Smith v. Carrol, 4 Greene (Iowa) 14.6 p
Boon V. Orr, Id. 304 ; Glidden v. Bennett, 43 N. H. 306 ;
Wentz V. Fincher, 12 Ired. 297 ; Robertson v. Phillips, 3 Iowa,
220 ; see rails. Fire Frames — Gaffield v. Hapgood, 17 Pick,
192. Fire Place Frames — Gaffield v. Hopgood, 17 Pick. 192..
Floors — Philbrick v. Ewing, 97 Mass. 133. Flowers — Empson
V. Sodden, 4 B. & Ad. 655. Fruit — Warren v. Leland, 2 Barb.
613 ; Kain v. Fisher, 2 Seld. 597 ; Bank of Lansingburgh v„
Crary, i Barb. 542. Furnaces; Main v. Schwarzwaelder, 4 E.
D. Smith, 273 ; Squier v. Mayer, Freem. Ch. 249. Gas fix-
tures — Montague v. Dent, 10 Rich. 135 ; Hays v. Doane, 10 N..
J. Eq. (3 Stoct.) 84 ; Lawrence v. Kemp, i Ducr, 363 ; Vaughen-
v. Haldeman, 33 Pa. St. 522 ; Philbrick v. Ewing, 97 Mass_
133 ; Rogers v. Crow, 40 Mo. 91 ; Gas Co. v. Thurber, 2 R. I.
15 ; Guthrie v. Jones, 108 Mass. igi. Gin House — Hancock v.
Jordan, 7 Ala. 448; McDaniel v. Mood3-, 3 Stew. (Ala.) 314.
Greenhouses — Penton v. Roberts, 2 East, 90. Grist Mill —
Potter V. Cromwell, 40 N. Y. 287. Grass — Bank of Lansing-
burgh v. Crary, i Barb. 542 ; Warren v. Leland, 2 Id. 613 ; Kain.
V. Fisher, 2 Seld. 597. Gin Stands — Richardson v. Borden, 42
Miss. 71 ; Cole v. Roach, 37 Tex. 413. Grates — Hill on Fix-
tures, 34. Hangings — Peck v. Batchelder, 40 Vt. 233. House —
Gibbs V. Estey, 15 Gray ,587; Foy v. Reddick, 31 Ind.414 ; Boi-
ling V. Whittle, I Ala. (Sel. Cas.) 268 ; Rogers v. Gillinger, 30-
Pa. St. 185 ; Powers v. Dennison, 30 Vt. 752 ; Tyler v. Decker,.
10 Cal. 435 ; Goff v. O'Connor, 16 111. 24.7 ; Reese v. Jared, 15,
Sec. 1 1. J SALE OF GOODS. 265
of the contract. Where fixtures have been sold at a
price to be ascertained by valuation, if, after the valu-
ation has been made and delivered to the purchaser,
Ind. 142; Leland V. Gassett, 17 Vt. 403 ; Clark v. Rayburn, i
Kans. 281 ; Higgins v. Riddell, 12 "Wis. 587; Pullen v. Bell,
40 Me. 314; Hemminway v. Cutler, 51 Id. 407; Schemmer v.
North, 32 Mo. 206; Wells v. Banister, 4 Mass. 514; Taylor
V. Townsend, 8 Id. 411 ; Washburn v. Sprout, 16 Id. 449 ; Ful-
ler V. Taylor, 39 Me. 519 ; Washburn v. Shroat, 16 Mass. 449;
Stillman v. Hamer, 8 Miss. (7 How.) 421 ; Fisher v. Saffer, i
E. D. Smith, 611; Reid v. Kirk, 12 Rich. 54; Curtis v. Rid-
dle, 7 Allen, 185; Howard v. Fessenden, 14 Id. 124; Lacy v.
Gibboney, 36 Mo. 320 ; Dame v. Dame, 38 N.H. 429 ; White's
Appeal, 10 Pa. St. 252 ; Curtiss v. Hoyt, 19 Conn. 154; Burn-
side V. Twitchell, 43 N. H. 390; Sturgis v. Warren, 11 Vt. 433 ;
Taffe V. Warwick, 3 Blackf. iii. Hop Poles — Bishop v.
Bishop, 7 Kern. 123. Hospital (Military) — Meigs' Appeal, 62
Pa. St. 28. Ice Chest — Park v. Baker, 7 Allen, 78. Keys —
Walker v. Sherman, 20 Wend. 636. Kettles — Hunt v. Mul-
lanphy, i Mo. 508. Locks — Walker v. Sherman, 20 Wend.
636. Looms — Murdock v. Harris, 20 Barb. 407. Machinery —
Hatchman's Appeal, 27 Pa. St. 209; Cape v. Romeyne, 4 Mc-
Lean, 384 ; Tibbetts v. Moore, 23 Cal. 208 ; Swift v. Thomp-
son, 9 Conn. 63 ; Murdock v. Gifford, 18 N. Y. 28; Hovey v.
Smith, I Barb. 372 ; Bartlett v. Wood, 32 Vt. 373 ; Vanderpoel
V. Van Allen, 10 Barb. 157; Goddard v. Gould, 14 Id. 662;
Voorhees v. McGinnis, 46 Id. 157 ; Childress v. Wright, 2
Coldw. 350 ; Fullam v. Stearns, 30 Vt. 443. Manure — Daniels
V. Pond, 21 Pick. 367 ; Middlebrook v. Corwin, 15 Wend. 169 ;
Lassell v. Reed, 6 Greenl. 222; Sawyer v. Twiss, 6 Foster (N.
H.) 345 ; Staples v. Emery, 7 Greenl. 201. Materials — see
Building Materials. Mills — Burnside v. Twitchell, 43 N. H.
390 ; Martin v. Cope, 28 N Y. 180. Organs — Rogers v. Crow,
40 Me. 91; Coolis V. McLagin, 29 Me. 115. Ornaments-
Peck V. Batchelder, 40 Vt. 233. Out-houses — Dubois v. Kelly,
10 Barb. 496. Partitions — Hill on Fixtures, 34. Pipe — see
Blower Pipe. Poles — see Hop Poles. Pumps — McKracken
V. Hall, 7 Port. (Ind.) 30 ; Ex-parte Quincey, i Atk. 447 ;
Grymes v. Boweren, 6 Bing. 437. Rails — see Fences; Robert-
son V. Phillips, 3 Iowa, 220. Railroads — Farmers' Loan, &c.
Co. V. Creditors, &c., 20 Law Rep. 678 ; Coe v. Pennock,.
cited Red, on Railw. § 235 (n) ; Palmer v. Forkes, 23 111. 300.
Rolls — Johnson v. MehafFey, 43 Pa, St. 308. Safes— Folger v.
266 LAW OF CONTRACT. [Bk. II. Ch. I.
the latter takes possession of the fixtures, or exercises
dominion over them, he will be deemed to have
adopted the valuation and assented to the price as
ascertained by the brokers, (x) Where the owner of
a lease of a house, and of certain fixtures in the house,
gave a memorandum to the plaintiff to the following
-effect : — " In consideration of W. T. (the plaintiff)
discounting for me a bill of exchange for ^80, I have
assigned to him the whole of the fixtures, as per in-
ventory," &c., it was held that the property in the
fixtures passed by this note to the plaintiff (^y)
(x) Salmon v. Watson, 4 Moore, 73. {y) Thompson v. Pettitt, 10 Q. B.
lOI.
Kenner, 24 La. Ann. 436. Salt Pans — Mansfield v. Blac-kburn,
•6 Bing. (N. C.) 426. Scales — Bliss v. Whitney, 9 Allen, 114.
Scantling — Woyes v. Terry, i Lans. (N. Y.) 219. Shrubs — Mil-
iary. Baker, i Mete. 27. Sign Post — Redlon v. Barker, 4 Kan.
445. Signs — Redlon v. Barker, 4 Kan. 445. Sink — Bainway v.
Cobb, 99 Mass. 457. Steam Engines — see Engines. Stills —
Crenshaw v. Crenshaw, 2 Hen. & M. ( Va.) 22 ; Burk v. Baxter, 3
Mo. 207 ; Moore V. Smith, 24 111. 512 ; Terry v. Robbins, 13 Miss.
(5 Sen. & M.) 291 ; Bryan v. Lawrence, 5 Jones (N. C.) L. 337 ;
Fernster v. Johnson, 64 N. C. 259. Statue (in a garden) — Sned-
•eker V. Warring, 2 Kern. 170. Stoves — Tuttle v. Robinson, 33
N. H. 104 ; Goddard v. Chase, 7 Mass. 432 ; Blethen v. Towle, 40
Me. 310. Stables — Green v. First Parish, 10 Pick. 500; Du-
bois V. Kelly, 10 Barb. 496. Statuary — Snedeker v. Warring,
2 Kern. 1 'o. Sun Dial — Id. Tables — Hill on Fixtures, 341.
Trade Annexations — House v. House, 10 Paige, 158 (see the va-
rious titles. Machinery, &c.).. Trees — Mitchell v. Billingsley, 17
Ala. 391 ; Price v. Brayton, 19 Iowa, 309; Maples v. Milton,
31 Conn. 598 ; Byassee v. Reese, 4 Mete. (Ky.) 372 ; Branch v.
Morrison, 6 Jones (N. C.) L. 16 ; King v. Wilcomb, 7 Barb.
263 ; Miller v. Baker, i Mete. 27. Vats — Horn v. Baker, 9
East, 215 ; Reynolds v. Shuler, 5 Cow. 323 ; Burk v. Baxter, 3
Mo. 207. Verandahs — Penry v. Brown, 2 Stark. N. P. C. 403.
Water Pipes — Philbrick v. Ewing, 97 Mass. 133. Water-
-wheels— House V. House, 10 Paige, 158. Windlass — Capen v.
Peckham, 35 Conn. 88. Window Blinds — Peck v. Batchelder,
40 Vt. 233 ; Green v. First Parish, 10 Pick. 500. Windows —
State V. Elliot, 11 N. II. 504; Philbrick v. Ewing, 97 Mass. 133.
Sec. III.] SALE OF INCORPOREALS. 26;
SECTION III.
THE SALE OF INCORPOREALS.
652. Grants and transfers of incorporeal rights
•and incorporeal hereditaments, such as rights of
common, rights of way or water-course, advowsons,
tithes, rents, annuities, and profits issuing out of land,
must, in order to be valid and irrevocable at common
law, be made by deed. {£) Thus a right to take tolls
for the passage of a ferry or a bridge must be trans.-
ferred by deed, {a) ' A right to go upon another man's
land, as to remove fixtures, {U) or to shoot and sport
over a manor, or to fish in the waters thereof, whether it
be a mere license of pleasure authorizing the licensee
to take, but not to carry away, or a license of profit
authorizing him both to take and carry off, the game or
the fish, is an incorporeal right lying in grant, and can
only be created by deed, (f) A parol license or permis-
sion will, so long as it has not been countermanded, jus-
tify an entry upon the land ; (</) but it can confer no
indefeasible right, and may be recalled at the pleasure
of the grantor, unless a valuable consideration has
been given and received for it, so as to give the licensee
a right to the enjoyment of the privilege. But,
although the right itself can not be created at common
(z) Eac. Abr. Grants, E. Co. Litt. (c) Duke of Somerset v. Fogwell, 5
.g a, 42 a. 14 Vin. Abr. Grant G. (a). B. & C. 875 ; 8 D. & R. 747. Bird v.
2 Roll. Abr. Grant (G). Jones v. Higginson, 2 Ad. & E. 6g6. Thomas
Robin, 12 Jur. 308. v. Fredericks, 16 L. J., Q. B. 393.
{a) Reg. V. Marquis of Salisbury, 8 Ewart v. Graham, 7 H. L. C. 331 ; 2g
Ad. & E. 739. L. J. Ex. 88.
{b) Ruffey V. Henderson, 21 L. J., (d) Feltham v. Cartwright, 7 Sc
Q. B. 51. 695.
' Washburn on Real Property, vol. 2, p. 21.*
268 LAW OF CONTRACT. [Bk. II. Ch. I.
law, so as to be indefeasible, without deed, yet a land-
owner may, by a writing satisfying the Statute of
Frauds,' agree to allow another to come upon his land
and take a profit from the soil, or to exercise and en-
joy thereon certain privileges, and will be responsible
in damages, if he interrupt such enjoyment, (e) And,
if a landowner gives a parol license or permission to
another to enjoy some profit or privilege on the land
of the licensor necessarily involving the expenditure
of money for its enjoyment, and the licensor stands
by and allows the licensee to expend his money on
the land in reliance on the promised enjoyment of the
privilege, the license can not afterwards be withdrawn
without tendering the licensee compensation for his
expenditure. (_/) Where a colliery proprietor, want-
ing to construct a railway across the defendant's land,
wrote a letter to the defendant, offering him a fair
price for the land, and, getting no answer to his letter,
and supposing that he had a right, under the powers
of a local Act, to make the railway, entered upon the
defendant's land, and constructed earthworks and
formed a railway, and used it for three or four years
with the acquiescence of the defendant, and the parties
afterwards met to settle the price that was to be paid
for the land, and, not being able to agree upon it, the
defendant brought an action of ejectment, the Court
of Chancery granted an injunction to restrain the de-
fendant from obstructing or interfering with the
plaintiff's use of the railway, on such a sum of money
being paid into court as would constitute a sufficient
security to the defendant for the price of the land, (^g)
(e) Smart v. Jones, 15 C. B., N. S. (g) Powell v. Thomas, 6 Hare, 30a
717 ; 33 L. J., C. P. 154. Laild v. Birkenhead Railway Com-
(/) Ramsden v. Dyson, L. R., i H. pany, i Johns. 500 ; 29 L. J., Ch>
L. 170, Clavering's Case, 5 Ves. 6go. 218.
Ante, vol. i, p. 296, et scq.
Sec. III.] SALE OF INCORPOREALS. 269
So, also, when a party has agreed to pay a certain sum
for a license of profit, and has had the benefit and
enjoyment of the license, it is no answer, in an action
for the money agreed to be paid, to say that the
license was not under seal. Therefore, where an
action was brought for a sum of money agreed to be
paid for the use and enjoyment of a license to fish, it
was held that the defendant could not resist the action
on the ground that the license was not under seal. (/^)
And where the defendant by memorandum in writing
agreed with the plaintiff, for a valuable consideration,
to permit the plaintiff to enter upon the defendant's
land for the purpose of gathering cinders, it was held
to be no answer to an action for a breach of this agree-
ment, to set up that it was not under seal, (z) A
parol license to enjoy an easement over or upon the
soil and freehold of another, is at once determined by
a transfer of the property ; and the grantee of the
license is consequently a trespasser, if he afterwards
enters upon the land in the exercise and enjoyment
of his supposed right, although he has received no
notice of the transfer. (/')
A mere license of pleasure amounts only to a per-
sonal contract, or to an ordinary covenant between
the parties, and does not transfer to the licensee or
his heirs any right over, or interest in, the soil and
freehold of the licenser. " If one license me and my
heirs to come and hunt in his park, I must have a
writing (that is a deed) of that license ; for a thing
passes by the license which endures in perpetuity ; but
if he license me one time to hunt, this is good without
(h) Holford v. Pritchard, 3 Exch. 539. Russell v. Harford, L. R., 2 Eq.
yg3. 507. Roberts v. Rose, L. R., 2 Ex.
(i) Smart v. Jones, ante. 82 ; 35 L. J. Ex. 62.
(/■) Wallis V. Harrison, 4 M. & W.
270 LAW OF CONTRACT. [Bk. II. Ch. I.
deed ; for no inheritance passes." (/§) If the license
be a mere personal license of pleasure, the licensee
can not take away to his own use the game killed, or
go with servants upon the land, still less send servants
to kill for him, or assign his license to another. A
license under seal to convey coals or timber in carts,
or water in drains or channels, through or across the
land of the licensor, is a license of profit and not of
pleasure, and would amount to a grant of a right of
way, or of a water-course. A license under seal may
be of such a nature as to operate in respect of some
things as a license of pleasure merely, and as to others
as a grant of an incorporeal hereditament, and a direct
transfer of an estate or interest in the land.
653. Reservation of privileges and casements
amoujiting to an express grant. — Reservations, prop-
erly so called, are only of rents and services; and a
reservation of an easement or privilege, whether to a
stranger or not, operates as a fresh grant. When,
therefore, in a deed of conveyance or an indenture of
lease, there are words of exception and reservation of
an easement or profit a prendre, they will operate as
an express grant, which may be made to enure either
in favor of the conveying party, his heirs and assigns,
or in favor of a stranger who was no party to the deed
of conveyance. Thus, where a lord of a manor con-
veyed to one N. and his heirs certain lands and
premises, parcel of the demesne of the manor, except-
ing and reserving to himself and another, who was
not a conveying party to the deed, their heirs and
assigns, free liberty, with servants or otherwise, to
come into and upon the lands so conveyed, and there
to hawk, hunt, fish, and fowl, at any time thereafter, at
their will and pleasure, it was held that the words of
(/■) Ve r Rook tr ITeu. VII., fjl S,,, cited by Parke, V,., 7 :\r. & W. 7^.
Sec. III.J SALE OF INCORPOREALS. 271
the reservation or exception so used operated as an
express grant of an incorporeal hereditament, that the
liberty of hawking, hunting, fowling, and fishing,,
granted to a person, his heirs, executors and assigns,,
amounted to a profit k prendre, authorizing the
grantee to take and to carry away the fowl and the
fish, and not to a mere license of pleasure, and that it
conferred upon the grantee a right to send his ser-
vants to hawk, hunt, fish, and fowl for him in his
absence. (/)
A right of way or of watercourse can not in strict-
ness be made the subject either of exception or reser-
vation. It is neither parcel of the thing granted, nor
is it issuing out of the thing granted, the former being
essential to an exception, and the latter to a reserva-
tion." A right of way, therefore, reserved to a lessor
on the making of a lease, is in strictness of law an
easement newly created by way of grant from the
grantee or lessee, in the same manner as a right of
sporting or of fishing.
654. Transfer of incorporeal hereditainents. — -An
incorporeal hereditament in the nature of a profit k
prendre is an estate capable of being inherited by the
heir, and assigned to a purchaser, or otherwise con-
veyed away. It is a tenement within the definition
of Lord Coke, who says that the word "tenement" in-
cludeth not only corporate inheritances, but also all
inheritances issuing out of them, or concerning, or
annexed to, or exercisable w^ithin them, as rent^
(/) Wickham V. Hawker, 7 M. & W. ' Touch. 100-116. See, as to implied
63. Doe V. Lock, 2 Ad. & E. 743. reservations, Sutfield v. Brown, 33 L.
Pannell v. Mill, 3 C. B. 636. Shep. J., Ch. 249.
' And see Kent v. Waite, 10 Pick. 138 ; Parley v. Langley,,
7 N. H. 233 ; Coolidge v. Learned, 8 Pick. 503.
272 LAW OF CONTRACT. [Bk. II. Ch. I.
estovers, common, or other profits whatever granted
out of land, (ot) If, therefore, a landowner grants to
a man and his heirs a right to dig for and carry away
stone, clay, or minerals, the incorporeal right may be
demised by the grantee for years or for life, or con-
veyed away to another and his heirs. (;z.) ' Where
the Lord Mountjoy, by deed inrolled, bargained, and
sold the Manor of Camford to one Brown in fee, and
by the same indenture Brown granted to the Lord
Mountjoy, his heirs and assigns, a right to dig for ore
in the waste land of the Manor, and also to dig turf
there, and the Lord Mountjoy demised .this interest
to one Laicot for twenty-one years, and Laicot as-
signed the same over to two other men, it was held
that the assignment was good, but that the two
assignees could not work severally, but together, with
one stock and such workmen as belonged to them
both ; and that the assignee had no exclusive right to
dig for ore, but that the land-owner himself, or the
grantor of the privilege, might also dig for ore without
derogating from the grant, (o) But grants of profits
issuing out of land carrying an assignable interest can
only be made in gross, and can only be assigned by
the grantees by the ordinary conveyances known to
the law ; and it is not because the grantee may happen
(m) Co. Litt. 20, a. 827 ; 26 L. J., Ex. 117.
(») Muskett V. Hill, 5 Bing. N. C. {0) Mountjoy's Case, Godb. 17.
707. Martyn v. Williams, i H. & N. Chetham v. Williamson, 4 East, 476.
' Perley v. Langley, 7 N. H. 233 ; Thomas v. Marshfield
10 Pick. 364; Sale v. Pratt, 19 Pick. 191, 197 ; Green v. Put-
nam, 8 Cush. 21; Commonwealth v. Law, 3 Pick. 408, 413;
Boston Water Power Co. v. Boston & Worcester R. R. Co., 16
Id. 512 ; Waters v. Lilley, 4 Id. 145 ; Washburn on Easements,
76 ; Green v. Chelsea, 24 Pick. 71. As to the rule laid down
in some of the States, making a grant of the uses of and do-
minion over land a grant of the land itself see Clement v.
Youngman, 40 Pa. St. 344; Caldwell v. Fulton, 31 Id. 484.
:Sec. III.] SALE OF INCORPOREALS. 273
to be the owner of a close at the time the grant is
made to him, that such a conveyance can be dispensed
with in favor of the persons who, from time to time,
may succeed him in the ownership of that close, {p)
655- Grants of rights of way. — A mere personal
privilege or easement, such as a right of way in gross,
not annexed or appurtenant to a tenement, can not be
assigned or granted over, (f) A license of pleasure
can not, as we have seen,* be assigned. Thus, if license
be granted to me to walk in another man's garden, or
to go through another man's grounds, I may not give
•or grant this to another, (f) We have seen that a
mere parol executory license is a simple authority, ex-
'cusing trespasses on the close of the grantor as long as
it is his, and the license is not countermanded, but
-ceasing the moment the property passes to another."
656. Contracts for the sale of growing crops. —
We have already seen that fructus industriales, such as
igrowing crops of turnips, potatoes, and corn, and the
annual productions of the soil raised each year from
fresh plants and seeds, are goods and chattels ; also
growing timber, sold at so much per foot, with a view
to its immediate severance and removal from the soil;
but that contracts for the sale of growing grass, grow-
ing timber, underwood, growing fruit or hops, not
Tnade with a view to immediate severance and removal,
are contracts for the sale of an interest in land.' If a
a man by deed " grants to another and his heirs the
vesture or herbage of his land, by this grant do pass
(/) Wil.es, J., Bailey V. Stevens, 31 (?-) Win gate's Maxims, 379, cited
L. J., C. P. 228. Shep. Touch. 239.
(q) Ackroyd v. Smith, 10 C. B. 18S.
' Ante, §651.
' Id.
• Ante, vol. i, p. 301, 302, et seq.
274 LAW OF CONTRACT. [Bk. II. Ch. L
the corn, grass, underwood, sweepage, and the like."
" He that hath the land also may grant all fruits that
may arise upon it after ; and the property shall pass as
soon as the fruits are extant. And though the words
are not words of gift of the corn, but words of license
that it shall be lawful for the grantee to take it to his
own use, it is good to transfer the property." {s)
Where the lessee of a farm, being indebted to his land-
lord, assigned to the latter, by a bill of sale under seal,.
all his hay and corn in stock and growing upon the
farm, and all his tenant right and interest to come and
unexpired in the farm, in trust to sell and pay the debt,
and hand over the surplus to such lessee, and full
power was given to the landlord to enter upon the farm
at any time thereafter, and take and carry avvay the
said corn and hay, it was held that growing crops, not
sown at the time of the execution of the deed, passed
under the assignment of the " tenant right" to the
grantee. {£) But the general rule of law is that things
not in existence at the time of the grant can not pass
thereby ; but the grant may operate as a license to
seize and sell after acquired property, {li) Although
the land itself does not pass by the grant, the grantee
has a right when the grant is under seal, to the use of
the soil for the crop to grow in until it arrives at ma-
turity, and a right to enter upon the land to secure and
carry away the crop, (.r) '
(j-) Grantham v. Hawley, Hob. f32. {tC) Carr v. Allatt, and Allatt v. Carr
((•) Fetch V. Tutin, 15 M. & W. 115. 27 L. J., Ex. 385.
(x) Noy's Maxim's, 55, Plowd. 16.
' A contract for the sale of growing trees, where the prop-
erty in the trees is intended to pass before they are severed
from the soil, is within the Statute of Frauds ; White v. Foster,
102 Mass. 378; and see Drake v. Wells, ii Allen, 143;
Giles V. Simonds, 15 Gray, 444; Whitmarsh v. Walker, i Mete.
316. But in New Hampshire the rule prevailing is that an
Sec. III.] SALE OF INCORPOREALS. 275
657. Sale of copyright. — It is now held that copy-
right in a published work only exists by statute, (^y) *
The 5 & 6 Vict. c. 45, s. 2, enacts that the word copy-
(y) Reade v. Conquest, 30 L. J., C. P. 213.
agreement for the sale of growing trees, with the right at any
time in the future to enter upon the land and remove them,
conveys such an interest in land as is within the Statute of
Frauds. But the distinction is made between contracts made
with the intention that the trees shall be immediately removed,
and those where the trees are to remain upon the land for a
certain period of time; Howe v. Batchelder, 49 N. H. 204;
Kingsley v. Holbrook, 45 Id. 313 ; Putney v. Day, 6 Id. 430;
Olmstead v. Niles, 7 Id. 522 ; Ochington v. Richey, 41 Id. 275.
So in Vermont, Buck v. Pickwell, 27 Vt. 157, the rule was
held established as to executory contracts ; and see McGregor
V. Brown, 6 Seld. 114; Vanebeck v. Roe, 50 Barb. 302; Bry-
ant V. Crosby, 40 Me. 9, 21-23; Cutler v. Pope, 13 Id. 377;
Bricker v. Hughes, 4 Ind. 146; Sherry v. Picken, 10 Id. 375 ;
Marshall v. Ferguson, 23 Cal. 65 ; Austin v. Sawyer, 9 Cow.
39 ; Whipple v. Foot, 2 Johns. 422 ; Stewart v. Doughty, 9 Id.
112; Miller V. State, 39 Ind. 267; Britain v. McKay, i Ired.
265 ; Bull V. Griswold, 19 111. 631 ; Ross v. Welch, 11 Gray,
235 ; Green v. Armstrong, i Denio, 550 ; Warren v. Leland, 2
Barb. 614 ; Dubois v. Kelly, 10 Id. 496 ; Pierrepont v. Barnard,
5 Id. 364 ; Yeakle v. Jacob, 33 Pa. St. 376 ; Huff v. McCauley,
53 Id. 206; Pattison's Appeal, 61 Id. 294; Ellison v. Brigham,
38 Vt. 64; Sterling v. Baldwin, 42 Id. 306; Harrell v. Miller,
35 Miss. 700; Byasse V. Reese, 4 Mete. (Ky.)372; Huff v. Mc-
Cauley, 53 Pa. St. 206. If the contract has been executed by
the vendee by actually severing the trees from the freehold
underthe contract,and was made for a valuable consideration,
the property in the trees would, when cut, vest in the vendee.
Buck V. Pickwell, 27 Vt. 157 ; Yale v. Seely, 15 Id. 221. Sales
of growing timber have been, and are construed to be mere ex-
ecutory contracts for the sale of chattels, without the statute in
several states, otherwise in others ; consult Heath v. Randall,
4 Cush. 195; Russell v. Richards, i Fairf. 429; S. C, 2 Id.
371 ; McNeil v. Emerson, 15 Gray, 384; Smith v. Benson, i
Hill (N. Y.) 176; Barnes v. Barnes, 6 Vt. 388; Mumford v.
Whitney, 15 Wend. 380; Pierrpont v. Barnard, 5 Barb. 364-
Bostwick V. Leach, 3 Day, ; Erskine v. Plummer, 7 Greenl.
447 ; Byasse v. Reese, 4 Mete. (Ky.) 372 ; Cain v. M'Guire, 13
' See Morgan's Law of Literature, vol. 2, § 234, et seq.
2/6 LAW OF CONTRACT. [Bk. II. Ch. I.
right as used in that Act shall be construed to mean
"the sole and exclusive liberty or otherwise of multi-
plying copies " {z) of any book, sheet of letterpress,
sheet of music, dramatic piece, map, chart, &c., or any
subject to which the word is therein applied, and (s. 3)
that the copyright in books published after the pass-
ing of the Act, (ist July, 1842) in the lifetime of the
author, shall endure for the author's life, and for seven
years after his death ; but if the seven years expire be-
fore the end of forty -two years from the first publica-
tion, the copyright is to last for forty-two years. ' If
the book is published after the author's death, the
copyright is to endure for forty-two years from the
first publication thereof^ Authors and proprietors of
books in which there was an existing copyright at the
time of the passing of the Act may (s. 4) by arrange-
(z) Novello V. Sudlow, 12 C. B. 177. Millar v. Taylor, 4 Burr. 2303.
B. Monr. 340; Edwards v. Grand Trunk R. R., 54 Me. 105 ;
Mumford v. Whitney, 15 Wend. 380 ; White v. Foster, 102
Mass. 375, 378 ; Wilde, J., in Clafiin v. Carpenter, 4 Mete. 583 ;
Drake V. Wells, 11 Allen, 14; Giles v. Simonds, 15 Gray, 441;
Nettleton v. Sikes, 8 Mete. 34 ; Delaney v. Root, 99 Mass. 546 ;
Parsons v. Smith, 5 Allen, 578; Nelson v. Nelson, 6 Gray,
385 ; Douglass v. Shumway, 13 Id. 498 ; Whitmath v. Walk-
er, I Mete. 313; Giles v. Simonds, 15 Gray, 441; Killmore
V. Howlett, 48 N. Y. 569. It is for the jury to say whether
an oral agreement to raise three acres of potatoes, to be
delivered to plaintiffs, at a certain price per bushel, is a con-
tract for labor and materials, or a sale of certain potatoes
to be delivered, but it is not a sale of growing crops. Pres-
cott V. Locks, 51 N. H. 97. A written transfer of growing
grass, to be cut at the proper time by the vendor, is not so
delivered, by plucking and delivering a handful of it, as to
make the sale good as against third persons. Lawson v. Patch,
5 Allen, 586.
The duration of copyright is at present practically the
same in the United States ; i. e., twenty-eight years, with a priv-
ilege of renewal for fourteen years more.
As to posthumous works, see Morgan's Law of Literature,
vol. 2, g 491.
Sec. III.] SALE OF INCORPOREALS. 277
ment between themselves extend the benefit of the
Act to such existing copyright. All copyright is
(s. 25) personal property, and transmissible as such.'
Other shorter periods are by various statutes limited
for the duration of copyright in prints, engravings,
ornamental and useful designs, sculpture, paintings,
drawings, and photographs, (a) ' The proprietor of
the copyright in books, if he wishes to sell and trans-
fer the copyright, must (s. 13) make an entry in the
register of the Stationers' Company of the title of such
book, the time of its first publication, and the name
and place of abode of the publisher and proprietor of
the copyright, in the form given in the schedule ; and
every such registered proprietor may assign his interest
or any portion thereof, by making an entry in the reg-
ister of the assignment, and of the name and place of
abode of the assignee, in the form giv^en in the schedule
to the Act ; and the assignment so entered is expressly
exempted from stamp duty, and is of the same force
and effect as if it had been made by deed. (^F) If the
assignment is made abroad, it must be a valid transfer
according to the law of the country in which it is
made, to constitute the transferee " an assign " of the
author within the meaning of the statute of Victoria.
(c) The assignment of the copyright of a book con-
(a) 25 & 26 Vict. u. 63. Burke's tration, Wood v. Boosey, L. R. 2 Q.
Sup. to Godson on Patents. Burke's B. 340; Id. 3 Q. B. 423 ; 36 L. J., Q.
International Copyright. B. 103 ; 37 L. J., Q. B. 84.
(b) See, as to the requisites of regis- (c) Cocks v. Purday, 5 C. B. 860.
' See Morgan's Law of Literature, vol. 2, chapter " Of
Contracts concerning Literary Property," § 414, et seq., where
all the reported cases relating to Assignments and Transfers
of Literary Property, before and after publication, contracts
with printers, publishers, executors, administrators, assignees,
and creditors, under execution, bankruptcy, and insolvency
proceedings, are cited and discussed.
" Id. vol. 2, p. 108, et seq.
278 LAW OF CONTRACT. [Bk. II. Ch. I.
sisting of or containing a dramatic piece, does not, in
the absence of an expressed intention that it should
do so, pass the right of representing or performing it,
which may be the subject of a subsequent assignment
to a third person, {d^ In the absence of any contract
to the contrary, the assignor of the copyright is still
entitled to sell copies of the work printed before
assignment. {/) The assignee of the sole right of rep-
resenting a dramatic piece may sue for penalties under
the 3 & 4 Will. 4, c. 15, s. 2, notwithstanding the
assignment is not by deed or registered under the 5
& 6 Vict. c. 45. (/)
An assignment of copyright by a foreigner resident
abroad to another foreigner resident abroad, valid
according to the law of the country where it is made,
will not give the assignee a title in this country to
copyright in the unpublished work of which he is
assignee, so that he can transfer it by assignment to
an Englishman ; but, if a foreigner having composed,
but not having published, a work abroad, comes to
this country and prints and publishes his work here,
he will be within the protection of the Copyright
Acts, {g)'
Where an agreement in writing was entered into
between an author and a publisher, whereby the pub-
lisher was to publish at his own expense and risk a
certain work written by the author, and, after deduct-
(a') Marsh V. Conquest, 17 C. B., N. (^f) Jeffreys v. Boosey, 24 L. J.,
S. 418 ; 33 L. J., C. P. 319. Exch. 81 ; 4 H. L. C, 815. Low v.
(e) Taylor v. Pillow, L. R., 7 Eq. Routledge, L. R., i Ch. 42 ; 35 L. j.,
418. Ch. 114. As to copyright in works
(/) Marsh v. Conquest, 17 C. B., N. and dramatic pieces published abroad,
S. 418 ; 33 L. J., C. P. 379. Lacy v. and afterwards published in this coun-
Rhys, 4 B. & S. 873 ; 33 L. J., Q. B. try, see Boucicault v. Delafield, 33 L.
157. J., Ch. 38,
' See Morgan's Law of Literature, volume 2, chapter " On
Contracts."
Sec. III.] SALE OF INCORPOREALS. 279
ing from the produce of the sale of the work the
■charges for printing, paper, advertisements, and other
incidental expenses, and the publisher's commission,
the profits remaining of any edition that should be
printed were to be divided equally between the author
and the publisher, it was held that this did not amount
to an agreement for the sale of the copyright, but that
it was a mere personal contract, a kind of special
agency which could not be assigned so as to give the
benefit of it to any other publisher. (Ji) ' So long,
however, as the publisher performed his part of the
contract, he would be entitled to prevent the author
from publishing a fresh edition, which might interfere
with the sale of an edition on hand, or from putting
an end to the agency without recompensing the pub-
lisher all the expenses he had incurred, (z) ^
658. Sa/e and assignment of patent right. — A
person who discovers some new process of manufac-
ture, or some novelty in the useful arts, has no right
at common law to the exclusive use of his discovery
(/§) But, in order to encourage persons to make use-
ful discoveries, it is customary for the Crown to grant
to the discoverer, by letters patent under the great
seal, a monopoly of the use of the invention for a cer-
tain period, and to extend the grant to the " executors,
administrators, and assigns" of the grantee, so as to
give an assignable quality to the patent privilege.
A right of this nature, created by grant under the great
seal enrolled in Chancery, is matter of public record.
It is an incorporeal right, termed by some writers an
(/;) Stevens v. Benning, I K. & J. 174. {k) Duvergier v. Fellows, 10 B. & C.
(0 Reade v. Bentley, 3 K. & J, 278. 829.
' See Morgan's Law of Literature, volume 2, chapter " On
Contracts."
" Id.
28o LAW OF CONTRACT. [Bk. II. Ch. I..
incorporeal chattel, and can only be assigned by deed,,
in accordance with the ancient rule of law that "a
thing which of its own nature can not be created
without deed can not be assigned without deed." (/)
The letters patent generally enable the grantee and
his assigns to grant licenses under seal for the use of
the patent privilege by other parties with whom he or
they may contract or agree for the use thereof But,
if a party, by agreement with the grantee, has used
and exercised the patent privilege, he can not escape
from liability to pay the money he agreed to pay by
showing that there was no license under seal. (;;/)
The assignment may be made absolute, conditional,
or defeasible on the happening of a given event ; (?i)
but, if the patent right is dealt with contrary to a con-
dition upon which it may happen to have been granted,,
the right is extinguished and gone for ever. It is no
ground of objection to the title of an assignee of a
patent that the assignors, the executors of the grantee,
had omitted to register the probate until after the
date of assignment, though possibly it might be an.
obstacle to the maintenance of an action by the
assignee for an infringement, if commenced before the
registration of the probate, (^o) *
(/) Lincoln College's case, 3 Coke, 43. Hindmavch on Patents. Coryton.
63, a. on Patent Privileges.
(m) Chanter v. Dewhurst, 12 M. & (0) Elwood v. Christy, 17 C. B., N.
W. 823. S. 754; 34 L. J., C. P. 130.
(«) Cartwright v. Amatt, 2 B. & P.
An inventor may so assign his invention before a patent
obtained as to entitle his assignee to a patent. Herbert v.
Adams, 4 Mason, 15. And such right to a patent will pass tO'
his executor or administrator. Revision of U. S. Statutes, §
4896, title Ix. § 4898 of that title (revision of 1873-4) provid-
ing that " every patent or any interest therein shall be assign-
able in law by an instrument in writing, and the patentee or
his assigns or legal representatives may, in like manner, grant
and convey an exclusive right, under his patent, to the whole-
Sec. III.] SALE OF INCORPOREALS. 281
In a contract for the sale and purchase of a patent
right, the vendor does not profess to sell a good and
indefeasible patent right, but merely such a right as
he actually possesses under the patent. (/) If, there-
fore, subsequently to the sale, the patent turns out to
be invalid, without any fraud on the part of the
vendor, the purchaser has no ground for claiming
back his purchase money, {q) A contract for the
sale of a patent right may be specifically enforced, (r)
659. Of the title to shares in ^nining companies. —
The shareholders in joint-stock companies possessed
of land are entitled to no direct interest in the land.
No part of the realty is held in trust for them ; but
all they are entitled to is, that the real and personal
property held by the company should be used by the
company for their benefit, {s) A purchaser of shares
in a mining company is not entitled to a regular de-
duction of the title of the vendor of the share as on
the sale of real estate. The vendor may establish his
title by the cost-book or register of the mine, (f)
(p) Hall V. Conder, 2 C. B., N. S. 244. Powell v. Jessop, 18 C. B. 336.
41 ; 26 L. J., C. P. 138. Walker v. Bartlett, Id. 845. Edwards
(q) Lawes v. Purser, 6 Ell. & Bl. v. Hall, 25 L. J., Ch. 82. Caddick v.
935 : 26 L. J., Q. B. 25. Skidmure, 3 Jur. N. S. 1185.
(r) Cogent v. Gibson, 33 Beav. 557. (i) Curling v. Flight, 5 Hare, 242.
(j) Watson V. Spratley, 10 Exch.
or any specified part of the United States. An assignment,
grant, or conveyance shall be void as against any subsequent
purchaser or mortgagee for a valuable consideration, without
notice, unless it is recorded in the patent office within three
months from the date thereof." And see Woodworth v. Wil-
son, 4 How. 712. Such an assignment without the record re-
quired by the statute {ante, § 4898) is still good against the
grantor, and the limitation of three months is merely directory.
And excepting as to intermediate bona fide purchasers, with-
out notice, any subsequent recording of an assignment will be
sufficient to pass the title. Brooks v. Byam, 2 Story, 542 ;
Curtis on Patents, § 182. As to assignments of patents ii>
bankruptcy, see Curtis on Patents, § 175.
282 LAW OF CONTRACT. [Bk. II. Ch. I.
The partners, in whom the legal right in the mine or
minerals is vested by deed of grant, hold the mine
and the partnership joint-stock plant and machinery,
in trust to exercise the right to search for and obtain
minerals, and make a profit for the benefit of the co-
adventurers ; and it has been held that the shares of
this profit, and consequently the shares in the mine,
are personal property, which may be bargained for and
transferred without note in writing, no interest in the
soil passing by the transfer, but only a right to par-
ticipate in the profits of the mine. When mining
shares are sold in the share market, it is the practice
for each party to make a memorandum of the sale in
his own book, in the same manner as is made by
brokers and jobbers on the Stock Exchange. The
vendor afterwards hands a certificate of the sale to the
captain or purser of the mine, authorizing him to
transfer the shares to the purchaser in the usual way ;
and the purchaser signs an acceptance of the shares
written underneath the certificate of sale, which being
presented to the captain or purser of the mine, the
name of the purchaser is substituted in the place of
the vendor in the cost-book, and the transfer is com-
plete, (^u) And as soon as the share or interest in the
profits of the concern is transferred by the outgoing
shareholder, the latter is released from all liability
upon contracts subsequently entered into by the pur-
ser or managers of the company, (v)
660. Tz'i/e to shares, scrip, and letters of allot-
ment.— The mere possession of letters of allotment of
shares or of scrip certificates of shares in projected
railway companies is prima facie evidence of owner-
ship, and of the power of disposition over them. But
(ti) Watson V. Spratley, 24 L. J., {v) Haivey v. Kay, g B. & C. 356.
Ex. 53.
Sec. III.j SALE OF INCORPOREALS. 283
in the case of registered joint-stock companies, or
companies incorporated by Act of Parliament, the
title to shares is evidenced by production of a certifi-
cate of proprietorship, and by reference to the register
of the shareholders of the company/ The directors of
every registered joint-stock company and incorporated
railway company are directed (25 & 26 Vict. c. 89, s.
25, and 8 & 9 Vict. c. 16) to cause books to be kept,
to be called the register of shareholders, and to enter
from time to time therein the names, addresses, and
occupations of the shareholders in the company ; the
shares held by them, distinguishing each share by its
number; the amount paid on such shares; the date
at which the name of any person was entered in the
register as a shareholder; and the date at which any
person ceased to be a shareholder in respect of any
share, (jj/) Provision is made by the Companies Act,
1862, (b) and by the Railway Acts, for establishing
the title to shares in case of the death or bankruptcy
or insolvency of shareholders, or the marriage of female
shareholders.
Any person entitled to a share in a registered joint-
stock company in consequence of the death, bank-
ruptcy, or insolvency of any shareholder, or in conse-
quence of the marriage of any female shareholder, or
in any way other than by transfer, may be registered
as a shareholder upon such evidence being produced
(y) There is a similar provision as to 26 & 27 Vict. c. 118.
•debenture holders contained in the (z) Sched. Table A.
' A sale of stock unaccompanied by a transfer upon the
company's books, is good between the parties themselves ; and
the buyer obtains the legal ownership, with a merely equit-
able title against the company; Grymes v. Hore, 49 N. Y. 17.
See Isham v. Buckingham, 47 N. Y. 216; Weaver v. Harden,
49 N. Y. 286 ; Bank of Commerce's Appeal, 73 Pa. St. 59.
284 LAW OF CONTRACT. [Bk. II. Ch. I.
as may from time to time be required by the com-
pany ; and any person who has become entitled to a
share in any way other than by transfer, may, instead
of being registered himself, elect to have some person
to be named by him registered as a holder of such
share, by executing to his nominee a deed of transfer
of such share, which must be presented to the com-
pany with such evidence as they may require of the
title of the transferror, (a) Under the Companies '
Act, 1862, a certificate under the common seal of the
company (s. 31), or the register (s. 37), is prima facie
evidence of the ownership of a share. (J))
661. Executory contracts for the sale of shares
are generally effected by brokers on the Stock Ex-
change, who enter the transaction in their books, and
transmit bought and sold notes to their principals,
specifying the number and value of the shares, and
the price to be paid for them. Executory contracts
for the sale of letters of allotment, scrip, and shares in
railway companies, or shares in mining companies, or
registered joint-stock companies, do not, as we have
already seen, come within the operation of the Statute
of Frauds, as they " are neither an interest in land, (c)
nor are they goods and merchandises," {d^ within the
meaning of that Act. But by the 30 Vict. c. 29, con-
tracts for the sale or transfer of any shares, stock, or
other interest in a joint-stock banking company con-
stituted under or regulated by any Act of Parliament,
royal charter, or letters patent, issuing shares or stock,
transferable by any deed or written instrument (except
(a) 25 & 26 Vict. c. 89, Table A, Ex. 157.
No. 12-16. Copeland v. North East- (c) Humble v. Mitchell, II Ad. & E.
em Railway Company, 6 Ell. & Bl. 205. Bradley v. Holdsworth, 3 M. &
284. W. 422.
{b) Cornwall, &c,, Mining Company {d) Knight v. Barber, 16 M. & W.
V. Bennett, 5 H. & N, 423 ; 29 L. J., 66 ; 16 L, J., Ex, 18.
Sec. III.] SALE OF INCORPOREALS. 285
by the Banks of England or Ireland), are null and
void, unless they set forth and designate in writing
such shares, stock, or interest by the respective num-
bers by which the same are distinguished on the reg-
ister or books of the company. Where there is no
register of shares or stock by distinguishing numbers,
the contract must set forth the person in whose name
such shares, stock, or interest stand as the registered
proprietor in the books of the company. When a
bargain has been made for the sale of a certain num-
ber of ascertained shares in a particular railway com-
pany or a registered joint-stock company, the property
in the shares passes by the bargain to the purchaser,
and the latter becomes the equitable owner of the shares,
and is entitled to a decree for specific performance,
when the time for the making of the transfer arrives.
(e) This transfer of the equitable ownership is natur-
ally accompanied with a transfer of the benefit and
the burden incident to the holding of the shares, as in
the case of the transfer of the equitable ownership of
lands and tenements, so that, if a call is made on the
shares between the time of the making of the bargain
and the time appointed for the transfer of the shares, the
purchaser will be bound to pay the call, and the
Court will compel him to accept and register a transfer
of the shares, and clothe himself with the legal title to
them, and do all proper acts to relieve the vendor
from liability as the registered legal owner. (/") If,
after the making of a bargain for the sale of shares, a
dividend is declared, the dividend will belong to the
purchaser ; for by the custom of the Stock Exchange,
the dividend until it becomes payable is included in
{e) Duncuft v. Albrecht, 12 Sim. 199. 206. Wynne v. Price, 3 De G. & S.
Ross V. Moses, I C. B. 227. 310. New Branswick Company v.
(/) Ex parte Straffon, 22 L. J., Cli. Muggeridge, 4 Drew. 686.
286 LAW OF CONTRACT. [Bk. II. Ch. I.
the price of the share ; and if the vendor receives it,
he w\\\ hold it as a trustee for the purchaser. If, on
the other hand, before the transfer is executed, a peti-
tion is presented for vk^inding up the company under
the Companies Act, 1862, (^g) the contract is not ren-
dered void by the 153rd section of that Act; and if
the broker has, in accordance w^ith the rules and regu-
lations of the Stock Exchange, been compelled to pay
the price of the shares to the vendor, he will be en-
titled to recover back from his principle the money so
paid. (/^)
662. Agreements for the transfer of shares. — If
the owner of shares subject to liabilities which deprive
them of all marketable value, wishes to divest himself
of the shares and the attendant liabilities, and another
person is willing to accept the shares, and take the
chances of the speculation, and they enter into an
agreement for the purpose, the contract will be specifi-
cally enforced, (z) But the court will not enforce an
agreement to purchase, made after the presentation of
a petition to wind up a company, but before advertise-
ment, by making the purchaser a contributory, when
both parties were ignorant "of the pending petition at
the time of the agreement. (/^) A transfer of shares
which is otherwise bona fide, can not be set aside at
the instance of the company, either because the ven-
dor paid money to the purchaser to take the shares, or
because the certificate of transfer contains false repre-
sentations as to the consideration paid. (/)
663. Mode of performance. — Where shares are
(g) 25 & 26 Vict. c. 8g. Continental Exchange Bank, tx parte
(h) Chapman v. Shepherd, L. R., 2 Emmerson, L. R., i Ch. .(33 ; 36 L. J.,
C. P. 228 ; 36 L. J., C. P. 113. Ch. 177.
(;■) Cheale v. Kenward, 3 De G. &J. {/) Hafod Lead Mining Company,
27 ; 26 L. J., Ch. 784, in re, ex parte Slater, 35 L. J., Ch. 304.
(k) 1,1 re London, Hamburg, and
Sec. 1 1 I.J SALE OF INCORPOREALS. 287
bought or sold through a broker on the Stock Ex-
change, the principal enters into an implied contract
to sell or buy according to the customs and usages
prevalent in that body, (m) According to the practice
of the Stock Exchange, the broker who buys shares
prepares the transfer deed and tenders it to the selling
broker for execution, (w) and pays the price on the
transfer being returned to him executed by the vendor
and accompanied by the vendor's certificates of proprie-
torship. Generally there are intermediate sales, and in
that case the first purchaser on a day before the selling
day, called the name-day, gives to the vendor's broker
the name of an ultimate purchaser to whom the shares,
are to be transferred. The vendor's broker thereupon
prepares a deed of transfer to the ultimate purchaser,
gets it executed by the vendor, and on the selling-day
hands it and the share certificates to the broker of
the ultimate purchaser, who pays the price agreed
upon between the ultimate purchaser and the jobber,
the vendor's broker paying the balance to or receiv-
ing it from the broker as the case may require.
When this has been done, the liability of the
first purchaser ceases, if the ultimate purchaser is a
person to whom no reasonable objection can be made.
(i>) In order to relieve the jobber from liability, the
ultimate purchaser whose name is given on the name-
day must be a person who is willing to accept and pay
for the shares; (/) but such purchaser is bound by
the acceptance of the transfer, and payment of the
(?«> Kelly V. Hodgkinson, L. R., 6 8x. Grissellv. Bristowe, L. R.,4 C.P.
Eq. <tg6. 36 ; 38 L. J., C. P. 10. Maxted v.
(«) Stephens v. De Medina, 4 Q. B. Paine, L. R., 6 Ex. 132 ; 40 L. J...
428. Ex. 57.
(fl) Paine v. Hutchinson, L. R., 3 (p) Maxted v. Paine, L. R., 4 Ex.
Ch. 388 ; 37 L. J., Ch. 485. Coles v. Bi ; 38 L. J., Ex. 41.
r.ristowe, L. R., 4 Ch. 3 ; 38 L. J., Ch.
288 LAW OF CONTRACT. [Bk. II. Ch. I.
price by his brokers on his behalf. (^) The jobber
may, however, agree to guarantee that the ultimate
purchaser shall register the transfer ; and if he does so,
and the transfer is not registered, he will be liable to
indemnify the vendor against the consequences ot
such want of registration, (r) It is not the duty of
the vendor or of the selling broker to get the transfer
registered. All he has to do. is to execute the transfer-
deed and return it to the purchaser, (j-) It is then the
duty of the latter to execute it and leave it, with the
certificates of proprietorship, at the office of the com-
pany for registration, and for new certificates of pro-
prietorship to be g'ranted to him in his own name.
Until this is done, and the transfer has been registered,
and the new certificates granted, the purchaser's title
to the shares is incomplete. (/) A contract to deliver
shares in a projected company does not require the
actual delivery of scrip certificates, which are the mere
indicia of property ; but the party contracting to de-
liver sufficiently performs his engagement when he
places the other in the position of being the legal
owner of them. («) It is not incumbent on the
vendor to obtain the consent of the directors to the
transfer, unless the deed of settlement, or articles of
association of the company, make the approval of the
directors a condition precedent to the right of the share-
holder to transfer his shares. (z>) A clause in a deed
of settlement, that no shareholder shall transfer his
shares except in such manner as the directors shall
approve, does not prevent a shareholder from entering
(y) Bowring v. Shepherd, L. R., 6 (/) Stray v. Russell, 28 L. J., Q. B.
•Q. B. 309 ; 40 L. J., Q. B. 129. 287.
(r) Cruse v. Paine, L. R.,4Ch.44i ; («) Hunt v. Gunn, 13 C. B., N. S.
38 L. J., Ch. 225. 226.
(j) Taylor v. Stray, 2 C. B., N. S. (v) Wilkinson v. Lloyd, 7 Q. B. 27.
195- Stray v. Russell, 29 L. J., Q. B. 115.
Sec. hi.] SALE OF INCORPOREALS. 289
into a contract for the sale of his shares ; and, if such
a contract has been entered into, it will be enforced as
between the vendor and purchaser, and the latter will
be compelled to do all that is necessary to be done by
him to obtain the consent of the directors of the regfis-
tration of the transfer, {y) But the court will not
compel the directors to assent ; nor will specific per-
formance be decreed where they refuse to do so. (z)
Executory contracts for the sale and purchase of
shares in railway and parliamentary works' companies
are fulfilled on the part of the vendor by a tender of
letters of allotment of shares, if there are no shares in
the market ; and the letters of allotment are com-
monly bought and received as shares upon the Stock
Exchange. («) In the case of the sale of scrip or
letters of allotment of shares in projected companies
■which can be lawfully bought and sold, no right of
property in any particular scrip or shares passes to the
purchaser until actual delivery ; and the vendor will
fulfill his contract by procuring and tendering to the
purchaser any scrip that may be in the market. (Ji)
But a purchaser is not, of course, bound to accept
shares or scrip, or any securities, of a different kind
from those he bargained for and agreed to buy. (r) '
iy) Poole V. Middleton, g W. R. Lambert v. Heath, 15 M. & W. 486 ;
758. 15 L. J-. Ex. 297.
(z) Bermingham v. Sheridan, 33 (b) Heseltine v. Siggers, 18 L. J.,
Beav. 660; 33 L. J., Ch. 751. Exch. 166. And see Hunt v. Gunn,
(a) Stray v. Russell, 28 L. J., Q. B. ante.
•284. Mitchell V. Newhall, 15 M&W. (f) Keele v. Wheeler, 7 M. & Gr.
309 ; 15 L. J., Ex. 292. Tempest v. 665.
Kilner, 3 C. B. 240 ; 15 L. J.. C. P. 10.
' An executory contract for the sale of stock, which fixes
no time for its performance, does not pass any title to the
stock, but is a valid contract which a party, not in default
himself, can enforce ; Bruce v. Smith, 44 Ind. i ; and see as
to sales of stocks. Smith v. Gear, 59 111. 381 ; Leaming v. Wise,
73 Pa. St. 173.
II. — 19
290 LAW OF CONTRACT. [Bk. II. Ch. L
664. Time of performance. — The time for the
completion of an executory contract for the sale of
shares is regulated by the custom of the Stock Ex-
change. If particular days are set apart for the settle-
ment of accounts between brokers and their customers^
and for the delivery and transfer of shares that have
been agreed to be bought and sold in the intervening
period, all contracts for the sale and purchase of shares
to be completed on a particular day will be deemed
to be made for the next settling day that will arrive
after the time so appointed. ((/) When no time is
specified for the completion of the contract, the
printed rules and customs of the Stock Exchange are
admissible in evidence to show what is a reasonable
time under all the circumstances of the case for the
fulfillment of the bargain, {e) Where a written con-
tract for the sale of mining shares was silent as to the
time of the delivery of the shares, but fixed the time
for payment of the price, it was held that evidence
was admissible to show that, by a custom amongst
brokers, the vendor under such a contract was not
bound to deliver the shares until he had received or
was offered payment of the price, (y)
665. Implied undertakings and indemnities an-
nexed to contracts for the sale and purchase of shares.
— Payment of calls. — Where the plaintiff sold mining"
shares to the defendant, and delivered to him a docu-
ment addressed to the secretary of the mine, by which
the plaintiff requested him to enter a transfer of the
shares from his name into that of a transferee, whose
name was left in blank that it might be filled up by the
(d) Fletcher v. Marshall, 15 M. & (/) Field v. Lelean, 30 L. J., Ex.
W. 755. Bayliffe v. Butterworth, 17 169; g W. R. 387 ; overruling Spar-
L. J., Ex. 7g. tali v. Benecke, 10 C. B. 212.
(?) Stewart v. Cauty, 8 M. &W. 160.
Sec. III.] SALE OF INCORPOREALS. 291
holder of the document, and the blank was left in order
that the defendant might insert either his own name,
or that of any other person to whom he might sell the
shares, and the plaintiff by delivering this document
to the defendant had done all that it was incumbent
on him to do to pass the property in the shares to
the defendant, who, upon the receipt of it, became
potentially the owner of the shares, and might have
made his title perfect at any time, it was held that
there was an implied contract or undertaking on the
part of the defendant to indemnify the plaintiff in
respect of all calls that might lawfully be made on
the shares whilst they remained untransferred in the
books of the company, (^g) But, if the shares are
again sold, there is no implied contract of indemnity
between the original vendor and those who buy from
the first purchaser. The privity of contract, and the
attendant liabilities, are confined to those who deal
together as vendors and purchasers, and do not ex-
tend to parties who are strangers to each other and
have never come together in any way. (/;) Such an
implied indemnity does, however, exist where there
have been intermediate sales in the manner above
described, but the transfer is made by the original
vendor direct to the ultimate purchaser, whose duty
it then becomes to execute the deed and register the
transfer, (?) a duty which he may be compelled
specifically to perform, {^k) Where the ultimate
purchaser gave the name of one of his workmen as
the person to whom the shares were to be transferred,
and the transfer was executed to the workman, it was
(g) Walker v. Bartlett, l8 C. B. 863; (J) Hawkins v. Maltby, L. R., 4 Ch.
25 L. J., C. P. 263. Wynne v. Price, 200 ; 38 L. J., Ch. 313.
3 De G, & S. 310. (k) In re Overend, Gurney & Co.,
{h) Sayles v. Blane, 14 Q. B. 205 ; Musgrave and Hart's case, L. R., 5
iq L. J., Q. B. 19. Eq. 193 ; 37 L. J., Ch. 161.
292 LAW OF CONTRACT. [Bk. II. Ch. I-
beld that the master, as the real purchaser and equit-
able owner, was bound to indemnify the vendor
against all subseqifent calls in respect of the shares.
(/) The vendee does not become relieved from his
obligation to indemnify his vendor by re-selling and
transferring the shares to some third person, (m)
666. Rights of scripholders. — Where a defendant
had signed the subscription contract of a projected
railway company, and had received an allotment of
shares with scrip certificates, which he sold before the
special Act of incorporation of the company had
been obtained, and the shares passed through several
hands, and the holder neglected to send the scrip for
registration, and the company entered the name of
the original allottee in the register as the proprietor
of the shares, and the latter, apprehending that a call
would be made upon him, again sold the shares, it
was held that he was bound to pay over to the scrip-
holder the amount of the purchase money, {n) ^
667. Transfer deeds. — It is essential to the valid-
ity of a deed of transfer of shares that it be duly
stamped with the proper ad valorem stamp imposed
on transfers made upon a sale impost, bk. 4,) also that
(/) Castellan v. Hobson, L. R., 10 Q. Bj458 ; 42 L. J,, Q. B. 174.
Eq., 47 ; 39 L. J., Ch. 490. (11) Beckitt v. Bilbrough, 19 L. J.,
(«) Kellock V. Enthoven, L. R,, 8 Ch. 522.
' The right to dispose of personal property being an inci-
dent of ownership thereof, a by-law of a corporation prohibit-
ing the alienation of its stock, or restricting the same, is void,
as in restraint of trade ; Moore v. Bank of Commerce, 52 Mo.
377 ; nor will a by-law of a corporation which provides that
no shareholder shall convey any shares of its stock, except to
his legal heirs, without first offering them to the corporation
at par, avoid a contract to deliver the earnings of certain
shares of stocks ; see Price v. Minot, 107 Mass. 49. But see
Germantown, &c., R. Co. v. Fitter, 60 Pa. St. 124, as to a
corporation's right to declare stock forfeited.
Sec. III.] SALE OF INCORPOREALS. 293
the name of the purchaser or party to whom the
transfer is to be made, the number and distinguishing
marks of the shares, and the price to be paid for them,
be inserted in the deed before the execution thereof
by the vendor ; for material blanks in a deed can not,
as we have seen, be afterwards filled up in the absence
of the vendor. The rule of law upon this subject can
not be altered or affected by the practice or custom
of the Stock Exchange, (o) But an error in the
transfer in distinguishing the numbers is immaterial,
if the transferrer has at the time a sufficient number
of shares. (/) Where a vendor of shares executed
printed forms of deeds of transfer, in which the
number of shares to be sold, the distinguishing marks
of those shares, and the names of the transferees,
were left in blank, but the stamps which the transfer
bore were sufficient in value to cover a transfer of all
the vendor's shares, and the broker, after the transfer
deed had been delivered to him, fraudulently filled up
the blanks with the whole of the vendor's shares,
when he had been authorized to sell only a portion,
and absconded with the purchase money, and the
fraud was discovered before the transfers had been
registered, it was held that the transfers were void ;
and the Court of Chancery granted an injunction to
restrain the registration of the transfers, and prevent
any steps being taken to complete the title of the
purchaser, {g) Where a broker employed by the
plaintiff to purchase shares which the plaintiff paid
for, procured the instrument of transfer to the plain-
{0) Hibblewhite v. M'Morine, 6 M. L. J., Ch. 564.
& W. 200. Taylor v. Great Indian {q) Tayler v. Great Indian Peninsu-
Peninsular Company, 4 De G. & J. lar Railway Company, supra. Swan,
559; 28 L. J., Ch. 289. Swan, ex ex parte, supra. Swan v. North Brit-
parte, 7 C. B., N. S. 448. ish Australian Company, 2 H. & C
(J) Ind's case, L. R., 7 Ch. 485 ; 4i I75 ; 32 L. J., Ex. 273.
294 LAW OF CONTRACT. [Bk. II. Ch. I.
tiff and the plaintiff's signature thereto, and received
from the plaintiff the certificate and transfer for the
purpose of registration, and soon afterwards, having
fraudulently procured the plaintiff to cancel his sig-
nature to the transfer, by means of the cancelled
transfer and the certificates, induced the vendor to
execute a fresh transfer to himself, and thereupon
procured the shares to be registered in his own name,
and then mortgaged them, it was held that the effect
of the first transfer was not destroyed by the cancel-
lation fraudulently proved, and the registration in
the name of the broker and the transfers to his
mortgagee were decreed to be set aside, (r)
Where the previous consent of the company is made
essential to the validity of a transfer of shares, such con-
sent may be presumed from the conduct and acts of
the company, and they may be estopped from disput-
ing it. (i) Transfer deeds of shares generally con-
tain an agreement on the part of the purchaser to take
and hold the shares subject to the conditions on which
the transferrer himself held them, or to hold them sub-
ject to the regulations of the particular company. One
of these rules generally is that the registered owner
shall pay calls. If, therefore, a purchaser of shares,
after he has executed a deed of transfer, and had the
deed delivered to him or to his agent for the purpose
of registration, omits to get the deed registered, and
the vendor is compelled to pay calls by reason of his
name being left on the register, he is entitled to be
indemnified by the transferree. (/) A transfer of shares
to an infant is not void but only voidable ; and if the
infant after arriving at full age affirms the transaction,
(r) Donaldson V. Gillot, L. R., 3 Eq. (^ Walker v. Bartlett, i8 C. B.
274. 863, ovevruling Humble v. Langston,
(s) Lane, in re, 33 L. J,, Cli. S4. 7 M. & W. 517.
Sec. III.] SALE OF INCORPOREALS. 295
'he can not afterwards avoid it on the ground of his
infancy, (u)
668. Transfers of shares in registered joint-stock
£om.panies must be in the form given in the schedule
to the 25 & 26 Vict. c. 89, Table A, No. 8, and must
he executed both by the transferrer and transferree.
By this form of transfer the transferree takes the shares
subject to the conditions on which the transferrer held
them at the time of the execution of the transfer. The
transferrer remains the holder of the shares until the
name of the transferee is entered in the register ; but
if the company makes default, or is guilty of unneces-
sary delay in registering any transfer of shares, it is re-
sponsible in damages to the party injured. In the
case of a company other than a limited company, every
transferee of shares is, in a "degree proportioned to the
shares transferred, to indemnify the transferrer against
all existing and future debts of the company ; and in
case of a limited company, every transferee is to in-
demnify the transferrer against all calls made, or ac-
crued due, on the shares transferred subsequently to
the transfer. By the 25 Vict. c. 89, s. 131, it is pro-
vided that, whenever a company is wound up volun-
tarily, the company shall from the date of the com-
mencement of such winding up, cease to carry on its
business, and that all transfers of shares, except trans-
fers made to or with the sanction of the liquidator, tak-
ing place after the commencement of such winding up,
shall be void. This enactment does not justify the
vendor in refusing to execute a transfer, and thereby
■casting on his broker the liability to furnish other shares
to the purchaser, (v) By sect. 153 of the same Act
(a) In re Blakely Ordnance Com- {v) Biederman v. Stone, L. R. 2 C.
pany, Lumsden's case, L. R., 4 Ch. 31 ; P. 504 ; 36 L. J., C. P. 198.
39 L. J., Ch. 124.
296 LAW OF CONTRACT. [Bk. II. Cil. L
every transfer of shares made between the commence-
ment of winding up and the order for winding up, is
void, unless the Court otherwise orders. But an agree-
ment for the sale of shares in the specified interval is.
not void ; and the transfer may be executed after the
winding up order has been made, (jj/)
669. Registration of transfers — Payment of calls.
— The Companies Clauses Consolidation Act, 8 Vict,
c. 16, enacts, (s. 16) that no shareholder shall be enti-
tled to transfer any share after any call shall have been
made in respect thereof, until he shall have paid such
call, nor until he shall have paid all calls for the time
being due on every share held by him ; {z) and by
the 25 & 26 Vict. c. 89, schedule, Table A, No. 10, the
company may decline to register any transfer of shares
made by a member who is indebted to them. Whert
a call has been made between the time of the making
of the executory contract of sale and the time ap-
pointed for making the transfer, it is the duty of the
purchaser to clear the way for the registration of the
transfer deed and the completion of the transfer by
payment of the intervening call, (a) Where the a ti-
des of association of a joint-stock company provided
that the directors might decline to register any trans-
fer of shares made by a shareholder who was indebted
to them, it was held that a shareholder could not be,
considered indebted to the company, in respect of a
call made by the directors, until he had received a no-
tice of the call, specifying the person to whom the call
was to paid, and the time and place of payment, {h)
But a shareholder may be indebted to the company so
(j') Rudge v. Bowman, L. R. 3 Q. («) Shaw v. Rowley, 16 M. & W..
B. 689; 37L. J., Q. B. 193. 815.
(z) Hall V. Norfolk Estuary Com- (5) Rudolphe, ex parte, 32 L. J., Q.
pany, 21 L. J., Q. B. 9^. B. 369 ; 37 L. T., Q. B. i 3.
Sec. III.] SALE OF INCORPOREALS. 297
as to be unable to transfer his shares, althougji he may
have accepted a bill of exchange and handed it to the
company by way of payment of the debt, (c) Under
the 8 Vict, c. 16, s. 16, the company is bound to regis-
ter a transfer of shares on which no call can be made,
as, for instance, fully paid up shares, although the trans-
ferrer be the holder of other shares on which there are
calls unpaid, (d) If the vendor of the shares has done
all that the deed of settlement or the Act of Parlia-
ment under which the company is established, requires
him to do to entitle him to transfer his shares, it be-
comes the duty of the directors to enter a memo-
rial of any transfer deed that may be duly executed
by him in the register of transfers, and to do all that
"'s necessary to be done to constitute the purchaser the
holder of the shares in the place and stead of the
vendor; and, if they neglect or refuse so to do
they are responsible in damages to such purchaser.
(e) But the directors must, of course, be furnished
with all the materials necessary to enable them to
make the registry. (/") By the 30 & 31 Vict. c. 131,
s. 26, the transfer must be registered on the applica-
tion of the transferrer, in the same manner and subject
to the same conditions as if the application were made
by the transferee. The same Act provides for the
issue of share-warrants to bearer transferable by de-
livery. The directors of a company have no discre-
tionary power, independently of powers expressly given
to them by the articles of association, to refuse to reg-
ister a transfer which has been bona fide made. There-
{c) Re London. Birmingham, &c., L. J., Q. B. igS.
Bank, 34 I . J., Ch. 418. W Catchpole v. Amberg., &c., i ElU
{d) H bbersty V. The Manchester, & Bl. iii.
Sheffield, and Lincolnshire Railway (/) Gregory v. East India Corn-
Company, L. R., 2 Q. B. 59, 471 ; 36 pany. 7 Q- B. 199.
298 LAW OF CONTRACT. [Bk. II. Ch. I.
fore, where a transferee gave an address at which he
was only an occasional visitor, it was held that the
directors were bound to register the transfer, although
the company was at the time in difficulties, and the
shares were sold by the transferrer in order to get rid
<3f his responsibility, (^g) But if, by the deed of settle-
ment, the acceptance of the transferee is made de-
pendent upon the approval of the directors, they need
not give their reasons for refusing to approve ; and in
the absence of evidence to the contrary the court will
presume that they have acted reasonably and bona
fide, {k) '
670. Compulsory registration by mandamus. —
Whenever a company, incorporated by royal charter
or by act of Parliament, has imposed upon it the duty
•of keeping a register and inserting therein the names
of the proprietors or shareholders, the court will grant
a mandamus to enforce performance of the duty, (z)
A company is not bound to register a transfer not in
accordance with the statutable form. The ordinary
form of transfer is by a deed simply informing the
company who goes out as a shareholder, who comes
in, and who is in future liable to calls ; and if the
transfer is incumbered with any trust, or is made by
way of mortgage, or embraces other property, the
company is not bound to receive and register the
transfer, {k) The proper course, when shares in a
{g) In re Smith, Knight & Co., {i) Norris v. Irish Land Company,
Weston's case, L. R., 4 Ch. 20 ; 38 L. 8 Ell. & Bl. 525.
J., Ch. 49, 673. [k] Reg. ,. General Cemetery Com-
(h) Ex parte, Penny, L. R. 8 Ch. pany, 6 Ell. & Bl. 415 ; 25 L. J., Q.
446 ; 42 L. J., Ch. 183. B. 342.
' As to payment of calls, see Wilson v. Wills Valley R. R.
■Co., 2,5 Ga. 446 ; Germantown, &c., R. Co. v. Filter, 60 Pa.
St. 124.
Sec. III.J SALE OF INCORPOREALS. 299
company are made the subject of a settlement in
trust, is for the settler to execute the ordinary deed
of transfer in the simple form given in the statute,
transferring the shares for a nominal pecuniary con-
sideration to the trustees, and to take at the same time
a separate declaration of trust. The transfer deed is
then left with the secretary, and the trustee is regis-
tered as absolute owner. (/) By s. 30 of the Com-
panies' Act, 1862, it is expressly enacted that no
notice of any trust expressed, implied, or construc-
tive, shall be entered on the register or be receivable
by the registrar.
671. Rectification of the register of the share-
holders in registered joint-stock companies. — -By the
25 & 26 Vict. c. 89, s. 35, it is enacted that if the name
of any person is without sufficient cause entered or
omitted to be entered on the register of shareholders,
or if default is made or unnecessary delay (/«) takes
place in entering on the register the fact of any person
having ceased to be a member of the company, such
person, or any member of the company, or the com-
pany itself, may by motion in any of the superior
courts of law or equity, or by application to a judge
sitting at chambers, apply for an order that the register
may be rectified ; and the court may, if satisfied, make
the order. The court may decide on any question re-
lating to the title of any person who is a party to such
proceeding to have his name entered in, or omitted
from, the register, and may in any such proceeding
decide any question that it may be necessary or expe-
dient to decide for the rectification of the register. (??)
{T) Copeland v. North Eastern Rail- Eq. 564 ; lb. 2 Ch. 16 ; 36 L. J., Ch.
•way Company, 6 Ell. & Bl. 277. 32.
(ni) In re Joint Stock Discount («) Re Bank of Hindustan, &c., 34
Company, Shepherd's case, L. R., 2 L. J., Ch. 6og. Russian (Vyksounsky)
300 LAW OF CONTRACT. [Bk. II. Ch. L
A party may be precluded from availing himself
of the jurisdiction of the court for the rectification of
the register by his delay, {o) or if the error he seeks to
rectify has been occasioned by his own misconduct
and negligence (/) in executing stamped transfers in
blank, and handing such transfers with the certificates
of his proprietorship to a third party, and thereby
enabling the latter to commit frauds upon innocent
purchasers, {q) But the negligence must be the im-
mediate and proximate cause of the fraud, (r) Where
an action for calls was pending between a company
and an applicant for an order under this section, the
court refused to make an order for the rectification of
the register by removing one name and inserting an-
other, (s)
In cases of fraud, forgery or mistake, a company
may be justified in removing the names of share-
holders from their register; but when once a person
has been put on the register, and has acquired the
status of a proprietor, the company can not take upon
themselves to deprive the party of his status and
strike him off the register by their own movement in
the matter, and without any claim being put forward
by some one having a better title, (f) If, therefore.
Ironworks Company, ex parte Stewart, (o) Taite's case, L. R,, 3 Eq. 795 ;
L. R„ 1 Ch. 574; 36 L. J., Ch. 738. 36 L. J., Ch. 475. But see, in re
London, Hamburgh and Continental Bowron, Baily & Co., Bailey's case, L.
Exchange Bank, ex parte Ward,L. R. R., 5 Eq. 428 ; lb. 3 Ch. 592 ; 37 L.
:i Ch. 431 ; 36 L. J., Ch. 462. Ibid. J., Ch 670.
Kincaid's case, L. R. 2 Ch. 412 ; 36 (/) Ireland, Bank of, v. Trustees
L. J,, Ch. 499. Overend, Gurney, and Evans' Charities, 5 H. L. C. 410.
Company, Ward and Garfit's case, L. {q) Ex parte Swan, 7 C. B., N. S.
R. 4 Eq. 189 ; 36 L. J., Ch. 416. The 400. 39 L. J., C. P. 113.
Imperial Mercantile Credit Associa- {r) Swan v. The North British
tion, Marino's case, L. R., 2 Ch. 596 ; Australian Company, ante.
36 L. J., Ch. 468, National and (j-) Harris, ex parte, 29 L. J., Ex.
Provincial Marine Insurance Com- 364.
pany, ex parte Parker, L. R., 2 Ch. (/) Martin, ex parte, 2 H. & M. 669.
68.;.
Sec. III.] SALE OF INCORPOREALS. 301
the company put on their register a person having
only an equitable title to certain shares, they can not
take his name off again, except at the instance of the
party having the legal title; for it could never be
permitted that a company, on discovering a flaw in a
shareholder's title, should be at liberty to remove his
name from the register, and treat his shares as
nobody's, and appropriate them and the dividends to
their own use. The position of the company in
jespect of their registered shares is analogous to that
of a tjatlec, who must be taken to hold for the person
whose title he has recognized, until the shares are
claimed by a party showing a better title, (u) But,
if a party has got himself placed on the register by
means of forgery, misrepresentation, or fraud, and has
no title at all, either legal or equitable, to the shares
.standing against his name, the company may remove
Jiis name from the register, (v)
Public companies have been termed the parlia-
mentary book-keepers of the fund entrusted to their
management ; and it is a duty they owe to all persons
interested in the fund, so to keep the account as that
it may distinctly appear at all times what transfers and
assignments have been made ; and, if a stockholder
■can show that on a given day stock stood in his name,
and that it does not now stand in his name, and that
he has not authorized the transfer of it, he may
require the company to replace the stock, (jj/)
672. Registration of forged transfers. — -If a
transfer of shares has been forged, and the forged
transfer entered in the company's books, and the
(«) Ward V. South Eastern Railway North Western Railway Company, 8
Company, 29 L. J., Q. B. 177- W. R. 352.
{v) Cockburn, C. J., Ward v. South (7) Sloman v. Bank of England, 14
Eastern Railway Company, 29 L. J., Sim. 486.
Q. K. 182. Hare v. London and
302 LAW OF CONTRACT. [Bk. II. Ch. I.
name of the shareholder expunged from the registry
on the strength of the forged document, the share-
holder does not thereby lose one iota of his rights
against the company ; he can compel them to restore
his name, and may enforce payment of the dividends
due to him, whether his name has been restored or
net. And, if both the shareholder and the party
claiming under the forged transfer bring actions
against the company for the recovery of the dividends
declared on the shares, the court will not compel
them to interplead to establish their rights, as the
dispute arises out of an alleged negligent act of the
company. If the company has registered a forged
transfer, it has been guilty of negligence, not having
employed a proper secretary, and is answerable to a
purchaser under the forged transfer for the value of
the shares (z) Where trust-money was invested in
railway debentures made payable to three trustees, and
the debentures were left in the hands of one of the
trustees, who received the interest upon them, and
subsequently sold the debentures to a bona fide
purchaser, and forged the names of his co-trustees to
a transfer of the debentures, and the purchaser pre-
sented the debentures at the transfer-office of the
railway company, and got them transferred into his
own name, it was held that the transfer was null and
void, and that the trustees were still entitled to the
debentures ; and the Court of Chancery ordered them
to be delivered up to the trustees, and directed the
transfer and entry thereof in the company's books to
(s) Dalton V. Midland Railway L. R., 3 Q. B, 5S4 ; 37 L. J., Q. B.
Company, 12 C. B. 458 ; 13C.B.474. 176. Hart v. Frontino and Bolivia,
Ilildyard v. South Sea Company, 2 P. &c., Co., L. R., 5 Ex. in ; 39 L. J.,
\\'ms. 75. In re Bahia and San Fran- Ex. 93 Johnston v. Renton, L. R., c,
Cisco Railway Company, in rcTiitiin, Eq. 181.
Sec. hi.] sale OF INCORPOREALS. 305
be cancelled. " No laches," it was observed, "could be
imputed to the trustees for suflFering one of their
number to hold the debentures ; for some one of
them must hold them, unless they are deposited with
bankers, or placed in a box secured by a number of
different locks of which each trustee shall hold one
of the keys, and negligence can not be imputed to
trustees for not taking such precautions as these." (a)
Where stock in a railway company stood in the
names of two proprietors, and the one sold the stock
and signed a transfer of the shares, and forged the
signature of his co-proprietor, and the company
registered the forged transfer and paid the purchaser
the dividends, and the forgery was not discovered for
many years, it was held that the company was never-
theless bound to replace the stock. (Ji) If the forgery
has been occasioned by the plaintiff's gross negligence
and misconduct, amounting to an estoppel or a ratifi-
cation, (c) or if he has acted so as to be particeps
criminis, he will be precluded from setting up or
relying upon the forgery; (d^ but the negligence or
misconduct must be the proximate cause of the
forgery and the direct means of effecting it. (e) '
(a) Cottam v. Eastern Counties (c) Ireland, Bank of, v. Evans'
Railway Company, I John & H. 247 ; Charities, 5 H. L. C. 413.
30 L. J., Ch. 217. (<^) Swan ex parte, 7 C. B., N. S.
(A) Taylor v. Midland Railway 434 ; 30 L. J., C. P. 113.
Company, 28 Beav. 287 ; 29 L. J., Ch. (e) S«an v. North British Australian
733. Sloman v. Bank of England, 14 Company, anie.
Sim. 475.
' As to transfers of stock, see Sprague v. Cocheco Mfg.
Co., 10 Blatchf. 173 ; Keeney v. Globe Mill Co., 39 Conn. 145 ;
Smith V. American Case Co., 7 Lans. 307 ; State v. New-
Orleans Gas, &c. Co., 25 La. An. 213; Bruce v. Smith, 44 Ind.
I ; Upton V. Burnham, 3 Biss. 431 ; Ellison v. Schneider, 25
La. An. 4S5 ; Lowry v. Commercial, &c. Bank, Taney, 310;,
Weiser v. Smith, 22 La. An. 156; State v. Rombauer, 46 Mo.
T55-
304 LAW OF CONTRACT. [Bk. II. Ch. I.
673. Transfers of stock in the public funds dx&
regulated by the 33 & 34 Vict. c. 71, which also
provides for the issue of stock certificates transferable
by delivery. Persons to whom transfers of stock are
made in the books of the Bank of England are re-
quired to underwrite their acceptance of the transfer ;
but their neglect so to do does not enable the trans-
ferer to treat the transfer as a nullity. (/") '
674. Specific performance of contracts for the
purchase and sale of stock and shares. — The court
will not decree specific performance of a contract for
the sale of stock in the public funds generally, as one
portion of stock is as good as another, and it must be
the same thing to the purchaser, whether he receives
the stock agreed to be sold to him, or the money that
will purchase it in the market. The purchaser, there-
fore, is left to his remedy by way of action for dama-
ges, [g) But if the contract is for certain specific
•tock or shares in a particular railway company or
joint-stock company, the Court will decree a specific
performance as against the vendor, provided the rights
of third parties have not in the meantime intervened.
(A) A sale of an annuity payable out of the divi-
dends of particular stock, (z) and of the right to divi-
dends upon a bankrupt's estate, have been enforced in
(/) Foster v. Bank of England, 8 "Stocks," pi. g. i P. Wms. 570.
<2. B. 705. As to the ordinary mode {h) Doloret v. Rothschild, i Sim. &
of transferring stock, see Keyser's Law Stu. 5g8.
of the Stock Exchange. ({) Withy v. Cottle, Id. 174 ; i Turn.
(g) Cud V. Rutter, 20 Vin. Abr. tit. & Russ. 78.
' Where defendant contracted to deliver to C, plaintifFs
assignor, $10,000 current funds of the United States, at 15
cents on the dollar in ten months from date ; held that the
contract was to deliver |io,ooo legal tender notes for $1,500
in specie, and was a valid contract, for a breach, of which de-
fendant must answer. Cook v. Davis, 53 N. Y. 318.
Sec. III.] SALE OF INCORPOREALS. 305
specie, {k) There is no analogy, it has been observed,
between a contract for the purchase and sale of a
quantity of three per cent, consols, or any other stock
generally, which is always to be had by any person
who chooses to apply for it in the market, and where
the vendor fulfils his contract by tendering any stock
of the description bargained for, and a contract for
certain specific numbered railway shares, mining
shares, or scrip. (/) Where certain numbered railway
shares were sold by auction, and the purchaser paid
his purchase-money, but did not take a transfer of the
shares, and then sold to a third party who refused to
register himself as owner of the shares, and calls were
made on the shares which were left unpaid, it was held
that the original vendor was entitled to -a decree for
specific performance against the original purchaser.
(m) The court will not enforce performance of a
contract for the purchase of scrip certificates in pro-
jected companies, and will not, when the company
has been completely registered or incorporated, com-
pel the purchaser to take a transfer of the correspond-
ing shares from his vendor, or to indemnify the latter
from calls subsequently made, {n) Nor will specific
performance be decreed, where the directors, under the
(k) Adderley V. Dixon, iSim.&Stu. name of the ultimate purchaser has
610. been supplied to the broker of the
(/) Duncuft V. Albrecht, I2 Sim. igg. original vendor, for the purpose of be-
(m) Shaw V. Fisher, 12 Jur. Chan, ing inserted in the transfer deed to be
1:52. And see Paine v. Hutchinson, executed by the latter. Hawkins v.
L. R., 3 Eq., 257; Id. 3 Ch. 388 ; 36 Maltby, L. R., 4 Eq. 572 ; 37 L. J.,
L. J., Ch. i6g ; 37 Id. 485. But Ch. 58. But it would seem that spe-
doubts have been raised whether the cific performance will be decreed in
original vendor is entitled to specific such a case. In re Overend, Gurney
performance against the ultimate pur- & Co., Musgrave and Hart's case,
chaser, where, in accordance with the L. R., 5 Eq. 193 ; 37 L. J., Ch. 161.
practice of the Stock Exchange, there (k) Jackson v. Cocker, 4 Beav. 5g.
iiave been intermediate sales without Columbine v. Chichester, 2 Phil. Ch.
the execution of any transfer, and the C. 2.
II. — 20
3o6 LAW OF CONTRACT. [Bk. II. Ch. I.
powers conferred by the deed of association, refuse to
assent to tlie transfer, (o) If a party has signed an
apphcation for shares in a registered joint-stock com-
pany, and shares have been allotted to him in conse-
quence of his application, the Court of Chancery will
compel him to sign the written acceptance of the
transfer, and pay the calls due on the shares. (/) '
(o) Berminghara v. Sheridan, 33 {p) New Brunswick, &c., Company
Beav. 660. V. Muggeridge, 4 Drew, 686.
' In an action by a purchaser of stock, induced by fraud-
ulent representations as to its value, the measure of damages
is tlie difference between the real and the represented value of
such stock. But if the stock were absolutely worthless, the
market value is of no weight upon the question of value. A
purchaser of worthless stock, after discovering its worthless-
ness, is not bound to mitigate the loss of the fraudulent seller
of the stock, by himself, by fraudulent representations, selling to
an innocent purchaser; Hubbell v. Meiggs, 50 N. Y. 480; and
see Hager v. Thompson, i Black. 80. Stocks are articles of
commerce passing from hand to hand like commercial paper,
and the doctrine of constructive notice by lis pendens is not
applicable to them. Leitch v. Wells, 48 N. Y. 585 ; and see
Currie v. White, 45 N. Y. 822 ; Field v. MontmoUin, 5 Busli.
(Ky.) 455. They are in the nature of choses in action. Arnold
V. Ruggles, I R. I. 165 ; Albert v. Savings Bank of Baltimore,
I Md. Ch. 407. A sale of corporate stock carries dividends-
not yet payable. Burr(jughs v. N(3rth Carolina R. R. Co., 67
N. C. 376; March v. Eastern R. R. Co., 43 N. H. 515; Kane
v. Bloodgood, 7 Johns. Ch. 90. But one selling such stock be-
fore his certificate therefur is issued, agreeing to give the buyer
his certificate when lie gets it, is not bound to pay assess-
ments upon the shares after the sale, but before receiving the
certificate; Brigham v. Meade, 10 Allen, 245; Merrimac
Mining Co. v. Levy, 54 Pa. St. 227. In Sampson v. Shaw, loi
Mass. 145, the rule as to wagers was construed to apply to an
agreement concerted to create a " corner" in a certain stock.
Under such an agreement the parties are not partners, and
one can only recover from the other an unexpended
balance of monies advanced, in an action for money had and
received; and see Boynton v. Woodbury, Id. 346; Central R.
R. Co. V. Collins, 40 Ga. 582 ; Stapples v. Gould,. 5 Seld
Sec. III.J SALE OF INCORPOREALS. 307
520. As to when a contract for the sale of certain stocks enu-
merated in the New York statute relative to stock-jobbing was
absolutely void ; see Stebbins v. Leowolf, 3 Cush. 137. Such
act does not apply to sales of distributive shares in the effects
of a corporation that has been dissolved. James v. Woodruff,
10 Paige, 541. This act was repealed, however, by the act of
1858, 2 R. S. 5th ed. 980, which provides that such sale or
transfer of stocks shall not be void or voidable for want or
non-payment of any consideration, nor because the holder was
not the owner of the same at the time the contract of sale was
made. As to a contract to pay for goods in a certain kind ot
stock, see Eastern R. R. Co. v. Benedict, 15 Gray, 289. Stock-
brokers, when ordered to purchase shares of a certain stock,
have no right to purchase from themselves, or if ordered to
sell, to sell it to themselves, without disclosing to their prin-
cipal the fact that they are so dealing with him. New York,
&c., Ins. Co. V. National, &c., Ins. Co., 14 N. Y. 85. A mere
order to a broker to buy stock, means to buy it according to
the rules or customs of the market. Horton v. Morgan, 19 N.
Y. 170. If he is to buy on a margin, he may take a transfer
of the stock to himself without separating it from similar stock
standing in his own name, and hold it as a pledge for the
advance he has made upon it ; Id. ; but in an action against a
broker for a wrongful sale of stock purchased by him for the
plaintiff, under an agreement that the plaintiff should keep a
margin of ten per cent, upon the par value, above the market
rate of the shares in the broker's hands, which plaintiff failed
to do, it appearing that the shares fell in price, upon which
plaintiff was notified and required by defendant to furnish
money sufficient to make his margin good, upon his failing
to do which, defendants ^old out the stock at the stock ex-
change without further notice to plaintiff, held, that the
parties were not bound as pledgor and pledgee, and that the
plaintiff having failed to keep his contract, the defendants had
a right to sell the stock; Hawks v. Drake, 49 Barb. 186;
Markham v. Jaudon, Id. 462. And as to pledges of stock, see
Seaman v. Reeve, 15 Barb. 424.
3o8 LAW OF CONTRACT. [Bk. II. Ch. II.
CHAPTER II.
THE CONTRACT OF LETTING.
SECTION I.
LANDLORD AND TENANT.
675. Leases. — A lease is a contract whereby the
temporary use and possession of a house or land are
granted by the owner to another for a stipulated or
implied remuneration. He who grants the possession
and use of the property to be enjoyed for hire
is called the lessor or landlord ; and he who
has the enjoyment of it, paying the rent or hire, is
called the lessee or tenant. In the Roman law the
former was called "locator," the latter "conductor;"
and the contract itself, " locatio rei." In the French
law it is termed " bail a loyer," or a bailment for hire ;
the lessor is called the " bailleur," or bailor, and the
hirer the " preneur," or " locataire." (a) If the land or
realty is granted by deed to be enjoyed for a term
without any payment of rent by the grantee, the grant
amounts to a commodatum or gratuitous loan of the
use of the land, and does not create a contract of let-
ting and hiring between the parties. On the other
hand a demise for a term of years, if it is by deed, and
for the whole term which the lessor has in the prem-
ises, operates as an assignment, (dy
(a) Encyc. du Droit, tit. Bail. (d) Beardmore v. Wilson, L. R., 4
C. P. 57 ; 38 L. J., C, P. 91.
' No particular form of words is necessary to constitute a
Sec. I.] LANDLORD AND TENANT. 309
676. Agreements for leases. — We have already seen
that all agreements for leases must be authentica-
ted by some note or memorandum, signed according
to the provisions of the Statute of Frauds. ^ We have
also seen that all leases exceeding three years in dura-
tion, required by the Statute of Frauds to be evidenced
by a signed writing, must now be authenticated by
deed. Every lease, therefore, in writing, not under
seal, for a term exceeding three years in duration,
amounts only to an agreement to grant a lease for
the term specified, (c) But, if an oral agreement for
a lease has been entered into, and the intended lessee,
relying on the promise of the lessor to grant the lease,
takes possession of the land, and expends money in
building, draining, and improving, and there is, there-
fore, a part performance of the contract, the court will
enforce the oral contract, and compel the lessor to
grant the lease agreed upon, on the ground that, by re-
fusing to grant the lease and give the party possession
in execution of the contract, he is guilty of a direct
fraud, which ought to be relieved against, {d^ But,
(f) Bond V. Rosling, Parker v. Tas- {d ) Morphett v. Jones, t Swanst.
■well, Tidey v. MoUett, ante. Bur- 172. Gregory v. Mighell, 18 Ves. 328.
ton V. Reevell, 16 M. & W. 307 ; Mundy v. Joliffe, 5 Myl. & Cr. 167.
16 L. J., Ex. 85. Rollason v. Leon, 7 Parker v. Smith, i Coll. Ch. C. 608.
H. & N. 73 ; 31 L. J., Ex. 96.
lease, but when the parties are not together, the acceptance
must be manifested by some appropriate act, and the manifesta-
tion put in the proper way of reaching- the proposer ; a mere
mental determination to accept, not indicated or sought to be
indicated by speech or act, is not such an acceptance. White
V. Corlies, 46 N. Y. 467. A lease is a contract for the posses-
sion and profits of land and tenements on the one side, and a
recompense of rent or other income on the other, and there
may be a lease without any reservation of rent. Failing v.
Schenck, 3 Hill, 344; Hunt v. Comstock, 15 Wend. 667.
' Ante, vol. i, § 201.
310 LAW OF CONTRACT. [Bk. II. Ch. II.
if there is nothing more than an oral agreement for a
lease and a taking of possession by an intended lessee
without any improvement made on the land, the oral
contract can not be enforced.' When, however, a
party has actually been let into possession under an
oral contract of demise, and rent has been paid to and
received by the landlord, a tenancy from year to year
' An agreement to give a lease is not a lease ; to constitute
a lease it must be accompanied by actual possession. Becker
V. De Forest, i Sweeney, 528. But words of demise in a writ-
ing will constitute a lease, even if it also contain a covenant
for a further lease, if accompanied by possession. Jackson v.
Kisselbrack, 10 Johns. 336 ; Jackson v. Van Hoesen, 4 Cow.
325 ; Hallett v. Wylie, 3 Johns. 44. But see Jackson v. Mon-
crief, 5 Wend. 26. It has been held that an agreement to
construct a wharf, to be occupied when finished by grantee, at
a stipulated rent, accompanied by words of present demise,
will operate as a lease. People v. Kelsey, 14 Abb. Pr. 372.
As to whether mere receipts will operate as leases, see Ryan v.
Ward, 48 N. Y. 203 ; Niles v. Culver, 8 Barb, 205 ; Berrian v.
The Mayor, &c., 48 Rob. 539 ; Coon v. Knapp, 8 N. Y. 402 ;
Graves v. Friend, 5 Sandf. 568; Kellogg v. Richards, 14 AVend.
116. In Gibbons V. Dayton, 4 Hun. 451, the following receipt —
" New York, Sept. ist, 1871. Received from Mrs. jNIary Mer-
riam the sum of sixty dollars, for one month's rent only, in
advance, for second floor rooms in house No. 165 Bleecker-
street, ending October i, 187 1, at noon. It being expressly
understood between us, the tenant and agent, or landlord
mentioned in this receipt, that this term of hiring and letting
is for one month onl)-, and will expire as aforesaid. $60.
Thomas J. Gibbons" — was held to indicate a tenancy from
month to month. In Gartside v. Outley, 58 111. 211, an instru-
ment conveying premises to the grantee for the purpose of
mining coal "so long as there is coal to mine thereon," em-
bracing also provisions as to back rents, forfeitures, &c., &c.,
was held to be a lease and not a servitude. In Shaw v.
Farnsworth, 108 Mass. 358, a proposition by a tenant at will
to " take the house for three years from " a certain day in the
future (if the owner would make certain alterations, additions
or repairs, specified), was construed to be a present demise to
commence in the future, and not a mere agreement to execute
a lease at a future time.
Sec. I.] LANDLORD AND TENANT. 311
between the parties arises by implication of law. From
«very contract to grant a lease there is an implied
agreement by the party contracting to grant the lease
that he has a good right and title so to do. {e)
677- Present demises, — No precise words or tech-
nical form of language are requisite to constitute a
present demise. An estate or term of years in the
land may be created and vested in a third party, by
giving him a license to enjoy a house, or making an
agreement with him that he "shall reside " therein,
provided some certain rent or specified service is re-
served, or something is given as the consideration of
the contract, and possession is given and accepted
under the contract, (y) If there are any words show-
ing a present intention that one is to give and the
other to have possession for a determinate term, a
tenancy is created ; and this intention may be mani-
fested by expressions contained in a series of letters
as well as by the formal words of a single instrument.
( g) And on the other hand, although there be pre-
cise and formal words of present demise, yet, if there
appears from the face of the entire contract a contrary
intention, the instrument will be considered only an
agreement for a future lease, and will not operate as a
present demise, {fi)
It is a rule of law that, whatever words are suffi-
cient to explain the intent of the parties that the one
shall divest himself of the possession and profits of
the land, and the other come into them for such a de-
terminate time, for a certain hire or rent, such words,
(e\ Stranks v. St. John, L. R., 2 C. P. I Q. B. 506.
376 ; 36 L. J., C. P. 118. (!i) Morgan v. Bissell, 3 Taunt. 72.
(/) Co. Litt.45b. Bac. Ab. Leases Doe v. Powell. 8 Sc. N. R. 687. Gore
<K.) Right V. Proctor, 4 Burr. 22og. v. Lloyd, 12 M. & W. 478. Doe v.
{g) Chapman v. Bluck, 5 So. '531 ; Clark, 7 Q. B. 211. Taylor v. Cald-
4 Bing. N. C. 187. Jones V. Reynolds, well, 3 B. & S. 826.
312 LAW OF CONTRACT. [Bk. II. Ch. IL
whether they run in the form of an assignment, or of
a license, covenant or agreement, are of themselves
sufficient, and will in construction of law amount to a
lease for years, as effectually as if the most proper and
pertinent words had been made use of for that purpose.
(z) A lease may be made either for life, or for
years,' or at will ; and a contract for letting and hiring
of land will, if it can not operate as an assignment,
be supported as a lease, although it was intended to
pass all the lessor's interest. (/§) Whenever the house
or land of one man has been occupied and used by
another, the prima facie presumption is that the use
and occupation are to be paid for ; and the landlord
is entitled to maintain an action to recover a reason-
able hire and reward for the use of the land, unless
the tenant can show that he entered into possession
of the property under circumstances fairly leading to
an opposite conclusion. A landlord, on the other
hand, who has permitted a tenant to occupy property,
and has received rent from the latter for such use and
occupation, will be bound by his own acts, and can
not afterwards treat such tenant as a trespasser and
turn him out of possession without a proper notice
to quit. But if the tenant is a pauper who has
been provided with a dwelling-house by the parish^
or an old servant who has been accommodated with a
cottage and garden by his master, or the son or other
near relation of the owner, the possession and occupa-
tion do not raise a presumption of a contract of letting
(/) Bac. Abr. Leases (K.) Shep. 143.
Touch, ch. 14,272. Bro. Abr. (Lease), {k) Pollock v. Stacey, 9 Q. B. 1035 ;
pi. 60. Cottee V. Richardson, 7 Exch. 16 L. J., Q. B. 132.
' Leases/or years, although chattels real, are no longer
deemed terms as at common law, but estates. Averill v.
Taylor, 8 N. Y. 44.
Sec. I.] LANDLORD AND TENANT. 313
and hiring between the parties. The transaction
amounts only to a commodatum, or gratuitous loan of
the property for use. The possession of the tenant is
the possession of the landlord or owner ; and the
former may at any time be removed at the will and
pleasure of the latter. (/)
678. Proof of the terms of holding. — If a tenancy
is actually created by entry on the land and payment
of rent, the terms of the tenancy may be proved by
oral testimony. Where land was about to be let, and
printed papers of the terms of holding were distributed
among parties, who assented verbally to the printed
terms, and subsequently became tenants, it was held
that a witness might look at the printed paper to
refresh his memory when he was asked to prove the
terms of the holding from recollection, {m) '
679. Lease by estoppel. — We have already seen
that no man is permitted to allege or prove anything
in contradiction or contravention of his own deed.
Where, therefore, a man grants a lease under seal, he
is not permitted to avoid his own grant by proving
that he had no interest in the demised premises, unless
he is a trustee for the public, deriving his authority
from an Act of Parliament. («) As between him
and his lessee the lease operates by way of estoppel.
" And if one makes a lease for years, by indenture, of
lands wherein he hath nothing at the time of such
lease made, and after purchases those very lands, this
shall make good and unavoidable his lease, as well as if
(/) Post. s. 3. Bertie v. Beaumont, (ni) Lord Bolton v. Tomlin, 5 Ad. &
16 East, 33. Hunt v. Colson, 3 M. & E. 856.
Sc. 791. Doe V. Stanton, 2 B. & Aid. (k) Fairtitle v. Gilbert, 2 T. R. itx).
' Wolf V. Mitchell, 24 La. Ann. 433 ; Lammon v. Douglas,
50 Mo. 434-
314 LAW OF CONTRACT. [Bk. II. Ch. II.
he had been in the actual possession and seisin thereof
at the time of such lease made, because he having by
indenture expressly demised those lands, is, by his
own act, estopped and concluded to say he did not
demise them ; and if he can not aver that he did not
demise them, then there is nothing to take off or im-
peach the validity of the indenture, which expressly
affirms that he did demise them ; and consequently
the lessee may take advantage thereof whenever the
lessor comes to such an estate in those lands as is
capable to sustain and support that lease." (o) And
when the estoppel becomes good in point of interest,
the heir of the lessor, and all persons claiming under
the lessor by assignment or otherwise, are bound by
the estoppel. (/) Upon the execution of the lease
there is created, in contemplation of law, a reversion
in fee simple by estoppel in the lessor, vv^hich passes
by descent to his heir, and by purchase to an assignee
or devisee. So long, therefore, as a lessee enjoys
everything vi^hich his lease purports to grant, he has
no concern with the title of the lessor, or the heir or
assignee of the lessor. (^) If, however, it appears by
the recitals of the lease that the lessor had no interest
in the land, or that he had only an equitable interest,
at the time of the demise, there will be no estoppel.
(r) The lessee is also in like manner estopped from
denying the lessor's title to grant the lease, and setting
up such want of title as an answer to an action for the
(o) Bac. Abr. Lease (O). 758 ; 6 H. & N. 135 ; 28 L. J., Ex.
(^) Trevivan v. Lawrence, i Salk. 306; 2g Id. 485.
■276 ; 2 Smith's L. C. 5th ed. 640. (/■) Pargeter v. Harris, 7 Q. B. 708 ;
Coodtitle V. Morse, 3 T. R. 371. 2 15 L. J., Q. B. 117. Greenaway v.
Wms. Saund. 418, a. Doe v. Thomp- Hart, 14 C. B. 340. But see Morton
son, 9 Q. B. 1043. V. Woods, L. R., 3 Q. B., 658 ; 4Q.B.
(q) Cuthbertson v Irving, 4 H. & N. 293 ; 37 L. J., Q. B. 242 ; 38 Id. 81.
Sec. I.] LANDLORD AND TENANT. 315
rent by the lessor or his assignee ; {s) for the law will
not suffer the tenant to abuse a possession gained by
the act and confidence of the landlord, and turn it to
the injury of the latter, (f) ' But he may show that
(j) Cuthbertson v. Irving, 6 H. & N. Phipps v. Sculthorpe, I B. & Aid. 50.
J35 ; 2g L. J., Ex. 485. Levy v. Lewis, 28 L. J., C. P. 144 ; 30
(f) Dolby V. lies, 11 Ad. & E. 335. L. J., C. P. 142.
' And see Blakemore v. Tuber, 22 Ind. 466; Wa]rath v.
Redfield, 18 N. Y. 457. But a lessee is not estopped by the
acceptance of a deed by his lessor, to deny the title of the
grantor in such deed. In this case it did not appear that pos-
session had been taken under the deed. Schuman v. Garratt,
16 Cal. 100. A tenant acquiring his landlord's title, by a pur-
chase under a judgment subsequent to the demise, may set it
up against him; Nellis v. Lathrop, 22 Wend. 121 ; and if the
lessor's interest is sold, and the lessee attorns to the purchaser,
who acquires the title, the lessee«may set up the divesting of
the title in an action by the lessor for rent accruing after.
Evertson v. Sawyer, 2 Wend. 507 ; Gautwell v. Miller, i Sandf.
516; Jackson v. Rowland, 6 Wend. 666. Where a per-
son entered into possession of land under one landlord,
and was then induced to attorn to another under the be-
lief and upon the claim and representation of such other
person that he had the title to the premises, and when
sued in ejectment permitted his second landlord to de-
fend in his name, under an agreement to indemnify him
against costs, and held possession for him until evicted
in the suit, whereupon he paid rent to the original landlord,
who was plaintiff in the ejectment suit, held, that a recovery
for rent in a suit against the tenant by the heirs of the second
landlord, was erroneous, and that to sanction such recovery
would be giving a premium to falsehood and subject a tenant,
who had done no wrong, to a double payment of rent.
Anderson v. Smith, 63 111. 126. The maxim that a tenant shall
not dispute the title of his landlord, has no just application
to such a case. A person having entered into possession of
land under one, and who was induced to attorn to another
under the belief and upon the claim of the latter that he has
title, when sued for the rent by the heirs of such second
landlord, may show in defense that his attornment had been
procured by a false claim of title, and that the rent had been
demanded and paid to the landlord from whom he derived his
3i6 LAW OF CONTRACT. [Bk. II. Ch. IL
the lessor's title has expired ; {u) ' and if he is evicted
and deprived of the use and enjoyment of the demised
premises by some person claiming by title paramount,
(u) Claridge v. Mackenzie, 4 Sc. E. 157. Downs v. Cooper, 2 Q. B.
N. R. 811. Doe V. Skirrovv, 7 Ad. & 263.
possession, as the rightful owner. Stobie v. Dills, 62 111.
432-
' He may show that it has expired by reason, by limitation,
or by conveyance, or by judgment or other operation of law ;
and this although the tenant does not claim under that title,
and though the title be outstanding in the trustee of the les-
sor. Hoag V. Hoag, 35 N. Y. 469. In order that a defendant,
who has taken a lease from the plaintiff, may avail himself of
the rule that a tenant who did not enter under the lease, but
was in possession at the time it was made, is not estopped
from disputing his landlord's title, he must prove paramount
title in himself, or those under whom he claims. It is not
enough to dispute the title by averment. The production of
a lease which is valid as a contract between the parties makes
out a prima facie case for the landlord. Peralta v. Ginochio,
47 Cal. 459. A tenant is estopped by a lease which he takes
when in possession, unless he proves paramount title in him-
self or another, under whom he claims. Holloway v. Galliac,
Id. 474. A person in possession of land who takes a lease
from another who has bought and claims the land leased, is
estopped from denying the title of such other person, or
showing that such person was but trustee of the land for him.
Lucas V. Brooks, 18 Wall. 436. The tenant can not, during
the term of a lease, hold adverse possession against the land-
lord by the mere intention so to hold, and without the doing
of some act which would amount to adverse possession by a
tenant who enters under a lease. Abbey Homestead Ass'n v.
Willard, 48 Cal. 614. It was contended that a new trial was
taken in the ejectment suit after the eviction of the tenant,
which the record failed to show. But it seems that such fact
would not affect the merits of the case. Upon eviction in the
suit, the tenant was liable for mesne profits, and having no
guaranty of protection against such liability, and the land-
lord having failed to establish his claim by which he procured
the attornment, the tenant was justified in regarding it as
groundless, and protecting himself from a prosecution for
mesne profits. Id. 126. It seems that a tenant may show, in
defense of a suit by his landlord for rent, that the landlord's
Sec. I.] LANDLORD AND TENANT. 317
the eviction is pleadable in bar to a demand of the
rent ; but it must be an actual, and not a mere con-
structive eviction, (v) An attornment to a receiver ap-
pointed by the court constitutes a tenancy by estoppel
between the tenant and the receiver which the court
applies for the purpose of collecting the rents till a
decree can be pronounced, taking care that the tenant
shall be protected both while the receiver continues
to act and when he is withdrawn, {.y) ^
680. Demises by agents. — If the steward of a
person not named says to an occupier, " I let you into
possession in the name of the landlord," he may
afterwards show by parol evidence who that landlord
is, and it is not open to the tenant to dispute the title
of the unnamed landlord. {£) Where an agreement
was entered into by an agent in his own name for
the letting of a house, and the rent was made payable
to the agent in his own name, but at the commence-
ment of the agreement he described himself as agent
for the proprietors, it was held that he might show
■who were the proprietors at the time the agreement
{v) Delaney v. Fox, 2 C. B. N. S. 602.
768. (z) Tindal, C. J., Fleming v. Good-
(j) Evans v. Mathias, 7 Ell. & Bl. ing, 10 Bing. 550.
title has expired, or that a claim had been made on the tenant
by one who has the real title, and can enforce payment of the
rents from him in an action for use and occupation, if there
has been a fresh demise, or an arrangement equivalent to
one, or in a proceeding to recover mesne profits, and the ten-
ant has submitted to such claim. But in such cases the
burden of proof is on the tenant. Anderson v. Smith, (>-3, 111.
126.
' And see Phillips v. Robertson, 2 Overt. 399 ; Robinson
V. Hathaway, I Brayt. 151; Moore v. Beasley, 3 Ham. 294;
Hamel v. Lawrence, i A. K. Marsh, 330 ; Reed v. Sharpley, 6
Vt. 602; Moshier V. Reding, 3 Fairf. 478; Drane v. Gregory,
3 B. Mon. 619; Shelton v. Doe, 6 Ala. 230.
3i8 LAW OF CONTRACT. [Bk. II. Ch. IL
was signed, and that the tenant was estopped from
disputing their title, (a) A land-agent, or collector
of rents, has, as such, no impHed authority to grant
leases, (d) '
68 1. Ascertainment and identification of the
subject-matter of the demise. — It may always be
shown by parol evidence what was, and what was not,
parcel of the demise, and intended to pass to the
lessee by the deed. (<:) ^ If a general and compre-
hensive term and description be used in a lease, all
the things usually comprehended under such general
term and description will pass to the lessee, unless the
surrounding circumstances and the relative situation
and interests of the contracting parties plainly show
that such could not have been their intention. By
parol evidence of extrinsic circumstances, a general
and comprehensive term may be controlled and
restricted so as to pass much less than is ordinarily
comprised under the common legal acceptance of the
term, and, on the other hand, a particular and limited
term and description may be extended and enlarged,
so as to comprehend and include much more than it
generally comprises, in order to effectuate the plain
and obvious meaning of the parties.
{a) Per Mellor, J., Prescott v. In- (b) CoUen v. Gardner, 21 Beav. 540.
gram, June 23r(l, 1S64. P'leming v. (c) Skipwith v. Green, 8 Mod. 311.
Gooding, 4 M. & Sc. 455.
' In New York the agent's authority must be in writing.
Post V. Martens, 2 Rob. 437; Porter v. Bleiler, 17 Barb. 149;
and see Worrell v. ^Nlunn, 5 N. Y. 229; Wilson v. Lester, 64.
Barb. 431; Dean v. Roesler, i Hilt. 420; see as to ratifica-
tion. Commercial Bank v. Warren, 15 N. Y. 577.
* In Gary v. Thompson, i Daly 35, where plaintiff, by a
sealed lease, rented tn defendant two houses, describing them
as " Nos. 162 and 164 Seventh avenue,'' parol evidence was ad-
mitted to show that a certain rear yard or lot passed with the-
demise of tlic two houses.
Sec. I.] LANDLORD AND TENANT. 319
A lessor demised a messuage and piece of ground
with the appurtenances to the defendant ; and the
latter, after he had taken possession, laid claim to a
cellar under the messuage, on the ground that it had
passed to him under the general description contained
in his lease ; and it was held that the lessor might
show, through the medium of parol evidence, that, at
the time of the demise, and previous thereto, the
cellar had been severed from the messuage, and used
as a wine cellar by a wine merchant under a separate
and distinct lease, at a separate rent, which was known
to the defendant at the time of his acceptance of the
lease, and, therefore, that it could not have been the
intention of the parties that the cellar so occupied by
a third party should pass to him under the general
description of the messuage and ground thereunto
adjoining, (af ) Under the word " cottage " or " house,"
on the other hand, land may pass, if it can be shown
that the land has for a length of time been used and
occupied with the cottage or house at one entire rent,,
and has been commonly reputed to be part and parcel
thereof. " Being found to be all one, it passeth well
by the lease." Divers things that, by continual enjoy-
ment with the principal thing demised, have by com-
mon reputation been deemed to belong to it, may well
pass as part and parcel of the principal thing demised,
if extrinsic circumstances show that such must have
been the intention of the parties, (e) "Whenever
there is a sufficient description to ascertain the thing
demised, a part of the description which is inaccurate
may be rejected." (/")
{d) Doe V. Burt, I T. R. 703. Bryan Ongley v. Chambers, i Bing. 496-499.
V, Wetherhead, 3 Cro. 18. Kerslake But see Jones v. Whelan, 16 Ir. C. L.
V. White, 2 Stark. 508. Martyr v. R. 495.
Lawrence, 10 Jur. N. S. 859. (/) Doe v. ('.lUow.y, 5 B. & Ad.
{e) Gennings v. Lake, 3 Cro. 169. 45 ; 2 N. & M. 241.
320 LAW OF CONTRACT. [Bk. II. Ch. II.
682. Things appurtenant. — When a man grants
a thing to be used for hire, he grants it with all such
appurtenances and accompaniments as properly belong
to it, and with all such rights of way as are necessary
to enable the hirer to have that use and enjoyment of
the thing demised for which the hire is agreed to be
paid, i^g) But a grant of realty, to be used and en-
joyed by the grantee for a terra for rent or hire, trans-
fers to the latter a right only, as we shall presently
see, to use the subject-matter of the demise in the
way in which it has been previously used and enjoyed.
Many things, therefore, which pass by a grant in fee,
so as to give the grantee an absolute dominion over
them, do not pass by a lease so as to give the lessee a
right to use and enjoy them as part of the proceeds
and profits of the subject-matter of the demise. The
lessee, for example, has a right only to the casual
profits of trees ; he has no right to cut them down
and sever them from the freehold and inheritance.
He has a right to the profits of mines and quarries
opened at the time of the demise, but has no right to
open fresh mines and quarries where none before
existed.
683. Commencement and duration of leases. —
Leases for lives, as well as leases for terms of years,
may now be made to commence from a day that is
passed, or from a day to come, as well as from the day
of the making of the lease. If the lease is limited to
commence "from the date," or "from the day of the
date, " the words are either inclusive or exclusive, ac-
cording to the context and subject-matter of the
written instrument, and the apparent intention of the
(g) Morris v. Edgington, 3 Taunt. 290 ; 2 B. & C. 96. Maitland v. Mac-
31. Kooystra v. Lucas, 5 B. & Aid. kinnon, i H. &. C. 607 ; 32 L. J., Ex.
834. Harding v. Wilson, 3 D. & R. 49.
Sec. I.] LANDLORD AND TENANT. 321
contracting parties. (Ji) ^ A lease " from the day of
the date,"' and "from henceforth," is the same thing;
if, therefore, a lease be dated the ist of December, and
be granted to commence " from henceforth," and be
sealed and delivered on the 12th of December, the
lease commences in contemplation of law from the
I St of December, (z ) If no time is mentioned for the
commencement of the lease, or if the date is an im-
possible date, the term will be deemed to begin from
the day of the delivery of the deed, or of the making
of the demise, if extrinsic circumstances do not rebut
such a presumption, (z^)' The commencement of the
term is necessarily controlled and regulated by extrin-
sic circumstances (such as the occupied or unoccupied
state of the demised premises, the surrender or deter-
mination of previous leases, and the period of the
termination of an existing tenancy), as well as by the
express terms and language of the deed. Where a
lease was dated the 25th of March, 1783, and the term
was granted to commence "from the 25th of
March now last past," and it was proved that the
deed was not executed until some time after the
day on which it was dated, it was held that the term
commenced on the 25th of March, 1783, and not on
the 25th of March, 1782. (/) If the land is demised
" for a year, and so on from year to year," or " for a
year and afterwards from year to year," this is a lease for
{h) Pugh V. Leeds, Duke of, 2 Cowp. 7 D. & R. 507. Higham v. Cookes, 4
714. And see ante. Leon. 144. Co. Lit. 46, b.
(0 Llewelyn v. Williams, Cro. Jac. (/) Steele v. Mart, 6 D. & R. 392 ; 4
358. B. & C. 272.
(k) Styles V. Wardle, 4 B. & C. go8 ;
' Keyes v. Dearborn, 12 N. H. 52.
' Trustees v. Robinson, Wright, 436.
322 LAW OF CONTRACT. [Bk. II. Ch. IL
two years certain at lease. ( tn) But if the demise is
from year to year, so long as both parties please, it is
a lease only for a year certain, and is determinable at
the end of the first as well as of any subsequent year,
{n) If the demise is for " one year certain," and six
months' notice afterwards, the lease is only a lease for
a year, (o) If the land is expressed to be demised for
years generally, the lease is said to be good for two
years at the least. (/) A house and land were demised
for the term of six months, and so on from six months
to six months, until one of the parties should give the
other six calendar months' notice of his intention tO'
determine the tenancy, and it was held that this was a
lease for one year at least. ( q) ^
If a lease is granted for seven, fourteen, or twenty-
one years, and the lessee enters and takes possession
of the demised premises, the legal construction of the
lease is that the lessee is entitled at his option to take
that term which is most beneficial to himself The
lessee therefore has the option, at the expiration of
the first seven years, of continuing the lease on for
(ni) Bac. Abr. Leases (L), 838. Legg (o) Thompson v. Maberly, 2 Camp.
V. Strudwick, 2 Salk. 414, 18 Hen, 8, 573. Jones v. Nixon, i H. cS: C. 48 ;
15, b. Denn v. Cartwright, 4 East. 31 L. J., C. P. 66.
29. Doe V. Green, g Ad. & E. 658 ; i (p) Bro. Abr. Lease, 13. 6 Co. 35,.
P. & D. 454- 36.
(n) Doe V. Smaridge, 7 Q. B. 957. (y) Reg. v. Chawton, I Q. B. 247.
' In the state of New York, by statute (i Edmond's Stats.
P- 363. § 3)1 " whenever the word ' year ' or ' years ' is or shall be-
used in any statute, deed, verbal or written contract, or any
public or private instrument, the year intended to be taken
shall be taken to consist of 365 days; a half year of 182 days;,
and a quarter of a year of gi days ; and the added day of a
leap year, and the day immediately preceding, if they shall
occur in any period so to be computed, shall be reckoned
together as one day ; and the word 'month ' shall be construed
to mean a calendar, and not a lunar, month, unless otherwise
expressed" (Id. § 4).
Sec. I.J LANDLORD AND TENANT. 323
another seven years, and after that term has expired,
for the full period of twenty-one years if he chooses so
to do, the courts leaning in favor of that construction
which is the most favorable to the lessee, {r) Where
the lessor agreed not to raise the rent nor turn the
tenant out of possession so long as the rent was duly
paid .quarterly, it was held that this operated as an
agreement for a tenancy from year to year. If in a
lease under spal the lessor covenants not to raise the
rent, nor turn out the tenant, so long as the rent is
duly paid, this is a lease for life. If the undertaking
is contained in a lease not under seal, it operates only
as a simple contract or agreement, for a breach of
which the tenant may recover damages from the lessor,
but it does not prevent the latter from ejecting the
tenant after the ordinary notice to quit. {/) If the
full extent and duration of the term are uncertain, but
there is a certainty for some specific portion of time,,
the lease will be good for such term or portion of time,
and void as to the residue. (J) If no time at all is
mentioned for the duration of the term, and there has
been no entry upon the land nor payment of rent,
there is no lease at all ; but if the lessee has actually
entered and taken possession, the duration of the term
of hiring will be regulated by the nature of the subject-
matter of the demise, the times limited for the pay-
ment of the rent, and the custom of the country where
the property is situate.
684. Leases from year to year. — In the case of a
general demise of farms or lands, no term or time of
holding being mentioned, the presumption is by cus-
{r, Dann v. Spurrier, 3 B. & P. 404. is) Doe v. Browne, 8 East, 165.
Doe V. Dixon, 9 East, 15. Goodright {f) Gwynne v. Mainstone, 3 C. & P.
>'. Richardson, 3 T. R. 462. 302.
324 LAW OF CONTRACT. [Bk. 11. Ch. II.
torn in favor of a yearly hiring {u) in the absence of
an express limitation of the term. ' If a corn-field or
an orchard is demised at a customary and ordinary
rent, the hiring will be deemed to be for a year, and so
on from year to year, in order that the tenant may
reap the harvest and gather the fruits and produce of
the soil when they come to perfection, as the rent is
reasonably presumed to be paid for the enjoyment
thereof, and not for the barren occupation of the land
itself " If the produce of the demised lands requires
two years to come to perfection, as if it be liquorice,
madder, &c., a general holding will, it seems, enure as
a tenancy from two years to two years, and can not be
determined by a notice to quit at the end of the first
or third year." (v') Where lands were demised to J.
H., his heirs, executors, and assigns forever, at a yearly
rent, with a proviso for re-entry in case of non-payment
of rent, it was held that the deed created only a ten-
ancy from year to year, (jj/) ^ If an intended lessee
(«) 13 Hen. 8, 15 b. Doe v. Watts, Poth Louage, part i, ch. 2, art. 4, 28.
7 T. R. 85. {y) Doe v. Gardiner, 12 C. B. 319.
(v) Adams on Eject, 4th Ed. 99.
' Said to be from the presumption that the enjoyment ot
the yearly harvest was the consideration for the rent ; see
Hanchett v. Whitney, 2 Ark. 240; Fowke v. Beck, i Spiers,
291 ; Ellis V. Page, i Pick 4; Fronty v. Wood, 2 Hill. 367;
Hall V. Hall, 8 Gill & J. 386 ; Moore v. Beasley, 3 Ham. 294;
and a tenant holding over, after the expiration of a term,
takes by the year upon the same conditions of letting ; Dorrill
V. Stevens, 4 McCord, 59 ; Diller v. Roberts, 13 Serg. & R. 60 ;
Bacon v. Brown, 9 Conn. 334.
' Vrooman v. M'Kaig, 4 Md. 450; Hart v. Finney,
I Strobh. 250 ; People v. Reckert, 8 Cow. 226 ; Thomas v.
Light, 9 Sergt. & R. 87 ; Lesley v. Randolph, 21 Rawle, 123 ;
McDowell v. Simpson, 3 Watts, 129; Schuyler v. Leggett, 2
Cow. 660 ; Brewer v. Knapp, i Pick. 332 ; Danforth v. Sar-
gent, 14 Mass. 491.
Sec. L] landlord AND TENANT. 325
enters into possession of realty under an agree-
ment for a lease, he is tenant at will or tenant by suf-
ferance until the lease is made ; but if he remains in
possession and pays rent, he becomes tenant from year
to year until the lease is duly executed according to
the agreement. (^■) And if he holds over after the
expiration of the term, and the landlord receives from
him rent which has accrued due subsequently to the
expiration of the lease, he becomes a tenant from year
to year, {a)
If a man takes possession of premises under an in-
valid lease from a tenant for life, and the remainder-
man accepts rent, or does any act recognizing the party
in possession as his tenant, the latter forthwith becomes
a lessee from year to year, (b) So, if a man enters
into possession as an intended purchaser, and agrees
" to pay and allow " to the vendor '" at the rate of ^100
per annum from the time of taking possession of the
premises until the completion of the purchase in equal
half-yearly payments," he becomes tenant to the in-
tended vendor "at a fixed rent of ;^ioo per annum,
payable half-yearly." (r) A tenancy from year to year
is ordinarily implied from the payment and acceptance
of rent ; but this prima facie presumption may be re-
butted by showing that the money was paid or received
by mistake. It is entirely repugnant to the notion of
a tenancy from year to year that the option of deter-
mining it should rest solely with the tenant. The
notion of a tenancy from year to year, the lessor bind-
ing himself not to give notice to quit, has long been
(«) Mann v. Lovejoy, R. & M. 355. 10 M. & W. 497.
Doe V. Pullen, 3 Sc. 276. Doe v. (3) Bishop v, Howard, 3 D. & R.
Smith, I M. & R. 137. Knight v. 297 ; 2 B. & C. 100.
Benett, 11 Moore, 225 ; 3 Bing. 361. [b) Doe v. Morse, i B. & Ad. 369.
Doe V. Amey, 12 Ad. & E. 476 ; 4 P. {c) Saunders v. Musgnve .f B, &C.
& D. 177. Braythwayte v. Hitchcock, 524 ; 9 D. & R. SJS-
326 LAW OF CONTRACT. [Bk. II. Ch. II.
exploded, (d) A tenancy from year to year re-com-
mences every year, (e) A demise by a tenant from
year to year to another, also to hold from year to year
is, in contemplation of law, a demise from year to year
during the continuance of the original demise to the
intermediate landlord. (/")
685. Half-yearly, quarterly, monthly, and weekly
hirings. — If an annual rent is reserved, the holding is
from year to year, although the contract of demise
provides that the tenant shall quit at a quarter's notice.
Such a contract differs only from the usual letting
from year to year in the agreement by the parties to
reduce the ordinary six months' notice to quit to three
months. But if it is expressly agreed that the tenant
is always to be subject to quit at six months' notice
given him at any time, this constitutes a half-yearly
tenancy, and the lessee will be presumed to hold from
six months to six months from the time that he
entered as tenant. If he is to hold until one of the
parties shall give unto the other three months' notice
to quit at the expiration of such notice, the tenancy
will be a quarterly tenancy, (^g) In the case of a de-
mise of an unfurnished mansion at an annual rent,
payable half-yearly or quarterly, the hiring is a hiring
from year to year. In the case of cottages or unfur-
nished apartments in a house demised at a monthly or
weekly rent, the presumption is in favor of a monthly
or a weekly tenancy. Where a wharf, warehouse, and
buildings, were let on the terms that a quarter's rent
should be paid down on the day of the commence-
ment of the tenancy, and should be continued to be
(d) Doe V. Browne, 8 East, 167. But this has been doubted, see Bart-
{e) Tomkins v. Lawrance, 8 C. & P. lett v. Baker, 34 L. J., Ex. II.
731. Gandy v. Jubber, 33 L. J., Q. B. (/) Pike v. Eyre, g B. & C. 909.
151. Doe V. Dobeil, i G. &Dav. 2x3. {g) Doe v. Grafton, 21 L. J., Q. B.
276. Ktmp V. Derrett, 3 Camp 510.
Sec. I.] LANDLORD AND TENANT. 327
paid in advance during the continuance of the hiring,
it was held that this was a quarterly, and not a yearly,
hiring. (Ji) There is no objection in law to a tenancy
determinable by a week's notice to quit, and a reason-
able time being allowed after the expiration of the
notice for the tenant to remove his goods, (z)
686, Tenancy at will. — If the lessor reserves to
himself a right of re-entry at his own will and pleas-
ure, or the lease contains an express stipulation to the
■effect that the tenancy may be put an end to at the
will of either party, the holding is a tenancy at will.
{k) The reservation of a yearly or quarterly rent is
not inconsistent with a tenancy at will. (/) A mere
permission to occupy creates a tenancy at will. If a
tenant for years holds over after the expiration of his
lease, 01 continues in possession pending a treaty for
a further lease, {m) or is admitted into possession
pending a treaty for a purchase, («) he is strictly a
tenant at the will of the landlord, and may be turned
out of possession without notice to quit ; but if, during
the continuance of such tenancy at will, the tenant has
offered, and the landlord has accepted, rent for the use
■of the property, the law infers that a yearly tenancy
was meant to be created between them. {0) A min-
ister of a dissenting congregation, placed in the pos-
session of a chapel and dwelling-house by trustees in
whom the property is vested in trust to permit the
chapel and dwelling-house to be used for the purpose
of religious worship, is a mere tenant at will to those
(h) Wilkinson v. Hall, 4 Sc. 301. (/) Litt. sec. 72. Doe v. Davies, 7
'Towne v, Campbell, 3 C. B. 921. Exch. gi ; 21 L. J., Ex. 60. Doe v.
ii) Cornish v. Stubbs, L. R., 5 C. P. Cox, 11 Q. B. 122 ; 17 L. J., Q. B. 3.
334 ; 39 L. J. C. P. 202. {ni) Com. Dig. tit. Estates (H. i).
(y5)Richardsonv. Langridge, 4Taunt. Doe v. Stennet, 2 Esp. 717.
131. Cudlip V. Rundal, 4 Mod. 12 ; 3 («) Doe v. Chamberlaine, 5 M. &
Salk. 156. Bayley ■!. Fitzmaurice, 8 W. 14.
Ell. & BI. 679. (") Clayton v. Blakey, 8 T. R. 3.
328 LAW OF CONTRACT. [Bk. II. Ch. 11.
trustees ; and his tenancy is determined instanter by a
demand of possession. (/) A tenant at will is enti-
tled to retain possession of the land he holds until the
lessor has made a demand of possession, (^) or has
intimated, either by express words or by his conduct
and actions, his determination to put an end to the
tenancy. The holding may be determined by a letter,
stating that, unless the tenant pays the lessor what he
owes him, he will, without delay, take measures for re-
covering possession of the property, (r) or by a de-
mand of possession on' the part of the landlord, (^s) or
by his entry on the land without the tenant's consent
and making livery of seisin to another, (J) or exercis-
ing acts of ownership ; also by his alienation of the
reversion ; by the tenant's quitting the premises ; by
the death of either of the parties ; by the bankruptcy
of the lessor ; and, in short, by the doing of any act
which amounts to the determination of the will on
either side. But a tenant at will can not determine
his tenancy by transferring his interest to a third party
without notice to his landlord, (u) If the will is de-
termined, and the landlord's consent to the occupation
is withdrawn, so as to create an adverse possession, and
the landlord afterwards does any act fairly leading to
the presumption that he has renewed his consent to
the holding, a fresh tenancy at will is created between
the parties, (v^ '
(p) Doe V. M'Kaeg, lo B. & C. 721; 753.
5 M. & R. 620. Doe V. Jones, 10 B. {i) Ball v. Cullimore, 2 C. M. & R.
6 C. 718; 5 M. & R. 616, 752. Revett 120.
V. Brown, 2 Moo. & P. 12 ; 5 Bing. 7. (u) Pinhorn v. Souster, 8 Exch. 772.
(?) Right V. Beard, 13 East, 210. (v) Doe v. Turner, 7 M. & W. 232.
(r) Doe V. Price, 2 M & Sc. 464 ; 9 Turner v. Doe, g M. & W. 644. Doe
Bing. 356. V. Thomas, 6 Exch. 854. Randall v.
(s) Locke V. Matthews, 13 C. B. N. S. Stephens, 23 L. T. R. 211.
" See Jones v. Jones, 2 Rich. 542 ; Campbell v. Proctor, &
Greenl. 12; Rising v. Stannard, 17 Mass. 282; Phillips v.
Sec. I.] LANDLORD AND TENANT. 329
687 Tenancy by sufferance. — When the landlord
has demanded possession, or has done any act which
is tantamount to a determination of the will, or when
the tenant holds over at the expiration of a lease
against the will of the lord, or after the expiration of
a notice to quit, the tenant is said to be a tenant at
sufferance in contradistinction to a tenant at will. (;j/) *
{y) Co. Litt. 57, b.
Court, 7 Johns, i ; Moore v. Boyd, 11 Shep. 242 ; Cheever v.
Pearson, 16 Pick. 266; Nichols v. Williams, 8 Cow. 13;
Squires v. HuflFs, 3 A. K. Marsh, 17 ; Ellis v. Page, i Pick.
43; Proprietors v. McFarland, 12 Mass. 325. A tenancy at
will can hardly exist in the city of New York ; People v.
Gallet, 64 Barb. 481 ; unless the intention to create such a
tenancy is expressly declared in the words of the demise;
Post V. Post, 14 Barb. 253. Tenancies by sufferance are
guarded against in that state by a statute which provides that
where a lease does not state particularly the date or time at
which the tenancy shall expire, it shall be understood to ex-
pire on the first day of May next ensuing (Witt v. Mayor, 5
Rob. 248 ; Hunt v. Wolf, 2 Daly) ; and in that state as well
as others.
' Any tenant continuing in his possession without agree-
ment, after a particular estate is ended, is a tenant at suffer-
ance. Livingston v. Tanner, 12 Barb. 481. But this estate
can only exist by the laches of the landlord, and only
attaches where a landlord negligently omits to put out the
overholding tenant within a reasonable time after the termin-
tion of his lease. Rowan v. Lynde, 11 Wend. 617. But see
Conway v. Starkweather, i Den. 113, which holds that where a
tenant under a demise for a year or more holds over after the
end of the term, without any new agreement with the land-
lord, he may, at the election of the landlord, be treated either
as a trespasser or a tenant holding upon the terms of the
original lease, and that distraining for rent payable after the
expiration of the original term, is such an election by the
landlord to consider him a tenant ; an overholding tenant, being
a wrongdoer, has no such election, nor is he at liberty to deny
that he is in possession as tenant, if the landlord chose to hold
him to that relation ; and it has been held that where a tenant
holds over after the expiration of his term, the law will, at the
landlord's option, imply a new hiring upon the terms and
330 LAW- OF CONTRACT. [Bk. II. Ch. II,
The expression, however, is not calculated to give a
correct idea of the nature of the holding, and does
not seem to have been very happily chosen.
Although termed tenant by sufferance, he is under-
stood to hold wrongfully and against the will, and con-
trary to the permission, of the landlord. He has, con-
sequently, no estate or interest at all in the land ; and
an action of ejectment may at any time be brought
against him without notice or demand of possession ;
■and, if the lord can get possession peaceably, he is en-
tled to take and retain possession, and so oust the
wrongdoer, (s) The difference, therefore, between a
tenancy at will and what is called a tenancy by sufferance
is that, in the one case the tenant holds by right, and has
an estate or term in the land, precarious though it be, and
the relationship of lessor and lessee subsists between the
parties ; in the other, the tenant holds wrongfully and
against the will and permission of the lord, and has
no estate at all in the occupied premises. When a
tenancy at sufferance has existed for twenty years,
the landlord's right of entry is barred by statute, and
the tenant becomes the absolute and complete owner
of the property, (a)
688. Leases under power. — If a lease granted in
the intended exercise of a power of leasing is invalid
(2I Fox V. Oakley, Peake's Ad. Ca. {a) Doe v. Gower, 2i L. J., Q. B. 57.
214.
conditions specified in the former lease. Bacon v. Bacon, 9
Conn. 334; Brewer v. Knapp, i Pick. 332 ; Ellis v. Paige, Id.
43 ; Fronty v. Wood, 2 Hill, 367 ; Moore v. Beasley, 3 Ham.
294; Smith V. Littlefield, 51 N. Y. 539 ; Diller v. Roberts, 13
S. & R. 60 ; Bacon v. Brown, 9 Conn. 334; Dorrillv. Stevens,
4 McC. 59. And see as to tenancy at sufiFerance as distin-
guished from a tenancy at will; Stedman v. Gassett, 18 Vt.
346; Hildreth V. Conant, 10 Mete. 298; Jackson v. McCord,
12 Johns. 182; Keay v. Goodwin, 16 Mass. i; Kinsley v.
Ames, 2 Mete. 29; Hollis v. Poole, 3 Id. 350.
Sec. I.] LANDLORD AND TENANT. 331
by reason of the non-observance of the terms of the
power, such lease, if made bona fide, and if the
lessee has entered thereunder, is deemed a contract
■or agreement to grant the lease, and all persons who
would have been bound by the lease if lawfully
granted under the power, will be bound by such con-
tract. Acceptance of rent under such invalid lease is
a confirmation of the lease as against the person so
accepting rent. Leases, also, invalid at the time of
the grant thereof, may become valid, if the grantor
subsequently acquires the requisite power of leas-
ing, {b)
689. Demise of tolls. — The 8 & 9 Vict. c. 106, s. 3,
which provides that a lease required by law to be in
writing of any tenements, &c., shall be void, unless
made by deed, does not apply to agreements for
letting tolls under the 3 Geo. 4, c. 126. (c)
690. Rights and liabilities of lessor and lessee. —
Every lessor binds himself to give possession, and not
to give the party to whom he demises a mere right to
take possession from a wrong-doer by an action of
ejectment; (</) and every lessee binds himself to
accept possession and pay rent. {/) If a party has
agreed to take a house from a particular day, provided
certain things are before then done by the landlord,
and the things are not done, he may decline to go on
with the contract, and may refuse to take possession.
(/") A lessee who has contracted orally for the hire
of realty, and who neglects or refuses to accept posses-
{b) 12 & 13 Vict. c. 26. 13 Vict. 747. Bract, lib. 2, t. 28, fol. 62. As
c. 7. to agreements for a lease, see Drury v.
(f) Shepherd v. Hodsman, 18 Q. B. Macnamara, 5 El. & Bl. 616 ; 25 L. J.,
216 ; 21 L. J., Q. B. 263. Q. B. 5.
(d) Coe V. Clay, 3 Moo. & P. 59 ; 5 {e) Stanley v. Hayes, 3 Q. B. 105.
Bing. 440. Jinks v. Edwards, 11 Exch. (/) Tidey v. MoUett, ante.
775. Neale v. Mackenzie, i M. & W.
332 LAW OF CONTRACT. [Bk. II. Ch. IL
sion of the demised premises, can not, as we have seen,
be sued upon such oral agreement for damages for not
taking possession, nor upon any oral promise to pay
rent, nor for use and occupation. In the case of leases
under seal, the law implies from the words " yielding
and paying," or any equivalent words amounting to a
reservation of rent, a covenant on the part of the
lessee to pay the rent so reserved, and in the case of
parol leases, a promise to the like effect, (^g) But the
liability of a lessee upon all express and implied cov-
enants and agreements for the payment of rent is de-
pendent upon his being put into possession, or being
tendered and offered and afforded the power and op-
portunity of taking possession of the demised prem-
ises, (z^) ' The quiet enjoyment also by the lessee, as
against the lessor and all that come in under him by
title, and against others claiming by title paramount,
during the time in respect of which the rent is claimed
to have accrued due, is a condition precedent to the
tenant's liability for the payment of such rent. But
the tenant is not released from liability by reason of a
mere constructive eviction, (z) or a disturbance and
interruption from a mere wrong-doer.
691. Covenants for quiet enjoyment. — From the
use by a grantor of certain words having a known
legal operation in the creation of an estate, the law
infers a covenant on the part of such grantor to pro-
tect and preserve the estate so created ; as, if a man
{g) Bac. Abr. Leases, 633 ; Cove- (h) Holgate v. Kay, i C. & Kirw.
NANT (B.), 342- 341.
(«) Delaney v. Fox, ante.
' Lovering v. Levering, 13 N. H. 513; MacKeebin v.
Whelcroft, 4 Har. & McHen. 135 ; Lewis v. Payn, 4 "Wend.
432 ; Dexter v. Manly, 4 Cush. 14 ; Maule v. Ashmead, 8 Har-
ris, 484.
Sec. I.] LANDLORD AND TENANT. 333
by deed demises land for years, the word " demise "
imports or makes a covenant in law for quiet enjoy-
ment, iji) If by the terms of a lease the lessor
"'warrants" the demised premises to the lessee, this
amounts to an express covenant for quiet enjoyment
during the whole term granted by the lease. (/) Cov-
enants for quiet enjoyment are broken, if the lessor
builds on his own adjoining land so as to darken the
lessee's windows, or does anything thereon which
creates a nuisance. The erection of a gate across a
lane through which the tenant has a way to the de-
mised premises is a breach of a covenant for quiet
enjoyment; {m) and so is the placing of any structure
upon any part of the demised premises, {n) The
usual express covenant by the lessor that the lessee
shall quietly enjoy, &c., without interruption or dis-
turbance by the lessor or any person claiming under
him, is not broken by an entry on the tenant by the
land-tax collector to distrain for arrears of land-tax
due from the lessor, the disturbance not being by a
person claiming by title from the lessor. {0) And
where a covenant for quiet enjoyment is accompanied
by a covenant by the lessee not to use the land for
certain purposes, the first covenant does not guarantee
to the tenant that he may lawfully use the land for
any purpose not included in the restrictions in the
lease. (/) Whenever a person demises the surface
(i) Hull V. City of London Brewery the part of the lessor, or that he has
"Company, 2 B. & S. 737 ! 31 L- J.| power to grant an interest coextensive
Q. B. 257. with that which he assumes to grant,
(/) Williams v. Burrell, ante. see Line v. Stephenson, 7 Sc. 6g. Ban-
(ot) Andrews v. Paradise, 8 Mod. dy v. Cartwright, 8 Exch. 913. Stranks
319. Morris v. Edgington, 3 Taunt, v. St. John, L. R., 2 C. P. 376 ; 36
^4. L. J., C. P. 118.
(«) Kidder v. West, 3 Lev. 167. (/) Dennett v. Atherton, L. R., 7
(p) Stanley v. Hayes, 3 Q. B. 105. Q. B. 316 ; 41 L. J., Q. B. 165.
As to an implied covenant for title on
334 LAW OF CONTRACT. [Bk. II. Ch. IL
of land, reserving a right to win and work minerals,
he can not exercise the right so as to let down or
injure the surface ; for that would be derogating from
his own grant, and would also be a breach of a cov-
enant for quiet enjoyment, (g) Where there is a
breach of a covenant for quiet enjoyment, the lessee
is entitled to such damages as will fully compensate
him for the injury sustained, (r)
692. Covenants for the payment of rent. — A cov-
enant for the payment of rent at a specified time,
when no place of payment is mentioned, is analogous
to a covenant to pay a sum of money in gross on a
day certain ; and it is accordingly incumbent on the
covenantor to seek out the person to be paid, and pay
or tender him the money. (J) ' If the tenancy is a
(?) Proud V. Bates, 34 L. J., Ch. (r) Lock v. Furze, 19 C. B. N. S.
406. As to what is included under the 96 ; L. R., i C. P. 441 ; 35 L. J., C. P.
term "minerals,'' see Bell v. Wilson, 141.
Id. 572. (s) Haldane V. Johnson, 8 Exch. 689.
' McMurphy V. Mina, 4 N. H. 251 ; Walter v. Dewey, 16
Johns. 222 ; Menough's Appeal, 5 Watts & S. 432 ; Lush v.
Druse, 4 Wend. 313. But the rules as to tender must be
rigidly observed; a mere offer to pay rent is not a tender, but
the money must be actually produced and paid down, unless
the landlord by some positive act or declaration on his part
dispense with such production. Strong v. Blake, 46 Barb.
227 ; Hornby v. Cramer, 12 How. Pr. 490. An offer to draw
a check is not a tender, although declined by the landlord;
Dunbar v. Jackson, 6 Wend. 22 ; Mclntire v. Clark, 7 Id. 330 ;
if a debtor has the money in his pocket, and tells the credi-
tor that he " is ready for him," but the creditor does not know
that the debtor has the money with him, this is no tender;
Bakeman v. Pooler, 15 Wend. 637 ; a tender to a clerk of a
sub-agent of a creditor is insufficient, unless it is shown that
such clerk had authority to receive the money; Hargous v.
Lahens, 3 Sandf 213 ; Hornby v. Cramer, 12 How. Pr. 490;
Smith V. Smith, 2 Hill, 351; 25 Wend. 405; tender must be
without any conditions or terms on the part of the debtor, or
without any protest that he is not liable for the debt; Wood
Sec. I.] LANDLORD AND TENANT. 335.
yearly tenancy, and no time is specified for the pay-
ment of the rent, the rent will be due once a year, {i)
If the rent is to be paid free of all outgoings, it must
be paid free of land-tax and tithe commutation rent-
charge, (ji) Where the lessor let his land at a rent
payable quarterly, and afterwards mortgaged it, but re-,
mained in possession, and obtained from the lessee,
who had no notice of the mortgage, a year's rent in
advance, it was held that the payment of the rent
before it became due was not a good payment as
against the mortgagee, who, before the rent became
due, gave the lessee notice to pay the rent to him. (zi)
And the law is the same where the lessor grants away
the reversion, (jy)
(/) Collett V. Curling, lo Q. B. 785. (v) De Nicholls v. Saunders, L. R.,.
(ti) Parish v. Sleeman, i De G. F. 5 C. P. 589 ; 39 L. J , C. P. 297.
& J. 326 ; 29 L. J., Ch. 96. Sweet v. (^y) Cook v. Guerra, L. R., 7 C. P.
Seager, 2 C. B. N. S. 119. 132 ; 41 L. J., C. .• P68
V. Hitchcock, 20 Wend. 47 ; a tenant can not legallj- demand
a receipt as a condition of paying his rent; 45 Barb. 579; 20
Wend. 47 ; 23 Id. 342 ; 21 N. Y. 581 ; where a party making a
tender demands a receipt or satisfaction-piece as a condition,
the tender is illegal; Roosevelt v. Bulls Head Bank, 45 Barb.
579 ; tender does not extinguish a debt, but only operates to
the interest; Raymond v. Bearnard, 12 Johns. 274; Hunter v.
Le Conte, 6 Cow. 728 ; but tender of money before it is due,
is bad ; Mitchell v. Cook, 29 Barb. 243; ♦if the landlord, or
other creditor, refuse the tender as not made in time, he can
not afterwards object that the tender was not in money ; Duffy
V. O 'Donovan, 46 N. Y. 223 ; or if the tender is refused on a
specified ground, the creditor can not afterwards raise any
other objection which, had he stated it then, might have been
obviated. Hull v. Peters, 7 Barb. 331 ; 10 Abb. Pr. N. S. 484 •
21 N. Y. 547. Absolute refusal to receive the money, or to do
the act in consideration of which the money is to be paid, is
a waiver of tender; Murray v. Roosevelt, Anth. N. P. 138";
Vaupell v. Woodward, 2 Sandf. Ch. 143 ; Stone v. Sprague, 20
Barb. 509 ; Dana v. Fielder, i E. D. Smith, 463 ; Slingerland
V. Morse, 8 Johns. 474 ; Everett v. Saltus, 15 Wend. 474 ; War-
ren V. Mains, 7 Johns. 476.
336 LAW OF CONTRACT. [Bk. 11. Ch. II.
693. Covenants not to " let, set, or demise" restrain
an assignment ; {z) and covenants not to " let or
assign," {a) or not to " assign or otherwise part with,"
the demised premises, {U) restrain an underlease ; but a
covenant not to " grant any underlease, or let, or assign,
or otherwise part with the demised premises or any
part thereof," is not broken by taking in a lodger who
has the exclusive possession of the room he occupies.
{c) Where a lessee took a person into partnership,
and agreed that he should have the exclusive use of a
back chamber and some other parts of the demised
premises, and the joint use of the rest, it was held that
the covenant had been broken, and that the right to
re-enter had accrued, {d) And an assignment by one
partner of his undivided moiety of the lease to the
other partner is a breach of a covenant not to assign.
(e) A covenant by a lessee that he will not let or
underlet for more than a year does not prevent him
from granting leases to commence at a future day. (/")
A devise of the term to a stranger is an assignment
within the meaning of the proviso or covenant, but not
a devise to the lessee's own executor, (^g) nor an as-
signment by act and operation of law, {Ji) or by the
act of God, or an assignment by the sheriff under an
execution, unless the execution has been obtained by
collusion with the creditor in fraud of the covenant. (?)
If the lessee does assign or underlet, notwithstanding
his covenant, the assignment or underlease is good,
and the lessee is only liable to an action on his cove-
(i) Greenaway v. Adams, I2 Ves. (e) Vailey v. Coppard, L. R., 7 C. P.
395- 505-
(a) Roe V. Harrison, 2 T. R. 425. (/) Croft v. Lumley, 6 H. L. C. 737.
(*) Doe V. Worsley, i Campb. 20. {g) Bac. Abr. Lease, T.
(f) Doe V. Laming, 4 Campb. 77. {K) Goring v. Warner, 7 Vin. Abr.
i{l) Doe V. Sales, l M. & S. 297. 85, pi. g. Doe v. Smith, 5 Taunt. 795.
0 Doe V. Carter, 8 T. R. 57, 300.
Sec. I.] LANDLORD AND TENANT. 337
nant, (^) unless there is a proviso in the original lease
for re-entry in case of a breach of the covenant. (/V
694. Non-execution of the lease by the lessee. — A
person who has neither sealed and delivered an inden-
ture of lease, nor entered and taken possession under
it, can not be made responsible upon the covenants
contained in the indenture ; but if he enters and takes
possession by force of the lease, he is deemed in law
to have covenanted to hold upon the terms of the in-
denture and to observe the conditions of the lease,
and the lessor, therefore, may distrain or bring an action
for the arrears of rent, {m) For every grantor of an
estate may annex his own terms and conditions to
the grant, which will constitute a covenant annexed
to the estate, so that whosoever accepts the estate will
be bound by the covenant, although he has not sealed
and delivered any deed. If land is leased to two for a
term of years, and one puts his seal, and the other
agrees to this lease, and enters and takes the profits
with him, he shall be charged to pay the rent, though
he has not put his seal to the deed ; but if there is a
{k) Paul V. Nurse, 8 B. & C. 486. Rep. 63. Litt. sec. 374, 58. Mayor,
(/) Roe V. Harrison, 2 T. R. 428. &c., of Lyme v. Henley, i Bing. N. C.
(/«) Brett V. Cumberland, 2 Roll. 237. Gregg v. Coates, 23 Beav. 39.
' Where a lessee covenants not to demise, assign, transfer,
or set over his lease, it has been held not to be a breach of
the lease, or to work a forfeiture of the term, for the ten-
ant to underlet, an under lease not being an assignment;
Jackson v. Grout, 7 Cow. 285 ; Jackson v. Silvernail, 15 Johns.
J278; Martin V. O'Conner, 43 Barb. 514; Davis v. Morris, 36
N. Y. 569 ; aff 'g 35 Barb. 227 ; Hargrave v. King, 5 Ired. Eq.
430 ; nor, on the other hand, will a covenant " not to let of
underlet the whole or any part " of the demised premises
preclude an assignment of the whole interest. LynJe v.
Hough, 27 Barb. 415. It is said that it is no breach of a cove-
nant not to underlet any part of the premises, for a tenant to
take in lodgers. Mc Adam's Landlord and Tenant, 71.
338 LAIV OF CONTRACT. [Bk. II. Ch. 11.
condition comprised in the deed which is not parcel
of the lease, but a condition in gross, if he does not
put his seal to the deed, though he is a party to the
lease, he is not a party to the condition, (n) Where
three were enfeoffed by deed, and there were several
covenants in the deed on the part of the feoffees, and
two of the feoffees only sealed the deed, and the third
entered and agreed to the estate conveyed by the deed„
he was held bound in a writ of covenant, {o) Where
three windmills were demised by letters-patent under
seal, which letters-patent contained a clause to the
effect that the lessee and his assignees should repair
and maintain the windmills during the term, and yield
them up in good condition at the expiration thereof,
and the lessee entered under the grant and took pos-
session of the windmills, it was held that there re-
sulted from the acceptance of the estate an express
covenant to repair, which was annexed to the term
granted, and ran with the land, and bound both the
lessee and his assignees by reason of the privity of
estate, (p) Where a lessee entered into possession
of a house under an agreement to repair, and paid
rent, and the lessor sold the estate and assigned all
his interest to the plaintiff, and the lessee continued to
occupy and pay rent to the plaintiff, it was held that
the lessee must be presumed, in the absence of evidence
to the contrary, to have agreed to continue to hold of
the plaintiff on the same terms as he held of the origi-
nal lessor, and that he was therefore responsible to the
plaintiff for a breach of his agreement to repair. (^)
695. Non-execution of the lease by the lessor. — It
(«) 38 Ed. 3, p. 8. Bro. Abr. Dett. (/) Brett v. Cumberland, 2 Rolli
pi. 80. Fitz. Abr. Dett. pi. 117. Co. Rep. 63.
Litt. 231, b. {q) Arden v. Sullivan, 14 Q. B. 83?.
if) 2 Roll. Rep. 62.
Sec. I.] LANDLORD AND TENANT. 339
is said that, " if an indenture of lease be sealed only on
the part of the lessee, and not on the part of the lessor,
nihil operat, neither in respect of the interest nor in
respect of the covenants ; for the covenants depend upon
the lease, and if there is no lease there is no covenant ;
for if the lease had been made and afterwards surrendered
all the covenants had been void." {r) Where an in-
denture of demise for the term of eleven years, contain-
ing covenants to pay rent and repair, was executed by
the lessee alone, and the latter entered and took pos-
session and paid rent for several years, and the lessor
assigned his reversion without ever having executed
the lease, it was held that the assignee of the rever-
sion could not sue upon any of the covenants of the
lease, as the lease for eleven years to which they were
annexed had never been created ; that the only rever-
sion which could carry with it the right to sue upon
the covenant was a reversion expectant upon the
determination of the term for eleven years, which
reversion had never been in existence, by reason of
the non-execution of the lease by the lessor, (i') But,
as between the original parties, where a privity of con-
tract exists betw^een them, the lessee may, under cer-
tain circumstances, be held liable upon the covenants
contained in the indenture, though the lease has not
been executed by the lessor and the term created. It
has been said that every lease must be construed in
connection with surrounding circumstances, and that
a lessee may, by entering upon and taking possession
of tenements under an indenture sealed by him, and
by dispensing with the execution of the indenture by
the lessor, render himself liable to be sued upon his
covenants, as independent covenants, on the ground
(r) Soprani v. Skurro, Yelv. l8. {s) Cardwell v. Lucas, 2 M. & W.
123.
340 LAW OF CONTRACT. [Bk. II. Ch. II.
that a party may waive a condition in his favor and
dispense with its performance ; and that, if a lessee
executes his part of an indenture of lease, and enters
and takes possession of the demised premises, and
has the use of them, and g^athers all the product and
profits of the soil for the whole term intended to be
granted without ever having required the lessor to
execute the indenture, he ought, in justice, to be
deemed to have waived his right to treat the execu-
tion of the lease by the lessor as a condition pre-
cedent to his liability upon his covenants; and the
Court of Queen's Bench has held that a lessee who
has executed an indenture of demise containing a
covenant to repair, and has entered and enjoyed for
the whole term intended to be granted, is liable on
his covenant, though the lease has never been exe-
cuted by the lessor, and that the covenant becomes,
under such circumstances, an independent covenant
within the rule laid down in Comyn's Digest, (/) that
if one party executes his part of an indenture, it shall
be his deed, though the other does not execute his
part, (ji) But the Court of Exchequer has held that
the entry and taking of possession by the lessee before
the execution of the lease by the lessor do not render
the covenants to pay rent and repair independent cov-
enants, (z/)
696. Concealment of latent defects. — By the civil
and continental law, " the lessor is bound to make
known to the lessee all defects in the thing which he
lets, and to explain everything that may give occasion
to error or mistake." (jv) But by our law, in con-
(0 Fait (C), 2. (w) Pitman v, Woodbury, 3 Exch. 12.
(«) Cooch V. Goodman, 2 Q. B. 599. Swatman v. Ambler, 8 Id. 80. And
Littledale, J., i Ad. & E. 55. Hughes see How. v. Greek, 54 L. J., Ex. 4.
V. Clark. 10 C. B. go5. (_)/) Domat. liv. i, tit. 3, ss. 3, 10.
Sec. 1.] LANDLORD AND TENANT. 341
tracts for the letting and hiring of realty, the lessor is
not bound to disclose to the lessee latent defects in-
terfering with the use and enjoyment of the property
let to hire. {£) A lessor of a house, for example, who
knows that the house is in a ruinous and dangerous
state, and unfit for occupation, is not bound to dis-
close the fact to his lessee at the time that he grants
the lease. («)
Having executed the lease, and put the lessee into
possession of the demised premises, or placed them at
his disposal, and clothed him with the legal title to
the possession and occupation thereof for the term
granted by the lease, the lessor has done all that is
necessary for him to do to entitle himself to the rent
at the time that it is made due and payable ; he does
not, in the case of demises of realty, warrant that the
premises are, at the time of the demise, or that they
shall continue to be during the term, in any particular
state or condition, or fit for any particular purpose ;
and the lessee, therefore, is bound to pay his rent,
although the subject-matter of the demise is not fit
for the purpose for which he required it, and although
he may have had no beneficial use or enjoyment of it-
If, indeed, the lessor has been guilty of any fraudulent
concealment of defects which ought in good faith to
have been disclosed, or has resorted to any misrepre-
sentation calculated to mislead the lessee in some im-
portant particular as to the condition of the demised
premises, the contract will be void, and the lessee will
be discharged from the rent ; but, in the absence of all
fraud and deceit, he is bound by his express covenant
or contract, and must pay his rent, although he has not
had that beneficial use and enjoyment of the demised
(z) Hart V. Windsor, I2 M. & W. 63. (a) Keates v. Earl Cadogan, lO C. B.
Cornfoot v. Fowke, 6 M. & W. 358. 591 ; 20 L. J., C. P. 76.
342 LAW OF CONTRACT. [Bk. II. Ch. II.
premises which was anticipated. Thus, there is no
implied warranty on the part of a lessor who lets land
for agricultural purposes, that no noxious plants are
growing on the demised premises. (J>) And where
the defendant took the eatage of a meadow from the
plaintiff, for the term of six months, at a rent of ^40,
and turned fifteen head of cattle into the meadow,
eight of whom died from the poisonous effects of a
quantity of refuse paint which had been placed on a
manure heap, and had inadvertently been spread over
the grass prior to the defendant's occupation, and had
afterwards been eaten by the cattle ; and the defend-
ant then took his stock off the land, and tendered
back the possession of the meadow to the plaintiff,
which she refused to receive, it was held that the de-
fendant was liable for the rent at the time it became
due, although the eddish at the time of the demise was
wholly unfit for the purpose for which it was taken,
and the defendant had not had any beneficial use or
enjoyment of it. (t)
697. Demises of uninhabitable houses — Rooms
infested with bugs. — Where an action was brought
for the non-payment of the rent of a house, and the
defendant pleaded that the house was demised to him
for the purpose of his inhabiting the same, and that,
at the time of the demise and of his taking possession,
and from thence until he quitted, the house was unfit
for habitation, and he could not dwell therein, or
have any beneficial use or occupation thereof, by
reason of its being greatly infested with bugs, without
any default on his part, and that, before the rent
{b) Krskine v. Adeane, L. R., 8 Ch. pi. 6. Hil. Tenn, 14 Hen. 4, fol. 27,
756 ; 42 L. J., Ch. 835. pi. 35. Bro. Abr. (Dette), pi. 18, fol.
(c) Sutton V. Temple, 12 M. & W. 220.
52. 27 Hen. 0 (Trin. Term), fol. 10,
Sec. I.] LANDLORD AND TENANT. 343
became due, and as soon as he discovered the con-
dition of the tenement, he quitted it, and gave notice
to the plaintiff, and tendered him the possession
thereof, it was held that the plea was no answer to
the action, inasmuch as the law, in the case of demises
of unfurnished houses, implies no warranty or engage-
ment on the part of the lessor that the house is at the
time of the demise, or at the commencement of the
term, in a fit and proper state and condition for
habitation ; and that, even if such a warranty or
engagement could be implied, the breach of it would
not give the tenant a right to abandon his lease, and
vacate the possession, and refuse to pay rent ; but
that his remedy would be by a cross action to recover
•compensation for the damage he might have sustained
by the breach of such implied contract, {d) '
((/) Hart V. Windsor, 12 M. & W. see Smith v. Marrables, post, s. 2.
■68. As to bugs in furnished lodgings,
The tenant must, it seems, at all events, put the lessor
back into the condition in which he would have been had the
contract of letting not been made; see as to this; Central
Bank v. Pindar, 46 Barb. 467 ; Little v. Martin, 3 Wend. 219;
Packard v. Dunsmore, 11 Cush. 282; Benford, v. Schell,
55 Pa. St. 393 ; Hall v. Western Transportation Co.,
34 N. Y. 284. In Westlake v. DeGraw, 25 Wend. 672,
upon a tenant's having put an end to a lease upon
the ground that the premises were infested with certain
noxious smells, said Nelson, Ch.J. : " It must be assumed
that no fraud was practiced upon the tenant by the landlord,
as that has been negatived by the verdict of the jury. It
appears, also, that the alleged nuisance existed at and before
the defendant made the contract and entered into the posses-
sion ; and that it arose from the carcasses of dead rats under
the steps of the house. The discovery was made by the suc-
ceeding tenants ; and it seems to me that ordinary vigilance
on the part of the defendant would have enabled him to have
done the same. He not only appears to have been remiss in
this respect himself, but even refused to allow a mechanic,
sent by the plaintiff, to take the necessary steps to detect and
344 LAW OF CONTRACT. [Bk. II. Ch. II.
698. Payment of rent. — Although, therefore,
houses become ruinous and fall down, and buildings,
fences, and superstructures erected upon the soil, and
crops growing thereon, be destroyed by floods, or
burned by lightning or accidental fire, or be thrown
down by enemies, yet is the tenant liable to pay the
rent so long as the land remains to him, and his legal
title to the occupation and use thereof continues, {e) '
If the landlord is bound by custom, or has entered
(e) Carter v. Cummins, cited 1 Cli. quis of Bute v. Thompson, 13 M. &W..
C. 84. Pindar V. Ainsley, cited I T. R. 493,494. Lofft v. Dennis, I Ell. &
312. Bayne v. Walker, 3 Dow. 233. Ell. 481 ; 28 L. J., Q. B. 168. Sur-
Leeds v. Cheetham, I Sim, 146. Ar- plice v. Farnsworth, 7 M. & Gr. 579 ;
den V. Pullen, 10 M. & W. 321. Mar- 8 Sc. N. R. 307.
remove the cause of the nuisance. It was readily removable
when discovered, and in its own nature was of but temporarjr
duration. It is an inconvenience to which all buildings are
more or less subject at times ; but which, with ordinary skill
and attention, may be abated by the tenant. It would, I ap-
prehend, be the introduction of a new principle into the law
of landlord and tenant, and one liable to great abuse, to give
countenance to this defense." But in Wallace v. Lent, i Daly,
481, where a landlord rented a dwelling-house to a tenant:
without disclosing a fact within his knowledge, that there
was a deleterious stench in the house, proceeding from some
unknown cause, which rendered it unfit for habitation, and
the tenant went into possession with his family, and in a very
short time all the inmates of the house experienced the inju-
rious stench, producing vomiting, &c., it was held that the
concealment was such a fraud on the part of the landlord, a&
justified the tenant in leaving the premises. Where A leased
certain premises to B, and occupied the floor above such
premises as a grocery store, and drippings from his grocery
rendered the premises leased to B untenantable; held, an
eviction, and upon abandonment of the premises, B was not
liable for rent. Jackson v. Eddy, 12 Miss. 209.
' Valentine v. Godfrey, 9 Vt. 186; Ripley v. Wightman, 4
McC. 447 ; Hallett v. Wylie, 3 Johns. 44; Phillips v. Stevens,.
16 Mass. 236; Fowler V. Bott, 6 Mass. 63 ; Smith v. Ankrim,,
13 S. & M. 39; Wagner v. White, 4 Har. & J. 564; Bayley v.
Lawrence, i Bay, 499.
Sec. I.] LANDLORD AND TENANT. 345
into an express covenant to repair and uphold a
house demised by him, and the lessee covenants to
pay rent, the covenants are independent covenants,
and the repairing and upholding of the house by the
lessor is not a condition precedent to the liability of
the lessee upon his covenant, (y) '
699. Exception of damage by fire. — If the lessee
has covenanted to pay rent, " damage by fire ex-
cepted," and part of the demised premises is destroyed
or injured by fire, the whole of the rent is not thereby
suspended, but the tenant is entitled to a reasonable
abatement, (^g) And, if the lessee covenants to pay
rent, and also to repair, with an express exception of
casualties by fire and tempest, the exception is con-
fined to the covenant to repair, and does not qualify
or affect the liability upon the covenant to pay rent,
unless it has been extended thereto by express
words. (^)^
700. Extinction and suspension of the rent by-
eviction. — If the tenant loses the benefit of the enjoy-
ment of any portion of the demised premises by the
act of the landlord, the rent is thereby suspended ;
but the act must be something of a grave and
permanent character, dispossessing the tenant, and
not a mere temporary trespass; (z) and there must
be an actual dispossession of the tenant, and not a
mere constructive eviction. (^) ° The tenant is not
(/) T. Term, 27 Hen. 6, fol. 10, pi. Belfour v. Weston, i T. R. 310.
6. Bro. Abr. Dette, pi. 18. Surplice (i) Upton v. Townend, 17 O. B. 64.
V. Farnsworth, 8 Sc. N. R. 307 ; 7 Carpenter v. Parker, 3 C. B. N. S.
M. & Or. 584. 238.
{g") Bennett v. Ireland, E. B. & E. (li) Delaney v. Fox, ante. Wheeler
326. V. Steverson, 30 L. J., Ex. 46 ; 6 H. &
(h) Monk V. Cooper, 2 Str. 763. N. 158.
' Seepos/, § 707.
• Id.
• It is not necessary that an eviction should be a physical
346 LAW OF CONTRACT. [Bk. II. Ch. II.
released from liability by reason of an eviction by a
mere wrong-doer and trespasser who has no title at
all to the possession of the demised premises.^ Thus,
act; Dyett v. Pendleton, 8 Cow. 727; Cohen v. Dupont, i
Sandf. 260. In Jackson v. Eddy, where B leased certain
premises to A, under his (B's) grocery store, and the drippings
from the grocery store rendered A's premises untenable; it
was held to be such an eviction as would absolve A from the
payment of the rent. When a landlord lets to two tenants
and the one of them makes his part disorderly and a nuisance,
it is no eviction, unless the landlord is instrumental in pro-
curing it. Nor is it his duty to proceed against the disorderly
tenant ; Townsend v. Gilsey, 7 Abb. Pr. N. S. 59. But under
certain circumstances it was held that the refusal by a land-
lord, occupying premises conjointly with his tenant, to permit
an under-tenant to occupy the premises, constituted an evic-
tion; Randell v. Alburtes, i Hilt. 2S5 ; and see Christopher
V. Austin, II N. Y. 216; tearing down a partition separating
the entrance to the tenant's room from a grog shop, so as to
' The act of a stranger can not work an eviction; Howard
V. Doolittle, 3 Duer. 464 ; Gardner v. Keteltas, 3 Hill. 330;
Weeks v. Bowerman, i Daly, 100; Johnson v. Oppenheim,
34 N. Y. Superior Ct. R. 416 (affirmed 55 N. Y. 2S0) ; White v.
Mealio, 37 N. Y. Superior Ct. R. 72; Sherwood v. Seaman,
2 Bosw. 127 ; Kramer v. Cook, 7 Gray, 550 ; Pollard v. Shaffer,
I Dallas, 210; Tunis v. Grandy, 22 Gratt. 109. A tenant in
possession, who is evicted before the determination of his
lease, may recover as damages the difference between the value
of his lease for the unexpired term, and the stipulated rent, or
if the eviction be at a season when the expense of removing
is greater than it would have been at the end of his term, he
may recover such extra expense. He can not recover as dam-
ages, however, any increased rent he may be compelled to
pay for other premises, and this without reference to the ac-
commodation as compared with that he had before ; Chatter-
ton V. Fox, 5 Duer, 64; Noyes v. Anderson, i Id. 342, and
Peck V. Hiler, 24 Barb. 178; but see, Wilson v. Raybould,
56 111. 417 ; or he may recover where unlawfully evicted from
premises he occupied as a livery stable ; a tenant may recover
for loss of profits from boarding horses, for the difference in
the expense of keeping his own ; Shaw v. Hoffman, 25 Mich.
162. See as to a Michigan statute against violent eviction
and treble damages. Id.
Sec. I.] LANDLORD AND TENANT. 347
where an action of debt was brought for three years'
arrears of rent reserved upon a lease of a farm, and
the defendant pleaded that Price Rupert, an alien and
compel him to pass through the latter in order to reach his
own room, amounts to an eviction ; Rogers v. Ostrom, 35
Barb. 523; or a continued habit of bringing lewd women
under the same roof with the leased premises ; Dyett v.
Pendleton, 8 Cow. 327. Where a dentist occupying the second
floor of a house, under a lease allowing him to practise his
profession and receive patients, was annoyed by other tenants
in the house mufHing the bell frequently, although the tenant
remonstrated with his landlord, who neglected or failed to
stop it, so that persons coming to visit the dentist would pull
at the bell, and wait from fifteen to twenty minutes and half
an hour, before eifecting an entrance, or be compelled to
leave without seeing him, to the great and inevitable detri-
ment of his professional business ; and in addition to this, plain-
tiff's family littered the stair-carpet with nut-shells, dirt, filth,
and sweepings from the storey above, and spilled water upon it,
and placed snow-balls in the window-sill, &c., to drip upon the
carpet ; used insulting or impertinent language to tenant's
patients; were in the habit of singing and shouting on the
stairway, &c. ; and on one occasion a placard was put on the
stairway to call attention, by his name, to the filthy condition of
the tenant's stairs — held, that these acts constituted an evic-
tion; Cohen v. Dupont, 1 Sandf. 260. But an undermining of
tenant's walls by an adjoining proprietor; Kramer v. Cook 7,
Gray, 550 ; White v. Mealio, 37 N. Y. Superior Ct. 72 ; Howard
V. Doolittle, 3 Duer, 464; Sherwood v. Seaman, 2 Bosw. 127 ;
or a building erected by the landlord on an adjoining lot ;
Palmer v. Wetmore, 2 Sandf. 316; Myers v. Gemmel, 9 N. Y.
Leg. Obs. 173 ; 10 Barb. 537 ; or the landlord's trespassing and
piling firewood on the demised land; Lounsberry v. Snyder,
31 N. Y. 514; and see Edgerton v. Page, 20 N. Y. 281;
Academy of Music v. Hackett, 2 Hilt. 217 ; or a landlord con-
tinuing to occupy a portion of the leased premises without
the intent to keep the tenant out of possession ; Vanderpoel
V. Smith, I Daly, 311; nor an interference by the landlord
with the person of the tenant, although on the demised
premises; Vatel v. Herner, i Hilt. 149 ; nor the use of a privy
by a landlord in a passage-way leading to the demised prem-
ises, which was there at the time of the hiring, in such a way
as to be offensive to the tenant, the tenant not being actually
348 LAW OF CONTRACT. [Bk. II. Ch. II.
enemy of the king, invaded the realm, and with
divers armed men did enter upon the demised
premises, and expel him therefrom, and keep him out,
so that he could not enjoy the lands during the
terms, " it was resolved that the matter of the plea
was insufficient." And this distinction was taken that„
where the law creates a duty or charge, and the party
is disabled to perform it without any default in
him, and hath no remedy over, there the law will
excuse him ; but when the party by his own contract
creates a duty or charge upon himself, he is bound to
make it good, notwithstanding any accident by
inevitable necessity, because he might have provided
against it by his contract. Another reason was added
that, as the lessee is to have the advantage of casual
profits, he must run the hazard of casual losses, and
not lay the whole burthen of them upon his lessor. (/)
So, where the parliament, during the civil wars, took
(/) Paradine v. Jane, Aleyn. 27 ; Sty. v. Tomkinson, I H.& N. IvjS. Brown
47. Barrett v. Button, 4 Campb. 333. v. Royal Insurance Society, 28 L. J.,
Maryon v. Carter, 4 C. & P. 295. Hills Q. B. 277.
V. Sughrue, 15 M. & W. 253. Jervis
deprived of any part of his premises. Id. In Ogden v. Sand-
erson, 3 E. D. S. 166, it was said that where a tenant was
present at a negotiation between his landlord and another, to.
re-let the premises to a third person, and did not object, but
proposed a surrender on his own part, possession by such
third person will not be an eviction. An eviction does not
affect the landlord's right to collect arrears of rent ; McKeon
v. Whitney, 3 Den. 452; Giles v. Comstock, 4 N. Y. 270;
although the rent be payable in advance, and the eviction oc-
curs before the expiration of the period ; Id. ; Whitney v.
Meyers, i Duer. 266 ; an eviction only suspends the rent dur-
ing the continuance of the eviction ; Ogden v. Sanderson, 3,
E. D. S. 166; but see Lansing v. Van Alstyne, 2 Wend. 561 ;
Blair V. Claxton, 18 N. Y. 529; Christopher v. Austin, 11 N.
Y. 216. And see Lounsberry v. Snyder, 31 N. Y. 514; Edgerton
T. Page, 20 N. Y. 281.
Sec. I.] LANDLORD AND TENANT. 349
possession of a house which had been demised to a
lessee for a term of years, and turned it into an hos-
pital for sick and maimed soldiers, and so prevented
the lessee from having any beneficial occupation
thereof for several years, notwithstanding which the
lessor brought an action of debt for the rent, no ques-
tion appears to have been made but that the lessee
was bound at common law to make good the rent ;
and the lessee consequently brought his bill in equity
for relief, on the ground that he had no remedy over
against the wrong-doer, because it was an act of force
in the parliament, which had been pardoned by the
act of oblivion ; but it does not appear that he got
relief even in equity, (m)
701. Eviction by railway companies under statu-
tory powers. — If the tenant is lawfully evicted by a
railway company under the powers of its Act, the
tenant is discharged from the accruing rent, but not
from rent that was due and in arrear at the time of
the eviction. Where a yearly tenant received notice
from a railway company to give up possession of cer-
tain land within six months from the notice, and the
notice expired in the middle of a half year, and the
tenant gave up possession to the company without
obtaining or requiring compensation in respect of his
unexpired term and interest in the premises, it was
held that he was liable to his landlord for the whole
of the half year's rent. («) When a certain portion
only of lands or tenements held by tenants or lessees
has been taken by a railway company under the
(ot) Harrison v. Lord North, i Ch. Mears, 28 L. J., Q. B. 305. Wheeler
•Ca. 84. As to proof of expulsion, see v. Steverson, 6 H. & N. 15S ; 30 L. J.,
Mayor, &c., of Poole v. Whitt, 15 M. Ex. 46.
& W. 577. As to evidence of eviction, («) Wainwright v. Ramsden, 5 M.
see Morrison v. Chad wick. 7 C. B. 283; & W. 602. Post, Notice to Quit.
.l8 L. J., C. P. Iq3. Henderson v.
350 LAW OF CONTRACT. [Bk. 11. Ch. 11.
powers of its Act, the rent is to be apportioned ; and
the rent to be paid by the tenant for the residue of
the lands not taken by the company, must be settled
by agreement of the parties, or by two justices, or by
a jury, (o) '
If the lessor, after granting the lease, sells and
conveys all his estate and interest in the demised
premises, he has no longer any right to the accruing
rent. The rent passes with the reversion to the
lessor's grantee without any atornment on the part of
the tenant ; but the tenant is not to be prejudiced or
damaged by payment of rent to the lessor, or by
breach of any condition for non-payment of rent, be-
fore notice of the transfer and conveyance has been
given to him by the grantee. (/)
702. Payment of ground-rent by the tenant — De-
duction thereof from the te^ianfs rent. — -The imme-
diate landlord is by the common law bound to protect
his tenant from all paramount claims ; and when,
therefore, the tenant is compelled, in order to protect
himself in the enjoyment of the land in respect of
which his rent is payable, to make payments which
ought, as between himself and his landlord, to have
been made by the latter, he is impliedly authorized to
make the payment on the landlord's behalf; and the
courts have held such payments to be payments in
(0) 8 & 9 Vict. c. 18, s. 119. Bac. (/) 4 Ann. u. 16, ss. 9, 10. And see
Abr. Rent, M. In re Ware, 9 Exch. De NichoUs v. Saunders, ante.
395-
' Where property is appropriated under the right of emi-
nent domain, it is not such an eviction as will bar a suit for rent.
Folts V. Hautley, 7 "Wend. 210; Gillilan v. Spratt, 3 Daly,
440. But the tenant may be entitled to an abatement; Gil-
lespie V. Thomas, 15 Wend. 464; Foote v. Cincinnati, 11 Ohio,
408 ; Patterson v. Boston, 20 Pick. 159 ; Parks v. City of Bos-
ton, 15 Pick. 198; Mills V. Baehr, 24 Wend. 254.
Sec. I.] LANDLORD AND TENANT. 351
satisfaction of rent due, or accruing due, to the imme-
diate landlord. Thus, a tenant who has been compelled
by a superior landlord, or other incumbrancer having
a title paramount to that of his immediate landlord, to
pay sums due for ground rent or other like charges,
may treat such payments as payments in satisfaction
or part satisfaction of rent due to his immediate land-
lord, {jj) But the tenant should deduct these pay-
ments from the next rent that becomes due, or from
the rent of the current year ; for, if he allows several
payments of rent to pass without giving his immediate
landlord notice of the payment, and claiming the
deduction, he will lose his right to deduct the money
he has paid from the rent, {r) Payments of money
on account of the landlord, not charged upon the de-
mised premises and leviable upon the chattels of the
occupier, can not be given in evidence in satisfaction
and discharge of the rent, unless they were expressly
directed or sanctioned by the landlord. (.$■) The tithe
commutation Acts do not impose any personal
liability on the landlord to pay the tithe rent-
charges. (/)
703. Deduction of income-tax, land-tax, sewers-
rate, and other out-goings from the rent. — As regards
land-tax, paving-rates, and property and income-tax,
charged on land demised to a tenant, («) the tenant
ought to deduct the tax or rate out of the next rent
that becomes due. If he fails to do this, he can not
deduct it from subsequent rent, nor can he recover it
(q) Graham v. Allsopp, 3 Exch. 198. {s) Davies v. Stacey, 12 Ad. & E. 511.
Taylor v. Zamira, 6 Taunt. 524. Jones • {t ) Griffinhoofe v. Daubuz, 4 E. & B.
V. Morris, 3 Exch. 742. 235.
(r) Andrew v. Hancock, 3 Moore, («) l6 & 17 Vict. c. 34, s. 40. 27 &
278. Spragg V. Hammond, 4 Moore, 28 Vict. c. 18, s. 15.
440.
352 LAW OF CONTRACT. [Bk. II. Ch. II.
by action from the landlord, {x) If the landlord is
entitled to be relieved from the assessment, it is his
duty to take the necessary steps for the purpose ; and,
if, before he has done this, the assessment is made on
the occupier, and the tax paid, it may be deducted
from the rent, although at the time the deduction is
made the landlord has obtained his exemption from
the tax. (jv) The landlord is in general liable to pay
taxes in proportion to the rent reserved, and not to
the improved value. Where, therefore, a tenant built
on land demised to him, and raised the annual value
from ;^6o to /300, it was held that he was only en-
titled to deduct sewers-rate and land-tax upon the
original rent, and that he was himself properly charge-
able in respect of the improved value, (z) Where
the lessor was also the owner of the tithe rent-charge
upon the land, it was held that a covenant to pay " all
taxes and assessments whatsoever for or in respect of
the demised premises, save and except the level-tax,
property-tax, and land-tax," did not include the tithe
jent-charge, and that the lessee was not bound to pay
it. {a)
The Roman law, in its exposition and enforcement
of leases, was much more favorable to the tenant than
our own law. There the enjoyment of the thing for
the use of which the rent was agreed to be paid was a
condition precedent to the lessor's right to demand
the rent. If, for example, the tenant was evicted by
irresistible force, and kept out of possession, without
any default on his own part, he was discharged from
the rent, whether the eviction was the act of the lessor
(x) Andrew v. Hancock, supra. (^y) Swatman v. Ambler, 24 L. J.,
Denby v. Moore, i B. & Aid. 129. Ex., 185.
Cumming v. Bedborough, 15 M. & W. (s) Smith v. Humble, 15 C. B. 321.
438. (a) Jeffrey y. Neale, L. R , 6 C. P.
240 ; 40 L. J., C. P. 191.
Sec. I.] LANDLORD AND TENANT. 353
himself or of persons having title, or the act of mere
wrong-doers. If a house demised to a tenant for habi-
tation became ruinous and uninhabitable ; if the win-
dows were blocked up or darkened, and the tenant
•deprived of light and air by the raising of the roof of
an adjoining house, or his use and enjoyment of the
property were interfered with by a nuisance which he
had no means of abating, he might quit the demised
premises, vacate his lease, and refuse further payment
of rent. ((5) If pasture land was demised for the pur-
pose of feeding cattle, and poisonous herbs grew up
and destroyed the beasts, the landlord lost his right to
the rent, (c) If lands were granted to farm for the
term of one year only, and the tenant by reason of
some inevitable accident, such as a volcanic eruption,
an earthquake, a frost, a hail-storm, an inundation, or
a hostile incursion, lost the whole of the produce of
the soil and reaped nothing, he was discharged from
his rent. (^) If a partial injury only had been sus-
tained— if, for instance, the growing crops were
damaged by an extraordinary drought, or the unusual
inclemency of the weather — the lessee was entitled to
a proportionable abatement of his rent. But in order
to sustain his claim for an abatement, he was bound
to show that the loss arose from some unusual occur-
rence not reasonably to have been expected and con-
templated by the parties at the time of the making of
the contract. He was never granted an abatement
of rent in respect of losses in any way attributable to his
own want of diligence or skill, nor in respect of any
accident which might reasonably have been foreseen
(i) Dig. lib. ig, tit. 2, lex 15, § 7, demortua sunt, vel deteriora facta,
§ 1 ; lex 33, lex 25, § 2. Cod. civ. quod interest prsestabitur, si scisti si
1726, 1727. ignorasti, pensionem non petes. Dig.
if) Si saltum pascuum locasti in quo lib. Ig, tit. 2, lex ig, § i.
herba mala nascebatur, et pecora vel {d) lb. lex 15, § I, 2.
II. — 23
354 LAW OF CONTRACT. [Bk. II. Cn. IL
and guarded against, nor for inconsiderable and trifling
losses. (^) And in all leases for terms of years, the
good years were to be taken with the bad years, so
that the lessee could not claim to be excused from
rent in respect of the total loss of the harvest in any
one year of his tenancy, but could only claim the
abatement towards the expiration of the term, upon a
fair average of profit and loss. (/" )
704. Distress for rent.— The lessor's right to enter
in person or by deputy upon the demised premises
and distrain the goods and chattels of the tenant for
rent or services in arrear, has existed in this country
from so early a period " that we have no memorial of
its original with us." (_^) It was doubtless derived
from the Roman law, which considered all the chat-
tels and movables and personal property that the
tenant brought upon the demised premises, and all
the crops and fruits and produce of the soil growing
or stored upon the land, to be hypothecated to the
lessor as a security for the due payment of the rent, so
that the lessor might, if rent was due and unpaid,
enter upon the demised premises and take possession
of such goods and chattels and produce, and hold the
same as a security for the amount due. (/;) This
power of entering upon the land and taking corporeal
possession of the pledge is impliedly accorded to the
lessor on every demise of realty where there is an ex-
press reservation of, or an agreement by, the tenant to
pay a fixed ascertained rent or service, (z) If there
(i) Doraat (Louage), No. 4, 5, 6, (h) In prtediis ruslicis fructus qui
Pothier (Louage), No. 153. Dig. lib. ibi nascuntur tacite intelliguntur pig-
19, tit. 2, lex 15. § 2. nod esse domino fundi locati, etiamsi
(/") lb. § 4; l»x 55, § I. Instit. nominatim id non convenerit. Dig.
Mb. 3, tit. 25, § 3. Cod. lib. 4, tit. 66, lib. 20, tit. 2, 4, 7 ; Cod. lib. 8, tit. 15,
lex I. lex 3. Bract, lib. 2, fol. 62, cap. 28.
(g) Gilbert on Distress. 2Bro. Abr. (») Litt. ^ 214,
Distress, fol. 252. Biadby, 2.
Sec. I.] LANDLORD AND TENANT. 355
has been merely a permissive occupation of the prop-
erty, without any previous payment of rent referable
to some certain term of hiring, or to some definite
portion of a year, the lessor has no right of entry upon
the land nor power to distrain, but must proceed by
way of action upon the implied promise of the tenant
to pay a fair and reasonable compensation for the per-
missive use and enjoyment of the property, (y^) But
whenever there is a tenancy at will at a fixed rent,
there is a right to distrain. (/) It is essential to the
lawful exercise of the power of distress that the dis-
trainor be the party entitled to the reversion of the
property on the determination of the lease, (m) By
the 34 & 35 Vict. c. 79, the goods of lodgers are pro-
tected against distresses for rent due to the superior
landlord ; and by the 35 & 36 Vict. c. 50, railway roll-
ing stock is protected from distress when on the line.'
(k) Dunk V. Hunter, 5 B, &' Aid. man v. Ellison, L. R., 2 C. P. 681 ; 36
325. L. J., C. P. 326.
(I) Anderson v. Midland Railway («) See the 8 & 9 Vict, c. 106.
Company, 30 L. J., Q. B. g6. Yeo-
' The remedies devised for the protection of landlords
with us are the common law action of debt ; McKeon v.
Whitney, 3 Den. 452; or of covenant; Id.; or for use and
occupation, or by summary proceedings to obtain possession
of the premises, or for double rent, or for mesne profits which
are given by the statutes of the state. He also may have a
remedy by proceedings in the nature of the old action for
waste in various states. (In the state of New York this action
was abolished by the Code, § 450, and the wrongs remediable
thereby made the subject of a civil action.) He also has his
action for trespass ; certain statutory remedies are also
provided in the various states for the recovery of premises
used for purposes of prostitution and for other illegal trades
and traffics. The policy of a distress for rent has been adopted
in many of the American states. The New England states
have substituted therefor the law of attachment on mesne pro-
cess; which proceeding, however, pi-eserves many of its fea-
tures. In New York, distress has iDeen abolished as an invid-
3S6 LAW OF CONTRACT. [Bk. II. Ch. II.
705. Extinguishment of the right to distrain by
an assignment of the reversion. — If the lessor, after
the making of the demise, conveys the property to a
purchaser, he has no power to distrain for the rent
that became due prior to the execution of the convey-
ance, as he is no longer possessed of the reversion ex-
pectant upon the determination of the lease, {ri)
Neither can the purchaser distrain for such rent ; for
it was a fruit fallen from the reversion at the time of
the conveyance of the demised premises to him. {o)
If, however, the conveyance was preceded by the or-
dinary agreement between vendor and purchaser vest-
ing the equitable estate in the latter prior to the rent
becoming due, the purchaser would be entitled to re-
cover the rent by action. (/)
706. Apportionment of rent. — The 4 & 5 Wm. 4
c. 22, respecting the apportionment of rent did not
apply to leases created by parol, {f) But by the 33
& 34 Vict. c. 35, rents are to be deemed to accrue from
day to day, and are apportionable in respect of time.
707. Of compensation for the use and occupation
(ri) 43 Ed. 3, 4. Bro. Abr. Dette, (/) Anon. Skinn. 367. Midgley v,
pi. 3g. Parmenter v. Webber, 8 Taunt. Lovelace, Garth. 290.
593. Preece v. Corrie, 5 Bing. 24. {q) Cattley v. Arnold, 28 L. J., Ch.
(0) Midgley v. Lovelace, Garth. 289 ; 353. Plummer v. Whiteley, 2g L. J.,
12 Mod. 46. Gh. 247.
ious distinction in favor of a particular class of creditors. (So
also in Mississippi. GrifF. Law Reg. 697.) And the courts of
North Carolina have declared that it does not exist in that
state. Dalgleist v. Grandy, Cam. & Nor. 22. South Carolina
goes even to the extent of allowing distress for double rent
where a tenant holds over after notice to quit. Reeves v. Mc-
Kenzie, i Bailey, 497. In Alabama and Tennessee, there are
no statutes on the subject; and in Ohio there is only a statute
to secure a landlords' share of crops against execution against
a tenant. GrifF. Law Reg. 404. Under the Civil Code of
Louisiana a landlord may follow furniture removed by the
tenant for fifteen days after removal. Code, 2675.
Sec. I.] LANDLORD AND TENANT. 357
of land. — The landlord, where there is no agreement
for any specific rent, is entitled to recover a reasonable
satisfaction for the lands, tenements, or hereditaments
held or occupied by the tenant, without proof of any
demise, on the implied promise resulting from the
simple fact of the permissive use and enjoyment of
the property ; (r) but no action will lie, unless there
is a promise either express or implied to pay for the
use and occupation. {/) *
(r) II Geo. 2, c. 19, s. 14. Church- Hardon v. Hesketh, 4 H. & N. 178.
ward V. Ford, 26 L. J., Ex. 354 ; 2 H. {s) Turner v. Cameron's Coal, &c.,
&N. 446. Hellier V. Sillcox, 19 L. J., 5 Exch. 937. Carmier v. Mercer, cited
Q. B. 295. Levy v. Lewis, 6 C. B., Birch v. Wright, i T. R. 387. Mayor
N. S. 766 ; 9 C. B., N. S. 874 ; 28 L. of Newport v. Saunders, 3 B. & Ad.
J., C. P. 304; 30 L. J., C. P. 141. 412.
' An action for use and occupation is founded on a priv-
ity of contract between the landlord and the tenant. Bedford
V. Terhune, 30 N. Y. 435 ; a mere title in the plaintiff and occu-
pation by the defendant are not sufficient ; Hall v. Southmayd,
15 Barb. 35 ; Wiggin v. Wiggin, 6 N. H. 298 ; Ryan v. Marsh;
2 N. & McC. 156; Stockett V. Watkins, 2 Gill & Johns. 326;
Brewer V. Craig, 3 Harr. 214; Curtis v. Treat, 8 Shep. 525;
Brolasky v. Ferguson, 48 Penn. St. 434 ; Steuart v. Fitch, 2
Broom, 17; Edmondson v. Kite, 43 Mo. 176; Wood v. Wil-
cox, I Den. 37 ; Croswell v. Crane, 7 Barb. 191 ; Sylvester v.
Ralston, 31 Id. 286; Jennings v. Alexander, i Hilt. 154;
Hurd v. Miller, 2 Id. 540 ; Taylor v. Bradley, 4 Abb. Ct. App.
Dec. 363 ; 53 Barb. 258; Richey v. Hinde, 6 Ohio, 371; But-
ler V. Cowles, 4 Id. 205 ; Pierce v. Pierce, 25 Barb. 243 ; and
see Vanderheuvil v. Storrs, 3 Conn. 203 ; Stacy v. Vermont,
&c. R. R. Co., 32 Vt. SSI ; Bell v. Ellis, i Stew. & P. 284 ; Lit-
tle V. Pierson, 7 Pick. 301 ; Jones v. Tipton, 2 Dana, 20s ;
Bancroft v. Wardell, 13 Johns. 489. Such an action will not,
therefore, lie ordinarily against an under-tenant ; Jennings v.
Alexander, i Hilt. 154 ; a power to occupy is sufficient; Hall
V. Western Transportation Co., 34 N. Y. 284 ; nor would it lie
against one having possession of land under a contract of sale ;
Bancroft v. Wardell, 13 Johns. 480; Stacy v. Vermont, &c. R. R.
Co., 32 Vt. 551 ; Jones v. Tipton, 2 Dana, 295 ; Little v. Pierson,
7 Pick. 301 ; nor against a mere trespasser ; Hurd v. Miller, 2
Hilt. 540 ; Weaver v. Jones, 24 Ala. 420 ; nor where one enters
358 LAW OF CONTRACT. [Bk. II. Ch. II.
708. Constructive occupation. — An actual personal
occupation is not necessary to entitle the landlord to
compensation, when the lessee has entered and taken
possession, and the term has become vested in him. (/)
But there must be proof of an actual entry on the
land (ji) and taking of possession, or it must be shown
that " there has been an occupation by some other
parties standing in such a relation to the defendant
that their occupation is his and that he is personally
liable for it." {v) An entry by one of two joint lessees
is an entry by both, so as to render both liable, (jk)
The action is maintainable, where no certain rent has
been reserved, and where there is, consequently, no
[f) Baker v. HoItpzafFel, 4 Taunt. L. J., Ex. 318. How v. Kennett, 3
45. Izon V. Gorton, 7 Sc. 547 ; 5 Ad. & E. 665.
Bing. N. C. 507. Pollock v. Stacy, 9 {v) Bull v. Sibbs, 8 T. R. 327.
Q. B. 1033, (y) Glen v. Dungey, 4 Exch. 61 ;
(«) Lowe V. Ross, 5 Exch. 553 ; 19 18 L. J., Ex. 359.
into possession in expectation of becoming a lessee, and no lease
is ever actually entered into ; Greaton v. Smith, 33 N. Y. 246;
or where the possession is tortious ; Reckey v. Hinde, 6 Ham.
371 ; Wiggin v. Wiggin, 6 N. H. 293; Stockett v. Walkins, 2
Gill & J. 326 ; nor where the actual lease is in another ; Bed-
ford V. Terhune, 30 N. Y. 453 ; nor against a tenant holding
over, after the expiration of his term, where proceedings have
been instituted against him to turn him out of possession
under a statute ; Featherstonhaugh v. Bradshaw, i Wend. 134;
Crane v. Hardman, 4 E. D. Smith, 339; nor where there is no
actual entry or possession ; AVood v. Wilcox, i Uen. 37 ; though
a mere taking a key and entry without continued possession ;
Little V. Martin, 3 Wend. 220 ; or where the actual power and
opportunity to occupy is given by the landlord to the tenant,
so far as the landlord is concerned ; Hull v. Western Trans.
Co., 34 N. Y. 284; Moffatt v. Smith, 4 Id. 126 ; Little v. Mar-
tin, 3 Wend. 220; it is sufficient to maintain such, the action;
and see Pott V. Gosher, i Yeates. 576; O'Fallon v. Boismean,
3 Miss. 405 ; McFaddin v. Rippey, 8 Id. 738 ; Eston v. Dugan,
21 Pick. 538 ; Codman v. Jenkins, 14 Mass. 93 ; Allen v. Thayer,
17 Id. 299; Fletcher v. iMcFarlane, 12 Id. 43.
Sec. I.] LANDLORD AND TENANT. 359
right to distrain, (z) The compensation accrues de
die in diem, so that, if there is no express contract for
the payment of rent at specific periods, the lessor is
■entitled to be paid from day to day so long as the oc-
cupation lasts. («) Very slight circumstances, such
as entry on the lands, the putting up a notice or ad-
v^ertisement, sending a woman to clean windows or
rooms, or workmen to put up paper or do repairs, will
suffice to establish the fact of entry and of actual occu-
pation, (b) '
An occupation by an under-tenant of the lessee is
the lessee's own occupation, as much as if he were him-
self personally present upon the land. But if one of
two joint lessees holds over after the expiration of his
lease, without the assent of his co-lessee, the latter is
not responsible in respect of the occupation of such
co-lessee, (c) The occupation of the wife before mar-
riage is not the occupation of the husband, (of) The
actual possession and use by one of two executors of
property holden on lease by their testator is not in
law a possession and use by both, and does not render
both chargeable as joint occupiers in their own right.
(i) If a lessor sells or transfers his legal estate and
interest in the demised premises to a third party, and
the lessee receives notice of the transfer, and is required
to pay his rent to the transferee and refuses, he is liable
to an action at the suit of the latter. (/") The defen-
ce) Waring v. King, 8 M. & W. 574. Crofts, 15 M. & W. 166 ; 15 L. J., Ex.
Hamerton v. Stead, 5 D. & R. 211 ; 3 92.
B. & C. 482. (d) Richardson v. Hall, 3 Moore,
(a) Packer v. Gibbins, I Q. B. 421. 307.
(b) Sullivan v. Jones, 3 C. & P. 579. {e) Nation v. Tozer, I C. M. & R.
Smith V. Twoart, 2 M. & Gr. 841. 175-
(c) Ibbs V. Richardson, q Ad. & E. (/) Lumley v. Hodgson, 16 East,
849 ; I P. & D. 618. Christy v. Tan- 104. Birch v. Wright, i T. R. 378.
<:red, 9 M. & W. 438, 448. Draper v. Rennie v. Robinson, 7 Moore, 539.
' See last n(jte.
36o LAW OF CONTRACT. [Bk II. Ch. II.
dant may show that the plaintiff's interest in the prem-
ises has expired, or has been transferred to some third-
party ; but he is estopped from denying the lessor's
title to grant the property to be enjoyed, and can not
show that the lessor has only the equitable estate, or
that he is entitled only as co-executor with others who-
do not join in the action. (^) A tenant who has oc-
cupied land under a corporation and paid rent to the
corporate body, is liable for use and occupation, al-
though the corporation can not in general contract
except by virtue of its common seal ; (/z) and a corpo-
ration which has actually occupied and used lands, &c.,.
may be made liable during the period of occupation,,
but not afterwards, unless there is a demise under
seal, (z)
If a man is let into possession under an agree-
ment for a lease to be granted at a future time, and
occupies, and receives the profits of, the land, he is
liable for a reasonable compensation to be paid to-
the owner for the use and enjoyment of the property..
(^k) But, if he takes possession of property as a
purchaser, under a contract of purchase and sale, and
the vendor is unable to make out a title, and the
bargain, consequently, goes off", the purchaser is not„
in general, bound to pay any compensation or re-
muneration to the owner for the temporary occupa-
tion and enjoyment of the property. (/) If however,
after a contract of purchase and sale has gone off" or
been abandoned, the intended purchaser continues to
ig) Phipps V. Sculthorpe, i B. & L. J„ Ex. ii5 ; but see Lowe v. Lon-
Ald. 50. don R. R. Co., L. R,, 14 Eq. R. 18.
(/;) Mayor of Stafford v. Till, 12 (/C-) Mayor of Thetford v. Tyler, 8-
Moore, 260. Q, B. 100.
(?:> Finlay v. Bristol and Exeter (/) Kirtland v. Pounsett, 2 Taunt.
Railway Company, 7 Exch. 417 ; 21 145, Winterbottom v. Ingham, 7 Q-.
B. 611 ; 14 L. J,, Q. B. 298.
Sec. I.] LANDLORD AND TENANT. 361
occupy and take the rents and profits of the land,
by the sufferance and permission of a party who is
then entitled to the immediate possession, he is
bound to pay a reasonable compensation to such
party for the permissive use and occupation of the
property, {m) So, if the vendor of a house con-
tinues to reside in it after he has sold it, he is not
liable in respect of such subsequent residence, unless
it be shown that he was permitted to remain in
possession upon the express or implied understanding
that the occupation was to be paid for. (n) If a
lessor has agreed to complete a house demised by
him, and the tenant enters and occupies, and the
landlord neglects to fulfil his agreement, he is never-
theless entitled to recover a reasonable sum in
respect of the use and occupation by the tenant of
the incomplete house, (o) If the tenant or occupier
has entered as a trespasser and wrongdoer, and has
remained in possession and used and occupied the
land to the exclusion of the owner, it appears to be
somewhat doubtful whether the latter may waive
the tort, and consent to the occupation, and sue the
tenant upon the ordinary implied promise to pay a
reasonable remuneration for the occupation and
enjoyment of the property.^ But, if the owner
accepts rent from a trespasser, this is a waiver of the
tort and a creation of a tenancy, with its accompany-
ing rights, duties, and responsibilities. If the land-
lord assigns his interest, and the tenant has notice of
the assignment, and continues to occupy with the
consent of the assignee, he may be sued by the
(m) Howard v. Shaw, 8 M. & W. {p) Smith v. Eldridge, 23 Law T.
122. R. 270.
(«) Tew V. Jones, 13 M. & W. 12.
' See last note.
362 LAW OF CONTRACT. [Bk. II. Ch. II.
latter, (/) but not otherwise. (^) A lessee is not
liable for use and occupation after he has been ad-
judicated a bankrupt, whether the trustees accept his
interest in the premises, or disclaim it. (r)
jog. Use and occupation by one of several joint-
tenants or tenants-in-common. — By the 4 Anne, c. 16,
s. 27, it is enacted that actions of account may be
maintained by one joint-tenant and tenant-in-common,
his executors, &c., against the other as bailiff, for
receiving more than comes to his just share or
proportion, and against the executor, &c., of such
joint-tenant or tenant-in-common. This statute ap-
plies to cases where two or more persons are tenants-
in-common of land leased to a third party at a rent
payable to each, or where there is a rent-charge, or
any money payment, or payment in kind, due to
them from another person, and one receives the
whole, or more than his proportionate share according
to his interest in the subject of the tenancy, and not
to cases where one has enjoyed more of the benefit
of the land and made more by personal occupation
of it than another. There are many cases in which a
tenant-in-common may occupy and enjoy the com-
mon land solely, and have all the advantage to be
derived from it, and yet not be liable to pay anything
to his co-tenant-in-common. (J) '
(p) Standen v. Chrismas, l6 L. J., (r) Bankruptcy Act, 1869, sect. 23.
Q. B. 265 ; 10 Q. B. 142. 4 Anne, c. (s) Henderson v. Eason, 2 1 L. J.,
16, s. 9. Q. B. 82.
(^) Cooke V. Moylan, i Exch. 67.
' A demand on either of two joint tenants is sufficient;
Geisler v. Weigand, 9 N. Y. 227 ; and one of two joint land-
lords may demand the whole rent, and commence proceed-
ings for its non-payment in the name of both. Griffin v. Clark,
33 Barb. 46; and see Howard v. Doolittle, 3 Bosw. 464; Da
Mott V. Agerman, 8 Cow. 220.
Sec. I.] LANDLORD AND TENANT. 363
710. Covenants and agreements to repair dilapi-
dations.— There is no implied covenant or promise,
■either on the part of the lessor or the lessee of a
house, to repair or uphold it during the term,' In
' City Council v. Moorhead, 2 Rich. 430; Mumford v,
Brown, 6 Cow. 475 ; Long v. Fitzsimons, 1 Watts & S. 530.
Such an obligation can only arise from contract ; Witty v.
Matthews, 52 N. Y. 512 ; and this rule applies to a lessee out
of possession, who has sublet to one in possession; Clancy v.
Byrne, 56 N. Y. 129. A tenant can not, without special
agreement, make repairs at the expense of his landlord ; Mun-
ford V. Brown, 4 Cow. 475 ; McCarty v. Ely, 4 E. D. Smith,
375 ; but where the landlord is bound to repair, and repairs
are needed, a tenant may make the repairs himself, and after
due notice to the landlord, and after waiting a reasonable
time, may recover the expense from the landlord; or he may
leave the premises unrepaired, and recover damages from the
landlord for his failure to repair; Myers v. Briggs, 35 N. Y.
269; Ward V. Kelsey, 38 Id. 80; Cook v. Soule, 56 Id. 420.
In such a case the lessee's measure of damage is the differ-
ence in the value of the use of the premises as they are and as
the lessor agreed to put them; Cook v. Soule 56 N. Y. 420.
A promise by a landlord to repair, made after the delivery
and acceptance of the lease, requires a new consideration to
render it binding. Walker v. Gilbert, 2 Robt. 214; Doupe v.
Genin, 37 How. Pr. 5; affirmed in 45 N. Y. 119; Flynn v.
Hatton, 43 How. 333; and see i E. D. S. 253; 2 Id. 248, A
tenant from year to year, renting part of a dwelling-house, the
residue of which is occupied by other tenants, is under no
obligation to make repairs of so general, substantial, and last-
ing a nature, as the rebuilding of a chimney which has fallen
down. Eagle v. Swayze, 2 Daly, 140 ; Johnson v. Dixon, i Id.
178. There is no implied warranty in the contract of letting,
that the premises are tenantable ; Mayor v. MoUer, i Hilt. 491 ;
Academy of Music v. Hackett, 2 Hilt. 217 ; Post v. Vetter, 2 E.
D. Smith, 248; Wallace V. Lent, i Daly, 481 ; and in the ab-
sence of any stipulation the lessor will be held to agree to take
the house as it stands, and can not compel the landlord to put
it into a condition fit for habitation ; JafFe v. Harteau, 56 N. Y.
398. Under a written lease, parol evidence can not be given
that the landlord at the time of executing it, promised to re-
pair ; Cleves v. Willoughby, 7 Hill, 83. A landlord is under
no obligation to the tenant to protect his premises from ad-
364 LAW OF CONTRACT. [Bk. II. Ch. IK
Dyer, it is said to be " reasonable law," where a lease
of a house has been made without any covenant on
either side to repair, " that the termor should require
the lessor to do the repairs ; and, if the lessor, after
notice and request, be negligent, whereby the house
falls, the lessee shall have an action upon the case
against the lessor for not repairing it, and shall
recover as much in damages as the inconvenience
he suffers from the want of his house shall amount
to." (J) But the Court of Queen's Bench has
held that there is no obligation on the part of
a landlord to repair, in the absence of an express
(t) Dyer, 36, b.
joining excavations; Sherwood v. Leaman, 2 Bosw. 127;
Howard v. Doolittle, 3 Duer. 464; Wiiite v. Mealio, 37 N. Y.
Superior Ct. 72. Where a building is injured by fire, the
landlord can not be compelled to re-build or repair it for the
benefit of his tenants, unless he has expressly covenanted to
do so; nor is he liable for injuries consequent upon his delay
to repair the part destroyed. Doape v. Genin, 45 N. Y. 119.
Where a wharf was leased, and was destroyed by natural de-
cay, before the lessee's entry, it was held that, although upon
the les?ee giving the lessor notice of the same, the latter
neglected to repair it, the lessee was still liable for the rent.
Hill v. Woodman, 14 Me. (2 Shepl.) 38; and see Cleves v.
Willoughby, 7 Hill, 83. Where premises are leased for a first
class hotel, a covenant to keep the same in repair is broken
by permitting the flues to remain in such a condition that the
rooms can not be used with a fire on account of the issuing
of smoke from the grate in the room whenever a fire is lighted
therein. Myers v. Bowers, 35 N. Y. 269.
In an action for rent, defendant may, under a covenant
of the landlord to keep the premises in repair, set up, as a
counter-claim, an amount expended by him in the necessary
repair of the premises, and also damages sustained by the
loss of the use of certain parts of the premises rendered un-
tenantable for want of repair ; and in such an action the defend-
ant may recover for his expenses in repairs, even when they ex-
ceeded what it would have cost the landlord had he employed
his own mechanics. Walker v. Swayze, 3 Abb. Pr. 138.
Sec. I.] LANDLORD AND TENANT. 365
'Contract in that behalf; and, therefore, if a house de-
mised falls, and destroys the furniture of the lessee, the
landlord will not be responsible in damages. («)
Where the lessor covenants to repair, there is no
breach until after notice of want of repair, (v) Ever/
covenant by a lessee that he will well and .sufficiently
repair and maintain the demised premises during the
term, and deliver them up at the expiration thereof in
good repair and condition, will be construed in con-
nection with surrounding circumstances ; and the
extent of the liability will depend upon the age of the
buildings, the state and condition of them at the time
»of the demise, and the length of the lease.' If the
house is an old house, the tenant is bound to keep it
up only as an old house, and can not be compelled to
replace old materials with new. (jj/) " Where a very
■old building is demised, and the lessee enters into a
covenant to repair, it is not meant that the old build-
ing is to be restored in a renewed form at the end of
-the term, or of greater value than it was at the com-
mencement of the term. What the natural operation
•of time flowing on effects, and all that the elements
bring about, in diminishing the value, constitute a loss
which, so far as it results from time and nature, falls upon
the landlord. But the tenant is to take care that the
premises do not suffer more than the operation of time
and nature would effect ; he is bound by seasonable
applications of labor to keep the house as nearly as
possible in the same condition as when it was demised.
If it appears that he has made these applications, and
laid out money from time to time upon the premi-
(«) Gott V. Gandy, 2 E. & B. 845 ; Ex. 25 ; 40 L. J., Ex. 33.
■^3 L. J-. Q- B. I. {y) Harris v. Jones, i Mood. &
(v) Makin v. Watkinson, L. R., 6 Rob. 175.
' Jaqueis v. Gould, 4 Cush. 384.
366 LAW OF CONTRACT. [Bk. II. Ch. 11.
ses, it would not be fair to judge him very rigorously
by the reports of a surveyor, who is generally sent in
for the very purpose of finding fault. The jury are to
say whether or not the lessee has done what was
reasonably to be expected of him, looking to the age
of the premises on the one hand, and to the words of
the covenant which he has chosen to enter into, on the
other." (z) If the lessee has covenanted to keep the
demised premises in good repair during the term, and
at the time of the demise they were old and in bad
repair, he must put them in good repair as old premises,,
and not keep them in bad repair because they hap-
pened to be in that state when he took them. The
age and class of the premises, however, with their
general condition as to repair, must be looked at in
order to measure the extent of the repairs to be done,
(a) If the lessee has covenanted to repair buildings,
" the same being first put into repair by the lessor,"
the liability of the lessee does not arise until after all
the buildings have been put into repair by the lessor,
(3) who is bound to repair in the first instance, (r)
When the lessee has entered into an express covenant
or agreement to repair, uphold, and keep in repair a
house, or any other structure or building demised to
him, he is bound to re-build or re-construct it, if it is
burned by an accidental fire, or blown down by temp-
est, or destroyed by floods or by an inevitable acci-
dent ; for " when the party, by his own contract,
creates a duty or charge upon himself, he is bound to
make it good, notwithstanding any accident by inevi-
table necessity, because he might have provided
(z) Tindal, C. J. Gutteridge v. {b) Neale v. Ratcliff, 15 Q. B. gi6 ;
Mumyard, I Mood. & Rob 356. Coward v. Gregory, 36 L. J., C, P. i ;
(a) Payne v. Ilaine, 16 M. & W. L. R., 2 C. P. 153.
545 ; 16 I- J.. Ex. 130. {c) Cannock v. Jones, 3 Exch. 233.
Sec. I.] LANDLORD AND TENANT. 367
against it by his contract." And, therefore, if the
lessee covenants to repair a house, or a bridge, and
the house is burned down by lightning or an acci-
dental fire, or thrown down by enemies, or the bridge
is washed away, the lessee must rebuild, [d^'^ The
ordinary covenant to repair the demised tenements
and dwelling-houses does not extend (so as to create
a forfeiture under a proviso for re-entry in case of non-
performance of covenant) to an entirely new structure
erected during the terra, not in existence and not
forming part of any buildings on the premises at the
time of the execution of the lease, {e) unless it ap-
pears that the land was demised for building purposes,
and that the erection of buildings by the lessee during
the term was contemplated by the parties, and that
the covenant was meant to extend to buildings there-
after to be erected. (/")
Where a lease, executed on the 9th of November^
contained a covenant on the part of the lessee to re-
pair, and the tenant had taken possession and pulled
down buildings in the preceding month of June, it was
held that he could not be made responsible in an
action of covenant, as the lease was not then executed>
although the habendum of the lease stated that the
premises were to be holden from the preceding 2 2d
of June. The habendum marked only the duration
of the tenant's interest, and could not operate retro-
(flf) 40 Ed. 3, fol. 6, pi. II. Para- Chesterfield v. Bolton, 2 Com. Rep.
dine v. Jane, Aleyn, 27 ; 2 Saund. 627.
421, a (2) ; Dyer, 33 a, pi. 10. Breck- (if) Cornish v. Cleife, 3 H. & C. 446 ;
neck Company v. Pritchard, 6 T. R. 34 L. J., Ex. 19.
750. Bullock V Dommitt, ib. 650. (/) Dowse v. Cale, 2 Vent. 126 ; 3
Lev. 264.
' Stockwell V. Hunter, 1 1 Met. 448 ; White v, Molyneux,
2 Kelly, 127; Magau v. Lambert, 3 Barr. 444; Linn v. Ross,
10 Ohio, 412; Willard v. Tellman, 19 Wheat. 358.
368 LAW OF CONTRACT. [Bk. II. Ch. II.
spectively as a grant, {g) If the lease is under seal,
and the tenant has bound himself by covenant to
repair, and the landlord assigns his interest, the
assignee is entitled, as we have seen, to sue upon the
covenant. (/«) Covenants to repair are covenants
which run with the land, and are continuing cove-
nants to the end of the term, (i) They extend to all
additions and enlargements of structures existing at
the time of the demise, but not to detached, inde-
pendent buildings erected after the making of the
lease. (/^) If the landlord has evicted the tenant from
part of the demised premises, the tenancy is not, as
we have seen, thereby determined, and the tenant is
not discharged from the performance of a covenant to
repair. (/) The landlord is entitled to recover dama-
ges for breach of a contract to yield up in repair at
the end of the term, although he immediately proceeds
to demolish the buildings, (nt)
Where a party entered into possession under a lease
which was void as to the duration of the term from its
being an invalid execution of a power, but the lessee
had the benefit of the possession of the land and the
perception of the profits for the whole term purported
to be granted, he was held liable upon his covenant
to repair contained in the same lease. («) And where
articles of agreement under seal were entered into be-
tween an intended lessor and lessee for the grant of a
lease for twenty-one years, as soon as a license from
the lord of the manor (the land being copyhold land)
{g) Shaw V. Kay, I Exch. 412 ; 17 (k) Cornish v. Cleife, 34 L. J., Ex.
L. J., Ex. 17. 19 ; 3 H. & C. 446.
{h) Bickford V. Parsons, 17 L. J., C. (/) Morrison v. Chadwick, ante.
P. 192. (m) Rawlings v. Morgan, l8 C. B.,
(»•) Martin v. Clue, 22 L. J., Q. B. N. S. 776 ; 34 L. J., C. P. 185.
147. («) Beale v. Sanders, 3 Bing. N. C.
850; 5 Sc. 58.
Sec. I.] LANDLORD AND TENANT. 369
could be obtained, and the lessee covenanted to
keep the premises in repair during the term so to be
granted, and subsequentl)'- entered and took possession
of the land, and occupied the same under the agree-
ment for the full term of twenty-one years, it was held
that he was responsible upon his covenant to repair,
although the intended lease had never been made, nor
any license obtained from the lord. {0) If the lessee
has not entered and held under the indenture of de-
mise executed by him, and upon the terms of the cove-
nant he has thought fit to enter into, but under a
distinct parol demise, then he is not liable upon the
covenants of the lease. (/) Where a lease made
under a leasing power was void from non-compliance
with the requirements of the power, but the lessee
entered and took possession, and paid rent, and then
assigned his interest, and the assignee entered and
paid rent under the void lease, and continued in
possession until the end of the term intended to have
been granted, it was held that he must be taken to
have promised to hold upon the terms of the lease,
and that he was liable for not repairing according to
the covenant therein contained, {(j) We have already
seen that, if a party assents verbally to certain printed
terms of hiring, and enters and takes possession, he
will be bound by the printed terms, although they are
not signed either by him or by the lessor, (r) Where
a tenant gave a written undertaking to hire a house
for three years, and to pay rent and repair during the
term, but there was no lease or any agreement on the
part of the lessor, and the tenant entered and took
(0) Pistor V. Cater, 9 M. & W. 315. Bing. N. C. 859. Xee v. Smith, 23
(p) Pitman v. Woodbury, 3 Exch. 12. L. J., Ex. 199.
ig) Beale v. Sanders, 5 Sc. 58 ; 3 (r) Lord Bolton v. Tomlin, 5 Ad. &
E. 856.
II. — 24
370 LAW OF CONTRACT. [Bk. II. Ch. II.
possession and held the premises for more than three
years, it was held that he was responsible for neglect-
ing to repair according to his undertaking, (s)
711. 0/ the tenant's liability for injury or damage
done to the demised premises. — In the absence of an
express covenant or agreement to repair, there results
from the demise and acceptance of the lease by the
lessee an implied covenant or promise, according as.
the lease is by deed or by simple contract, to use the
property demised in a tenant-like and proper manner, '
to take reasonable care of it, and restore it, at the ex-
piration of the term for which it is hired, in the same
state and condition as it was in when demised, subject
only to the deterioration produced by ordinary wear
and tear, and the reasonable use of it for the purpose
for which it was known to be required. ^ The extent
(j) Richardson v. Gifford, i Ad. & E. 55.
' So it is held to be implied, from the letting^ of a farm for
agricultural purposes, that the tenant will cultivate and use
the land according to the rules of good husbandry. Lewis
V. Jones, 5 Harris, 262. He must not use in any other way,
for instance, he should not cut logs for the market upon a
portion of the land not intended to be cultivated. Moons v.
Waite, 3 "Wend. 104; Nave v. Berry, 23 Ala. 382.
^ In the absence of express permission from the land-
lord, the taking down of partitions by a tenant is appar-
ently an act of waste ; the question whether it is injuri-
ous is one of fact for a jury. Agate v. Lowenbein, 57 N. Y.
604. Accordingly where a lease of certain premises contained
a clause authorizing the lessee to make inside alterations as
he might think proper, provided that the same did not injure
the premises, held, that wliile the clause authorized altera-
tions which in point of law and technically would be waste,
yet they must be such acts only as weie unaccompanied with
actual injury to the premises ; and the acts of alteration must
not be wanton and capricious, but must be made with a pur-
pose to facilitate the transaction of the lessee's business. Id.
If under such a lease the tenant make extensive alterations,
taking down partitions, removing chandeliers, and destroying.'
Sec. I.j LANDLORD AND TENANT. 371
of the liability of the tenant for the preservation of
the property depends upon the duration and value of
his own term and interest therein. A tenant for life,
for example, is bound to viratch over the interest of the
reversioner, and is responsible for permissive as well
as commissive waste, whilst a tenant at will, or from
year to year, is responsible only for commissive vi'aste ;
{£) but a tenant for a term of years who has been let
into possession under a contract of demise, where the
landlord had the power of protecting himself by taking
a covenant to repair, is not bound, as previously men-
tioned, to make substantial repairs, if by the contract
he has not taken that burden upon himself If a
dwelling-house demised to him becomes old and ruin-
ous, and falls from the want of reparations, or is burned
by enemies, or by accident, or by the folly and negli-
gence of his own servant, or is destroyed by tempest,
the termor is not bound to rebuild; (u) and he is
punishable for waste, if he cuts down timber or digs
stones or slates from the demised premises for the pur-
pose of either rebuilding or repairing ; " for the power
of the termor to make repairs is only in small repairs,
as to make splents, mud walls, hedges, and ditches, but
not large and principal repairs, as the principal timber
and stone walls and tiles ; but a covering with thatch
he may make." {x) If windows are broken by the
(t) Hamett v. Maitland, i6 M. & W. («) Lady Shrewsbury's case, 5 Co.
256, Heme V. Bembow, 4 Taunt. 764. 13, b. M'Kenzie v. M'Leod, 4 M. &
Jones V. Hill, 7 Taunt. 392 ; i Moore, Sc. 253 ; 10 Bing. 385. Salop v.
100. Torriano v. Young, 6 C. & P. Crompton, Cro. Eliz. 777.
12. {x) Maleverer v. Spinke, Dyer, 36, a.
plumbing work, &c., the questions whether such acts really-
caused injury to the reversion, or were reasonabl)' required
for the enjoyment of the premises, are questions of fact for
the jury; nor is the tenant, even if unimpeachable for waste,
entitled to the possession of the materials severed by him. Id
372 LAW OF CONTRACT. [Bk. II. Ch. II.
wind or hail, he is liable for the non-repair of them, if
the consequence of his neglect would be damage to
the building from rain He must not suffer a roof
of thatch to remain uncovered so as to let the tim-
bers rot. He must cleanse the drains and sewers, (j)
and use all reasonable endeavors to keep the buildings
wind and water tight. But the extent of his liability
for the preservation of the property will depend upon
the age and general state and condition of the demised
premises at the time he took possession of them, and
the duration and value of his own term and interest.
(z) He is never responsible for ordinary wear and
tear, and is not bound to replace old materials with
new, except where the expense is of a trifling character,
and the mischief, if neglected and left unrepaired, would
operate to the serious and lasting injury of the inheri-
tance, " The landlord is the person who, when the
subject of occupation perishes, is to provide a new one
if he thinks fit." (a).'
{y) Russell v. Shenton, 3 Q. B. 449. And see the French Cod. Civ., liv. 3,
(z) Ferguson v. • — -, 2 Esp. 590. tit. 8, art. 1719, 1720, 1754-6.
Auworth V. Johnson, 5 C. & P. 239. (a) Wise v. Metcalfe, 10 B. & C. 314.
' A tenant for life must not prejudice the rights of the re-
mainder man; Jackson v. Luquere, 5 Cow. 221 ; but a tenant
may be entitled to reasonable estovers, such as wood from
off the land, for fuel, fences, agricultural erections and other
necessary improvements ; see Clarke v. Cummings, 5 Barb.
339; 26 Id. 409; Gardiner v. Hempstead, i Paige, 573 ;
V. , 3 Sandf Ch. 601 ; but has no right to dig up and
use soil for the manufacture of bricks for sale ; Livingston v.
Reynolds, 26 Wend. 114; 2 Hill, 157 ; and see Havvley v. Wol-
verton, 5 Paige, 522; Jackson v. Andrew, 18 Johns. 431;
Mooers v. Waite, 3 Wend. 104; Kidd v. Dennison, 6 Barb. 9;
Coates v. Cheever, i Cow. 460 ; McGregor v. Brown, 10 N.
Y. 114; Sarles v. Sarles, 3 Sandf. Ch. 601 ; Shipley v. Ritter,
7 Md. 408; Clement v. Wheeler, 25 N. H. 361 ; O wings v
Emery, 6 Gill, 360.
Sec. I.J LANDLORD AND TENANT. 373
A mere tenant at will, whose interest the Roman
lawyers called " precarium," or a mere tenant from
year to year, is not bound, as we have already seen,
to expend money in repairs and improvements. " The
farmer," observes Domat, " ought to use the lands he
has in farm as any prudent and discreet man would
use his own, and to keep them, preserve them, and
cultivate them at the proper seasons, in the manner
agreed on by the lease, or regulated by custom. He
can not increase his profits out of the lands to the
prejudice of the proprietor. He can not sow arable
lands when they ought to lie fallow, nor sow wheat
when he ought only to sow barley or oats, if these
changes would make the lands to be in a worse condi-
tion at the end of the lease than they ought to be." {b) '
712. Timber Trees. — W herever trees are excepted
from a demise, there is, by implication a right in the
lanldord to enter on the land and cut the trees at all
reasonable times, {c)
713, Of the duty of the tenant to preserve the
landlord's landmarks and boundaries. — Where a ten-
ant for life, or for years, or at will, has land of his own
adjoining to that which he holds as tenant, it is his
duty tokeep the boundaries between the two properties
clear and distinct, so that at the expiration of the ten-
ancy, the revisioner or remainderman may be able with-
out difficulty to resume the possession of what belongs
to him ; and, if the tenant or lessee neglects this duty,
and suffers the boundaries to be confused, so that the
ip) Domat. 1. i, tit. 4, ». 2. (c) Hewitt v. Isham, 7 Exch. 79.
' A tenant pur autre vie who continues in possession with-
out the consent of the owner after the determination of the
life estate, at a common law, was considered a tenant by suf-
ferance, but by statute in New York is held to be a trespasser.
Livingston v. Tanner, 14 N. Y. 64; and see 8 Abb. N. S. 37.
374 LAW OF CONTRACT. [Bk. II. Ch. II.
reversioner or remainderman can not tell to what land
he is entitled, the courts will give relief by compelling
the person who has occasioned the difficulty to remove
it, and restore the proper boundaries, if it can be done,
or, if not, to give an equivalent. This relief is given,
not only against the party guilty of the neglect, but
also against all those who claim under him, either
as volunteers or purchasers without notice, (d)
714. Fences. — There is no implied agreement on
the part of a lessor to keep up the fences of closes
which he retains in his own hands, and which abut on
land demised to a tenant, so as to prevent the tenant's
cattle from straying on to them, {e)
715. Restrictive covenants as to the user of prevt-
ises entered into between lessor and lessee run with the
land. A general covenant by the lessee that he will
not do, or suffer to be done, upon the demised prem-
ises anything which may become an annoyance to
the tenants of the adjoining houses may prevent him
from opening a shop or coal-office, or carrying on
any trade or business in a dwelling-house. (/")
716. Defeasible leases. — The lessor may reserve
to himself a right to determine the lease and resume
possession of the demised premises, at any time on
giving notice of his intention to the lessee. ( g) If
a lease is made defeasible at the option of either of
the parties, it may be determined by the lessor by a
simple demand of possesion, or the tenant may quit
the demised premises and release himself from his con-
tract by tendering possession to the landlord ; but, if
the lease is made determinable at the expiration of
(d) Attorney-General v. Stephens, 6 (/) Wilkinson v. Rogers, 10 Jur.
De G. M. & G. Ill ; 25 L. J., Ch. 888. N. S.
U) ErsUine v. Ac'.eane, L. R., 8 Ch. {g) Doe v. Kennard, 12 Q. B. 244.
750; 42 L. J., Ch. 8j5.
Sec. I.] LANDLORD AND TENANT. 375
three, six or nine years, or any particular interval of
time, reasonable notice of the intention to determine
the contract must be given by the party who intends
to avail himself of the power of defeasance, {h) If the
lease is made determinable at the expiration of a cer-
tain time if the parties shall think fit, both must con-
cur in determining the lease, (z) If power to deter-
mine the lease after a certain time is reserved, without
saying by whom it is to be exercised, the law gives it
to the lessee, {k^ If an agreement is entered into for
a yearly tenancy, with a proviso for determining it in
the middle of the year, such a proviso does not pre-
vent it from being a yearly tenancy. When the party
is in, he is in of the whole estate for a year, liable to a
defeasance on a particular event. So, where there
is a lease for twenty-one years, determinable at the
end of seven or fourteen years, the party, when he
■enters, is in of a term of twenty-one years, but a de-
feasible term, and which may determinate by matter
€x post facto. (/) When the lease is determinable
by notice, the notice may be given at any time, if no
particular period for giving it is specified ; (m) but it
must be in strict conformity with the terms of the
power of defeasance ; and when performance of all the
covenants that have been entered into by the lessee
is made a condition precedent to his right to deter-
mine the lease, these covenants must be strictly ful-
filled. («)
717. Disclaimer and forfeiture. — If a tenant from
year to year disclaims the title of his lessor; if he
claims the land as his own, and refuses to pay rent on
(/4) Goodright v. Richardson, 3 T. R. 555.
462. W Bridges v. Potts, 17 C. B., N. S.
(«■) Fowell V. Tranler, 34 L. J., Ex. 6. 314 ; 33 L. J., C. P. 338.
(,k) Dann v. Spurrier, 3 B. & P. 399. («) Friar v. Grey, 15 Q. B. 899 ; 5
</) Rex V. Herstmonceaux, 7 B. & C. Exch. 584,
376 LAW OF CONTRACT. [Bk. II. Ch. IL
the ground that he is himself the owner, or if he
attorns or delivers up possession to a stranger, or pro-
fesses to sell or grant the property to another; if he
cuts down timber, pulls down or alters dwelling-houses^
or obliterates fences, boundaries, and land-marks, or
opens and digs mines and quarries against the will of
the landlord, the tenancy is determinable by the latter,,
and he has a right of re-entry upon the property, and
may forthwith recover possession of the demised prem-
ises, ip) ' Acts of this description on the part of a
tenant from year to year work a forfeiture of his term
and interest, and convert the possession into an ad-
verse possession, so that the tenant may at once be
proceeded against without any notice to quit and
without any demand of possession. (/)^ But, if the
lessor dies, and adverse claimants to the property
appear and demand the rent of the tenant, and the
latter refuses to pay it until the conflicting claims
have been ascertained and settled, the refusal is not
such a disclairtier of the title of the real owner as will
justify the latter in treating the tenant as a trespasser.
(^q) " To constitute a disclaimer (by words) there
must be a renunciation by the party of his character
(o) Jones V. Mills, lo C. B., N. S. & R. 137. Doe v. Pittman, 2 N. & M.
788 ; 31 L. J., C. P. 66. 673.
{p) Doe V. Frowd, I M. & P. 480 ; {q) Doe v. Pasquali, I Peake, 259.
4 Biiig. 557. Doe V. Flynn, i C. M. Swinfen v. Bacon, 6 H. & N. 846;.
30 L. J., Ex. 368.
' See De Lancey v. Ga. Nun. 12 Barb. 120 ; Tuttle v. Rey-
nolds, I Vt. 80; Duke V. Harper, 6 Yerg. 280; Jackson v.
French, 3 Wend. 337 ; Verplank v. Wright, 23 Id. 506.
" The lease becomes voidable at the lessor's option. Nor-
man V. Wells, 17 Wend. 136; Clark v. Jones, 1 Den. 516; Bax-
ter V. Lansing, 7 Paige, 350 ; Brown's Admr. v. Bragg, 22 Ind.
122. But the statute is to receive a strict construction . See'
Hasbrock v. Paddock, i Barb. 535 ; Livingston v. Tompkins,
4 Johns. Ch, 415 ; Lindon v. Hepburn, 3 Sandf. 668; United
States v. Grundy, 3 Cranch. 337.
Sec. I.] LANDLORD AND TENANT. 177
of tenant, either by setting up the title of a rival
claimant, or by asserting a claim of ownership in him-
self." (r) A mere refusal to pay rent, or a declaration
by the tenant that he will continue to hold possession,
or an omission to acknowledge the landlord as such
by requesting further information as to title when the
property has changed hands, does not render the ten-
ancy an adverse tenancy and possession, (s) All
verbal disclaimers operating as a forfeiture of the
tenant's interest in, and right of possession of, the de-
mised premises, and dispensing with the necessity of
a notice to quit, are restricted to tenancies from year
to year. A lease for a definite term of years can not
be forfeited by mere words, (t) And if, after a dis-
claimer by a tenant from year to year, the landlord
puts in a distress for rent which became due subse-
quently to the disclaimer, such distress is a waiver of
the disclaimer, and again clothes the tenant with a
lawful possession, (u) Forfeiture is also incurred by
the breach of conditions annexed to the demise ; for
the lessor, having the jus disponendi, may annex what-
ever conditions he pleases to his grant, provided they
are not illegal or repugnant to the grant itself, and
upon the breach of those conditions may avoid the
lease, (w) But the law does not favor forfeitures of
estates ; and strict proof of a breach of a condition or
covenant working a forfeiture of a lease is always re-
quired, (jj/)
718. Provisos for re-entry. — It is frequently made
a term or condition of the demise, that the lease shall
be forfeited and the lessor have a right to re-enter and
(/-) Doe V. Cooper, i Sc. N. R. 41. {t) Due v. Wells, 10 Ad. & E. 436.
Hunt V. Allgood, 30 L. J., C. P. 313 ; («) Doe v. Williams, 7 C. & P. 322.
10 C. B., N. S. 253. («') Bac. Abr. Leases, T. 2.
(j) Doe V. Cawdor, i C. M. & R. (>') I Wms. Saund. 287, b., 288, i i
398. Doe V. Stanton, i M. & W. 703. Mad. ch. 36.
378 LAW OF CONTRACT. [Bk. II. Ch. II.
re-possess himself of the demised premises for a breach
of particular covenants contained in a lease. The
right to take advantage of a proviso of this description
is, of course, confined to the lessor and the assignee
of the reversion or part of the reversion ; (z) and the
lessee can not be permitted to set up his own breach
of contract as an avoidance of the lease ; for no man
is permitted to take advantage of his own wrong, (a)
If it is provided that, in case of non-payment of rent,
it shall be lawful for the lessor " to enter upon the
premises for the same until it be fully satisfied," the
lessor will be entitled to enter and hold possession
until the arrears of rent are satisfied ; but, when they
are satisfied, the lessee will be entitled to re-enter and
hold under the lease as before. (<5) ' Provisos in leases
for re-entry in case of non-payment of rent or non-
performance of covenants are not '" to be construed
with the strictness of conditions at common law ; but,
being matters of contract between the parties, they
should be construed like all other contracts." (c")^
(z) 22 & 23 Vict. 35, b. 3. {b) Co. I.itt. 203. Doe v. Bowditch,
(a) Reid v. Parsons, 2 Chit. 248. 15 L. J., Q. B. 267.
Doe V. Birch, i M. & W. 402. Jones (c) Doe v. Elsam, M. & M. 191.
V. Carter, 15 M. & W. 725. Hayne v. Cummings, 16 C. B., N. S.
425-
' A forfeiture will be waived, if, where a lease contain a
condition for re-entry of the lessor on non-payment of rent,
the rent in arrears is accepted after such formal re-entry.
Coon V. Brickett, 2 N. H. 163.
" As to where a re-entry by the landlord on breach of a
covenant, will not be presumed. See Ritchie v. Putnam, 13
Wend. 524; Tate v. Crowson, 6 Ired. 65; and see Jackson v.
Harrison, 17 Johns. 66; Jackson v. Kipp, 3 Wend. 230 ; Rem-
sen v. Conkling, 18 Johns. 447 ; McCormick v. Connell, 6
Serg. & R. 151 ; McRubin v. Whetcroft, 4 Har. & McHen. 135 ;
Connor v. Bradley, i How. 211 ; Spear v. Fuller, 8 N. H. 174;
Associates, &c., v. Howland, 1 1 Met. 99 ; Atkins v. Chelson, Id
112; Camp v. Pulver, 5 Barb. 91.
Sec. I.J LANDLORD AND TENANT. 379
Where the lessee was to hold in consideration of the
rent " and conditions " contained in the lease, and it
was stipulated and " conditioned " that the lessee
should not assign or underlet, it was held that the
lease was forfeited, and that the lessor had a right to
re-enter, on an assignment being made by the lessee.
(^d) An agreement to hire a messuage at a certain
rent is an agreement to pay that rent ; and, therefore,
if a power of re-entry is reserved " in case of breach
of any of the agreements " contained in the written
instrument of demise, the lessor may re-enter for non-
payment of rent, {e) Where a lessee covenanted to
pay rent and not to assign, and there was a proviso
for re-entry if the rent was in arrear, or all or any of
the covenants " hereinafter contained " on the part of
the lessee should be broken, and there were no cove-
nants on the part of the lessee after the proviso, but
only a covenant by the lessor, that the lessee paying
the rent, &c., should quietly enjoy, it was held that the
lessor could not enter for breach of the covenant not
to assign, as the proviso was restrained by the word
^' hereinafter" to subsequent covenants, and there were
none such in the lease. (/") Where there is a proviso
for re-entry in case of non-performance of covenants,
and the lease contains a general covenant to repair,
and also a covenant to repair within a certain time
after notice, the landlord may at once enter for breach
of the general covenant ; (^g) but if he gives notice
under the second covenant, this is a waiver of the
forfeiture incurred by breach of the general covenant,
and he can not recover possession until after the time
limited by the notice has expired, (^h) A notice to
(d) Doe V. Watt, 8 B. & C. 308. (g) Baylls v. Le Gros, 4 C. B., N. S.
(e) Doe V Kneller, 4 C. & P. 3- 537-
(/) Doe V. Godwin, 4 M. & S. 265. (h) Doe v. Meux, 4 B & C. 606.
38o LAW OF CONTRACT. [Bk. II. Ci-i. IL
repair " in accordance with the covenants," or "forth-
with," will not, however, amount to a waiver of the
forfeiture incurred by a breach of the general cove-
nant. (?) Where a right of re-entry for waste is re-
served, the proviso is understood to mean such waste
as is injurious to the reversion. (/^) Where there is a
proviso for re-entry for breach of a covenant to insure
and keep insured, it does not mean that the lessee
shall keep any one particular policy on foot, but that
he shall always keep the premises insured by some
one policy or another ; and the breach will be a con-
tinuing breach so long as they remain uninsured. (/)
A power of re-entry, in case the lessee carries on
any trade or business upon the demised premises,
authorizes the lessor to re-enter if a school is estab-
lished, (m) But when particular trades or occupations
are specified, no trade or business which does not
clearly fall within the description contained in the
lease will come within the proviso, (n) A proviso
for re-entry may be reserved in case the tenant should
become bankrupt or insolvent, (o) or the term granted
should be taken in execution by the sheriff; (/) and,
if the contingency provided for happens, the lessor
will be entitled to take possession, and to enjoy the
emblements. (^) If a proviso for re-entry is insensi-
ble, it is of course nugatory ; for the court can not
find a meaning for that which has no meaning, (r)
If the lessor has the custody of the lease, and has in
anywise misrepresented the nature of the proviso, or
{i) Few V. Perkins, L. R., 2 Ex. 92 ; (0) Roe v. Galliers, 2 T. R. 133. Doe
36 L. J., Ex. 54. Roe V. Paine, 2 v. Ingleby, 15 IM. & W. 465.
Campb. 520. {p) Rex v. Topping, M'Clel. & Y.
(/J) Doe V. Bond, 5 B. &C. 855. 544.
(/) Doe V. Peclc, I B. & Ad. 428. {<;) Davis v. Eyton, 7 Bing. 154.
(m) Doe V. Keeling, i M. & S. 95. {r) Doe v. Carew, 2 Q. B. 317.
(k) Jones V. Thorne, i B. cS; C. 715.
Skc. I.] LANDLORD AND TENANT. 381
of the covenants to be fulfilled, or has withholden any
necessary information from the lessee, or done any-
thing to entrap the latter into a forfeiture, the law will
not permit the lessor to avail himself of such forfeiture ;
for that would be permitting him to take advantage
of his own wrong, {s) When a party is let into pos-
session under an agreement for a future lease, which is
to contain certain covenants and a proviso for re-entry
in case of the non-performance of those covenants, the
tenant holds, as we have before seen, subject to all
such of the terms of the intended lease as are applica-
ble to a yearly tenancy; and if, before the lease is
granted, the lessee does an act which would have
worked a forfeiture of the lease had it been granted,
the landlord will have a right to re-enter, and may
forthwith recover possession. (/) '
719. Effect of re-entry on the lessees liability on
his covenants. — The forfeiture of the lease does not
•extinguish the liability of the lessee in respect of
breaches of covenant that had accrued at the time of
the forfeiture, so that the lessor, by taking advantage
of the forfeiture and re-entering, does not deprive him-
self of his remedies upon the covenants of the lease
for any breach of those covenants up to the time of
.the re-entry, {u) If the landlord does not think fit to
is) Doe V. Rowe, Ry. & Mood. 346. v. Gumming, 16 C. B., N. S. 421.
(t) Doe V. Amey, 12 Ad. & E. 476. («) Hartshorne v. Watson, 5 Sc. 506 ;
Doe V. Ekins, Ry. & M. 29. Hayne 4 Bing. N. C. 178.
' But where a lease is made of the entire premises consti-
tuting a hotel, and the land surrounding the same, and a
covenant on the part of the lessee is inserted that the lessor
may retain and occupy a room in the hotel, and board there,
this covenant is not a reservation of the room from the open-
don of the lease, and for a forcible entry into this room the
lessee alone can complain. Polack v. Shafer, 46 Cal. 270.
382 LAW OF CONTRACT. [Bk. II. Ch. II.
avail himself of the forfeiture, the liability of the lessee
upon the covenants of the lease remains unaffected by
the forfeiture ; but if the landlord brings an action of
ejectment, he can not, in general, sue the lessee in re-
spect of breaches of covenant that have accrued sub-
sequently to the commencement of the action, (x)
720. Waiver of a forfeiture — Lessor s right of
election. — The right of entry for forfeiture of a lease
is governed by the general law that, where a man has
got a right to elect to do a thing to the injury of
another, his election, when once made, is final and con-
clusive, and he can not afterwards alter his determina-
tion. If, therefore, a lease has been forfeited, and there
is an election on the part of the landlord to enter and
defeat the lease or not as he pleases, and he by word or
act manifests his intention that the lease shall continue,
he waives the forfeiture, and can not afterwards annul
the lease. If, knowing of a forfeiture, he neverthe-
less tells his tenant, that he is still tenant, and that he
shall hold him to the covenants and stipulations of his
lease, the election is made, and the landlord can not
afterwards enter for the forfeiture, (^y) ' On the other
(at) Jones v. Carter, 15 M. & W. 718. 13, 254 ; 4 B. & S. 337 ; 5 B. & S.
(y) Ward ^. Day, 33 L. J., Q. B. 359.
' And so where a lease contains a covenantor! the part of the
lessee not to assign,with a forfeiture of the lease in case of breach,
acceptance of rent by the lessor, accruing after an assignment,
with knowledge thereof, is a waiver of the forfeiture, and the
condition once dispensed with, is dispensed with forever, so that
the assignee can thereafter assign, and can transfer a good title
to the lease. Murray v. Harway, 56 N. Y. 337. And an assignee
of such lease when the forfeiture had been waived as aforesaid,
after the execution of a written contract for the sale and pur-
chase of the lease, agreed with the purchaser to obtain from
the original lessors, or their successors, if possible so to do,
a written assent to the assignment; such assent could not be
obtained because one of the original lessors had died leaving
Sec. I.] LA'NDLORD AND TENANT. 383
hand, if he brings ejectment for the forfeiture, he une-
quivocally declares his election to determine the lease;
and a subsequent distress, whether a trespass, or jus-
tifiable under 8 Anne, c. 14, s. 7, is no waiver of the
forfeiture, {z) Acceptance of rent, or demand of rent,,
or the bringing of an action for rent, or distraining for
rent, accruing due after a forfeiture, will be considered
as strong evidence of the lessor's determination to con-
tinue the lease and waive the forfeiture, if it appears
that, at the time the lessor received the rent, he had.
notice of the breach of the condition, {a) ' A forfeit-
ure for not repairing may be waived by the receipt of
rent which became due after the right of entry accrued,
but not by the receipt of rent becoming due before
the expiration of a notice to repair. A forfeiture is
suspended, but not waived, by allowing a tenant fur-
ther time to repair. (<5) A waiver of one forfeiture
does not prevent the lessor from availing himself of
subsequent forfeitures ; {c) and a receipt of rent is no
waiver of a continuing breach of a covenant to repair.
{d) Where a breach of covenant has continued
(2) Grimwood v. Moss, L. R., 7 C. 30 L. J., C. P. 221. Pellatt v. Boosey,
P. 360 ; 41 L. J., C. P. 239. 31 L. J., C. P. 281.
(fl) Bac. Abr. Leases, tit. 2. Ward (i) Doe v. Meux, 4 B. & C. 606.
V. Day, supra. Denby v. NichoU, 4 And see Few v. Perkins, ante.
C. B., N. S. 376 ; 27 L. J., C. P. 220. (c) Doe v. Bliss, 4 Taunt. 735. 23
Croft V. Lumley, 27 L. J., Q. B., 321 ; & 24 Vict. c. 38, s. 6.
5 E. & B. 648. Cotesworth v. Spokes, (</) Doe v. Jones, 5 Exch. 498 ; 19
L. J., Ex. 405.
infant heirs. Held, that as the agreement was conditional and
the event upon which it was conditioned did not and could
not come to pass, the agreement was not enforcible, and that
the agreement of sale and purchase remained in force. Id. ;
and see Collins v. Hasbrouck, Id. 157.
" Hunter v. Osterhoudt, 11 Barb. 33; Jackson v. Brown-
son, 7 Johns. 227; Jackson v. Allen, 3 Cowen, 220; Bleecker
V. Smith, 13 Wend. 530 ; Garrett v. Scouton, 3 Den. 334; Nor-
man V. Wells, 17 Wend. 136 ; Clark v. Jones, i Den. 516.
384 LAW OF CONTRACT. [Bk. II. Ch. II.
upwards of twenty years with full knowledge of it on
the part of the lessor, and no attempt has been made
to take advantage of it, neither the lessor nor his
assignee can avail himself of the breach to work a
forfeiture. (^)
721. Relief agatJist forfeihire. — Breach of cove-
nants or conditions respecting insurance or payment
of rent. — The courts will relieve against a forfeiture
for non-payment of rent or for breach of a covenant
or condition to insure against loss or damage by fire,
where no loss or damage by fire has happened, and the
breach has been committed without fraud or gross
negligence, and there is an insurance on foot in
conformity with the covenant to insure. Relief will
also be given, in certain cases, in favor of purchasers
of leasehold estates with covenants for insurance
annexed thereto and broken, where the purchaser has
bought without notice. (/") But no relief will be
granted in the case of forfeiture for the breach of any
covenant other than covenants to pay rent or insure,
■except in the case of accident, mistake, or fraud. (^)
722. Assignmeftt after forfeiture. — A right of
entry which has accrued on a forfeiture can not be as-
signed ; and the assignee of the reversion, therefore, can
not take advantage of any forfeiture incurred before the
assignment ; but he is entitled to the benefit of the
covenant, and of the condition of re-entry, in respect
of any subsequent or continuing breach, iji)
723. Surrender. — Deeds and agreements of sur-
render.— We have already seen that a surrender in
writing of an interest in any tenements or heredita-
{e) Gibson v. Doey, 2 H.& N. 615 ; (^) Gregory v. Wilson, 9 Hare, 689.
37 L. J., Ex. 37. \h) Crane v. Batten, 23 Law T. R.
{f) 22 & 23 Vict. c. 35, ss. 4, 6, 8. 220.
23 & 24 Vict. c. 126, ss. I, 2.
Sec. l.J LANDLORD AND TENANT. 385
ments, not being a copyhold interest, and not being
an interest whicii might by law have been created
without writing, is void, unless it is made by deed.
An estate for life or years, which can not be created
without deed, can not be surrendered without deed. (?)
But, if the estate may be created, and has been created,
without deed, it may be surrendered without deed, (i)
It is said that a surrender under seal immediately
divests the estate out of the surrenderor and vests it in
the surrenderee ; for this is a conveyance at common
law, to the perfection of which no other act is requi-
site but the bare grant ; and though it be true that
every grant is a contract, and there must be an actus
contra actum, or a mutual consent, yet that consent
is implied. A gift imports a benefit ; and an assump-
sit to take a benefit may well be presumed : and there
is the same reason why a surrender should vest the
■estate before notice or agreement, as why a grant of
goods should vest the property. (/) But this must
be understood only of surrenders of particular estates
which are manifestly beneficial to the surrenderee. If
the benefit is equivocal, there will be no implied assent
•or acceptance, and the surrender will be nugatory
without the express concurrence of the surrenderee.
If the tenant holds under a parol demise for a term
not exceeding three years, the term may be surren-
dered by an agreement in writing, signed by the
surrenderor and the surrenderee, provided it is intended
to have an immediate effect. There can not be a
surrender to take place in futuro. If anything is to
be done by either or both of the parties before the
(0 Shep. Touch. 397. Defeazance. (k) Fanner v. Rogers, 2 Wils. 26.
Co. Litt. 338, a. I Wms. Saund. 236, (I) Thompson v. Leach, 2 Salk.
a. Perkins V. Perkins, Cro.' Eliz. 269. 617.
Lyon V. Reed, 13 M. & W. 310.
II.- -25
386 LAW OF CONTRACT. [Bk. II. Cii. IL
estate of the termor is to be extinguished, the transac-
tion amounts only to a covenant or agreement to
surrender, and there is no actual surrender by the
tenant, and no right of entry on the part of the land-
lord by the mere force of the contract, (jn) An in-
sufficient notice to quit, therefore, accepted in writing
under the landlord's signature, does not of itself amount
to a surrender of the term if it is to operate in fu-
turo. («) But an agreement between a landlord and
a tenant holding a parol demise from year to year„
that the tenancy should be determined, followed by
the departure of the tenant, and an entry and taking
of possession on the part of the landlord, becomes an
actual surrender by act and operation of law. (o)
Where a dispute arose between a yearly tenant and
the landlord, and the tenant said to the landlord, '' I
shall quit," and the latter said, " You may do so, and I
shall be glad to get rid of you," and the tenant then
removed her furniture and sent the keys of the house
to the landlord, and the latter accepted them and took
possession, it was held that there was a surrender of
the lease by operation of law. (/) But the mere de-
livery and acceptance of the key, without any entry on
the demised premises and taking of possession by the
landlord, would be no evidence of a surrender ; (^) and
an abandonment of the demised premises by the ten-
ant, and an entry of the landlord thereon for the pur-
pose of repairing them, or airing or drying the rooms,
(»i) Coupland v. Maynard, 12 East, 423 ; 2 Smith's Leading Cas. 5th ed.
134. Weddall v. Capes, i M. & W. 7'i3-7i9. Furnivall v. Grove, 30 L.
51. Forquet v. Moore, 7 Exch. 870 ; J„ C. P. 3.
22 L. J. Ex. 35. (p) Grimman v. Legge, 8 B. & C.
(«) Johnstone v, Huddlestone, 7 D. 324. Pheni v. Popplewell, 12 C. B.,
& R. 419 ; 4 B. & C. 922. Doe v. N. S. 334 ; 31 L. J., C, P. 235.
Milvvard, 3 M. & W. 332. {q) Cannan v. Hartley, 19 L. J., C
(0) Dodd V Aclclom, 7 Sc. N. R. P. 323.
Sec. L] landlord AND TENANT. 3S7
or letting them, and not with a view of taking posses-
sion as owner, will not of course amount to a surren-
der, {r)
724. Surrenders by act and operation of law
" take place where the owner of a particular estate has
been a party to some act, the validity of which he is
afterwards estopped from disputing, and which would
not be valid if his particular estate had continued to
exist' Thus, if lessee for years accepts a new lease
(r) Bessell v. Landsberg, 7 Q. B. 638. Griffith v. Hodges, i C. & P. 419.
' " The rule of law as now settled by the recently adjudi-
cated cases is, that any acts which are equivalent to an agree-
ment on the part of the tenant to abandon, and on the part of
the landlord to resume, possession of the demised premises,
amount to a surrender by operation of law." If a landlord
re-lets the premises, without notice to the tenant that it is on
his account, it dispenses with a formal surrender on the part
of the tenant. Talbot v. Whipple, 14 Allen, 771. After an
original landlord has recognized under-tenants as his tenants
and as the persons responsible to him for the rent, he can not
hold the assignors of such, sub-tenants. Carter v. Hammett,
18 Barb. 608 ; Coleman v. Maberly, 3 T. B. Mon. 220 ; Abell v.
Williams, 3 Daly, 17; Jackson v. Gardner, 8 Johns. 394.
Where a landlord, on beng told by his tenant that the premises
are not fit to live in, and that he shall quit them, and pays
the rent up to that time, and the landlord notifies him that he
will re-let the premises on his (the tenant's) account, and does
find another tenant, from whom he receives rent, Ae/'d, no evi-
dence of a surrender; Bloomer v. Merrill, 29 How. 250;
Bloomer v. Merrill, i Daly, 485 ; neither is evidence of an
oral declaration by the landlord, that he will release the ten-
ant from a further liability for rent. Goelet v. Ross, 15 Abb.
Pr. 251. But evidence that a tenant informed the landlord
that he should leave the premises on a certain day, and asked
permission to leave certain of his property upon the premises
leased, /leld, that evidence of such permission by the landlord
is evidence from which a surrender might be presumed ;
Stantly V. Koehler, i Hilt. 354; and the mere acceptance by
the landlord of the key of the demised premises, from a ten-
ant who quits possession during the term, is not an accept-
388 LAW OF CONTRACT. [Bk. II. Ch. II.
from his lessor, he is estopped from saying that his
lessor had not power to make the new lease ; and, as
the lessor could not do this until the prior lease had
been surrendered, the law says that the acceptance of
such new lease is of itself a surrender of the former
lease. So, if there be tenant for life, remainder to
another in fee, and the remainder-man comes on the
land and makes a feoffment to the tenant for life who
accepts livery thereon, the tenant for life is thereby
estopped from disputing the seisin in fee of the re-
mainderman ; and so the law says that such accept-
ance of livery amounts to a surrender of his life estate.
Again, if tenant for years accepts from his lessor a
grant of a rent issuing out of the land, and payable
during the term, he is thereby estopped from disput-
ing his lessor's right to grant the rent ; and, as this
could not be done during his term, therefore he is
deemed in law to have surrendered his term to the
lessor. The acts in pais which bind parties by way of
estoppel are all acts which anciently were, and in con-
templation of law have always continued to be, acts
of notoriety not less formal and solemn than the exe-
cution of a deed, such as livery, entry, acceptance of
an estate, and the*like. Whether a party had or had
not concurred in an act of this sort was deemed a
matter which there could be no difficulty in ascertain-
ing ; and then the legal consequences followed." {s)
But, if the original lease is under seal, the acceptance by
the lessee of a mere parol demise from the lessor will
not amount to a surrender of such original lease ; (t)
{s) Lyon v. Reid, 13 M. & W. 306 , {t) Shep. Touch. 397.
2 Smith's Lead. Cas. 5th ed. 714-720.
ance of the surrender, where the landlord states that he re-
ceives the key but not the premises. Townsend v. Albers, 3
E. D. Smith, 560.
Sec. I.J LANDLORD AND TENANT. 389
and, if the new lease is wholly or partially invalid,
and does not pass an interest according to the con-
tract and the intention of the parties, it will not oper-
ate as a surrender of the former lease, {u) A mere
agreement for an increased rent will not have the
eflFect of creating a new tenancy, {v)
725. Substittitioii of a new tenant in the place of
the original tenant. — When there is an open and
notorious shifting of the actual possession of corporeal
property, in execution of an agreement between the
lessor and lessee and a third party, to substitute such
third party as the lessee in the place of the original
lessee, there is a surrender by operation of law of such
original lease, (ji/) ' But a mere agreement for the
substitution of a new tenant, not followed up by any
actual change of possession, or a mere change of pos-
session unaccompanied by an agreement of substitu-
tion, does not amount to a surrender. {£) It must be
(m) Doe V. Poole, ii Q. B. 713 ; 17 16 L. J., Q. B. 371. Reeve v. Bird, I
L. J., Q. B. 143. Doe v. Courtney, C. M. & R. 31. Walls v. Atchesoii,
ib. 702, 151. II Moore, 379. Woodcock v. Nuth,
(7/) Geeckie v. Monk, i C. & K. 307. i M. & Sc. 317. Thomas v. Cook, 2
Doe V. Geeckie, 5 Q. B. 841. Crow- B. & Aid. 120.
ley V. Vitty, 7 Exch. 319. (3) Taylor v. Chapman, Peake's
{y) Davison v. Gent, I H. & N. Add. Cas. 19. Cocking v. Ward, I
744; 26 L. J., Ex. 122. Nickells or C. B. 868. Kelley v. Webster, 12 C.
Nicholls V. Atherstone, 10 Q. B. 944 ; B. 283 ; 21 L. J., C. P. 163.
' A lessor who has consented to a change of tenancy and
of occupation, and received rent from the new tenant as an
original and not as a sub-tenant, can not afterwards hold his
original tenant for rent accruing during the new tenant's oc-
cupation. Smith V. Niven, 2 Barb. 180. And where, after a
lessee had underlet the whole of the demised premises, by two
written sub-leases, the landlord called on the under-tenants,
produced the sub-leases, demanded of them the rent, forbade
their paying any more rent to the original lessee, and after-
wards collected all rent of the sub-tenants, held, that there
was a surrender of the original lease by operation of law.
Bailey v. Delaplaine, i Sandf. 5.
390 LAW OF CONTRACT. [Bk. II. Ch. II.
shown that the incoming tenant has been expressly
received and accepted b)^ the landlord as his lessee, in
the place and stead of the oi'iginal lessee, by the
mutual agreement of all parties ; (a) for the mere
change of the possession is no evidence of the grant
and acceptance of a new lease, the prima facie pre-
sumption being that the incoming tenant has entered
and taken possession as the under-tenant or assignee
of the original lessee, (i^) The mere circumstance of
the landlord's having accepted rent from an assignee
or under-tenant in possession of the demised premises
is no evidence of an acceptance of such assignee or
under-tenant as his lessee in the place of the original
lessee, the prima facie presumption being that the rent
was paid by the latter as the agent of the original
lessee and on his behalf, (t)'
726. Surrender and acceptayice of siirrender by
joint-tenants. — Every act done by one joint-tenant
which is for the benefit of his companions will bind
them ; but those acts which prejudice his companions
in estate will not bind them ; and, if the benefit be
doubtful, two joint-tenants have no right to elect for
the third. A surrender, therefore, or acceptance of a
surrender, by one of the several joint-tenants, will not,
in general, bind the others, {d^ If, however, one of
two joint-lessors lies by and allows the other to act
for him, and acquiesces in the acts of his co-owner, and
(a) Graham v. Whichelo, i Cr. & (b) Doe v. Williams, 9 D. & R. 30 ;
M. 194. M'Donnell v. Pope, 9 Hare, 6 B. & C. 41.
707. Mathews v. Savvell, 2 Moore, (c) Copeland v. Gubbins, I Stark.
262 ; 8 Taunt. 270. 96. Doe v. Wood, 15 L. J., Ex. 41.
((/) Right V. Cuthell, 5 East, 498.
' The surrender, even where an agreement is made that
the lessee shall remain liable for the rent, puts an end to
the relation of landlord and tenant. Bain v. Clark, 10 Johns.
424; Shepard V. Merrill, 2 Johns. Ch. 276.
Skc. I.] LANDLORD AND TENANT. 391
intrusts the whole management of the business in
which they are jointly interested to him, he will be
bound by his acts, (e)
727. Non-extinguishment by surrender of deriva-
tive estates. — If a lessee from year to year grants an
underlease of part of the premises demised to him, and
then surrenders his term, the surrender will not de-
stroy the estate and interest of the under-lessee, if the
latter has not concurred in and been a party to the
surrender. (/")
728. Effect of the surrender on existing breaches
€f covenant. — The mere surrender of the lease does
not relieve the lessee from his liability in respect of
breaches of covenant that have accrued prior to the
surrender. The lessor, therefore, after a surrender, re-
mains a specialty creditor for all arrears of rent, which
became due before the surrender, upon the lessee's
covenants for the payment of rent. ( g) '
729. Notice to quit, when necessary. — " When a
lease is determinable on a certain event, or at a par-
ticular period, no notice to quit is necessary, because
both parties are equally apprised of the determination
of the term." (Ji) If, therefore, a lease is granted for
a term of years, or for one year only, no notice to quit
is necessary at the end of the term ; (z) but, if the
{e) Dodd V. Acklom, 7 Sc. N. R. ( g) Attorney-General v. Cox, 3 H.
415 ; 6 M. & Gr. 672. L. C. 240.
(/) Co. Litt. 338, b. 4 Geo. 2, u. {h) Eight v. Darby, i T. R. 162 ;
•28, a. 6. Pleasant v. Benson, 14 East, ib. 54.
•237. Cousins V. Phillips, 3 H. & C. (z) Cobb v. Stokes, 8 East, 358.
892 ; 35 L. J., Ex. 84.
' And a surrender of the remainder of a term will not dis-
•charge the lessee from payment of the rent already due ;
Sperry v. Miller, 8 N. Y. 336 ; Curtis v. Miller, 17 Barb. 477 ;
sthotigh payable in advance; Learned v. Ryder, 61 Barb. 552;
S. C, 5 Lans. 539.
392
LAW OF CONTRACT. [Bk. II. Ch. IL
tenancy is from year to year, a half year's notice must
be ariven on either side in order to determine the ten-
ancy, and this notice may be given in the first as well
as in any subsequent year of the tenancy, (^k) If a.
man holds under an agreement for a lease, or under a
lease void by reason of its not having been made by
deed, for the full term intended to have been granted,
an ejectment may be brought against him at the expi-
ration of such term without any notice to quit. (/)
In the case of a tenancy at will no notice to quit is,
necessary ; but there must be a formal demand of
possession, or notice of the determination of the will,,
on the part of the landlord, before any action of eject-
ment can be brought, (in) The tenant at will, too, in
order to discharge himself from his liability for rent,,
or for a reasonable compensation for the use and en-
joyment of the demised premises, must give notice to>
the landlord of the fact of his abandonment of the
possession, and of his election to rescind the contract
and put an end to the tenancy. If the occupation is.
the occupation of a servant or agent holding posses-
sion of the premises on account and on behalf of his.
master or principal, the possession of the occupier is.
the possession of the owner himself, and the latter
may at any time remove the tenant and resume pos-
session of the property without any notice to quit. («)
If the tenancy and possession are adverse, or if the
occupier holds over after the expiration of a lease, or
after a forfeiture, or after an agreement for a lease or a
(k) Doe V. Smaridge, 7 Q. B. gsg. Denn v. Rawlins, 10 East, 261. Doe-
Doe V. Nainby, 16 L. J., Q. B, 303. ». Cox, 11 Q. B. 122 ; 17 L. J., Q. B.
Doe V. Geekie, 5 Q. B. 841. 3.
(/) Doe V. Stratton, i M. & P. 187. (n) Doe v. Deny, 9 C. & P. 494.
Tress v. Savage, 4 E. & B. 36; 23 L. Mayhew v. Suttle, 4 E. & B. 347 ; 24
J., Q. B. 339. I.. J., Q. B. 54. White v. Bailey, 30.
(m) Right V. Beard, 13 East, 210. L. J., C. P. 253.
Sec. I.] LANDLORD AND TENANT. 395
contract of sale has gone off and been abandoned, or
after the tenancy has been determined by a dissolution
of partnership, and continues in possession without
the permission and against the will of the owner, no
notice to quit is necessary ; but the owner may at
once proceed against the wrong-doer by action of
ejectment for the recovery of the demised premises, or
he may enter and take possession if the tenant leaves
the demised premises vacant. {0)
If the lessor is only tenant at will, or has made a
prior lease of the lands, or mortgaged them so as tO'
give the mortgagee a right of entry, and to deprive
himself of the power of granting a lease for the term
specified, the tenant may be turned out without any
previous notice to quit from the party who has title.
(/) But if the lessor at the time of making of the
lease had full right and title to grant the demised
premises to the lessee for the term, any subsequent
grant, mortgage, sale, or lease, can not affect the
tenant's right of possession, or in any way dispense
with the ordinary notice to quit.^
{o) Doe V. Sayer, 3 Campb. 8. Bluck, 8 C. & P. 464,
Doe V. Miles, I Stark. 181. Doe v. {p) Keech v. Hall, I Doug. 21.
' But there need be no notice to quit where the parties
have agreed previously as to the date upon which the lease is
to determine. Allen v. Jacques, 21 Wend. 628; People v.
Schackno, 48 Barb. 551; Gibbons v. Dayton, 4 Hun. 451;
Rowan v. Lytle, 11 Wend. 619; Livingston v. Tanner, 14 N.
Y. 64 ; Torrey v. Torrey, Id. 430. A tenant under a parol
agreement for a lease, rent to be paid monthly, who refuses
to accept the lease, becomes a common-law tenant at will or
by sufferance, and is liable to be ejected immediately ; but if
the parol agreement was for a term exceeding one year, and,
therefore, void by the statute, the tenancy after the acceptance
of rent is from month to month, and the tenant is entitled to
a month's notice. Anderson v. Prindle, 23 Wend. 616. Where
.1 tenant is in possession under a parol agreement void Ly
394 ^^^^y OF CONTRACT. [Bk. II. Ch. II.
730. How the notice may be given, and bywhom. —
A notice to quit may be given orally by the lessor, or
by his agent, {q) unless there has been an express
agreement or stipulation for a notice in writing, (r) '
A mere receiver of rents has no implied authority to
give a notice to quit ; but an agent or receiver who is
entrusted with the general management of landed
property, and has a general authority to let lands from
{q) Timrains v. Rawlinson, 3 Bur. {r) Legg v. Benioii, Willes, 43.
1603. Doe V. Crick, 5 Esp. 196.
the Statute of frauds, and has occupied for a year, paying the
rent monthly, this creates a tenancy from month to month
which can only be terminated by a month's notice to quit,
expiring with the end of some month reckoning from the
beginning of the tenancy. People v. Darling, 47 N. Y. 666 ;
Taggard v. Roosevelt, 2 E. D. Smith, 105.
' But where the conventional relation of landlord and ten-
ant does not exist, the common law right of entry without
notice obtains, and notice to quit is not necessary. People v.
Fields, I Lans. 238; and see Jackson v. Wilsey, 9 Johns.
267; Jackson v. Aldrich, 13 Id. 106; Ives v. Ives, Id. 235;
No notice of any sort is necessary in case of a tenancy
at sufferance. Livingston v. Tanner, 14 N. Y. 64. Nor
in the case of a lease determinable upon any certain
event which is known equally by both parties. Murray v.
Armstrong, 11 Miss. 209; Hamit v. Lawrence, 2 A. K. Marsh,
366 ; Bedford v. McElherron, 2 Serg. & R. 49 ; Whitney v.
Gordon, i Cush. 266; Moshier v. Reding, 3 Fairf 478; but
where it is uncertain, or from year to year, the notice must be
given. McGee v. Gibson, i B. Mon. 105 ; Goddard v. Rail-
road Co., 2 Rich. 346 ; Whitney v. Gordon, i Cush. 266 ; Mur-
ray v. Armstrong, ir Miss. 209; Logan v. Heron, 4 Serg. &
R. 459; Clapp V. Paine, 6 Shep. 264; Dowell v. Johnson, 7
Pick. 263 ; Allen v. Jaquish, 21 Wend. 268; or if either party
change his mind under a tacit lease. Baker v. Adams, 5 Cush.
99. But notice to quit would not be necessary for a purchaser
at a sale by virtue of a surrogate's order for the payment of
debts, to one in possession under the testator's heirs. Jack-
son V. Robinson, 4 Wend. 436. It is sufficient if the notice
specify the end of the term, and make mention of no partic-
ular day. V. , 48 Barb. 551.
Sec. I.] LANDLORD AND TENANT. 395
year to year, has alse authority to determine such
tenancies by a notice to quit, (i') And he may give
the notice in his own name, as it is not necessary that
his agency and the authority of his principals should
appear on the face of the document. {£) The steward
of a corporation who is intrusted with the letting of
the corporate estates, may give a notice to quit, and
needs no authority under seal from the corporation
for the purpose, (ii) If there are several joint lessors
or joint owners of the property, a notice to quit, given
■or signed by one or more of them on behalf of all, is
sufficient ; (v) and the subsequent assent of such
joint-owners to a notice previously given by one or
more of them, on behalf of all, is equivalent to a pre-
cedent authority. (j|/) But, if it is expressly provided
by the agreement of the parties that a written notice
shall be given by all of them, under their respective
hands, the notice must be signed by all, and a ratifica-
tion given afterwards will not do. {z) The notice
may also be given by an agent on their behalf; but
such notice, in order to be valid and effectual, must
be given in the names of the joint owners, the princi-
pals, and not in the name of the agent, unless the
agent has a general authority to let their lands ; {a)
and the agent ought to have authority to give the
notice at the time it begins to operate ; for, if the
tenant could not safely have acted upon the notice at
the time it was given, no subsequent recognition of it
by the landlord will make it valid. (<5) ^ If one or more
(s) Doe V. Mizem, 2 M. & Rob. 56. Alford v. Vickery, i Car & M. 280.
(/) Jones V. Phipps, L. R., 3 Q. B. (,y) Abbott, C. J., 3 B. & Aid. 692.
567 ; 37 L. J,, Q. B, 198. (z) Right v. Cuthell, 5 East, 497.
(k) Roe V. Pierce, 2 Campb. 96. (a) Jones v. Phipps, supra.
\v) Doe V. Hulme, 2 M. & R. 433 ; {b) Doe v. Walters, 10 B. & C. 626 ;
Doe V. Summerset, i B. & Ad. 135. 5 M. & R. 357. Doe v. Goldwin, 2
' White V. Bailey, 14 Conn. 271.
396 LAW OF CONTRACT. [Bk. II. Ch. IL
of several joint owners dissent from the notice, such
of them as have joined in giving the notice to quit
are entitled to enter into and hold possession of the
demised premises, and receive the rents and profits of
the land, jointly with the tenant or lessee of the ethers
who have refused to join in such notice, (c)
731. Forin and effect of the notice — Alternative
and peremptory notices. — A notice to quit " all the
property you hold of me," addressed to the tenant, is a
sufficient description of the demised premises; and
any general description applicable to the whole of the
property will suffice. (</) But a landlord can not
give a notice to quit which is intended to apply to a
part only of premises which have -been demised to-
gether at one entire rent. (^) A mere misdescription,
however, of the premises comprised in the notice to
quit, or a mistake in the Christian name of the tenant
to whom such notice is addressed, does not invalidate
the notice, provided the tenant has not been misled
or prejudiced by such misdescription or mistake.' If
the notice applies to a year that is past, but was clearly
intended to apply to the coming year, and the
tenant must have known what time was meant, he is
bound by the notice. (/) If the notice is not a per-
emptory notice to quit, but is drawn up in the alterna-
tive, and seems to have been intended either to put an
end to the lease or obtain an increased rent, the tenant
may elect to remain in possession, paying an increased
Q. B. 146. Goodtitle v. Woodward, (/) Doe v. Roe, 4 Esp. 185 ; Doe
3 B. & AM. 689. V. Wilkinson, 12 Ad. & E. 743 ; 4 P. &
(<r) Doe V. Caplin, 3 Taunt. 120. D. 323. Doe v. .Spiller, 6 Esp. 70.
(d) Doe V. Church, 3 Campb. 71. Doe v. Knightley, 7 T. R. 63.
(e) Doe V. Archer, 14 East, 245.
' And if the tenant keep the notice in his possession, he
waives the objection, and is bound by the notice. Doe v.
Spiller, 6 Esp. 70.
Sec. I.] LANDLORD AND TENANT. 397
xent ; and, such an option having been accorded to
him, he can not, if he chooses to occupy, be treated as
a trespasser and wrongdoer and turned out of posses-
sion. If, however, the notice is a notice to quit or pay
double the annual value under the statutes imposing
penalties on tenants for holding over after a notice to
■quit, the alternative notice so given will be construed
as a peremptory notice to quit, accompanied by a
warning to the tenant of the penal consequences of
disobedience, and not as an offer on the part of the
landlord of a new bargain and a new lease at an in-
creased rent, (^g) '
732. Length of the notice. — We have already seen
that, in the case of a tenancy from year to year, six
•calendar months' notice to quit is required to be given
prior to the expiration of the current year of hiring,
in order to determine the tenancy between the parties.
(Ji) But whenever the tenancy commences and ends
at any of the usual feasts, the customary half year in-
tervening between two half-yearly feasts constitutes a
sufficient half-year's notice, although the intermediate
time be not exactly six calendar months, {i)
733' ^f ^^^ ^z»^^ of quitting specified in the
notice. — If the time at which the tenant is to quit is
(^) Doe V. Jackson, I Doug. 175. (j) Howard v. Wemsley, 6 Esp. 53 ;
(K) Ante. But see Rogers v. King- 4 ib. igg. Rogers v. Hull Dock Com-
rstoii-upon-HuU Dock Company, 34 L. pany, 34 L. J., Ch. 165.
J., Ch. 165.
' See the statute as to double rent in New York, r Edm.
R. S., N. Y. 697,1 10; Hallv. Ballentine, 7 Johns. 536. Under
similar statutes it has been held that if the tenant be notified
by the lessor's assignee that if he hold over, he must pay an
increased rent, he will be held to have assented thereto by
ihis merely continuing to occupy after his lease expired.
Despart v. Walbridge, 15 N. Y. 374; see also Hunt v. Bailey,
39 Mo. e57; Adriance v. Hatkemeyer, Id. 134; Dorril v.
.Stephens. 4 McCord, ,59 ; McKinney v. Peck, 28 111. 174.
398 LAW OF CONTRACT. [Bk. II. Cii. II.
specified in the notice, care must be taken to make
such time correspond with the termination of the term
of hiring, unless the notice is given in the exercise of
a power to determine the tenancy expressly reserved
in the lease or agreement ; (/&) for, if the terra expires
at one period, and the notice is to quit at another,
such notice is bad, and the lessor can not safely act
upon it. (/) If a tenant holds possession of a house
as a tenant from year to year, under an agreement to
quit at a quarter's notice, the tenant can not be ex-
pelled at the expiration of any quarter that the lessor
may choose to select, but the notice must be a quarter's
notice to quit at the expiration of the current year.
(;«) If the hiring is from half-year to half-year, de-
terminable by six month's notice to quit, the tenancy
may be determined by notice at the expiration of any
half-year, (ti) If it is a quarterly, a monthly, or a
weekly hiring, the notice must be a notice to quit at
the expiration of the current quarter, moirth, or week;
if it breaks into the middle of the quarter, month, or
week, it is not a good notice to quit. If the hiring is
from month to month, and the rent is made payable
weekly, a notice to quit at the expiration of the cur-
rent month must be given, and not a notice expiring
at any one of the weeks without reference to the
termination of the month. The length of the notice,
however, may be varied by local custom and usage,
and by the agreement of the parties. When the hiring
is for one single quarter, month, or week, no notice at
all is requisite. (<?) The term W\\\, in the absence of
[k) Bridges v. Polls, 17 C. B., N. S. (0) Doe v. Bayley, 5 C. & P. 67.
314 ; 33 L. J., C. P. 338. Doe v. Rr'.ffan, 6 Esp. -|. Doe v, Hazell,
(/) Doe V. Lea, 11 East, 312. i Esp. 94. Kemp v. Derrett, 3
(m) Doe V. Donovan, I Taunt. 555. Campb. 511. Hufifell v. Armitstead,
(ii) Doe V. Grafton, 21 L. J., Q. B. 7 C. & P. 56.
276.
Sec. I.] LANDLORD AND TENANT. 399
an express agreement to the contrary, be taken to
commence at the time of the tenant's enterinc: and
taking- possession of the demised premises.
A notice " to quit at the end of the first year of
your tenancy, which expires half a year after the date
of this notice," will be sufficient, and so also will a
notice " to quit at the expiration of the current year
of your tenancy," provided such notice was given half
a year prior to the expiration of the current year of
hiring. ( p) Sometimes the notice is given in the al-
ternative, in order to hit one of two periods on which
the term is known to end, and it has been held that
such a notice is a perfectly good notice, and possesses
all the certainty that is reasonably requisite for the
information of the tenant, {q) A notice to a weekly
tenant whose tenancy commenced on Wednesday, to
quit on Friday, provided his tenancy commenced on
Friday, or otherwise at the end of his tenancy next
after one week from the date thereof, was held to be
a good notice to determine the tenancy at the expira-
of a week from the subsequent Wednesday, (r) ^
734. Of the application of the notice to the cur-
rent term of hiring. — If the notice is made to apply
to the current term of hiring, and it is given too near
the end of the current term to be a good notice for
(/) Doe V. Butler, 2 Esp. 589. {r) Doe v. Scott, 4 Moo. & P. 20.
{q) Doe V. Wiightman, 4 Esp. 6.
' If the lease expires at one time and the notice to quit
specifies anotiier, it is bad; see Hanchet v. Wiiitney, i Vt.
315 ; Coffin V. Lunt, 2 Piclc. 70 ; Morehead v. Watkyns, 5
B. Mon. 228; Den v. Drake, 2 Greenl. 523. And the notice
must be absolute; a notice demanding possession and stat-
ing that if not yielded upon a certain day, rent at a certain
rent will be demanded, is not a good notice. Ayres v. Draper,
II Miss. 548. And see Burns v. Bryant, 3? N. Y. 453.
400 LAW OF CONTRACT. [Bk. II. Ch. II.
that term, it will not apply to the next term of hold-
ing, as that is not the current term, and a fresh notice
to quit, therefore, must be given, (j-) The notice is
always understood to apply to the year in which it is
given, whether it expressly refers to the "current year"
or not ; and it will not operate as a notice to quit for
the succeeding year, unless it appears plainly to have
been the intention of the lessor that the notice, if in-
valid for the first year, should apply to the next year
of holding. (/) Where a notice dated the 27th, and
served on the 28th, of September, required a tenant to
quit " at Lady Day next, or at the end of your current
year," and it appeared that the then current year of
hiring ended on Michaelmas Day (the 29th of Sep-
tember), two days after the day of the date, and one
■day after the service of the notice to quit, it was held
that it could not be presumed that the notice was in-
tended to apply to the year in which it was given, and
of which two days only remained, but that it must be
taken to apply to the next year, (ti) So, where the
term of hiring commenced and ended on the 2nd of
February, and the lessor, on the 22nd of October, 1833,
three months and ten days only before the expiration
of the year, gave the tenant notice to quit " at the ex-
piration of half a year from the delivery of this notice
or at such other time as your present year's holding"
shall expire after the expiration of half a year from the
delivery of this notice," it was held that the notice,
though bad for February, 1834, the succeeding Feb-
ruary, was a good notice for February, 1835. {y)
735. 7"^^ commencement of the current year of the
tenancy is generally regulated by the commencement
{s) Doe V. Morphett, 7 Q. B. 577 ; («) Doe v. Culliford, 4 D. & R.
14 L. J., Q. B. 345. 248.
{t) Mills V. Goff, 14 M. & W. 75. {v) Doe v. Smith, 5 Ad. & E. 353.
Sec. I.] LANDLORD AND TENANT. 401
of the original holding. Where premises were demised
by an agreement dated the " 13th of August, 1838,"
for the term of" one year and six months certain," at
a yearly rent payable quarterly, " three calendar months'
notice to be given on either side previous to the ter-
mination of the tenancy," and the tenant entered and
held possession beyond the year and six months, and
on the 7th of May, 1840, the lessor gave the tenant
notice to quit on the 13th of August next, the notice
was held to be good, as the year of hiring was to be
calculated from that day, and not from the termination
of the year and six months. (^yY And where a tenant
{y) Doe V. Dobell, i Q. B. 806. Doe v. Samuel, 5 Esp. 173.
' See Cretien v. Doney, i N. Y. 419, where A exe-
cuted a lease for one year to B, which contained the fol-
lowing clause " B to have the privilege to the premises for
one year, one month, and twenty days longer,'' but if he leaves
he is to give four months' notice before the expiration of this
lease. Held, that such lease created a term of two years, one
month, and twenty days, in case no four months' notice was
given prior to the expiration of the first year, and local
custom may determine whether a lease from May i, in one
year, to May i, in the succeeding year, includes or excludes
the first days. Wilcox v. Woods, 9 Wend. 34'5. A lease for
years to end on May i, expires at noon of that day, and a
lease from a day named to May i, expires on midnight on
April 30. The People ex rel. Elston v. Robinson, 39 Barb. 9.
Under a lease for a specified term at the tenant's election, for
a further term, at an increased rent, the election of the lessee
to hold for the additional term at the increased rent, may be
inferred from his continuing to occupy the premises and pay-
ing rent for two quarters at the increased rate, without proof
of any formal election or notice to the lessor at the time of
the expiration of the first term. The provision in the lease is
not a mere covenant of the plaintiff for renewal; no formal
renewal was contemplated by the parties. The agreement
itself is, as to the additional term, a lease de futuro, requiring
only the lapse of the preceding term and the election of the
defendant to become a lease in presenti ; all that is necessary
to its validity is the fact of election. Kramer v. Cook, 7 Gray,
55°-
II. — 26
402 LAW OF CONTRACT. [Bk. II. Ch. IL
entered into possession, under an agreement for a lease
for a term of five years and a half, and the lease was
never granted, but the tenant continued to occupy,,
and when the five years and a half were nearly expired,
negotiations were entered into for a further lease at
an increased rent, to commence on the expiration of
the term of five years and a half, and this second lease
was never executed, but the defendant continued in
the occupation of the premises, paying the increased
rent, it was held that the current year of the tenancy
must be calculated from the original entry of the ten-
ant upon the premises, (z) Where, on the other hand,
a lessee of a term granted an under-lease for fourteen
years and a half from the 25th of December, and the
term consequently expired on the 24th of June, and
the under-lessee continued in possession, paying rent, it
was held that the subsequent tenancy commenced
from the termination of the preceding under-lease, and
that a notice given on the 24th of December, to quit
on the 24th of June, was a valid notice, (a)
736. Calculation of the current year from one of
the usual feast days. — The term of hiring is generally,,
by the express or implied agreement of the parties,
calculated from some one or other of the quarterly
feasts ; and, if the tenant enters in the middle of a
customary quarter, and afterwards pays his rent for that
half-quarter, and continues then to pay from the com-
mencement of a succeeding quarter, he is not a tenant
from the time of his coming in, but from the succeed-
ing quarter-day. (<5) But, if he pays his rent at the
end of the quarter or half year from the time of his
(z) Berrey v. Lindley, 4 Sc. N. R. H. & N. 594 ; 30 L. J., Ex. 173.
61 ; 3 M. & Gr. 498. (o) Doe v. Johnson, 6 Esp. 10. Doe
(a) Doe V. Lines, iii Q. B. 402 ; 17 v. Stapleton, 3 C. & P. 275.
L. J., Q. B. loS. Walker v. Code, 6
Skc. I.] LANDLORD AND TENANT. 403
coming in, the tenancy will commence from the day
of his entry, (c) If the notice be given to quit at
Michaelmas generally, it is good for either Old or
New Michaelmas. Prima facie it would be for New
Michaelmas ; but, if the holding was from Old Mich-
aelmas, this notice would do for that also, (d) Where
a notice was given on the 27th of September "to quit
at the expiration of the term for which you hold,"
evidence was permitted to be given of a general cus-
tom of the country to let from Lady Day, and of the
fact of the rent being due at Michaelmas and Lady
Day, and it was left to the jury to presume, in the
absence of evidence to the contrary, that the tenancy,
like other tenancies in that part of the country, was a
tenancy from Lady Day to Lady Day. (e) It has been
held that, since the existence of the new style sanctioned
by act of Parliament, a lease by deed of lands " to be
holden from the feast of St. Michael " must be taken to
mean New Michaelmas, and that extrinsic evidence is
not admissible to show that it meant a holding from
Old Michaelmas. (/) But, although the oral ex-
pressions and agreements of the parties are inadmiss-
ible to alter or contradict the written contract, yet all
the surrounding circumstances may be regarded ; and
if it can be shown that the rent has always been paid
at Old Michaelmas, or that by the custom of the
country lands are always let at Old Michaelmas, the
holding would be deemed to be from the latter
period. (^)
737. Admissions by the tenant of the commence-
(f) Doe V. Matthews, n C. B. 675. Smith v. Walton, I M. & Sc. 382 ; 8
\d) Doe V. Perrin, 9 C. & P. 468. Bing. 235.
Doe V. Vince, 2 Campb. 256. {g) lurley v. Wood, i Esp. 198.
if) Doe V. Lamb, Adam's Eject. 4th Doe v. Benson, 4 B. & Aid. 589. Den
ed. 272. V. Hopkinson, 3 D. & R. 507.
(/) Doe V. Lea, 11 East, 312.
404 LAW OF CONTRACT. [Bk. II. Ch. II.
meni of the term. — The mere service upon the tenant
of a notice to quit at a particular time is not prima
facie evidence of the termination of the term at the
time mentioned in such notice. (Ji) But, if the tenant
is expressly told that be must leave after the expira-
tion of six months, or if a written notice is served per-
sonally on the lessee, and the latter reads it, and makes
no objection to it, this is prima facie evidence to go to
a jury that the time of quitting is correctly stated in
the notice. If he can not read, or does not read, the
notice in the presence of the person vs'ho serves it
upon him, it must go for nothing, ii ) An admission
by the tenant of a holding corresponding with the
time mentioned in the notice may be rebutted by
direct evidence of a different holding. (Ji) If the
period of the commencement of the term is uncertain,
and the lessor applies to the lessee to ascertain the
time of the commencement of his lease, the lessee is
bound by the information he gives, and can not be
permitted afterwards to set up a different holding for
the purpose of defeating proceedings that have been
taken by the landlord upon the faith of such state-
ment. (/)
738. Different periods of entry. — When the de-
mised premises are entered upon at different periods,
the notice to quit ought to refer to the time of tenant's
entry upon and holding of the principal subject-mat-
ter of the demise. Thus, if buildings and land are let
together, to be entered upon at different times, or
holden from different periods, and the buildings con-
stitute the principal subject-matter of demise, and the
{h) Doe V. Calvert, 2 Campb. 388. {k) Oakapple v. Copous, 4 T. R.
(i) Thomas v. Thomas, 2 Campb. 361. Brown v. Burtinshaw, 7 D. &
647. Doe V. Forster, 13 East, 405. R. 610.
Doe V, Wombwell, 2 Campb. 559. (/) Doe v. Lambly, 2 Esp. 635.
Sec. I.J LANDLORD AND TENANT. 405
land is merely accessorial thereto, the notice to quit
should refer to the tenant's entry upon and holding
of the buildings, and not the land ; and it is a ques-
tion of fact which is the principal and which the ac-
cessorial subject of demise, {m) Though part of a
farm is to be entered upon and quitted at different
periods, z. e., the pasture at Old Lady Day, the arable
land at Old Candlemas, and the meadow at Old May
Day, yet that is a letting from Lady Day to Lady Day ;
for it is no more than the custom of most counties
would have directed without any special words for
that purpose in any taking from Old Lady Day, viz.,
that the arable land shall be entered upon at Candle-
mas to prepare it for the Lent corn, and the meadows
not till May Day, when in the northern counties they
are usually heyned for hay. {n)
Where a tenant entered into possession of a farm,
under an agreement " to enter on the tillage land at
Candlemas, and on the house and all other the premi-
ses on Lady Day following, and to quit the farm ac-
cording to the times of entry as aforesaid," and the
rent was reserved at Michaelmas and Lady Day, it
was hfeld that a notice to quit, delivered half a year
before Lady Day, but less than half a year before
Candlemas, was good, the taking being in substance
from Lady Day, with a privilege for the incoming
tenant to enter on the arable land at Candlemas for the
sake of ploughing, &c. {0) And, where the lessee of a
dwelling-house, buildings, and bleaching manufac-
turies, pasture and meadow land, entered into pos-
session under an agreement for a lease, by which it
was stipulated that the term of hiring should com-
{m) Doe V. Howard, II East, 498. («) Doe v. Snowdon, 2 W. Bl.
Doe V. Hughes, 7 M. & W. 141. Doe 1224. v
V. Rhodes, II M. & W. 6oo. (") Doe v. Spence, 6 East, 120.
4o6 LAW OF CONTRACT. [Bic. II. Ch. II.
mence, as to the meadow ground from the 25th of
December last, as to the pasture from the 25th of March
next, and as to the houses, out-houses, and other
buildings, and all the rest of the premises from the ist
of May, and the first half-year's rent was made paya-
ble on the day of Pentecost, and the other at Martin-
mas, it was held that, the substantial subject of de-
mise being the house and buildings for the purpose
of the manufacture, the time limited for taking pos-
session thereof was the substantial time of entry, to
which a notice to quit ought to refer, and not the
25th of December, the time limited for the taking
possession of the meadow land, which was merely
auxiliary to the principal subject of demise. (/)
739. Service of notice to quit. — If the notice to
quit is served upon the actual occupiers of the de-
mised premises, proof of such service is sufficient to
sustain an action of ejectment. (^) Where the lessee
puts another into possession or occupation of the de-
mised premises, the party so let into possession is pre-
sumed to be the assignee of the lessee, and a notice to
quit served upon such occupier will determine the
term and sustain an ejectment against the lessee.
Thus, where the tenant went away leaving his son-in-
law in possession, and the lessor gave the son-in-law
notice to quit and brought ejectment, and the lessee
came forward to defend the possession, saying that he
had received no notice, and that his term was not de-
termined, it was held that the notice was sufficient, (r)
If the party in occupation of the house is the mere
servant of the lessee, the notice should be a notice to
the lessee to quit, and not a notice to the servant. {/)
(/) Doe V. Watkins, 7 East, 556. {r) Doe v. Williams, 6 B. & C. 41 ;
(3) Roc V. Street, 2 Ad. & E. 331. 9 D. & R. 31.
(s) Doe V. Woodman, 8 East, 228.
Sec. I.] LANDLORD AND TENANT. 407
A delivery of the notice to the wife or servant of the
lessee, at the dwelling-house of the latter, is a suffi-
cient service. (J) But a servant to whom it is de-
livered should be expressly told that it is a notice to
quit, and should be requested, either orally, or by
means of a written or printed address or direction, to
deliver it to the tenant, (u) If there is a personal ser-
vice of the notice upon the tenant himself, no written
direction or address upon the notice is necessary ; {v)
and, if the notice is directed to the tenant by a wrong
Christian name and he neglects to repudiate it or
send it back, he is deemed to have waived the misdi-
rection and is bound by such notice. (_j/) If two or
more persons hold possession of the demised premises
as joint-tenants or tenants-in common, notice to one
of them is sufficient notice to all to determine the
tenancy (^2)
740. Service of notice through the post-office. —
If a notice to quit properly addressed to the landlord
or his authorized agent has been put into the post-
office, and is delivered within the usual business
hours, on the 25th of March, that will be a good
notice for the 29th of December following, although
the landlord does not actually receive it until the
26th. {a)
T/I^l. Acceptance of informal notice — Proof of
notice. — If a tenant gives his landlord an insufficient
notice to quit, and the landlord at first assents, b t
ultimately refuses to accept the notice, and the tena t
quits according to his notice, the tenancy is not de-
{{) Jones V. Marsh, 4 T. R. 464. v. Clark, 9 Dowl. 202.
Doe V. Dunbar, I M. & M. 11. Alford (v) Doe v. Wrightman, 4 Esp. 5.
•V. Vickery, i Car. & M. 283. Tan- (y) Doe v. Spiller, 6 Esp. 70.
Jiam V. Nicholson, L. R., 5 H. L. C. (2) Doe v. Crick, 5 Esp. 196.
561. (o) Papillon V. Brunton, 5 H. & N.
(«<) Doe V. Lucas, 5 Esp. 152. Smith 518 29 L. J., Ex. 265.
408 LAW OF CONTRACT. [Bk. II. Ch. IL
termined. {b) A written notice to quit may be
proved by the production of a copy, although no
notice has been given to produce the original. (<:) '
742. Waiver of notice to quit. — If the tenant re-
mains in possession after the expiration of a good
and valid notice to quit, his possession then becomes
an adverse tenancy and possession, and the landlord
may either bring an action of ejectment against him,
or proceed in the county court, or before justices of
the peace, for the recovery of the possession of the
demised premises. But, if he permits the tenant to
remain in possession after the expiration of the
notice, and demands and accepts rent in respect of
the tenant's occupation of the property subsequently
to the notice, this amounts to a waiver of the no-
tice, (af) and to the creation of a new tendency
taking effect at the expiration of the old one. {e) The
same result follows, if the lessor distrains for rent
which he claims to be due in respect of the tenant's
occupation subsequently to the expiration of the
notice. (/") ^ But, if a banker or agent of the lessor,
{b) Bessell v. Landesberg, 7 Q. B. Blyth v. Dennett, 13 C. B. 178 ; 22 L.
638. J., C. P. 79-
(f) Doe V. Somerton, 7 Q. B. 58. (e) Tayleur v. Wildin, L. R., 3 Ex.
(d) Goodwright v. Cordwent, 6 T. 203 ; 37 L. J., Ex. 173.
R. 219. Doe V. Batten, Cowp. 243. (/) Zouch v. Willingale, I H. Bl.
311-
' The question of service is one under the peculiar stat-
ute ; in general, however, the service must be on the tenant
or on some person of proper age residing on the premises.
In New York, if none such can be found, the service may be
made by affixing the notice to some conspicuous part of the
premises, i Edm. R. S. 696, § 8 ; see Roussell v. Kelly, 41
Cal. 360; People v. Goelet, 14 Abb. (N. Y.) Pr. N. S. 130.
For the peculiar notice and proceedings necessary under the
New Yorit Squatter Act, see Laws of 1857, ch. 396 ; McAdama
Landlord and Tenant, 346.
" See Prindle v. Anderson, 19 VVend. 391 ; Whitney v.
Sec. I.] LANDLORD AND TENANT. 409
without any special authority from the latter, receives
rent from the tenant, the act of such unauthorized
agent does not amount to a waiver of the notice. (^)
The money, moreover, must be paid and accepted as
rent, and not by way of satisfaction of the lessor's
claim for double rent or double value, under the
statutes for holding over. The giving of a second
notice to quit before or after the expiration of the
first notice does not necessarily amount to a waiver
of the latter. Qi) Nor does a collateral promise by
the lessor not to act upon the notice under certain
circumstances, or in the case of the happening of a
certain event, amount to a waiver of the notice, (z)
If a tenant retains possession and receives the pro-
duce and profits of the demised premises after the
expiration of a notice to quit given by him, such
retention of possession will, in general, as against the
tenant, amount to a waiver of the notice, (k)
743. Proof and effect of holding over. — There is
no holding over by a tenant from the mere fact of his
not sending the keys of a house to the landlord. It
is enough if the tenant vacates the house and gives
the landlord the means and opportunity of taking
possession when he pleases ; for possession is to be
given on the land, and the landlord must come and
take it. But if the tenant continues to use and occupy
the premises after the term has ceased, he will be re-
sponsible for holding over.' And the tenant is re-
(^) Doe V. Calvert, 2 Campb. 387. (t) Whiteacre v. Symonds, 10 East,.
(h) Doe V. Humphreys, 2 East, 237. 13.
Doe V. Steel, 3 Campb. 116. {K) Jones v. Shears, 4 Ad. & E. 832.
Swett, 2 Fost. 10 ; Collins v. Canty, 6 Cush. 415 ; Tuttle v.
Beam, 13 Met. 275 ; Babcock v. Abbee, Id. 273 ; Stedman v.
Mackintosh, 5 Ired. 571.
' The doctrine that where the lessee holds over and
410 LAW OF CONTRACT. [Bk. II. Ch. II.
sponsible, if his sub-tenant holds over; for the landlord
is entitled, upon the determination of the tenancy, to
receive full and complete possession from the tenant.
(/) But one joint-tenant is not responsible for a
(/) Hendeison v. Squire, L. R., 4 cott v. Smythies, 7 C. & P. 808.
<2. B. 170 ; 38 L. J., Q. B 73. Calde-
the lessor receives rent accruing after the expiration of
the term, a new tenancy arises for a further term subject
to the covenants and conditions of the original lease
is true as a general rule; and the reason is, that the receipt of
the rent is considered as an acknowledgment of a subsisting
tenancy. But it does not follow that the new term must
necessarily be a year. Where the former lease for was less
than a j'ear, as a quarter or a month, or where the term,
though extending to a year or more, was composed of such
periods, there is no ground for holding that the new term,
presumed from the holding over of the tenant and the receipt
of rent by the landlord, extends beyond one of the periods of
the tenancy. The tenant who enters under a lease for a month
and holds over, and during the second month pays rent, is not
entitled to claim a n*ew term of one year, but he becomes a
tenant from month to month. When the tenancy is found
from the fact of the holding over of the tenant and the
acknowledgment of the landlord, it is presumed to be of the
same character — as annual, quarterly, monthly, &c., and upon
the same covenants and conditions as in the previous tenancy.
It rests upon implication alone. But if the parties make an
express agreement relating in any respect to the new tenancy,
then in that respect there is no room for implication.
Blumenberg v. Myres, 32 Cal. 93. And see Rowan v. Lytic,
Wend. 616; Conway v. Starkweather, r Den. 113; Blumen-
bury V. Meyers, 32 Cal. 93 ; Edwards v. Hall, 9 Allen, 462 ;
Ackermann v. Lyman, 20 Wis. 454; Van Rensselaer's Heirs
V. Penniman, 6 Wend. 569 ; Hunt v. Bailey, 39 Mo. 267 ; Mc-
Kenney v. Peck, 28 111. 174. Miller v. Levi, 44 N. Y. 489,
Jield, that a provision in a lease that the lessor may" terminate
the lease at the end of any year, by giving sixty days' previous
notice, in case he should sell or desire to rebuild," is a limita-
tion, and the term expires by force of a sale and notice in
sixty days thereafier, and if the tenant retains possession after
such sixty days it is a holding over which will give jurisdic-
tion in summary proceedings for his removal.
Sec. I.] LANDLORD AND TENANT. 411
holding over by the other, (jti) Mere holding over
does not create a new tenancy ; nor is it in itself any
evidence of an agreeement to renew the previous ten-
Cm) Tancred v. Chnsty, I2 M. & W. 316.
The question as to what is a holding over, came up in Gib-
bons V. Dayton, 4 Hun. 451 ; in that case the following receipt
Tvas in evidence — " New York, Sept. ist, 1871. Received from
Mrs. Mary Merriam the sum of sixty dollars, for one month's
rent only, in advance, for second floor rooms in house No.
165 Bleecker-street, ending October I, 1871, at noon, it being
expressly understood between us, the tenant and agent, or
landlord mentioned in this receipt, that this term of hiring
and letting is for one month only, and will expire as afore-
said. $60. Thomas J. Gibbons." In which the court, Davis,
P. J. (Daniels and Brady, JJ., concurring), said: "The ap-
pellant is public administrator, and as such was appointed
administrator of the estate of one Anna Maria Merriam,
deceased. The respondent presented a claim for rent against
the estate, which being disputed, was submitted to reference
with the approval of the surrogate, in conformity to the stat-
ute in such case made and provided. Mrs. Merriam, the in-
testate, was the tenant of the respondent from month to month ;
she had been accustomed to receive on payment of the
monthly rent at the beginning of each month, an instrument
acknowledging the receipt of the rent and expressing the
term and nature of the tenancy. Such an instrument was
executed and delivered to her about the first of April, 1873,
on payment of the rent for that month. About the first of
May, Mrs. Merriam was taken sick and went to the house of
a friend, where she became so ill that she was unable to
return to her rooms, and she remained at hjr friend's till
her death, which occurred on the 6th of June, 1873. Her fur-
niture and other personal property remained at the rooms
leased to her by respondent until about the 29th or 30th of
July, 1873. About the 28th of July, the appellant received
notice of the death of Mrs. Merriam, and was on that day
appointed her administrator, and on the 29th or 30th of July
removed all articles of any apparent value from the premises
previously occupied by her, and about the same time sent the
keys of the rooms to the place of business of respondent, and
left them with a boy in the office, with a message that they
were the keys of such rooms. The respondent, on learning
that the keys had been sent to his office, refused to receive
412 LAJV OF CONTRACT. [Bk. II. Ch. IL
ancy. (n) There must be a payment and acceptance
of rent which accrued subsequently to the expiration
of the lease ; and then the tenant holds as tenant from
(«) Gray v. Bompas, ii C. B., N. S. 520. Jenner v. Clegg, i Mood. & Rob. 213.
them, and sent them back to the ofBce of the appellant. The
clerk of the appellant also refused to receive them. On the
i6th of February following, the respondent entered the rooms,
cleaned them out, and repaired them, removing the articles of
no value lett in them, to the cellar of the building. The
referee held, that the intestate was tenant from month to
month, that there had been no lawful surrender of the prem-
ises, and that the appellant was liable for the rent down to the
time of the entry of the respondent on the i6th of February,
1874, at the rate of sixty dollars per month, and directed judg-
ment accordingly. It is very clear that the tenancy was
from month to month. Neither party was bound to give any
notice to the other in order to terminate the tenancy at the
expiration of any month. The landlord could have removed
the tenant by summary proceedings, without notice; and so
the tenant could lawfully have left the premises at the expir-
ation of any month, without notice, and without being bound
to pay further rent. People ex rel. Gledhill v. Schackno, 48
Barb. 551; People v. Goelet, 14 Abb. Pr. N. S. 130. The
death of Mrs. Merriam did not change the character of the
tenancy, and the appellant is not liable beyond the obligations
that rested and would have remained upon her had she con-
tinued to live and retain her possession down to the day
when appellant removed the property and sent the keys to the
respondent's office. She would in that case have been charge-
able with rent for the months of May, June, and July ; but
her tenancy would have terminated with the month of July.
The appellant acted promptly and with apparent good faith.
He was appointed administrator on the 28th of July, and on
the next day, or on the 30th, moved the furniture and every-
thing of value from the premises, and sent the keys to the
landlord. This was a complete termination of the tenancy,
and full notice that the term would not be renewed for an-
other month. A few articles were left in the rooms, but they
seem from the evidence to have been nothing more than
worthless things, which the referee finds to have been valueless.
The rooms were excessively dirty, but the litter and filth, and
worthless fragments and articles which tenants are often accus-
tomed to leave behind them, have never been held to consti-
Sec. I.] LANDLORD AND TENANT. 413
year to year upon all such of the terms of the original
lease as are applicable to a yearly tenancy. {0) If,
therefore, the lease contained a proviso for re-entry in
case of non-payment of rent, the proviso is impliedly
annexed to the yearly tenancy, {p) But if there is
any evidence to show that the holding after the expi-
ration of the lease was upon new and diflFerent terms,
the legal presumption is ^rebutted, {q) and the nature
of the holding becomes a question of fact. Whether
any particular covenant is applicable to a yearly ten-
(o) Torriano v. Young, 6 C. & P. Sanders, 3 Bing. N. C. 850.
II. Thomas ». Packer, i H. & N. {p) Williams. J., Doe v. Amey, 12
"671. Bishop V. Howard, 3 D. & R. Ad. & E. 4S0. Hutton v. Warren, i
■298. Buckworth v. Simpson, i C. M. M. & W. 466.
.& R. 843. Arden v. Sullivan, 14 Q. (?) Mayor of Thetford v. Tyler, 8
B. 839 ; 19 L. J., Q. B. 271. Beale v. Q. B. 95.
tute a continuance of the tenancy. The landlord's remedy, if
any, for such an injury, is quite different from treating the
tenancy as renewed by the omission to carry everything away,
whether valuable or not. The referee has charged the ad-
ministrator with rent after the month of July, on the ground
that there was no formal surrender by him of the premises to
the landlord. No form was necessary under the facts of the
•case, beyond a removal at or before the expiration of the
month, and the restoration of the keys to the landlord so that
lie could enter upon possession. The case is not like that ot
Pugsley V. Aiken (11 N. Y. 494), where the lease was for ' one
year and an indefinite period thereafter,' for in this case the
■express terms of the lease are ' that this term of letting and
hiring is for one month only, and will expire' at noon on the
first day of the following month. There should have been a
recovery, therefore, only for the rent of the months of May,
June, and July, with interest on each month's rent from the
time it was payable. The judgment should be reversed, and
a new trial granted, with costs of the appeal to the appellant,
unless the respondent shall stipulate to modify the judgment
by reducing it to the rent for the months above named and
interest, in which case it may be affirmed as modified, with-
out costs to either party on this appeal as against the
other."
414 LAW OF CONTRACT. [Bk. II. Cli. 11.
ancy is in some cases a question of fact, (r) In other
cases it will be a question of law.
744. Double yearly value for holding over. — Any
tenant willfully holding over and retaining possession
of the demised premises after the determination of his
term, and after possession has been demanded, and
notice in writing has been given him by the lessor, is
liable to pay to the person kept out of possession
double the yearly value of the lands, «S.c., detained. (J) '
An action for the recovery of this penalty may be
brought by the landlord, and the landlord alone, either
before or after he has recovered possession of the land
by an action of ejectment. {£) But it has been held
that the Act applies only to the case of a willful and
contumacious holding over by the tenant after a valid
notice to quit, anfl not to a holding over under a bona
fide claim of title or right, though erroneous, {u) A
weekly or quarterly tenant has been held not to come
within the operation of the statute, (v) In the case
of a tenancy from year to year, the ordinary notice to
quit at the end of the current year of hiring is a suffi-
cient demand of possession to entitle the lessor to
double yearly value, (jv) If the tenant holds under
a lease for a term of years certain, a notice to quit at
(;-) Hyatt v. Griffiths, 17 Q. B. 505. L. J., Ex. 37.
Oakley v. Monck. L. R., I Ex, 359; (tc) Hirst v. Horn, 6 M. & W, 355.
35 L J., Ex. 87. Page v. More, 15 Q. B. 684. Swinfen
(s) 4 Geo. 2, c, 28, ..>. I. As to the v. Bacon, supra.
computation of the yearly value, see (i') Lloyd v. Rosbee, 2 Campb. 454
Robinson v. Learoyd, 7 M, & W. 48. Sullivan v. Bishop, 2 C. & P. 359.
(t) Soulsby v. Neving, 9 East, 310. (/) Wilkinson v. Colley, 5 Burr.
Harcourt v. Wyman, 3 Exch. 817. 2698. Poole v. Warren, 8 Ad. & E.
Swinfen v. Bacon, 6 H. & N. 846 ; 30 582. Lake v. Smith, 4 13. & P. 179.
' Hall V. Ballantine, 7 Johns. 536 ; Despart v. Walbridge,
15 N. Y. 374; Hunt V. Bailey, 39 Mo. 257 ; Adriance v. Hafke-
meyer. Id. 134; Dorril v. Stephens, 4McCord, 59; McKinney
V. Peck, 28 111. 174.
Sec. I.] LANDLORD AND TENANT. 415
the expiration of such term is likewise a sufficient de-
mand of possession, and such notice may be given
previous to the expiration of such term, or at any time
afterwards, so long as the tenant continues to hold as
a tenant at will, (z) If the landlord has done any act
amounting to a waiver of his notice to quit, he can
not make such notice the foundation of an action for
double value, (a)
745' Double rent for holding over. — By the 1 1
Geo. 2, c. 19, s. 18, it is enacted that, if any tenant
gives notice to the lessor of his intention to quit at a
particular time, and does not deliver up possession of
the premises at the time mentioned, such tenant, his
executors, &c., shall from thenceforth pay to the land-
lord or lessor double the rent which he would other-
wise have paid, to be levied, sued for, and recov-
ered at the same times and in the same manner as the
single rent. The tenant's notice to quit need not be
in writing, in order to support the lessor's claim to
double rent, nor need the lease which the tenant has
determined by his notice to quit be a lease in writing.
((5) But the notice must be a good notice to quit at
some fixed time, and at a period when the tenant is
able by notice to put an end to the tenancy. If the
tenant merely gives notice that he will quit " as soon
.as he can possibly get another location," {c) or gives
notice to quit in the middle instead of at the termina-
tion of the current term of hiring, or a notice of too
short a duration, and which does not therefore bind
the lessor, the lease is not determined, and there can
not, consequently, be any holding over by the tenant.
(z) Cutting V. Derby, 2 W. Bl. 1075. (b) Timmins v, Rawlinson, 3 Burr.
Messenger v. Armstrong, I T. R. 53. 1608.
(a) Ryal v. Rich, 10 East, 47. (f) Farrance v. Elkington, 2 Campb.
592-
4i6 LAW OF CONTRACT. [Bk. II. Ch. II.
(d) A tenant who holds over for one year after
notice to quit, paying double rent, may quit at the
end of such year without fresh notice, (e) '
746. Determination of tenancies by railway
notices. — If lands holden by tenants from year to year
are required by railway companies for the making of
a railway, the company may, in general, under the
powers of their Act, either give the ordinary landlord's
notice to quit ending with the current year of the
tenancy, in which case no compensation would be
payable in respect of any unexpired term, or six
months' notice to be given at any time, in which case
the tenant will be entitled to compensation for the
value of the term between the expiration of the six
months' notice and the time when a regular landlord's
notice would have expired. If, after having given a
notice not ending with the expiration of the current
year, the company inform the tenant that he may hold
on till the end of the current year, and he does so, the
situation of the parties is the same as if a regular land-
lord's notice had been originally given. (_/") If the
tenant continues in possession after the expiration of
the notice, he holds simply as a tenant at sufferance
(d) Johnstone v. Huddlestone, 4 B. 904.
& C. 922. (y) Reg. V. Lend, and Southamp.
W Booth V. Macfarlane, i B. & Ad. Ry. Co., 10 Ad. & E. 3.
' In an action of unlawful detainer against a tenant for
holding over, the mere fact that the tenant has been in
quiet and peaceable possession for one year before commence-
ment of the action, will not defeat it. Johnson v. Chely, 43
Cal. 299. Equity will not relieve against a tenant holding
over by reason of his landlord's laches, because he is a bad
manager or insolvent or vicious, and disagreeable to his land-
lord ; Blair v. Everett, 36 Md. 73 ; nor does a tenant by a
holding over, unless to such length as to imply consent upon
the landlord's part, become a tenant by sufferance, who is en-
titled to a notice to quit. Smith v. Littlefield, 51 N. Y. 539.
Sec. I.] LANDLORD AND TENANT. 417
without any estate or interest at all in the premises,
unless rent is received from him, or the premises are
re-demised to him. (^g)
745- -Recovery of possession. — Possession of land
can not be gained by an act of trespass which has
never been acquiesced in by the landowner, Every
person who trespasses upon another man's land and
remains there tortiously may be expelled by main
force. (^) But if he has once gained a lawful posses-
sion which is determined, and he then continues un-
lawfully to hold the land, the landowner is punishable
for a forcible entry, if he enters with a strong hand to
dispossess him. (i ) ' The tenant can not maintain an
action for damages against the landlord for a trespass
upon the realty in respect of the forcible entry ; for
there is no trespass by the latter in entering on prop-
erty which is his own, and on which he has a legal
right to enter. Therefore, if the tenant of a dwelling-
house holds over wrongfully, and the landlord enters
and pulls down the house, or stops up the chimney, or
takes off the roof, and the tenant brings an action
against the landlord for trespassing on the land, it is
an answer that the house was the defendant's house,
and therefore that he entered and pulled it down, &c.
(/^) It has been laid down by Parke, B., that, " where
a breach of the peace is committed by a freeholder
(g) Ex parte Nadin, 17 L. J., Ch. if) Rex v. Bathurst, Say. 227. Rex
421. V. Wilson, 8 T. R. 361.
(K) Browne v. Dawson, 12 Ad. & E. {k) Burling y. Reed, II Q. B. 904.
629. Davison v. Wilson, 17 L. J., Q. B.
196.
' See Pendleton v. Dyett, 4 Cow. 581 ; Bennett v. Bittle, 4
Rawle, 339 ; Page v. Parr, Styles, 432 ; Ogilvie v. Hull, 5 Hill,
52; Cohen v. Dupont, i Sandf. 260; Gilhooley v. Washing-
ton, 4 Comst. 217 ; Jackson v. Eddy, 12 Mo. 209 ; Christopher
V. Austin, I Kern. 216.
II. — 27
4i8 LAW OF CONTRACT. [Bk. II. Ch. 11.
who, in order to get into possession of his land, assaults
a person wrongfully holding possession of it against
his will, although the freeholder may be responsible to
the public in the shape of an indictment for a forcible
entry, he is not liable to the other party," and that " it
is a perfectly good justification to say that the plain-
tiff was in possession of the land against the will of
the defendant, who was owner, and that he entered
upon it accordingly, though in so doing a breach of
the peace was committed." (/) Tindal, C. J., is re-
ported to have said that, " if the landlord in making
his entry upon the tenant has been guilty either of a
breach of a positive statute or of an offense against the
common law, such violation of the law in making the
entry causes the possession thereby obtained to be il-
legal." (m) But this has since been decided not ta
be law ; and it is now well established that at the de-
termination of the term the landlord may enter and
take posses':ion of the demised premises, and after civ-
illy requesting the tenant to depart, may, in case of his
refusal, gently lay hands upon him and turn him out,
subject only to the liability to be indicted for a forci-
ble entry, (jt) If the landlord has no right to enter,
and he takes advantage of the temporary absence of
the tenant to fasten up the door of his apartments and
exclude him from re-entering, the tenant may recover
damages against the landlord for breaking and enter-
ing, although the landlord has never actually entered
the rooms, (o)
748. License to eject. — Where it was provided
that, in case of non-payment of rent or non-perform-
(/) Harvey v. Bridges, 14 M. & W. Harvey v. Bridges, 14 M. & W. 437 ;
442. I Exch. 261. Jones v. Chapman, 2
{m) Newton v. Harland, i So. N. R. Exch. 803, 821. Pollen v. Brewer, 7
490. C. B., N. S. 371.
(») Davis V. Burrell, 10 C. B. 822. (») Lane v. Dixon, 3 C. B. 776.
Sec. I.] LANDLORD AND TENANT. 419
ance of covenants, it should be lawful for the lessor
and his agents immediately to enter upon and take
possession of the demised premises, and to expel the
lessee and all persons claiming under him, without
any legal process, as effectually as any sheriff might do
in case the lessor had obtained judgment in ejectment
for the recovery of possession, and a writ had issued
thereon to the sheriff in due form of law, and that the
leave and license of the lessee might be pleaded in
any action brought by the latter for such entry and
ouster, and the agreement be used as conclusive evi-
dence of such leave and license, it was held that the
lessor had a right, as between himself and the lessee,
under this agreement to eject the lessee by main force,
and might plead such license in bar of an action of
trespass brought by the latter. (/) '
749. Ejectment under provisos for re-entry. —
When the lessor has a right to re-enter in case of non-
payment of rent, and brings an action of ejectment,
he must show that demand was made of the rent upon
the demised premises, unless there is no one there on
whom demand can be made, and the demand has been
made on the party liable to pay, {q) and that the same
or some part thereof has not been paid, (r) unless the
proviso is for re-entry without any demand of the
rent, {s) The demand must be of the precise sum
due, and must be made on the day when the rent was
due and payable by the terms of the lease, and at a
convenient time (which ought to be an hour) before
(/) Kavanagh v. Gudge, 7 Sc. N. (?-) Bro. Abr. DemANDe, 19. Kid-
R. 1025 ; 7 M. & Gr. 316. welly v. Brand, Plowd. 70, a, b.
(q) Manser v. Dix, 8 De G. M. & G. U) Doe v. Masters, 2 B. & C. 490.
703.
' See Fifty Associates v. Howland, 5 Cush. 214; Dennison
V. Read, 3 Dana, 586.
420 LAW OF CONTRACT. [Bk. II. Ch. II.
sunset, (t) Where the proviso is for re-entry in case
of non-payment of rent for the space of ten, fifteen, or
any other number of days after it has become due, the
demand must be made on the tenth or last day. (u)
Where rent was payable quarterly, and two quarters
were in arrear and were demanded together, it was
held that the lessor could not avail himself of the pro-
viso for re-entry in case of non-payment for twenty-
one days, as the first quarter ought to have been
demanded on the twenty-first day after it had become
due. (v)
750. Where there is no sufficient distress and one
half year's rent is due and in arrear, and the lessor has
a right to re-enter for non-payment thereof, proceed-
ings may be taken under the 15 & 16 Vict. c. 76, s.
210. (;)/) The operation of the statute appears to be
confined to cases where the tenant was six months in
arrear at the very time when the landlord had recourse
to the statutory remedy. If the landlord distrains for
the rent due, he waives any breach of the condition of
re-entry which had accrued prior to the taking of the
distress. {£) Proof of no sufficient distress at the time
the right to re-enter accrued, is prima facie proof of
there being no sufficient distress at the time of the
service of process, {a) If more than half a year's rent
is in arrear, the case is within the statute ; {h) but, if
more than half a year's rent is due, and there is suffi-
cient distress on the premises to satisfy one half-year,
the landlord can not proceed under the statute, but
(/) Fabian's Case, Cro. Eliz. 209 ; (v) Doe v. Paul, 3 C. & P. 613.
Co. Litt. 202, a. ; i Saund. 287, n. 16. (y) Doe v. Franks, 2 C. & K. 678.
Doe V. Brydges, 2 D. & R. 29. Acocks (2) Cotesworth v. Spokes, 30 L. J.
V. Phillips, 5 H. & N. 183. C. P. 222.
(it) Hill V. Grange, Plowd. 172, a, (a) Doe v. Fuchau, 15 East, 286.
173. Clun's Case, 10 Co. I2g, su {b) Doe v. Alexander, 2 M. & S.
Wood and Chiver, 4 Leon. 180. Doe 525.
V. Wandlass, 7 T. R. 117.
Sec. I.] LANDLORD AND TENANT. 421
must make his demand and entry at common law. {c)
But the distress must be available ; and, therefore, if
the tenant locks up the premises, so that the landlord
can not get at the goods which may happen to be
upon them, he may proceed under the statute, {d)
The right of re-entry must be absolute and unqualified.
If he has a right only to re-enter and hold until arrears
of rent are satisfied, and not to avoid the lease alto-
gether, he can not avail himself of the statute, {e)
The tenant or his assignee or sub-lessee (y) may, at
any time before trial (s. 212) stay all further proceed-
ings by paying or tendering to the lessor, or bringing
into court, the rent and arrears with costs, (^g) '
(c) Doe V. Roe, g Dowl. 548, (/) Doe v. Byron, i C. B. 623.
(ij?) Doe V. Dyson, M. & M. 77. (g) Roe v. Davis, 7 East, 363.
(e) Doe V. Bowditch, 8 Q. B. 973.
' See anie, note i, § 692. Prepayment of rent with intent to
prevent a purchaser at an execution sale of the premises from
obtaining the proportion due him under the Delaware Rev.
Code, §§ 28, 398-9, after sale, will entitle the purchaser to
distrain therefor, after confirmation of the sale. Baker v.
Burton, 3 Houst. 10. The goods of a principal in the store of
his commission-merchant, for sale, are not liable to distress
for rent. McCrury v. Claffin, 37 Md. 435. A distress war-
rant will lie in Georgia to enforce a contract for rent, to the
effect that the tenant should pay to the landlord, for rent,
" four and one-half bales of first-class cotton, each of the
weight of five hundred pounds, the half bale to weigh two
hundred and fifty pounds, and in addition to fix that part of
the kitchen on said place that has been injured by fire,"'
proper affidavit being made as to the value of the cotton, and
the cost of fixing the kitchen. Wilkins v. Taliafero, 52 Ga.
208; and see Urguhart v. Urguhart, 46 Id. 415. In Mary-
land an action of trespass will not lie against a landlord for
distress for more rent than is due. Hamilton v. Wendolf, 36
Md. 301. A lease was for ten years, with a stipulation that
the improvements erected might be removed at the end of the
term ; a brick malt-house was erected ; the malt-house was
personal property liable to be distrained for rent. Spencer v.
Darlington, 74 Pa. 286. The term could not be sold under
422 LAW OF CONTRACT. [Bk. II. Ch. II.
751. Recovery of possession where the demised
premises are deserted. — The 11 Geo. 2, c. 19,8. 16, and
the 57 Geo. 3, c. 52, give a summary remedy by pro-
ceedings before justices for recovery of demised prem-
ises, when the tenant has deserted them, and left them
uncultivated or unoccupied, so that no sufficient dis-
tress can be had. And by the 3 & 4 Vict. c. 84, police
magistrates and police constables within the metropoli-
tan police district are enabled to put the lessor into
possession, and determine the lease. But this power is
not by any of the provisions of the last-named statute,
or by the 1 1 & 12 Vict. c. 43, s. 34, vested in the Lord
Mayor or alderman sitting in the justice room at the
Mansion House or Guildhall. (//) The record of the
proceedings need not show that any complaint or in-
quiry was made before the justices upon oath, nor state
that the landlord had a right of re-entry, (z) Where
a bankrupt lessee of a dwelling-house went away, leav-
ing a person in the house whose possession was merely
colorable, it was held that the justices were warranted
in finding that the lessee had deserted the premises.
(/§) But where the tenant left his wife and children
(h) Edwards v. Hodges, 15 C. B. (0 Basten v. Carew, 5 D. & R. 558.
477. (k) Ex parte Pilton, I B. & Aid. 369.
a distress for rent. Id. Bidders at a sale under a distress
for rent agreed that one should buy and sell to the other at
the price at which he should buy; after the sale the constable
gave a receipt for the purchase-money of " a lease " and the
receiver of the tenant, an insolvent, in consideration of the
purchase-money beyond the rent and costs, conveyed all "his
interest in the lease " to the purchaser at the sale ; held, that
this conveyance did not affect the contract betwreen the two
bidders. Id. The lease stipulated that a transfer of the
lease without the written consent of the lessors should be a
forfeiture. The receiver of the lessee could not transfer it
without the written assent of the lessor. In Georgia a tenant
may have a distress warrant against a sub-tenant. Harrison
V. Guill, 46 Ga. 427.
Sec. I.] LANDLORD AND TENANT. 423
in the house, but took away his furniture and went
away himself, it was held that there was no desertion ;
and the judges of assize, on appeal, ordered restitution
of the demised premises with costs. (/) Where the
justices go the first time and find the premises deserted,
then, unless some one appears and pays the rent,
when they go the second time they are to deliver
possession to the lessor. The proceedings of the
justices are examinable in a summary way by the
judges (s. 1 7).
752. Recovery of possession of houses and small
tenements. — The statute i & 2 Vict. c. 74, enables jus-
tices of the peace to give possession to the landlord
of houses and land held for a term not exceeding
seven years, rent free or at a rent not exceeding ;^20
per annum, upon which no fine is payable, provided
the tenancy has been duly determined, and notice has
been given as therein provided, {m) If under this
statute a tenancy is proved before the justices, and a
determination of that tenancy, and a refusal on the
part of the tenant to quit, it is not competent to the
tenant to set up the title of any third party, or raise
any question of title before the magistrate, (n) If
the term or interest of the tenant in any house, land
or corporeal hereditament, where the value of the
premises or the rent does not exceed _;^5o by the year,
(<?) and on which no fine has been paid, has been duly
■determined, and the tenant or (if he does not occupy
or only occupies part) any person by whom the prem-
ises or part of them are then actually occupied, neglects
(/ ) Ashcroft V. Bourne, 3 B. & Ad. {o) If the rent does not exceed ;,f 50,
^84. the County Court has jurisdiction,
[in) Delaney v. Fox, i C. B., N. S. though the premises are of greater
l56. annual value. Harrington, Earl of,
(«) Rees V. Davies, 4 C. B., N. S. v. Ramsey, 8 Exch. 881 ; 2 E. & B.
62. 669 ; 22 L. J., Q. B. 460.
424 LAW OF CONTRACT. [Bk. 11. Ch. IL
or refuses to deliver up possession, the landlord or his
agent may, by proper proceedings in the county court,
obtain a warrant of possession. (/) The plaint must
be brought in the district where the tenements are
situate ; and the court will have jurisdiction, even
though a bona fide question of title is raised, where
neither the annual value of the lands nor the rent pay-
able in respect thereof exceed ;^20. (^q) If, however,
the annual value or rent exceed that sum, the jurisdic-
tion of the court will be ousted if a bonS. fide question
of title is raised ; and, even if neither rent nor value
exceed ^20, yet the defendant may have the action,
tried in a superior court if he can satisfy a judge that
the title to lands of greater annual value than ^20 will
be affected by the decision, (r) A tenant is, in gen-
eral, estopped from disputing his landlord's title ; but
he may show that it has expired ; and, if there is some
evidence to support the defense, and it is not a mere
illusory claim, and the rent or annual value of the
premises exceed ;^20, the judge of the county court
should refrain from trying the question, (i)
Where on the hearing of a plaint it appeared that
one of the matters seriously in dispute was whether
the whole or part of a house had been demised, it was
held that the inquiry involved a question of title, and
that the county court had no jurisdiction in the matter.
(/?) A decision of a county court judge, that the title
is not in question, is by no means conclusive of the
fact. The question may be brought before the supe-
rior courts on motion for a prohibition by affidavit ;
and, if the court directs that the party should declare,.
(/) 19 & 20 Vict. c. 108, s. 50. Dewes, 17 Jur. 558. Kerkin v. Kerkin,
('/) 30 & 31 Vict. c. 142, ». 12. 3 E. & B. 39g. Latham v. Spedding,.
{r) 30 & 31 Vict. c. 142, s. 13. 17 Q, B. 440.
{s) Mountnoy v. Collier, i E. & B. {t) Chew v. Holroyd, 8 Exch. 249 ;
630; 22 L. J., Q. B. 126. Marsh v. 22 L. J., Ex. 95.
Sec. I.] LANDLORD AND TENANT. 425
the question becomes one of evidence, {u) Neither
the tenant nor any one claiming through him, nor any
one put into possession by him, can, during the de-
mise, controvert the landlord's title in an action of
ejectment ; but he may show that the title has ex-
pired {x). If a tenancy is sought to be established
through the medium of payment of rent to the plain-
tiff or to his agent, it must be shown that the rent was
either paid by the defendant himself, or by some person
through whom he claims, or by his authorized agent ;
for an unauthorized payment of rent by a stranger
will not be binding on the defendant, or in any way
affect his rights. Where a party distrained for rent,
and the lessee paid the rent due under the distress
without protest or objection, it was held that he could
not after that controvert the title of the plaintiff! (jj/ )
753- Rights of out-going and incoming tenants —
Away-going crops, allowances for tillage, manure^
&c. — All tenants who held by an uncertain tenure,
and whose interest might at any time be determined
by the will of the lord, were by the common law
entitled to emblements and the crops and annual pro-
duce of the soil which had been sown or planted by
them, and which had not come to maturity at the
period of the determination of their interest. {£) In
all farming leases, the custom of the country, with
respect to the mode of cultivation and the right to
the away-going crop, is impliedly annexed to the
terms of the lease, unless it is excluded by express
provisions and stipulations, {a) The general rule in
(«) Thompson v. Ingham, 14 Q. B. (y) Doe v. Mitchell, 3 Moore, 229.
710. Hitchings v. Thompson, 5 Exch. 50.
(*) Ante. Doe v. Smythe, 4 M. & (z) Litt. ss. 68, 69.
S. 347. Doe V. Mills, 2 Ad. & E. 20. (a) Wigglesworth v. Dallison, 1
Doe V. Baylup, 3 ib. igo. Doug. 201 ; i Smith's L. C, 5th ed.,
520.
426 LAW OF CONTRACT. [Bk. II. Ch. II.
the case of farm leases is that the tenant is bound to
leave the land, when he quits, in the same state as he
found it on taking possession. If he has taken the
farm under a custom by which the outgoing tenant is
bound to leave a certain quantity of clover and grass
seeds or fallows, or a certain number of acres of grow-
ing wheat, or turnips, or other produce, or a certain
quantity of hay and straw, or manure, on the demised
premises, he must in his turn, when he quits the land,
leave it in the same state and condition, and with the
same privileges and advantages for the benefit of his
successor, that he himself enjoyed when he entered
upon it.
By the custom of some counties, the outgoing
tenant takes two-thirds of particular crops, leaving
one-third to the incoming tenant. ((5) In some dis-
tricts all the hay and straw must be left to be con-
sumed on the farm ; whilst in others the tenant is
entitled to take it away with him. Sometimes the
landlord or the incoming tenant has a right, and in
some instances he is bound by custom, to take the
away-going crops, and also the straw and hay, and
sometimes the manure, from the outgoing tenant at a
valuation ; and, when such a custom exists, the tenant
has a right, after the expiration of his lease, and after
he has quitted the premises, to enter upon the land as
occasion may require to improve and tend the crop.
If the landlord or the incoming tenant does not take
the crop at a valuation, the tenant has impliedly ac-
corded to him, by general custom and usage, all
such rights and privileges as are necessary to enable
him to gather it in, and secure it, and sell or turn it to
profit and advantage when arrived at maturity, such as
free ingress and egress into and from the demised
(i) Holding v. Pigott, 5 Moo. & P. 427. Griffiths v. Tomlis, 7 C. & P. 810.
Sec. I.] LANDLORD AND TENANT. 427
premises, the temporary use of the barns to thrash it
out, and yard-room for the straw ; and he has a right,
moreover, to the possession of the field for a reason-
able time for the carrying away as well as the cutting of
his corn, {c) If no custom exists giving the tenant a
right to the away-going crop, the landlord is, as we
have before seen, entitled thereto. The tenant, there-
fore, must in all cases make out and establish the cus-
tom, (laf) When no such custom exists, the natural
consequence is that the tenant doeg not till or sow
the ground at the close of his term of hiring ; and a
custom therefore appears to prevail, in all places where
the outgoing tenant is not entitled to the away -going
crop, for the incoming tenant or the landlord to enter
to manure and till the land, and plant the spring corn,
and prepare for the harvest, prior to the termination
of the lease and the commencement of his own term
and interest, (e)
Whatever custom regulates the tenant's rights on
entering, the same custom regulates his rights on
leaving ; and the custom may be given in evidence,
although there is a lease under seal, or a written con-
tract of demise between the parties. All customary
allowances, also, as between outgoing tenant and the
landlord or the incoming tenant, are impliedly an-
nexed to the express terms of the lease, such as allow-
ances for expenses incurred in draining lands that
required draining according to good husbandry,
though the drainage was done without the landlord's
(c) Boraston v. Green, i6 East, 8i. possession, see Hayling v. Okey, 8
Beatyv. Gibbons, Id. 1 18. Strickland Exch. 545.
V. Maxwell, 2 Cr. & M. 539. Griffiths {d) Caldecott v. Smythies, 7 C. & P.
■«. Puleston, 13 M. & W. 358. As to 808.
the right of the grantee of growing {e) Kennedy and Granger on Ten-
crops after the landlord has resumed ancy Customs.
428 LAW OF CONTRACT. [Bk. II. Ch. IL
knowledge or consent ; (y) also for manuring, tilling
fallowing, half-fallowing, and sowing the land, for seeds,
and labor, foldage, and manure, {g) The tenant's
rights to growing crops and produce are in all cases
strictly confined to annual crops, or the first year's
produce of seeds and roots sown or planted by him
during the last year of his tenancy, and do not extend
to trees, shrubs, and plants of a perennial character
(excepting the fruit-trees, plants, and shrubs of seeds-
men and nursery gardeners, an exception introduced
for the benefit of trade.) (A) Thus a border of box,
planted by a tenant in a garden demised to him, can
not be taken up and removed at the expiration of his
term, (z) nor a strawberry bed, (i) nor hedges, nor
fruit trees. (/)
The person primarily liable to the outgoing tenant
is the landlord ; but it is usual by agreement between
the outgoing tenant, the landlord, and the incoming
tenant, for the valuation to be made between the out-
going tenant and the incoming tenant, and for the
latter to pay the former. In order, however, to make
the incoming tenant liable, there must be the consent
of all three parties; for the outgoing and incoming
tenants can not by agreement between themselves de-
prive the landlord of his right to set off the arrears of
rent against the valuation of the tillages, (tn) '
(/) Mousley v. Ludlam, 21 L. J., (i) Empson v. Soden, 4 B. & Ad.
Q. B. 64. 655.
(g) Dalby v. Hirst, 3 Moore, 536. (k) Watherell v. Howells, i Campb.
Hutton V. Warren, i M. & W. 477. 227.
Willdns V. Wood, 12 Jur. Q. B. 583. (/) Wyndham v. Way, 4 Taunt. 316.
Favill V. Gaskoin, 7 Exch. 273. (m) Stafford v. Gardner, L. R., 7 C.
{h) Warden v. Usher, 3 Sc. N. R. P. 242.
508.
' Tenants whose estates are terminated by an uncertain
event which they can neither foresee nor control, are entitled
to the annu i) crop sowed by them while their estate continued;
Sec. I.] LANDLORD AND TENANT. 429
Where the lease determines by the death of any
landlord entitled for his life, or for any other uncertain
interest, the tenant, instead of claims to emblements,
may continue to hold and occupy such farm or lands
until the expiration of the then current year of his
tenancy ; {n) and the succeeding landlord is entitled
to receive of the tenant the proper proportion of the
rent for the period which may have elapsed from the
■day of the death of such lessor to the time of the
tenant's quitting, and may distrain for such propor-
tion, ip)
(«) 14 & 15 Vict. t. 25, s. I. If will not apply. Haines v. Welch,
■there are, from the nature of the case, infra.
no claims to emblements, the section (o) Haines v. Welch, L. R., 4 C. P.
91 ; 38 L. J., C. P. 118.
and a tenant for years, who knows when his lease will expire,
has usually some right to the crop he sowed, and to so
much possession of the land as may be necessary to getting
in the crop ; dependent either on agreement or on usage, i
Parsons on Contracts, 510. In Pennsylvania, the tenant's
right for a definite term to his away-going crops seems to be
well established. Diffedorffer v. Jones, cited in Carson v.
Blazer, 2 Binn. 487, and in Stultz v. Dickey, 5 Id. 289 ; Com-
fert V. Duncan, i Miles, 229 ; Demi v. Bossier, i Penn. 224.
Such is the rule also in New Jersey. Van Doren v. Everitt,
2 Southard, 460 ; Templeman v. Biddle, i Harr. (Del.) 522.
Says Parsons on Contracts, supra : " The local usages of this
■country, in this respect, vary very much, and are not often
distinctly defined or well established. Thus, there is some
uncertainty as to the property in the manure of a farm. Gen-
•erally, in this country, the outgoing tenant can not sell or
take away the manure." See Lassell v. Reed, 6 Greenl. 222 ;
Staples V. Emery, 7 Id. 201 ; Daniels v. Pond, 21 Pick. 367,
^71 ; Lewis v. Lyman, 22 Id. 437, 442 ; Middlebrook v. Cor-
win, 15 Wend. 169 ; Lewis v. Jones, 17 Pa. St. 262 ; Kittredge
V. Woods, 3 N. H. 503 ; Van Doren v. Everett, 2 South. 460 ;
Stultz V. Dickey, 5 Binn. 285. And this, even if the manure
is lying in heaps in the farm yard, and was made by his own
■cattle and from his own fodder. Lassell v. Reed, 6 Greenl.
■322; Middlebrook v. Corwin, 15 Wend. 169.
430 LAW OF CONTRACT. [Bk. II. Ch. 11.
754. Sale of straw off the land. — If by the terms
of the lease the hay and straw are to be consumed by
the tenant on the land, and the lessee sells the crop,
and the purchaser removes it, the landlord may main-
tain an action against the purchaser for the value of
the hay or straw, &c., so removed. (/) It is no
answer to such an action to show that the tenant has
brought back an equivalent in the shape of manure.
{q) If the value of straw sold off is to be returned in
manure, the manure value, and not the market price
of the straw sold, would seem to be the proper crite-
rion of expenditure upon the land, (r) According to
the custom of the country in some districts, the in-
coming tenant, in the absence of a special agreement,
pays the outgoing tenant a consuming price, or two-
thirds the market-price for the straw ; but if the out-
going tenant is bound to consume all the manure on
the farm, the allowance in respect of straw, as between
him and the incoming tenant, would be only half the
market price, called a fodder price. And, where there
is no special agreement to the contrary, the tenant is
often by custom entitled to go out as he came in. {s')
An outgoing tenant, therefore, who on coming in has
paid for straw in accordance with the custom, is enti-
tled to be paid for straw on going out ; and a stipula-
tion in a lease binding the tenant "to consume with
stock on the farm all the hay, straw, and clover grown
thereon, which manure shall be used on the said farm,"
is in nowise inconsistent with the tenant's customary
(/) 56 Geo. 3, c. 50, s. II. Wilmot {r) Lowndes v. Fountain, li Exch.
V. Rose, 3 E. & B. 563 ; 23 L. J., Q. B. 491.
281. (j) Clarke v. Westrope, 18 C. B. 774 ;
(?) Legh V. LillJe, 6 H. & N. 171 ; 25 L. J., C. P. 287.
30 L. J., Ex. 25.
Sec. I.] LANDLORD AND TENANT. 431
right to receive payment for the unconsumed straw on
his going out. {t) '
755- Re^J-oval of superstrtictures and fixtures. —
Buildings and constructions of a permanent character,
erected upon the demised premises by the tenant, and
attached to the freehold, are irremovable by him at
common law, unless they have been erected for trading
purposes ; but by the 14 & 15 Vict. c. 25, s. 3, provis-
ion is made for the removal of farm-buildings, and
buildings, engines, or machinery, erected by the tenant
with the consent in writing of the landlord, either
for agricultural purposes, or for the purposes of trade
and agriculture. '
756. Abtcndonment of the right of removal. — A
covenant in a lease to yield up the demised premises,
together with all fixtures thereunto belonging, is con-
fined to fixtures which belonged to the demised prem-
ises at the time of the execution of the lease ; but a
covenant to yield up fixtures that may belong to the
demised premises extends to fixtures that are after-
wards put up by the tenant, {u) Whenever the tenant
(t) Muncey v. Dennis, I H. & N. ig. Thresher v. E. L. Water Co., 2
220. B. & C. 608 ; 4 D. & R. 62. Martyr
(«) Hitchman v. Walton, 4 M. & v. Bradley, 2 M. & C. 25 ; 9 Bing. 24.
W. 414, Naylor v. Collinge, i Taunt. West v. Blakeway, 3 Sc. N. R. 218.
' Where the rent reserved is one-half the crop, this entitles
the landlord to one-half the straw. Rank v. Rank, 5 Barr. 211.
^ The rules concerning fixtures are to be construed with the
greatest liberality in favor of the tenant, being the converse of
the rule as between vendor and vendee, mortgagor and mort-
gagee, heir and executor ; Tate v. Blackburn, 48 Miss, i ; and
see as between landlord and tenant; Morgan v. Negley, 3
Pittsb. (Pa.) 33 ; Beckwith v. Boyce, 9 Miss. 560. Where a
landlord covenants that a tenant may remove the improve-
ments made by him on the land, provided the rent is paid to
the expiration of the lease, such payment is a condition prece-
de.'.t to the tenant's right of removal ; Mathinet v. Giddings,
10 Ohio, 364 ; as to what may be fixtures, see ante, note i, p. 262.
432 LAW OF CONTRACT. [Bk. II. Cn. II.
has a right of removal, he must exercise such right
prior to the determination of his tenancy ; he can not,
after he has once quitted the demised premises, re-enter
for the purpose of severing and removing fixtures, (zi)
If the tenant holds over wrongfully he loses his right
to sever and remove fixtures ; ( jj/) but if a lease be-
comes forfeited, the tenant may, before the landlord
re-enters, or before the forfeiture is established by the
judgment of a court of law, remove his fixtures, and
can not, it seems, be made responsible for so doing, (z)
but not afterwards, {a) If the landlord gives the
lessee permission to leave the fixtures on the premi-
ses, and makes the best terms he can for them with the
incoming tenant, and the latter enters and takes pos-
session of the fixtures, but refuses to pay for them, the
lessee can not enter to remove them, nor can he re-
cover the value of them, (b) When it is provided by
the terms of a lease that the lessee, at the expiration
or other sooner determination of the term, is to have
certain fixtures, and the lease becomes forfeited, the
lessee has a reasonable time from the date of the for-
feiture for the removal of his fixtures, (t)
757, Right of a purchaser or mortgagee to enter
and remove fixtures after a surrender of the term.—
If a lessee, possessed of tenant's fixtures removable at
the expiration of his term, assigns them to a purchaser,
and afterwards surrenders his lease, the purchaser has
(») Lee V. Risdon, 7 Taunt, igi. (a) Heap v. Barton, 12 C. B. 274.
■Quincy, Ex parte, I Atk. 477. Dud- Pugh v. Aston, L. R., 8 Eq. 626 ; 38
ley V. Warde, Amb. 113. L. J., Ch. 619.
(y) Leader v. Homewood, 27 L. J., {Ji) Roffey v. Henderson, 17 Q. B.
■C. P. 316. 574 ; 21 L. J., Q. B. 49.
(0) Stansfeld v. Mayor of Ports- (c) Stansfeld v. Mayor, &c., of Ports-
mouth, 4 C. B., N. S. 131 ; 27 L. J., mouth, 4 C. B., N. S., 133 ; 27 L. J.,
C. P. 124. Storer v. Hunter, 3 B. & C. P. 124.
C. 368.
Sec. I.] LANDLORD AND TENANT. 433
a right to enter and sever the fixtures, notwithstanding
that the lessee himself would have forfeited his right
to remove them ; for an estate surrendered hath, in
consideration of law, a continuance, having regard to
strangers who were not parties or privies to the sur-
render, "lest, by a voluntary surrender, they may
leceive prejudice touching any right or interest they
had before the surrender." (</) Where, therefore, a
lessee mortgaged his severable tenants' and trade fix-
tures, and then surrendered his lease to the lessor, who
granted a fresh term to the defendant, it was held that
the mortgagees had a right to enter and sever the
fixtures, and that they might maintain an action
against the lessor for preventing them from exercising
their right to sever, and in such action were entitled
to recover the value of the fixtures as severed. (<?)
758. Non-payment of tithe rent-cheirge by an out-
going tenant. — If any occupying tenant quits, leaving
unpaid any tithe rent-charge (14 & 15 Vict. c. 25, s.
4), and the tithe owner gives notice of proceeding by
distress for its recovery, the landlord or succeeding
tenant may pay the tithe rent and any expenses inci-
dent thereto, and may recover the amount from the
outgoing tenant or his legal representatives, in the
same manner as if the same were a debt by simple
contract due to the landlord or tenant making such
payment.
759. Inclosures of waste land by tenants. — If the
tenant during the demise has enclosed land from the
adjoining waste, and used it in common with the de-
mised premises, the title of the lessor will, as between
him and the lessee, prevail over the whole, whether
the tenant made the inclosure with or without the
{d) Co. Litt. 338, b. Co. V. Drake, 6 C. B., N. S. 798 ; 28
(e) The London Loan & Discount L. J., C. P. 297.
IL— 28
434 LAW OF CONTRACT. [Bk. II. Ch. IL
assent of the lessor ; (/) and, in either case, the
Statute of Limitations will not begin to run against
the lessor until the termination of the lease, (^g)
760. Leases obtained by misrepresentation. — Aa
estate or interest in land once vested can not after-
wards be divested in a court of law, on the ground
that the deed creating the estate has been obtained by
a fraudulent misrepresentation respecting some matter
collateral to the contract. Where, therefore, a lessor
has been induced to execute a lease by reason of a
fraudulent representation on the part of the lessee as
to the use to which he intended to apply the premises
it was held that the lease was not thereby avoided
and the term gone, but that the lessor must seek his
remedy by injunction ; iji) but, where the lease is
granted for the express purpose of carrying into effect
an illegal act, the courts will not lend their aid for the
enforcement of any of the provisions of the illegal
contract, (z)
761. The cancellation ef a lease by mutual con-
sent of the parties, discharges the covenants and
promises therein contained, but does not divest the
estate created by the lease, or destroy the lessor's right
of action for the rent founded on the privity of estate.
Arrears of rent, therefore, which accrue due prior to
the cancellation of a lease may be recovered by the
landlord in an action founded on the privity of
estate. (Ji)
(/) Andrews v. Hailes, 22 L. J., (j) Ritchie v. Smith, 6 C. B. 462.
Q. B. 409. Kingsmill v. Millard, 11 Gas Light Company v. Turner, 7 Sc.
Exch. 319. 779 ; 8 Id. 609.
(g) Whitmore v. Humphries, L, R., {k) Ward v. Lumley, 5 H. & N. 94 ;
7 C. P. I ; 41 L. J., C. P. 43. A short 29 L. J., Ex. 322. Bolton v. Bishop
form of lease has been provided by the of Carlisle, 2 H. Bl. 264 ; 4 B. &: K.
8 & 9 Vict. c. 124. 677.
(h) Feret v. Hill, 15 C. B. 226.
Sec. I.] LANDLORD AND TENANT. 435
762. Equitable assignees. — The equitable assignee
of a legal term is not liable to the lessor for rent, or
for damages in respect of breaches of covenants, even
though he may have been in possession. (/)
763. Breach of contract to grant a lease. — The
rule which governs sales of real property, that, if the
vendor fails to make a good title, the purchaser is only
entitled to recover the amount of his deposit and the
expenses to which he has been put, does not apply to
the case of a lease granted by a lessor in excess of his
leasing powers, and containing a covenant for quiet
enjoyment; and, if the lease is repudiated by a person
claiming under the assumed lessor, having a good
title so to do, the lessee is entitled to recover the full
value of the lease ; and it makes no diflFerence that the
lease was a reversionary lease, and that it was repudi-
ated before the lessee had entered into possession
under it. In such a case it was held that the lessee
was entitled to recover the expense of the lease so re-
pudiated, but not the expense of a lease of the demised
premises which he took from the person really entitled
to grant one after the repudiation of the first lease, nor
to a ;i^io per cent, compensation given by the jury, on
a supposed analogy to the case of a compulsory sale
to a railway company under an act of parliament, {ni)
if a man contracts to grant a good and valid lease,
without having any color of title to the premises
intended to be demised, the intended lessee may re-
cover all the damages he has sustained by reason of
the non-performance of the contract, including the
(/) Cox V. Bishop, 8 De G. M. & G. 96 ; 34 L- J-. C. P. 201 ; 35 Id. 141 ;
gij. • L. R., I C. P. 441.
{jii) Locke v. Furze, 19 C. B., N. S.
436 LAW OF CONTRACT. [Bk. II. Ch. II.
loss of the lease, (n) but not damages and costs arising
out of the re-sale of the lease to a third person, (o) '
764. Actions by landlords for use and occupation
of prefnises. — If lands and houses have been occupied
by a tenant under a lease void as to the duration of
the term by the statute of frauds, the rent reserved in
the lease will be the measure of damages resulting
from the breach of the implied contract to pay for the
actual use and occupation of the property. (/) But,
w^hen no rent has been fixed upon or ascertained by
the agreement of the parties, or the contract has been
so far departed from that the stipulated rent forms no
just criterion of value, the actual pecuniary value of
the occupation w^ill constitute the damage recoverable
by the plaintiff. In case of an eviction from part of
the premises, the jury must ascertain, independently
of any agreement, vi^hat ought to be paid. (^) "
765. Damages for breach of covenants for quiet
enjoyment. — A lessee under a void lease who has been
ejected by the successor of the lessor has a right, in an
action against the executors of the lessor for breach of
a covenant for quiet enjoyment contained in his lease,
to recover the value of the term, (r) The value of
(») Robinson v. Harman, 18 L. J., (/) Ante. De Medina v. Poison,
Ex. 202. Holt, 47.
(0) Spedding v. Nevill, L. R., 4 (?) Tomlinson v. Day, 2 B. & B. 681.
C. P. 212 ; 38 L. J., C. P. 133. (r) Williams v. Burrell, i C. B. 428.
' See Wolf V. Mitchell, 24 La. Ann. 433 ; Gartside v. Out-
ley, 58 111. 211 ; Buck V. Rodgers, 39 Ind. 222. A proposal by
a tenant at will to " take the house for three years from " a
certain future day if the owner would put in a new furnace,
which proposition is accepted by the landlord, is a present
demise to commence in the future, and not an agreement to
execute a lease at a future time. Shaw v. Farnsworth, 108
Mass. 358.
See ante, note 3, § 700.
Sec. I.] LANDLORD AND TENANT. All
the term also is recoverable by a plaintiff who has never
had possession of the demised premises, but who is
clothed with an interesse termini, which is a valuable
and assignable interest, {s)
766. Damages for breach of covenant not to
assign. — The measure of damages for a breach by an
assignee of the lease of a covenant not to assign, is such
a sum as will, as far as money can, put the plaintiff in
the same position as if he had still the defendant's
liability, instead of the liability of another of inferior pe-
cuniary ability, for breaches both past and future. (/)
767. Damages for breach of covenant to repair. —
In an action for breach of a covenant to repair, the
proper measure of damages is the amount that it will
take to put the premises into repair; {u) but, in es-
timating the damages to be recovered, the age and
general state and condition of the property at the
time of the demise must, as we have already seen, be
taken into consideration, {v) If buildings fall to the
ground by reason of the neglect of the covenantor to
repair them, or if they are blown down by the wind,
or burned by an accidental fire, the proper measure of
damages is the amount that it will take to rebuild,
deducting the difference in value between old mater-
ials and new, as the landlord is not entitled to be put
in a better position than he was in before the fire
took place, and can not have the value of a new house
when the one he has lost was an old house, (^y) If
there be both a covenant to repair and a covenant to
(s) Locke V. Furze, ante. And see N. 571 ; 27 L. J., Ex. 113. Bell v.
Rolph V. CroHch, L. R., 3 Ex. 44 ; 37 Hayden, 9 Ir. C. L. R. 301.
L. J., Ex. 8. {•") Ante. Burdett v. Withers, 2 N.
(t) Williams v. Earle, L. R., 3Q. B. & P. 123. Paine v. Hayne, 16 M. &
739. W. 541 ; 16 L. J., Ex. 130.
(«) Vivian v. Champion, 2 Raym. (j) Yates v. Dunster, 11 Exch. 15 ;
1125. Davies v. Underwood, 2 H. & 24 L. J., Ex. 226.
438 lAW OF CONTRACT. [Bk. II. Cn. II.
insure against loss from fire for a specific sum, the
liability of the covenantor in respect of the cost of
re-building in case the premises are burned down is
not limited to the amount of the sum covenanted to
be insured. (2) If the party suing upon the covenant
is only tenant for life, with remainder in tail and a
reversion in fee, he can only recover such damages as
are commensurate with his life estate. («) Where a
defendant held premises under a lease with a covenant
to keep and yield them up in repair, and at the ex-
piration of the lease the premises were dilapidated to
an amount fixed by the jury at ;^22,and the plaintiff
had, before this time, made a verbal agreement with a
third person to grant him a lease for a long term, and
at once proceeded to pull down the premises, it was
held that the plaintiff was, notwithstanding, entitled
to recover substantial damages. (<5)
If a lessor has covenanted to repair a dwelling-
house demised by him, and the building is destroyed
by fire or becomes ruinous and uninhabitable, the
lessee may re-build, if the lessor neglects so to do
within a reasonable period after request ; and the
measure of damages to be recovered by the lessee in
such a case will be the costs and expenses of the re-
building.' We have already seen that covenants to
(z) Digby V. Atkinson, 4 Campb. Bedingfield v. Onslow, 3 Lev. 209.
275. (A) Rawlings v. Morgan, 18 C. B.,
(a) Evelyn v. Raddish, Holt, 543. N. S. 776; 34 L. J., C. P. 185.
' If the premises are in good repair when demised, but
afterwards become ruinous and dangerous, the landlord is not
responsible therefor either to the occupant or the public, dur-
ing the continuance of the lease, unless he has expressly
agreed to repair or has renewed the lease after the need of
repair has shown itself; and this rule applies to a lessee out
of possession, who has sub-let to another who is in possession.
Clancy v. Byrne, 56 N. Y. 129, and see Lockrow v. Horgan.
58 Id. 635.
Sec. I.] LANDLORD AND TENANT. 439
pay rent and covenants to repair, contained in a lease,
are independent covenants, and that the lessee is not
exonerated from his liability to pay rent under his
covenant so to do by reason of the non-performance
of the lessor's covenant to repair. If, therefore, the
lessor neglects to fulfill his covenant, and delays mak-
ing the repairs, he is responsible in damages for ex-
penses incurred by the lessee in procuring a suitable
residence to reside in whilst he is prevented from hav-
ing the use and enjoyment of the house during the
period of delay or neglect to fulfill the covenant. ' But,
if the lessor fulfills his covenant by repairing as soon as
he reasonably can, he will not then be responsible for
the rent of a house which the lessee may be obliged
to take for a residence whilst the repairs are being ex-
' But he is not liable, it seems, in damages to third persons.
Such a lessee, therefore, is not liable for an injury to the
property of a person lawfully upon the premises therewith,
resulting from a neglect to keep them in repair ; and this is so
although, by his covenant with his landlord, he is bound to
make all ordinary repairs. The covenant does not give a
right of action to or impose a liability in favor of a stranger.
Clancy v. Byrne, 56 N. Y. 129. The obligation of a landlord
to repair demised premises rests solely upon express contract;
a covenant to repair will not be implied, nor will an express
covenant be enlarged by construction ; Witty v. Matthews, 52
N. Y. 312; nor do voluntary repairs by a landlord raise a
presumption of a covenant to repair; Moore v. Weber, 71 Pa.
St. 429 ; nor can a tenant make permanent repairs without
the landlord's consent, and recover for them from the land-
lord; Kline v. Jacobs, 68 Pa. St. 57. Where a lease contains
.a condition that, in case the demised premises are so damaged
by fire, as to be untenable, the rent shall cease until they are
_put in good repair, the fact that a tenant or sub-tenant con-
tinues to occupy a portion of the premises after the fire, is
not conclusive evidence that the premises are tenantable ; but
other evidence as of the circumstances which induced the
tenant to remain, is proper. Kip v. Merwin, 52 N. Y. 542. In
Moore v. Weber, 71 Pa. St. 429, it was held that the maxim
440 LAW OF CONTRACT. [Bk. II. Ch. IL
ecuted. (/) If an action is brought against an assignee
of a lease for damages for a breach of covenant to re-
pair, in respect of dilapidations that accrued during
the time he was assignee, the criterion of damage is
the loss which the landlord would sustain by the non-
repair if he went into the market to sell the reversion.
((/) If an under-lessee refuses to repair according tO'
his agreement, and his immediate lessor (the mesne
landlord), who is himself a lessee, and bound under
pain of forfeiture to keep the premises in repair, enters
and repairs them, the measure of damages is the sum
necessarily expended in putting them into repair, and
not the costs of an action brought by the original
lessor against the mesne landlord for non-repair,,
unless the under-lease contains a covenant to indem-
nify, {e) '
{c) Green v. Eales, 2 Q. B. 225. (e) Logan v. Hall, 4 C. B. 598. Smitln
(d) Martin. B., Smith v. Peat, g v. Howell, 6 Exch. 737. Walker v.
Exch. 161 ; 23 L. J., Ex. 85. Doe v. Hatton, 10 M. & W. 249. Colley v..
Rowlands, 9 C. & P. 739. Bell v. Streeton, 2 B. & C. 273. Clow v>
Hayden, 9 Ir. Com. Law Rep. 301. Brogden, 2 So. N. R. 303.
caveat emptor applied to a lease where an adjoining owner
took down his house, leaving the tenant's goods exposed to
the weather.
■ Plaintiffs entered into a written agreement with D, by
which they agreed to demise to him " stores Nos. 87 and 89,"'
L. street, New York, for three years, D agreeing to lease or
to procure responsible persons to take the lease. Plaintiffs
further agreed, if the lessees should desire, to put in a steam
hoisting apparatus, they receiving, as additional rent, after its.
completion, twelve per cent, on its cost. The premises were
arranged to be used as one store, with a stairway at one side,,
communicating with the upper stories. In the entrance-wav,
at the foot of the stairs, was a hand hoisting apparatus. I>
leased to the defendants the upper stories of the building, giv-
ing to them therein the benefit of the agreement as to the:
hoisting apparatus. Subsequently he leased the first floor to-
other parties, reserving no right to use any portion for a new
Sec. I.] LANDLORD AND TENANT. 447
768. Breach of covenants to consume hay and
straw on a farm. — If a tenant who has covenanted
not to carry away hay or straw from the demised
premises nevertheless sells it off the land, the proper
measure of damages is not the value of the hay or
straw, which is the property of the tenant, but the
value of it to the land in the shape of manure, if it
had been eaten and consumed by cattle and deposited
on the soil. Where the landlord had agreed to pur-
chase the outgoing tenant's straw at a valuation, and
the tenant by the terms of the lease was to return the
manure value of straw sold oflF, it was held that the
landlord must pay a fodder price, which is one-half
the market price ; (/) and where the tenant was not
to sell straw oif the land without returning the value
of it in manure, it was held that the tenant was not
(y) Clarke v. Westrope, ante,
entrance to the upper stories. Defendants notified plaintiffs
that they desired the steam hoisting apparatus, which plain-
tiffs were proceeding to put in place of the old hand appar-
atus, when they were restrained by injunction, at the suit of
defendants. An agreement was thereupon made between the
parties that the work should be discontinued until a new en-
trance should be made, and, if done in a reasonable time, that
defendants then would pay the extra rent, from a specified
date. Several months elapsed before plaintiffs obtained per-
mission of the lessees of the first floor to put in a new entrance,
upon obtaining which a new entrance was made, and the
hoisting apparatus completed. D assigned his interest in
the lease to plaintiffs. In an action to recover rent, defend-
ants set up, as a counter-claim, damages for the delay in com-
pleting the apparatus. Held, that the original agreement
contemplated that the new apparatus should be placed in th ;
existing stairway; that plaintiffs performed, except as pre-
vented by defendants ; that the new agreement imposed no
further obligations upon plaintiffs, and that, therefore, de-
fendant was not entitled to recoup his damages. Ayer v.
Kobbe, 59 N. Y. 454.
442 LAW OF CONTRACT. [Bk. II. Ch. II.
bound to return the marketable value, but the manure
value of the straw to the premises. (_^)
769. Damages for holding over: — If the tenant
holds over, the landlord may, in some cases, as we
have seen, recover double the yearly value, or he may
recover the damages and costs he has incurred by not
being able to give possession to the succeeding tenant,
(Ji) and also the costs incurred in ejecting the person
in possession, (z)
770. Of contracts for the letting and hiring of
fur^iished houses and lodgings. — Contracts for the
letting and hiring of ready-furnished houses and apart-
ments are contracts of a mixed nature, partaking
partly of the nature of a demise of realty, and partly
of a contract for the letting and hiring of moveable
chattels impost, sect. 2) ; and the lessor, therefore, in
contracts of this description, is clothed with the duties
and responsibilities resulting from contracts for the
letting and hiring of chattels in addition to those
which have been previously described as flowing from
demises of realty simply.
771. Implied warranties on the part of lessors of
furnished apartments. — If a man furnishes a dwel-
ling-house, or an apartment in a house, and offers it
to be let ready-furnished, he impliedly holds it out as
fit for immediate habitation and use, and the contract
for the letting and hiring of it is analogous to a con-
tract for the letting and hiring of a ship rigged and
manned and prepared for sea, or of a carriage horsed
and equipped and made ready for a journey on land ;
and there is, consequently, an implied warranty on the
part of the lessor that such ready-furnished house or
(^) Lowndes v. Fountain, ante. (z) Henderson v. Squire, L. R., 4
(h) Bramley v. Chesterton, 2 C. B., Q. B. 170 ; 38 L. J., Q. B. 73.
N. S. 592 ; 27 L. J., C. P. 23.
Sec. I.] LANDLORD AND TENANT. iAl
lodging is reasonably fit for habitation and occupation
by a tenant. If apartments have been taken on con-
dition that they were reasonably fit for habitation and
the furniture for use, and the furniture is unfit for use
or is encumbered with a nuisance of so serious a nature
as to deprive the tenant of all beneficial enjoyment of
it, the latter is entitled to throw up both house and
furniture, and bring an action against the landlord for
a breach of contract. Thus, where the beds of a ready-
furnished house, let to a tenant at a rent of eight
guineas per week, were so infested and overrun with
bugs that they could not be slept in, it was held that
the tenant was justified in leaving the house and re-
sisting the landlord's demand for the rent. (/&) " In
the case of a contract for the hire of a ready-furnished
house," observes Lord Abinger, " the letting of the
goods and chattels as well as the house implies that
the party who lets the house so furnished is under an
obligation to supply the other contracting party with
whatever goods and chattels may be fit for the use
and occupation of such a house, according to its par-
ticular description, and suitable in every respect for
his use." (/) ■
(k) Smith V. Marrable, II M. & W. (/) Sutton v. Temple, 12 M. & W.
5, cited 12 M.&W. 60, 65, 87. Camp- 60.
bell V. Lord Wenlock, 4 F. & F. 716.
' In New York the law of summary proceedings does not
apply to agreements for board and rooms ; Wilson v. Martin,
I Den. 602 ; otherwise it seems that lodgers are entitled to
all the privileges of tenants, and enjoy the same protection
as to payment of rent and of notice to quit, terminable accord-
ing to the terms of the letting. If a man takes lodgings on
the first or second floor of a house, he has a right to the use
of the door-bell, the knocker, the skylight, the staircase,
and the water-closet, unless it is otherwise stipulated at the
time of taking lodgings; and if the landlord deprives him
of the use of these, an action lies ; § 67, Taylor's L. & T. 5th
444 LAW OF CONTRACT. [Bk. II. Ch. II.
772. Rights and liabilities of lodging-house keepers
and lodgers. — It has been held that a contract for
board and lodging, where the lodging-house keeper
undertakes generally to provide food and shelter
for man and beast, and does not agree to let any
particular room, is not a contract for an interest
in land, {ni) A tenant of lodgings is not always
entitled to the exclusive possession of his rooms.
He may sometimes have " a mere easement of
sleeping in one room and eating and drinking in
another;" and the landlord and his servants may have
a right to enter at all times, (n) When a man lets
apartments in a house, he impliedly demises them
with all their proper accompaniments, and warrants to
the hirer the use of all such accessorial things as are
necessary to enable him to enjoy the principal subject-
matter of the demise in the manner intended. He
impliedly grants to the tenant the use of the door-bell,
the knocker, the skylights or windows of the staircase,
and the use of the water-closet, unless it be otherwise
stipulated at the time of the taking of the lodgings ;
and, if the landlord deprives him of the use of either,
he forthwith subjects himself to an action for a breach
of contract, (d) The lodging-house keeper, moreover,
who remains in the general possession of the house, is
bound to exercise all ordinary and reasonable care for
the protection of the persons and property of his
tenants and lodgers ; to see that the outer door is
fastened at night, and that strangers or suspected or
(ot) Ante, vol. I, p. 2gg. (0) Underwood v, Burrows, 7 C. &
(«) Maule, J., 3 C. E. 784. P. 28,
ed. citing Underhill v. Burrows, 7 C. & P. 26 ; and the doc-
trine of caveat emptor has no application to a demise of ready
furnished lodgings; Smith v. Marrable, i Carr & Marshm. 479;
and see ante, vol. i, p. 299.
Sec. I.] LANDLORD AND TENANT. 445
doubtful characters are not permitted, unknown to
the lodger, to congregate in the house at unseasonable
hours of the night. He is bound, moreover, to exer-
cise ordinary care and vigilance in the selection and
appointment of the servants and domestics within the
house, and to take all such precautions as a prudent
householder may be expected to take to guard against
robbery and fire ; but he is not responsible for the safe
keeping of the property of his lodgers, (/ ) unless it
has been delivered into his hands to be safely kept.^
If, after having taken ordinary care in the selection of
his servants, a theft is committed on the property of a
lodger, in consequence of the front door having been
incautiously left open by one of the servants who has
been sent out on an errand by the guest, the lodging-
house keeper is not responsible for the loss, {q) Nor
is he responsible for the loss of things stolen from the
lodgers by his own servants, {r)
The lodger on the other hand, may be sued for use
and occupation ; ' and, if he brings goods and chat-
tels of his own upon the premises, they may be dis-
trained for the rent of the lodgings as in the ordinary
cases of demises of pure realty, [s) If the possession
as well as the use of the furniture is granted to the
lessee, the latter is bound to deliver up the furniture
at the expiration of the term in good order and con-
dition, deteriorated only by ordinary wear and tear
and the reasonable use of it. If he received linen,
plate, and household utensils clean and fit for use, and
(p) Holder v. Soulby, 8 C. B., N. S. {r) Holder v. Soulby, supra.
254; 29 L. J., C. P| 246. (s) Newman v. Anderton, 5 B. & P.
{q) Dansey v. Richardson, 3 E. & B. 227.
144 ; 23 L. J., Q. B. 217.
• Post, ch. 3.
' Ante, § 707.
446 LAW OF CONTRACT. [Bk. II. Ch. 11.
agreed " to leave them as he found them," he is bound
to render the things back to the lessor in a clean
state, {t)
773. Destruction of buildings by fire. — Where a
contract is entered into for the use of a furnished
saloon for the giving of a concert, and the saloon is
destroyed by fire before the time appointed for the
concert, the parties to the contract are excused from
performance of it. {u)
774, Proof of the duration of the term of hiring.
— Lodgings and ready-furnished apartments are rarely
the subject of a yearly hiring ; and there is no pre-
sumption, from a general holding thereof, in favor of
a hiring for a year, and from year to year, as in the
case of a demise of land, {v) The duration of the
term corresponds, in general, with the time limited
for the payment of the rent. If the rent is payable
quarterly, the presumption is in favor of a hiring by
the quarter ; if, on the other hand, it is payable monthly
or weekly, there is a hiring by the month or week.
The same rules prevail in the French law. (jj/) Where
a tenant agreed to pay for the occupation of furnished
apartments, "from March the 4th to September the
4th, the sum of ^52 ioj.-." also "to occupy the rooms
from the 4th of September to the 4th of December
on the same terms, viz., ^26 5i-. for the three months,
or to take them unfurnished at the rate of £Z\ per
annum," it was held that this was a lease for six
months and for a further period of three months, and
not a lease from year to year. {£)
775- Notice to quit. — If the tenancy is for one
(t) Stanley v, Agnew, I2 M.&'W. (v) Wilson v. Abbott, 4 D.& R. 694.
■827. (y) Pothier, Louage, No. 30.
(k) Taylor v. Caldwell, 32 L. J., (i) Atheistone v. Bostock, 2 Sc. N.
Q. B. 165. Ante. R. 643.
Sec. I.] LANDLORD AND TENANT. iAT
single quarter, month or week, no notice to quit is
requisite, as the duration of the holding is fixed and
determined ; but, if the hiring be from half-year to
half-year, half-a-year's notice to quit must be given ;,
if from quarter to quarter, a quarter's notice ; if from
month to month, a month's notice, and if from week
to week, a week's notice to quit is, in general, requisite
by custom and usage. («) If there is no custom, a
reasonable notice is requisite ; (J)) and, if the lodger
quits his apartments without giving such notice, he is
liable to the payment of a quarter's, a month's, or a
week's rent according to the term of hiring ; and the
lodging-house keeper may recover such rent, although
he has put a bill in the windows advertising the apart-
ments to be let, or has lighted fires in and used the
rooms, {c) The length of the notice may be other-
wise regulated by the express agreement of the parties,,
and also by the custom and usage of the district. It
must, however, in all cases, expire at the end of the
current term of hiring. If a tenant remains in posses-
sion of lodgings after the termination of his term of
hiring, or after the expiration of a notice to quit, the
landlord may, as we have seen, assert his rights by
force.
776. Letting and hiring of stowage and places
of deposit. — A contract for the letting and hiring of
a vault, or store, or place of deposit in a warehouse, is
a contract analogous to the letting and hiring of an
apartment in a house for the occupation of a tenant
or lodger. But the landlord only contracts that the
place is fit for use so far as reasonable care can make
(d) But the custom must be proved. if) Redpath v. Roberts, 3 Esp. 225.
Huffel V. Armistead, 7 C. & P. 56. Griffith ,. Hodges, I C. & P. 419-
(^) Jones V. Mills, 10 C. B., N. S. Ante.
788 ; 31 L. ]., C. P. 66.
448 LAW OF CONTRACT. [Bk. II. Ch. II.
it so ; and, therefore, where a tenant hired the ground-
floor of a warehouse, the upper part of which was oc-
cupied by the landlord himself, and the water from the
roof was collected by gutters into a box, from which
it was discharged by a pipe into the drains, and a hole
was made in the box by rats, through which the water
entered the warehouse and wetted the tenant's goods,
but the landlord had exercised reasonable care in ex-
amining and seeing to the security of the gutters and
box, it was held that he was not liable for the damage
so caused, (d) In the civil law, a man who let out a
store or place of deposit for corn, wine, oil, or merchan-
dise of a perishable character, impliedly warranted his
store-house to be fit for the purpose for which it was
known to be required. If the hirer had inspected it,
and approved it prior to the contract, the store-keeper
was not responsible for patent defects which the
hirer might by the exercise of ordinary vigilance have
made himself acquainted with ; but for all latent de-
fects causing injury to the property deposited he was
responsible. If the store-room was in a roofed build-
ing, he was bound to keep the roof water-tight. If
the places of deposit were upon or below the surface
of the ground, he was bound to keep them properly
•drained and free from water. If he remained in the
general possession of the premises, it was his duty to
see that the outer gates were fastened at a proper hour
of the night, that suspicious characters were not per-
mitted to lurk about the spot, and that the rooms
and stores were watched with proper and reasonable
care, (e) He was bound, in short, to take all ordinary
precautions to secure his store-house from attacks
(J) Carstairs v. Taylor, L. R., 6 Ex. (e) Pandect, ed. Poth., lib. 19, tit. 3,
217 ; 40 L. J., Ex. 129. s. 3, art. 3, 71.
Skc. T.J LANDLORD AND TENANT. 449
from without, and from dangers within, from damage
by fire and damp, and from all things hurtful to the
property deposited beneath his roof.
777- Room or standing-places in factories. — An
agreement for the use of room in a factory for the
purpose of working machines will or will not amount
to a demise, according to the terms of the agreement
and the circumstances of the case. (/")
778. Lodgings in common inns — Who may be said
io be a common innkeeper. — Every person who makes
it his business to entertain travelers and passengers,
and provide lodging and necessaries for them and
their horses and attendants, is a common innkeeper ;
and it is in no way material whether he have any sign
before his door or not. (^) ' A London " coffee-
house," where beds and provisions are furnished by
the day, or for the night, or for a longer period, to all
persons who may think fit to apply for them, is a com-
mon inn ; and all persons who are willing and able to
pay, the customary hire, are entitled to be received as
guests at an inn, whether they are wayfarers or trav-
elers, or merely residents in the locality. (Ji) But, if
a man merely opens a house for the sale of provisions
and refreshments, and does not profess to furnish beds
and lodging for the night, he is not a common inn-
keeper, (z) And, if he professes to let only private
(/) See Selby v. Greares, L. R., 3 {g) Bac. Abr. Inns (B.) Parker v
C P. 594, where it was held there was Flint, 12 Mod. 255.
a demise, and Hardwick v. Austin, 14 (H) Thompson v. Lacy, 3 B. & Aid.
C. B., N. S. 429 ; 32 L. J., C. P. 252, 283.
where the contrary was held. (j) Doe v. Laming, 4 Campb. 77.
' See State v. Mathews, 7 Dev. & Bat. 424 ; Lyon v. Smith,
1 Morris (Iowa) 184; Bonner v. Wilborn, 7 Geo. 296; Win-
termute v. Clark, 5 Sandf. 247 ; Dickerson v. Rogers, 4 Humph.
170.
ir.— 39
450 LAW OF CONTRACT. [Bk. II. Cn. IL
lodgings, and does not offer his house to the public as
a place of reception and entertainment and lodging
for all comers who are able and willing to pay for the
accommodation offered, he can not be said to keep
a common inn/
779, Duties of innkeepers. — Every man who
opens an inn by the wayside, and professes to ex-
ercise the business and employment of a common inn-
keeper, is by the custom of the realm, bound to afford
such shelter and accommodation as he possesses to
all who apply and tender, or are able and ready to pay,
the customary hire, and are not drunk or disorderly,
or laboring under contagious or infectious diseases.
And, if he neglects or refuses so to do, he is liable to
an action for the recovery of any damages that may
have been sustained by reason of such refusal, and also
to an indictment at common law. {k) The innkeeper
fji) Hawthorn v. Hammond, i C. & 725. Rex v. Ivens, 7 C. & P. 219.
K. 404. Howell V. Jackson, 6 C. & P.
' One who entertains strangers occasionally, although he
receives compensation for such entertainment, is not an inn-
keeper. State V. Mathews, i Dev.& Bat. 424; Lyon v. Smith,
I Morris (Iowa), 184. In order to charge a party as an inn-
keeper, it is only necessary to prove that all persons coming
to his house were received as guests without any previous
agreement as to the times or terms of their stay; " a public
house of entertainment to all who choose to visit it," is th&
true definition of an inn. Wintermute v. Clark, 5 Sandf. 247.
One making a special contract with an innkeeper for his
lodging, may thereby virtually relieve him from his legal
character of innkeeper. See this question discussed in Berk-
shire Woolen Co. v. Proctor, 4 Cush. 417 ; and see Chamber-
lin V. Masterson, 26 Ala. 371. The question as to whether if
one carries or sends his property to an inn, but does not go
there to eat or drink, he is a guest so far as to charge the
innkeeper as such, has been decided both in the affirmative
and the negative. Mason v. Thompson, 9 Pick. 280; Peek v,
McGraw, 25 Wend. 653 : contra, Grinnell v. Cook, 3 Hill (N,
Y.), 485; Thickstun v. Howard, 8 Blackf. 535.
Sec. I.] LANDLORD AND TENANT. 451
is bound, moreover, if he has room in his stables, to
receive and provide for the horses of travelers who
alight at his inn, intending to become guests and to
lodge there ; but he is not bound to receive horses
from parties who merely intend to make use of his
stables as livery and bait stables, resorting elsewhere
for lodging and entertainment ; nor is he bound to
receive the goods of a person who professes merely to
make use of the inn as a place of deposit, and not to
lodge there as a guest. (/) Neither is he bound to
provide for his guest the precise room that the latter
may choose to select, nor to provide him with a bed-
room, if he declares it to be his intention to sit up all
night. All that he is required to do is to find reason-
able and proper accommodation for his guests ; and,
if he tenders such accommodation, and the guest refuses
it, he may compel the latter to quit the inn, and seek
for accommodation and lodging elsewhere, (m) '
780. Of the protection of the guest from robbery
and theft — To the duties and obligations which attach
to innkeepers in common with all lodging-house
keepers and lessors of furnished rooms and apartments
for immediate occupation, the law has superadded the
duty of protecting the goods of their guests from rob-
bery, {n) But the innkeeper yvill not be liable, if the
loss would probably not have happened had the guest
used the care which a prudent man might reasonably
have been expected to take under the circum-
stances, (tf)'
(/) Smith V. Dearlove, 6 C. B. 132. 265 ; 30 L. J., Ex. 131. But see now
Binns v. Pigot, 9 C. & P. 209. But see the 26 & 27 Vict c. 41.
Day V. Bather, 2 H. & C. 14. (0) Oppenheim v. White Lion Hotel
(m) Fell V. Knight, 8 M. & W. 276. Company, L. R., 6 C. P. 515 ; 40 L. J.,
(») Morgan v. Ravey, 6 H. & N. C. P. 93.
' See last note.
' The innkeeper is an insurer of his guest's goods against
452 LAW OF CONTRACT. [Bk. II. Ch. II.
781. Exemption of the guest's property from dis-
tress for rent. — The carriages and horses, goods and
chattels of guests sojourning at public inns, can not be
everything except the act of God or the public enemies, or
the negligence or fraud of the guest himself Mowers v.
Feathers, 6 Lans. 112; Mason v. Thompson, 9 Pick. 280; Piper
V. Manny, 21 Wend. 282 ; Grinnell v. Cook, 3 Hill (N. Y.)
485 ; Manning v. Wells, g Humph. 746 ; Thickstun v. Howard,
8 Blackf 535 ; Mateer v. Brown, i Cal. 221. And this, even
if the guest intrust his property to some other in the house
than the inn keeper himself; Sneider v. Geiss, i Yeates, 34 ;
and an inn keeper has been held liable for an injury to the
plaintiff's horse while at the defendant's stable. Where the
horse was placed at the stable in the evening, and the next
morning one of his hind legs was found to have been broken
above the gambrel joint, even though the evidence tended to
show that he was treated with care and faithfulness ; that he
was placed in a safe and suitable stall, with sufficient and
suitable bedding ; and that the injury happened without the
fault of any one. Shaw v. Berry, 31 Me. 478; but see Mc-
Daniels v. Robinson, 26 Vt. 337 ; Metcalf v. Hess, 14 111.
129. The presumption, in case of the loss of the guest's
goods, is that they were lost through the innkeeper's negli-
gence. Kisten v. Hildebrand, 9 B. Mon. 72; McDonald v.
Edgerton, 5 Barb. 560; Bennett v. Mellor, 5 T. R. 273; Berk-
shire Woollen Co. v. Proctor, 7 Cush. 4:7 ; Thickston v. How-
ard, 8 Blackf 535; Shaw v. Berry, 31 Me. 478; Matur v.
Brown, i Cal. 221 ; Manning v. Wells, 9 Humph. 7.46 ; Mason
V. Thompson, 9 Pick. 280; Piper v. Manny, 21 Wend. 282;
Grinnell v. Cook, 3 Hill, 485 ; Merritt v. Claghorn, 23 Vt.
177 ; Sibley v. Aldrich, 33 N. H. 553. And this will extend a
loss in a free carriage sent by an innkeeper to a station to
convey the guest to his house ; see Dickinson v. Winchester,
4 Cush. 114; Grinnell v. Cook, 3 Hill, 486. But see Fox v.
McGregor, 11 Barb. 41. A modification of the rule stated
in the text appears to be laid down in Colquett v. Kirkman,
which holds that, although as against the actual bailor of a
horse, the livery stable keeper had a lien upon the horse for
his whole account for feed and keeping, yet if the depositor
was not the true owner, or if there were any prior legal in-
cumbrance, the lien of the stable keeper was good against
the true owner or prior incumbrance for the expense of
feeding or taking care of the thing bailed. If the shed belong
Sec. I.] LANDLORD AND TENANT. 453
distrained by the landlord for the rent of the prem-
ises. (/)
782. Innkeeper's lien. — An innkeeper has a lien
upon goods belonging to the guest, and brought by
him to the inn, for his charges for board and lodging
supplied to the guest ; {q) and it has been held that
the lien attaches even when the goods do not belong
to the guest, if the innkeeper receives them in the
belief that they do so belong, (r) But he can not de-
tain the person of his guest, or take off his clothing
in order to obtain payment of his bill, (s)
783. Gratuitous loans of realty.- — ^The gratuitously
permitting a person to use a shed, by himself or his
servant, for a particular purpose, is a mere revocable
license, and has no analogy to a bailment of personal
property, and the only duty imposed on such person
is that there shall not be negligence in the use of the
shed ; and he is not responsible for the negligence of
his servant not within the scope of his employ-
ment, if)
(f) Bro. Abr. Distress, pi. 57, 71. Q. B. 711 ; 41 L. J., Q. B. 266.
I Roll. Abr. 68, pi. 12. U) Sunbolf v. Alford, 3 M. & W.
{q) Thompson v. Lacy, 3 B. & A. 248.
283. (t) Williams v. Jones, 33 L. J., Ex.
{r) Threlfall v. Berwick, L. R., 7 297.
to one who is an innkeeper, the question of his liability will
depend upon his knowledge. In Albin v. Presby, 8 N. H. 408,
a traveler put his horse and loaded wagon in an open shed near
the highway, without the inn keeper's knowledge ; held, that
the latter was not liable for the loss, although it was usual
for guests to put their horses and wagons under such shed.
Under different circumstances; see Piper v. Manny, 21 Wend.
282 ; Clute V. Wiggins, 14 Johns. 175.
454 LAW OF CONTRACT. [Bk. II. Ch. II.
SECTION II.
THE LETTING OF CHATTELS.
784. Of bailments for hire. — The term bailment,
derived from the French word bail or bailler, to de-
liver, denotes, in the common law, a delivery or trans-
fer of a chattel from one person to another, in order
that something may be done with it, either for the
benefit of the owner, or of the party who receives it as
the temporary possessor, or of the mutual benefit of
both of them, and is applied to contracts for the letting
and hiring of chattels, as well as to contracts for
the delivery of them to persons for safe custody,
or to workmen to be worked upon or dealt with in
the course of their employment. The term is also
equally applicable to contracts for the letting and hir-
ing of realty, although it is not used in the common
law to denote that class of contracts. In the French
law, the term bail a loyer, or bail for hire, anciently
denoted a contract for the letting and hiring of a house,
01 farm, or immovable property; but in modern times
it has been applied by the French jurists to contracts
for the letting and hiring of personalty as well as of
realty. In this class of contracts, the person who de-
livers the chattel for the purposes of the contract is
called the bailleuror bailor, and the party who receives
it the bailee.
If one man bails or dehvers a chattel to another to
be used for hire upon the express or implied under-
standing that the chattel is to be put into a serviceable
state and made ready for immediate use by the hirer,
there is no implied warranty or undertaking on the
Sec. II.] CONTRACT OF LETTING. 455
part of the bailor that the chattel is in any particular
state or condition, or fit for any particular purpose.
But if he expressly or impliedly represents it to be fit
for immediate use, or to be applicable to any particu-
lar purpose, he impliedly warrants the use for which
he receives the hire. If a man, for example, lets out
the naked hull or the mere fabric of a vessel, upon the
terms that the hirer is to man and equip her, and get
her ready for sea, there is no implied warranty or un-
dertaking on the part of the shipowner that the vessel
is in any particular state and condition at the time of
the making of the contract. But if he mans and pro-
visions and equips the vessel himself, and holds her
out as fit for immediate use, there is an implied promise
or undertaking on his part that she is seaworthy and
fit for use, and properly found and provided with stores
and provisions, seamen and officers, and all things
■needful to the due prosecution of the voyage, (a) So,
if a man lets out the mere fabric of a coach or carriage
upon the understanding that the hirer is to provide
the horses, harness, servants, and equipments, and pre-
pare the vehicle for use, there is no implied warranty
•or undertaking on his part that the chattel is in any
particular state or condition at the time that he
parts with the possession of it ; but if he gets it
ready for the road, he impliedly warrants the vehicle
to be road-worthy and fit for the performance of the
journey for which it is known to be required ; and this
implied warranty extends to the coachman, horses, and
harness, and all the other necessary equipments for
the journey. And if a man lets out furniture for im-
mediate use, there is an implied warranty on his part
that it is fit for use, and free from all defects inconsist-
Igess
(a) "Lyon v. Mells, 5 East, 437. Bur- Stanton v. Richardson, L. R., 7 C. P.
is ,. Wickham, 33 L. J., Q. B. 17. 521 ; 41 L. J., C. P. 180.
456 LAW OF CONTRACT. [Bk. II. Ch. IL
ent with the reasonable and beneficial enjoyment of it.
(J)) " If he lets out vessels for holding oil or wine^
and furnishes to the hirer vessels that are not in good
condition, he shall be responsible for the damages that
may accrue ; for he who lets out a thing for use ought
to know whether it is fit for use, and to warrant the
use for which he takes the hire." (<:) If he lets out a
horse bridled and saddled, and prepared for immediate
use by an equestrian, he impliedly warrants the equip-
ments to be road-worthy and fit for use, and the horse
itself to be well shod, {d) and free from such vices,
and defects as render it dangerous and unfit to ride.'
(6) Sutton V. Temple, 12 M. & W. (d) Pothier (Louage), No. 54.
60. Blackmore v. Brist. & Exeter Rail.
(<r) Domat, 1. I, tit. 4, s. 3, 8. Dig. Co., 8 Ell. & El. 1051 ; 27 L. J., Q. B.
lib. 10, tit. 2, ig, g I. 167.
The authorities in the United States as to the bailor's-
warranty of fitness for use are not numerous. Parsons on
Contracts, 179, states the rule substantially as laid down in
the text, namely, that the one letting the chattels for hire war-
rants them to be serviceable for the purpose loaned ; as to-
whether he is bound to maintain them in a serviceable condi-
tion, there seems to be some conflict of opinion. The case of
Isbell V. Norvell, 4 Gratt. 176, held, that where the hirer of a
slave pays a physician for attending on the slave while he is
hired, he is entitled to have the amount repaid him by the
owner of the slave. But in the case of Redding v. Hall, i
Bibb, 536, the same question was decided the other way, after
a careful examination of the authorities. It is impossible to
say with certainty what the true rule of law is, until we have
further adjudication. It was held in Harrington v. Snyder, 3
Barb. 380, that where a horse hired to perform a certain jour-
ney and back, becomes disabled by lameness, without any
fault of the hirer, so that the hirer is compelled to incur ex-
pense, in order to return by other means, these expenses-
may be recouped from the bailor in his action for hire of the
horse, and if they exceed the value of the horse's services,
the bailor can not recover at all ; otherwise if the horses are-
immoderately driven. Hughes v. Bciyer, 9 Watts, 556 ; and
Biiford v. Tucker, 44 Ala. 89, holds that where a slave was
Sec. 11.] CONTRACT OF LETTING 457
785. Of the duties and responsibilities of the
hirers of chattels. — If a coach-proprietor lets his coach
and horses for a journey, and the coach is driven by
the coachman, and is under the direction and manage-
ment of the servants of the owner, the latter is bound
to keep the horses properly shod, and the carriage in
good traveling order;' but, if the possession thereof
is transferred to the hirer, and the carriage is driven
and managed by the hirer's servants, this duty then
falls upon the hirer, although the owrner or letter of
the chattel may, under certain circumstances, be
obliged, as we shall presently see, to repay to the
hirer the money expended by him in repairs, {i)
Whenever a chattel bailed or delivered to a hirer to
be used for hire has sustained a partial injury through
an inherent defect in the article itself, or by reason of
some inevitable accident which threatens its total and
immediate destruction, and the effects of such partial
injury may be obviated and the chattel preserved for
future use by repairs and remedies promptly provided^
there is an implied authority from the owner to the
hirer to undertake the necessary repairs and apply the
remedies, and incur all such expenses as a prudent
{e) Pothier (Louaqe), No. 117, 129.
hired for a fixed and definite period, and emancipated during
that term, the hirer was not bound to make a deduction from
the hire on account of such emancipation. If the bailor of a
cliattel slave (in this case) for hire, fraudulently conceal his
unsoundness, the bailment is at an end and the bailee may
return him. James v. Neal, 3 T. B. Mon. 370; see Thompson
V. Harlow, 31 Ga. 348. So the owner of a slave let out to a
steamer, could not recover his value when he was lost over-
board without the lessee's fault. Downey v. Stacey, i La. Ann.
426 ; Huntington v. Ricard, 6 Id. 806 ; but see Wilkes v.
Hughes, 37 Ga. 361 ; Muldrow v. Wellington, &c. R. R. Co.,
13 Rich. 69 ; and see Graves v. Moses, 13 Minn. 335.
' See cases cited in last note.
458 LAW OF CONTRACT. [Bk. II. Ch. II.
man would, under the circumstances, incur for the
preservation of his own property. ' In order to es-
tablish a claim for the payment of expenses of this
description, in the Scottish law, it is necessary, observes
Mr. Bell, to show in the first place that the occasion
of the expense was not ascribable to the hirer ; sec-
ondly, that the expense was indispensably necessary ;
and, thirdly, that the owner had notice of it as soon as
circumstances permitted. (/")
786. 0/ the use of chattels let to hire. — Losses
fro7n negligence. — Every hirer of a chattel is bound to
use the thing let in a proper and reasonable manner,
to take the same care of it that a prudent and cautious
man ordinarily takes of his own property, and to re-
turn it to the bailor or owner at the time appointed
for its return^ (or within a reasonable period after
request," if no such time has been agreed upon), in as
good condition as it was in at the time of the bail-
ment, subject only to the deterioration produced by
ordinary wear and tear and reasonable use, and by in-
juries caused by accidents which have happened with-
out any fault or neglect on the part of the hirer. "
(/) I Bell's Com. 453-
' See Whitlock v. Heard, 13 Ala. 676 ; Redding v. Hall, i
Bibb, 536.
° The bailor's remedy to regain possession of his chatlel
is an action of trover ; he can not resort to force. Rotch v.
Hawes, 12 Pick. 136; Trotter v. McCall, 26 Miss. 413; Homer
V. Ewing, 3 Pick. 492 ; Setzar v. Butler, 5 Ired. 212.
' And what is a reasonable time will depend on the cir-
cumstances. Esmayv. Fanning, 9 Barb. 176.
* The contract of bailment is said to be for the benefit 01
both parties, and the bailee is liable only for ordinary care. 2
Kent Com. 586, 587, and note d; Millon v. Salisbury, 13
Johns. 211; Piatt v. Hibbard, 7 Cow. 497; Maynard v. Buck,
100 Mass. 40. And the bailee must restrict himself to the
precise use for which the bailment was made ; James v.
Sec. II.] CONTRACT OF LETTING. 459
Where the hirer contracted to deliver up a barge at
the conclusion of the hiring " in good working order,
with all her rigging, gear, and implements complete,"
it was held that this must be construed with reference
to the condition of the barge (which was an old one)
at the commencement of the hiring. (Ji)
787. Losses from piracy, robbery, theft, disease^
and accident. — If the thing let to hire perishes, or is
destroyed by fire, or is stolen without any neglect or
want of care on the part of the hirer, the latter will
not be responsible for the loss; (f) but in cases of
stealing, a robbery by force must be proved, or, if there
has been a secret theft, it must be shown by the hirer
that he had taken all such precautions as are ordina-
rily taken by prudent men to protect their own prop-
erty from depredation.^ If a ship hired for a partic-
(h) Shroder v. Ward, 13 C. B., N. (0 Williams v. Lloyd, W. Jones, 179.
S. 410 ; 32 L. J., C. P. 150. Taylor v. Caldwell, 3 B. & S. 836 ; 32
L. J., Q. B. 164.
Carper, 4 Sneed, 397; Maguyer v. Hawthorn, 2 Harr. 71;
Columbus V. Howard, 6 Ga. 219 ; Tratter v. McCall, 26 Miss.
403; Moers v. Larry, 15 Gray, 451 ; McLauchlin v. Lomes, 3
Strob. 85 ; Hooks v. Smith, 18 Ala. 338. Any other use would
be a conversion of the property, as e g., if a horse hired to be
driven to a certain place, be driven beyond. Woodman v.
Hubbard, 6 Fost. 67 ; and see Gregg v. Wyman, 4 Cush. 322.
In the case of a pledge, however, the property can be used in
any way not inconsistent with the pledgor's ultimate rights.
Lawrence v. Maxwell, 53 N. Y. 19.
' So an agreement of a bailee for hire, to return the chat-
tel in good order, is excused, if, without fault of his, it is de-
stroyed by an irresistible force ; so held, in a case where a barge
was destroyed on the Mississippi. McEvers v. Steamboat
Sangammon, 22 Mo. 187. A clause in a lease of furniture
binding the lessee " to surrender the property in as good a
condition as reasonable use and wear thereof would permit,"
does not vary the duty imposed by the law of bailments, and
consequently a loss by fire, without fault on the part of the
46o LAW OF CONTRACT. [Bk. II. Ch. II.
ular voyage, and placed in the possession and under
the control of the hirer, be captured by pirates, or be
lost in a storm in the ordinary course of the voyage,
the owner must bear the loss ; but, if the hirer has
deviated from the ordinary course, and sailed unneces-
sarily through dangerous channels, or into seas infested
with pirates, and needlessly encountered risks not con-
templated by the owner at the time of the hiring, and
which would probably not have been run by him
except for a greatly increased rate of remuneration^
the hirer is liable for the loss.
An owner of a chattel which is out on hire for an
unexpired term may maintain an action against a
third person for a permanent injury thereto. (/^) ^
788. Determination of the bailment. — If chattels
have been bailed or let to hire for a certain term, and
the bailee does an act which is equivalent to the
destruction of the chattels, or which is entirely incon-
sistent with the terms of the bailment ; if he sells, or
attempts to sell, the chattels, or to dispose of them in
such a way as to put it out of his power to return
them, the act operates like a disclaimer of tenancy,
(It) Mears v. London & South-West. C. P. 220. And see Lancashire Wagon
Ry. Co., 1 1 C. B., N. S. 850 ; 31 L. J., Co. v. Fitzhugh, 6 H. & N. 502 ; 30
L. J., Ex. 231.
hirer, falls on the owner. H3-land v. Paul, 33 Barb. 241.
But the burden has been held to be on the bailee in such
cases to prove absence of negligence on his part. Logan v.
Matthews, 6 Pa. St. 417.
' Nor will the bailee be liable even if at the time of the
injury, the person injuring them was in his employ, unless
acting within the scope of the bailee's employment. Story on
Contracts, § 884. But if the servant's action be not malic-
ious, but in the scope of his employment, although without
the express assent of his master, the bailee, the latter will be
liable. Sinclair v. Pearson, 7 N. H. 219.
Sec. II.] CONTRACT OF LETTING. 461
the bailment is at an end, and thie possessory title re-
verts to the bailor, and entitles him to maintain an
action for the value of the chattels. (/)
789. Loans of money to be tised for hire, — The
lending of money for hire is ordinarily denominated a
loan at interest, as distinguished from a commoda-
tum or gratuitous loan, where the sum advanced only
is paid back, without any interest or fruits of increase.
A loan of money to be used for hire is a loan for use
and consumption, the identical thing lent not being
intended to be returned, but its equivalent in value
and kind. The absolute property, therefore, in the
subject-matter of the loan passes together with the
transfer of the possession to the hirer or borrower ; and
the latter becomes indebted to the lender in an equiva-
lent in value and amount, with interest, which must be
paid and rendered to the latter at the time agreed upon
or within a reasonable period after demand made, in
case no time for its return has been limited. The
liability of the hirer or borrower, consequently, to
repay the equivalent amount is not discharged by the
loss of the money from robbery, fire, or inevitable
accident. *
(/) Fenn v. Bittlestone, 7 Exch. 159 ; 21 L. J., Ex. 41.
' And SO the placing of a deposit in a bank is simply a loan
of that sum of money to the bank, and, if ' thereafter followed
only by the ordinary transactions of depositing- and withdraw-
ing of sums of money, raises only the simple relation of debtor
and creditor, upon loans and repayments. The depositor
can not charge banks as trustees, agents, or factors. Cur-
tis V. Leavitt, 15 N. Y. 9; National Bank v. Eliot Bank,
20 L. R. 138; Commercial Bank v. Hughes, 17 Wend.
94 ; BuUard v. Randall, i Gray, 605 ; Chapman v. White,
2 Seld. 212; Downes v. Phcenix Bank, 6 Hill, 297; Foster
V. Essex Bank, 17 Mass. 479; Marsh v. Oneida Central
Bank, 34 Barb. 298 ; Bank of Northern Liberties v.
Jones, 42 Pa. St. 536. All sums paid into the bank on gen-
eral deposits form one fund, which money belongs thereafter
462 LAW OF CONTRACT. [Bk. II. Ch. II.
790. 0/ commodatum and mutuum or gratuitous
loan. — If the bailee is to have the use and enjoyment
of the subject-matter of the bailment for his own
benefit and advantage, without payment of hire or
reward to the bailor, then the bailment becomes a
gratuitous loan. There are, in the civil law, two kinds
of gratuitous loans, the one called a mutuum, which is
a loan for use and consumption, the thing being bailed
to be consumed and an equivalent in kind subse-
to the bank, and the depositor has only a debt owing him
from the bank ; see the English case of Foley v. Hill, 2 H. L.
Cas. 39 ; his property in his bank account, therefore, is in the
nature of property in a chose in action ; he certainly has noth-
ing tangible to which he has a right ; there is no specific money
in the bank belonging to him ; nor has he a right, however
inchoate, to any specific money in its vaults. The deposit
once made, the roll of bills or check, or bag of coin, in which
if passed from the depositor's hands into the bank, may be
stolen by thieves, or embezzled by officers of the bank, or lost,
or misapplied, but neither the bank nor the depositor can fol-
low the particular roll or check, or coin, in order to affect
their relations with each other. The bank owes the depositor
a sum of money equal to the sum he deposited ; it must pay
him on his requisition, and nothing more. See as to these
views, Concord v. Concord Bank, 16 N. H. 26 ; Commercial
Bank of Albany v. Hughes, 17 Wend. 94. The case of a spe-
cial deposit is different. Where a bank received bonds on
special deposit for safety from one of its customers and at
his risk, and placed them in a safe with similar deposits from
others, and its own securities. The bonds were stolen by a
teller. The theft by the teller was not connected with his em-
ployment, and there was no liability on the bank unless they
knew or had reason to suspect he was not trustworthy. Scott
V. Bank of Chester Valley, 72 Pa. St. 478. In that case the
bank teller had absconded and it was then discovered that his
accounts were false and that he had robbed the bank during
two years. Held, that the bank was not bound to examine the
teller's accounts for the benefit of a depositor who was a
gratitous bailee. And that negligence as a ground of liability
must be such as enters into the cause of loss. Scott v. National
Bank, &c., 79 Id. 471.
Sec. II.] CONTRACT OF LETTING. 463
quently returned; and the other, a commodatum,
which is a loan of a specific chattel to be used by the
bailee and returned in individuo. In the loan by way
of mutuum the bailor is called the creditor, by reason
of the credit given by him to the promise of the bailee,
and the latter the debtor, because he owes an equiva-
lent to be paid back, {m) In the loan by way of
commodatum, the parties are known in law by the
ordinary appellation of borrower and lender. "The
Latin language," observes Gibbon, "very happily
expresses the fundamental differences between the
commodatum and the mutuum which our poverty is
reduced to confound under the vague and common
appellation of a loan. In the former, the borrower
was obliged to restore the same individual thing with
which he had been accommodated for the temporary
supply of his wants ; in the latter, it was destined for
his use and consumption, and he discharged this
mutual engagement by substituting the same specific
value according to a just estimation of number, of
weight, and of measure." {n) '
If com or potatoes, wine or brandy, coals or oil,
be borrowed, they are borrowed to be consumed, the
corn being eaten, the wine drunk, and the coals and
oil burned and consumed. A loan of this description,
therefore, is necessarily a mutuum ; for the identical
thing lent can not be returned, but an equivalent in
kind must be rendered back. If money is lent to be
ipi) Dig. lib. 50, tit. i6, lex II ; lib. (») Gibbon's Roman Empire, ch. 44,
12, tit. I, lex 2, §§ I, 3. 3, 2.
' See under the Louisiana Civil Code, Lockhart v. Wyatt,
10 Ala. 231; Waterman v. Gibson, 5 La. Ann. 672; Succes-
sion of Fowler, 7 Id. 207 ; Dunbar v. Hughes, 6 Id. 466 ;
Woodworth v. Wilson, 11 Id. 402 ; Lafourche Navigation Co.
V. Collins, 12 Id. 119; Devalcourt, 12 Id. 672 ; Wilson v. Wil-
son, 16 Id. 155.
464 LAW OF CONTRACT. [Bk. II. Ch. II.
used, the money is necessarily mixed with other coin
of a similar denomination ; it passes into other hands ;
its identity and individuality are destroyed ; and the
specific pieces of coin can not be rendered back. ' A
loan of money, therefore, is a mutuum, the borrower
being bound to restore, not the identical money lent,
but an equivalent in the shape of money of the same
denomination and value. (<?) But if a horse or a book
be lent for use, the identity and individuality of the
chattel are not destroyed or in any way aflFected by the
use ; the same horse and the same book remain, though
the one may have been ridden and the other read ; the
loan, therefore, is a commodatum ; and the borrower
does not fulfill his engagement by rendering an equiva-
lent in the shape of a different horse or a different book
of equal value, but is bound to return the identical
thing lent. (/>) It is of the very essence of a commo-
datum that the subject-matter of the bailment be
granted to be used free of reward ; for if anything
be paid for the use of the chattel, the contract is a
contract of letting and hiring, and belongs to the class
locatio rei. (^) ^
79 1 . Liabilities of the borrower — Of the care to
be taken of things borrowed — Negligence and miscon-
duct of the borrower.— In a bailment by way of
mutuum, the chattel bailed becomes the absolute
property of the bailee to do what he pleases with it,
(0) Et, quoniam nobis non esedem ut ex meo tuum fiat. Inst. lib. 3, tit.
res sed ali^ ejusdem naturse et quali- 15. Dig. lib. 13, tit. 6, 1. 3, § 6.
tatis redduntur, inde etiam mutuum (/) Doct. & Stud. Dial. 2, ch. 38.
appellatum est quia ita a me tibi datur, {q) Inst. lib. 3, tit. 15, § 2. Dig.
lib. 13, tit. 6.
' See ante, note i, to § 786.
' Mooersv. Larry 15 Gray, 451; Eastman v. Sanborn, 3
Allen, 594; Banfield v. Whipple, 10 Id. 27; Graves v. Moses.
13 Minn. 335 ; Harrington v. Snyder, 3 Barb. 780.
Sec. II.] CONTRACT OF LETTING. 465
and use it in any way he thinks fit ; {r) but, in a bail-
ment by way of commodatum, the temporary right of
possession and user only are transferred, the right of
property remaining in the lender; (.s-) and the bor-
rower, consequently, is obliged to render back the
identical thing lent in as good a condition as it was in
when borrowed, subject only to the deterioration re-
:sulting from inherent defects or produced by ordinary
wear and tear and the reasonable use of it for the pur-
pose for which it was known to be required. (/) " If
I lend a piece of plate, and covenant by deed that the
party to whom it is lent shall have the use of it, and
the plate be worn out by ordinary use and without
any fault, I shall have no remedy for the loss. («) But
the borrower is bound," observes Holt, C. J., "to the
strictest care and diligence to keep the goods so as to
restore them back again to the lender, because the
bailee has a benefit by the use of them, so that, if the
bailee be guilty of the least neglect, he will be answer-
able ; as if a man should lend another a horse to go
westward, and the bailee go northward, if any accident
happen to the horse on the northern journey, the
bailee will be chargeable, because he has made use of
the horse contrary to the trust he was lent to him
under; and it may be, if the horse had been used no
■otherwise than as he was lent, that accident would not
have happened to him." (v) If a horse is lent for the
performance of an ordinary journey, and the borrower
leaves the high road and travels unnecessarily through
(r) Appellata est autem mutui datio {t) Handford v. Palmer, 5 Moore,
ab eo, quod de meo tuum fit : et ideo, ^fi.
sinon fiat tuum, non nasciturobligatio. («) Hale, C. B., Pomfret v. Ricroft,
Dig. lib. 12 tit. I, § 2. Instit. lib. 3, I S?.und. 323, b.
tit. 15. (v) Coggs V. Bernard, 2 Raym. 915.
(j) Nemo enim commodando rem Bract, lib. 3, ch. 2, § i, pp. 99, 100.
facit ejus cui commodat. Dig. lib. 9.
II.— 30
466 LAW OF CONTRACT. [Bk. II. Ch. IL.
by-paths or dangerous roads, and the horse falls, and
is injured, he will be responsible to the lender ; but, if
the horse is lent for the purpose of hunting, then the
borrower is justified in using it in by-paths and dan-
gerous places, and may expose it to all the ordinary
risks of the chase, because those risks are necessarily
incident to the use for which the horse was borrowed,
and were known to and must have been contemplated
by the lender. The gratuitously permitting a person
to use a shed, by himself or his servant, for a particular
purpose, is a mere revocable license, and has no anal-
ogy to a bailment of personal property ; and the only
duty imposed on such person is that there shall not
be negligence in the use of the shed ; and he is not
liable for the negligence of his servant not within the
scope of his employment, (jj/)
792. Losses from ordinary casualties. — The meas-
ure of care and diligence to be exercised for the pro-
tection and preservation of a thing bailed by way of
commodatum, whilst it remains in the possession of
the borrower, is that amount of care, prudence, and
foresight which the most diligent and careful of men
exercise for the preservation and protection of their
own property. The foundation for this increased
liability on the part of the borrower, in comparison
with the hirer of a chattel, arises from the fact that
the lender himself derives no benefit from the contract,
but in making the bailment performs a gratuitous act
of kindness dictated by his confidence in the bailee.
The borrower can not be made responsible for inevi-
table accidents, or casualties which could not have
been foreseen, and which no human prudence could
have guarded against ; but he will be answerable for
the "least neglect." If the borrower of a horse put
(^) Williams v. Jones, 33 L. J., Ex. 297.
Sec. II.] CONTRACT OF LETTING. 467
the horse in his stable, and the horse is stolen from
thence, the borrower will not be answerable for him.
But, if the borrower or his servant leave the stable-
doors open at night, and thieves take the opportunity
of that and steal the horse, he will be chargeable for
the loss ; for the neglect to lock the door may have
encouraged the thieves, and been the occasion of the
robbery. {2)
793 . Misuser by the borrower — Want of skill. — I f
the borrower takes the horse off the high road against
the will of the lender, and rides him into wet and
slippery ground, and the horse slips and is injured, the
borrower must make good the loss. It has been said
that every lender of a horse for riding impliedly bar-
gains, at the time he makes the loan, for the exercise
on the part of the borrower of competent skill in rid-
ing and the management of a horse ; (a) but, if the
bailor chooses, without making any previous inquiry,
to entrust a fiery and high-spirited horse to a stranger,
of whose skill in horsemanship he knows nothing, he
has no right to expect the management and dexterity
of an experienced rider. Neither, if he lends valuable
property to a notorious drunkard or a notoriously wild
and reckless character, has he any right to expect the
care and attention of a very vigilant and painstaking
person, {b) By the civil law, the borrower is respon-
sible for all losses and injuries to the thing borrowed
occasioned by the private enmity of persons hostile to
him, if he has by some fault or misconduct on his part
provoked that enmity, (c) The loan of the use, more-
(z) Cloggs V. Bernard, 2 Raym. 916. Brett, 11 M. & W. 115.
Dig. lib. 44, tit. 7, 1. § 4. Bract, lib. {b) Pothier, Pret i Usage, ch. j., § 1,
3, ch. 2, p. 99. Instit. lib. 2, tit. 15, § art. 2, No. 49. Bract, lib. 3, tit. 2. § I,
2. Doctor and Student, Dial. 2, ch. 99 b.
38. W Dig- lib. 19. tit. 2, lex. 27, § 4.
(a) Jones's Bailments, 65. Wilson v.
468 LAW OF CONTRACT. [Bk. II. Ch. II.
over, is strictly personal to the borrower, founded on
the confidence reposed in him, and does not, in gen-
eral, warrant a user by his servants, {d)
794, Restoration of the thing borrowed or its
equivalent — Loss by robbery, fire, or inevitable acci-
dent.— In the case of a loan by way of mutuum, the
borrower is bound to restore, at the time agreed upon,
or within a reasonable period after request, an article
of the same kind and quahty as the one originally lent
to him. If, by the agreement of the parties, an article
of a different character is to be returned, the contract
is. not a mutuum, but an exchange or sale, (e) All
such things, say the civilians, as are ordinarily regu-
lated by number, weight, or measure, such as wine,
corn, oil, money, brass, silver, or gold, may properly
be made the subject of a mutuum, as they can readily
be repaid in kind of the same quantity and quality ;
but a horse, a greyhound, a fowling-piece, and all
chattels whose value depends upon the intrinsic quali-
ties of each in particular, and not upon the general
attributes of the genus, can not properly be made the
subject of mutuum, because, although they are of the
same kind, yet each one of the kind differs so much
from another in quality and attributes, that the cred-
itor can not be compelled against his will to take one
for another.
795. As the right of property in the thing bailed
is transferred to the bailee by a bailment by way of
mutuum, so also is the risk of loss. If, therefore, the
bailee is robbed before he reaches home, or the thing
bailed is destroyed by wreck, fire, or inevitable acci-
dent before it can be used, the bailee must, neverthe-
(</) Bringloe v. Morrice, i Mod. Australian Insurance Co. v. Randell,
210. L. R., 3 P. C. loi.
{e) Dig. lib. 12, tit. I, i., 3. South
Sec. I I.J CONTRACT OF LETTING. 469
less, pay the equivalent which he owes to the bailor
at the time appointed, (/") " If money, corn, wine,
or any other such thing which can not be re-delivered
be borrowed, and it perish, it is at the peril of the
borrower. But if a horse, or a cart, or such other
things as may be used and delivered again, be used
according to the purpose for which they were lent, if
they perish, he who owns them shall bear the loss, if
they perish not through the default of him who
borrowed them, or of him who made a promise at the
time of the delivery to re-deliver them safe again. If
they be used in any other manner than according to
the lending, in whatever manner they may perish, if it
be not by default of the owner, he who borrowed
them shall be charged with them in law and con-
science." (j^) When the loan is made by way of
commodatum, the borrower must return the specific
thing lent within a reasonable period after request,
and if he neglects so to do, he is responsible for all ac-
cidents that afterwards happen to it. He has no right
to detain the thing borrowed for any antecedent debt
due to him. " The plain reason is that it would
be a departure from the tacit obligations of the
contract. No intention to give a lien for a debt
can be implied from the grant of a mere favor."
Neither can the borrower set up a right to de-
tain the chattel for the payment of necessary ex-
penses incurred by him in the keeping and preserv-
ing it. (Jt)
796. Implied obligations and duties of the lender. —
There is an implied undertaking on the part of the
(/) Instit. lib. 3, tit. 15, § 2. Doct. {h) Turner w. Ford, 16 M. & W.
& Stud. Dial. 2, ch. 38. Bract, gg, 212. Adverse claimants' eviction by
a b. title paramount, post, § 807.
{g^ Noy's Maxims, ch. 43.
470 LAW OF CONTRACT. [Bk. II. Ch. II.
lender to the borrower of a chattel not to conceal
from the borrower secret defects in the chattel known
to the lender, which may make the use of the chattel
perilous to the borrower. Thus, if one man lends a
gun to another, and the lender knows at the time he
lends the gun that it is unsafe and dangerous to use,
and neglects to disclose the fact to the borrower, he
will be responsible in damages to the latter if the gun
bursts and injures him. (/) But a gratuitous lender
of an article is not liable for injury resulting to the
borrower or his servant, while using it, from a defect
not known to the lender. (/&)
797. Loans of money to one of several partners. —
Where one of several partners, who was traveling for
orders, called upon the plaintiff in the country, and,
after transacting business with him on account of the
firm, borrowed a sum of money to defray his expenses
back to London, Lord Kenyon held that, as the
money was lent to the partner while employed on the
partnership business, the partnership was responsible
for the payment of the debt. (/) But if the partner
professes to borrow money for the firm, and misap-
plies it, and there be proof that the plaintiff lent it
under circumstances of negligence, and out of the
ordinary course of business, he can not recover the
amount from the other partners. (;;;) And, if the
creditor lending the money advances it at the request
of one of the partners, for the known private purposes
and private accommodation of the latter, and not for
the trading purposes of the co-partnership, such credit
(i) Blakemore v. Brist. & Ex. Rail. 329 ; 37 L. J., Ex. 227.
Co., 8 Ell. & Bl. 1051 ; 27 L. J. Q. B. (/) Rothwell v. Humphrey.s, I E.sp
167- 405-
{k) MacCarthy v. Young, 6 H. & N. (nt) Loyd v. Freshfield, 9 D. & R.
19.
Sec. n.] CONTRACT OF LETTING. 471
tor can not make the firm responsible for the repay-
ment of the money. {ii) If money is lent on the
individual security and credit of one partner alone, the
firm at large can not be charged with the repayment
of it, although it may in fact be subsequently applied,
to the use of the partnership. Thus, where one part-
ner was in the habit of drawing bills in his own name
and getting them discounted by the plaintiff, and
using the proceeds of such bills in the business of the
firm, and applying them to the general purposes of
the partnership, it was held that the plaintiff could not
treat the money advanced by way of discount on the
bills accepted by the partner in his own name only as
a loan to the firm. {0) But, where a member of a
partnership was in the habit of drawing bills in his
own name upon the firm, and getting them discounted,
and applying the proceeds to the general purposes of
the partnership, and the firm regularly accepted and
paid the bills so drawn until it became bankrupt, it
was held that the members of the firm must be taken
to have given their co-partner authority to raise money
for the use of the firm upon the bills in question, and
that the money advanced by way of discount upon
them might be treated as a loan to the partnership. (/?)
There is no implication of law from the mere existence
of a trade partnership, that one partner has authority
to bind the firm by opening a banking account on its
behalf in his own name. (^)
798. Loans to registered companies. — There is
nothing illegal in a registered company commencing
business, and proceeding to raise money in the exer-
. («) Bishop V. Countess of Jersey, 23 (/) Denton v. Rodie, 3 Campb. 493.
3L. J., Ch. 483. Ex parte Bolitho, Buck, 100.
{o) Emiy V. Lye, 15 East, n. Smith (q) The Alliance Bank v. Kearsley,
V. Craven, I Cr. & J. 500. Bevan v. L. R. 6 C. P. 433 ; 40 L. J., C. P.
i,ewis. I Sim. 376. 249.
472 LAW OF CONTRACT. [Bk. II. Cii. IL
cise of their borrowing powers, before the whole of the-
nominal capital has been subscribed, (r) Many of
the requirements inserted in articles of association
regulating the conduct and management of the con-
tracts of registered companies have been very properly
held to be operative only as between the members,
and shareholders inter se, and intended for the guid-
ance of the directors, so that the non-observance of
them may constitute a breach of trust on the part of
the directors towards the shareholders, but will not
have the effect of annulling the contract altogether, {s)
Thus, if the directors of a registered joint-stock com-
pany are empowered to borrow money, the power to
be exercised in accordance with certain prescribed
formalities, and the directors borrow money without
complying with the formalities, this is a matter between
them and the shareholders, and does not deprive the
lender of his rights against the company. (^) And,,
although the managers of the company are raising
money for purposes unauthorized by the deed of set-
tlement or articles of association, yet, if the share-
holders, with full knowledge of these transactions,,
take no steps to ascertain whether the capital has been
properly increased or not, but reap the benefit derived
from the increase, they can not be afterwards heard
to say that the money was not advanced for the gen-
eral use and purposes of the partnership, (ti) And,
whenever money has been borrowed by directors and
has been expended in furtherance of the general pur-
poses of the company, and the shareholders have had
(r) M'Doiigall v. Jersey Imp. Hotel 6 H. L. C. 422.
Co. (Limited), 34 L. J., Cli. 28. (/) Agar v. Athenseum Assur. Co.,.
(s) Bill V. Darenth Rail. Co., i H. 3 C. B. N. S. 753. Royal British Bank
& N. 306. Prince of Wales Ins. Co. v. Turqiiand, 6 Ell. & Bl. 332.
V. Harding, Ell. Bl. & Ell. 183, quali- (;/) Re Magdalcna St. Nav. Co., 29.
lying the dicta in Earnest v. NichoUs, L. J., Ch. 667.
Sec. II.J CONTRACT OF LETTING. 475
the benefit of the loan, they will not, in general, be
allowed to repudiate the transaction on' the ground
that the directors had no power to borrow. They
can not keep the money, and repudiate the agency by
which it was obtained, (v) Debentures issued by a
company under a general power of borrowing, in part
discharge of existing debts, are valid, {w)
799. Damages in actions for not replacing stock. —
In an action for not replacing stock lent on a given
day, the measure of damages is the value of the stock
in the market on the day on which it ought to have
been replaced, or at the time of trial, at the option of
the plaintiflF. {x) Where, however, a stock mortgage
was made for a term of years, for securing the re-
transfer of stock at the end of the term, and payment
in the meantime of interest calculated on the proceeds
of the stock sold to raise the loan, and, the mortgage
having been allowed to run after the end of the term^
the stock fell in price, it was held that the mortgagee
was not entitled to the market value of the stock at
the end of the term, but that the mortgagor could re-
deem on replacing the specific amount of stock ori-
ginally sold, i^y) If dividends are to be paid in the
intermediate time, interest may be given upon the
value of the capital stock. {£)
iv) Elect. Tel. Co., In re, 30 Beav. Taunt. 257. Downes v. Back, i Stark.
225. Troup, 7« r^, 29 Beav. 353. 318. Owen v. Routh, 14 C. B. 327.
(i«) Inns of Court Hotel Co., In re, (y) Blyth v. Carpenter, L. R. 2 Eq.
L. R. 6 Eq. 82. 501 ; 35 L. J., Ch. 823.
{x) Shepherd v. Johnson, 2 East, (z) Dwyer v. Gurry, 7 Taunt. 14.
211. M'Arthur v. Ld. Seaforth, 2
474 ^AW OF CONTRACT. [Bk. II. Ch. III.
CHAPTER III.
CONTRACTS FOR SERVICES.
SECTION I.
WORK AND LABOR.
800. Deposit or simple bailment, styled by the
Roman lawyers depositum, may be defined to be a de-
livery or bailment of goods in trust to be kept for the
tailor and re-delivered on demand, {a) ' It is of the
very essence of a deposit that it be gratuitous ; for, if
anything is to be paid for the care and custody of the
article, it immediately becomes a contract for the let-
ting and hiring of labor and services and care to be
employed upon the chattel, and belongs to the class
locatio operis et custodise. Where shares were depos-
ited with bankers who were to receive the dividends,
charging a commission thereon, it was held that they
were bailees for reward. {b~)
In the Roman law the term depositum is applied
to the delivery of realty to be kept for the owner as
(a) Dig. lib. 16, tit. 3, I. §§ 45, 46. (b) Johnston's Claim, L. R., 6 Ch.
212. 40 L. J., Ch. 286.
' 2 Kent Com. § 40, p. 560, 4th ed. The Latin depositum
IS compounded, says Alpian, of de and positum. Depositum
est, quod custodiendimi alicui datum est. Dictum ex eo quod
ponitur; prepositio enim, de, auget depositumut ostendat,
totum fidei ejus commissum, quod ad coseodeam rei pertinet.
Dig. Lib. 50, tit. 16, § 186.
Sec. I.] WORK AND LABOR. 475
well as to a delivery of personalty. Thus, when a man
during his absence from home committed his house,
and all that was in it, to the keeping of a friend, this
was called a deposit by the civilians. In the absence
of an express contract between the parties, the nature
of the bailment must be determined by the nature of
the thing bailed, and upon what is required to be done
for its preservation and safe keeping. When passive
custody in some secure place of deposit alone is re-
quired, as in the case of most bailments of inanimate
chattels, the bailment is a naked deposit or simple
bailment, whilst, if work and labor, services and skill,
are necessarily required for its preservation, as in the
case of bailments of living animals or perishable chat-
tels, then the bailment becomes, as presently mentioned,
a mandate.
801. What is necessary to constitute a deposit —
Executory and executed promises. — To constitute a
deposit, the subject-matter of the bailment must be
either actually or constructively delivered to the bailee,
or it must be in his possession or under his control at
the time he undertakes the charge of it. A mere
promise to take charge of a thing which has never
either actually or constructively come into the posses-
sion of the promisor can not constitute a deposit. But
a delivery to the servant of the promisor, or to a per-
son whom he has appointed to receive the chattel, and
who has consented to hold it on his behalf, or any acts
on the part of the promisor manifesting a clear inten-
tion to take charge of a thing which is not capable of
manual delivery, but which has been placed at his dis-
posal and under his control, will constitute a deposit
in contemplation of law. Thus in the Roman law, if
a man went from home leaving the keys of his house
with his neig^hbor, the bailee of the keys was consid-
476 LAW OF CONTRACT. [Bk. II. Ch. III.
ered to be the depositary of the house. ' If a creditor
holding a pledge receives payment of the debt, but
continues to hold the pledge, he becomes a depositary
thereof for his former debtor. If a tradesman sells any
specific chattel, but neglects to deliver it, he becomes
a depositary for the purchaser. But a man can not
be made a depositary without his knowledge and con-
sent ; he can not have the possession of another man's
property with its accompanying duties and responsi-
bilities forced upon him against his will. Thus, if a
tradesman anxious to sell his wares and merchandise
sends them to my house without any previous com-
munication with me, and without having obtained my
previous consent, and they are taken in by my servant
in my absence, or without my knowledge, I do not by
reason thereof become the depositary of the goojds^
and clothe myself with the care of them, {c)
802. Liabilities of the depositary — Negligent keep-
ing— Ordinary casualties. — A depositary is only bound
to take the ordinary care of things accepted by him to
keep which a reasonably prudent man takes of his
own property of a hke description. {d~) ^ He will be
(<:) Lethbridge v. Phillips, 2 Stark. (J) Giblin v. McMuUen, L. R., 2
544- P. C. 317 ; 38 L. J., P. C. 25.
' The civil law divides deposits into necessary and volun-
tary ; the former is a deposit such as is made upon a sudden
emergency, as where one upon being overwhelmed by fire,
shipwreck, or any other calamity, confides his goods to the
first person at hand, in the emergency of the moment — this is
called miserabile depositum. Pothier, Traite de Depot, n. 75 ;
1 Domat. B. 1, tit. 7, § 5, art. i, 2. The latter appears to have
been the simple deposit by consent and agreement of the par-
ties mentioned in the text (Dig. Lib. 16, tit. 3, § 2 ; i Pothier,
Pand. Lib. 16, tit. 3, n. i). This distinction was necessary in
the civil law on account of the remedy under the former,
such remedy being by an action in duplum ; under the latter
by an action in simplum.
' Spooner v. Mattoon, 40 Vt. 300; Dunn v. Branner, 15
Sec. I.] WOJ^K AND LABOR. 477
liable to make compensation to the owner, if the goods
are stolen, damaged, or lost by reason of gross negli-
gence in the keeping of them ; but he is not responsi-
ble for slight neglect or ordinary casualties, (e) " He
shall stand charged or not charged, according as de-
fault or no default shall be in him." (/) If a man
takes charge of money, and leaves it upon a shelf, or
in An open drawer in a place of public resort, when he
might have placed it under lock and key, this is a
want of care inconsistent with good faith, and amounts,
consequently, to gross negligence. If a package or a
box, sealed or locked, be deposited, and the depositary
is not made acquainted with the contents, he is bound
only to take that care of the article which its general
appearance seems to require ; and in case it should be
lost or destroyed through gross neglect, he will only
be liable to the extent of the apparent value of the
article without reference to the contents ; but if he is
made acquainted with the contents — if he is told that
the box contains gold or jewels, glass or china, of
great value — he is then bound to exercise a degree of
care proportioned to the proper keeping of such arti-
cles ; and if he then exposes the box in unsafe places,
or subjects it to improper treatment, and the contents
(1?) Coggs V. Bernard, 2 Raym. 913. 50, tit. 16, 223. Jones v. Lewis, 2
Lane V. Cotton, I ib. 655. Southcote's Ves. sen. 240. Taylor v. Caldwell,
Case, 4 Co. 83 b. ; i Smith's L. C. anie.
5th ed. 175. Dig. lib. 16, tit. 3, 32. (/) Doct. & Stud. ch. 38.
Domat. lex i, tit. 7, s. 3, 4. Dig. lib.
La. Ann. 452 ; Chase v. Maberry, 3 Har. 266 ; Dougherty v.
Posegate, 3 Iowa, 88 ; Green v. Hollingsworth, 5 Dana, 173 ;
Mechanics' Bank v. Gordon, 5 La. Ann. 607 ; Hills v. Daniels,
15 Id. 280; Foster v. Essex Bank, 17 Mass. 500; Edson v. Wes-
ton, 17 Cow. 278; Sodowsky v. McFarland, 3 Dana (Ky.), 205
Whitney v. Lee, 8 Mete. 91 ; McKay v. Hamblin, 40 Miss.
472; Montieth v. Bissell, Wright, 411.
478 LAW OF CONTRACT. [Bk. II. Ch. III.
are damaged or destroyed, he must make compensa-
tion to the owner to the full extent of the injury sus-
tained. (_f ) If the depositary has been guilty of
gross neglect, he can not excuse himself from liability
by showing that he lost his own goods at the same
time that he lost his neighbor's. Thus, where a coffee-
house keeper took charge of a sum of money, and put
it with a larger sum of money of his own into his
cash-box, which he left in the public tap-room of his
coffee-house, from whence it was stolen, it was held
that the circumstance of his having lost his own money
together with the deposit would not exculpate him
from the charge of gross negligence. (,^)
803. Carelessness on the part of the depositor in
selecting a person notoriously imfit to be trusted. —
The law, however, expects a depositor to exercise a
reasonable amount of vigilance in the protection of
his own interests ; and, if he will blindly deposit goods
in the hands of a person of weak intellect, or a child,
or a minor without experience, or a notoriously idle
and careless, or drunken, fellow, he can not expect the
same care from them as from a prudent and cautious
housekeeper. If the goods are injured or lost by the
gross negligence of such depositaries, he must bear
the consequence of his own rashness and folly, and
put up with the loss. ( z) '
804. Theft by the servant of the depositary.— \{
{g) Bonion's Case, Pasch. 8 Edw. (t) Quia, qui negligent! amico rerm
2 ; Mayn, Year Book, 275. Fitz. Abr. custodiendam tiadit, sibi ipsi et pro-
Detinue, 5g. Erst. Inst. B. 3, tit. i, prise fatuitati hoc debet imputare
§ 27, p. 493. Domat. dep. I, 17. Dig. Brae. lib. 3, 99, b. Inst. lib. 3, tit. 16,
lib. 16, lex I, ». 41. § 2. Big. lib. 16, tit. 3, 32. Holt,
{K) Dorman v. Jenkins, 2 Ad. & E. C. J., Coggs v. Bernard, 2 Raym. 914,.
258; 4 N. & M. 170. 915.
' 2 Parsons on Contracts, p. 91,5th ed.
Sec. I.] WORK AND LABOR. 479
a servant steps out of the course of his employment
to do a wrong, either fraudulently or feloniously,
towards another, the master is no more answerable
than any stranger. Thus, if I employ a servant to
work in my house, and he carries off the property of
a visitor or guest, I am not answerable for the loss.
" If one man desire to lodge with another that is no
common hostler, and one that is servant to him that
he lodgeth with robbeth his chamber, the master shall
not be charged with the robbery." (i) If the servant
of the depositary negligently leaves the door of a
house or warehouse open, and thieves avail themselves
of the opportunity thus afforded them to enter the
house and steal the deposit, the depositary is not re-
sponsible for the theft. ( /) It is laid down by Holt,
C.J., that " no master is chargeable with the act of
his servant, but when he acts in execution of the
authority given by his master; and then the acts of
the servant is the act of the master." (tn) If, there-
fore, a servant '' quits sight of the object for which he
is employed, and, without having in view his master's
orders, pursues that which his own malice suggests,
he no longer acts in pursuance of the authority given
him, and his master will not be answerable for such
act." (n) It is the custom of bankers to receive and
keep for the accommodation of their customers, boxes
of plate and jewels, wills, deeds, and securities ; and,
as no charge is made for the keeping of these things,
they are gratuitous deposits. The bankers, therefore,
are only bound to take ordinary care of them ; and,
(k) Doct. & Stud. ch. 42. Gayford («) Lord Kenyon, M'Manus v.
V. Nicholls, 9 Exch. 702. Crickett, i East, 107. Reedie v. Lond.
(/) Dansey v. Richardson, 3 Ell. & & North West. Rail. Co., 4 Exch.
Bl. 169. 244. Peachey v. Rowland, 13 C. B.
(m) Middleton v. Fowler, l Salk. 182.
2Sz.
48o LAW OF CONTRACT. [Bk. II. Ch. III.
if tney are stolen by a clerk or servant employed
about the bank, the bankers are not responsible,
unless they have knowingly hired or kept in their ser-
vice a dishonest servant. Where a large quantity of
doubloons locked up in a chest was deposited in the
vaults of an American bank, and the bankers, who re-
ceived the chest to keep as depositaries without re-
ward, gave the owner a receipt acknowledging that
the chest had been "left at the bank for safe keeping,"
and a clerk in the bank opened the chest and ab-
stracted 32,000 doubloons, and then absconded, having
also robbed and defrauded the bank, it was held by
the American court that the bankers were not respon-
sible for the theft, (o) '
(0) Foster V. Essex Bank, 17 Mas- 2 P. C. 318; 38 L. J. P. C. 25;
sach. 479. Giblin v. McMuUen, L. R. anie.
' As to special deposits, see Moody v. Keener, 7 Port. (Ala.)
218; Curtis V. Leavitt, 15 N. Y. g; Barnes v. Ontario Bank,
19 Id. 152 ; State Bank v. Kain, i Breese, 45 ; State Bank v.
Lock, 4 Dev. 533. A special deposit in a bank is, perhaps,
J'he purest example of a naked bailment. The deposit is taken
:solely for the depositor's accommodation, the bank receiving
no benefit whatever from the act, and an express stipulation
or acknowledgment given in writing by an officer of the bank,
does not change the character of the bailment ; Foster v. Es-
sex Bank, 17 Mass. 479 ; and see Dawson v. Real Estate Bank,
5 Pick. 283; Marine Bank v. Chandler, 27 111. 525. A depos-
itary who sells such a deposit commits a theft. McGregor v.
Ball, 4 La. Ann. 289; and ste post, § 818; Dustin v. Hagden,
38 111. 352. On a deposit or bailment of money to be kept
without recompense, if the bailee, without authority, attempt
to transmit the money to the bailor at a distant point, and it
is lost, the bailor is liable. Stewart v. Frazier, 5 Ala. 114.
But an agreement between bailor and bailee that the former
shall draw interest upon a special deposit, turns such special
deposit into an open account. Howard v. Roeber, 33 Cal.
399 ; Hathaway v. Brady, 26 Id. 581. Unless under very pecu-
liar circumstances, a bank will not be held liable for the con-
sequences of unwarrantable, unusual, or unlawful acts of their
Sec. I.] WORK AND LABOR. 481
805. Of the use and enjoyment by the depositary
of the subject-matter of the deposit. — A depositary has
no right to make use of the deposit for his own benefit
and advantage ; if he does so, and the thing is lost or
injured, or deteriorated in value, through such user,
the depositary must make good the loss. (/) If,
hovi^ever, the subject-matter of the bailment is a living
animal, such as a hound or a horse, which requires air
and exercise, the bailee has an implied authority from
the owner to use it to a reasonable extent, and is
under an implied engagement to give it proper air
and exercise. If a sum of money is bailed by one
man to another under circumstances fairly leading to
the presumption that the bailee has authority from
the bailor to use it or not as he may think fit, the
bailee will stand in the position of a mere depositary,
or he will be clothed with the increased duties and lia-
bilities of a borrower, according as he may or may not
have thought fit to avail himself of the privilege of
user impliedly accorded to him. If he puts the money
into a coffer or bag, and refrains from using it, and so
preserves its identity with the intention of restoring
it in individuo to the bailor, he undertakes the duty
of a mere depositary, (f) and is bound only to take
the same care of the deposit that he is in the habit of
bestowing upon his own money, and will not be re-
ip) In the Roman law the unauth- tit. i, § 6. Cod. lib. 4, tit. 34, 3. Dig.
orized use of the deposit amounted to lib. 16, tit. 3, 29.
a gross breach of trust. Instit. lib. 4, (?) Dig. lib. 16, tit. 3, i, § 34.
officers in relation to such special deposits ; and so if the cashier
or other officer steal the deposit. Foster v. Essex Bank, 17
Mass. 479 ; see Mechanics' Bank v. Bank of Columbia, 5
Wheat. 326. The undertaking of banking corporations with
respect to their officers, is that they shall be skillful and faith-
ful in their employments ; they do not warrant their general
honesty and uprightness. Morse on Banking, p. 83.
II.— 31
4S2 LAW OF CONTRACT. [Bk. II. Ch. III.
sponsible for loss by robbery, fire, or any other casualty.
But if he were to mix the sum deposited with his owft
money with the intention of restoring an equivalent,
and so to destroy the identity and individuality of the
subject-matter of the bailment, this would be a user
of the money which would at once alter the nature
and character of the bailment, converting it into a
loan for use and consumption with its increased
duties and responsibilities, (r) Where corn was de-
posited by a farmer with a miller, to be used as part
of the miller's current consumable stock, subject to
the right of the farmer to claim at any time an equal
quantity of wheat of similar quality, or, in lieu thereof^
the market price of such quantity, it was held that this
was a sale and not a bailment, (s)
806. Transfer of the deposit to a stranger— Remedy
of the depositor. — If a depositary commits a breach of
trust, and sells or wastes the deposit, the depositor
may maintain an action against the purchaser for the
recovery of the value of the deposit if the latter neg-
lects to yield it up on demand, {£) unless the thing
has been purchased in market overt. If the goods are
bailed by A to B, to be kept by the latter, and B bails
them to C, who uses and wastes the goods, C is liable
to an action at the suit of A for the recovery of com-
pensation for the damages sustained, {ti) Where a
depositary has wrongfully sold the goods deposited
with him, the bailor may sue him immediately for the
conversion. If he does not discover the conversion
until after the lapse of six years, he is, nevertheless,,
W Dig. lib. 12, tit. I, 4. Inst. lib. Fenn v. Bittlestone, 7 Exch. 159.
3, tit. 15, § 2. White V. Spettigue, 13 M. & W. 603.
(x) South Australian Ins. Co. v. Ran- («) 12 Ed. 4, fol. 13, pi. 9 ; fol. 9,
dall, L. R., 3 C. P. loi. pi. 5. Loeschmanv. Machin, 2 Staik-
(/) Cooper V. Willomat, i C. B. 672. 311.
Sec. I.]. WORK AND LABOR. 483
entitled to sue the depositary for refusing to deliver
up the goods, and the statute of limitations will run
only from the refusal to deliver on request, and not
from the sale, (v)
807. Restoration of the deposit. — The depositary
is bound to deliver up the deposit to the owner on
demand, although the latter may be an entire stranger
to him. Where a pony-chaise was bailed to a work-
man to be painted, and the latter deposited it in the
hands of a party who refused to deliver it up to the
owner unless the latter produced either the person
who actually deposited the chaise in his hands, or an
order from him for its delivery, it was held that the
owner was entitled to the possession of his property
without doing either the one or the other, (jy) The
bailee has no better title than the bailor ; and, conse-
quently, if a person entitled to the property as against
the bailor, claims it, the bailee must give it up to
him. {£)
808. Joint and several deposits. — Where goods
and chattels are deposited in the hands of a bailee by
the concurring will of several joint owners, one of
them has no right to demand them back without the
authority of all the joint depositors. If some of them
ask the bailee to return the property, and others desire
him to keep it, the bailee is not liable to an action at
the suit of those who require him to return it. {a) If
goods and chattels, deeds or securities, are deposited
by two persons jointly in the hands of a third, to be
kept, it is not in the power of one of them alone,
without the concurrence of the other, to take them
(z/) Wilkinson v. Verity, L. R., 6 C. (z) Biddle v. Bond, 6 B. & S. 325 ;
P. 206 ; 40 L. J. C. P. 141. 34 L- J-. Q- B. 137.
{y) Buxton v. Baughan, 6 C. & P. (a) Attwood v. Ernest, 13 C. B. 889 ;
674. 22 L. J., C. P. 225.
484 LAW OF CONTRACT. [Bk. II. Ch. III.
out of the hands of the bailee. (3) If the bailee is
bound by his contract to deliver the goods to the two
jointly, his refusal to deliver them on the denaand of
one party alone is not a conversion, nor is his deten-
tion from such one party an unlawful detainer. But
if an action is brought by several joint bailors against
the bailee for non-delivery of the goods, it is a good
defense to the action that the goods have been deliv-
ered up to one of them. (<;) When the deposit is not
a joint deposit founded on a joint contract, but is made
by one of several joint owners, the depositor may sue
alone, "as, if a charter be made to four, and one of
them bails the charter to keep, he alone, without the
others, may bring detinue." (of) And, wherever sev-
eral joint owners allow one of them to deal with their
property, and place it in the hands of a bailee, the lat-
ter is accountable to the owner with whom he
deals. (^) '
(d) May v. Harvey, 13 East, 197. son v. Evans, i H. & C. 664 ; 32 L.
Thel. Dig. lib. ri, cap. 47. Jones J., Ex. 137.
Bailments, 50. Noy's Life, appended {d) Thel. Dig. lib. 11, cap. 47, s. 8.
to Noy's Maxims, 8th ed. 1821. Broadbent v. Ledward, II Ad. & E.
(c) Burke v. Bryant. Addison on 2il.
Torts, p. 350. Brandon v. Scott, 7 Ell. (e) Martin, B., Walshe v. Provnn, 8
& Bl. 237 ; 26 L. J., Q. B. 163. Wat- Exch. 852.
' The civil law divides all deposits into simple deposits
and sequestrations ; a simple deposit is one made by one or
more persons having a common interest. Pothier, Traite de
Depot, I. A sequestration is where the deposit is made by-
one or more persons, of whom each has a different and adverse
interest from or against the other depositors. Proprie autem
in sequestre est depositum quod a pluribus in solidum certd
conditione custodiendum reddendum que traditur. Dig. Lib.
10, tit. 3, 1. 6 ; Pothier, Pand. lib. 16, tit. 3, n. 58 ; i Domat, B.
I, tit. 7 ; Prelim. Obs. ; Pothier, Trait6 de D6p6t, n. i, 84; Se-
questre dicitur, apud quem plures eandem rem de qua contro-
versia est, deposuerunt ; Id.; Dig. Lib. 50, tit. 16, 1. no; these
sequestrations, again, are of two sorts, conventional and judi-
cial, the first being made by contract or agreement between
Sec. I.] WORK AND LABOR. 485
809. Transfers of the subject-matter of the bail-
ment— Adverse claimants. — When chattels have been
bailed, to be holden by the bailee at the disposal of
the bailor, a question often arises as to the nature
and extent of the liabilities of the bailee to persons
who claim to be the owners of the chattels by sale or
mortgage from the bailor. If the bailee has received
the chattels upon the terms that he is to deliver them
to the bailor, or to any person authorized by him to
receive them, a bona fide purchaser or mortgagee, who
is in possession of a bill of sale, or assignment, or mort-
gage, executed by the bailor, transferring all the bailor's
interest in the chattels to such purchaser or mortgagee,
may, on presenting such bill of sale or mortgage to
the bailee, lawfully demand possession of the chattels,
and in case of the refusal of the latter to deliver them
to him, may maintain an action for their recovery, the
bill of sale or mortgage signed by the bailor being an
authority or direction to the bailee to deliver up the
chattels to the purchaser or mortgagee.
810. Eviction by title paramount. — Where the
plaintiff brought an action against the defendant for a
breach of his promise to return a horse sent to him by
the plaintiff, and the defense was that S was the owner
of the horse and had forcibly taken it away from the
defendant, it was held that this was a discharge of the
parties, the second by order of a court in a proceeding before
it. Pothier, Trait6 de Depot, n. 84, 85, 90-100 ; Civil Code of
Louisiana, of 1825, art. 2941, 2948; i Domat, B. i, tit. 7, § 4,
art. I. In a sequestration, of wliatever sort, the depositary or
bailee is a mere stakeholder, and is bound to deliver the things
deposited to him vi^ho is ultimately adjudged to be entitled to
them. Dig. Lib. 16, tit. 3, 1. 5, § i, 2 ; Id. I. 7 ; i Domat, B.i, tit.
7 ; Prelim. Obs. ; Id. tit. 7, § 4, art. 5 ; Ayleflfe, Pand. B. 4, tit.
17, p. 519-520; Pothier, Traite de Depot, n. i ; Civil Code of
Louisana (1825), art. 2946; Lafarge v. Morgan, 11 Martin R.
462, 522.
486 LAW OF CONTRACT. [Bk. II. Ch. III.
defendant's promise, it being analogous to an eviction
of a lessee by title paramount. (/") So where a bailor
mortgages a chattel bailed, and the mortgagee has a
right to demand possession from the bailee, and
does demand it, the latter may refuse to give the chat-
tel up to the bailor. ( £■)
8ll. Stakes in the Jiands of stakeholders to abide
the event of a lawful game. — If money has been de-
posited in the hands of a stakeholder to abide the
event of a lawful game or race, and then to 'be paid
over to the winner, the stakeholder holds the money
as agent of the winner, and is bound on demand to
pay it over to him. (fi) But if the party is not strictly
a stakeholder holding money in that character, but
receives it as agent for a known principal, he is ac-
countable only to the latter for the money, (z) If the
deposit has been made by two persons jointly, it can not,
as we have seen, be revoked and the thing deposited be
demanded back by one of them alone. If a valid and
binding contract is made between A and B for the
performance of some act or duty by B by an appointed
day, or within a reasonable time after the making of
the contract, and for the payment of money by A to
B on the act being done, and the sum to be paid is,
by the mutual agreement of the parties, deposited by
A in the hands of C, to be paid over to B on the per-
formance of his contract, and in default to be returned
to A, the deposit can not be revoked and the money
demanded back from the stakeholder by A without
(/) Shelbui-y v. Scotsford, Yelv. 23. Co., 30 L. J., C. P. 247.
Littledale, J., Wilson v. Anderson, i (h) Applegarth v. CoUey, 10 M. &
B. & Ad. 457. Biddle v. Bond, 34 L. W. 733.
J., Q. B. 137 ; 6 B. & S. 225. U) Bamford v. Slmttleworth, II Ad.
(^) European & Australian Royal & E. 926. Edgell v. Day, L. R., i C.
Mail Co. V. Royal Mail Steam Packet P. 80 ; 35 L. T-. C P. 7.
Sec. I.] WOUK AND LABOR. 487
the consent of B, (/(') unless the transaction is illegal.
(/) As soon as the stakeholder has received the de-
posit, he is bound to hold it to abide the event, and
must not pay it over to either party until the condi-
tion upon which it was made payable or returnable has
been accomplished. Thus, where an auctioneer has re-
ceived a deposit from the purchaser of an estate, to be
paid over to the vendor if a good title to the property
is made out by the latter, and in default thereof, to be
returned to the intended purchaser, the latter has no
right to ,demand back the deposit, and the auctioneer
is not justified in returning it, without the consent of
the vendor. But if the vendor is not able to establish
his title, or the contract is rescinded or abandoned by
the mutual consent of the contracting parties, the auc-
tioneer then holds the deposit for the use, and at the
■disposal, of the party from whom he received it, and
is bound to return it on the request of the latter, (w)
So long as the contract between the parties interested
in the deposit remains open, and the event is undeter-
mined, the right to the deposit remains in suspension,
and each of the parties has an equal interest in the
due fulfillment of the trust by the stakeholder. Stew-
ards of a horse-race do not stand in the position of ar-
bitrators between the persons who have horses in the
race ; and it is not necessary that they should meet
together and come to a joint decision as to which
horse has won, to enable the winner to recover the
stakes, (n)
If the deposit has been made to abide the event of
(k) Marryat v. Broderick, 2 M. & W. (m) Burrough v. Skinner, 5 Burr.
372; Emery V. Richards, 14 M. & W. 2639. Edwards v. Hodding, 5 Taunt.
728 ; 15 L. J., Ex. 49. 815. Gray v. Gutteridge, I M. & R.
(/) Eltham v. Kingsman, I B. & Aid. 614. Duncan v. Cafe, 2 M. & W. 246.
683. Batty V. Marriott, 5 C. B. 818 ; (k) Parr v. Winteringham, i Ell. &
17 L. J., C. P. 215. Ell. 394 ; 28 Law J., Q. B. 123.
488 LAW OF CONTRACT. [Bk. II. Ch. IIL
a wager, or for the purpose of carrying into effect an
unlawful transaction, the depositor may, as we have
seen, at any time before the event has happened or
the deposit has been paid over, demand it back and
maintain an action for its recovery. (<?)
8 1 2. Power of the depositary to compel rival claim-
ants to establish their title by interpleader. — If the
event, when it does transpire, is not of a decisive char-
acter, and both parties set up a title to the deposit, the
depositary may compel them to interplead, and so
establish the right. This may be done when the de-
positary claims no interest in the deposit, and is not
colluding with either party. (/) A stakeholder may
also pay money into court under the Trustee Relief
Act. (?) _ _
813. Liabilities of the depositary when he holds
possession wrongfully. — If the depositary is in default
in neglecting to return the chattel on demand, he is.
responsible for the subsequent loss or destruction of
the article, and for all injuries that may afterwards,
happen to it, by whatever means occasioned. He
must restore it, moreover, with all its increase and
profits. Thus, he who has taken charge of a flock of
sheep must restore the wool shorn from their backs
and the lambs they have produced, together with the
sheep themselves ; and, if the profits, produce, and in-
crease are of a perishable nature, such as milk, eggs,
and butter, and have been necessarily sold, the produce
of the sale must be paid to the depositor. The de-
positary, however, can not be called upon to deliver
{6) Holmes v. Sixsmith, 7 Exch. 802; 151. Nelson v. Baxter, 23 L. J., Ch^
21 L. J. Ex. 312. 705 ; 2 H. & M. 334. 23 & 24 Vict. u.
{p) Crawshay v. Thornton, 7 Sim. 126, s. I2.
398. Pearson y. Garden, 2 Russ. & {q) United Kingdom Life Assurance-
M. 606. Tanner v. The European Co., /k «, 34 L. J. Ch. 554.
Bank, L. R. i Ex. 261 ; 35 L. J., Ex.
Sec. I.] WORK AND LABOR. 489
up the accessary without the principal. If the depos-
itor turns out to be a thief and to have stolen the
things deposited, and the true owner appears, the de-
positary must restore them to the latter, (r)
814. Liabilities resulting from the taking posses-
sion of goods by finding. — A man may clothe himself
with the ordinary obligations and liabilities of a de-
positary by finding and taking possession of the lost
property of another as well as by receiving property
direct from the hands of the owner. In Noy's
Maxims, it is observed (ch. 43), " If one man finds
goods of another, and they be hurt or lost by the neg-
ligence of him who found them, he shall be liable ta
make them good to the owner." So in Doctor and
Student, it is said, " If one man finds goods of another,
and they be after hurt or lost by willful negligence, he
shall be charged to the owner. But, if they be lost
by other casualty, as if they be laid in a hc^se that by
chance is burned, or if he deliver them to another to
keep, that runneth away with them, I think he be dis-
charged." (s) " When a man doth find goods," further
observes Lord Coke, " it hath been said, and so com-
monly held, that, if he doth dispossess himself of them
by this he shall be discharged ; but this is not so, as
appears by the 12 E. 4, fo. 13. For he who finds
goods is bound to answer for them to him who hath
the property ; and, if he deliver them over to any one,,
unless it be to the right owner, he shall be charged for
them ; for at the first it is in his election whether he
will take them or not into his custody ; but, when he
hath them, he ought to keep them safely ; and, if he
be wise, he will search out the right owner of them,,
and deliver them to him. An action on the case
(;-) Domat (du depot), s. 4, § 2 ; s.i, {s) Dial. 2, ch. 38. Story. 64, 65,
§ 5. Dig. lib. 16, tit. 3.
490 LAW OF CONTRACT. [Bk. II. Ch. III.
lieth against him for ill and negligent keeping." (/)
So by the civil law, if the finder of a lost article took
the thing lost into his possession, he was obliged to
take care of it and preserve it for the owner. He was
deemed, moreover, to be guilty of a theft, if he made
no attempt to discover the owner and restore the lost
property, or if, knowing the owner, he kept the prop-
erty without any intention to restore it. (ti)
815. Liabilities of the depositor. — The depositor
is by the Roman law bound to reimburse the bailee
all extraordinary expenses incurred by him in the
preservation of the thing committed to his keeping ;
and such a liability may, under certain circumstances,
exist in our own law. The French law, moreover,
concedes to the depositary a right to detain the chattel
until he has received payment of such expenses, {v')
But no such right exists in the common law ; and no
depositary is ever permitted in this country to set up
a right of lien upon the chattel for the mere expenses
he has incurred in keeping and preserving it.
816. Deposits of money with one of several part-
ners.— A receipt of money by one partner on account
of the firm, in the ordinary course of the business of
the co-partnership, is the receipt of the co-partnership
at large ; and all the partners are individually respon-
sible for the proper application of the money depos-
ited, {y) If two attorneys in partnership together are
in the habit of receiving money to place out on securi-
ties, and one of them receives a sum of money to be
laid out on security, the other is responsible for the
(t) Izaack v. Clark, 2 Bulst, 312. GATiONs) No. 625. Cod. Civ. art.
(«) Dig. Jib. 47, tit. 2, lex. 43, § 4. 1948
As to recovering the halves of bank {y) Dundonald v. Masterman, L. R.
notes, see Smith v. Mundy, 29 L. J., 7 Eq. 504; 38 L. J., Ch. 350. St.
Q. B. 172. Aubjn V, Smart, L. R. 3 Ch. 646.
{v) P)thier (Depot) No. 59 ; (Obli-
Sec. I.] WORK AND LABOR. 40^
proper application of the money, although the party
receiving it gives his own separate receipt for it,
making himself individually accountable for the
amount on demand. (2) But it must be proved that
the client relied on the joint judgment and joint se-
curity of the firm, and that it was part of the ordinary
course of business of the firm to receive and hold
money until a good mortgage security offered, and
then invest it ; for it is no part of the ordinary business
or duties of attorneys to receive and hold money for
general purposes of investment, (a) Where one of a
firm of solicitors received from a client a sum of
money, for which a receipt was given in the name of
the firm, stating that part of the money was in pay-
ment of certain costs due to the firm, and that the
residue was to make arrangements with the client's
creditors, and the solicitor misappropriated the money,
it was held that the transaction with the client was
within the scope of the partnership business, and that
the partners in the firm were jointly and severally
liable to make good the amount, (d) If one of several
partners in trade obtains money in the ordinary course
of dealing of the co-partnership, but by means of false
and fraudulent representations, and converts the money,
when received, to his own use in fraud of his partners,
the partnership is nevertheless responsible for the
moneys so received in the name of the firm ; and an
innocent partner may, consequently, be as much
bound by such fraudulent acts and transactions as if
he himself had personally been a party to them, (c)
(z) Willet .. Chambers, 2 Cowp. Eq. 570 ; 35 L. J., Ch. 624.
814. (c) Rapp V. Latham, 2 B. & Aid.
(a) Harman v. Johnson, 2 Ell. & Bl. 795. Stone v. Marsh, R. & M. 368 ; 6
61; 22 L. J., Q. B. 297. B. & C. 551. Keating v. Marsh, r
{i) Atkinson v. Macreth, L. R., 2 Mont. & Ayr, 3S2.
492 LAW OF CONTRACT. [Bk. II. Oh. III.
But if the fraud has not been committed in the course
of the partnership dealings, but in the private and sep-
arate transactions of the single partner himself with
third parties, the innocent partner can not be made
responsible to those who have been defrauded in the
course of such transactions. Thus, if a partner who
holds money in his hands as a trustee for third parties,
brings that money into the partnership account, and
employs it in the business as his own money, the
other partners can not be made responsible for the re-
payment of the money so employed in the business,
unless they knew at the time that the money was trust
money, and not the property of their co-partner, (dy
But if money is deposited in the hands of one of sev-
eral partners of a banking firm at the bank, to be held
temporarily by the bank, and subsequently applied in
the purchase of some particular security, and the part-
ner absconds with the money, the firm is responsible
for the repayment of the amount, although they had
given no authority to their partner to receive money
for investment, and the transaction, so far as it related
to the application of the money when received, was
not in the ordinary course of business, [e) And^
where the senior partner of a firm of stock-brokers
bought transferable bonds for the plaintiff, and kept
the bonds for him, and afterwards sold them, and made
away with the money, it was held that the firm was
responsible to the plaintiffs for the value of the bonds,
although the junior partners were entirely ignorant of
the transaction, (y)
817. Deposits of money with bankers. — Money d ;-
(rf) Ex parte Heaton, Buck, 386. (/) La Marquise de Ribeyre v. Bar-
Smith V. Jameson, 5 T. R. 601. clay, 23 Beav. 125 ; 26 L. J., Cb.
{e) Tliompson v. Bell, 10 Exch 10; 747.
23 L.J. Ex. 321.
Sec. I.] WORK AND LABOR. 493
posited in the hands of bankers in the ordinary course
of business is money lent to the banker by the de-
positor, with a superadded obligation that it is to be
repaid when called for by cheque. If interest is to be
paid by the banker, the transaction amounts to a let-
ting and hiring of the money or a loan at interest ; if
no interest is to be paid on the deposit, it is a com-
modatum or gratuitous loan ; and in this last case, if
the money remains for six years in the banker's hands
without any payment by him of any part of the prin-
cipal, or any acknowledgment by him in writing of
the existence of the loan and of the debt, the statute
of limitations will be a bar to its recovery by action.
(^) In ordinary cases of deposits of money with
bankers the transaction amounts to a mutuum or loan
for use and consumption, it being understood that the
banker is to have the use of the money in return for
his consent to take charge of it. (A) ' " Money, when
paid into a bank, ceases altogether to be the money
of the depositor ; it is then the money of the banker,
who is bound to return an equivalent by paying a
(g-) Pott V. Clegg, 16 M. & W. 321; 16 Q. B 575. Pott v. Clagg, 16 M. &
16 L. J. Ex. 210. Howard v. Dan- W. 321 ; 16 L. J., Ex. 210. Sims v.
bury, 2 C. B. 806. Bond, 2 N. & M. 608.
(A) Alderson, B., Robarts v. Tucker
' See anU, note 1, p. 461. Banks and banking compa-
nies are not public servants, and no duty exists on their part,
corresponding to the duty of common carriers or inn-
keepers, to receive all persons offering themselves as custom-
ers. A bank may select arbitrarily its customers from among
those offering themselves as such, and are not accountable to
anybody for their selection or refusal. Thatcher v. Bank, &c.,
of New York, 5 Sandf. 121. Neither does the acceptance of a
customer's deposit bind the bank to continue keeping his ac-
count; nor on the customer's part is there any implied con-
tract that he will continue to deposit. Morse on Banking,
«5-
494 LA^ OF CONTRACT. [Bk. II. Ch. III.
similar sum to that deposited with him when he is
asked for it or ordered to pay it. It is the banker's
money ; he deals with it as his own ; he makes what
profit he can of it, which profit he retains to himself,
paying back only the principal sum, according to the
custom of bankers in some places, or the principal and
a small rate of interest, according to the custom of
bankers in other places." The money, therefore, being
his own, he is guilty of no breach of trust in employ-
ing it. He is not answerable to the principal if he
puts it in jeopardy by engaging in hazardous specula-
tions ; but he is, of course, answerable for an equiva-
lent amount to be paid to his customer when de-
manded, (z)'
8 1 8. Deposit of bills, notes, and securities in the
hands of bankers. — But bills deposited in the hands
of a banker remain the property of the customer,
unless there be a special agreement transferring the
property in them to the banker, so that, upon the
death or failure of the banker, the customer has a
right to the bills so long as they remain in specie ; -
but the banker has a lien upon them, if the customer
has overdrawn his account. ^ Where a customer was
in the habit of depositing bills with his bankers, which
bills were indorsed by him, and were entered in the
bank books to his credit as bills, not as cash, and
after such entry the customer was allowed to draw to
the full amount of such bills by cheques, and the
bankers became bankrupt, it was held that the custo-
mer, who had a cash balance in his favor at the time
{i) Foley v. Hill, 2 H. L. C. 36. Ante.
' See last note.
' This is what is called a special deposit, which is usually
the simplest form of depositum, see note i, ante,^. 480.
' Post, § 832.
Sec. I.] WORK AND LABOR. 49S
of the bankruptcy, was entitled to the bills, there
being no evidence that he had agreed that, when the
bills were deposited, they were to become the prop-
erty, of the bankers, (^k) And, where a customer paid
a bank-note into the bank after the ordinary hours of
business, and the bankers, having previously resolved
to stop payment, did not carry the amount of the note
to the customer's account, but placed it aside in a
separate place of deposit, taking care not to mix it
with the general assets of the house, it was held that
the note still remained the property of the custo-
mer. (/)^ If bank-notes deposited by a customer
turn out to be worthless paper, by reason of the in-
solvency of the bank which issued the notes, the loss
falls upon the customer, if there has been no laches on
the part of the banker with whom the notes were de-
posited. If the banker gives a receipt for the notes
i^k) Thompson v. Giles, 3 D. & R. (/) Sadler v. Belcher, 2 Mood. &
7£3 ; 2 B. & C. 442. Rob. 489. Ante ; post.
' So if a deposit be stolen before it has been mingled
with the funds of the bank, or if it be embezzled or fraudu-
lently misapplied by an ofiScer of the bank, the bank is, none
the less, liable for the deposit. Concord v. Concord Bank, 16
N. H. 26; Commercial Bank of Albany v. Hughes, 17 Wend.
94. In Georgia, &c. Banking Co. v. Dabney, it appeared that
the deposits were in Confederate notes, which were rapidly
depreciating in value, and which ultimately became worthless.
Accordingly a notice was given in 1862, by a bank to its depos-
itors, to withdraw their deposits, though repeated in February,
1864, with the further notice, that on failing to withdraw, the
deposits would be sealed up in packages and held at their risk.
Held, that such notices, without proof of any further action on
the part either of the bank or its customers, in relation ta
such deposits, does not, in law, discharge the bank from all
liability, under the ordinance of 1865, on account of the total
failure of Confederate money. Such facts are proper for the
consideration to the jury in adjusting the equities between the
parties. 52 Ga. 515.
496 LAW OF CONTRACT. [Bk. II. Ch. III.
as cash, he is not precluded by such receipt from sub-
sequently showing that what he received was not cash,
but spurious paper, (m)
819. Receipt of cheques by bankers on account of
iheir customers. — When a cheque is paid into a bank
to be placed to the account of a customer, the banker
is bound to use due diligence in getting the cheque
paid, and must give prompt notice to his customer in
case it is not paid ; and, if he omits to do either of
these things, he makes the cheque his own and
must bear the loss, if loss there be. Where the
plaintiflF received a cheque drawn upon his own
bankers, ' and took it to their bank, and handed it to
a clerk, with directions to place it to his account, and
the clerk received the cheque without any observa-
tion, and the bankers, finding that the drawer of the
cheque had overdrawn his account and was keeping
out of the w^ay, gave the plaintiff notice on the fol-
lowing day that the cheque would not be honored by
them, and that the amount of it would not be placed
to his credit, it was held that the bankers were not
precluded, by their having received the cheque with-
(ni) Timmins v. Gibbins, 18 Q. B. 722 ; 21 L. J., Q. B. 403.
' Ivory V. Bank of State of Missouri, 36 Miss. 475 ; State
Bank v. Bank of the Capitol, 41 Barb. 343 ; and this inde-
pendently of whether the customer's name is on the check or
not. McKinster v. Bank of Utica, 9 Wend. 46; 11 Id. 473.
And the measure of damages will be the actual loss sustained.
Tyson v. State Bank, 6 Blackf 225 ; Bank of Washington v.
Triplett, i Pet. 25 ; McKinster v. Bank of Utica, 9 Wend. 46.
" Where a bank demands and receives payment of a dishon-
ored note from an indorser, and he, seeking in his turn to re-
cover from a prior indorser, fails to do so by reason of a
■default by the bank in not making a proper demand upon the
maker, which in suflBciency was unknown to the paying indorser,
when he made the payment, he shall recover back the amount
of his payment from the bank." Morse on Banking, 342.
•Pec. I.] WORK AND LABOR. 497
■out comment in the first instance, from subsequently
refusing to credit the plaintiff with the amount ; but
that, if the plaintiff, at the time he deposited the
cheque, had asked the bankers whether they would
pay it, he would have been entitled to an answer, and
that the bankers would have been bound by such
answer, (n) It is often impossible to ascertain till
the close of the day, at the clearing-house, what sums
of money may be paid in to each particular account,
and what are the drafts upon it ; and bankers, there-
fore, may receive cheques drawn upon them by their
customers, and may reserve to themselves the right of
honoring them, or not honoring them, according to
the result of the day's transactions at the clearing-
house. Where bankers, at the time of receiving a
cheque drawn upon them by one customer, and pre-
sented by another, stated that they were not then in
funds, but that they would keep the cheque in the hope
of being furnished with money to pay it, in the course
of the day, it was held that they were bound to appro-
priate the first money they received from their cus-
tomer, the drawer, in satisfaction and discharge of
such cheque, (tf) ^
(«) Boyd V. Emmerson, 2 Ad. & E. (o) Kilsby v. Williams, 5 B. & Aid.
202. 919.
■ It seems that a bank is liable for frauds or mistakes of
the cashier or clerks in their entries in its books, or for false
accounts of deposits, &c. Salem Bank v. Gloucester Bank, 17
Mass. I ; Id. 33 ; Andrews v. President, &c. of Suffolk Bank,
12 Gray, 461. Where plaintiff, to the knowledge of defend-
ant, a customer, employed in its bank a paying and a receiv-
ing teller, the general duty of the latter being to receive
moneys paid or deposited. In his absence other ofHcers or
clerks acted in his place. Defendant, having overdrawn his
account by mistake, received a letter from the paying teller
requesting him to call ; he went to the bank, and at the re-
quest of the paying teller paid him, over the counter, the
II. — 37
498 LAW OF CONTRACT. [Bk. II. Ch. III.
820. Of the duty of bankers to honor the
drafts of their customers — Payment of cheques. — It
is the duty of the banker to pay the debt due to the
customer pursuant to the order, cheque, or draft of
the latter. The customer may order the debt to be
paid to himself or anybody else, or he may order it
to be carried over or transferred from his own account
to the account of any other person he pleases. He
may do so by written instrument or verbal direction ;
but the banker is entitled to require some written,
evidence of the order of the transfer. (/ )' Th&
banker is bound by law to honor the cheques and
drafts of his customers, provided they are presented
within banking hours, and provided he has in his
hands sufficient funds for the purpose belonging to
(iS) Watts V. Christie, 11 Beav. 546 ; 18 L. J., Ch. 173. Walker v. Rostron,
9 M. & W. 421.
amount required to rectify the error ; this was not entered on
the books of the bank. It did not appear that the receiving-
teller was in the bank. In an action to recover the amount
overdrawn, held, that the bank was bound by the payment..
East River, &c. Bank v. Gove, 57 N. Y. 459.
' Watson V. Phoenix Bank, 8 Met. 217 ; Downes v. Phoenix
Bank, 6 Hill, 297. The bank has the right to pay out money
on a verbal order, if it will, but it is likewise entitled to-
demand a written order or voucher. Coffin v. Henshaw, lo-
Ind. 277.
There is no rule as to the amount for which a depositor
may draw his check. The rule of law forbidding a creditor to.
split up his demand does not affect this principle, which is-
based upon a custom of the banking business so ancient,,
unquestioned, and well known that courts will take judicial
notice of it without proof. Munn v. Birch, 25 111. 35 ; Chicago-
Ins. Co. V. Stanford, 28 Id. 168. But a customer will not be
allowed to vex unnecessarily a bank. Chicago Ins. Co. v.
Stanford, Id. It was held, in True v. Thomas, 16 Me. 36, that
the drawing of a check for a larger sum than the depositor's
balance, or for a sum larger than he had reasonable grounds
to expect funds to meet, in the absence of any explanation, is
a fraud.
Sec. I.] WORK AND LABOR.
439
the customer; (^) and, if he refuses, he is liable to an
action by the customer for substantial damages with-
out proof of actual damage ; for it is a discredit to the
customer to have his cheque refused payment, (r)
Where the plaintiff paid a sum of money to a banker
in London, and directed him to forward the money to
certain country bankers to the plaintiff's credit by a
particular day, and the London banker received the
money and neglected to forward it, it was held that
he Was responsible for all damages sustained by the
plaintiff by reason of his not having the money at the
time and place appointed, (s) The acceptance by a
customer of a bill of exchange payable at his bankers
is tantamount to an order from him to his banker to
pay the bill to the person who, according to the law
merchant, is capable of giving a good discharge for it,
z. e., to a person who becomes the holder by a genuine
indorsement, or, if the bill is originally payable to
bearer, or if there is afterwards a genuine indorsement
in blank, to the person who seems to be the holder. (^) '
If bankers have indorsed a bill of exchange accepted
by a customer, and the bill is presented to them when
(?) Agra Bank, &c., v. Hoffman, 34 129. As to orders on bankers opera-
L. J., Ch. 285. ting by way of novation and substi-
{r) Marzetti v. Williams, anle. Ro- tution, see ante.
lin V. Steward, 14 C. B. 595; 23 L. J., {s) Shiliibeer .. Glyn, 2 M. & W.
C. P. 148. Boyd V. Emmerson, 2 Ad. 143. Wheatley v. Low, Cro. Jac. 668
& E. 184. Whitaker V. Bank of Eng., Loe's Case, Palm. 281.
I C. M. & R. 744. Cumming v. {i) Kymer v. Laurie, 18 L. J., Q. B.
Shand, 5 H. & N. 95 ; 29 L. J., Ex. 218. Robarts v. Tucker, posi.
' It is likewise the duty of the bank to pay his customer's
notes, bills, and acceptances, if made payable by it ; it is the
presumption of law that these are, like checks, a customer's
order to pay which he meant to have obeyed; Morse on
Banking, 30 ; and if not paid, the drawer has his action
against the bank for the non-payment. In case of an accept-
ance, the right of action for such refusal is in the acceptor, and
not in the drawer. 3 Pick. 96.
Soo LAW OF CONTRACT. [Bk. II. Ch. III.
it arrives at maturity, and they pay it on the day it
becomes due, the bankers so paying may reserve to
themselves the right to examine into the state of the
accounts between them and the acceptor, their cus-
tomer, and determine whether they honor the bill for
the acceptor, or take it up on their own account as
indorsers. (ti)
821. Payment 0/ cheqties under suspicious circum-
stances— Negligence. — If bankers pay a cheque under
circumstances of suspicion which ought to have put
them on their guard, and induced them to make
inquiry before paying it, they can not debit their cus-
tomer with the amount, if the cheque was never
uttered or put into circulation by the customer. Thus,
where the customer, finding that he had drawn a
cheque for a wrong sum, tore it into four pieces and
threw them away, and these four pieces were picked
up, and neatly pasted together, and presented at the
bank by a stranger for payment, but the rents and the
pasting of the paper were quite visible, and the face
of the cheque was soiled and dirty, and the cashier,
nevertheless, paid it without demur or inquiry, it was
held that the bankers had been guilty of a neglect of
duty, and could not, under the circumstances, debit
their customer with the payment, {x) But, if the
tearing is done in such a way that it is reasonable to
presume it to have been done for the purpose of trans-
mitting the cheque through the post, there will then
be no neglect of duty on the part of those who pay
the cheque in ignorance of its having been torn up
with the intention of cancelling it. (^)'
(«) Pollard V. Ogden, 2 Ell. & Bl. Campb. 485.
464 ; 22 L. J., Q. B. 439. {y) Ingham v. Primrose, 28 L. J.,
(x) Scholey v. Ramsbottom, 2 C. P. 294.
' And so in the case of stale checks. Although there is no
Sec. I.] WORK AND LABOR. 501
822. Joint accounts and joint deposits with
bankers. — Where money is paid into a bank to the
joint account of several persons nominatim, it can not
rule of law fixing the time that shall be conclusive against a
check, yet it is said to be a sound and ordinary rule of busi-
ness that a bank must not pay an old check without inquiry.
Morse on Banking, 262. But one who is not a sufferer by
delay in presenting his check, is liable upon it until the statute
of limitations has run against it. Harbeck v. Craft, 4 Duer,
122 ; Cruger v. Armstrong, 3 Johns. Cas. 5 ; Conroy v. War-
ren, Id. 259 ; Murray v. Judah, 6 Cow. 490; Mohawk Bank v.
Broderick, 10 Wend. 306; 13 Id. 133; Tuttle v. Phoenix Bank,
2 Hill, 425. It is suggested that an old check may reasonably
be regarded with suspicion ; and the bank may reasonably
defer payment until it shall have time to make inquiries.
Morse on Banking, 263. The holder of a bank check is
bound to present it within a reasonable time ; otherwise the
delay is at his own peril. Woodruff v. Plant, 41 Conn. 344. But
what is a reasonable time must depend upon the particular cir-
cumstances of the case. Id. Where a plaintiff, desiring to make
a remittance to a creditor at a distance, and there being no
bank in the place where he lived, asked the defendant, who
had an account with a banker in a neighboring city, to take
the amount of him in bank bills and give him his check there-
for, and the defendant, fully understanding the object, took the
bank bills and gave the plaintiff his check upon the banker,
payable to the plaintiff's order, the defendant the same day
depositing the bills with the banker. The plaintiff at once
endorsed the check to his creditor, and sent it by the next
mail. It was three days before the check reached the place
where the banker resided, and was presented for payment, at
which time the banker had failed, and payment was refused.
The plaintiff, having taken up the check, sued the defendant
thereon. Held, that the check was presented within a reason-
able time in the circumstances, and that the defendant was lia-
ble. Id. But it is said that a check on a bank is never due
until presented, and therefore never overdue until it has been
presented and dishonored. Cruger v. Armstrong, 3 Johns.
Cas. S ; Story on Promissory Notes, Sharswood's Ed., 678-
679. In Gale v. Miller, 54 N. Y. 536, it was held that the
check is of no vitality whatever until transferred to some per-
son other than the drawer or the bank. And whether a check
is so old that the bank, in a particular case, was justified in
502 LAW OF CONTRACT. [Bk. II. Ch. III.
be drawn out by one of them alone ; for the bankers
are not discharged from liability by payment to one
of the depositors without the authority of the others.
{z) But, when one dies, the money may be drawn
out by the survivor. Such is the case with money
deposited in a bank in the joint names of husband
and wife, (a) '
823. Deposits and accounts with bankers in the
names of trustees, agents, and receivers. — In a banking
account of the ordinary kind between a banker and
his customers, it is not competent to any third party
to interpose and to say that the customer was his
aeent and that the banker has contracted with such
third party through the medium of such customer, his
agent. All cheques and money paid into the bank by
(z) Innes v. Stephenson, i Mood. & Ad. 375.
Rob. 147. Sims v. Brittain, 4 B. & (a) Williams v. Davies, 33 L. J., P.
& M. 127.
refusal to cash it upon demand, is a question for the jury. See
Morse on Banking, 264; Lancaster Bank v. Woodward, 18
Pa. St. 357. In the last-named case, a check "was drawn upon
a bank in which the drawer had no funds ; but a year after the
date of its making, it happened that the drawer did have funds
in the bank, and upon presentation of the check it was paid.
The drawer in the meantime had discharged the original debt
for which the check had been drawn, considering that the
check was no longer good. Held, that payment by the bank
of so old a check, under the suspicious circumstances of a con-
tinued omission to deposit funds to meet it, which were suffi-
cient to put the bank on inquiry, constituted a degree of negli-
gence on the part of the bank so great that the court felt justi-
fied in taking the case from the jury and holding, as matter of
law, that the bank could not recover the amount so paid. So
the fact that a draft or check was presented at a bank at such
a distance from the place where it was drawn that it could not
have reached there in the ordinary course of the mails, or of
a messenger, would be sufficient to put a bank on its guard.
' Morse on Banking, p. 266.
Sec. I.] WORK AND LABOR. 503
the customer are, as between the banker and the cus-
tomer, the cheques and money of the customer, who-
ever may be the real owner of them. If the owner of
the cash allows his agent to deal with it as his own,
and pay it into the bank in his own name, he has no
power over it after it has reached the banker's hands.
On the other hand, it is not competent to the banker,
after he has placed the money to the credit of the
customer, to deny the title of the latter to the money,
and to set up a jus tertii, or to revoke the credit. (6)
If several joint owners of a sum of money allow one
of them to deal with their money and place it in the
hands of a banker to his separate account, the banker
must treat that as a contract with the one individual
■dealing with him, and the latter can not impose upon
the banker as many contracts as there are owners of
the money. (<;) '
824. Separate accounts opened by the same person
in different capacities. — Generally, as between banker
and customer, the banker looks only to the customer
in respect of the account opened in that customer's
name, and whatever cheques that customer chooses to
■draw, the banker is to honor, and is not to inquire
what the moneys are that are paid into that account,
or for what purpose they are drawn out. But, when
the customer opens two separate accounts, the one
being a private account of his own, and the other an
account as trustee or receiver of the moneys of a
known third party, the bankers are bound to take
{b) Tassell v. Cooper, g C. B. 533. (<r) Sims v. Brittain, 4 B. & Ad. 375.
Pinto V. Santos, 5 Taunt. 447.
' Morse on Banking, 266 ; and so in the case of deposits
t)y an assignee in bankruptcy. Id. But the signature of one
•of several co-administrators or executors to a check is a suffi-
cient authority to the bank to pay it. Id. 267.
504 LAW OF CONTRACT. [Bk. II. Ci-i. IIL
notice that the moneys placed to the last named ac-
count are not the moneys of their customer, and they
can not make an arrangement with the latter for an ap-
propriation of the balance in their hands on the
fiduciary account to liquidate a balance due to them
from their customer upon his own private account.
They have no right to combine with the receiver for
the appropriation of his principal's money to discharge
the private debt due to them from the receiver ; for
no person dealing with another, and knowing him ta
have in his hands or under his control money belong-
ing to a third person, can deal with the individual
holding that money for his own private benefit, when
the effect of the transaction is that a fraud is neces-
sarily committed upon such third party. (</).
825. Loss of irtist-money in the hands of
bankers. — If an agent or trustee who has received a
sum of money for the use of his principal or bene-
ficiary, pays the money into a bank in the name of the
principal or beneficiary, and places it to the account of
the latter, the amount then remains in the bank at the
risk of the principal ; and, if the banker fails, the prin-
cipal mnst bear the loss. But, if the agent or trustee
pays in the money to his own account and of his own
credit, this is a user of the money for which he will be
responsible. If he had an implied authority to use
the money, and has so exercised it, then he stands, as
before-mentioned, in the position of a borrower for
use and consumption. In either case he is bound to
make good the loss, {e)
826. Payment of forged cheqtces, drafts, and
(d) Bodenham v. Hoskins, 21 L. ]., L. J., Q. B. 83.
Ch. 864 ; l6Jur. 721. Bridgnian v. (f) Robinson v. Ward, R. & M. 276.
Gill,24Beav. 302. Kingston, £x parti;. Wren v. Kirton, II Ves. 377. Rocke
L. R., 6 Ch. 632. Per Blackburn, J., v. Hart, Id. 61. Massey v. Banner, 4.
Bailey v. Finch, L. R., 7 Q. B. 42 ; 41 Mad. 418, 419 ; i Jac. & Walk. 241.
Sec. I.] WORK AND LABOR. 505
orders on bankers — Forgery facilitated by the negli-
gence of the customer. — If money is drawn out of the
bank by means of a forged order purporting to have
been made by the customer, the banker must sustain
the loss. Where a cheque drawn by a customer on
his banker for a sum of money described in the body
of the cheque in words and figures was afterwards
altered by the holder, who substituted in a different
handwriting a larger sum than that mentioned in the
cheque, in such a manner that no one, in the ordinary
course of business, would have observed it, and the
banker paid the larger sum to the holder, it was held
that he could not lawfully debit the customer with
the over-payment. (/" ) ' But, if the banker has been
defrauded through the carelessness or negligence of
the customer in drawing the cheque, the loss must be
borne by the customer. Where the customer signed
several blank cheques, and left them in the hands of
his wife to be filled up, and she handed a cheque to a
clerk to be filled up for ;^5o 2S. 2,d., and the clerk
filled up the cheque for the specified amount, and
showed it to the wife, but the " fifty" was commenced
(/) Hall V. Fuller, 5 B. & C. 750 ; v. Thiedemann, i H. & C. 478 ; or on
8 D. & R. 464. As lo advances by securities fraudulently obtained, Jfe
bankers, at the request of their custo- Carew's Estate, 31 Beav. 39 ; 31 L. J.,
mers, on forged securities, see Woods Ch. 214.
' A bank is bound to know its custorper's handwriting (that
is to say, his signature; for it is not matter of suspicion that
the body of the check be not in his own writing), and
must suffer the whole loss from a payment upon a check forged
in his name; Levy v. Bank of the United States, 4 Dall. 234;
Weisser v. Denison, 6 Seld. 68 ; Bank of the United States v.
Bank of Georgia, 10 Wheat. 333 ; Bank of Cornmerce v. Union
Bank, 3 Const. 230; Goddard v. Merchants' Bank, 4 Id. 147;
and a fraudulent alteration in the body of a check or bill, after
signature, renders the check a technical forgery. Goodman v.
Eastman, 4 N. H. 455 ; Sewall v. Boston Water Power Co., 4
Allen, 277.
5o6 LAW OF CONTRACT. [Bk. II. Ch. III.
in the middle of the line, so that the words " three
hundred and " could easily be written before it, and
space was left at the bottom of the cheque for the in-
sertion of the figure 3 between the £ and the figures
50, and the clerk on his way to the bank altered the
cheque to ^^350, and got that amount from the
bankers and absconded, it was held that the customer
must bear the loss, as it had been occasioned by his
own negligence and the negligence of his agent in
■dealing with the blank cheque. ( ^) '
827. Forged indorsements. — We have seen that
{g) Young V. Grote, I2 Moore, 489 ; 4 Bing. 257.
' It is well that the American student should bear in mind
that the English cases are to be used with great caution in
cases arising upon checks payable to order, since in England
this matter has been always more or less controlled by statute.
It was originally enacted that all checks should be drawn " to
bearer,'' or to " A. or bearer;'' and all instruments drawn paya-
ble to order were regarded as inland bills of exchange, and
required to be stamped as such. By 16 & 17 Vict. 59, s. 19,
this was changed ; but the act provided that " any draft or order
drawn upon a banker for a sum of money payable to order on
demand, which shall, when presented for payment, purport to
be endorsed by the person to whom the same shall be drawn
payable, shall be a sufficient authority to such banker to pay
the amount of such draft or order to the bearer thereof; and
It shall not be incumbent on such banker to prove that such
-endorsement, or any subsequent endorsement, was made by or
under the direction or authority of the person to whom the
said draft or order was or is made payable, either by the drawer
or any endorser thereof;" which provision, it is apparent,
changes the English custom, if at all, very slightly, since a
check payable to order, when the banker is under no obliga-
tion to assure himself of the endorsement, is practically a
check payable to bearer. With us, where such checks are in use,
it would seem to be the duty of every drawer of a check to so
preface it as to guard against an alteration of the amount of
its face; and if he do not so reasonably guard against it, or if
the alteration be rendered possible by his own carelessness, he,
and not the bank, is liable. It is not an unfrequent case that a
Sec. I.J WORK AND LABOR. 507
if a bill of exchange has been accepted by a customer
payable to order at his bankers, the acceptance of the
bill is an authority to the bankers to pay the bill only
to a person who becomes the holder by a genuine
indorsement from such customer. If bankers wish to
avoid the responsibility of deciding on the genuine-
ness of the indorsement, they must require their cus-
tomer to make his bills payable at his own offices, and
to honor the bills by giving a cheque on them ; for
they can not debit a customer with a payment made
to a party who claims through a forged indorsement
and so can not give a valid discharge for the bill,
unless there are circumstances amounting to a direc-
tion from the customer to the bankers to pay the bill
without reference to the genuineness of the indorse-
ment, or a subsequent admission on the part of the
customer of the genuineness of the indorsement
inducing the bankers to alter their position, so as
to preclude the customer from showing it to be
forged. (^) '
(A) Robarts v. Tucker, l6 Q. B. 578.
bank, after payment of a check, may have reason to suspect it a
forgery of the drawer's signature, and exhibit it to him. In such
cases, if the forgery, either from its skillfulness or from the draw-
er's imperfect vision, or haste, or other cause, be himself deceived
it has been unanimously held that his declaration that the
writing of the signature is his, will not estop him from after-
wards proving the contrary; Weisser v. Denison, 6 Seld. 68;
so held in case of a note; Hall v. Huse, 10 Mass. 40; and in
case of bank bills, Salem Bank v. Gloucester Bank, 17
Mass. I. This appears to be the tendency of modern decisions.
Consult Coggell v. American Exchange Bank, i Comst. 113;
Weisser v. Denison, 6 Seld. 68 ; Morgan v. Bank of New
York, T Kern. 404 ; Belknap v. Bank of North America,
; Mahaiwe Bank v. Douglas, 31 Conn. 170; Wade v.
Withington, i Allen, 561 ; Morse on Banking, p. 301. The
alteration of a check in a part not material may be disregarded.
Smith V. Smith, i R. I. 398.
' Where a check is diawn payable to the order of any
5o8 LAW OF CONTRACT. [Bk. II. Ch. III.
828. Ckeqties paid by mistake. — If a banker pays
the cheque of a customer, supposing that he has funds,,
and afterwards finds that the customer has overdrawn
actual person or corporation, the bank is liable for its pay-
ment to any one else. Smith v. Smith, i R. I. 398; BostcTn v,
Benson, 12 Cush. 61; VVheelock v. Freeman, 13 Pick. 165.
Checks made payable to words or initials, or intended or sup-
posed to refer to a fictitious name, or to figures, will be coi-
sideredas payable to bearer, and subject to all the rules relating:
to such checks. Story on Promissory Notes, § 480 ; Willetts
V. Phoenix Bank, 2 Duer. 121 ; Mechanics' Bank v. Stratton, 3
Keyes, 365 ; Morse on Banking, 239. So strictly is the
bank's risk of paying checks to order enforced, that it was
held, in Graves v. American Exchange Bank, 17 N. Y. 205,
that payment to a person of precisely the same name or initials
did not relieve the bank from liability. To this decision, how-
ever, Roosevelt, J., dissented. Acceptance and payment, or
either, concludes the drawees, as against the payees, only as to
the genuineness of the drawer's signature. Canal Bank v.
Bank of Albany, i Hill, 287. "If anywhere in the chain of
orders or endorsements there is a forgery, the bank may recover
back, even though a considerable time has elapsed since pay-
ment ; provided that it acts with due promptitude and dispatch
so soon as the discovery is made." Morse on Banking, 309.
A mere clerical error in a check may be disregarded. Id.
293-294. A check was drawn to Cook ; Barnes endorsed Cook's
name without his authority, and received the money; the
bank deducted the check from the drawer's account, and set-
tled with him on that basis. Held, that Cook could recover
the amount of the check from the bank. The conduct of the
bank was an acceptance, and bound it as a certified check
would. Seventh National Bank v. Cook, 73 Pa. St. 483. A
bank is not bound to know the handwriting or the genuine-
ness of the filling up of a check drawn upon and paid by it.
It is legally concluded only as to the signature of the drawer
and its own certification. National, &c.. Bank v. National, &c.,.
Bank, 55 N. Y. 211. Where, therefore, a bank has paid by
mistake to a bona fide holder a certified check, which, after cer-
tification, had been fraudulently altered by raising the amount,
it can recover back the sum thus paid, unless such holder has
suffered loss in consequence of the mistake. Id. And the sum,
as written will control the sum as expressed in figures. The
figures in the margin are only an index for convenience of
Sec. I.] WORK AND LABOR. 509
his account, and that he has no funds, the banker can
not recover the money from the party who presented
the cheque ; ( z ) but, if the cheque was not drawn on
the banker, and the latter does not pay the cheque as
a banker honoring the draft of his customer, but in the
same way as if he were giving change for a bank note
all parties believing the cheque to be genuine, he can
recover back the money he has paid, if it turns out to
be forged and worthless. (/^) '
(i) Chambers v. Miller, 13 C. B., (i) Woodland v. Fear, 7 Ell. & Bl.
N. S. 125 ; 32 L. J., C. P. 30. 522.
reference, and are no part of the bill. So held in Smith v.
Smith, 1 R. I. 398, which goes to the further extent, in a case
where the figures were altered by the holder to conform to the
sum as expressed in the writing, of declaring that not only
did not such alteration vitiate the bill, but that it was not com-
petent to show that the bill was in fact negotiated for the
amount as expressed by the figures, instead of that expressed
by the writing.
' See last note. A bank, by certifying a check in the usual
form, simply certifies to the genuineness of the signature of
the drawer, and that he has funds sufficient to meet it, and
engages that those funds will not be withdrawn from the bank
by him ; it does not warrant the genuineness of the body of
the check as to the payee or amount. Marine, &c. Bank v.
National, &c. Bank, 59 N. Y. 67. Accordingly /le/d, where
plaintiff certified a check which had been altered, by changing
the date, name of payee, and raising the amount, and subse-
quently paid the same to defendant, that the amount could be
recovered back as for money paid by mistake. Id. Where
money is paid on a " raised " check by mistake, neither party
being in fault, the general rule is that it may be recovered
back as paid without consideration. Espy v. Bank of Cincin-
nati, 18 Wall. 604. Where a party to whom such a check is
offered sends it to the bank on which it is drawn, for inform-
ation, the law presumes that the bank has knowledge of the
drawer's signature and of the state of his account, and it is
responsible for what may be replied on these points, and unless
there is something in the terms in which information is asked
that points the attention of the bank officer beyond these
two matters, his verbal response that the check is " good " or
5IO LAW OF CONTRACT. [Bk. II. Ch. III.
829. Payment of cheqties at branch banks. — The
different branch banks of a banking company are, as
regards their separate customers, separate companies,
so that a customer who keeps an account with one
branch has no right to draw cheques upon, and have
them cashed by, another branch. They are also sepa-
rate and distinct for many other purposes. (/) But,
where a customer had an account with two branches
of a bank, it was held that in the absence of any
special agreement with their customer the bank had
a right to consider the two accounts as one, and to
refuse the customer's cheque when, on adding the two
accounts together, the balance was against him. {rti) '
830. Crossed cheques. — By the 21 & 22 Vict. c. 79,
it is enacted (s. i), that whenever a cheque or draft on
any banker, payable to bearer or to order on demand,
shall be issued crossed with the name of a banker, or
with two transverse lines with the words " and com-
pany," or any abbreviation thereof, such crossing shall
be deemed a material part of the cheque or draft, and,
except as thereafter mentioned, shall not be obliterated,
or added to, or altered, by any person whomsoever
after the issuing thereof; and the banker upon whom
such cheque or draft shall be drawn shall not pay such
cheque or draft to any other than the banker with
(/) Woodland v. Fear, 7 Ell. & Bl. (m) Garnett v. M'Kewan, L. R., 8
521 ; 25 L. J., Q. B. 202. Ex. 10 ; 42 L. J., Ex. i.
"all right," will be limited to them, and will not extend the
genuineness of the filling-in of the check as to payee or
amount. Id.
' The establishment of branch banks is discouraged in the
United States, and must be authorized by the legislature.
City Bank of Columbus v. Beach, i Blatchf C. C. 425; Bank
of Augusta V. Earle, 13 Pet. 519; People v. Oakland, &c.. Bank,
I Dougl. 284; Tombigbee R. R. Co. v. Kneeland, 4 How. (U.
S.) 16.
Sec. I.] WORK AND LABOR. 511
whose name such cheque or draft shall be so crossed,,
or, if the same be crossed as aforesaid without a bank-
er's name, to any other than a banker. By sect. 2,.
whenever any such cheque or draft shall have been
issued uncrossed, or shall be crossed with the words
•' and company," or any abbreviation thereof, and with-
out the name of any banker, any lawful holder of such
cheque or draft while the same remains so uncrossed,
or crossed with the words "and company," or any
abbreviation thereof, without the name of any banker,,
may cross the same with the name of a banker ; and,
whenever any such cheque or draft shall be uncrossed,,
any such lawful holder may cross the same with the
words " and company, " or any abbreviation thereof,
with or without the name of a banker ; and any such
crossing shall be deemed a material part of the cheque
or draft, and shall not be obliterated, or added to, or
altered by any person whomsoever after the making-
thereof; and the banker upon whom such cheque or
draft shall be drawn shall not pay such cheque or draft
to any other than the banker with whose name such
check or draft shall be so crossed. But it is provided
(sect. 4), that no banker paying a cheque or draft
which does not, at the time when it is presented for
payment, plainly appear to be, or to have been, crossed,
or to have been obliterated, added to, or altered, shall
be in any way responsible, or incur any liability, nor
shall such payment be questioned by reason of such
cheque having been so crossed, or having been so
obliterated, added to, or altered, and of his having
paid the same to a person other than a banker, or other
than a banker with whose name such cheque or draft
shall have been so crossed, unless such .banker shall
have acted mali fide, or been guilty of negligence in
512 LAW OF CONTRACT. [Bk. II. Ch. III.
so paying such cheque, (n) By sect. 5, in the con-
struction of the Act, the word " banker " shall include
any person or persons, or corporation, or joint-stock
company, acting as a banker or bankers. ^
(k) See Simmons v. Taylor (4 C. B., Vict. c. 25, which differs in its pro-
N. S. 463 ; 27 L. J., C. P. 248), which, visions from the 21 & 22 Vict. t. 7.3.
however, was decided on the 19 & 20
' There is no custom or usage in the United States,
sufficiently old or universal to be regarded as a legal usage.
■" Supposing the direction to be properly given, however," says
Morse on Banking, 333, "the collecting and the paying
bank must both respect it. . . . It would amount to an
express designation by the drawer of the manner in which
alone he authorized payment to be demanded or made, and
assuredly he could be released from no liability or obligation
by any circumstances naturally occurring in the ordinary
process of carrying out his own bidding. There seems to be
no authority for supposing that anything short of this un-
mistakable action on the part of the drawer would be held to
operate as a waiver by him of his customary privileges. . . .
Of late the germ of a similar custom has begun to manifest
itself. Occasionally checks have stamped or written upon
them some form of words which is intended to secure their
payment exclusively through the clearing house. No especial
form has as yet been generally accepted, and the legal effect
of none of those in use has ever been passed upon. It is
safe to say, however, that there is no question but that the
drawer could embody in his order a direction to his bank to
pay only upon presentation of the instrument in the usual
course through the clearing house, and that such a direction
would be valid and as binding upon the bank as a direction
to pay only to the order of a particular person. Probably
the drawer of the check is the only person who could legally
impose this duty upon the drawee bank, for he is the only
person who has a right to give to the bank any orders in the
premises. Though, if the check be payable to the order of A
B, it is barely possible that the privilege of including this
matter in his order when indorsing over might be accorded
to A B also. In all cases it may be laid down that the words
used should be intelligible, which is certainly not the case
with many of the forms hitherto adopted. The mere crossing
with the name of the banker is a species of mark which derives
Sec. I.] WORK AND LABOR. 513
831. Lzen of bankers. — Bankers have a lien upon
all the securities of their customers in their hands for
advances made by them to their customers in the ordi-
nary course of business, unless such securities have
been received under some special arrangement incon-
sistent with the exercise of the right, {0) or for some
special purpose. (/?) *
832. Damages for non-payment of cheques by
iankers. — If a banker refuses to pay a cheque drawn
upon him by a trader who keeps an account with him,
and who has sufficient assets in the hands of the
banker to meet the cheque at the time it is presented
for payment, such trader is entitled, as we have seen,
to recover substantial damages without proof of any
actual damage, since the dishonoring of cheques is
likely to be very injurious to the credit of persons in
trade. ( q) '
833. Of a m.andate or gratuitous commission.— \i
(p) Jones V. Peppercorn, 28 L. J., (/) Brandao v. Barnett, 12 CI. &
Ch. 158. Meadows, In re. 28 L. J., Fin. 787. Wylde v. Radford, 33 L. J.,
Ch. 891. City Bank, Ei. parte. 3 Law Ch. 51.
T. R. N. S. 792. Ex parte National {q) Rolin v. Steward, 14 C. B. 595 ;
Bank, L. R., 14 Eq. 507. In re Euro- 23 L. J., C. P. 148.
pean Bank, L. R., 8 Ch. 41.
its meaning through the interpretation of usage. But if
•words which assume to have a signification are used, they
must succeed in expressing with some degree of clearness,
that meaning which is desired, or they will not be construed
to import it."
' The effect of crossing a check is, practically, to make it
payable through the clearing-house. Marsh v. Oneida Bank,
34 Barb. 298 ; Beckwith v. Union Bank, 4 Sandf. 604 ; F"ord v.
Thornton, 3 Leigh. 695 ; United States v. Malcalester, 9 Burr.
475 ; McDowell v. Bank of Wilmington, i Harring, 369 ; State
Bank v. Armstrong, 4 Dev. 519; Commercial Bank of Albany
V. Hughes, 17 Wend. 94; Dawson v. Real Estate Bank, 5 Pike,
382, but none are special deposits. Morse on Banking, 35.
" Matter of Brown, 2 Story, 512.
II.— 33
514 LAW OF CONTRACT. [Bk. II. Cii. III.
the bailee or depositary expressly or impliedly under-
takes for something more than the mere passive
custody of the thing bailed, the bailment advances
from a mere naked deposit or simple bailment to a
mandate, and the bailee becomes clothed with the
duties and implied engagements of a mandatary, in
addition to those of a mere depositary for keeping.
If money is bailed to a man upon the faith of a prom-
ise made by him to take and deliver it to a banker, or
to invest it in the public funds, or lay it out in the
purchase of lands, this is an express mandate. An
implied mandate arises when the bailee takes charge
of living animals or perishable chattels, for whose pre-
servation and safe keeping a certain amount of work
and labor, attention and skill, is necessarily requisite^
and which the bailee, by accepting the trust and duty^
impliedly undertakes to furnish. It is essential to the
existence of a mandate that it be gratuitous ; for, if
anything is to be paid for what is expressly or impliedly
agreed to be done, the contract immediately becomes
a contract of letting and hiring of labor and skill to be
performed and exercised upon the thing bailed, (r)
The term mandatum or mandate was applied in.
the Roman law to all gratuitous agencies and procura-
tions, whether made concerning land or realty or chat-
tels, and whether accompanied or unaccompanied by
any transfer or delivery of property, (j) In the com-
mon law, the term is generally restricted to express or
implied promises made on bailments of chattels that
something shall be done with them gratuitously for
the benefit of the bailor. The bailor who makes the
request and gives the directions as to the disposal of the
(r) In summa sciendum est, manda- tuta, incipit locatio et conductio essev
turn nisi gratuitum sit in aliam formam Instit. lib. 3, tit. 27, § 13.
negotii cadere ; nam, mercede consti- (s) Instit. lib. 3, tit. 27.
Sec. I.] WORK AND LABOR. 515
chattel is called the mandator; and the bailee who
receives the chattel upon the terms expressed or im-
plied, and assents to the directions, and undertakes the
trust to be performed, is called the mandatary. So
long as there has been no actual bailment by the de-
livery and acceptance of the chattel, there is no binding
contract of mandate. A promise to do something with
a thing that has never been put into the actual or con-
structive possession of the promisor is a mere nudum
pactum, which may be revoked ; but when the bail-
ment has been made upon the faith of the promise, and
the promisor has obtained possession of the chattel in
execution of the mandate, the contract is complete,
and he is bound faithfully to discharge the trust he
has undertaken.*
834. Non-feazance and mis-feazance. — It has been
said, in reference to gratuitous undertakings to perform
work, that, if the promisor does not proceed on the
' Being liable for gross negligence only, but see Thorne
V. Deas, 4 Johns. 84 ; McGee v. Bast, 6 J. J. Marsh. 455 ; Fos-
ter v. Essex Bank, 17 Mass. 479; Tracy v. Wood, 3 Mason,
132; McNabb v. Lockhart, 18 Ga. 495; Skelley v. Kuhn, 17
111. 170; Fulton V. Alexander, 21 Tex. 148; Kemp v. Farlow,
5 Ind. 462 ; Lampley v. Scott, 24 Miss. 528 ; Stover v. Gowen,
18 Me. 174; and see ante, note 2, p. 99, § 56, vol. i ; Anderson
V. Foresman, Wright, 598; Connor v. Winton, 8 Ind. 315;
Tourdan v. Reed, i Iowa, 135 ; McLean v. Rutherford, 8 Mo.
log ; Stanton v. Bell, 2 Hawks, 145 ; Sodowsky v.
McFarland, 3 Dana, 205 ; Tompkins v. Saltmarsh, 14
Sergt. & R. 275 ; Bland v. Wormuck, 2 Murph. 373 ;
Beardsley v. Richardson, 16 Wend. 25. Under the Louisiana
Civil Code, which has modified the Roman law, it is not of the
essence of mandate that it be gratuitous. The agent's right
to compensation may be inferred from the relations of the par-
ties, or the nature of the services. Waterman v. Gibson, 5
La. Ann. 672; Succession of Fowler, 7 Id. 207; and see La-
fourche Navigation Co. v. Collins, 12 Id. 119; Dunbar v.
Hughes, 6 Id. 466; Devalcourt v. Dillon, 12 Id. 672 ; Wilson
V. Wilson, 16 Id. 155.
5i6 LAW OF CONTRACT. [Bk. II. Ch. III.
work, no action will lie against him for the non-feaz-
ance ; but, " if he proceeds on the employment, he
makes himself liable for any misfeazance in the course
of that work." But when a man promises to perform
work upon, or to do something with, the chattel of
another, and the chattel is bailed to him for the pur-
pose expressed, his acceptance of the possession of the
chattel in execution of his engagement is an " entering
on the work and employment ;" and, if, after having
accepted such possession and taken the chattel away
with him, he neglects to do that which he promised
to perform, this neglect is a misfeazance, for which he
shall be responsible. (^) " A bare being trusted," ob-
serves Holt, C. J., "with another man's goods must be
taken to be a sufficient consideration, if the bailee once
enter upon the trust and take the goods into his pos-
session." (u) Where a sum of money was bailed to a
party upon the faith of an undertaking made by him
to cause the sum to be paid to the bailor or his order
at a distant place, it was held that the bailment of the
money was a sufficient consideration for the under-
taking, and that the mandatary was responsible for the
non-fulfillment of his engagement, (v) So, where cer-
tain boilers were delivered to a man upon the faith of
an undertaking made by him to weigh them gratui-
tously and return them to the bailor in as perfect and
complete condition as they were in at the time of the
making of the bailment, and the mandatary took the
boilers to pieces in order to weigh them, but refused
to put them together again, it was held that he was
responsible for his breach of contract, and must make
good the damage that had been sustained by the man-
(/) Holt, C. J., Coggs V. Bernard, C. P. 175 ; 13 C. B. 466.
2 Raym. 919, 920. Elsee v. Gatward, («) Coggs v. Bernard, 2 Raym. 912.
5 T. R. 149. Balfe v. West, 22 L. J., {v) Shillibeer v. Glynn, 2 M. & W.
143-
Sec. L] work AND LABOR. 517
dator. The mandatary may, indeed, revoke his prom-
ise and return the chattel, if he does it without delay,
and before his acceptance of the trust and omission to
fulfill it have occasioned loss or damage to the manda-
tor ; but he can not, if the revocation will place the
latter in a worse position than he was in at the time
the mandate was accepted and the promise made, law-
fully withdraw such promise, and refuse to execute the
trust. " Every man is at liberty," it is observed in the
Institutes, " to refuse a mandate ; but when once ac-
cepted and undertaken, it must be performed or re-
nounced as soon as possible, that the mandator may
transact the business himself or through another." {y)
If, therefore, a party undertakes to procure an insur-
ance for another, and proceeds to carry his undertak-
ing into effect by getting a policy underwritten, but
deals so negligently with the policy that the benefit
of the insurance is totally lost to the party for whom
he promised to effect it, he is liable to an action ; {£)
but if, after having made the promise, he simply neg-
lects to get the insurance effected, he does not incur
any legal liability for the default, {a) '
835. Bailment of money and chattels to be carried
gratuito2isly — Loss or damage from negligence. — A
bailee who has undertaken gratuitously to convey
money or goods from one place to another, and has
entered upon the trust by accepting possession of the
money or the goods, is bound to exercise the same
(jc) Inst. lib. 3, tit. 27, § 11. (a) Thome v. Deas, 4 Johns. (U. S.)
(2) Wallace v. Tellfair, cited Wil- 84.
kinson v. Coverdale, I Esp. 76.
' The distinction made in the text between liability for
non-feazance and misfeazance, is treated by Parsons on Con-
tracts as the liability of the bailee in mandatum, ex contractu
and ex delictu (vol. 2, p. loi), Salem Bank v. Gloucester
Bank, 67 Mass. i.
5i8 LAW OF CONTRACT. [Bk. 11. Ch. III.
care and diligence in the execution of the task as a
person of ordinary care and prudence might be ex-
pected to exercise in the conveyance of his own pro-
perty. If by negligence and mismanagement in the
accomplishment of his undertaking the money or the
goods are lost or stolen, injured or spoiled, he will be
responsible for the loss. But he is not responsible for
the loss of the money, if he is forcibly robbed without
any default on his part. '
836. Bailments of chattels to be mended or repaired
gratuitously — Em^ployment of unskillful persons.— \{
a chattel is bailed to a workman or artificer in some
particular art, craft, or profession, upon the faith of an
undertaking made by the bailee to mend, repair, or
improve it gratuitously for the benefit of the manda-
tor, the mandatary must complete the work within a
reasonable period, and must be especially mindful that
the article is not injured in his hands during the per-
formance of the work through a want of that knowl-
edge and skill which every workman and artificer in
his particular art or craft is bound to possess.^ But, if
a person, known to be unskilled in the particular work
or employment he gratuitously undertakes, does the
work at the solicitation of a friend with such ability
as he possesses, he stands excused, although it is un-
skillfully done ; for it is the mandator's own folly to
trust him, and the party engages for no more than a
reasonable exertion of his capacity. Thus, where a
mandatary undertook to get some articles that had
' See Eddy v. Livingston, 35 Mo. 487 ; Graves v. Ticknor,
6 N. H. 537 ; Beardsley v. Richardson, 11 Wend. 25 ; Bland v.
Worraack, 2 Murph. 373; Delaware Bank v. Smith, i Edm. (N.
Y.) Sel. Gas. 351 ; Anderson v. Foresman, Wright, 593; Lloyd
V. Barden, 2 Strobh. 343; Jenkins v. Morton, i Sneed. 248;
Colyar v. Taylor, i Coldw. 372.
' Post, § 877, 878.
Sec. I.] WORK AND LABOR. 519
been bailed to him entered at the Custom House, and
gave by mistake a wrong description, but appeared to
have acted boni fide and to the best of his ability, it
was held that he was not responsible for a seizure of
the goods by the Custom-House officers. " Had the
situation or profession of the bailee," observes Lord
Loughborough, "been such as to imply skill, an omis-
sion of that skill would have been imputable to him
as gross negligence. If, in this case, a shipbroker or
.a clerk in the Custom House had undertaken to enter
Ihe goods, a wrong entry would in him be gross
negligence, because the situation and employment
necessarily imply a competent degree of knowledge
in making such entries." (<5)
837. In respect of the custody and safe keeping of
ihe chattel, the mandatary is clothed with the ordinary
liabilities and responsibilities of a depositary.
838. Bailment of money for investment. — -If
money is bailed to a man upon the faith of a promise
or assurance made by him to place it out at interest,
or to purchase an annuity with it for the benefit of
the bailor, the mandatary who accepts, the money and
■enters upon the execution of the trust impliedly
promises to be diligent and careful in the fulfillment
of his undertaking, and to exercise common and or-
dinar)^ care in the selection of a safe investment ; and,
if the money is lost by his miscarriage and neglect, an
.action will lie against him for the loss, (c) But the
mandatary is not responsible (if he does not exercise
any trade or profession denoting that he has peculiar
skill in money matters) for the exercise of more than
ordinary care and caution ; and he is not liable for the
{b) Shiells V. Blackbume, I H. Bl. (c) Coggs v. Bernard, 2 Raym. gio.
159. Moore v. Mourgue, 2 Cowp. Whitehead v. Greetham, 10 Moore,
479. • 194 ; 2 King. 464.
520 LAW OF CONTRACT. [Bk. II. Cn. IIL
failure of the investment, if he has used such skill and
knowledge as he possessed, and has acted with up-
rightness and honesty of purpose in the transaction of
the business confided to him. "The only duty that is
imposed upon him under such a retainer and employ-
ment is a duty to act faithfully and honestly, and not
to be guilty of any gross or corrupt neglect in the.
discharge of that which he undertakes to do." (</)
But an attorney, whose profession and employment
naturally lead him to have some knowledge of securi-
ties for money and pecuniary investments, is responsi-
ble for the exercise of a reasonable amount of profes-
sional knowledge and skill in the selection of a safe
investment, although he acts gratuitously. (^) His
office, profession, and employment imply skill and
invite confidence ; and an omission of that skill is
imputable to him as gross negligence. (/") ' If a sum
of money is entrusted to a man to be transmitted to
some distant part, or to be laid out by him in some
purchase or investment for the benefit of the manda-
tor, and with an express or implied authority or per-
mission to use the money himself until the purpose
for which it was bailed can be accomplished, and the
mandatary accordingly spends the money with the.
intention of replacing it when necessary with other
money, or pays it into his bankers to his own account,
and not to the separate account of the mandator, the
bailment of the money becomes a loan for use and
{d) Dartiiall v. Howard, 4 B. & C. 311. Craig v. Watson, 8 Beav. 427.
350, 351. Smith V. Pococke, 23 L. J., Ch. 545 ;.
{e) Donaldson v. Haldane, 7 CI. & 18 Jur. 478.
Fin. 762. Bourne v. Diggles, 2 Chitt. (/) Shiells v. Blackburne, supra.
' Tracy v. Wood, 3 Mason, 132; Ulmer v. Uimer, 2 Nott-
& McC. 489 ; P'oster v. Essex Bank, 17 Mass. 479.
Sec. I.] WORK AND LABOR. 52 r
consumption, and the bailee is clothed with the duties,
and liabilities and implied engagements of a borrower
by way of mutuum, in addition to those of a manda-
tary.' In these cases the money is payable, as we have
seen, absolutely and at all events ; and the bailee can
not excuse himself from the obligation to repay the
amount by showing a loss by robbery or from inevita-
ble accident.
839- Bailments of living animals — Negligent
management. — If the subject-matter of the bailment
consists of living animals, such as horses, oxen, cattle
or sheep, the mandatary is bound to furnish them
with suitable food and nourishment, and to give them
a proper and reasonable amount of exercise and fresh
air. If a man takes charge of cattle or sheep, and
afterwards takes no heed of them, but lets them stray
away on a common, and get drowned or lost, this is a
breach of trust, and he is responsible for the loss, (^g)
If he turns a horse, of which he has consented gratuit-
{g) Hil, Term, 2 Hen. 7, 9 b. Coggs v. Bernard, 2 Raym. 913.
' See ante, note i, p. 493. We have already considered the
peculiar liabilities of banks ; it is said, further, that where bills
and notes are deposited with a bank for collection, the bank is
an agent to collect, and not merely to transmit for collection,
and is liable for the neglect of any of its agents, however proper
its selection of such agents may have been. Allen v. Merchants'
Bank, 22 Wend. 215; Bank of Orleans v. Smith, 3 Hill, 560 ;
Montgomery Co. Bank v. Albany City Bank, 3 Seld. 459 ;
Van Wart v. Wooley, 3 B. & C. 439 ; Thomson v. Bank of
South Carolina, 3 Hill, 77 ; Mechanics' Bank v. Earp, 4 Rawle,
384 ; Taber v. Penett, 2 Gallison, 565 ; Fabens v. Mercantile
Bank, 23 Pick. 330; Dorchester & Milton Bank v. New
England Bank, i Cush. 177; Warren Bank v. Suffolk Bank,.
10 Cush. 583 ; East Haddam Bank v. Scovil, 12 Conn. 303;
Jackson v. Union Bank, 6 Har. & J. 146 ; Baldwin v. Bank ot
Louisiana, i La. Ann. 15; Bellemire v. Bank of U. S., 4
Whart. 105; Bank of Washington v. Neale, i Pet. 25.
522 LAW OF CONTRACT. [Bk. II. Ch. III.
ously to take charge, into a dangerous pasture after
dark, and the horse falls into a pit or well, or into the
shaft of a mine, this is a gross neglect and breach of
trust, and he shall be responsible for the loss. (/^) If
he places a horse in a pasture surrounded by rotten
and very defective fences, and the horse, by reason
thereof, strays away and is lost, this also is a breach of
trust, for which he shall be answerable; but, if the
horse was a wild, ungovernable animal, and got away
through its own impatience of restraint as much as by
reason of the defective fences, then the bailee will not
be responsible for the loss, (z) What is, and what is
not, gross negligence amounting to a breach of trust
is often a mixed question of law and fact, but more
generally a pure question of fact. It must be judged
of by the actual state of society, the general usages of
life, and the dangers peculiar to the times, as well as
by the apparent nature and value of the subject-matter
of the bailment and the degree of care it seems to re-
quire, (^k) Where a man proved to be conversant
with, and skilled in, horses was commissioned to ride
a horse to a neighboring village, for the purpose of
showing it for sale, and on his arrival he rode the
horse into the race-ground, which was wet and slip-
pery, and the horse slipped and fell several times,
and at last in faUing broke one of its knees, it was
held that the bailee had been guilty of a culpable ne-
glect and breach of trust, and was answerable for the
damage. (/) If a farrier undertakes to treat a living
animal for some disorder gratuitously, he is neverthe-
less bound to exercise the ordinary knowledge and
skill of his art or profession in the course of his treat-
{h) Rooth V. Wilson, i B. &Ald.6i, {k) Story on Bailments, 9, 10.
*2. (/) Wilson V. Brett, 11 M. & W. 113.
U) Domat. (Depot), a. 3, 6.
Sec. L] work AND LABOR, 523
ment, and will be responsible for injuries resulting
from his neglect to do so. (m) '
840. Bailments of perishable commodihes. —If
the subject-matter of the bailment is a perishable com-
modity, the bailee is bound to bestow such an amount
of labor and vigilance for its preservation as would
ordinarily be bestowed by a prudent owner. If the
mandatary of a valuable painting lets it lie on the
damp ground, or places it in a kitchen, or against a
damp wall in a room where there is no fire, when he
might have placed it in a dry situation and in perfect
security, this is an act of gross negligence, {n)
84 1 . Of the use of the subject-matter of the man-
date.— A mandatary has no right to make use of the
(?«) Shiells V. Blackburne, i H. Bl. (w) Mytton v. Cock, 2 Str. logg.
162.
' The gratuitous bailee is liable only for such negligence
as he is guilty of in spite of the better skill or knowledge
which he either actually had or undertook to have. Hano-
ver on the Law of Horses, p. 231. " In cases of mere gratu-
itous loans, the use is to be deemed strictly a personal favor,
and confined to the borrower, unless a more extensive use can
be implied from other circumstances, such as, for instances,
lending a horse on trial. In general, it may be said, in the
absence of all controlling circumstances, that the use intended
by the parties is the natural and ordinary use for which the
thing is adapted;" Id. 232; Howard v. Babcock, 21 111.
259; Bennet v. O'Brien, 37 Id. 250; Phillips v. Condon, 14
Id. 84; Scranton v. Baxter, 4 Sandf. 8; Wood v. McClure, 7
Ind. 155; Carpenter V. Branch, 13 Vt. 161; Eastman v. San-
born, 3 Allen, 594 ; and the animal must be used as stipulated ;
if loaned to the master to ride, his servant should not ride
him ; Scranton v. Baxter, 4 Sandf. 8 ; if loaned to be driven to
Boston, it should not be driven in an opposite direction, if
loaned for a week, it must not be kept a month, &c. ; Wheels-
lock V. Wheelright, 5 Mass. 104 ; Booth v. Terrell, 16 Ga.
25. But if the animal be borrowed, to be redelivered on re-
quest, and it dies before the request, the bailee is not liable ;
Hanover on the Law of Horses, p. 223 ; nor where it dies
on his hands from a disease ; Id. See Rey v. Toney, 24 Mo.
600.
524 LAW OF CONTRACT. [Bk. II. Ch. IIL
subject-matter of the bailment for his own gain and
advantage ; if he does so, and it is lost, or in any way
injured or deteriorated in value by reason of the user,
he must, in common with a depositary, make good
the loss. The moderate exercise of a horse, or a
hound, or a living animal, is necessary for its health
and safe preservation, and is, consequently, a user for
the benefit of the owner. A mandatary who has
charge of a milch-cow or of sheep is bound to milk
the cow and shear the sheep, and must account for the
produce to the mandator ; if he sells the milk or the
wool, and refuses to pay over the money, this is a con-
version of it to his own use, and a breach of trust, for
which he shall be held responsible. If the bailment
is made under circumstances leading to the conclu-
sion that the bailee was to have the use of the thing
in return for his labor and pains in the keeping of it,
as if he were to have the milk of the cow, the wool of
the sheep, or the young of animals bearing increase,
for his own benefit and advantage, then the bailment
would amount to a contract of borrowing and lend-
ing, and not to a mandate.
842. Theft and negligence by servants of the
mandatary. — If the mandatary has given express di-
rections to his servant to take into his custody money,
or chattels, or securities, and do with them that which
he himself has undertaken to perform, the negligence
of the servant in carrying into execution the orders of
the master is the negligence of the master, and the
latter will be responsible accordingly ; but, if the
servant deals with the property of his own will, and
without the warrant or authority of the master, the
latter is not responsible, unless there be a default in
him in knowingly employing a drunken, negligent, or
dishonest servant.
Sec. I.] WORK AND LABOR. 525
843. Payment of expenses. — By the Roman law the
mandator was bound to re-imburse the mandatary all
expenses that he had necessarily and unavoidably in-
curred in the safe keeping and preservation of a chattel
entrusted to his care and management ; for it was con-
sidered that a gratuitous commission executed for the
behoof of the mandator ought not to be made a sub-
ject of expense and charge to the mandatary. {0) In
the common law, if the mandatary must necessarily
incur expense in the execution of the commission
entrusted to him, he is clothed with an implied author-
ity from the mandator to defray such expenses. (/)
The French law accords to the mandatary a right to
detain the chattel until he has received payment of
the expenses he has incurred in the execution of the
trust concerning it. In our own law no such right
exists ; and no lien is permitted to be claimed by one
man upon the property of another for the expenses
attendant upon the execution of a gratuitous com-
mission. '
ip) Dig. lib. 16, tit. 3, 1. 12, § 23. (J) Story's Bailments, § 197.
Domat. lib. I, tit. 15, s. 2, § 6.
' A contract of mandate is terminated either: i. By the
dsath of the mandatory, if the mandate be wholly unexecuted ;
for, if partially executed, his personal representatives, under
certain circumstances, will be bound to complete it. In the
•case of joint mandatories, if the mandate be of such a
nature as to require the joint services of all, the death
of one dissolves it, but not otherwise. 2. By the death of the
mandator, if the mandate be wholly unexecuted ; since, if par-
tially executed, it may be an injury to the mandatory to have
it cease, in which case the mandator's representatives may be
bound to complete it. 3. By incapacity of the parties, such
as marriage (in the case of a female), insanity, or the like.
4. By a notice of renunciation of his agreement by the manda-
tory to the mandator, before the execution of the mandate has
begun. 5. By a revocation by the mandator, express or
implied, before execution begun. 6. Bv the mandator's bank-
526 LAW OF CONTRACT. [Bk. II. Ch. III.
845. Task-work. — A contract for the letting out
and hiring of "work by the great," or, as it is more
commonly called, job or task-work, is a contract for the
doing of work in the lump or the job, for a stipulated
or implied remuneration, such as a contract to build a
house, or dig a well, or make a canal, or to construct
a ship or a carriage out of materials furnished by the
employer, or to sell goods for a commission on the
sale. A contract of this description was styled by the
civilians locatio operis faciendi, or the letting out of
work to be done. The employer was called locator
operis, or the letter-out of the work ; and the workman
who undertook the task, and bestowed his labor and
skill in its completion, for a reward to be paid to him,
was called conductor operis, or the hirer of the work.
The terms letter and hirer, however, are applicable, in
different senses, to each of the contracting parties.
Thus the locator operis, or letter-out of the work, is
also conductor operarum, or hirer of the labor and
services ; and the conductor operis, or hirer of the
work, is also locator operarum, or the letter-out of the
labor and services. (^) When chattels are delivered
to a warehouseman or storekeeper to be taken care of
or kept for hire, the contract is a contract for the let-
ting and hiring of care and custody, termed locatio
operis et custodiae.
845- Of the distinction between contracts for work
{q) Sed dicendum est in hac specie ducere, idem dicitur locare aliquid fa-
locationis diverso respectu eundem et ciendum ; ut conductor operis idem
locatorem et conductorem videri. Nam sit operce locator, et locator operis
qui operam locare dicitur, ille idem idem operae conductor. Vin. Com,
dicitur conducere opus faciendum ; et lib. 3, tit. 25, p, 758. Poth. Louage,
ex contrario qui operam dicitur con- No. 392.
ruptcy. 7. By the mandatary's bankruptcy, in case the execu-
tion of the mandate involve the payment of money on his part
See Story on Contracts, § 857.
Sec. I.J WORK AND LABOR. 527
and services and contracts of sale. — There is a great
analogy, as before mentioned, between contracts for
working up materials and the contract of sale ; for, if
the materials for the work, as well as the work itself,
have been furnished by the workman, then the con-
tract is in general a contract of sale ; while, on the
other hand, if the employer has furnished the mate-
rials, and the undertaker of the work contributes his
labor merely, the contract is a contract of letting and
hiring of labor. If the groundwork of the labor or the
principal material entering into its composition has
been provided by the employer, the contract is a con-
tract for- the letting and hiring of work, although the
undertaker of the work may have furnished the ac-
cessorial materials necessary for its completion. If a
man, for instance, sends his own cloth to a tailor to be
made into a coat, and the tailor furnishes the buttons,
the thread, and the trimmings, the contract is never-
theless a letting and hiring of work, and not a contract
of buying and selling, (r) In the case of works of art,,
the work and skill of the workman constitute, in
general, the essence of the contract, the materials
being merely accessorial ; and, whenever the skill and
labor are of the highest description, and the materials
of small comparative value, the contract is a contract
for work, labor, and materials, and not a contract of
sale, (i-) A contract, for example, for the printing of
a book is a contract for the letting and hiring of work
and services, although the printer supplies both the
paper and the ink, and not a contract of sale. {£) But
a contract by a dentist to make a set of artificial teeth.
(r) Pothier, Louage d'ouvrage, No. Crompton, J., and Blackburn, J., in
3g4. Lee v. Griffin, I B. L. S. 278.
{s) See, however, the remarks of (<) Clay v. Yates, i H. & N. 73 ; 2S
L. J., Ex. 237.
528 LAW OF CONTRACT. [Bk. II. Ch. III.
to fit the mouth of the employer, is a contract for the
sale of a chattel and not a contract for work and labor.
(ti) When a contract has been entered into for the
building of a house on the land of the employer, and
the builder furnishes the timber, stone, and materials
for the construction of the building, the contract is
not a contract of sale, although it appears as if the
builder sold the materials, but a contract of letting
and hiring, because the land which is the principal
material for the labor, and to which the building is
merely an accessory, has been provided by the em-
ployer, (^z) If, indeed, the builder is, by the contract,
to provide the ground as well as the accessorial ma-
terials for the house, then the contract is a contract of
purchase and sale.
846. Executory and executed contracts for work.
— Contracts for work and services, like all other con-
tracts of letting and hiring, are perfected by the bare
consent of the parties, so that as soon as the mutual
promises are exchanged, the right to the benefit of
work passes to the workman or hirer of the job, and
the right to the labor to the employer or letter of the
work. («) If a mutual misunderstanding has arisen
without any fault or want of good faith on either side,
as if the workman has mistaken the meaning of the
employer, and made one thing when another was
ordered, the contract is void, as no valid and effectual
■consent to bind the parties has ever been given. If
there is no mutual engagement between the parties
for the one to do the work, and the other to provide
it and pay for its execution, there is, as we have before
seen, no binding contract at all, unless the engage-
(«) Lee V. Griffin, supra. {a) Lara v. Gen. Apoth. Co., 25
(z) Dig. lib, 19, tit. 2, lex. 22, § 2. L. J., Ex. 225. Anie.
Sec. I.] WORK AND LABOR. 529
ment is under seal. The workman in such a case is
not bound to enter upon his task; nor is the other
party bound to provide the work and pay the hire.
But, when the work has been actually done, the per-
son at whose request and by whose orders it was
executed must pay for it, although the workman was
•originally under no legal obligation to do the work,
nor the employer to employ him. The law generally
implies a promise from the. employer to pay a reason-
able compensation for services rendered, unless it ap-
pears that the services were to be gratuitous, or that
the workman relied for payment upon a particular
fund, and not upon the personal responsibility of the
employer. (<5) When a person has, by fraud, induced
another to perform a service for him, intending not to
pay for the performance of it, still there is a liability
implied by the law, which may be enforced in the
same way as an obligation arising out of an express
■contract, (c)
847. Work and services in preserving a lost
chattel, and restoring it to the owner. — Doubts have
at different times been expressed as to whether a per-
son who has voluntarily bestowed his own labor
and services, and incurred expense, in the recovery
and restoration of a lost chattel to the owner, is en-
titled to an action to recover compensation and re-
muneration therefor. ( of ) In the case of the re-
covery and restoration of shipwrecked property he is
clearly entitled to such a compensation ; and there
seems to be no valid reason for confining this right
of reward to cases of salvage from shipwreck.
(b) Ante. Poucher v. Norman, 3 Ex. 198.
B. & C. 744. Parke, B., Higgins v. (<r) Rumsey v. N. E. Ry. Co., 14 C.
Hopkins, 3 Exch. 166. Hingeston v. B. N. S. 641 ; 32 L. J., C. P. 244.
Kelly, 18 L. J., Ex. 360. Alexander (</) Lampleigh v. Braithwaite, r
V. Worman, 6 H. & N. 100 ; 30 L J., Smith's L. C. 5th ed., 135.
n.— 34
530 LAW OF CONTRACT. [Bk. II. Ci-i. IIL
" In the French law," observes Domat, " he who
receives back a thing which he had lost is obliged,
on his part, to reimburse the finder the expenses
incurred by him in the preservation and restoration
of the thing lost, such as the expense of feeding a
strayed beast which required nourishment, or the car-
riage and conveyance of the thing lost to some place
of safety, or the expense of advertisements, or the
publication of printed notices, in order to give infor-
mation to the owner." (^) If the owner is present and
cognizant of the exertions made to recover his lost
property, it will be a question of fact whether there
was or was not an implied request on his part for the
performance of the service actually rendered, and a
tacit understanding betw^een the parties that the
person doing the work should be rewarded for his
pains.
848, Salvage services. — In order to encourage
persons to lend their aid ^nd assistance for the pro-
tection and preservation of property and life from
shipv\?reck, the law gives to the parties by whose
labor and assistance the property or lives have been
saved from impending peril, a claim to a fair and rea-
sonable compensation for their services, and a right to
retain the property until they have received it. (/)
This compensation is called salvage, a term derived
from the French word salver, or sauver, to save. The
amount of salvage payable in the case of the re-
covery of property lost by shipwreck or aban-
doned at sea (^g) depends upon the value of the
thing saved, the degree of danger of loss, and the
[e) Domat, liv. 2, tit. g, s. 2, No. 2. 9. 25 & 26 Vict. c. 63, s. 59. The
Dig. lib. 47, tit. 2, lex 43, § 8. Fusilier, 2 Moo. P. C. N. S. 51 ; 34
(/) Hartrord v. Jones, i Raym. L. J., Adm. 25. The Phantom, L. R.
393; Salk. 654, -pi. 2. 17 & 18 Vict. I Adm. 58.
c 104, s. 458-470. 24 Vict. c. 10, s. {^) The Genessee, 12 Jur. 401.
Sec. I.] WORK AND LABOR. 531
amount of labor and skill employed in saving it.
Some maritime codes have proportioned the amount
to the value of the thing saved, without reference to
the surrounding circumstances of the case ; but this is
obviously unjust ; and our own law, therefore, merely
directs as a general principle that a fair and reasonable
compensation shall be made. (A). If the salvors are
guilty of misconduct, and occasion injury to the ship
and cargo by rescuing the vessel from one danger only
'o run her into another, the claim for salvage will be
lost, (z) But if success is finally obtained, no mere
mistake or error of judgment in the manner of procur-
ing it, and no misconduct short of that which is willful
and may be considered criminal on the part of the
salvors, will work an entire forfeiture of the salvage.
Mistake or misconduct, not willful, but diminishing the
value of the property salved, or occasioning expense to
the owners, will, however, be considered in estimating
the amount of compensation to be awarded. (/^) There
can be no claim to salvage where the efforts to salve
have not been attended with success. (/) ' A man can
{k) The Otto Hermann, 33 L. J., (/5) The Atlas, 15 Moo. P. C. 329.
Adm. i8g, The Thomas Fielden, 32 (/) The Edward Hawkins, 31 L. J.,
L. J., Adm. 61. Adm. 46. The Atlas, 31 L. J., Adm.
(i) The Do-sseitei, 10 Jur. 855. 210.
' The three elements necessary to obtain salvage are :
I. Marine peril. 2. Voluntary service. 3. Success. 11 Par-
sons on Contracts, 315. The peril or danger must be extra-
ordinary, or must have appeared so to the exercise of a sound
discretion. The Charlotte, 3 W. Rob. 71. If a ship-master,
with his crevir, might have saved the ship, interference of salvors
will be presumed to be unnecessary ; Hand v. The Elvira, Gil-
pin, 67 ; the salvors may, however, introduce proof that the
master would not have saved it. It would be equally a salvage
service whether it were rendered at sea or upon property
wrecked at sea but then on the land. Stevens v. Bales of
Cotton, Bee. 170; and in case of a service by landsmen ; Id.
The salvage service most liberally rewarded is that of saving
532 LAIV OF CONTRACT. [Bk. II. Ch. III.
not entitle himself to salvage in respect of services
which have been rendered contrary to the express
wishes and directions of the owner, and has no right
to interfere with persons employed by the owner to
save the property, (m) And if one set of men have
taken possession of a vessel abandoned at sea, and are
endeavoring to preserve it, another set have no right
to molest them and become participators in the salvage,
unless it appears that the first would not have been
able to effect the purpose without the aid of the others.
(n) A passenger is not entitled to claim salvage in
respect of that ordinary assistance to a vessel in distress
which it is the interest of all persons on board to give
for the purpose of avoiding the common danger. (<?)
(m) Sutton V. Buck, 2 Taunt. 312. (o) The Branston, 2 Hag. 3. The
(k) Abbott, 495. Vrede, 1 Lush. 322 ; 30 L. J., Adm.
2og.
" derelict " property. To constitute derelict, there must be a
vessel or cargo abandoned and deserted by the master and
crew, with no purpose of returning to it, and no hope of sav-
ing or recovering it themselves. The Minerva, i Spinks,
Adm. 271 ; The Watt, 2 W. Rob. 70; Rowe v. Brig , i
Mason, 372; The Amethyst, Davies, 20; Mason v. Ship Blai-
reau, 2 Cranch, 240. If the master and crew remain onboard,
although they give up the possession and control to the salvors,
it is not derelict; 2 Parsons on Contracts, 315 ; though, if the
master and crew have left the vessel, a mere intention to send
assistance to her would not prevent the ship from being dere-
lict; Id. ; and if the vessel be deserted, it will be presumed to
be derelict, unless an intention to return be proved on the
part of those who left her, or some of them ; Id. ; The Bark
Island City, i Black. 121; The Bee, Ware, 332; Tyson v.
Prior, 1 Gallis, 133 ; Clarke v. Brig Dodge Healy, 4 Wash.
C. C. 651; The Schooner Emulous, i Sumner, 207; The John
Perkins, 21 Law Rep. 94. A ship or a cargo sunk is consid-
ered derelict ; but not if the owner had not lost the hope and
purpose of recovering his property, and had not ceased his
efforts for that purpose. So are goods floating from the vessel
out to sea; not, however, if the goods are on the water, and
the master is endeavoring to save them. 2 Parsons on Con-
tracts, 315.
Sec. I.] WORK AND LABOR. 533
But for extraordinary services rendered and dangers
incurred for the preservation of the vessel, the passen-
ger is as much entitled to salvage as a mere stranger.
(/) And salvage service may be performed, even by
the seamen of the ship salved, when an abandonment
of her has put an end to their original contract, (g)
Where salvage services are performed by one ship to
another, both ships belonging to the same owner, the
master and crew of the ship which has performed the
salvage services are entitled to salvage remuneration,
provided the services performed are not within the
contract which they originally entered into with the
owners, and for which they would be paid by their or-
dinary wages, (r) And the owners of a salving vessel
are entitled to remuneration, although some of them
are also owners of the vessel which did the mischief
(/) An agreement for salvage which is reasonable
and equitable at the time it is made, is valid, notwith-
standing circumstances may render the salvage services
more expensive or hazardous than was anticipated. (J)
By the 17 & 18 Vict. c. 104, s. 182, every stipulation
by which any seaman consents to abandon any righ''
which he may have or obtain in the nature of salvagr.,
is wholly inoperative ; but by the 25 & 26 Vict. c. 63,
s. 18, this is not to apply to the case of any agreement
made by the seamen belonging to any ship which by
the terms of the agreement is to be employed on sal-
vage service. Persons who merely furnish boats, sails,
and tackle, or other articles of use for salvage purposes,
are not entitled to be paid as salvors, but for the use
(/) Newman v. Walters, 3 B. & P. 40 L. J., P. C. 48. The Scout, L. R.,
612. 3 A. &E. 512 ; 41 L. J., Adm. 42.
(q) The Vrede, 30 L. J., Adm. 2og. {s) The Glengabeer, I.. R., 3 A. &
The Le Jouet, L. R., 3 A. & E. 556 ; E. 534 ; 41 L. J., Adm. 8^.
41 L. J., Adm. 95. W The Waverley, 40 L. J., Ad.n. 42.
(r) The Ssppho, L. R., 3 P. C. 690;
534 LAW OF CONTRACT. [Bk. II. Ch. III.
of the articles they have supplied, (u) There is no
distinction between river salvage and sea salvage, the
dan2:er and meritorious nature of the services in either
case being the ground on which the compensation is
awarded, (^x^
849. Services by trustees. — The law raises no im-
plied promise of remuneration in respect of services
of a fiduciary character, (^y) If, therefore, a solicitor
consents to act as a trustee of property, and renders
professional services in matters relating to the trust
estate confided to him, he is not entitled to charge for
such services, whether he acts for himself alone, being
sole trustee, or for himself and others who are his co-
trustees, unless there is a provision in the deed or will
creating the trust enabling him to receive remunera-
ation for the transaction of such business; but he is
entitled to charge the trust estate with costs out of
pocket, (s) A trustee, moreover, is not allowed to
make the execution of the trust a source of profit to
himself, and can not sue upon an express contract be-
tween him and his co-trustees for payment for his ser-
vices to the trust ; for each trustee is to be a check
and control upon each and all the co-trustees ; and
one of them can not authorize another to make pro-
fessional charges to be paid out of the trust fund.
Where, therefore, a number of trustees appointed one
of their own body, who was a lawyer, " factor to the
trust," with an allowance for his necessary charges and
expenses and a " reasonable gratification," and the
factor sued his co-trustees for his professional charges
(;/) The Charlotte, 12 Jur. 568. (%) Moore v. Frowd,3 Myl. &Cr. 45.
(v) The Carrier Dove, 2 Moo. P. C, Christophers v. White, 10 Beav. 523.
T . S. 2i|3. And see Nicholson v. Chap- Manson v. B illie, 2 Macq. H. L. C
man, 2 H. Bl. 258. So, over-ruling Cradock v. Piper
(/) Barrett v. Hartley, L. R., 2 Eq. I Mac. & Gord. 664.
•,8y.
Sec. I.] WORK AND LABOR. 535
"by reason of their having employed him as their
■commissioner, factor, cashier, and attorney in the afore-
said trust," it was held that he was not entitled to re-
cover these charges either from them or from the trust
estate. («) Where one of several solicitors in partner-
ship has taken upon himself the office of trustee, the
firm of which he is a member can not charge for pro-
fessional services rendered by them in the execution
of the trust, (d)
In a recent case where it was proved that the
partner of a trustee had, as solicitor to the trust, trans-
acted the whole trust business entirely on his own
account and for his own exclusive benefit, under an
arrangement which had been made between him and
his partner, that they should not be partners in any
matters relating to the trust property, but that the
partner who was not a trustee, should, in all matters
relating to the trust, act as sole solicitor to the trust, and
be entitled to receive, for his own exclusive benefit, all
costs and charges which might be incurred in the
execution of the trust, the professional charges of
the partner were allowed to be paid out of the trust
estate. (<:)
850, Promises of presents hi return for services.
— If services have been rendered and benefits con-
ferred on the express understanding that the person
rendering the services is to trust entirely to the gene-
rosity of the party benefitted, and not to look for
payment as a right, there is no contract, (a?) But, if
a person promises to make a present in return for ser-
(o) Manson v. Baillie, 2 Macq. H. Broughton v. Broughton, 5 De G. M,
L. C. 80, questioning Cradock v. Piper, & G. 160.
supra. Aberdeen Rail. Co. v. Blaikie, {c) Clackv. Carlon, 30 L. J., Ch. 639.
I Macq. H. L. C. 461. {d) Roberts v. Smitli, 4 H. & N. 321;
(*) Collins V. Carey, 2 Beav. 128. 28 L. J., Ex. 164.
536 LAW OF CONTRACT. [Bk. II. Ch. IIL
vices rendered, there is evidence of a contract to pay
a reasonable sum. (d)
851. Honorary and gratuitous services. — If the
employment is by custom and usage of a purely
honorary and gratuitous character, the prima facie
presumption of a letting and hiring of the services is
rebutted as soon as the custom is proved and estab-
lished. The office of an arbitrator is deemed to be an
honorary office ; and a person who acts as such can
not charge for his services, unless it appears from the
terms of the submission or the surrounding circum-
stances of the transaction that it was the intention of
the parties that the arbitrator should be paid for his
time and trouble, or unless there is an express promise
to pay him for his services. (_/) Barristers likewise,
exercise an office and profession of an honorary char-
acter. They are presumed in law not to afford their
professional services with any mercenary view, and
can not, therefore, maintain an action for remuneration
for advice or advocacy in matter of litigation, or for
services ancillary to the service of an advocate,
although there be an express contract to pay them a
stipulated sum for such service; (_§) but in cases un-
connected with advocacy, and for services not of a
professional character, a barrister may, it seems, con-
tract for remuneration, A physician may sue for his
services, if he is registered as a physician under the
medical Act, and is not prohibited by the college to
which he belongs from bringing an action for his
{e) Jewry v. BusV, 5 Taunt. 302
Bryant v. Flight, 5 M. & W. 114
Bird V. M'Gaheg, 2 C. & K. 70S.
(y) Virany v. Warne, 4 Esp. 47,
Hoggins V. Gordon, 3 Q. B. 474.
(g) Kennedy v. Broun, 13 C. B. N,
S. 677 ; 32 L. J., C. P. 137. Broun v.
Beav. 133. Hobart v. Butler, g Ir. C.
L. R. 157. Morris v. Hunt, I Chitt.
551. Veitch V. Russell, 3 Q. B. 928.
Egan V. Guard. Kens. Un., Id. 935, n.
Att.-Gen. v. The Royal College of
Physicians, i Johns. & H. 561, 591 ;,
30 L. J., Ch. 757. Moslyn v. Mostyn,
Kennedy, 33 L. J., Ch. 71, 342 , 33 L. R., 5 Ch. 457 ; 39 L. J., Ch. 780.
Sec. I.J WORK AND LABOR. $37
charges, (/z) If the service appears to have been ren-
dered as a gratuitous act of kindness, or in discharge
of a public duty, the prima facie presumption of a
contract of letting and hiring is repelled. Thus, if a
man undertakes a journey to become bail for his friend,
(z) or attend as a witness in a court of justice, he is
not entitled to be paid for his trouble. In the last case,
as the attendance to give evidence is a duty of a public
nature, an express promise to remunerate the witness
for so doing is invalid ; but the witness is entitled to
compensation according to the scale framed by the
judges under the Common Law Procedure Acts, (y^)
852. Rights and liabilities of employer and work-
man.— A person who employs another by the piece
or by the job, or who lets out task work to be done
for an express or implied remuneration, is, in general,,
bound to do every thing that is necessary to be done
on his part to enable the hirer of the work to execute
his engagement, and earn the hire or reward. He im-
pliedly undertakes to resort to no misrepresentation
or concealment calculated to mislead the servant or
undertaker of the work and give him a false estimate
of the nature and extent of it, to accept the work when
completed, and to pay the customary hire, in case no
specific rate of remuneration has been agreed upon.
When there is an absolute and unqualified refusal on
the part of the employer to permit the workman to
perform his task, or the employer does an act abso-
lutely incapacitating himself from performing his part
of the engagement, the undertaker of the work has a
right, if he has done anything under the contract, to
(/5) 21 & 22 Vict. u. 90,0. 31. Gibbon (j) Reason v. Wirdnam, I C. & P.
V. Budd, 2 H. & C. 92 ; 32 L. J., Ex. 434.
182. (^) Nokes V. Gibbon, 26 L. J., Ch.
203.
538 LAW OF CONTRACT. [Bk. II. Ch. III.
sue immediately, for remuneration on a quantum
meruit if the contract is defeasible, or, if not, for com-
pensation for the damage he has sustained in being
prevented from earning the stipulated hire. (/) '
853. Defeasible contracts for work and services. —
If a laborer is employed to dig potatoes at so much
an acre, or to cut turf at so much a load, or to make
excavations of earthvv^ork at so much per cubic foot,
the employer may, if there is no determinate term or
employment, dispense, at any time, with the future
services of the workman, paying him for the work
actually done. If a party employs a factor or agent to
collect his rents, or transact his business for him, for
certain commission or reward, the employment is de-
terminable at the will of the employer, unless it is
coupled with an interest, and the party employed is
something more than an agent in the transaction. If
an agent is employed to sell property on commission,
it is competent to the employer, at any time before a
sale has been actually effected, to revoke the authority
and deprive the agent of the expected commission ;
(;;/) but if expenses have been incurred by the agent
in executing the authority intrusted to him, he wrill be
entitled to recover such expenses from the employer,
and also a reasonable compensation for any labor or
trouble he may have undertaken in endeavoring to
execute his commission, unless it appears to have been
the understanding of the parties that nothing was to
be paid unless the act authorized to be done was fully
(/) Planche v. Colburn, i M. & Sc. Co., 17 C. B. N. S. 733 ; 34 L. J., C.
51. Emmens v. Elderton, post. Prick- p. 15.
€tt V. Badger, i C. B. N. S. 304. ('«) Simpson v. Lamb, 17 C. B 603;
Inchbald V. Western Neilgherry Coffee 25 L. J., C. P. 113.
' ?>et post, § 2. Master and Servant.
Sec. I.J WORK AND LABOR. 539
accomplished, (n') If a commission agent employed
to sell property has found a purchaser and affected the
authorized contract of sale, he will be entitled to his
commission, although the employer may refuse to
fulfill the contract ; and, if he has found a party willing
to buy, and the employer is then unable or unwilling
to sell, the agent will be entitled to remuneration for
his services, (o)
854. Tzme of performance. — Time is frequently
of the essence of the contract as regards the com-
mencement of the work, but not so with regard
to its completion. If it is made a positive term
of the contract that the work shall be commenced
on a day named, the employer may refuse the
services of the workman, and decline to employ
him, if he does not tender his services or commence
the v/ork at the appointed period ; but when the work
has been commenced, the completion of it by a day
named will not in general be a condition precedent to
the workman's right to the stipulated hire. When the
materials for the work, for example, have been fur-
nished by the employer, and the produce of the labor
becomes, consequently, the property of the latter as
the work proceeds, the non-performance of the work
by an appointed time does not release the employer
from his obligation to pay the contract price. He
must in such a case perform his part of the engage-
ment, and bring a cross action against the undertaker
of the work to recover compensation for any damage
he may have sustained by reason of the non-comple-
tion of the work at the appointed period. (/) If
after the time of completion the employer urges the
(«) Moffatt V. Laurie, 15 C. B. 583. {0) Prickett v. Badger, i C. B. N. S.
De Bernardy v. Harding, 8 Exch. 296.
S22. Camponari v. Woodburn, 13 C. (/») Lucas v. Godwin, 4 Sc. 509.
B. 400.
540 LAW OF CONTRACT. [Bk. II. Oh. III.
continuance of the work, or encourages the workman
to proceed, he waives the condition as to time. (^)
855. Entire performance of a contract for work
is often a condition precedent to payment. — Thus, if a
coachman agrees to convey a passenger from London
to York for a certain stipulated remuneration, and
carries him only half the distance, he is not entitled to
any payment, the precedent act to be performed being
entire and indivisible. Where the plaintiff undertook
to make " complete " certain dilapidated chandeliers
for the sum of ;^i9, and returned them in an incom-
plete state, it was held that he could not maintain an
action for the work actually done, (r) And, where
an attorney covenanted to pay his clerk is. for every
quire of paper he copied out, it was held that this was
an entire covenant, of which no apportionment could
be made pro rata, and that the clerk, consequently,
could not maintain an action to recover remunera-
tion for copying out any number of sheets less than
a quire, {s) So, where the plaintiff offered to cure
a flock of sheep and lambs of a disease called the
scab at so much per head for the sheep, and so much
for the lambs, and stated that he did not expect to be
paid unless he cured all the sheep and lambs, where-
upon the defendant accepted his offer, and agreed to
employ him ; and the plaintiff, after he had materially
checked the complaint, but before he had cured the
whole of the flock, brought his action for the money,
it was held that he was not entitled to recover any-
thing for his pains. {J)
856. Divisible and apportionable work. — But, if
the work is in its nature divisible and apportionable,
{q) Burn v. Miller, 4 Taunt, 748. {s) Needier v. Gnest, Aleyn, 9.
{r) Sinclair v. Bowles, 4 M. & R. 3 ; {t) Bates v. Hudson, 6 D. & R. 3.
9 B. & C. 94.
Sec. I.] IVOUK AND LABOR. 541
and there is nothing in the terms of the contract
which, either by express stipulation or necessary in-
tendment, precludes the plaintiff from recovering in
respect of a partial execution of it, the plaintiff may,
on performing a part only of his engagement, require
a corresponding part performance on the part of the
defendant, (li) Thus, where a ship, being damaged at
sea, put into a harbor to receive some repairs, and an
agreement was made with a shipwright to put her
" into thorough repair," but nothing was said as to
the amount, or time, or mode of payment, and, before
the repairs were completed, the shipwright demanded
payment for what he had done, it was held that the
contract was not an entire contract to do the whole
of the repairs and make no demand for payment until
they were completed, but that the shipwright might
from time to time, in the course of the work, demand
payment for what he had done, before proceeding to
complete the residue, (a) And if, in a contract of this
description, the defendant is deprived, by accident, of
the benefit of the work before it is finished, the work-
man is not, by reason of such accident, deprived of his
right to remuneration. ((5)
857. Building contracts. — If a contract has been
entered into to build a house for a specific sum, to be
paid on the completion of the building, the contract
is entire and indivisible, and the employer is not
bound to pay for a half or a quarter of a house ; for
the court and jury can have no right to apportion
that which the parties themselves have treated as
entire. But, where a builder engages to build a house,
to be paid for his work and labor, and the materials
(») Taylor v. Laird, I H. & N. 266. {b) Menetone v. Athawes, 3 Burr,
(a) Roberts v. Havelock, 3 B. & Ad. 1592.
404.
542 LAW OF CONTRACT. [Bk. II. Cii. III.
supplied by measure and value, or according to the
customary rate of remuneration, he is entitled to
demand payment from time to time as the work pro-
ceeds. Every builder who contracts for the building
of a house impliedly undertakes to furnish everything
reasonably necessary for its completion, (c) Where
an action was brought by a builder against his em-
ployer upon a special contract for the building of a
house for a certain sum, and the builder had omitted
to put into the building certain joists according to his
contract, it was contended that, as the employer had
got the benefit of the house, he was bound to pay
what it was fairly worth ; but, per Mansfield, C. J.,
" The defendant made no such agreement. He says,
' I agreed to pay you, if you would build my house in
a certain manner, which you have not done.' The
plaintiff can not now be permitted to turn round and
say, ' I will be paid by a measure and value price in-
stead of the contract price.' "(af) If an architect,
employed to prepare plans and specifications for a
house, and to procure a builder to erect it, takes out
the quantities, and represents to a builder that they
are correct, and the builder thereupon makes a tender
which is accepted, the builder can not recover more
than the contract price from the employer, although
it turns out that the quantities are wrong, and the
builder has expended upon the building a much larger
amount of material than he contemplated, (e)
858. Wo7^k to be approved of before payment. — If
a tailor undertakes to make me a coat, or a coach-
builder to build me a carriage, upon the terms that I
am not to take and pay for it, if, on inspection, I dis-
(<r) Williams v. Fitzmaurice, 5 H. & {e) Scrivener v. Pash, L. R., i C. P.
N. 844. 715.
(d) Ellis V. Hamlen, 3 Taunt. 52.
Sec. I.] W07?K AND LABOR. 545
approve of the style and workmanship, I am at liberty
to return the coat or the carriage, and refuse payment
of the price, if I think fit so to do. But if I engage
an artist to work up my own materials, or to paint a
ceiling in my house, and I have, consequently, no op-
portunity or power of returning him the produce of
his labor, I can not make my approval of the work a
condition precedent to his right to demand some
remuneration for what he has done, (y) If a con-
tract for the building or repairing of a house provides
for the inspection and approval of the work by the
employer before payment of the contract price, the
employer must be afforded an opportunity of inspec-
tion before he can be called upon to pay ; but he can
not, by withholding his approval unreasonably and
mala fide, after an opportunity of inspection has been
aflForded him, deprive the workman of his hire, (^g)
The employer has, indeed, a right in all cases to in-
spect the work before he pays for it ; but his approval
of a builder's work is by no means essential to the
maintenance of an action by the builder. It will
always be a question for the jury to determine, whether
the employer has acted bona fide, and ought reason-
ably to have been satisfied with the work done. (Ji)
But, where the workman works up his own materials
in the manufacture of a chattel, the employer may
reserve to himself a right to rescind the contract and
reject the chattel, if he finds, on trial or inspection
that it does not suit him, either on the score of work-
(f) Andrews v. Belfield, 2 C. B. N. n'est pas content de I'ouvrage, pour se
S. 779. dispenser de payer la gratification
(^) Dallman v. King, 5 S. C. 382. promise, ce qui reiidrait cette clause
" Ces termes, si je suis content de nulla at illusoire." Poth. Louage,
I'ouvrage, ne doivent pas etre entendus No. 417.
en ce sens, que le locateur puisse atre (H) Parsons v. Sexton, 4 C. B. 899 ;
admis indislinctement a dire qu'il 16 L. J., C. P. 184. Hughes v. Lenny
5 M. & W. 193. •
544 L^W OF CONTRACT. [Bk. II. Ch. III.
manship, or of convenience, or taste, (z) If his
acceptance of an engine, or machine, and payment of
the contract price, are made dependent upon his ap-
proval of the strength and soundness of the workman-
ship, and he rejects the machine because it does not
work well, or does not answer his purpose, and not
because it is deficient either in strength or soundness,
he will be held responsible for the price, (y^)
859. When the right to receive payinent is made
dependent upon the approval of aft architect or sur-
veyor, or the production of a certificate that the work
has been done according to contract, no right can
arise which can be enforced until the approval has
been given or the certificate has been obtained. (/)
Work, therefore, which has been done, but not to the
satisfaction of the surveyor or architect, can not be
charged for; {m) but, if the certificate is fraudulently
or corruptly withheld, the court will give relief; and
an action may, in certain cases, be maintained for the
wrongful or fraudulent withholding of the certificate
both against the architect and against the em-
ployer, {n) If the certificate is not, by the express
terms of the contract, required to be in writing, the
architect's approbation, testified by word of mouth,
is sufficient. {0) When the certificate has been granted,
the architect is functus officio, and can not vary or
alter it. (/)
(0 Andrews v. Belfield, 2 C. B. N. (ot) Dobson v. Hudson, i C. B. N.
5. 779- S. 659 ; 26 L. J., C. P. 153.
{k) Ripley v. Lordan, 6 Jur. N. S. («) Milnerv. Field, 5 Exch. 829; 20
1078. L. J., Ex. 68. Batterbury v. Vyse, 2
(/) Scott V. Liverpool Corp., 25 L. H. & C. 42 ; 32 L. J., Ex. 177. Stad-
J., Ch. 230. Morgan v. Birnie, 3 M. hard v. Lee, 3 B. & S. 364; 32 L. J.,
& Sc. 76 ; 9 Bing. 672. Mayor, &c., Q. B. 75.
of Salford v. Ackers, i6 L. J., Ex. 6. {0) Roberts v. Watkins, 32 L. J., C.
Moffat V. Dickson, 22 ib. C. P. 268 ; P. 291 ; 14 C. B. N. S. 592.
13 C. B. 543. (;>) Jones v. Jones, 17 L. J., Q. B.
170.
Sec. I.] WORK AND LABOR. 545
860. Relief against biassed or corrupt decisions
<of architects and surveyors. — If an architect's certi-
ficate is wrongfully or fraudulently withheld, the court
will give relief, not only against the parties who are
bound to pay, but also against the architect, surveyor,
or engineer ; and any stipulation in the contract, plac-
ing the latter in the position of an arbitrator between
the employer and the workman, and making his de-
cision final, and purporting to exclude the jurisdiction
of any court with reference to his conduct, will be
nugatory and of no effect. (^) If questions arising
between the contractor for works and the employer
are, by the contract, left to the determination of the
architect, and the latter has a personal interest un-
known to the contractor, and adverse to him, (r) or
does not act fairly between the parties, or manifest any
rindue leaning, bias, partiality, or corruption, the Court
■of Chancery will review his decision and interfere to
give relief, however strenuously the parties may by
their contract have endeavored to exclude the juris-
tion of the court, (s)
861. Actions for wrongfully withholding the cer-
tificate may be maintained both against the architect
and the employer, if it can be proved that the builder
has fulfilled his contract and done all things necessary
to be done by him to entitle him to the certificate,
and that the architect had full knowledge thereof, and
nevertheless neglected to certify in collusion with and
hj the procurement of the employer, {f) But the
(y) Scott V. Liv. Corp., 25 L.J. ,Ch. v. Turnbull, 3 Giff. 70. Bliss v.
•227. Smith, 34 Beav. 508.
(r) Kimberley v. Dick, L. R., 13 (0 Batterbury v. Vyse, 2 H. & C.
Eq. I ; 41 L. J., Ch. 38. 42 ; 32 L- J- Kx. 177. Milner v.
(j) Kemp V. Rose, 1 Giff. 258. Scott Field, 5 Exch. 829 ; 20 L. J., Ex. 68.
V. Liv. Corp., supra, Ormes v. Beadel, Scott v. Liv. Corp. 25 L. J., Ch. 230.
2 Giff. 166 ; 3C L. J.. Ch. r. Pawley
"■—35
546 LA?V OF CONTRACT. [Bk. II. Ch. IIL
employer is not responsible for any misconduct of his
architect or surveyor in refusing to certify not brought
about by his instrumentality or interference, (u)
862. Effect of the employer s taking possession and
■making tise of the unfinished zvork. — A landowner
who by a building-contract provides a site for the
erection of a house and delivers the ground to the
builder, does not thereby part with the possession of
his land. The builder has the mere temporary custody
of it, and may be turned off at any time by the em-
ployer, (zi) Where by a building contract it was
stipulated that certain houses should be built on the
land of the employer for a certain sum b}^ a specified
day to the satisfaction of a surveyor, upon whose
approval payment was to be made, and the builder
became bankrupt and was unable to complete the
houses, and the employer then took possession of
them and finished them, it was held that his taking
possession of the unfinished houses did not amount to
a waiver of the contract or of any of the terms or con-
ditions thereof, and afforded no evidence that he
accepted the benefit of the work actually done under
an implied contract to pay for it according to measure
and value, (ji/)
863. Defective work accepted by the employer. —
Whenever the employer has accepted and retains the
benefit of work done for him under a special contract,
which has been abandoned or rescinded, and remains
no longer a subsisting contract, he is liable to pay a
reasonable remuneration in respect thereof. If the
workman undertakes to repair a chattel, the property
of the employer, and the new work and materials are
[u) Clarke v. Watson, 18 C. B. N. P. 335.
S. 278 ; 34 L. J., C. P. 148. (y) Munro v. Butt, 8 Ell. & Bl. 738.
(v) The Alarquis Camden V. Baiter- Ranger v. Gt. West. Rail. Co., 5 H.
bury, 7 C. 1!. N. S. 878 ; 28 L. J., C. L. C. n8.
Sec. I.] WORK AND LABOR. $47
so intermixed with the old work, that the one can not
be separated from the other without injury to the
chattel, so that the employer must of necessity accept
the work, his liability to pay for it, in case it has been
negligently and unskillfully executed, depends upon
the utility or inutility of the work. If the chattel has
been benefitted and rendered more valuable by what
has been done, the employer must pay the fair value
of the workmanship ; if it is in no wise improved, and
the work done has been so negligently executed as to
be worth nothing, the employer can not be called
upon for payment. If the contract is an entire and
indivisible contract for the completion of certain
work, such as the contract to " make complete " the
dilapidated chandeliers for the sum of ^lo previously
mentioned, and the chattel is returned in an unfinished
state, the employer may require the undertaker of the
work to complete and perfect the article, and refuse
payment of the money until it is done. The retention
by the employer of his own unfinished chattel does
not, in such a case, raise any inference of a waiver of
any of the terms or conditions of the special contract
or of the entering into a new contract to pay upon a
quantum meruit, (^z)
864. Substantial performance of building con-
tracts.— When a contract has been entered into for
the building of a house for a certain sum of money to
be paid on the completion of the building in accord-
ance with certain plans and specifications, it is not es-
sential to tbe maintenance of an action upon the con-
tract that there should be an exact performance of the
contract in every minute particular ; for, wherever divers
acts and things of different degrees of importance are
(i) Munro v. Butt, 8 Ell. & Bl. 752. Ellis v. Hamden, /!«.<■.
548 LAIV OF CONTRACT. [Bk. II. Ch. III.
to be done on one side in return for a stipulated remun-
eration on the other, the performance of all the things
in every minute particular is not, in general, a condi-
tion precedent to the liability to make some remuner-
ation ; but, if the contract has been substantially fulfilled
the plaintiff is entitled to maintain an action upon it,
(a) the defendant being entitled to such a deduction
from the contract price as will enable him to complete
the work in exact accordance with the contract. In
every contract for work there is a condition implied
by law that the work shall be done in a proper and
workmanlike manner ; but this is not a condition going
to the essence of the contract. " If it were a condition
precedent to the plaintiff's remuneration," observes
TiNDAL, C. J., " a little deficiency of any sort would
deprive the plaintiff of all claim for payment ; but
under such circumstances a jury may say what the
plaintiff really deserves to have." (<5)
A building contract, with all its specifications and
details, may be broken to the letter with trifling dam-
age to the employer ; and, if performance in every
minute particular were made a condition precedent to
the builder's right to sue upon the contract for work
done, " a trifling injury to the one party might occasion
the loss of all remuneration to the other for a long- and
laborious service." (c) But where it appears from the
whole tenor of the agreement, that the parties thereto
intended, the one to insist upon, and the other to sub-
mit to, conditions, however unreasonable and oppres-
sive, the court will in such case give effect to
them, (d)
Where a party engages to do certain work on cer-
(a) Ante. ing, 3 Sc. 755.
{b) Lucas V. Godwin, 3 Bing. N. C. {d) Stadhard or Stannard v. Lee, 3
744 ; 4 So. 509. B. & S, 364 ; 32 L. J., Q. B. 75.
(c) Tindall, C. J., Stavers v. Curl-
Sec. I.J WORK AND LABOR. 549
tain specified terras and in a certain specified manner,
but does not perform the work so as to correspond
with the specification, he is not entitled to recover the
price agreed upon in the specification, nor can he re-
cover according to the actual value of the work done
as if there had been no special contract. What the
plaintiflF is entitled to recover is the price agreed upon
in the specification, subject to a deduction ; and the
measure of that deduction is the sum which it would
take to alter the work to make it correspond with the
specification, {e) And the defendant is not, by reason
of his having given evidence of such breach of con-
tract on the part of the plaintiff, and obtained a reduc-
tion of the agreed price, according to the difference
between the value of the work actually done and that
which ought to have been done according to the con-
tract, precluded from bringing his cross action to re-
cover compensation for any special damage he may
have sustained by reason of the non-compliance by the
plaintiflF with the strict terras of the engageraent. (/")
Care, however, must be taken to mark the distinction
between an action on the special contract itself for the
agreed price of the work, and an action upon a bill of
exchange or promissory note given by way of pay-
ment of the amount. In the former the value of the
work only can be recovered ; in the latter the party
holding bills given for the price of the work done can
recover on them, unless there has been a total failure
of the consideration. If the consideration fails par-
tially, as by the inferiority of the work, the buyer must
seek his remedy by a cross action. The contract may
be divisible; but the security is entire, (^g)
{e) Thornton v. Place, i Mood & & W. 858. Rigge v.Burbridge, 15 M.
Rob. 218. & W. sgg.
(/■) Ante. Mondel v. Steel, 8 M. (^) Tye v. Gwynne, 2 Campb. 347.
550 LAW OF CONTRACT. [Bk. II. Cn. III.
865. Abatement of the contract price. — Whenever
a contract for work and services on the one side, and
payment on the other, has been so far executed as to
give rise to a cause of action in respect of the work
done, but has not been fully performed, it is competent
to the defendant to show, in reduction of the price
agreed to be paid, that the subject-matter of the con-
tract is diminished in value by reason of the incom-
plete and inefficient execution of the work by the
plaintiff. Thus, where the plaintiff agreed to erect a
powerful warm-air apparatus in a chapel, and the de-
fendant agreed to pay him the sum of ^70 for so doing,
and the claim for the money was resisted on the ground
that the apparatus was imperfect and did not answer,
it was held by Tindal, C. J., that, if the apparatus was
altogether unfit for the purpose, and did not at all
answer the end for which it was intended, the defend-
ant was not bound to pay for it ; but that, if the
apparatus was in the main effective, but not quite so
complete as it ought to have been according to the
contract, the action was maintainable for the price,
and that the jury might deduct from the full price
such a sum as would enable the defendant to do that
which was required to make it complete and perfectly
effective. {Ji)
866. Effect of non-performance of binlding con-
tracts by the time specified. — In the case of a contract
to build a house, where the employer furnishes the
land, which is the principal material for the work, if
the house is not built by the time specified in the
contract, but is afterwards completed, the employer
who has got the house, and has had the value of his
land increased by its erection thereon, can never be
permitted to free himself from his obligation to pay
{h) Culler v. Close, 5 C. & P. 338. Chapel v. Ilickes 2 Cr. & M. 214.
Sec. I.] WORK AND LABOR. 551
for it by alleging that the work was not done by the
time appointed. The stipulation as to time is not, in
such a case, "a condition going to the essence of the
-contract. The parties never could have contemplated
that, if the house were not completed by the day
named, the builder should have no remuneration ; at
all events, if an engagement so unreasonable was con-
templated, the parties should have, expressed them-
selves with a precision that could not be mistaken." (i)
867. Penalties for non-performance of btdlding
contracts by a time specified. — Where, by articles of
agreement for the altering and repairing of a ware-
house for a fixed sum, it was stipulated that, in the
event of the work not being fully completed in .three
months, the builder should " forfeit and pay" to the
employer ;^5 every week he should be engaged in
such work beyond the three months, such penalty or
forfeiture to be deducted from the amount which
might remain owing on the completion of the work,
it was held, in an action brought for extra work, that
the employer was entitled to set off the penalty against
the price of such extra work, and that he had a double
remedy, either to set it off as a payment, or to deduct
it from the contract price. {k~) If performance by the
time specified has been prevented by the ordering of
extra work, or by the interference of the employer or
his agent, the claim to the penalties can not be en-
forced. (/)
868. Of the giving of security for the due per-
(i) Tindall, C. J., Lucas v. Godwin, Legge v. Harlock, 12 Q. B. 1015.
4 Sc. 509 ; 3 Bing. N. C. 744. Littler (/) Westwood v. Secret. Ind., 11 W.
V. Holland, 3 T. R. 590. Maiyon v. R. 261 ; 7 L. T. R. N. S. 736. Russell
Carter, 4 C. & P. 295. Kingdom v. v. Sa Da Bandiera, 13 C. B. N. S. 149 ;
Cox, 2 C. B. 661 ; 15 L. J., C. P. 95. 32 L. J., C. P. 68. Roberts v. Btuy
(i) Duclcworth V. Alison, I M. & W. Commissioners, L. R.,5 C. P. 310 ;
412. Fletcher v. Dyclie, 2 T. R. 32. 39 L. J., C. P. 129.
552 LAW OF CONTRACT. [Bk. II. Cii. III.
formance of the contract. — If security is to be given
by the workman for the due performance of his con-
tract, the giving of the security is a condition prece-
dent to any liability on the part of the employer upon
the contract, unless the condition has been waived by
the workman's being required to proceed with the
work, or the work having been executed, without
security. (;«)
869. Destrtution of work before payment — Loss
of materials, and loss of the price of the work. — If
the contract is entire for the performance of a specific
work for a specified sum, so that the performance of
the whole of the work bargained for and agreed to be
done is a condition precedent to the right to payment
for any part of it, the workman will be deprived of all
legal right to remuneration if the work is destroyed
by accident before it has been completed ; {n) but, if
the workman is entitled to payment from time to time-
as the work proceeds, the destruction of the work
before its completion will not deprive the workman of
his hire. Thus, if the contract is an entire and indivis-
ible contract for the building of a house for a specific
sum to be paid on its completion, and the edifice is
destroyed by lightning, fire, or tempest, during the
progress of the work, the contractor must stand to the
loss, and be himself at the expense of repairing the
damage. But, if the contract price of the building is
to be paid by installments on the completion of certain
specified portions of the work, each installment be-
comes a debt due to the builder, as the particular
portion specified is completed ; and if the house is
destroyed by accident, the employer would be bound
(m) Roberts v. Biett, 6 C. B. N. S. («) Appleby v. Myers, L. R. 2 C. P.
635. Kingston v. Preston, cited 2 651 ; 36 L. J., C. P. 331.
Doug. 689.
Sec. L] work AND LABOR. 553
to pay the installments then due, but would not be
responsible for the intermediate work and labor and
materials, (c)
In the Roman law, if a builder was employed to
build a house on the land of the employer, and the
building was overthrown by an earthquake, or de-
stroyed by lightning, during the progress of the work,
the employer was accountable both for the materials
which the undertaker of the work had furnished and
for what was due on account of the workmanship, in-
asmuch as the materials and the produce of the labor
became the property of the employer as soon as they
were fixed on the land ; but, if, by an express contract
■between the parties, the payment of the money was
made conditional on the completion and approval of
the building, so that nothing was due until the whole
of the work had been performed, then the builder lost
both the value of his materials and of his workman-
ship, and was bound to re-construct the building before
he called upon the employer for payment, (m)
When the contract is entire and indivisible for the
manufacture out of materials furnished by the employer
of a particular chattel for a specific sum, to be paid on
the completion and delivery of the chattel to the em-
ployer, and the chattel is destroyed by inevitable acci-
dent whilst it remains unfinished in the hands of the
workman, the employer must stand to the loss of his
materials, and the workman to the loss of the price
and value of his labor. Thus if a printer is employed
to print a book at so much per sheet, the price and
value of the printing to be paid for on the completion
of the work, and before the whole impression has been
(a) Menetone v. Athawes, 3 Burr. (m) Dig. lib. ig, tit. 3, lex 59. Dig.
1592. Tripp V. Armitage, 4 M. & W. lib. 6, tit. i, lex 39.
699. AnU
554 LAW OF CONTRACT. [Bk. II. Ch. III.
worked off and made ready for delivery, an accidental
fire breaks out upon the printer's premises and con-
sumes the work, the employer must stand to the loss
of his paper, and the printer to the loss of the price
and value of his labor and skill. (ii) But if the work
has been completed, and the copies have been piinted
and made ready for delivery, and placed at the disposal
of the employer, they remain at his risk ; and, if an ac-
cidental fire then breaks out and consumes them, he
must stand to the loss, and pay the printer his
hire, (o)
If a shipwright is employed to repair a ship, the
accessorial materials supplied by him for the work be-
come, as we have previously seen, the property of the
employer, as soon as they are attached to the vessel
under repair, upon the principle that omne accessorium
sequitur suum principale ; and if the completion of the
work is not made, either by agreement or by custom,
a condition precedent to the payment, and the ship is
accidentally burnt, the loss of such materials, as well as
of the value of the work and labor employed upon
them, is the loss of the employer and not of the work-
man, and the employer, consequently, must pay the
fair value of the labor and materials, although he can
reap no benefit from what has been done. (/) But,
where a man contracts to expend materials and labor
on buildings belonging to and in the occupation of
the employer, to be paid for on completion of the
whole, and before completion the buildings are des-
troyed by accidental fire, the contractor is excused
from completing the work, but is not entitled to
any compensation for the work already done
{n) Gillett v. Mawman, i Taunt. (/) Menetone v. Athawes, 3 Burr.
140. 1592.
(0) Adlard v. Booth, 7 C. & P. io3.
Sec. I.J WORK AND LABOR. 555
which has perished without any default of the em-
ployer. (^)
Where a contract for the building of a ship vests
the general property in the ship in the employer as
the materials are put together and fashioned, (r) and
the ship is destroyed by fire, the loss of the mate-
rials and workmanship will fall on the employer ; but
if the property in the thing destroyed remains with
the workman, the loss will fall upon the latter.
870. Deviations from building contracts — Extras.
— If work has been agreed to be done, and materials
supplied, under a building contract for certain estima-
ted prices, and there has subsequently been a deviation
from the original plan by consent of the parties, the
contract and estimate are not on that account excluded,
but are to be the rule of payment, as far as the con-
tract can be traced to have been followed, and the ex-
cess only is to be paid for according to the usual rates
of charging ; but if the original plan has been so en-
tirely abandoned that ic is impossible to trace the con-
tract, and to say to what part of it the work shall be
applied, the workman may charge for the whole work
by measure and value, as if no contract at all had ever
been made. But there must be a total deviation, so
that the terms of the original contract are not applica-
ble to the new work, {s) For all work done beyond
the contract, under subsequent or antecedent directions,
the plaintiff may recover, just as if no special contract
had ever been made. (J) But the mere fact of the de-
fendant having assented to certain alterations is not
sufficient to make him liable to pay for them as extras
(q) Appleby v. Myers, L. R., 2 C. P. Robson v. Godfrey, Holt, N. P. C.
651 ; 35 L. J., C. P. 331. 236. Ellis V. Hamlen, 3 Taunt. 52.
(r) Clarke v. Spence, ante. , Wood {t) Thornton v. Place, i Mood. &
V. Bell, 25 L. J., Q. B. 153, 321. Rob. 219. Fletcher v. Gillespie, 3
(j-) Pepper v. Burland, Peake, 139. Bing. 637.
556 LAW OF CONTRACT. [Bk. II. Ch. III.
not covered by the contract, unless the alterations are
of such a nature that he can not fail to be aware that
they must increase the expense, and can not be done
for the contract price, (u) If extras have been done
by the plaintiff without any authority from the defend-
ant, the latter is not bound to pay for them, (v) If
they are to be done only on the direction in writing-
of the architect, a direction in writing must be ob-
tained, (^y) In cases of variation set up by way of
defense, the courts look to the subsequent conduct of
the parties, for this obvious reason, that, as the parties
intend the contract to remain in force, so far as it is
not varied, it is only by comparing the conduct of the
parties subsequently to the making of the alleged vari-
ation with the terms originally agreed upon that the
court can determine with certainty upon oral evidence
that such variations were mutually intended to take
effect.
871. Prevention of performance of building con-
tracts.— Where an agreement was entered into between
the plaintiff and defendant that the plaintiff should
pull down the walls of three houses, and erect for the
defendant, on the site thereof a malt-house and other
buildings, and the plaintiff was ready and offered to
do the work, but the defendant prevented him, it was
held that the plaintiff had done all that was necessary
to be done to enable him to sue the defendant for a
breach of contract. {£) The builder or workman is
not in such a case entitled to recover the full stipulated
remuneration as if the buildings had been actually
{li) Lovelock V. King, 1 Mood. & 9. Russell v. Sa Da Eandiera, 13 C.
Rob. 60. B. N. S. 149 ; 32 L. J., C. P. 68.
{v) Dobson V. Hudson, i C. B. N. {z) Peters v. Opie, I Ventr. 177 ; 2
S. 659 ; 26 L. J., C. P. 153. Saund. 350. Collins v. Paice, 5 Bing.
{y) Myers v. Savl, 30 L. J., Q. B. 132, Ferry v. Williams, 8 Taunt. 70-
I Moore, 498.
Sec. I.] WORK AND LABOR, 557
erected. A fair deduction must be made from the
contract price in respect of the value of materials
which have never been supplied and wages which
have never been paid ; and the damages must be con-
fined to the actual pecuniary loss sustained by the
plaintiff, (a)
872. Of the right of lien of workmen and arti-
ficers.— Every workman to whom a chattel has been
delivered by the owner to be mended, repaired, or
altered for hire, and who has bestowed his labor upon
it, has a lien upon the chattel for his hire. This right
of lien is a mere right of retainer until the pecuniary
claim has been satisfied, and carries with it no right of
sale, if) A workman who has detained a chattel in
the exercise of a right of lien is not entitled, in the
absence of any usage of trade, to charge warehouse
rent or the expense of keeping the chattel, {c)
873. Liabilities of task-workmen. — Every person
who has entered into a contract for the performance
of a particular task or job is bound to enter upon his
employment without delay ; to be active, industrious,
careful, and diligent in the performance of the work ;
to do it according to orders given and assented to ;
(flf) to complete it within a reasonable period, if no
precise time has been agreed upon for its fulfillment ;
and to exercise a reasonable amount of care and skill
in its execution. If the work is to be performed
under the direction of a surveyor to be appointed by
the employer, the appointment of such surveyor is a
condition precedent to the liability of the workman to
cornmence his task; and, if the surveyor is not ap-
(a) Post. Masterton v. Mayor, &c., {c) Somes v. Brit. Emp., &c., 30 L.
of Brooketyre, 7 Hill. N. Y. Rep. 61. J., Q. B. 229 ; 28 ib. 221 ; E. B. & E.
{^b) Thames Iron Works,, &c., v. 353.
Patent Derrick Co., 29 L. J., Ch. 714. {d) Streeter v. Horlock, 7 Moore,
287.
558 LAW OF CONTRACT. [Bk. II. Ch. III.
pointed within a reasonable period, the workman is
released from his engagement to do the work, {e) In
ordinary cases, the workman may accomplish the work
through the medium of inferior agents and workmen ;
but, if the work is a work of art and genius, and the
contract is founded upon the personal talent and
capacity of the artist, he impliedly undertakes to per-
form the work himself, and may not intrust it to an
inferior agent of less skill and reputation. (/")
874. Of the implied obligation to do the work
well — Skilled zvorkmen. — Every person who professes
to be a skilled workman impliedly undertakes to do
his work well and in a workmanlike manner, and
according to the rules and principles of his trade or
art. " When a person is employed in a work of skill,
the employer buys both his labor and his judgment ;
he ought not to undertake the work if he can not
succeed ; and he should know whether he will or
not." (^) The public profession of an art is a repre-
sentation and undertaking, to all who require and
make use of the services of the professed artisan, that
the latter is possessed of, and \Vill exercise, the ordin-
ary amount of skill and knowledge incident to his
particular craft, art, or profession. (Jt) If, therefore,
an accountant is employed to make out an account,
and he miscalculates the amounts and carries wrong
{e) Coombe v. Greene, 11 M. & W^ sans mon consentment. Poth. Louage
483- No. 421. Robson V. Drummond, 2 B.
(/) Le principe, que le conducteur & Ad. 308.
pent faire I'ouvrage par un autre, le- {g') Bayley, J., Duncan v. BhindeU,
9oit exception a I'e'gard des ouvrages 3 Stark. 7, cited 5 M. & P. 54S. Cast
de genie dans lequels on considere le de sa parte une faute de se cliarger
talent personnel de celui a qui on le d'une chose qui surpas^c ses forces,
donne a faire ; comme, lorsque j'ai Pothier, Louage, 404, No. 525.
fait marche avec un peinlre pour (/;) Harmer v. Corneliu';, 5 C. B. N.
peindre un plafond, il ne lui e^t pas S. 246 ; 28 L. J., C. P. 85.
permis de la faire faire par un autre
Sec. I.] WORK AND LABOR. 559-
balances to the injury of the employer, he is responsi-
ble in damages to the latter, (z) If a carpenter
undertakes to roof a barn, and employs defective
materials, or does his work so negligently and unskill-
fuUy that the thatch sinks and lets in the wet, he is
liable for the injury to the building so occasioned, (^k)
Where a carpenter undertook to build a booth on a
race-course, and the booth fell down in the middle of
the races from bad materials and bad workmanship, it
was held that the carpenter was responsible for the
damage that had been sustained. (/) The degree of
skill and diligence which is required from the work-
man rises in proportion to the value, the delicacy, and
the beauty of the work, and the fragility and brittle-
ness of the materials. The Roman law required the
exercise of greater skill and diligence from workmen
who undertook the delicate work of raising or remov-
ing pillars of granite and porphyry, than from those who
were employed upon common materials; and greater
care from a person who undertook to remove a column,
than from a man who was employed in the transport
of a rude block of stone, (iii)
875. Work rendered useless by the negligence or
incompetence of the workman. — Whenever the work
contracted to be done is a work of art and skill, and
the undertaker, being charged with the bare work, ex-
ecutes it so negligently and unskillfuUy as to render it
utterly useless to the employer, he can not call upon
the latter for payment of it. Thus, where a builder
contracted with the defendant to re-build the front of
his house, and built it out of the perpendicular, so that
(«■) Stoi-y V. Richardson, 8 Sc. 291 ; 378. Pothier, Louage, No. 427 ; Tr.
5 Bing. N.C. 123. des Oblig., 163.
(Ji) Basten v. Butter, 7 East, 479. (/) Broom v. Davis, 7 East, 480,
Moneypenny v. Hartland, 2 C. & P. ii. (a).
(/«) Dig. lib. 19, tit. 2, lex 25, § 7.
56o LAW OF CONTRACT. [Bk. II. Ch. III.
it was in danger of falling-, and required to be taken
down, it was held that the builder could not maintain
an action in respect of such defective execution of the
work. " If there has been no beneficial service," ob-
serves Lord Ellenborough, '' there shall be no pay."
(li) And where a man undertook to erect a stove in
a shop, and to lay a tube under the floor, which would
carry off the smoke, and the plan entirely failed, and
the stove could not be used, it was held that he was
not entitled to an action in respect of his work and
labor in the erection of the stove, (o) " If a man has
contracted with another to build him a house for a cer-
tain sum, it would not be sufficient for him to show
that he had put together such a quantity of brick and
mortar ; he ought to be prepared to show that he had
done the stipulated work according to the contract."
(;») When a building is so negligently constructed
as to be dangerous and unfit for use, the employer may
require the builder to take down the structure, and re-
build it ; and if the builder neglects so to do, and re-
fuses to fulfill his part of the contract, the employer
may give him notice to remove his materials from off
the land, and may resist payment of any portion of the
price of the work. If he retains the materials, and
makes use of them, he will be bound to pay their fair
value ; but if the materials are altogether useless, or
the employer has suffered from the breach of contract
on the part of the workman more damage and injury
than they are worth, he is not bound to pay any-
thing, {g)
(k) Farnsworthv. Garrard.iCampb. (;>) Le Blance. J., Basten v. Butter,
38. Denew v. Daverell, 3 Campb. 7 East, 484.
451. (?) Tindall, C. J., Hill v. Feather-
Co) Duncan v. Blundell, 3 Stark. 6. stonehaugh, 5 M. & P. 544, 548.
Hayselden v. Stuff, 5 Ad. & E. 161. Farnsworth v. Gerrard, i Campb. 38.
Pothier, Louage d'ouvrage, No. 434.
Sec. I.] WORK AND LABOR. 561
876. Useless and imskillftil professional services.
— If a surgeon requires his patient to undergo an oper-
ation which turns out to have been altogether useless
or unnecessary, he can not make it the subject of a
pecuniary claim or charge on such patient. If a med-
ical man ignorantly and unskillfully administers im-
proper medicines, and the patient, consequently, derives
no benefit from his attendance, the medical man is not
entitled to any remuneration for what he has done ;
but if he has employed the ordinary amount of skill in
his profession, and has applied remedies fitted to the
complaint, and calculated to do good in general, he is
■entitled to his hire and reward, although they may
have failed in the particular instance, such failure being
then attributable to some peculiarity in the constitu-
tion of the patient, for which the medical man is not
responsible, {r) If a surveyor, engineer, or architect,
from negligence or want of skill, gives his employers
a grossly incorrect estimate of the cost of certain works,
and thereby leads them into unnecessary expenses, he is
not entitled to be paid for his plans, estimates, and
specifications. (J) But if the incorrectness of the esti-
mate arises from inherent difficulties in the work itself,
the employer will not be relieved from the obligation
of payment. If a solicitor conducting a suit is guilty
■of misconduct and negligence, by reason whereof all
the previous steps taken in the cause become useless,
he can not recover his charges for any part of the busi-
ness he has done ; but if the suit fails from causes over
which the solicitor has no control, the case is other-
wise, if) If a solicitor issues a writ, and proceeds
(r) Kannen V. McMulIen, Peake, 83. 373. Long v. Orsi, 13 C. B. 615 ; 26
Hupe V. Phelps, 2 Stark. 480. L. J., C. P. 127. Stokes v. Trumper,
(j) Moneypenny v. Hartland, 2 C. 2 Kay & J. 232. Chapman y. Van
& P. 378. Toll, 8 Ell. & Bl, 396 ; 37 L. J., Q.
(f) Bracey v. Carter, 12 Ad. & E. B. i.
II. — •56.
562 LAW OF CONTRACT. [Bk. II. Ch. IIL
thereon in a court of special and peculiar jurisdiction,
he is bound to acquaint himself with the machinery
and practice of the court, and to see that it is adequate
for the purposes of the suit; and if the suit fails from
the ignorance of the solicitor in this respect, he can
not recover his costs and charges of the abortive pro-
ceedings. (v~) If a parliamentary agent employed to
obtain an act of parliament draws the clauses of the
bill himself, and frames them so negligently and care-
lessly that one of the main objects of the statute can
not be accomplished, the negligence may deprive him
of all right to remuneration, or it may go merely in
reduction of the value of his services, (^y)
Syj. Actions against solicitors, sturgeons, valuers,
&c.,for ncglige7ice. — Every solicitor employed by a
purchaser of freehold or leasehold property impliedly
undertakes to exercise reasonable care and skill in the
investigation of the title of the vendor. If his client
has purchased leasehold property under conditions
that he is to have no abstract of the vendor's title, and
that the lessor's title is not to be objected to, or gone
into, this will not exonerate the solicitor from the duty
of investigating the vendor's title so far as to ascertain
that there is a lease to him creating the interest he
professes to sell, and that it has been duly registered
where registration is necessary. (,:) But a solicitor is
not liable to an action for negligence, at the suit of
one between whom and himself the relation of solicitor
and client does not exist, for giving, in answer to a
casual enquiry, erroneous information as to the con-
tents of a deed, (a) A solicitor retained to defend an
(v) Cox V. Leech, i C. B. N. S. 617 ; As to the receipt of money for invest-
26 L. J., C. P. 125. ment by one of several solicitors in
{y) Baker v. Mihvard, 8 Ir. C. L. R. partnership, see ante.
514- {a) Fish V. Kelly, 17 C. B., N. S.
Cz) Allen V. Clark, 11 W. R. 304. 194.
Sec. I.] WORK AND LABOR. 563
action is not guilty of actionable negligence if he
enters into a compromise without the consent of his
client, provided he acts bon^ fide, and with reasonable
care and skill, and the compromise is for the benefit
of the client, and is not made in defiance of his express
prohibition, (b) But, if a soHcitor, having express
directions from the client to the contrary, nevertheless
enters into a compromise, he is liable- to an action for
damages, though the damage actually sustained is
nominal, and though the compromise is reasonable
and bona fide and for the benefit of the client, (c) By
the 33 & 34 Vict. c. 28, agreements may be made
between solicitors and their clients with respect to the
remuneration of the former ; but, by sect. 7, a provision
in any agreement that the solicitor shall not be liable
for negligence, or that he shall be relieved from any
responsibility to which he would otherwise be subject
as such solicitor, is wholly void.
To render a medical man liable for negligence or
want of due care or skill, it is not enough that there
has been a less degree of skill than some other medi-
cal men might have shown, or a less degree of care
than even he himself might have bestowed ; nor is it
enough that he has himself acknowledged some degree
of want of care ; there must have been a want of com-
petent and ordinary care and skill, and to such a de-
gree as to have led to a bad result, (d)
{b) Cho-wn V. Parrtt, 14 C. B,, N. (c) Fray v. Voules, I El. & El. 839 ;
S. 74 ; 32 L. J., C. P. 197. Prestwich 28 L. J., Q. B. 232.
V. Poley, 18 C. B., N. S. 806 ; 44 L. (</) Rich v. Pierpont, 3 F. & E. 35.
J,, C. P. 189.
' A physician and surgeon, in the performance of his profes-
sional duties, is liable for injuries resulting from want of ordi-
nary diligence, care, and skill. McNevins v. Lowe, 40 111. 209 ;
Landon V. Humphrey, 9 Conn. 209; Ritchey v. West, 23 111.
385 ; Graham v. Gautier, 21 Tex. 11 1 ; Howard v, Grover, 28
Me. 777; Patten V. Wiggin, 51 Id. 594; Leighton v. Sagent, 27
564 LAW OF CONTRACT. [Bic II. Ch. III.
If I hire the labor and services and skill of a sur-
geon, an apothecary, a farrier, a solicitor, or any other
professional person, he impliedly undertakes for the
N. H. 760; Bellinger v. Craigue, 31 Barb. 534; Gallaher v.
Thompson, Wright, 466; Craig v. Chambers, 17 Ohio St. 253;
McCandless v. McAVha, 22 Pa. St. 261; Scudder v. Crossan,
43 Ind. 343. But if the patient's own negligence contributes
to the injury or the damage, he can not recover against the
physician. Hubbard v. Thompson, 109 Mass. 286 ; Scudder v.
Crossan, 43 Ind. 343. The law requires the use of ordinary
skill and diligence, and it is erroneous to charge the jury that
the law requires " such reasonable skill and diligence as are
ordinarily exercised in the profession by thoroughly educated
surgeons, having regard to the improvements and advanced
state of the profession at the time; " the true measure is that
degree of skill ordinarily exercised by the profession as a
whole — not that exercised by the thoroughl)- educated, nor
merely of the well educated, but of the average. Smothers v.
Hanks, 34 Iowa, 286; Almond v. Nugent, Id. 300; and see
Chamberlin V. Morgan, 68 Pa. St. 168; Wood v. Clapp, 4 Sneed,
65 ; Young V. Morrison 14 Ind. 595 ; Teft v. Wilcox, 6 Kan. 46
Heath v. Glisan, 3 Oreg. 64; Boydston v. Gillner Id. 118
Williams V. Poppleton, Id. 139; West v. Martin, 31. Mo. 375
Carpenter v. Blake, 60 Barb. 488. And it is wholly immate-
rial whether the physician has shown greater skill in treating
other persons. Id. It is the patient's duty to conform to the nec-
essary prescriptions and treatment of the physician, if they be
such as a surgeon or physician of ordinary skill and care
would adopt or sanction, and, if he will not, or, under the press-
ure of pain, can not, the surgeon or physician is not responsi-
ble for injury resulting therefrom. Haire v. Reese, 7 Phil.
138. No presumption of the absence of proper care or
skill on the part of a surgeon or physician arises from the
fact that a patient under his care does not recover, or that a
complete cure was not effected. Id. And where a surgeon's
want of skill and care was set up in defense to his action for
the value of his services, the burden is on the defendant to
show that no want of care on his own part tended to prevent
a cure, or to consummate the injury of which he complains.
Baird v. Morford, 29 Iowa, 521. A surgeon is entitled to com-
pensation for services which are beneficial to the patient, even
if more skillful services might have been rendered by others.
Alder v. Buckley, i Swan. 69. The law requires that a dentist
Sec. I.] M^ORK AND LABOR. 565
possession and exercise of ordinary skill and know-
ledge in the practice of his art or profession, and is
lesponsible for any injury I may sustain from his neg-
should use a reasonable degree of skill and care in his
professional operations, not that he is capable of the highest
attainments of his profession. Simonds v. Flenry, 39 Me. 155.
And a dentist using chloroform is only required to look to the
natural and probable effects of such agent, and can not be held
liable for results arising from the peculiar temperament or
condition of the person, of which he had no knowledge. Boyle v.
W.inslow, 5 Phil. (Pa.) 136. In actions for malpractice against
physicians and surgeons, evidence ofthe following facts has been
held admissible, " that the point of amputation was too high '
and that " the danger of death was increased by choosing that
point " (Wright v. Hardy, 22 Wis. 348), the circumstances in life
of the parties (Fowler v. Sergeant, i Grant's Cas. 355), that
the surgeon had received a good surgical and medical educa-
tion, and was "regularly educated" and "skillful" (Leigh-
ton V. Sargent, 27 N. H. 460), that defendant's treatment ofthe
case was " according to the botanic system of practise and
medicine which he professed and was known to follow "
(Bowman v. Woods, Greene, Iowa 441). But, without
peculiar allegations to render it admissible, it is inadmissi-
ble to show facts " as to the weakness of the bones of plaintiff's
family;" West v. Martin, 31 Me. 375; nor the opinion ofthe
physician (he being sworn for the purpose) with whom defend-
ant studied, as to his professional skill ; Leighton v. Sargent,
31 N. H. iig; nor his general reputation among the profess-
ion ; Id. ; nor is the testimony of other physicians as to their
opinion of the course pursued by defendant, as drawn from
the defendant's declarations as to cases alleged to have been
treated by him, or from the witness's own observation of the
symptoms ; Id. ; nor evidence of defendant's treatment of
other surgical cases, years after the treatment in question;
Id. ; nor that the physican abandoned his patient, or re-
fused to prescribe for him; Bemus v. Howard, 3 Watts.
55. Evidence is permitted, in cases of malpractice, where it
appears that other medical men were called in, as to the cus-
tom of physicians in regard to consultations, but a medical
witness tor the iilaintiff can not be asked as to the measure of
the defendant's responsibility for Jris patient. Mertz v. Det-
weiler, 8 Watts and S. 376. In such an action it is not, how-
ever, improper to exhibit the injured limb to the jury. Fow-
566 LAW OF CONTRACT. [Bk. II. Ch. III.
lect to exercise such skill, (e) A person who holds
himself out as a valuer of ecclesiastical property is
bound to bring to the performance of the duty he
undertakes a knowledge of the general rules applica-
ble to the subject and of the proper mode of valuing
ecclesiastical dilapidations. (/") But, where the sell-
ing broker was selected by both buyer and seller to
determine whether goods sold were of a fair average
quality, it was held that he was not liable for want of
skill. (_^) Every solicitor is responsible for gross
ignorance, or gross negligence, (/^) ' but not for erro-
(e) Seare v. Prentice, 8 East, 352. {g) Pappa v. Rose, L. R., 6 C. P.
Slater v. Baker, 2 Wils. 359. Hancke 626 ; ib., 7 C. P. 525 ; 41 L. J., C. P.
V. Hooper, 7 C. & P. 84. Lanphier II, 187.
V. Phipos, 8 C. & P. 479. {h) Pitt v. Yalden. 4 Burr. 2060.
if) Jenkins v. Betliam, 15 C. B. Cooper v. Sleplienson, 21 L. J., Q. B.
168. 229.
ler V. Sargent, i Grant Cas. 355 ; and see as to these actions
generall}', Tvvombly v. Leach 11 Cash. 397 ; Chamberlin v.
Porter, 9 Minn. 260; Wilmot v. Howard, 37 Vt. 447; Gran-
nis V. Brander, 5 Day, 260 ; Raynolds v. Graves, 3 Wis.
416.
' And it seems that if he excuse himself for such neglect
upon the ground that he was not satisfied of the expediency of
taking the proceeding, and doubtful if it were to his client's best
interests, he should so inform his client, and request specific in-
structions. Dearborn v. Dearborn, 15 Mass. 316. But see
Crookerv. Hutchinson, 2 D. Cliip. (Vt.) 1x7, which holds that if
not specially directed to prosecute, he is justified in refraining, if
he be influenced by a prudent regard for his client's interest. It
was held in Cox \. Livingston, 2 Watts and S. 103, that if an
attorney is instructed to bring suit upon a note, it is not dis-
cretionary with him to do so or mA, but he must follow his in-
structions, even though he acts in good faith, and, as he judge
for the best interests of his client ; but see Hogg v. Martin
Riley, 156. No universal rule as to the amount ot skill re-
quired of lawyers in conducting proceedings for their clients
is deducible from the cases ; lout the question of negligence
will be one for the jury. Hogg v. Martin, Riley, 256 ; Evans v.
Watrous, 2 Porter, 205. He would not, for instance be lia-
ble for negligence in rcfraininn: froin brinjrinw a suit aeainst
Sec. I.] WORK AND LABOR. 567
neous advice and mistakes not amounting to evidence
of positive incompetency for the discharge of his pro-
fessional duties, (t) '
(/) Turves v. Landell, I2 CI. & Fin. 98. Shilcock v. Passman, 7 C. & P'
289.
persons whom he knew to be insolvent, where he Tf as given a
■demand against such persons, and told to do the best he could
with it ; and a judgment obtained against him at law on that
ground was restrained by injunction in Wright v. Ligon, i
Harp. Eq. (S. C.) 166. Nor is he liable to an action for neg-
ligence where he acts honestly and to the best of his ability.
Lynch v. Commonwealth, 16 Serg. and R. 368. There is no
implied agreement in the relation of counsel and client that
the proceedings undertaken will terminate successfully, or
that the counsel's opinion will be ultmately sustained by a
court of last resort ; counsel only undertakes to avoid errors
which no member of the profession, of ordinary prudence, dili-
gence, or skill would commit. Bowman v. Tallman, 27 How.
Pr. 212 ; Gallaher v. Thompson, Wright, 466 ; and see Weima
V. Sloane, 6 McLean, 259; Ex parte Gibberson, 4 Cranch, 503.
An attorney is not bound to be personally present at the
proceedings in which he is employed. Williams v. Reed, 3
Mass. 405 ; Cox v. Sullivan, 7 Ga. 44. Nor is it negligence in
an attorney to unite secured with unsecured debts in a single
■suit. Williams V. Reed, 3 Mass. 405. An attorney was held
liable where he filled up a blank writ with the words "twe^lve
dollars " instead of " twelve hundred dollars," whereby his
client sustained a loss. Varnum v. Martin, 15 Pick. 450. It is
negligence in an attorney to disobey the instructions of his client.
Gilbert v. Williams, 8 Mass. 51; and ste post, note to § 920;
' Bowman v. Tallman, 40 How. Pr. i. An attorney can not
be charged with negligence when he accepts as a correct ex-
position of the law a decision of the supreme court of his
state, upon the question of the liability of stockholders of cor-
porations of the state in advance of any decision thereon by the
supreme court of the United States. Marsh v. Whitmore, 21
Wall. 178 ; but an attorney was held responsible for the damage
resulting to his client from the effects of his instructing him not
to answer a certain question ; Gihon v. Albert, 7 Paige, 278.
An attorney must disclose to his client the fact of his holding
an adverse retainer; though concealment of the fact will
not necessarily imply fraud; Williams v. Reed, 3 Mass. 405.
568 LAW OF CONTRACT. [Bk. II Ch. III.
878. Willful selection of unqualified persons. — •
The employer himself is bound to exercise ordinary
caution and discrimination in the choice and selection
or having attached goods, which were replevied, to omit
to defend the replevin suit. Smallwood v. Norton, 20 Me.
83 ; or to disregard a well known and clearly defined rule of
law. Goodman v. Walker, 30 Ala. 482. But a declaration
against an attorney for negligence, must aver the payment ot
his fees. Caviland v. Gale. 3 Cal. 108.
An attorney employed by trustees appointed by ;i public act
of the legislature is bound to know the extent of the authority
of the trustees who employ him. Butler v. Mitchell, 15 Wis. 355.
It is an attorney's duty, having undertaken to collect a debt, to
take the necessary proceedings to do it, and, if he neglect to take
such proceedings, he is liable to hisclient for any injury sustained
by reason of such neglect. Dearborn v. Dearborn, 15 Mass. 316 ;
Walpole V. Carlisle, 32 Ind. 415; Crooker v. Hutchinson,
" D. Chip. (Vt.) 117 ; and so as to other proceedings in his
client's interest; Stubbs v. Beene, 37 Ala. 627; Hughes v.
Bo3'ce, -^ I^a. Ann. .803; Walker v. Goodman, 21 Ala. 647;
Odlin V. Stetson, 17 Mc. 244; Phillips v. Bridge, ii Mass. 246;
Dearborn v. Dearborn, 15 Ma^s. 316; Crooker v. Hutchinson,
1 Vt. 73 ; McWilliams v. Hopkins, 4 Rawle, 3S2. Only reason-
able diligence is required in the case of an attorney, as in all
other cases ; Riddle v. Poorman, 3 Pa. 224; Watson v. Muir-
head, 57 Pa. St. 161 ; and he is only liable for gross negligence ;
Pennington v. Gell, ti Ark. 212 ; but see Cox v. Sullivan, 7 Ga.,
144; O'Barr v. Alexander, 37 Ga. 175 ; Holmes v. Peck, i R.
T. 242 ; Wilson v. Russ, 19 Me. 421 ; whicli hold that he would
be liable for ordinary neglect, to be determined by a reference
to the peculiar proceedings ii which he is employed, and he
is entitled to the ordinary presumption in his favor; Id.;
Holmes v. Peck, i R. T. 242. Unless the actual amount of loss
by his negligence is shown, an attorney is only liable for nomi-
nal damages, and he is only liable for the actual results of his
negligence at the most. Cox v. Sidlivan, 7 Ga. 44 ; Wilcox
V. Plummer, 4 Pet. 172; Suydam v. Vance, 2 McLean, 99 ;
Crrayson v. Wilkinson, 13 Miss. (5 Sm. & M.) 26S; O'Hara
V. Brophy, 24 How. Pr. 379; Miller v. Wilson, 24 Pa. St. 114;
Stephens V. White, 2 Wash. (Va.) 203; Oldham v. Sparks, 28
Tex. 425; Reilly v. Cavanangh, 29 Ind. 4^5; Eccles v. Ste-
phenson, 3 Bibb, 517 : Rootes v. Stone, 2 Leigh, 650 ; but he
is not liable for interest on the debt lost through his negli-
gence ; Rootes V. Stone, 2 Leigli, 650; nor for the loss of
Sec. I.] JVORK AND LABOR. 569
of the party he emplo)'S. If he selects a common
quack or an unauthorized practitioner, the latter is
responsible only for a reasonable and boni fide exer-
tion of his capacity. He is bound to exercise such
skill as he actually possesses ; and, if he has done his
best and failed, he can not be made responsible for a
want of skill ; for it was the employer's own fault to
trust an unlearned and unskillful person, known not
to be regularly and properly qualified. If the em-
ployer "voluntarily employs in one art a man who
openly exercises another, his folly," observes Sir
William Jones, " has no claim to indulgence; and,
unless the latter makes false pretensions or a special
undertaking, no more can be fairly demanded of him
than the best of his ability. The case which Sadi re-
lates with elegance and humor in his Gulistan, or Rose
Garden, is not inapplicable to the present subject. 'A
man who had a disorder in his eyes called on a farrier
for a remedy ; and he applied to them a medicine
commonly used for his patients. The man lost his
sight, and brought an action for the damages ;' but the
judge said, 'No action lies; for, if the complainant
had not himself been an ass, he would never have
employed a farrier.' And Sadi proceeds to intimate
that, ' if a person will employ a common mat-maker
to weave or embroider a fine carpet, he must impute
the bad workmanship to his own folly.' " (A)
879. Bailment of materials to workmen to be
manufactured or repaired for hire. — When chattels
or materials for work have been bailed or delivered to
a workman to be repaired, made up, or dealt with by
(k) Bailments, citing Rosar. Polit. i,. 7.
evidence of a debt. Huntington v. Rumril, 3 Day, 390 ; nor
for theloss of papers stolen from his office; Hill v. Barney,
18 N. H. 607.
570 LAW OF CONTRACT. [Bk. II. Ch. III.
him in the way of his trade, he is bound to take all
reasonable and ordinary forethought and precaution
for their protection and preservation ; and, if a loss
has occurred from robbery, or from fire or inundation,
or from waste or decay, he must show that he had
taken all such precautions as are ordinarily taken by
prudent men to guard against the mischief
880. Re-delivery of materials fzirnished by the
employer. — If the bailor, before the work has been
done, countermands the order for it, he has a right to
the immediate return of the chattel, although, by his
having countermanded the order, he may render him-
self liable to an action for a breach of contract. (/)
If the bailee by mistake, or in obedience to a forged
order, returns the chattel to the wrong person, and the
article is lost, he is responsible for the loss. {111)
881. Contracts for the performance of work — -
Building contracts — Prevention of performance — •
Damages. — Where a contract has been entered into
for the building of a house, and the owner refuses to
permit the building to be completed, and prevents
the workman from earning the stipulated remunera-
tion, the measure of damages in respect of so much of
the contract as remains unperformed is the difference
between what the performance would have cost the
plaintiff" and the price which the defendant agreed to
pay. {n) And in all cases of prevention of perform-
ance, where the plaintiff" has been deprived by the
defendant of the benefit of the contract, the plaintiff
is entitled to recover what he has lost by the act of
the defendant. (<?)
(/) Lilley v. Banisley, i C. & K. (») Masterton v. Mayor, &c., Brook-
344' etyre, ante.
{m) Wilson v. Powis, il Moore, 543. {o) Planch^ v. Colburn, i M. & Sc.
Lubbock V. Inglis, i Stark. 104. 51. Inchbald v. West, &~.., Coffee Co,,
aiiie.
Sec. I.] WORK AND LABOR. 571
When a contract for the performance of work and
labor has not been fully carried out by the workman,
but the employer has, and retains, the benefit of a
part performance, and the contract is divisible and ap-
portionable, or the plaintiff has been discharged from
his liability to complete the portion unperformed, the
measure of the damages is the residue of the full sum
agreed to be paid, after deducting such an amount as
will enable the defendant to get the contract com-
pleted and carried out according to the original
intention of the contracting parties. (/) If the plain-
tiff has contracted to do the work and supply materials
for a fixed sum, and the defendant afterwards finds
some of the materials, the defendant is entitled to
deduct the fair value of his materials from the contract
price. (^) Where a judgment had been recovered by
the plaintiff against a relation of the defendant, and
the latter promised the plaintiff that, if he would for-
bear to issue execution upon the judgment, the de-
fendant would erect and finish a substantial house,
and cause a lease thereof to be granted to the plaintiff,
and the plaintiff promised that such lease, when
granted, should be in full satisfaction of the judgment,
it was held that the measure of damages from the
breach of the defendant's promise was the value of the
house, if it had been erected, and of the lease thereof
and not the difference between the value of the judg-
ment and the value of the house and lease, (r)
if) Ante. Cutler v. Close, 5 C. & 772.
P. 339. (r) Strutt V. Fai-lar, it M. & W.
(y) Newton v. Forster, 12 M. & W. 249 ; 16 L. J., Ex. 84.
572 LAW OF CONTRACT. [Bk. II. Ch. III.
SECTION II.
MASTER AND SERVANT.
882. Of contracts of hiring and service. — -The
contract of letting and hiring relates as frequently to
human labor and skill, care, and attention, as to move-
able and immoveable property, realty, and personalty ;
the labor and services of workmen and artificers being
daily hired to be employed in domestic affairs, in the
cultivation of land, in the building of houses, in the
manufacture of materials furnished to be worked up,
and upon chattels which have been bailed or delivered
to the workman to be mended or repaired, {a) In
order to constitute a contract of hiring and service,
there must be either an express or an implied mutual
engagement binding one party to employ and remun-
erate, and the other to serve, for some determinate
term or period. It has been said that, if the employer
merely covenants to pay so long as the servant con-
tinues to serve, leaving it. optional, either with the
servant to serve, or with the employer to employ,
there is no contract of hiring and service, {f) But
this decision has been doubted ; {c) and, if the servant
binds himself to serve for some determinate term, and
the employer expressly or impliedly covenants or
promises to retain the servant in his service for the
term, there is a contract of hiring and service.
Where the plaintiff covenanted that his son should
serve and continue with the defendant as his assistant
in the art of a surgeon-dentist for five years, and should
(«)Ostenditdefinitio,duo esse genera {b) Williamson v. Taylor, 5 Q. B. 175.
locationis, rerum imam, alteram oi^er- (,;) Emmens v. Elderton, 4 H. L.
arum sen factorum. Vin. Com. lib. C. 624 ; 13 C. B. 495. Whittle v.
3, tit. 25, 757. Pandect. Pothier, lib. Fiankland, 2 B. & S. 49 ; 31 L. J. M.
19, tit. 2, Art. I. C. 81.
Sec. II.J MASTER AND SERVANT. 573
execute and perform such work and service in the art
as the defendant should direct, and the defend-
ant covenanted with the plaintiflF that he would,
during the term of five years, in case the son should
well and faithfully serve, &c., pay him certain weekly
wages, it was held that, as there was no express cove-
nant on the part of the defendant to employ or retain
the son in the defendant's service for five years, the
defendant was at liberty to dismiss him whenever he
pleased, and discontinue the payment of the weekly
wages, (d) But this decision is not reconcileable
with other authorities ; and it is apprehended that,
wherever one party covenants to serve for a particu-
lar period, and the other covenants to pay him a salary
or wages for the service during the term, there is an
implied covenant on the part of the latter to retain the
servant in his service during the term, provided the
latter serves faithfully, and is guilty of no misconduct
warranting a dismissal. Where it was agreed between
the plaintiff and a joint-stock company that the plain-
tiff should be the permanent attorney of the company,
and should receive and accept a salary of ;^ 100 a year
in lieu of his annual bill of costs, a"nd should for such
salary advise and act for the company on all occasions,
it was held that there was an implied contract on the
part of the company to retain the attorney in their
service for one year at least, and pay him the salary he
had agreed to accept, but that the word " permanent "
did not confer any durable appointment beyond the
year, so as to prevent the employer from withdrawing
the retainer, (e) ^
(d) Dunn v. Sayles, 5 Q. B. 685. Ell. & Bl. 99. Hartley v. Cummings,
{e) Emmens v. Elderton, 13 C. B. 17 L. J., C' P. 84. Pilkington v.
495 ; 4 H. L. C. 645. Reg. v. Welch, Scott, 15 M. & W. 660. M'lntyre v.
2 Ell. & BI. 362. Rust V. Nottidge, i Belcher, 32 L. J., C. P. 254.
' The term " employee" in its ordinary and usual sense in-
574 LAW OF CONTRACT. [Bic. II. Ch. III.
Whenever one party agrees to retain or hire, and
another agrees to serve for a certain term, at a specified
salary, there is a contract of hiring and service, al-
though the servant may never be called upon or re-
quired to do any work. There are many cases of hir-
ing and employment of parties to serve in some par-
ticular character or capacity where the servant is
bound to serve if called upon, and is entitled to his
salary by holding himself in readiness to serve, al-
though his services are not called into requisition by
the employer. In these cases there is a continuous
hiring or retainer ; and the readiness and willingness
to serve on the part of the servant are equivalent to
actual service.'
883. Aidlicntication and proof of the contract. —
A contract of hiring and service need not be authen-
ticated by writing, unless the hiring exceeds a year in
duration ; ^ and if reduced into writing, it need not be
eludes all whose services are rendered for another; it is not
restricted to any kind of empluvnicnt or service, but includes
as well tire professional man as the common laborer. Gurnev v.
Atlantic, &c., Ry. Co., 58 N. Y. 358. An order appointing a re-
ceiver of a railroad company directed him, among otlier things,
to pay debts " owing to the laborers and emplovces" of the com-
pany " for labor and services actually done in connection with
tliat company's raihvavs." Held, that it included a claim of
counsel for professional services rendered by him on employ-
ment of the company in litigations relating to the raihva}-, its
interests, and business. Id. ^V police officer is not a servant <if
the city appointing him in anv such sense as to take away his
right of action against it for damages sustained by him by
reason of its defective highway; Kimball v. Boston i Allen,
417 ; nor is a fireman ; Palmer v. Portsmouth, 413 N. H. 265 ;
nor does the relation exist between one who employs a con-
tractor to do certain work, and the servant of such contractor
engaged in the work ; Bartlett v. Singer Mfg. Co., i Sweeny,
595 ; West v. St. Louis, &c. R. R., 63 111. 545.
' Parsons on Contracts, 95.
" Ante, vol. i. § 21::, p. 317.
Sec. II.] MASTER AND SERVANT. 575
stamped, if it is a contract for the hire of "laborers,
artificers, manufacturers, or menial servants," and not
a contract of apprenticeship. ' In the absence of an
express contract between the parties, a hiring may be
presumed from the mere fact of the service, unless the
service has been with near relations. If a man, for
example, serves a stranger in the capacity of a clerk,
or of a menial servant, or servant in husbandry, for a
continued period, the law presumes that the service
has been rendered in fulfillment of a contract of hiring
and service ; and if the party has- served without any-
thing being said as to wages, the law presumes that
there was a contract for customary and reasonable
wages, (y) ^ But if the service has been with the
parent or uncle, or other near relation of the party
serving, a hiring can not be implied or presumed from
it, but an express hiring most be proved in order to
support a claim for wages ; for the law regards services
rendered by near relations to one another as gratuitous
acts of kindness and charity, and does not presume
that they are to be paid for, unless there is an express
contract to that effect, {g) And if a poor person is
taken out of charity and provided with food, lodging,
clothes, and necessaries, and set to work, no contract
of hiring and service is implied therefrom, however
long the party may continue to serve. (/^)
884. Yearly hirings — Domestic servants. — When
(/) Lord Ellenborougli, C. J., 15 P. L.C. 206, case 26g. R. v.Sow.i B. &
East, 454. Phillips v. Jones, i Ad. & Aid. 181. R. v. St. Mary Guildford,
E. 333. 2 Bott. 2og, c. 273 ; Cald. 521. R. v.
(g) Davies v. Davies, 9 C. & P. 87. Stokesley, 6 T. R. 757.
Gregory Stoke v. Pitminster, 2 Bott. {h) R. v. Weyhill, I W. Bl. 206 ; 2
Bott. 207, case 271.
' Post, § 906.
' See Woodward v. Washburn, 3 Den. 369 ; Moore v.
Tickee, 3 Dev. L. 244.
576 LAW OF CONTRACT. [Bk. II. Ch. III.
the employment of a servant is of a permanent nature,
and annual wages are reserved, the hiring is a yearly
hiring ; and when the servant is not a household or
domestic servant, the hiring can not be put an end to
by either party without the consent of the other, before
the termination of the current year. (?')' A hiring of
a servant in husbandry, for example, is an indefeasible
yearly hiring, analogous to a yearly tenancy. At the
end of each year a new contract arises to serve for the
year commencing, which will continue as long as the
parties may please, and can only be terminated at the
end of the current year, unless the servant is guilty of
misconduct. (/§) A general hiring of a clerk, foreman,
journeyman, or traveler, at annual wages, "with board
in the house," is, in general, a yearly hiring, which can
only be put an end to by consent, or at the expiration
of the current year ; (/) and so also is a general hiring
of a governess at annual wages, with board in the
house; (nt) but the duration of the term of hiringwill
be regulated and controlled by custom and usage and
(z) Emmens v. Elderton, ante. 823, No. 257. Turner v. Robinson,
{k) R. V. Lyth, 5 T. R, 337 ; 3 ib. 5 B. & Ad. 789 ; 2 N. & M. 829.
76. Davis V. Marshall, 9 W, R. 520.
(/) Beeston v. CoUyer, 12 Moore, {m) Todd v. Kerrich, 8 Exth. 151 ;
552. R. V. Batheaston, Burr. Set. Gas. 22 L. J., Ex. i.
' A hiring of personal service for which payment is made
quarterly is not necessarily a hiring by the quarter, or termin-
able by a quarter's notice. Tatterson v. Suffolk Mfg. Co., 106
Mass. 56. A and B agreed orally that B should hire his
services to A at a yearly rate. B served a year, and began
the second year without a new bargain. Held, in an action by
B for his wages during his second year, that the original ne-
gotiations between the parties were competent evidence to
show the terms of the contract, express or implied, under
which the parties continued their relation ; and that the statute
of frauds was no bar to the action. Ib. ; and see Jordan v.
Foxworth, 48 Miss. 607 ; Beach v. Mullin, 34 N. J. L. 343.
Sec. I I.J MASTER AND SERVANT. 577
the surrounding circumstances of the case. («) A
general hiring of postilions and ostlers, upon the terms
that they are to receive board and lodging in the house,
and the vails or perquisites of the stables in lieu of
wages, is a yearly hiring; {0) and so also is a general
hiring of a warehouseman, " the employer engaging to
pay £\2 \os. per month for the first year, and advance
;^.io per annum until the salary should be ^180 ;" (/)
also a general hiring of editors, sub-editors, reporters,
and other persons regularly employed upon old-stand-
ing and permanently-established newspapers and peri-
odicals, {(j) Reservations of quarterly, monthly, or
weekly wages are not inconsistent with a yearly hiring.
" Whether the wages be to be paid by the week or the
year can not make any alteration in the duration of
the service, if the contract were for a year ;" (r) but if
there has been no continued service for a lengthened
period, and there is nothing in the nature of the em-
ployment, and no particular custom or usage leading
necessarily to the conclusion that the hiring was for a
year, the payment of weekly or monthly wages raises
a presumption in favor of a weekly or monthly hiring.
(J) A " hiring for twelve months certain, and to con-
tinue from time to time until three months' notice in
writing be given by either party to determine the
same," is a hiring for a year certain only ; and either
party is at liberty to put an end to it at the expiration
of the year, by giving three months' previous
notice. {£)
(«) Fairman v. Oakford, 5 H. & N. Williams v. Byrne, 2 N. & P. 139.
'636 ; 29 L. J., Ex. 459. (f) Kenyon, C. J., 4 T. R. 246. R.
{0) Burr. Set. Cas. 759, No. 232. 2 v. Seaton, Cald. 440.
Bott. 229, 230, pi. 294, 297. (j) R. V. Pucklechurch, 5 East, 384.
(/) Fawcett v. Cash, 5 B. & Ad. Baxter v. Nurse, 7 So. N. R. 801 ; 6
.908. M. & Gr. 935.
(q) Holcroft V. Barber, I Car. & {t) Brown v. Symons, 8 C. B. N. S.
Kirw. 4. Baxter v. Nurse, ib. 10. 208 ; 29 L. J., C. P. 251.
II.— 37
578 LAW OF CONTRACT. [Bk. II. Ch. IIL
885. Indefeasible and defeasible yearly hirings —
MontKs warning or a month's wages. — If by the
custom or usage of trade the hiring may be put aa
end to and the contract dissolved, by notice given by
either of the parties, the hiring is a conditional or de-
feasible yearly hiring, determinable by giving the
customary notice at any time during the term. By
the custom of particular trades a general hiring of a
commercial traveler is a hiring for a year, subject to
an implied understanding that either party may de-
termine the engagement by giving three months'"
notice, {ti) A general hiring of menial or household
servants, such as cooks, scullions, housemaids, foot-
men, butlers, coachmen, grooms, where no time is-
mentioned for the duration of the service, is a hiring
for a year, and so on from year to year, defeasible by
custom and usage, at the option of either of the parties,,
on giving a month's warning, or paying or tendering
a month's wages. If the contract is put into writing,
the customary power of defeasance is impliedly an-
nexed to the express terms of the written agreement,
unless the custom is excluded by express words, (v).
A servant may be a menial servant, and as such
clothed with this implied power of defeasance,
although he does not reside within the walls of the
master's house. This has been held to be the case
with a head gardener hired for a year at ;^ioo wages,,
with a house in the master's grounds, and the privilege
of taking in apprentices for a year at ^15 premium ;
(_)/) also with a huntsman engaged at a salary of ^loa
a year, with a house to live in and perquisites, (z)
(u) Metzner v. Bolton, 9 Exch. (y) Nowlan v. Ablett, 2 C. M. &
518 ; 23 L. J., Ex. 130. R. 57.
(v) Johnson v. Blenkensop, 5 Jur. (=) Nicoll v. Greaves, 17 C. B., N.
870- S. 27 ; 33 L. J., C. P. 259.
Sec. II.J master AND SERVANT. 579
When a power of defeasance is vested in the parties
either by custom or special agreement, or the contract
is made defeasible upon the happeninig of a given
event, the hiring is nevertheless a yearly hiring; so
that, if the power of defeasance is not exercised, and
the contract is permitted to run on, and the service to
continue for a year, there is a year's hiring and service,
which will gain a settlement under the poor laws, (a)
" It is a yearly hiring, notwithstanding the power of
determining it, if that is not exercised before the ex-
piration of the year. The contingency not having
happened, and the contract not having been defeated
during the year, it enures after the year's service as a
yearly hiring." (d) A servant may engage himself to
serve for a certain determinate period, but may give
the employer the option of determining the contract
and dismissing him at any period of the service.
Where the engagement of a clerk or a superintendent
was to be for three years, " at the option " of the em-
ployer, at a yearly salary, it was held that this was a
contract binding the servant to serve three years, and
giving the employer the option of determining the
contract at the end of each year by a proper notice,
but not of dismissing the servant at any time ; that
the option to be exercised by the employer was
whether the servant was to remain for one, two, or
three years, and that, if he was dismissed in the middle
of a current year, he was entitled to compensation. (^)
886. Hiring by the month and week. — Where a
{a) R. V. Atherton, Burr. Set, Gas. {b) R. v. Sandhurst, 7 B. & C. 562 ;
203, No. 71. R. V. Birdbrooke, 4 T. R. i M. & R. loi. R. y. Byker, 3 D. &
246. R. V. Farleigh Wallop, i B. & R. 336 ; 2 B. & C. 119. R. v. Lidney,
Ad. 340, 342. R. V. New Windsor, Burr. Set. Cas. i.
Burr. Set. Cas. 22, No. 7. R. v. Gt. (<:) Down v. Pinto, g Exch. 327 ; 23
Yarmouth, 5 M. & S. 114- R- v. L. J. Ex. 103.
Northwold, 2 D. & R. 792.
58o LAJV OF CONTRACT. [Bk. II. Cii. III.
journeyman miller was hired " at monthly wages, with
liberty to depart at a month's wages or a month's
warning," the hiring was held to be a hiring by the
month ; (d ) but, when the wages are reserved weekly
with a proviso for a month's warning, the presumption
is in favor of a conditional and defeasible yearly hiring.
If there be anything in the contract to show that the
hiring was intended to be for a year, then a reserva-
tion of weekly wages will not control that hiring.
But, if the payment of weekly wages be the only cir-
cumstance from which the duration of the contract is
to be collected, it must be taken to be only a weekly
hiring, (e) " The mere arrangement," observes Bayley,
J., " that the wages shall be at one rate in the summer
and at another in the winter does not shovv^ that the
parties contemplated a service to endure through the
summer and winter, and therefor that they intended a
hiring for a year ; but shows only that they intended
that, if the servant, being hired at weekly wages,
should remain till the summer, he should then have
so much per week. The true meaning of such an
arrangement is merely this : that the servant's wages
as a weekly servant are to be regulated by the
seasons." ( /) But, if the nature of the employ-
ment or the terms of the contract are inconsistent
with a weekly hiring, the reservation of weekly
wages will be regarded merely as a mode of payment,
and not as an indication of the duration of the
{d) R. V. Clare, 2 Bott, 229, pi. Baxter v. Nurse, 7 Sc. N. R. 801 ; 6
295. M. & Gr. 935. R. V. Elstack, 2 Bott.
(e) EUenborough, C. J., R. v. Dod- 227, pi. 292. R. v. Dedham, 2 Bott.
derhill, 3 M. & S. 245. Burr. Set. 227, pi. 292. R. v. Warminster, 9 D.
Cas. 280, No. 98. K. V. Pucklechurch, & R. 70. Evans v. Roe, L. R., 7 C.
5 East, 384. R. V. Hanbury, 2 East, P. 138.
425. R. V. Mitcham, 12 East, 352. (/) R. v. Rolvenden, i M. & R.
Ashurst, J., R. v. Newton Toiiey, 2 691. R. v. Dodderhill, 3 M. & S.
T. R. 455. R. V. Odiham, ib. 622. 243. R. v. Lambeth, 4 ib. 315.
Sec. II.] MASTER AND SERVANT. 581
contract, {g) Thus, the presumption of a weekly
hiring resulting from a reservation of weekly wages is
rebutted by a stipulation for a fortnight's or a month's
notice to quit, (^h) '
887. Service at will. — A boy was employed to
work " for meat, drink, and clothes, as long as he had
a mind to stop," and served for two years upon these
terms ; and the service was held to be a mere service
at will, (z) So, where an assistant workman was "to
come and go as he liked," and au ostler and his master
were " to be at liberty to separate when they pleased,"
the service was held to be a service at will, (^k) In
these cases there is in truth no contract of hiring at
all. (/) The transaction amounts merely to an
authority to serve upon certain terms. If the work is
actually performed and accepted, the law raises an
implied promise of remuneration from the employer
to the workman ; but the former is not bound to pro-
vide the work ; nor is the latter bound to execute it.
888. Rights and liabilities of master and servant.
— It is the first duty of the master, after the contract
of hiring and service has been entered into, to take
the servant into his employ and enable him to earn
the hire or reward agreed to be paid ; " and, if he neg-
ig) Davis V. Marshall, 9 W. R. 520. {i) R. v. Christ's Parish, York, 3 B.
(k) R. V. Hampreston, 5 T. R. 208. & C. 45g ; 5 D. & R. 314.
R. V. St. Andrew, Pershore, 8 B. & C. {k) R. v. Gt. Bowden, 7 B. & C.
679. R. V. Birdbrooke, 4 T. R. 246. 249.
R. V. Gt. Yarmouth, 5 M. & S. 117. (/) R. v. St. Matthew's, Ipswich, 3
T. R. 449.
' Where a person of full age is hired by the year as a clerk
by a merchant, the relation of master and servant is thereby
created. Woodward v. Washburn, 3 Den. 369.
"^ Where an employer has printed rules and regulations
hung up in his workshop, requiring workmen to give notice a
certain number of days before leaving, and to work out the
time, or else to forfeit the wages due, if a workman does not
582 LAW OF CONTRACT. [Bk. II. Ch. III.
lects so to do, he renders himself liable forthwith to
an action for a breach of contract. " The master is
bound to provide for the safety of his servant in the
course of his employment to the best of his judgment,
information, and behef ; but the law does not imply,
from the mere relation of master and servant, an ob-
ligation on the part of the master to take more care
of the servant than he may reasonably be expected
to take of himself" (tn) If the servant sustains
injury in the course of his employment from the neg-
gence of the master, the latter will be responsible in
damages, («) ' although there is no implied agreement
(m) Riley v. Baxendale, 30 L. J., Ex. 356 ; 7 H. & N. 937.
Ex. 87. Priestly v. Fowler, 3 M. & («) Ashworth v. Stanwix, 30 L. J.,
W. 5. Patterson v. Wallace, i Macq. Q. B. 183. Clarke v. Holmes, 7 H.
H. L. C. 748. Davies v. England, 33 and N. 937 ; 31 L. J., Ex. 356.
L. J., Q. B. 321. As to injuries from Weems v. Mathieson, 4 Macq. H. L.
unfenced machinery, see Holmes \. C. 215. Mellors ■/. Shaw, i B. & S.
Clarke, 30 L. J. Ex. 135 ; 31 L. J. 437 ; 30 L. J., Q. B. 333.
know of such rules when he begins work, the fact that he is
afterwards informed of them, and continues to work without
objection, does not, as a matter of law, show that he assented
to the rules as a part of his contract. Collins v. New England
Iron Co., 115 Mass. 23.
' And this negligence may consist in the employment by
him of unfit and incompetent co-servants ; Sizer v. Syracuse,
7 Lans. 61 ; or in furnishing for work to be done, or for the
use of the servant, machinery, or other improper implements
or things — improper and unsafe for the purposes to which
they are to be applied ; Id. ; West v. St. Louis, &c. R. R. Co.,
63 111. 545. In the latter case, a railway compan}.' chartered by
the legislature, contracted with certain parties to construct its
road and its appurtenances. These contractors, through their
superintendent, hired the plaintiff to work upon a freight-
house they were building for the company. A poisonous
mixture, in which corrosive sublimate was an ingredient, was
applied to the tiinber to prevent decay. The plaintiff was in-
jured by breathing the exhalations of this substance, and by
handling the timber to which it had been applied. Held, that
the railway company was not liable to the plaintiff for the in-
Sec. II.] MASTER AND SERVANT. 583
by the master in an ordinary contract of hiring and
service not to expose the servant to extraordinary
risks in the course of his employment ; {0) but the
(0) Riley v. Baxendale, 6 H. & N. 445 ; 80 L. J., Ex. 87.
jury he received, but that the contractors were solel}- respon-
sible, and were not, in this respect, the servants of the com-
pany. West V. St. Louis, Vandalia, and Terre Haute Railroad
Co. — 111. 545. Where the wrongful act is done by contractors
or lessees of a chartered company in pursuance of the special
powers and privileges conferred upon the company by its
charter, and but for such charter they would have no right to
prosecute the particular business, such contractors or lessees,
as to third parties who maybe injured by their acts, will be
regarded as the servants of the company acting under its dis-
cretion, and the company will be held liable for any abuse of
such of its privileges by its contractors or lessees. But it
^eems the contractors themselves are servants of the company.
Chicago, &c., R. R. Co. v. McCarthy, 20 111. 385 ; Stone v.
Cheshire R. R. Co., 19 N. H. 427 ; Carman v. Steub., &c., R. R.
Co., 4 Ohio, St. § 399 ; Hofnagle v. New York, &c., R. R. Co.,
— N. Y. 608 ; Cleghorn v. New York, &c., R. R. Co., 56 Id. 44.
But the master is not liable to his servant for damages sus-
tained by the negligent act of a fellow-servant while engaged
in the same general employment, unless the master was negli-
gent in the selection of the servant at fault. Hogan v. Central
P. R. R. Co., 49 Cal. 128 ; and see Gibson v. Pacific R. R. Co.,
46 Mo. 163 ; Wonder v. Baltimore, &c., R. R. Co., 32 Md. 411 ;
and whether the injury from the fellow-servant's act is the re-
sult of the master's negligence in employing an incompetent
servant is a question for the jury ; Ardesco Oil Co. v. Gilson,
63 Pa. St. 146; and see Connolly v. Davidson, 15 Minn. 519;
Harper v. Indianapolis, &c., R. R. Co., 47 Mo. 567; Davis v.
Detroit, &c., R. R. Co., 2 Mich. 105 ; and if the servant's
negligence contribute to the injury, he can not recover;
Johnson v. Bruner, 61 Pa. St. 58; and see Spelman v. Fisher,
&c.. Works, 56 Barb. 151. Where an employee was
injured by the falling of a hoisting apparatus, held, that
the liability of the defendant depended upon three facts: i.
That the method of attaching the hoisting rope was defective
and unsafe, and that the injury was caused by the defect. 2.
That the defendant knew or ou^ht to have known of the defect
584 LAW OF CONTRACT. [Bk. II. Ch. III.
master is not liable for surgical attendance and medi-
cine rendered to a servant who has been injured in
the execution of the master's service, unless the sur-
geon has been called in by the master's orders; (/) "
(/) Wannell v. Adney, 3 B. & P. 247. Cooper v. Phillips, 4 C. & P. 581.
3. That the plaintiff did not know of it, and had not equal
means of knowledge. Malone v. Hawley, 46 Cal. 409.
It is competent for a jury in assessing damages to an em-
ployee resulting from negligence of the employer, to consider
what, before the injury, was the health and physical ability of
the plaintiff to maintain himself and family, as compared with
his condition in such particulars afterwards ; his loss of time,,
and how far the injury was permanent in its character and
results, as well as the physical and mental suffering he sus-
tained by reason of the injury; and they should allow such
damages as they think will fairly and justly compensate him
for all loss and injury sustained. But the jury can not con-
sider the plaintiff's " condition in life," whether he is rich or
poor. Id. Plaintiff, while employed upon a barge, which was
being used in lightering a steamship, was injured through the
negligence of one engaged upon the steamship in discharging
her cargo. In an action to recover for the injury, defendant's
answer admitted that at the time of the accident, defendant
owned and had the control and management of the steamer ;
the barge was not owned by defendant, and plaintiff was em-
ployed and paid by its master. Jle/d, that the proof, together
with the admission in the answer, was sufficient to authorize
the jury to find that the man who caused the injury was a ser-
vant of defendant, and working for it at the time ; that he and
plaintiff were not fellow servants within the meaning of the
rule exempting an employer from liability for an injury to
one employee by the act of another; and that said rule, there-
fore, furnished no objection to the maintenance of the action.
Svenson v. Atlantic, &c., M. Steamship Co., 57 N. Y. 108. In an
action brought by a servant against his master to recover for
personal injuries received by him in breaking and falling-
through a floor in his master's shop, over which it was his.
duty to pass, it appeared that he knew that the floor was de-
cayed, and that there vvere holes in it; but it did not appear
that he could have ascertained that the place where he broke
But a master was held liable for similar charges in Rice
V. Borehenny, 2 Houst. 74.
Sec. II.] HIASTER AND SERVANT. 585
nor for injuries sustained from the unseaworthiness of
a vessel in which the servant is employed ; (^) nor for
injuries which one servant has sustained through the
negligence of another servant of the same employer,
provided the master provides proper machinery, (r)
and takes care that his servants are persons of com-
petent skill and ordinary carefulness ; (i-) for a servant,
when he engages to serve a master, undertakes as
between him and his master to run all the ordinary
(y) Couch V. steel, 23 L. J., Q. B. [s) Potter v. Faulkner, I B. & S.
121. 800: 31 L. J., Q. B. 30. Senior v.
(/-) Searle v. Lindsay, ii C. B. N. S. Ward, I EI. & El. 385.
429 ; 31 L. J., C. P. 106.
through was dangerous without examining parts of the floor
not open to his inspection. Held, that the court could not
say that he was guilty of negligence, and that the question
was for the jury. Huddleston v. Lowell Machine Shop, 282.
While a master is liable to a servant for injuries resulting from
the negligence of a fellow servant who has been charged with
the performance, in place of the master, of duties owed by the
master to the servant, where the negligence relates to the per-
formance of those duties, he is not liable for the negligence of
a competent fellow-servant who does not thus stand in the
place of the master, although he may have some authority and
power of direction over the injured servant. Hoffnagle v.
Ne\T York, &c., R. R. Co., — N. Y. 608. Where the servants of
a railroad company, while in the discharge of their duties, per-
vert the appliances of the company to wanton and malicious
purposes to the injury of others, the company is liable for such
injuries. Chicago, Burlington, and Quincy Railroad Co. v.
Dickson, — ■ 111. 151. If a servant of a railroad company be in-
jured through the incompetency and unskillfulness of a fellow-
servant, or in consequence of defects in machinery or track,
and the company be guilty of negligence in the employment
and retention of such agent, or in the construction and repair
of its machinery and track, it is liable in damages. Chicago-
and Alton Railroad Co. v. Sullivan, Admx. Id. 293 ; and
habitual intemperance of a conductor, under circumstances
bringing knowledge thereof to his employers, is sufficient to
render them liable for injury resulting therefrom ; Id ; but
see Chapman v. Erie R'y, — N. Y. 579.
586 LAW OF CONTRACT. [Bk. II. Ch. III.
risks of the service, (t) ' Every servant, on ttie other
hand, impliedly undertakes to obey the just and rea-
sonable commands of the master, and to be careful,
{t) Hutchinson v. York, Newc. & H. & C. 102 ; 32 L. J., Ex. 205.
Berw. Rail. Co., 5 Exch. 343 ; 19 L. J., Murphy v. Caralli, 3 H. & C. 462 ; 34
Ex. 296. Wigmore v. Jay, lb. 300 ; 5 L. J., Ex. 14. Tunney v. Midland Ry.
Exch. 354. Seymour v. Maddox, 20 Co., L. R., i C. P. 291. As to who
L. J., Q. B. 327 ; 16 Q. B. 326. are fellow-servants, see Hall v. John-
Lovegrove v. L. B. & S. C. Ry. Co., son, 3 H. & C, 589 ; 34 L. J., Ex, 222.
16 C. B. N. S. 669 ; 33 L. J., C. P. Feltham v. England, L. R., 2 Q. B.
329. ' Morgan v. Vale of Neath Ry. 33 ; 36 L. J., Q. B. 14. Warburton
Co., 5 B. & S. 736 ; 33 L. J., Q, B. v. Great Western Ry. Co., L. R., 2
260. Waller v. The S. E. Ry. Co., 3 Ex. 30 ; 36 L. J., Ex. 9.
' For the negligence, however gross or culpable, of a servant
while engaged in the business of the master, the latter is not
liable in punitive damages, unless he is also chargeable with
gross misconduct. Ordinary negligence will not suffice to
impose such a liability; it must be reckless, and of a criminal
nature, and must be clearly established. Such misconduct
may be established, however, by showing that the act of the
servant was authorized or ratified, or that the master employed
or retained the servant knowing that he was incompetent, or,
from bad habits, unfit for the position he occupied. Cleghorn
V. N. Y. C. and H. R. R. R. Co., 56 N. Y. 44, A master is not
liable, in exemplary damages, for the act of his servant, where
the plaintiff would not have been entitled to recover such
damages had the suit been against the servant ; Townsend v.
N. Y. C. and H. R. R. R. Co., Id. 295 ; nor where he vrould
not be liable if he had done the act himself; Russell v. Irley,
13 Ala. 131 ; or where he did not authorize the act ; Harris
v. Nicholas, 4 Munf 483; Thaines Steamboat Co. v. Housa-
tonic R. R. Co., 24 Conn. 40 ; Church v. Mansfield, 20 Id.
20; Id. 284; Evansville, &c., R. R. Co. v. Baum, 26 Ind. 70;
McCoy V. McKowen, 26 Miss. 4S7 ; Wesson v. Seaboard, &c.,
R. R. Co., 4 Jones (N. C.) L. 379 ; Yerger v. Warren, 31 Pa.
St. 319; nor will the master be liable for acts of his servant,
who departs from his master's instructions ; Oxford v. Peter,
28 111. 434; unless he is aware of such departure; Elder v.
Bemis, 2 Mete. 599; or out of the course of his employment;
Foster v. Essex Bank, 17 Mass. 479; Kerns v. Piper, 4 Watts
222 ; Wilson v. Peverly, 2 N. H. 548 ; Aycrigg v. New York,
&c., R. R. Co., 30 N. J. L. 460. The principle as stated above
has not prevented considerable confusion in the cases. In
Sec. I I.J MASTER AND SERVANT 587
diligent, and industrious in the performance of tiie
Avork intrusted to him to execute. A servant who
professes to be capable of undertaking an office of
Laning v. New York Central R. R. Co., 49 N. Y. 521, it was
held that the duty of the master to the servant, and the im-
plied contract between them, is, that the master shall furnish
proper, perfect, and adequate machinery or other materials
and appliances necessary for the work which the servant is to
do; and that he shall employ competent and skillful fellow-
servants, or shall use all due and reasonable care to employ
such; and that this duty and contract must be affirmatively
and positively fulfilled by the master. And the court of appeals
sustained, with one judge dissenting, a verdict for the plaintiff
upon the following facts : Plaintiff was an employee of the
defendant's railroad company. He worked, with others, under
the directions of Westman, defendant's foreman. Westman di-
rected Foreman and Churchill, two lads, to erect a scaffold, and
they did so, unskillfully, and of poor materials. Plaintiff, while
working on this scaflFold, sustained injuries by its fall. The fore-
man, Westman, was originally competent and skillful, but dur-
ing his employment by defendant, had acquired habits of intem-
perance in strong drink, which became known to Coleby, de-
fendant's hiring agent; the plaintiff himself knew the same
fact, but he did not know who built the scaffold, or how it was
built. There was plenty of good material furnished by defend-
ant for building scaffolds. The question of contributory
negligence on the servant's part, said the opinion, was one for
the jury, with which the court could not have to do. As to
the intemperance of Westman, the court said : " The testimony
does not show directly, though it is an inference which a jury
might make fairly, that his condition in that respect was a
cause o<' injury to the plaintiff; for they might well infer that
if his faculties had been without confusion from strong drink,
he would, not have put these lads, deficient in judgment and
strength, to a work requiring discretion and power, or would
have inspected the result of their work before using it." Pre-
viously, the same court, in Wright v. New York Central R. R.,
25 N. Y. 565, had substantiall}- held that the injuries must posi-
tively appear to have resulted from the unskillfulness, incom-
petency, or imprudence of the servant, and rejected the idea of
an inference in the absence of such positive proof In Flike
V. Boston and Albany R. R. Co., 53 Id. 549, plaintiff's in-
testate was a fireman upon a freight train on the defendant's
588 LAW OF CONTRACT. [Bk. 11. Ch. III.
skill impliedly represents himself to be possessed of
the skill requisite for the due discharge of the functions
of the office ; and if he does not possess that skill, or
road ; his train was run into by some cars which became de-
tached from another freight train ahead of his, and he was
liilled. The first train had but two brakemen, when it should
have had three, the third one oversleeping and failing to ac-
company the train, and the train being sent out by the train-
dispatcher with only two brakemen ; the lack of the third
brakeman caused the accident. A verdict for the plaintiff was
sustained by one vote. The ground of dissent of the minority is
stated by Judge Folger (in Malone v. Hathaway, referred to be-
low) to have been, that the train-dispatcher was not (as the ma-
jority held) such an agent of the company as to make the latter
responsible for his negligence. Again, in Corcoran v. Holbrook,
59 N. Y. 518, the defendants operated a cotton mill, to the
management of which they gave no personal attention, but
intrusted it entirely to a general agent, who had full power.
In the mill was an elevator, which for upwards of thirty years
had been used by the superintendents, bosses, and employees
of the mill in passing from one floor to another of the mill
while engaged in work there, and this to the knowledge of
their superiors and bosses, and that the plaintiff had been ac-
customed so to ride. The right of the plaintiff to use the ele-
vator to pass to the upper floor is conceded in the opinion of
the supreme court, and the conclusion of the referee that she
was not guilty of any negligence in so doing is undisturbed.
The sole ground of reversal was, that the defendants were not
liable for the negligence of their general agent in omitting tO'
repair the broken chain, after notice to him that it was unsafe,
and that unless repaired some of the employees would get
hurt. The defendants, who operated the mill at the time of
the injury; gave no personal attention to conducting the mill,
but it was managed by a general agent, who had general
charge of the mill, machinery, and operatives, with power to
purchase all supplies, and hire and discharge operatives. Said
the court: It is evident that this general agent was not a mere
fellow-servant of the plaintiff", who was a common hand in the
mill, but that he was charged with the performance of the du-
ties which the defendants owed to the hands employed in the
mill. There was no other person to discharge those duties,
and the defendants could not, by absenting themselves from
Sec. 1 1. J MASTER AND SERVANT. 589
if, possessing it, he fails to exercise it, he is responsible
for a breach of contract. A servant, in the service of
a tradesman, impliedly promises to do no act know-
the mill and refraining from giving any personal attention to
its conduct, but committing the entire charge of it to an agent,
exonerate themselves from those duties, or from the conse-
quences of a failure to perform them. It was the duty of the
defendants toward their employees to keep the elevator in a
safe condition, and to repair any injury to it which would en-
danger the lives or limbs of their employees, who were law-
fully and properly, and in the performance of their functions,
in the habit of using it. That duty they delegated to their
general agent. As to acts which a master or principal is
bound as such to perform toward his employees, if he dele-
gates the performance of them to an agent, the agent occu-
pies the place of the master, and the latter is deemed present,
and liable for the manner in which they are performed. This
rule is as applicable to individuals as to corporations, and re-
quires us to sustain the conclusion of the referee, that the de-
fendants were responsible for the neglect of their general
agent, he having the means and power to keep the elevator in
repair, and that notice to such general agent was notice to the
defendants that the elevator was out of repair, and the de-
fendants were consequently guilty of gross negligence in
omitting to repair it. InMalonev. Hathaway, not yet reported,
but referred to in the Albany Law Journal, vol. 13, p. 174,
the same court reversed a verdict for plaintiff where deceased,
an employee in defendant's brewery, was killed by the fall of
a mash-tub, which was proved to have been substantially re-
built and perfectly safe when deceased entered the employment,
and about eleven months before ; and where the failure to
look to the supports afterward was the fault of Bagley, a co-
servant, foreman of carpenters, against whose competency and
skill nothing was alleged. Distinguishing the case from
Laning v. New York Central R. R. Co., and Flike v. Boston
and Albany R. R. Co. cases (cited supra), on the ground that
those were cases of corporations, which can only act by and
through servants, and from the case of Corcoran v. Holbrook,
59 N. Y. 517, on the ground that in the latter the defendants
were absent, and had delegated all their powers and devolved
all their duties upon a general agent or superintendent. And
see Brickner v. New York, &c., R. R. Co., 49 N. Y. 672;
Holmes v. Clark, 10 Wend. 405 ; Hoey v. D. & B. R. R. Co ,
590 LAW OF CONTRACT. [Bk. II. Ch. III.
ingly and willfully which may injure his master's trade
or undermine his business. He must not attempt to
draw away his master's customers ; but there is no
law which prevents him from soliciting prospective
custom from them at some future period when he
hopes to be able to set up in business for himself.
(^u) His possession of the master's property is, as we
have already seen, the master's possession. He has in
contemplation of law the mere custody of it, so that,
if he is provided with a house or a lodging by the
master, he may be turned out of it at any moment with-
out any notice to quit, (v^
(«) Nichol V. Martin, 2 Esp. 734. (v) Mayhew v. Suttle, anie
8 Id. 930; Hoffman v. New York, &c., R. R. Co., 55 N. Y. 608;
Keegan v. West. R. R. Co., 8 Id. 175 ; Noyes v. Smith, 28
Vt. 59; Ford V. Fitchburg R. R. Co., no Mass. — ; Snow v.
Housatonic R. R. Co., 8 Allen, 441. As to when the negli-
gence of an agent of the master, is not negligence of the master,
see Faulkner v. Erie Ry. Co., 49 Barb. 328 ; Albro v. Agawam
Canal Co., 6 Cush. 75; Hart v. Vermont, &c., Ry. Co., 32 Vt.
473; Wright V. New York, &c., R. R. Co., 25 N. Y. 562 ; War-
ner V. Erie Ry. Co., 39 Id. 468. As to contributory negligence
on the part of the servant, see Spooner v. Brooklyn City R. R.
Co., 31 Barb. 419; Nicholson v. Erie Ry. Co., 41 N. Y. 528;
Russell V. Hudson River R. R. Co., 17 Id. 137 ; Sprong v.
Boston, &c., R. R. Co., 60 Barb. 30; Dougan v. Champ., &c.,
Co., 6 Lans. 430; Stewart v. President, &c., 12 Allen, 58;
Connolly V. Davidson, 15 Minn. 519; Wonder V.Baltimore,
&c., R. R. Co., 32 Md. 411; Harper v. Indianapolis, Sec, R. R.
Co., 47 Mo. 567 ; Davis v. Detroit, &c., R. R. Co., 20 Mich. 105 ;
Lalor V. Chicago, &c., R. R. Co., 52 111. 401; Chicago, &c.,
R. R. Co. V. Murphy, 53 Id. 336 ; and generally, Perry v.
March, 25 Ala. 657 ; McGlynn v. Brodie, 31 Cal. 376 ; Corbin
V. American Mills, 27 Conn. 274; Hayden v. Smithville, &c.,
<Co., 29 Conn. 548 ; Pensacola, &c., R. R. Co. v. Nash, 12 Fla.
497 ; Indianapolis, &c., R. R. Co. v. Love, 10 Ind. 554, Carey
V. Courcelle, 17 La. Ann. 108; Buzzell v. Laconia Co., 48 Me.
113 ; Harrison v. Central R. R. Co., 31 N. J. L. 293 ; Johnson
V. Bruner, 6 Phil. (Pa.) 554; Haines v. East T.ennessee, &c., R.
R. Co., 3 Coldw. 222.
Sec. II.] MASTER AND SERVANT. 591
889. Dismissal of skilled servants for incompe-
tency.— If a laborer, servant, or artisan professes to be
skilled in some particular art, craft, or mystery, and has
been hired as a skilled servant, and is found to be ut-
terly incompetent to do what he has expressly or im-
pliedly undertaken to perform, the employer is not
bound to go on employing him to the end of the term,
but may at once dismiss him. (jj/)
890. Dismissal for misconduct. — If a servant vv^ill-
fully disobeys or habitually neglects the just and rea-
sonable orders of the master ; if he absents himself re-
peatedly from the service, or refuse to perform his
w^ork, or to submit to the domestic regulations of the
house, or is guilty of gross moral misconduct, or of
fraudulent misrepresentation and deceit in the dis-
charge of his duties, to the injury of his employer, {£)
the contract may be dissolved by the master, and the
servant dismissed. The following instances of mis-
conduct and disobedience have been held to warrant a
dismissal of the servant and a dissolution of the con-
tract by the master: — Being frequently absent and
often sleeping out without leave ; {a) pregnancy ; (<5)
assaulting a fellow maid-servant with intent to ravish
her ; (f) refusing to work during the customary hours
of labor; {d^ habitually neglecting to perform the
duties he had undertaken to discharge; {e) refusing
to conform to the hour of dinner ; (/) abusing and
insulting the master and disturbing the peace of his fam-
ily ; (^g) trespassing unlawfully in game preserves, after
( J') Horton v. McMurtry, 5 H. & N. ((5) R. v. Brampton, Cald. 14, 16, 17.
667 ; 29 L. J., Ex. 260. W Atkin v. Acton, 4 C. & P. 208.
(z) Harmer v. Cornelius, 5 C. B. N. (</) Lilley v. Elwin, i« Q. B. 742 \.
S. 246 ; 28 L. J., C. P. 85. 17 L- J-, Q- B. 132.
(a) Robinson v. Hindman, 3 Esp. (e) Arding v. Lomax, 24 L. J., Ex.
235. As to pleading misconduct, see 80.
Burgess v. Beaumont, 7 M. & Gr. 962. (/) Spain v. Arnott, 2 Stark. 256.
Lush V. Russell, 5 Exch. 203. {g) Sliaw v. Chairitie, 3 C. & K. 25,
592 LAW OF CONTRACT. [Bk. II. Ch. III.
having been cautioned and ordered not to enter them ;
(A) enticing away the master's servants ; (z) becoming
the father of a bastard ; (/^) seducing the master's
maid-servant ; repeatedly coming home intoxicated ;
■(/) making fraudulent or gro.ssly inaccurate entries in
account-books ; (»z) absence from the master's dwel-
ling-house for a night to visit a sick mother against
the will of the master, and after leave of absence had
been asked for and refused; (n) the setting up of a
claim inconsistent with the relation of master and ser-
vant, such as a claim to be a partner; (<?) or the asser-
tion of rights and privileges not warranted by the con-
tract or the nature of the service, and injurious to the
interests of the master. (/) And it is apprehended
that the entertaining of guests at the master's expense,
without his knowledge and without any express or im-
plied permission so to do, w^ould be a good ground of
dismissal. If a justifying cause for the dismissal exists,
the master may avail himself of it as a defense to an
action, although it may not have formed the ground
of dismissal, and although the master may not have
known of its existence at the time he discharged the
servant. (^)
The following instances of misconduct and disobe-
dience of orders have been held not to constitute a
sufficient ground of dismissal and dissolution of the
•contract of hiring and service without notice : —
Temporary absence without leave, producing no serious
inconvenience to the employer ; (r) occasional inso-
(A) Read v. Dunsmore, g C. & P. 112 ; 14 L. J., Ex. 311.
588. (0) Amor V. Fearon, i P. & D. 398.
(i) Lumley v. Gye, 2 Ell. & Bl. 216. (/) Lacy v. Osbaldiston, 8 C. & P.
(i) R. V. Welford, Cald. 57. 80.
(I) Wise V. Wilson, 1 C. & K. 662. {^) Spotswood v. Barrow, 5 Exch.
(m) Baillie v. Kell, 6 Sc. 379; 4 no; Ig L. J., Ex. 226.
Bing. N. C. 638. (;-) Fillieul v. Armstrong, 7 Ad. &
(«) Turner v. Mason, 14 M. & W- E. 557.
Sec. II.] MASTER AND SERVANT. 593
lence of manners and sulkiness ; occasional disobedi-
ence in matters of trifling moment, such as neglecting
to come on one or two occasions when the bell rang;
stopping at one hotel when ordered to stop at another ;
(s) temporary absence on customary holidays, (J) or
for the purpose of having a severe hurt attended to
(u) or for the purpose of procuring another situation,
such absence being warranted by custom, (v)
891. Discharge by order of justices. — Servants in
husbandry, laborers, miners, artificers, handycraftsmen,
and workmen in various branches of trade and manu-
factures, are liable to be summoned by their masters
before justices for absenting themselves without law-
ful excuse, and refusing to work and fulfill their con-
tracts, and may, on conviction, be compelled to find
security for the completion of their contract, or be fined
or imprisoned, (jv)
892. Warning — Notice to leave. — In the case of a
yearly hiring, not made defeasible by custom or by
the agreement of the parties, reasonable notice must
be given on either side of the intention of determining
the contract, which notice must expire with the cur-
rent year of hiring, as in the case of a tenancy from
year to year; but the same length of notice is not
required in the case of a yearly hiring of a servant as
is required in the case of a yearly hiring of land. A
quarter's notice, given a quarter of a year before the
expiration of the current year of hiring, would in all
cases be amply sufficient; and a month's notice is
often all that is required by custom and usage to de-
fj) Callo V. Brouncker, 4 C. & P. {v) R. v. Islip, I Str. 423. R. v.
S18. Cussonsv. Skinner, II M. &W. Polesworth, 2 B. & Aid. 483.
161. {y') Re Turner, 15 L. J., M. C. 140.
(f) Reg. V. Stoke, 5 Q. B. 303. Burn's Justice (SERVANTS). 30 & 31
(«) Chandler v. Grieves, 2 H. Bl. Vict. c. 141.
■606 n.
II.— 38
594 LAW OF CONTRACT. [Bk. II. Ch. IIL
termine the contract and entitle the servant to
leave.
893. Payment of wages. — If the contract of hiring;
and service leaves the amount of salary to be fixed by
a third party, an application by the clerk or servant ta
such third party to fix the salary is a condition prece-
dent to the liability of the employer, {z)
894. Disability from sickness. — If a household
servant, hired for a year or any aliquot portion of a
year, is hurt or temporarily disabled, or falls sick,
whilst doing his master's business, the master is not
entitled to make any deduction from the agreed w^ages
for the time that the servant was incapacitated for the
performance of his ordinary work ; («) but, if he has
been struck down with disease and permanently dis-
abled, so that he can never be expected to return to his
work, the contract of hiring is dissolved, and the
master may dismiss him. {b)
895. Wrongful dismissal. — If, after having taken,
the servant into his service, the master improperly
dismisses him, or prevents him by a continued system
of persecution from continuing in the service, he is
bound to make compensation to the servant for all
the damages sustained by the latter ; for the law im-
plies, from a person who contracts to pay a salary for
services for a certain term, a contract to permit those
services to be performed, {c) Formerly, in certain
cases, where the servant had tendered his services, and
had been ready and willing to do his work, but had
(=) Owen V. Bowen, 4 C. & P. 93. fait du mattre qui est le conducteur de
(fl) R. ■!. Sudbrooke, i Smith, 59. ces services, qu'il ne les lui rend pas,
Chandler V. Grieves, 2 H. Bl. 606, n. le mattre doit payer au serviteurl'aniiee
{b) Cuckson v. Stones, I Ell. & Ell. entiere de ces services ; et il pent
248 ; 28 L. J., Q. B. 25. meme etre condamne aux dammages.
(c) Emmens v. Elderton, ante. So et interets du domestique. Pothierv
by the French law, Si c'est par le Louage, No. 173, 174.
Sec. II.] -MASTER AND SERVANT. 595
been wrongfully prevented, such tender of service and
readiness and willingness to serve were considered
tantamount to actual service, and he has been allowed,
after the term or service has expired, to recover as
for work actually done, {d) upon the principle stated
in the Roman law, and frequently relied upon by con-
tinental jurists, that, whenever it has been agreed that
one man shall do a certain act, and that another
person shall pay a sum of money for the doing of it,
and he who is to do the act is ready and offers to ful-
fill his engagement, but is prevented by the other, he
has done that which is equivalent to performance, and
acquires a complete right to the money, (e) But
considerable doubt has recently been thrown on this
doctrine of constructive service ; and it seems to be
considered that, if the servant is improperly dismissed,
he ought not to keep himself in a state of readiness
to serve during the residue of the term of hiring, but
should endeavor to find another situation, and should
sue on the special contract for the damage he has sus-
tained by reason of the wrongful dismissal. (/")
Where a traveler hired a courier to travel with him
on the continent from the ist of June, 1852, and the
traveler renounced the contract before the time arrived,
declaring that he should not go abroad, and had no
occasion for the courier's services, it was held that the
courier was not bound to wait for the ist of June and
{d) Gandell v. Pontigny, 4 Campb. Raym. 687. Smith v. Wilson, 8 East.
375. Collins V. Price, 2 M. & P. 239 ; 443.
5 Bing. 132. Smitli v. Kingsford, 3 (f) Parke, B., Emmens v. Elder-
Sc. 279. ton, ante. Fewings v. Tisdal, i Exch.
(e) I Dig. Lib. 50, lit. 17, 1. 161. 295. Erie, J., Goodman v. Pocock, 15
Domat. lib. I, tit. i, t. 4, xviii. Poth- Q. B. 583. Pagani v. Gandolfi, 2 C.
ier. Obligations, No. 212. Holt, C. & P. 370. Clossman v. Lacoste, 23
J., Lancashire v. Killingworth, I Ld. L. T. R., Q. B. 91. Yelland, ex
parte, L. R., 4 Eq. 350,
596 LAW OF CONTRACT. [Bk. II. Ch. III.
then tender his services, but that he might at once sue
for the breach of contract. (_^)
896. Of the month's wages in lieu of a month's
warning. — When a defeasible yearly hiring has been
dissolved by the dismissal of the servant without
notice, the month's wages payable by custom are not,
in contemplation of law, wages for services, but a sum
to be paid as a compensation to the servant for being
turned away without notice, {h^ '
897. Damages for a wrongful dismissal — Disso-
lution of the contract — Wages pro ratd. — Whenever
one party has absolutely refused to perform his part
of the contract, he puts it in the power of the other
party, either to sue for a breach of it, or to treat the
contract as rescinded or abandoned, and sue on a
quantum meruit for the work actually done, (f) If
the party elects to treat the contract as a subsisting
contract, and to sue for a breach of it he can not
afterwards go on a quantum meruit as for an aban-
doned contract. If for example, a servant hired by
the year at yearly wages, payable quarterly, brings an
action upon the contract, and recovers damages for a
wrongful dismissal, he can not afterwards maintain an
action for wages pro ratS. up to the time of his dis-
missal. The damages, therefore, in the action on the
special contract should be assessed so as to include
the wage's up to the time of the dismissal, (k) When
the contract is for a year's service, at wages payable
yearly, the contract is entire and indivisible, and the
servant or workman can not recover from the em-
(.?-)Hochsterv. DeLaTour, 2EII.& 17 L. J., Ex. ig.
Bl. 678 ; 22 L. J., Q. B 455. See Frost (i) De Bernardy v. Harding, 8 Exch.
V. Knight, L. R., 5 Ex 322 ; ib., 7 Ex. 822. Priclcett v.Badger.i C.B.N.S.305,
in; 39 L. J., Ex. 227; 41 L.J. , Ex. 78. (k) Goodman v. Pococlc, 15 Q. B.
(h) Fewingsv. Tisdal, i Exch. 295 ; 576 ; ig L. J., Q. B, 410.
' A month's notice not necessary from the proprietor to
the carrier of a newspaper. Hallaway v. Bennett, 10 N. Y. loS.
Sec. II.] MASTER AND SERVANT. 597
plover wages pro rat^, unless the contract has been
rescinded or abandoned, or has been put an end to
by the exercise of a power of defeasance vested in the
parties ; so that, if the servant dies in the middle of
the year, his personal representatives will not be
entitled to recover a proportionate part of the salary
in respect of the time he actually served ; (/) and, if
he is himself guilty of such misconduct as entitles the
master to dissolve the contract and dismiss him from
his service, he will lose all right to wages in respect of
the portion of the year he has actually served, (in)
But, if the contract is put an end to by virtue of a
power of defeasance vested in either of the parties
by custom or by agreement, the wages are apportion-
able, and the servant must be paid pro rati, up to the
time of his departure. If, however, the contract is
dissolved by mutual consent, and nothing is said of
by-gone services or wages not due at the time of the
dissolution of the contract, no new contract arises by
implication of law to pay wages pro rati, (n)
898. Amount of wages recoverable — Deductions.
— If the amount of wages to be paid has not been
settled and agreed upon by the contract, there is an
implied promise on the part of the employer to pay
wages according to the customary and reasonable rate
of remuneration. The master can not deduct from
(/) Countess of Plymouth v. Throg- 512. Turner v. Robinson, 5 B. & Ad.
raorton, Salk. 65 ; 3 Mod. 153. Cut- 789. Ridgway v. Hung. M. Co., 3
ter V. Powell. 6 T. R. 326. Ad. & E. 171. Lilley v. Elwin, 17
(;«) Car riens est due tanque le fin L. J., Q. B. 135. Poth. Louage, No.
de I'an, quod nota, et le contract est 174.
entier, et ne poet ester sever. Bro. («) Lamburn v. Cruden, 2 Sc. N.
Abr. fol. 57 (Laborer), pi. 48 ; ib. fol. R. 534 ; 2 M. & Gr. 253. Aliter, if
170, pi. 31 ; Apportionment, 26, pi. there was no hiring for a year, or the
13. Vin. Abr. (Aitortionment) 8 >& master sends tlie servant away. Bailey
9. Spain V. Arnott. 2 Stark, N. P. v. Rimmell, I M. & W. 506. Phillips
256. Huttman v. Boulnois, 2 C. & P. v. Jones, i Ad. & E. 333.
598 LAW OF CONTRACT. [Bk. II. Ch. III.
wages money paid by him to effect the servant's cure
from a dangerous illness, (o) The wages in certain
trades, moreover, can not in general be lawfully paid
otherwise than in the current coin of the realm.
899. Presumption of payment of wages. — If a
servant has left a considerable time without claiming
wages, the presumption is that all the wages have
been paid. (/) And, if it is usual, in the case of par-
ticular classes of servants and workmen, to pay the
wages weekly or monthly, and many weeks or months
have elapsed without any claim or demand on the
part of the servant, there is a prim^ facie presumption
of payment, {jj)
900. furisdiction of jitstices. — -By the 20 Geo. 2,
c. 19, the 31 Geo. 2, c. 11, the 4 Geo 4, c. 34, and the
30 & 31 Vict. c. 141, disputes between servants in
husbandry, artificers, handicraftsmen, miners, coUiers,
pitmen, glassmen, potters, and workers in divers
branches of manufacture, (r) and their masters, re-
specting the non-payment of wages, or the non-fulfill-
ment of a contract of sei-vice, are to be heard and deter-
mined by two justices of the peace, who may examine
the complainant upon oath, and make an order for
the payment of such wages as shall appear to be due,
provided the sum do not exceed £\o in the case of
a servant, nor ^5 in the case of any artificer, handi-
craftsman, miner, &c., {s) or for compensation for
the non-fulfillment of the contract. {£) These Acts
{o) Sellen v. Norman, 4 C. & P. 80. M. C. 161. Domestic servants are
(/) Sellen V. Norman, 4 C. & P. 81. not within these statutes, Kitchen v.
Evans v. Birch, 3 Campb. 10. Parke, Shaw, 6 Ad. & E. 729. But a dairy-
B., Gough V. Findon, 7 Exch. 50. maid is within them, ex parte Hughes,
(?) Abbott, C. J., 4 C. & P. 81 n. 23 L. J., M. C. 138.
(f) Lovvther v. Radnor, Earl of, 8 (s) Burn's Justice (Servants).
East, 113. Branwell v. Penneck, 7 B. (/) See the 30 & 31 Vict. t. 141, s.
& C. 539. Ex faite l;.\iley, 23 L. J., 9.
Sec. II.J MASTER AND SERVANT. 599
■extend only to masters and servants, and not to con-
tracts for the doing of task-work, (u)
901. Dissolution of the contract by the death of
ihe parties. — A contract of hiring and service is dis-
solved by the death of the master or servant, {v) If
,the contract is made with a firm in partnership to
serve the firm for a certain term, the contract is dis-
solved by the death of one of the partners, (jj/)
902. Seamen s wages. — By the 17 & 18 Vict. c.
104, a summary remedy is provided for the recovery
of seamen's wages which are not to be dependent on
the ship's earning freight, and, in case of the death of
the seaman, are to be apportioned and paid in manner
therein provided (ss. 181-204). {z) The master is
liable, the ship is liable, and the owner is liable for
the mariner's wages (a) When seamen enter into
articles to serve for a voyage or for a certain term, a
contract by the master to pay increased wages for the
■services they are by the articles bound to render, is
nugatory and void. (($) A seaman's contract of ser-
vice may be terminated either by final abandonment
■of the ship or by discharge given by the master, (f)
903. Of contracts of apprenticeship. — -When the
employer exercises some trade, craft or mystery, and
it is made a term of the contract that he shall teach
as well as employ and remunerate the servant for
some specific period in return for the service rendered,
the contract amounts to an apprenticeship, a term de-
lived from the French word apprendre, to learn.
Every contract to serve on the one hand, and to em-
(a) Lancaster v. Greaves, g B. & C. (z) See also the 24 Vict. c. 10, and
■628. Ex parte Johnson, 7 Dowl. 702. the 25 & 26 Vict. c. 63, ». 18, et seq.
R. V. Heywood, i M. & S. 624. (a) The Stephen Wright, 12 Jur. 732.
{v) Farrow v. Wilson, L. R., 4 C. (b) Harris v. Carter, 23 L. J., Q. B.
P. 744; 38 L. J., C. P. 326. 295.
(>■) Tasker v. Shepherd, 6 H. & N. (c) The Warrior, i Lush. 476.
575 ; 30 L. J., Ex. 207.
6oo LAW OF CONTRACT. [Bk. II. Ch. IIL
ploy and teach or instruct on the other, amounts to a
contract of apprenticeship, and must be duly stamped.
{d) If there is an engagement on the part of the
servant to serve and to learn, but no express or im-
plied engagement on the part of the employer to
teach, so that no action can be maintained upon the
contract against the latter for neglecting to teach
the contract is a contract of hiring and service
only, and not a contract of apprenticeship, {e) It is
not necessary that the words "to learn" and " ta
teach " should be used by the parties in framing their
contract ; for an agreement to take and maintain a
person " after the manner of an apprentice " will con-
stitute an apprenticeship. Nor need the word
" apprentice " be used , for, wherever it appears to
have been the intention of the parties that the one
was to teach and the other to learn, the contract will
be a contract of apprenticeship, whatever may be the
words used to express that intention. (/") As the
contract is always made to last for more than one year,,
it must be authenticated by writing, signed by the
party to be charged therewith. By the 5 Eliz. c. 4, s>
25, the binding of an apprentice for the purpose of
exercising trades was required to be made by inden-
ture ; but now by the 54 Geo. 3, c. 96, s. 2, it is enact-
ed that it shall be lawful for any person to take or
retain or become an apprentice, though not according-
to the 25th, 30th, and 41st sections of the statute of
Elizabeth, and that indentures, deeds, and agreements,
in writing entered into for that purpose, which would
be otherwise invalid and ineffectual, shall be valid and
effectual ; but it is provided that the enactment shall
(d) R. V. Nether Knutsford, i B. & (e) R. v. Shinfield, 14 East, 541. R_
Ad. 726. ,, Burbach, i M. & S. 370.
(/) R. V. Wishford, 5 N. & M. 5401
Sec. II.] MASTER AND SERVANT. fioi
not affect the immemorial customs of towns or by-
laws of corporations. It is essential to the validity of
the contract that the consideration or premium be
duly set forth upon the face of the instrument, in order
that the proper amount of stamp duty may be secured
thereon, {g) An indenture of apprenticeship is suffi-
ciently executed by the apprentice desiring a bystander
to write his name for him opposite the seal, and by
his then taking the deed and delivering it to his
master, (^h)
904. Rights and liabilities of parties to indentures
of apprenticeship. — An infant above the age of four-
teen, and unmarried, is by the custom of London
responsible upon covenants contained in indentures
of apprenticeship executed by him just the same as if
he were of full age ; (z ) but he is by the common
law, where the apprenticeship is not within the city of
London, exempt from all liability ex contractu, by
reason of his minority. Therefore it is that his friends
ordinarily become bound for his faithful service and
good conduct during the period of the apprenticeship.
The parties who covenant for the continued service
and good conduct of an infant apprentice are not re-
sponsible upon their covenants for trifling and pardon-
able instances of misconduct, such as staying out on
Sunday evenings half an hour beyond the time
allowed, {M) or for temporary absence and disobedience
of orders, unattended by substantial injury to the
master. But for all gross misconduct and repeated or
lengthened absence producing substantial injury to
the master they will be held responsible ; and, if an
infant apprentice, who has executed indentures of
{g) R. V. "Keynsham, 5 East, 311. (/;) R. v. Longnor, 4 B. & Ad. 649.
Westlake v. Adams, 5 C. B. N. S. {i) Burton v. Palmer, 2 Bulstr. 192.
248 ; 27 L. J., C. P. 271. {K) Wright v. Gihon, 3 C. & P. 583.
6o2 LAW OF CONTRACT. [Bk. II. Ch. III.
apprenticeship, avoids the contract on his coming of
age, and refuses to continue in the service of his
master, they are bound to make good whatever dam-
age is sustained by the latter by reason of such
repudiation of the contract. (/) The sickness of the
apprentice, or his incapacity to serve and to learn by
reason of ill-health or an accident, does not discharge
the master from his covenant to provide for him and
to maintain him, inasmuch as the latter takes him for
better and for worse, and must minister to his necessi-
ties in sickness as well as in health, (tn) If the master
has covenanted to teach three trades, and ceases to
carry on one of them, he is guilty of a breach of con-
tract, and the apprentice may, if he pleases, refuse to
continue to serve, (n) ^
905. Miscondiici of the apprentice — Dissobition
of the contract. — The same amount of misconduct
which, in the case of a contract of hiring and service,
would authorize the master to dissolve the contract
and discharge the servant, will not release him from
{t) Cuming v. Hill, 3 B. & Aid. 5g. («) Ellen v. Topp, 6 Exch. 424 ; 20
(tti) R. V. Hales Owen, I Str. gg. L. J., Ex., 241.
Reg. -r. Smith, 8 C. & P. 153.
' See as to apprentices in the United States; Owen v.
State, 48 Ala. 338; People v. New York Juvenile Asylum, 2
Thomp. & C. 775; Bardwell v. Parrington, 107 Mass. 419;
Cannon v. Stuart, 3 Houst. 223 ; Commonwealth v. Atkin-
son, 8 Phil. 375 ; Cann v. Williams, 3 Houst. 78; Mitchell v.
McElvin, 45 Ga. 558; Howry v. Calloway, 48 Miss. 587;
People V. Hoster, 14 Abb. Pr. (N. S.) 414; Ford v. McV.ay,'
<,S 111. 119; Cockran v. State, 46 Ala. 714; Maddox v. State.
32 Ind. hi; Timmins v. Lacy, 30 Dex. 115 ; Doane v. Covel,
56 Me. 527; Fishery. Lunger, 33 N. J. L. (4 Vroom) 100;
Briggs V. Harris, 64 N. C. 413; Mather v. Turner, i Abb. Pr.
(N. S.) 84. A master who takes an apprentice for the purpose
of instructing him in any particular art or trade, has no right
to require services of him as a menial or house servant ; Com-
monwealth V. Hemperley. 4 Pa. L. J. R. 440.
Sec. II.] MASTER AND SERVANT. 603
liability upon his covenant in an indenture of appren-
ticeship. {0) But, if the apprentice is guilty of such
an amount of miscoViduct as renders it impracticable
for the master to maintain, employ, and teach
him, according to the terms of the indentures,
the master can not be sued for neglecting to
perform his covenants in that behalf, inasmuch
as the capability and willingness of the apprentice
to be instructed, maintained, and provided for
by the master are naturally conditions precedent
to the hability of the latter upon such covenants. (/)
If the apprentice deserts the master's service and
enlists in the army, or contracts another relation
vphich disables him from lawfully returning to his
master, the latter is not bound to receive him back
and instruct him if he returns. (^) " By the custom
of London it is a sufficient cause for a master to turn
away his apprentice if he frequents gaming houses,"
although gaming may not be expressly prohibited by
the indentures, (r) If the fulfillment of the contract
has not been prevented by the wrongful act of the
master, the latter is riot bound to refund any portion
of the premium he has received, (s) The indentures
of apprenticeship of an infant apprentice may be
avoided by the infant, so far as regards his own per-
sonal liability on the contract, on his coming of age ;
and the master must trust for the continuance of the
service thereunder to the covenants of those who
engage for the infant, unless the binding is under the
(o) Winston v. Lynn, 2 D. & R. 244; 35 L. J., Ex. 153. Brown v.
475 ; I B. & C. 460. Wise v. Wilson, Banks, 3 Gifif. 190.
I C. & K. 669. Phillips V. Clift, 4 H. (q) Hughes v. Humphreys, 9 D. &
& N. 168 ; 28 L. J., Ex. 153. R. 721 ; 6 B. & C. 680.
(p) Mercer & Whall. 5 Q. B. 447- (r) Woodrofife v. Farnham, 2 Vern.
466 ; 14 L. J., Q. B. 267. Rayment 290.
or Raymond v, Minton, L. R. I Ex. {s) Cutif v. Brown, 5 Pr. 297.
6o4 LAW OF CONTRACT. [Bk. II. Ch. III.
authority of an act of parliament, (j) The contract
may also be dissolved by cancelling the indentures,
or by giving them up with the consent of all parties
animo cancellandi ; likew^ise by the death of the mas-
ter or of the apprentice, {u) or by the bankruptcy of the
master, (x) If the master dies during the term, his
representatives are not bound to return any part of the
premium, as there is only a partial failure of considera-
tion ; (jj/) and, if the apprentice becomes permanently
ill, the covenant that he shall serve during the term is
discharged, (z)
906. Discharge by award of justices. — The con-
tract may also be dissolved by an award of justices at
quarter session for the county, if the master resides in
a county, or of a mayor or other head officer of a
borough, with the assent of three other of his brethren
or men of best reputation therein, if the master resides
within a borough, who may also in certain cases order
all or any portion of the premium paid with such
apprentice to be refunded, (a)
907. Damages for refusing to employ and for
wrongful dismissal. — If a master or employer renoun-
ces the contract he has made with a workman or
servant, and deprives him of the means of earning the
stipulated remuneration, or refuses to take him into
his employ, the jury, in assessing the damages, are
justified in looking to all that has happened, or is
likely to happen, to increase or mitigate the loss of
the plaintiff down to the time of trial, (b) If an
(/) Ex parte Davis, 5 T. R. 715. Ex (z) Boast v. Firth, L. R., 4 C. P. I ;
parte Gill, 7 East, 376. 38 L. J., C. P. i.
(u) Baxter v. Burfield, 2 Str. 1266. {a) Finley v. Jowie, 12 East, 248.
32 Geo. 3, c. 57. Jie Gray, 2 D. & L. 539.
(x) 32 & 33 Vict. „. 71, s. 33. (J>) HochstRr v. De La Tour, 22 L.
(y) Whincup v. Hughes, L. R. 6 J., Q. B. 455. Lake v. Campbell, 4
C. P. 78 ; 40 L. J., C. P. 104. Law T. R. N. S. 5S2.
Sec. II.] MASTER AND SERVANT. 605
action is brought by a domestic servant for a dis-
missal without the customary month's notice, a
month's wages are reeoverable as the agreed damages.^
If the contract is not defeasible by giving a month's
notice, but is for a year's service, and the defendant is
improperly discharged before the end of the year, he
may recover for the work actually done by him up to
the time of his dismissal, and for the damage he has
sustained by being prevented from continuing his
services and earning the stipulated hire, (cf The
action may be brought as soon as the dismissal takes
place ; and the measure of damages is an indemnity
to the plaintiff for the loss he sustains by the breach.
If he has found other equally eligible employment
the damages would be small ; but if not, they might
far exceed the salary agreed to be paid. {(T)
908. Damages against apprentices. — Where an
action was brought upon a covenant in an apprentice-
ship deed to recover damages for the loss of the ser-
vices of the apprentice, it was held that damages were
recoverable only up to the time of action brought as
(<r) Cutter V. Powell, 2 Smiths' L. C. {d) Emmens v. Elderton, 4 H. L.
ao. C. 645.
' See ante, §§ 887, 900.
' So, too, a conspiracy to obtain from a master mechanic
whose business requires the employment of workmen, money
-which he is under no legal liability to pay, by inducing, or
threatening to induce, workmen to leave his employment, and
deterring, or threatening to deter, others from entering it, so
as to render him reasonably apprehensive that he can not
carry on business without making the payment, is illegal ;
and in an action of tort he may recover the sum so paid, and
damages for the injury of his business by the acts of the con-
spirators ; but whether he can recover back the sum paid, in
an action of contract, as money had and received to his use,
■quaere. Carew v. Rutherford, 106 Mass. i. And all the
members of a society upholding a strike are guilty of con-
spiracy. Commonwealth v. Currea, 3 Pittsb. 143.
6o6 LAW OF CONTRACT. [Bk. II. Ch. III.
the contract continued in force, and the apprentice
might still be compelled to serve, {if
SECTION III.
PRINCIPAL AND AGENT.
909. Of agencies and commissions. — Whenever
one man undertakes the management of the business
of another without hire or reward, and enters upon
his task, the contract between the parties is, as we
have before seen, a contract of mandate, or a gratuitous
commission.^ When the person employed is to be
paid for his services, the contract is a contract for the
letting and hiring of work and labor, care and atten-
tion, and belongs to the class locatio operis faciendi. *
If the services of the party are hired for a term, the
contract is a contract of hiring and service.^ In either
case the party employing is the principal, and the per-
son employed, the agent. If a commission-agent is
engaged to sell goods for the principal, he paying him
a certain sum per quarter, it does not necessarily follow
that there is a contract of hiring and service between
the parties, (a)
910. Revocation of atUhority. — If no term of ser-
vice has been expressly or impliedly agreed upon, the
employer may at any time dispense with the future
services of the agent, and revoke the authority dele-
gated to him, so far as it relates to things to be done
{e) Lewis v. Peachy, i H. & C. 518 ; 31 L. J., Ex. 496.
{a) Butterfield v. Marler, 3 C. & K. 163.
' See cases cited atite., note i, p. 602.
" Ante, S§ 789, 833, et seq.
" Ani^, § 845 \.
' Ante, § 822.'
SEC. III.] PRINCIPAL AND AGENT. 607
and remaining unexecuted. ' If a party is engaged as a
"permanent attorney," the word "permanent" does
not confer any durable or special appointment as at-
torney, and the principal is not precluded from with-
drawing the retainer; but if he is retained at a yearly
salary, he is, in general, entitled to damages, if he is
' Blackstone v. Buttermore, 53 Pa. St. 260. Saving the
rights of third persons; Wharton's Commentaries on Agency
and Agents, § 93 ; and the revocation may be by parol, even if
the authority given were under seal ; see Brookshire v. Brook-
shire, 8 Ired. 74; Pickler v. State, 18 Ind. 266; Spear
V. Gardner, 16 La. Ann. 383; and this revocation may be
implied as well as express ; Torre v. Thiele, 25 La. Ann. 418.
As if a principal himself perform the duties formerly en-
trusted to the agent, or appoint another agent for the same
purpose, and in the same place, these would be facts from
which a revocation might be inferred. The revocation takes
effect from the time when it becomes known to the agent ; Rob-
ertson V. Cloud, 47 Miss. 208 ; and see Jones v. Hopkins, 61
Me. 780. So if the revocation were contained in a letter, it
would take effect from the date of his receipt, and not of the
mailing of the letter. Robertson v. Cloud, supra. Notice of
the death of a principal is not a notice to the agent of revoca-
tion of the agency, if the rights of third parties in any way
intervene, as where the agent has executed a bona fide con-
tract for his principal, or is engaged in directing a lawsuit,
or mercantile transactions, which cannot be abruptly termi-
nated, or where the subject-matter of the agency is to begin
upon the principal's death. Wharton's Commentaries oa
Agencv and Agents, § loi. Third parties are not bound by the
revocation, until they have received notice thereof. Diversy v.
Kellogg, 44 111. 114; Morgan v. Still, 5 Binn. 305; Tier v.
Thompson, 35 Vt. 179; Weile v. United States, 7 Ct. and CI.
535; Beard V. Kirk, 11 N. H. 397; Fellows v. Hastford, &c.
Steamboat Co., 38 Conn. 197; Reed v. Latham, 40 Id. 452;
Watts V. Cavanagh, 35 Vt. 34. So the Roman law provided
that " Despensatori qui ignorante debitore remotus est ab
actu recte solvitur ex voluAtate enim domini ei salvitur, quani
si nescit mutatem qui salvit liberatur; Dig. Lib. 51, D. de Sol.
et. lib. XLVI. 3. And the revocation of an agent's authority
revokes all the authority of sub-agents. Story on Agency,
§ 469-
6o8 LAW OF CONTRACT. [Bk. II. Ch. III.
dismissed before the end of the year. ((5) Things ac-
tually done by the agent in the execution of his com-
mission will, of course, be binding upon the principal ;
but the agent can not, after his authority has been
countermanded, enter, as between himself and the prin-
cipal, into any fresh transaction. If the principal fur-
nishes his agent with a sum of money, to be expended
in the purchase of property, the principal may at any
time, before the purchase is made and the money ex-
pended, revoke the authority, and require the money
to be repaid to him. {c) If goods are intrusted to a
commission-agent for sale, the principal may, at any
time before a sale has been made, require the goods
to be returned to him ; (d) and the agent has no right
to sell contrary to the express directions or instructions
of his employer, for the purpose of repaying himself
his advances, (d) But the right to stop money in-
trusted to an agent to be paid to a third party, or to
stop a sale, or revoke the orders or authority given, is
always subject to this limitation that the agent is
merely an agent, and is not himself interested in, or
responsible for, the payment of the money according
to the directions he received when it was placed in his
hands, (/) and has not done anything to render him-
self personally liable to the third party in consequence
of the orders of the principal. ( g) But mere advances
made by a factor do not give him any rights in dero-
gation of the right of the principal to give directions
as to the time and manner of sale, unless such rights
are conferred upon the factor by some express agree-
{b) Emmens v. Elderton, 13 C. B. (e) Smart v. Bandars, 3 C. B. 380 ;
495 ; 4 H. L. C. 624. 16 L. J., C. P. 39. Chinnock v Sains-
{c) Fletcher v. Marshall, 15 M. & bury, 30 L. J., Ch. 409.
W. 763. (/) Yates v. Hoppe, 9 C. B. 541.
(</) Raleigh v. Atkinson, 6 M. & W. (g) M'Ewen v. Woods, 11 Q. B. 13 ;
'670- 17 L. J., Q. B. 207.
Sec. III.] PRINCIPAL AND AGENT. 609
ment, or by a known usage of trade. (Ji) If an agent
agrees to act for a firm in partnership for a term of
years, the contract is dissolved by the death of one of
the partners during the term. (?)
911. When the agent's authority is irrevocable. —
An authority coupled with an interest can not be re-
voked.* Where, therefore, a debtor handed to his
creditor a power of attorney, authorizing him to sell
certain lands of the debtor, and pay the debt out of
the proceeds of the sale, it was held that this power
of attorney could not be revoked. (Ji) '
912. Accounts. — It is the duty of an agent to keep
Tegular accounts and vouchers ; (/) ^ and, if he refuses
to account, after demand is made, he will be responsi-^
(h) De Comas v. Prost, 2 Moo. P. {k) Gaussen v. Morton, lo B. & C.
C, N. S. 158. 731. Clerk v. Laurie, 2 H.& N. 200.
(2) Tasker v. Shepherd, 6 H. & N. (/) Romilly M. R. Stainton v. The
1676 ; 30 L. J., Ex. 207. Carron Co., 24 Beav. 353.
' See Hartley's Appeal, 53 Pa. St. 212 ; Marfield v. Good-
hue, 3 Comst. 62 ; Hutchins v. Hibbard, 34 N. Y. 24; Hunt v.
Ronsmaniere, 8 Wheat. 174; Knapp v. Alford, 10 Paige, 205 ;
Manfield v. Douglass, i Sandf. 360 ; Smyth v. Craig, 3 Watts,
& S. 14. So in case of an assignment to pay debts, the power
can not be revoked until the trust is performed and satisfied.
■Goodwin v. Bowden, 54 Me. 424. But if the consideration
for the interest fail, the power can be revoked ; Ex parte
Smither, i Deac. 413. The fact that the principal and agent are
partners, will not, of itself, render the agency irrevocable.
Travers v. Crane, 15 Cal. 127 ; Gundlach v. Fischer, 59 111.
172 ; Potter v. Merchants' Bank, 28 N. Y. 641 ; Blackstone v.
Buttermore, 53 Fa. St. 266 ; Barr v. Schroeder, 32 Cal.
<6o9.
° But see Coffin v. Landis, 46 Pa. St. 426 ; Peacock v.
-Cummings, Id. 434.
" Riley v. State, 22 Tex. 703; Chinn v. Chinn, 22 La. Ann.
597 ; Kerfoot v. Hyman, 52 111. 502 ; Hass v. Damon, 9 Iowa,
589; Clark V. Moody, 17 Mass. 145; Hart v. Ten Eyck, 2
Johns. Ch. 108; Peterson v. Porguard, 9 B. Men. 309; Eston
V. Welton, 32 N. H. 352 ; Clark v. Moody, 19 Mass. 145.
11.-39
6x0 LAW OF CONTRACT. [Bk. II. CH. III.
ble in damages, (m) ' If goods have been intrusted
to an agent to sell, and he renders no account of
them, it will be presumed prima facie, that they may-
have been sold and the money received, (n) ' If an
agent mixes up his principal's property w^ith his own
he must show clearly what part of the property belongs
to him ; and, if he fails in doing so, it will be treated
as the property of the principal, (o) '
913. Liabilities of brokers, factors, and commis-
sion-agents, to their principals. — All persons are
brokers who contrive, make, and conclude bargains
and contracts between merchants and tradesmen for
which they have a "fee or reward." (/) * Every
(in) Topham v. Braddick, i Taunt. (p) Storey's Eq. Jur. § 468.
575. (/) Milford V. Hughes, 16 M. & W.
{n) Hunter v. Welsh, i Stark. 224. 177.
' In Haas v. Dainon, 9 Iowa, 589, it is said that, failing
upon reasonable opportunity to account, he is liable to such
suit without demand ; and if, after demand, he retain moneys
received, he is liable for such moneys, with interest, even if he
has received no interest. Dodge v. Perkins, 9 Pick. 368 ;
Reidv. Glass Factory, 3 Com. 393 ; Comegys v. State, 10 Gill.
& J. 175; Williams v. Storr, 6 Johns. Ch. 653; Leake v.
Sutherland, 25 Ark. 219; Bedell v. Janney, 4 Gilman, 193;
Clemens v. Caldwell, 7 B. Mon. 171; Anderson v. State, 2
Kelly, 370; Dodge v. Perkins, 9 Peck, 368; Utica Co. v.
Lynch, 11 Paige, 520; Brown v. Ricketts, 4 Johns. Ch. 303;
Jacot V. Emmett, 11 Paige, 142.
•■ Wharton's Commentaries on Agency and Agents, § 301.
' Noriis V. Hero, 22 La. Ann. 605 ; Curtwell v. Allard, 7
Bush. 482 ; Graver's Estate, 50 Pa. St. 1S9 ; Bartlet v. Hamil-
ton, 46 Me. 425 ; Manning y. Manning, i Johns. C. 527 ; Mas-
sachusetts Ins. Co. V. Carpenter, 2 Sweeney, 734; De Feyster
V. Clarkson, 2 Wend. 77 ; Peyton v. Smith, 2 Dev. & Bat. Eq.
325 ; Farmer's Bank v. King, 57 Pa. St. 202 ; Pinckney v.
Dunn, 2 S. C. 314; Kerr v. Laird, 27 Miss. 544; Dyott's Es-
tate, 2 Watts. & Serg. 565 ; Farmers' Bank v. King, 57 Pa. St.
202.
' See Wharton's Commentaries on Agency and Agents,
§ 700.
Sec. III.] PRINCIPAL AND AGENT. 6ii
broker and commission-agent who is employed to
make purchases, or to sell on behalf of his principal,
impliedly promises to execute the commission in-
trusted to him in a careful, skillful, and diligent
manner, and to obey the orders and directions he re-
ceives. ' If he is ordered to purchase an article of
first rate quality, and he buys an inferior commodity,
he is guilty of a breach of contract, and is re-
sponsible to the principal in damages, {jj) He
is bound to exercise his judgment and discretion
to the best advantage for the benefit of his prin-
cipal, " to render just and true accounts, ' and to
keep the property of his principal unmixed w^ith his
own property, or the property of other parties, (r)*
He has, in general, an implied authority to sell at
such time and for such prices as he may, in the ex-
ercise of his discretion, think best for his employer ;
he may sell on credit, if it is customary so to do,^ or
if he acts under a del credere commission ; and he
( q) Mainwaring v. Brandon 2 Thorn v. Bigland, 8 Exch. 725. Gray
Moore, 125. v. Haig, 20 Beav. 238.
(r) Clarke v. Tipping, 9 Beav. 284.
' Brokers have implied authority to do whatever is neces-
sary to the purpose or subject-matter of their appointment.
The Monte Allegre, 9 Wheat. 643 ; Andrews v. Kneeland, 6
Cow. 354; Saladin V. Mitchell, 45 111. 79; but see Dodd v.
Farlow, 11 Allen, 420; Pickering v. Demerrett, 100 Mass. 416
Day v. Holmes, 103 Id. 306 ; State v. Delafield, 8 Paige, 524
Bank of the State v. Bugbee, i Abb. App. Dec. (N. Y.) 86
Parsons v. Martin, 11 Gray, in.
' A broker can not act by substitute, but, like an attorney,
is selected for some cause of preference, as confidence in his
skill or sagacity ; but the mechanical part of his duties may be
performed by a clerk or employee. Lock's Appeal, 72 Pa.
St. 491.
° See ante, note
' See Evans v. Wahn, 71 Pa. St. 69.
" See ante^
6i2 LAW OF CONTRACT. [Bk. II. Ch. II.
must account for the produce of all sales effected by
him when called upon so to do. {s) He can not
himself become the purchaser of the property en-
trusted to him to sell, unless he deals for it with the
principal, openly and fairly " at arm's length," and
after a full disclosure of everything he knows con-
cerning it ; (if)' nor can he purchase his own goods for
his principal (iiy Where an agent employed to sell
land sold it to a company in which he was interested
as a shareholder and director, it was held that he was
entitled to no commission from his employer in re-
spect of the sale, {x)
If money has been paid by a principal to his
brokers to enable them to carry out a contract which
he had authorized, and which, at the time of such pay-
ment, he believed them to have entered into on his
account, whereas, in truth, the authorized contract had
never been made, the principal may recover the
money from the agents, (j)/)
A mere forwarding agent is not bound to see
whether the quality of goods, which he is employed
to ship or to forward, corresponds with a contract
(j) Crosskey v. Mills, i C. M. & R. Beav. 140.
2g8. Boorman v. Brown, 3 Q. B. (u) Bentley v. Craven, 18 Beav. 76.
515, 527. Boden v. French, 10 C. B. {v) Salomans v. Pender, 3 H. & C.
886. 639 ; 34 L. J., Ex. 95.
(/) Murphy V. O'Shea, 2 Jones & (y) Bostock v. Jardine, 3 H. & C.
Lat. 422. Trevelyan v. Charter, g 700 ; 34 L. J. Ex. 142.
' See ante,
" Id. And see Taussig v. Hart, 58 N. Y. 425. It has been
held, however, that where a principal agrees with his agent
to pay him a specified sum for a piece of land, the agent may
make the best bargain he can for the land, if there be no fraud.
Anderson v. Wieser, 24 Iowa, 428. But, as a general rule,
any usage by which an agent claims to appropriate the
pr(jf ts of his principal, is forbidden, and fraudulent on the
agent's part.
Sec. III.] PRINCIPAL AND AGENT. 613
which he has been instrumental in negotiat-
ing. {£)
914. Del credere commissions. — When the agent,
in consideration of an addition commission, guaran-
tees to his principal, the payment of all debts that
become due through his agency to the principal, he is
said to act under a del credere commission, a phrase
derived from the Italian word credere, to trust, {a)
Every person accepting and acting under a commis-
sion of this sort for the sale of goods makes himself
responsible for the solvency of his vendees, and be-
comes absolutely liable to the principal for the pay-
ment of the price of the goods he sells. {U) Factors
and commission-agents for sale, who receive and sell
goods for foreign principals, or for parties residing
at a distance, usually conduct their agency under a
del credere commission, guaranteeing the solvency of
the buyers, or undertaking for the due payment of the
price realized on sales effected by them. Their con-
tract, however, is not a contract or promise, as we
have seen, to answer for the debt or default of another
within the meaning of the statute of frauds, but an
original independent contract, and only another form
of selling goods, {c) Where a factor having a del
credere commission has made advances to his princi-
pal, and has sold goods on account of the latter, he
can not, whether he has received the proceeds of the
sale or not, recover from the principal so much of the
advances as is covered by the price of the goods,
unless there is an express agreement between them,
making the advances payable immediately, and post-
(z) Zuilchenbart v. Alexander, I B. {b) Mackenzie v. Scott, 6 Bro. P. C.
B. & S. 234 ; 29 L. J., Q. B. 236 ; 30 291.
ib. Q. B. 254. W Couturier v. Hastie, 8 Exch. 40.
{a) Grove v. Dubois, I T. R. 12. Wickham v. Wickham, 2 Kay & J.
478.
6i4 LAW OF CONTRACT. [Bk. II. Ch. III.
poning the time of payment of the price of the goods,
(rt^) A person to whom goods are sent to be sold
and who is at liberty to sell them at any price he
pleases, he paying a fixed price for them to the owner,
i« not an. agent. (^)'
(d) Graham v. Ackroyd, lo Hare, (e) White, ^jr/a?*, L. R. 6 Ch. 397.
202.
' The effect of a del credere commission is to render the fac-
tor responsible to his principal, in the first instance, and when
the principal employs a factor or broker to sell for him, under
a del credere commission, he wishes it to be understood that he
looks to him for payment, and that he has no objection to re-
covering the price froin the vendee. The rules of law, as
they regard principal and factor, are for the benefit of the
principal and, provided he appears before payment, he comes
into his full rights to receive the price, and the vendee will
not be justified in afterwards paying the factor; but after the
principal has dealt with the factor as the real purchaser of the
goods, which, by the del credere commission, he may be con-
sidered to have done, the factor then stands in the situation
of a principal, and, in that character, he sells to the buyer on
his own account. The commission del credere is an authority
to the factor to receive the price, and so long as the principal
does not interfere and countermand that authority, the factor
has a right to treat the vendee as his debtor, and is the person
warranted to receive the price from the vendee. If it were
otherwise, in what a situation would the factor be placed ; he
would still be liable, under his del credere commission, to his
employer, and yet not have the means of getting the mone)'
into his own hands, by calling on the buyer. And it is the
same thing whether the factor acts under a commission del
credere, or is in advance of his principal by actual payments.
Livermore on Prin. & Agent, 21:7.
" In this country, the guaranty of a del credere agent," said
MiTCHEL, J., in Sherwood v. Stone, 14 N. Y. (4 Kernan)
267, " is understood to be a contract directly with the prin-
cipal to pay him on the expiration of the time of credit,
whether the purchaser be solvent or not ; that is, the whole
contract between the factor and his principal, and it is an
original undertaking, without any relation to the debt or lia-
bility of another. The law (not the contract of the parties)
tlien adds a quality to such a transaction, that, altiiough the
Sec. hi.] PRINCIPAL AND AGENT. 615
915. Liabilities of insurance-brokers to their
principals. — ^If an insurance-broker neglects to attend
to the orders of his principal, or is guilty of miscon-
factor may sue the purchaser in his own name, the principal
lias also the right to sue. This however, does not convert an
express original undertalcing of the "factor with his principal,
absolutely to pay the debt at maturity, into a collateral and
conditional agreement to pay it if the purchaser does not.
A guaranty by a factor differs very especially from a promise
to pay the debt at maturity, into a collateral and condi-
tional agreement to pay it if the purchaser does not. A
guaranty by a factor differs very especially from a promise
to pay the debt of another, in another particular; the prin-
cipal transfers a right (although not the exclusive right) to
the factor to sue for and recover the money in his own name,
and to collect the debt and hold the money, accounting only
for the net balance of account between the parties. Thus the
debt of the purchaser is, to some extent, made the property of
the factor, and he, to that extent, becomes the purchaser of it,
and so far substitutes his liability in place of that of the
purchaser. The effect of this generally is to make the factor
practically the owner of the debt, and this is almost invariably
so, if he remains solvent and on just terms with his principal.
In that case, the principal is unknown to the purchaser.''
A del crede)re factor guarantees the solvency of the pur-
chaser only, and if they pay the price to him, his contract
■does not extend further to a guarantee of the remittance.
Leverick v. Meigs, i Cow. 645 ; Heubach v. Mollman, 2
Duer, 227 ; Colton v. Dunham, Paige, 267 ; Swan v. Ne-
smith, 7 Pick. (Mass.) 220.
It is a general rule of law that a sale by a factor creates a
contract between the principal and the purchaser, and that
the debt created by the sale is a debt due from the purchaser
to the principal. The exception to this rule seems to arise in
the case of factors under a del credere commission ; that com-
mission giving rise to, and being, in effect, a contract of guar-
anty between the factor as guarantor, and the principal as
guarantee, which guarantee becomes binding upon the factor,
of course, upon default, absolute ; or the inability or incapa-
city to pay upon the part of the purchaser. The considera-
tion of this contract of guaranty is usually an increased
commission to the factor, or it perhaps might be other good
or valuable interest.
6i6 LAW OF CONTRACT. [Bk. II. Ch. IIL
duct and negligence in effecting an insurance, he will be
responsible for all the damage that has been sustained
by his employer, and may be clothed with all the re-
The effect of the commission is, however, limited to this
contract of guaranty to the principal himself It in no sense
operates to extinguish the ordinary relation between principal
and agent, being matter in addition thereto, and not in vari-
ation thereof, or subtraction therefrom. The peculiar obliga-
tion of the del credere factor to his principal is therefore not
primary, but secondary. He is a surety only, and not a
debtor. (See this questioned, however, in Edwards on Bail-
ments, 280, 281; Dunlap's Paley on Agency, no, note;,
Hurlbut V. Pacific Ins. Co., 2 Sumn. 480.) Punctual payment
by the purchaser discharges him from all liability. Neither
is his engagement regarded as a collateral promise to pay the
debt of another under the statute of frauds. Nor is his obli-
gation so contingent as to require legal measures to be ex-
hausted against the purchaser, before the factor is bound. It
amounts to, and is, an engagement to see that the principal
receives his money upon the day it becomes due. And this,
not merely by the receipt of acceptances from the buyer, but
by the absolute payment in money or other medium author-
ized by or satisfactory to the principal. Story on Agency,.
§§98, 215; McKenzie v. Scott, 6 Bro. Pari. Cas. 280; Paley
on Agency, by Lloyd, 41, 42; Mailer v. Bohlens, 2 Wash. C.
C. 378; Tompkins v. Perkins, 3 Mason, 232; Holbrook v..
Wight, 24 Wend. 169; 2 Kent's Com. [12th ed. ] 625, note (g).
But if the money is once received from the purchaser by
the factor, any peculiarity in his position and responsibility
ceases, and he becomes an ordinary factor, liable only for due
diligence in remitting to his principal. Story on Agency,
§215; Leverick V. Meigs, i Cow. (N. Y.) 645; Mackenzie v.
Scott, ubi supra ; Livermore on Agency, 408-411 (ed. 1818);
Smith on Merc. Law, 52 (2d ed). Id. ch. 5, § 2, p. 98 (3d ed.
1843); Russel on Factors, art. Del Credere Commission;
Sherwood v. Stone, 14 N. Y. 267 ; Bradley v. Richardson, 23
Vt. 720, 731.
A factor del credere may sue the debtor in his own name.
Sherwood v. Stone, ubi supra ; though see Bramble v. Spiller,.
18 W. R. 316; see Dunlap's Paley, note, p. no, — but if he
elect so to do, the principal may, in spite of the del credere
commission, sue the purchaser himself Wolff v. Koppel, 5
Sec. III.] PRINCIPAL AND AGENT. 617
sponsibilities which would have devolved upon the
underwriter had the insurance been regularly effected.'
He may be compelled to pay to his principal the
full sum ordered to be insured, or a total or average
loss, as the case may be ; but, when he is proceeded
against for losses by perils which he ought to have
insured against, he is, of course, entitled to every
benefit and objection which the underwriter himself
could have taken advantage of if the insurance had
been duly effected, such as fraud, deviation, non-com-
pliance with warranties, or the like, (y) He is
bound, moreover, to exercise a reasonable and proper
amount of care, skill and judgment in the execution
of his duty, (^g) If a merchant abroad has effects in
the hands of his correspondent here, he has a right to
expect that the latter will obey an order to insure^
because he is entitled to call his money out of the
other's hands when and in what manner he pleases \
and, although he has no effects, yet, if the course of
dealing between them be such that the one has been
used to send orders for insurance, and the other to
comply with them, the former has a right to expect
that his orders for insurance will still be obeyed
{/) Park V. Hammond, 2 Marsh. (^) Chapman v. Walton, lo Bing.
igr. Mallough v. Barber, 4 Campb. 57 ; 3 M. & Sc. 389. Cahill v. Daw-
150. Turpin v. Bilton, 6 Sc. N. R. son, 26 L. J., C. P. 253.
447-
Hill. (N. Y.), 458 ; Holbrook v. Wight, 24 "Wend. 169 ; Thomp-
son V. Parkins, 3 Mason, 232 ; Gall v. Comber, 7 Taunt, 558;
Peele V. Northcote, 7 Taunt. 478; Morris v. Cleasby, 4 M. &
Selwyn, 566.
' French v. Reed, 6 Binn. 308. But not if he has merely
made a loose gratuitous promise to insure. Thorn v. Deas,
4 Johns. R. 84; McGee v. Bast, 6 J. J. Marsh, 456. Insurance
brokers have the same implied authority with others to do
whatever is necessary to their employment, so they may
abandon in case of loss. Chesapeake Ins. v. Stark, 6 Cranch.
268.
6iS LAW OF CONTRACT. [Bk. II. Ch. III.
unless he receives notice to the contrary. If the
merchant abroad sends bills of lading to his cor-
respondent here, he may ingraft on them an order to
insure, as the implied condition on which the bills of
lading shall be accepted, which the other must obey
if he accept them, for it is one entire transaction. (^)
If the broker finds that he is unable to effect an insur-
ance upon the terms offered by the principal, it is his
duty to give the latter notice of the fact. If he makes
the insurance on terms different from those prescribed
he will be responsible to the principal, (z ) But, if
insufficient orders are sent, and the agent or broker
does all that is usual to get the insurance effected,
that is sufficient, (z^) The insurance-broker is agent
for both parties ; first, for the assured, in effecting the
policy, and in everything that is to be done in conse-
quence of it ; then he is agent for the underwriter as to
the premium, but for nothing else. If he neglects to
pay the premium to the underwriter, the latter may
maintain an action for its recovery, unless circum-
stances have occurred entitling the insured to a return
of the premium, in which case it is the duty of the
broker, if he has notice thereof, to retain the money
and return it to the insurer. (/) If he has acted as
the agent of the underwriter in paying the loss upon
the policy, the payment by the broker is a payment
by the underwriter himself (m) It is the usage,
amongst merchants, insurance-brokers, and under-
writers, in the city of London, to set off the general
balance of accounts between the broker and the
underwriter, at the time of the loss, against the loss,
(h) Smith V. Lascelles, 2 T. R. 189. (/) Shee v. Clarkson, 12 East, 507.
Corlett V. Gordon, 3 Campb. 472. (m) Edgar ,. Bumstead, t Campb.
(i) Callander v. Oelrichs, 6 Sc. 761. 410. Jamison v. Swainstone, 2 ib.
(k) Smith V. Cologan, 2 T. R. 18S, n. 547, n.
Sec. III.] PRINCIPAL AND AGENT. 619
and for the broker then to debit himself to that
amount in his account with the assured, and the
underwriter is then considered to be discharged of his
debt to the assured ; and, when the assured is cog-
nizant of this course of dealing, and assents to it, the
passing of the accounts between the broker, the under-
writer, and the assured, operates as a payment to the
latter, and as an extinguishment of the .underwriter's
debt, {n) The broker now keeps two accounts with
underwriters, called the credit and the cash accounts,
into which the premiums received from the principals
of the broker go, and the balance on which is due from
the broker to the underwriter, and in no way from the
individual assured, whose pairticular premium has gone
into that account. {6) The authority given to a
broker when he is to effect a policy of insurance does
not extend to warrant him in cancelling it. (z') '
916. Share-brokers and stock-brokers. — If a share-
(k) Stewart v. Aberdein, 4 M. & W. J., Q. B. 162. Blackburn, J., Xenos v.
■211. / Wickham, 33 L. J., C. P. 19.
(0) As to brokers accounts, see Beck- (/) Xenos v. Wickham, L. R., 2 H.
with V. Bullen, 8 El. & Bl. 683 ; 27 L. L. 296 ; 36 L. J., C. P. 316.
' It is the rule with us that one travelling and soliciting
insurance — in the event of insuring — is the agent of the com-
pany, and not of the insured. Coe v. Wilkinson, 13 Wall.
222; Franklin v. Ins. Co., 42 Mo. 456; Winnesheik Ins. Co. v.
Holzgrape, 53 111. 516; Woodbury v. Charter Oak Co., 31
Conn. 526 ; Pierce v. Ins. Co., 50 N. H. 297 ; North American
Ins. Co. V. Throop, 22 Mich. 456; Wass v. Maine, &c., Ins. Co.,
61 Me. 537; American, &c., Ins. Co. v. McLanthan, 11 Kan.
i^TiZ- An insurance broker is bound to exercise the diligence
customary with good and prudent experts, in his department
of business. He must take the usual methods of ascertaining
that the insurers are sound ; Wharton's Commentaries on
Agency and Agents, § 205 ; and see that their principal, in
case of adjustment, does not suffer. Rundle v. Moore, 3
Johns. Cas. 36.
620 LAW OF CONTRACT. [Bk. II. Ch. III.
broker, directed to buy shares, buys what is ordinarily
bought and sold in the stock market as shares, he has
fulfilled his commission, and can not be made respon-
sible for the fraud or misconduct of parties who may
have issued the shares without authority. There is
no warranty or undertaking, either on the part of a
broker employed to buy shares or scrip, or on the part
of the principal who employs him, that the article,
which merely passes through the broker's or the prin-
cipal's hands, is anything more than what it purports
on the face of it to be, and what it is generally under-
stood to be in the market. (^) Every principal who
employs a stock-broker or share-broker to transact
business for him in the stock or share market is bound
by the rules of the Stock Exchange and the estab-
lished mode of transacting business, whether he knew
of the usage or not. (r) If a share-broker, employed
to eflFect a sale of shares or scrip, sells pursuant to his
authority, and the principal neglects to deliver the
shares, and the broker is consequently obliged to buy
other shares in the market, at an advanced rate, for
the fulfillment of the contract of sale, such share-broker
is entitled to recover from the principal, his employer,
all the damages he has sustained, and all the costs and
expenses incurred by him in the execution of the
commission, besides the customary remuneration for
his trouble and loss of time, (s) And, generally,
whenever the share-broker has been compelled by the
custom of the Stock Exchange to make good the de-
fault of the principal, he has a remedy over against
the latter. Therefore, if he pays calls on shares which
(?) Lamert v. Heath, 15 M. & W. (r) Sutton v. Totham, 10 Ad. & E.
4B6 ; 15 L. J., Ex. 298. Mitchell v. 27. Bowlby v. Bell, 3 C. B. 284. Pol-
Wewhall, 15 M. & W. 308 ; 15 L. J., lock v. Stables, 12 Q. B. 774.
Ex. 292. Westropp v. Solomon, 8 C. (s) Bayliffe ». Butterworth, i Exch.
B. 373- 425-
Sec. III.] PRINCIPAL AND AGENT. 621
he has purchased for his principal, he may recover the
amount from the latter, {f)
917. Solicitors are, as we have already seen, bound,
in common with all professional men, to act faithfully
and diligently, and exercise a reasonable degree of
<;are and skill in the conduct and management of the
business intrusted to them to execute.^ Gifts and
(0 Bayley ,. Wilkins, 7 C. B. 899. Taylor v. Stray, 2 C. B. N. S. 175 ;
26 L. J., C. P. 287.
' See ante, § 877, note on p. 566. An attorney with us, by
which general term may be included all grades of lawyers, has a
presumption of authority in his favor, and upon appearing for
his client in court, will be presumed to have an authority to
do so. Thomas v. Steele, 22 Wis. 207 ; Pillsbury v. Dugan,
9 Ohio, 117. Leslie v. Fischer, 62 111. 118; Hamilton v.
Wright, 37 N Y. 502 ; Proprietors v. Bishop, 2 Vt. 231; Os-
.born V. Bk. U. S., 9 Wheat. 231 ; Post v. Haight, i How. Pr.
171. But the fiction is, that every attorney so appearing has
his formal warrant of attorney from the client; Leslie v.
Fischer, 62 111, 118 ; and although, under the above presump-
tion, such is very rarely the fact, the opposite party has a
right to call upon the attorney to produce his warrant.
'O'Flynn v. Eagle, 7 Mich. 306 ; Gillespie's case, 3 Yerg. 325 ;
Silkman v Boiger, 4 E. D. Smith, 236 ; Lynch v. Common-
■wealth, 16 S & R. 358; Campbell v. Galbreath, 5 Watts, 423 ;
O'Flynn v. Eagle, 7 Mich. 306 ; McAlexander v. Wright, 3
T. B. Monr. 194; Clark v. Willett, 35 Cal. 534. See Knowl-
ton V. Plantation No. 4, 14 Me. 20 ; Savery v. Savery, 8 Iowa,
217; Hellman v. Whennie, 3 Rich. (S. C.) 364 ; Barnes v.
Profile!, 5 La. Ann. 117. But if the court be satisfied by the at-
.torney's declaration or by other parol evidence of the attorney's
authority, it will be sufficient. Hardin v. Ho-yo-po-nubby,
27 Miss. 567; Bogardus v. Livingston, 2 Hilt. (N. Y.) 236;
JManchester Bk. v. Fellows, 28 N. H. 302 ; Farrington v.
Wright, I Minn. 241 ; Field v. Proprietors, i Cush. 11 .
Bridgton v. Bennett, 23 Me. 420 ; Henck v. Todhunter, 7 Har.
& J. 275 ; Cartwell v. Manifee, 2 Ark. 355 ; Commis. v. Purdey,
36 Barb. 266; Boutlier v. Johnson, 2 Browne, Pa. 17; Allen
V. Green, i Bailey, 448 ; West v. Houston, 3 Harr. (Del.) 15 ;
Bush v. Miller, 13 Barb. 481 ; Farm. & Mech. Bk. v. Troy Bk.,
J Dougl. (Mich.) 457. See, however, under North Carolina
622 LAW OF CONTRACT. [Bk. II. Ch. Ill
purchases by a solicitor from his client are, as we have
seen, invalid, unless the confidential relationship has
been determined as regards the particular transaction,
act, Day v. Adams, 6^ N. C. 254; Ninety Nine Plaintiffs v.
Vanderbilt, 4 Duer, 632 ; Hirshfield v. Landman, 2 E. D. Smith,
208 ; Rogers v. Park, 4 Humph. 480 ; King of Spain v. Oliver,
2 Wash. 429. If it appear that the attorney has no authority
to appear, proceedings taken by him will be set aside upon
motion. Hess v. Cole, 23 N.J. L. (3 Zab.) 116; Handely v.
Statelor, 6 Litt. (Ky.) 186 ; Boykin v. Holden, 6 La. Ann. 120 ;
Frye v. Calhoun Co., 14 111. 132 ; Crichfield v. Porter, 3 Ohio,
518; Powell V. Spaulding, 3 Iowa, 443. An attorney is an
officer of the court, and proceedings to disbar him must be upon
an order to show cause why he should not be suspended or re-
moved, from his office or in the nature of an attachment as for a
contempt. Ex parte Brown, 2 Miss. 303 ; Ex parte Mills, i Mich.
392 ; In re Percy, 36 N. Y. 651 ; Paul v. Percell, i Browne (Pa.)
348 ; U. S. v. Porter, 2 Cranch, 60 ; Perry v. State, 3 Iowa,
SSo; Rice V. Com., 18 B. Monr. 472; State v. Start, 7 Iowa,
499; State V. Watkins, 3 Mo. 388; Beene v. State, 22 Ark.
149 ; Ex parte Bryant, 24 N. H. 149 ; Com. v. Newton, i Grant,
453; Fisher's case, 6 Leigh, 619; Saxton v. Stowell, 11 Paige,
526 ; People v. Harvey, 41 III. 277 ; State v. Holding, 1 Mc-
Cord (S. C.) 379 ; Smith v. State, i Yerg. 228 ; Baker v. Com.,
10 Bush, 592; Gehrke V. Jod, 59 Mo. 522; Withers v. State,
36 Ala. 252. There was no cause shown why the attorney
should be disbarred in Jackson v. State, 21 Tex. 668 ; Fletcher
V. Dangerfield, 20 Cal. 427 ; State v. Kirke, 12 Fla. 278; Perry
V. State, 3 Iowa, 550; State v. Foreman, 3 Mo. 602; State v.
Chapman, 1 1 Ohio, 430. An unauthorized appearance by which
an innocent defendant is made to suffer, may collaterally im-
peach such appearance. Henck v. Todhunter, 7 Har. & J.
275 ; Turner v. Carruthers, 17 Cal. 431 ; Hayes v. Shattuck,
21 Cal. 51 ; Dalton v. Dalton, 33 Ga. 243 ; Jackson v. Stewart,
6 Johns. 34; Bcckley V. Xewcomb, 24 N. H. 359; Mexico v.
De Arargoix, 5 Duer, 643 ; Tally v. Reynolds, i Ark. 99 ;
Kent V. Richards, 3 Md. Ch. 392 ; Conrey v. Brenham, i La.
Ann. 397 ; Bank Com. v. Bank of Buffalo, 6 Paige, 497 ; Fow-
ler V. Morrill, 8 Tex. 153 ; Cox v. Hill, 3 Ohio, 411 ; Pillsbury
V. Dugan, 9 Ohio, 117; Hill v. Mendenhall, 21 Wall. 453;
Norris v. Douglass, 5 N. J. L. 317 ; Williams v. Butler, 35 IlL
544. But the defendant must be guilty of no laches in so
doing; Am. Ins. Co. v. Oakley, 9 Paige, 496; Legree v. Rich-
Sec. III.] PRINCIPAL AND AGENT. 623
and some disinterested advice has been taken and
acted upon by the client ; («) but the validity of the
purchase can not be impeached by a stranger, iv) If
{u) Holman v. Loynes, 1 8 Jur. 839. {v) Knight v. Bowyer, 26 L, J., Ch
Simpson v. Lamb, 7 EU. & Bl. 84. 769.
Gibbs V. Daniel, 4 Giff. i.
ard, 10 La. Ann. 669 ; if he be, the judgment may be continued,
and the defendant remitted to his remedy against the attorney.
See Denton v. Noyes, 5 Johns. (N. Y.) 296 ; Blodget v. Con-
klin, 9 How. (N. Y.) Pr. 442 ; Cyphert v. McClune, 22 Pa. St.
195 ; Walworth v. Henderson, 9 La Ann. 339. But not if the
attorney is irresponsible. Campbell v. Bristol, 19 Wend. loi.
An attorney employed by an agent is the attorney of the prin-
cipal ; Porter v. Peckham, 44 Cal. 204 ; and the. agent is lia-
ble for wrongfully instructing them, but not for their own
negligence. Wilson v. Smith, 3 How. 763 ; Buckland v. Con-
way, 16 Mass. 366; see Harrold v. Gillespie, 7 Humph. 59;
Hobbs V. Duff, 43 Cal. 485 ; Watson v. Muirhead, 57 Penn. St.
247 ; the attorney himself may not employ a substitute or sub-
stitutes, although he may employ subordinates to assist him.
See In re Bleakly, 5 Paige, (N. Y.) 311 ; Hitchcock v. McGe-
hee, 7 Port. 556 ; Johnson v. Cunningham, i Ala. 249; Kellogg
V. Norris, 10 Ark. 18 ; Ratcliff v. Baird, 14 Tex. 43 ; Polland
V. Rowland, 2 Blackf. 22 ; Power v. Kent, i Cow. 211 ; Birk-
beck V. Stafford, 14 Abb. Pr. 285 ; 23 Flow. Pr. 236 ; McEwen
-V. Mazyck, 3 Rich. (S. C.) 210; Cook v. Ritter, 4 E. D. Smith,
253. The question of the attorney's negligence has been con-
sidered, ante, note i, p. 566. The rule is generally stated,
that he is liable only for his own negligence, and for that of his
clerks and subordinates ; Whitney v. Corporation, 104 Mass*
152 ; Lewis v. Peck, 10- Ala. 142 ; Bradstreet v. Everson, 72 Pa.
St. 124; Pollard v. Rowland, 2 Blackf 22; Wilkinson v.
Griswold, 12 Sm. & M. 669; Power v. Kent, i Cowen, 211;
Birkbeck v. Stafford, 14 Abb. Pr. 285; 23 How. Pr. 236; and
he is also held liable for the negligence of his partners ;
Smyth V. Harvie, 31 111. 62 ; Dwight v. Simon, 4 La Ann. 490 ;
Poole V. Gist, 4 McCord, 250 ; Norton v. Cooper, 3 Sm. & G.
375 ; Warner v. Griswold, 8 Wend. 665 ; Livingston v. Cox,
6 Penn. St. 360; Mardis v. Shackleford, 4 Ala. 493; Morgan
V. Roberts, 38 111. 65 ; but no liability will attach to him for
negligence of his associates, counsel, or for the negligence of
any expert or specialist employed by him in matters entrusted
to their own particular discretion and skill. Watson v. Muir-
624 LAW OF CONTRACT. [Bk. II. Ch. III.
a solicitor discontinues proceedings in an action wiiich
he has commenced by direction of his client, he is
bound to show a reasonable and satisfactory ground
head, 57 Penn. St. 247 ; Porter v. Peckham, 44 Cal. 204.
The attorney who has once engaged in a case, can not accept
engagements adversely to the client engaging his services,
even if the engagements are to do merely formal and per-
functory acts. Spinks v. Davis, 32 Miss. 152 ; Taylor v. Bank,
14 Ala. 633; Howell V. Baker, 4 Johns. Ch. 118; McArthur
V. Fry, 10 Kansas, 231; Warren v. Sprague, 4 Edw. 416;
Commonwealth v. Gibbs, 4 Gray, 146 ; Price v. Grand Rapids
R. R., 18 Ind. 139; Gaulden v. State, 11 Ga. 47; Wilson v.
State, 16 Ind. 392; Herrick v. Catley, i Daly, 512; 30 How.
Pr. 208 ; Sherwood v. R. R., 15 Barb. 650 ; nor can an at-
torney represent both sides of a case, even though the pro-
ceeding is an amicable one; Valentine v. Stewart, 15 Cal.
387; Sherwood v. Saratoga R. R. Co., 15 Barb. 650; though
a case might properly be referred to the opposite party's coun-
sel as a sort of umpire. Per contra, Joslin v. Cowee, 56 N. Y.
626. It has been said that the attorney can not use informa-
tion once received from a client, adversely to him, but see
as to the extent to which this rule will be carried. Price v.
Railroad, 18 Ind. 137; Henry v. Raman, 25 Pa. St. 354; Por-
ter V. Peckham, 44 Cal. 204. The relation of attorney and
client may terminate by a revocation of authority, as in
the case of any agent without interest ; Gibbons v. Gibbons,
4 Harring. 105 ; Carver v. United States, 7 Ct. of CI. 499 ;
Hunt's Estate, i Tucker, 55 ; In re Paschal, 10 Wall. 483 ;
Wells V. Hatch, 43 N. H. 246; Hazlett v. Gill, 5 Rob. 611 ;
Faust V. Repoor, 15 How, 570; but this must be done by for-
mal leave of the court, if the attorney be of record, and by
service of the order of substitution upon the opposite party.
Krekeler v. Thaule, 46 How. Pr. 138 ; Robertson v. M'Clellin,
7 How. Pr. 90; Dalon v. Lewis, 7 How. Pr. 132; Given v.
Driggs, 3 Caines, 300 ; Hildreth v. Harvey, 3 Johns. Ca.
300; Dorlon V. Lewis, 7 How. (N. Y.) Pr. 132; Bogardus v.
Richtmeyer, 3 Abb. (N. Y.) Pr. 179; Grant v. White, 6 Cal. 55 ;
55 ; Roussin v. Stuart, 33 Cal. 208 ; otherwise the new attor-
ney's acts will be disregarded; Jerome v. Bowman, i Wend.
393 ; though this rule will not be oppressively enforced
against parties acting in good faith; State v. Gulick 7 N.
J. L. 435; Fuller V. Brown, 10 La. Ann. 350; McLaren v.
Charrier, 5 Paige, 530; Thorp v. Fowler, 5 Cow. 446. But
Sec. III.] PRINCIPAL AND AGENT. 625
for such discontinuance ; and he must, in general, give
due notice to his client of his intentions to discon-
tinue ; and, if he improperl)^ throws up a cause, he has
the court will not direct a substitution unless the attorney's
fees are paid; Supervisors v. Broadhead, 44 How. Pr. 411;
Carver v. U. S., 7 Ct. of CI. 499 ; Pleasants v. Kortrecht, 5
Heisk. 694 ; Walton v. Sugg, Phill. (N. C.) 98. See Paschal,
in re, 10 Wall. 483 ; Sloo v. Law, 4 Blatch. 268 ; Mumford v.
Murray, Hopk. N. Y. 369 ; Hoffman v. Van Nostrand 14 Abb.
N. Y. 336 ; Stevenson v. Stevenson, 3 Edw. (N. Y.) 340 ; Gard-
ner v. Tayler, 5 Abb. (N. Y.) N. S. 83 ; S. C, 36 How. Pr. 63.
The right of an attorney to his fees in the United States, is the
same as the right of any other person to compensation for
services rendered upon employment, and may be recovered
in the same way by a suit at law. Richardson v. Rowland, 40
Conn. 565; Harland v. Lilienthal, 53 N. Y. 438; Brady v.
Mayor, i Sandf. 559; Brackett v. Sears, 15 Mich. 244; Nichols
V. Scott, 12 Vt. 47 ; Clendinen v. Black, 2 Bailey (S. C.) 488;
Miller V. Beal, 26 Ind. 234; Webb v. Browning, 14 Mo. 353;
Daw v. Ewell, 2 Cranch, C. C. 144; Wylie v. Coxe, 15 How.
,(U. S.) 416 ; Smith v. Davis, 45 N. H. 566 ; Sanford v. Ruck-
man, 24 How. N. Y. Pr. 521 ; Stevens v. Monges, i Harr. (Del.)
124; Van Atta v. McKinney, 16 N. J. L., i Harr. 235; Fos-
ter V. Jack, 4 Watts, 339. But the attorney's compensation is
more or less under the direction of the court, and it has been
said that if a lawyer take advantage of his relation to his
client to elicit extortionate and oppressive fees or gifts, they
may be recovered back by the client, and the attorney pun-
ished by the court. See Lecatt v. Sallee, 3 Porter, 115; Phil-
lips V. Overton, 4 Hayw. 291 ; Rose v. Mynett, 7 Yerg. 30 ;
Thurston v. Percival, i Pick, 415 ; Rust v. Larue, 4 Lett. (Ky.)
416. Courts will discourage arrangements between attor-
neys and clients to prosecute causes on shares. Elliott v. Mc-
Clelland, 17 Ala. 206 ; Halloway v. Lowe, 7 Port. 488 ; Mer-
ritt V. Lambert, 10 Paige 352 ; Satterlee v. Frazer, 2 Sandf
141 ; Boardman v. Thompson, 25 Iowa, 487. This is the
traditional spirit of the law ; the Roman law divided contin-
gent fees into pactum de quota litis, by which the attorney
was to share the proceeds of the suit, and the palmarium
victoriae, or agreement, in case of success, for an extra remu-
neration. The first was absolutely null, and was held so
reprehensible as to be a ground for disbarring the attor-
ney. Decree of Constantianus, L. 5, c. d., post 2, 6. The
II. — 40
626 LAW OF CONTRACT. [Bk. II. Ch. IIL
no right to be paid pro rati for his work and labor.
{w) If a cause which he is retained to conduct fails
through his negligence, he can not recover from his
(w) Nicholls V. Wilson, ii M. & W. lo6.
palmarium victorias was not considered dishonorable, but the
agreement to pay such a reward was only a natural obli-
gation, and not efficacious unless ratified after termination
of the process. It was held, at the same time, that such
fee should not, with other payments, exceed a hundred
gold pieces for each process ; L. J, § 12 D., de ex. cog. 50, 13.
And Ulpian holds in disfavor unliquidated contingent fees ; Id.
But an attorney may make and sustain a special agreement
with his client. Jenkins v. Williams, 2 How. (N. Y.) Pr. 261 ;.
Lander v. Caldwell, 4 Kans. 339 ; Major v. Gibson, i Patt. &
H. Va. 48; Lecat v.Sallee, 3 Port. (Ala.) 115 ; Wallisv. Loubat,
2 Den. 607; Eastern v. Smith, 1 E. D. Smith, 318. If this
special agreement be set aside by the court, or by the parties,,
the attorney may still recover for his services on a quantum,
meriui. Greaves v. Lockwood, 30 Conn. 276 ; Roselins v.
Delachaise, 5 La. Ann. 482 ; Michen v. Gravier, 11 La. Ann.
596; Savings Bk. v. Benton, 2 Mete. (Ky.) 240; Hood v.
Ware, 34 Ga. 328 ; Brewer v. Cook, 11 La. Ann. 637; Vilas
V. Downer, 21 Vt. 419 ; Phelps v. Hunt, 40 Conn. 97 ; Macarty's
Succession, 3 Id. 518; Lee's Succession, 4 Id. 578;
Virgin's Succession, 18 Id. 42; Turner v. Myers, 23
Iowa, 391 ; Barker v. York, 3 La. Ann. 90; Burghart v. Gard-
ner, 3 Barb. 64; Chicago R. R. Co, v. Larned, 26 III. 216;
Goodal V. Bedel, 20 N. H. 205 ; Bogardus v. Livingston, 7
Abb. (N. Y.) Pr. 428 ; Fore v. Chandler, 24 Tex. 146 ; see Seely
v. North, 16 Conn. 92; Briggs v. Georgia, 15 Vt. 61; Smkb
V. Dougherty, 37 Vt. 530; Stow v. Hamlin, i How. (N. Y.)
Pr. 452; Planters' Bank v. Heinberger, 4 Cold. 578; McMa-
hon V. Smith, 6 Heisk. 167 ; Hotchkins v. Le Roy, 9 Johns
R. 142 ; Bowman v. Tallman, 27 How. (N. Y.) 212 ; Kentucky
Bk. V. Cowles, 7 Penn. St. 543 ; Duncan v. Yancy, i McCord,
(S. C.) 149. The success of the attorney's services will make no
difference as to his right to remuneration, unless their failure
be due to his own negligence. See Maynard v. Briggs, 26
Vt. 94 ;. Nixon V. Phelps, 29 Id. 198; Bredin v. Kingland, 4
Watts, 420; Gleason v. Clark, 9 Cowen, 57; Runyan v.
Nichols, n Johns. R. 547; Hopping v. Quin, 12 Wend. 517;
Wills V. Kane, 2 Grant (Pa.) 60 ; Brackett v. Norton, 4
Conn. 517; Porter v. Ruckman, 38 N. Y. 210. If the attor-
Sec. III.] PRINCIPAL AND AGENT. 627
client money expended by him subsequently to such
negligence. " If he is not entitled to charge for his
labor, he can not charge for his money." ix) A solic-
{x) Lewis V. Samuel, 8 Q. B. 685.
ney's services be immoral or illegal he can not recover any-
more than any other agent or servant. Treat v. Jones, 28
Conn. 334; Hallett v. Oakes, i Cush. 296; Trist v. Child, 21
Wall, 441 ; Arrington V. Sneed. 18 Tex. 135. The attorney's
lien for fees is recognized by the present civil law (Gliich.
Commis. v., § 372), and this attaches not only to the papers
in the case, which would be on the general principle upon
which one has a lien for his compensation upon a thing upon
which he has bestowed lawful labor. Dennett v. Cutts, 11
N. H. 163; Howard v. Osceola, 22 Wis. 453; Stewart v.
Flowers, 44 Miss. 513 ; White v. Harlow, 5 Gray, 463 ; but see
Walton V. Dickerson, 7 Penn. St. 376 ; Dubois's Appeal, 38
Penn. St. 231; Newton v. Porter, 5 Lansing, 416; and it is
said that the papers can not be held under a lien, except for
services relating to them ; Bowling Green, &c.. Institution v.
Todd, 52 N. Y. 489; but to funds of the client in his hands
('n re Paschal, 10 Wall. 483), or to be recovered by his exer-
tions. Wylie V. Coxe, 15 How. 415 ; Hutchinson v. Howard,
15 Vt. 544 ; Stratton v. Hussey, 62 Me. 286 (qualifying Pot-
ter v. Mayo, 3 Greenl. 34; Newbert v. Cunningham, 50 Me.
231 ; Cooley v. Patterson, 52 Id. 472) ; Andrews v. Morse, 12
Conn. 444; Benjamin v. Benjamin, 17 Id. no; AValker v.
Sargeant, 14 Vt. 247 ; Hutchinson v. Pettes, i8 Id, 616 ; Power
V. Kent, I Cowen, 172 ; Martin v. Hawks, 15 Johns. 405 ;
Rooney v. R. R., 18 N. Y. 368 ; Bowling Green Bank v. Todd,
52 Id. 489; Sexton v. Pike, 13 Ark. 193; Waters v. Grace,
23 Id. 118; Carter v. Davis, 8 Fla. 183. It is said, in some
states, that the lien does not attach until judgment ; see Sweet
V. Bartlett, 4 Sandf. 661; Henchey v. Chicago, 41 111. 136;
Potter V. Mayo, 3 Green. 34 ; Hobson v. Watson, 34 Me, 20 ;
Getchell v. Clark, 5 Mass. 309 ; Foot v. Tewksbury, 2 Vt. 97 ;
Hutchinson V. Howard, 15 Id. 247; Hutchinson v. Pettes, 18
Id. 616 ; and in some the lien is matter of statute. In Massa-
chusetts the attorney has such lien only when he is lawfully
j,ossessed of an execution, or has prosecuted a suit to final
judgment in favor of his client, and not then, as against a
payment to the judgment creditor without notice of the lien.
Simmons v. Almy, 103 Mass. 33; and see Baker v. Cook, 11
Id. 236 ; Getchell v. Clark, s Id- .309 ; so in Vermont (Citi-
628 LAJV OF CONTRACT. [Bk. II. Ch. III.
itor is responsible to the client for all sums received
by him in the conduct of the business entrusted tc
him, and must render a true and faithful account
zens, &c., Bank v. Culver, 54 N. H. 327 ; and the statu-
tory lien must be enforced according to the law of the state
giving it. Id. Some states hold that this lien, however, only
extends to costs and disbursements; see Cozzens v. Whitney,
3 R. I. 79; McDonald v. Napier, 14 Ga. 89; Humphrey v.
Browning, 46 111. 476; Elwood v. Wilson, 21 Iowa, 523;
ex parte Kyle, 1 Cal. 331; Mansfield v. Borland, 2 Id. 507;
Young V. Dearborn, 27 N. H. 324; Currier v. R. R., 37 Id.
223; Wells V. Hatch, 43 Id. 246; Dennett v. Cutts, ii Id.
163; Citizens' Nat. Bank v. Culver, 54 Id. 327; while
many cases deny the existence of the lien at all, but give him
■ mere right to deduct from the client's funds in his hands.
Walton V. Dickerson, 7 Pa. St. 376; Hill v. Brinkley, 10 Ind.
102 ; Frissel v. Haile, 18 Mo. 18; Irwin v. Workman, 3 Watts.
357 : Dubois's Appeal, 38 Penn. St. 231 ; Newbaker v. Alricks,
5 Watts. 183. It was said, in Patten v. Wilson, 34 Pa. St. 299,
that such claims by the attorney are not liens, but equitable
assignments, which the courts will protect; and see generally
as to the attorney's lien; Marshall v. Meech, 51 N. Y, 140;
Forsyth v. Beveridge, 52 111. 268; Mansfield v. Borland, 2
Cal. 230; Rooney v. Railroad, 18 N. Y. 368; Warfield v.
Campbell, 38 Ala. 527 ; Ward v. Syme, 9 How. Pr. 16 ; as
to whether a set off against a judgment obtained will affect
the lien; see Stratton v. Hussey, 62 Me. 288; Currier v. R. R.,
37 N. H. 223 ; Boyer v. Clark, 3 Neb. 161 ; Carter v. Davis, 8
Fla. 183; Walker v. Sargeant, 14 Vt. 247; Porter v. Lane, 8
Johns. 357; Mohawk Bank v. Burrows, 6 Johns. Ch. 357;
Johnson v. Bullard, 44 Ind. 270.
The relation of attorney and client can also be determined,
II., by the termination of the particular suit in which he
was engaged ; Love v. Hall, 3 Yerg. 408 ; Adams v. Bank,
23 How. (N. y.) Pr. 45 ; Bathgate v. Haskin, 59 N. Y. 533;
Langdon v. Castleton, 30 Vt. 285 ; Jackson v. Bartlett, 8
Johns. R. 361; Richardson v. Talbot, 2 Bibb. 382; Gray v.
Wass, I Greenl. 257. But the attorney must not withdraw
upon an adverse judgment, if his client is at such a distance
that he can not be consulted, and it is to the latter 's
interest to have the judgment reviewed. See Bathgate v. Has-
kin, 59 N. Y. 533; Bach v. Ballard, 13 La. Ann. 487.
Or, III., by leave to the attorney to withdraw from the
Sec. III.] PRINCIPAL AND AGENT. 629
thereof when called upon so to do. Where, on a sale
of real estate, the solicitor of the vendor receives the
deposit as agent of the vendor, he has not, in the
case, given him by the court. United States v. Curry, 9 How.
100; and see Boyd v. Stone, 5 Wis. 240; Martinis v. Johnson,
31 N. J. L. I Zab. 239 ; Bach v. Bullard, 19 La. Ann. 487 ; or,
IV., by the client's death ; Balbi v. Duvet, 3 Edw. (N. Y.) 418;
Risley v. Fellows, 10 111. 531 ; Judson v. Love, 35 Cal. 463 ;
Whitehead V. Lord, 7 Exch. 691; Gleason v. Dodd, 4 Mete.
333 ; Putnam v. Van Buren, 7 How. (N. Y.) Pr. 31 ; Beach v.
Gregory, 2 Abb. (N. Y.) Pr. 206. See this question discussed,
ante, note, p. 699 ; or, V., by the attorney's incapacity ; as, for
instance, his insanity, disbarment, promotion to the bench
(Given v. Driggs, 3 Caines, 150), or death. Vielie v. Bennett,
3 Johns. Cas. 557 ; Hildreth v. Harvey, Id. 300. And the op-
posite party must serve the other with notice to appoint a new
attorney; a mere knowledge of his attorney's death in the
party, or personal service on him of papers, or a posting of the
notice of the attorney's death in the clerk's office, will not be
valid. The attorney's liability to his client is to notify him of
every circumstance affecting his interest, or requiring action on
his part to exhibit ordinary and usual diligence and skill in his
profession. See as to the amount of skill required ; Marsh v
Whitman, 21 Wall. 178; Morrill v. Graham, 27 Tex. 646;
Holmes v. Peck, i R. I. 242 ; O'Barr v. Alexander, 37 Ga.
19s; Cox V. Sullivan, 7 Id. 144; Wilson v. Russ, 20 Me. 421;
Goodman v. Walker, 30 Ala. 482 ; Walpole v. Carlisle, 32
Ind. 415 ; Stephens v. Walker, 55 111. 151 ; Pidgeon v. Wil-
liams, 21. Grat. 251; Bowman v. Tallman, 27 How. (N. -Y.)
Pr. 212; Lynch V. Commonwealth, 16 S. & R. 368; and see
as to the diligence required, Nisbet v. Lawson, i Ga. 275 ;
O'Barr v. Alexander. 37 Id. 195 ; Stubbs v. Beene, 37 Ala.
627 ; Spiller v. Davidson, 4 La. Ann. 171 ; Gambert v. Hunt,
'44 Cal. 542 ; Walpole v. Carlisle, 32 Ind. 415 ; Hastings v.
Halleck, 13 Cal. 203; Stevens v. Walker, 55 111. 151 ; Wilson
V. Coffin, 2 Cush. 316; Harter v. Morris, 88 Ohio St. 492;
Pidgeon v. Williams, 21 Grat. 251 ; Goodman v. Walker, 30
Ala. (N. S.) 482 ; Cox v. Sullivan, 7 Ga. 144; Wilson v. Rus-
sell, 20 Me. 421 ; Holmes V. Peck, i R. I. 242; Walson v.
Muirhead, 57 Penn. St. 161 ; Lynch v. Commonwealth, 16 S.
& R. 368; Bownian v. Tallman, 27 How. (N. Y.) Pr. 212 ; and
see ante, note He can not defend himself from the conse-
quences of his negligence on the ground that his services
were gratuitous. Wharton on Negligence, § 436. And he is
630 LAW OF CONTRACT. [Bk. HI. Ch. III.
absence of any stipulation to that effect, any duty, like
that of an auctioneer, to the vendee, but must pay it
over to his principal, the vendor, on demand, (jj/) He
iy) Edgell >-. Day, L. R., I. C. P. 80 ; 35 L. J., C. P. 7-
liable for damages arising from his ofBcious intermeddling
with a case. O'Hara v. Brophy, 24 How Pr. 279; Bradt v.
Walton, 8 Johns R. 298. While his relation as the attorney
of his employer exists, he has power to bind his client by his
acts within the case in which he is retained. See generally
as to this, Nave v. Bairs, 22 Ind. 318; Chambers v. Hodges,
23 Tex. 104; Russel v. Lane, i Barb. 519; Jenny v. Delesder-
nier, 20 Me. 183; Fairbanks v. Stanley, 18 Id. 296; Lawson
V. Betteson, 20 Ark. 401 ; Sampson v. ObJeyer, 22 Gal. 200;
Greenlee v. McDowell, 4 Ired. 481 ; Rice v. Wilkins, 21 Me. 558;
Bethel v. Cormack, 2 Md. ch. 143. He has absolutely control
of the case put into his hands. Nightingale v. Railroad, 2
Sawyer, T,T,g\ Simpson v. Lombas, 14 La. Ann. 103 ; Commis-
sioners V. Younger, 29 Cal. 147 ; Ward v. HoUins, 14 Md.
158; Pierce v. Strickland, 2 Story, 292; Clark v. Randall,
9 Wis. 135. And is solely responsible to his client for his
acts and proceedings tlierein ; consult Lawson v. Betterson,
12 Ark. 401; Sampson v. Oble3'er, 22 Cal. 200; Foster v.
Wiley, 27 Mich. 244; Collett v. Foster, 2 H. & X. 356; Crook
V. Wright, R. & M. 278; Beeke v. Penn. 7 C. & P 397 ; Green-
lee V. [McDowell, 4 Ired. Eq. 481 ; Chambers v. Hodges, 23
Tex. 194; Bethel Church v. Carmack, 2 Md. Ch. 143; Cox v.
Livingston, 2 Watts & S. 103 ; Miller v. Wilson, 24 Pa.
St. 114. He may, in the exercise of such power, accept
service of papers (Hofferman v. Burt, 7 Iowa, 320) to discon-
tinue; Gaillard v. Smart, 6 Con. 385; or appeal (Adams v.
Robinson, i Peck, 462) or restore (Reenhold v. Alberti, i Bin.
469) a suit, to waive formalities or advantages gained by him
in the course of the proceedings; Hanson v. Hoitt, 14 N. H.
56; Alton v. Gilmanton, 2 Id. 520; Pierce v. Perkins, 2
Dev. (N. C.) 250; Hartv. Spalding, i Cal. 213; or even veri-
fication or proof of facts or papers; Smith v. Milliken, 2 Min.
319; Lewis V. Sumner, 13 Mete. 269; Wenans v. Lindsay, i
How. 557 ; Starke v. Kenan, 11 Ala. 819; Talbot v. McGee, 7
T. B. Mon. 377 ; Pike v. Emerson, 5 N. H. 293 ; Gilkeson v.
Snyder, 8 W. & S. 200; Farmers' Bank v, Sprigg, 11 Md. 389;
Smith V. Dixon, 3 Met. (Ky.) 438; La Crosse v. Robert, 11
La. Ann. 2,Z; ."^nd he may release an attachment; Jloulton
V. Bowkcr, 115 Mass. jo ; confess judgmt-iU ; tiough see
Sec. III.] PRINCIPAL AND AGENT. 631
is responsible also, as we have already seen, for the
safe investment of all moneys intrusted to, and ac-
cepted by him for investment. (_j/) * But the towrn
(_y) Ante, § 194.
Denton v. Noyes, 6 Johns. 296 ; but see People v. San-
born, I Scam. (2 111.) 123 ; or (before an execution is ac-
tually issued) to stipulate as to its levy ; Union Bank v.
Georgetown, 5 Pet. 99; Willand v. White, 109 Mass. 392;
•or open a judgment ; Clussman v. Merkel, 3 Bosw. 402 ;
Read v. French, 28 N. Y. 285 ; or submit to an arbitra-
tion; Cahill V. Benn, 6 Binney, 99; Wader v. Powell, 31
Ga. i; Smith v. Bassard, 2 McCord, 406; Stokely v. Robin-
son, 34 Pa. St. 315; but see Markley v. Amos, 8 Rich.
{S. C.) 46,8. But he has no power to bind his client by va-
cating a judgment; Quinn v. Lloyd, 5 Abb. Pr. N. S. 281;
or to stipulate not to move for a new trial ; People v. Mayor,
&c., 1 1 Abb. 66 ; or to assign his clients' suit ; Mayer v. Blease,
4 S. C. 10 ; Weathers v. Roe, 4 Dana, 474 ; Head v. Gervaise,
I Walk. Ch. 431 ; or to compromise. This last, however, dif-
fers in diiferent states. See McDowell v. Second Av. R. R.,
5 Bosw. (N. Y.) 670; Mallory v. Mariner, 15 Wis. 172; Abbe
V. Rood, 6 McLean, 106; Gordon v. Coolidge, i Sumn. 537;
Wieland v. White, 109 Mass. 392 ; Peru Steel Co. v. Whipple
File Co., 109 Mass. 464; Holker v. Parker, 7 Cranch, 436;
Potter V. Parsons, 14 Iowa, 286 ; Fogg v. Sanborn, 48 Me. 432 ;
Christie v. Sawyer, 44 N. H. 298; Reinhold v. Alberti, i Bin-
ney, 469 ; North Mo. R. R. v. Stephens, 36 Mo. i^o; coittra,
Nolan V. Jackson, 16 111. 272 ; Doub v. Barnes, i Md. Ch. 127 ;
Dervvort v. Loomer, 21 Conn. 245 ; Vail v. Jackson, 13 Vt.
314; Maddux v. Bevan, 39 Md. 485; Smith v. Dixon, 3 Met.
(Ky.) 438; Smock v. Dude, 5 Rand. (Va.) 639; Marbourg v.
Smith, II Kan. 562; Davidson v. Rozier, 23 Mo. 387; Falker
V. Parker, 7 Cranch, 436, 452 ; Dodd v. Dodds, 9 Pa. St. 315 ;
Maddux v. Bevan, 39 Md. 485 ; or to agree to or do anything
that shall bar a client's action; Marbourg v. Smith, 11 Kan.
554 ; Lambert v. Sandford, 2 Blackf. 137 ; or imperil his case ;
Mitchell V. Cotten, 3 Fla. 136 ; Marshall v. Nagle, i Bailey,
308; Shores v. Caswell, 13 Met. 413; Murray v. House, 11
Johns. R. 464; East River Bank v. Kennedy, 9 Bosw. 573 ;
See a Ilk, § 794.
632 LAW OF CONTRACT. [Bk. II. Ch. IIL
agent of a country solicitor is not responsible to the
clients of the latter for money received whilst con-
ducting their causes or legal proceedings. The privity
Bowne v. Hyde, 6 Barb. 392; Springer v. Whipple, 17 Me.
351 ; York Bank v. Appleton, 17 Id. 55 ; Bell v. Bank, 8 Ala.
590 ; or to release indorser's ; Varnum v. Bellamy, 4 McLean,
87 ; or garnishee's; Quarles v. Porter, 12 Mo. 76; nor can he-
purchase land for his client under the latter's execution ;
Beardsley v. Root, ii Johns. 404; and see Corbin v. Mul-
ligan, I Bush, 297 ; or to settle his client's claim by the
receipt of anything but money, unless expressly or impliedly
authorized; Child v. Dwight, i Dev. & Bat. Eq. 171; Treas-
urers V. McDowell, I Hill (S. C), 184; Patten v. Fullerton, 27
Me. 58; Baldwin v. Merrill, Humph. 132: Perkins v. Grant,,
2 La. Ann. 328; Phelps v. Preston, 9 Id. 488; Campbell
V. Bailey, 19 Id. 172; Garvin v. Lowry, 15 Mass. 24;
Jeter V. Haviland, 24 Ga. 252; Pluston v. Mitchell, 14 Serg.
& R. 307; West V. Ball, 12 Ala. 340; though he might
take a short note of a person of undoubted credit ; Living-
ston V. Radcliff, 6 Barb. 201 ; Chapman v. Cowles, 41 Ala.
103; Davis v. Lee, 20 La, Ann. 248; Trumble v. Nicholson, 27-
111. 189. An attorney employed to procure the assignment of
a mortgage, can not receive its payment; Williams v. Walker,
2 Sandf Ch. 535. Nor can an attorney assign or transfer his
client's claim to a third party without his client's authority ;
Child V. Eureka, 44 N. H. 354 ; Goodfellow v. Landis, 36 Mo.
168; Penniman V. Patchen, 5 Vt. 346; Campbell's Appeal,
29 Pa. St. 401; Rowland v. State, 58 Id. 196; Fassit v.
Middleton, 47 Id. 214; Heed v. Gervaise, Walk. Ch. 431^
Card V. Wallridge, 18 Ohio, 411 ; Terhune v. Colton, 10 N. J.
Eq. (2 Stock.) 21 ; White v. Hildreth, 13 N. H. 104. Nor will
payment to one not attorney of record (Wart v. Lee, 3 Yeates,
7) or to the late attorney of a dead man (Clark v. F^ichardf,
3 E. D. Smith, 89) discharge the person making the payment,
if a collusive arrangement between the attorney and the
attorney on the other side is invalid ; Child v. Dwight, i Der.
& Bat. Eq. 171 ; Craig v. Ely, 5 Stew. & Port. 354; Cham-
bers v. Miller, 7 Watts, 63. Clark v. Kingsland, i Smedes& iSI.
248 (Miss.), held, that an attorney for a foreign client had no
authority to control his client's interest in matters subsequent
to the litigation ; and as a general rule, the attorney's authority
closes entirely after judgment entered, and he must have a new
authority to proceed further; see Kellogg v. Gilbert, lo Johns,.
Sec. III.] PRINCIPAL AND AGENT. 635
of contract is solely between the town agent and his
principal and employer, the country solicitor; he
knows nothing of the clients of the latter, and is bound
to account only to his principal. But the court will,
as before mentioned, sometimes interfere summarily
for the protection of the client. The solicitor must,
in general, one month before action against his client,
deliver his bill of costs, signed by him, to his client ;
(^z) and, when his bill has been paid, he is bound to
deliver up, if called upon, all papers and documents in
his hands belonging to his client, in good order and
properly arranged, {a)
918. S^teriff's officers, expressly employed by a
solicitor to execute process, may maintain an action
against the latter for the recovery of such fees as are
usually allowed on the taxation of costs by the course
and practice of the courts, and are not bound to resort
to the clients of the solicitor for remuneration. (J?)
919. Duties of estate and house-agents. — A house-
agent employed to procure a tenant for a house is
bound to use due care and caution in the letting of
the house, and to make all proper and necessary en-
(z) Phipps V. Daubney, i6 Q. B. {a) North- West R. Co. v. Sharp, iS
514. Smith V. Pococke, 22 L. J,, Ch. Jui". 964.
545. {b) Foster v. Blakelock, 8 D. & R.
48.
220; Simonton v. Burrell, 21 Wend. 362 ; Givens v. Briscoe,
3 J. J. Marsh, 532; Jewett v. Wadleigh, 32 Me. 110; but there
are many natural exceptions to this rule, arising from the
circumstances of the case; see Scott v. Seller, 5 Watts, 235;
Lj-nch V. Com. 16 S. & R. 388; Nelson v. Cook, 19 111. 440;
Corning v. Sutherland, 3 Hill (N. Y.), 552 ; Hyams v. Michel, 3
Rich. (S. C.) 303 ; Silvis v. Ely, 3 Watts & S. 420 ; Hollington,
ex parte, 43 L. J. Ch. 99 ; Erwin v. Blake, 8 Pet. 18 ; Willard v.
Goodrich, 31 Vt. 597 ; Day v. Welles, 31 Conn. 344 ; Steward
V. Biddlecum, 2 N. Y. ; 2 Comst. 103; Hopkins v. Willard, 14
Vt. 474 ; Gorham v. Gale, 7 Cowen, 739 ; Jenney v. Delesder-
nier, 20 Me. 183 : Read v. French, 2S N. Y. 285.
634 LAW OF CONTRACT. [Bk II. Ch. III.
quiries touching the respectability and solvency of the
tenant. If, therefore, he lets the house to a notori-
ously insolvent person, or to one whom he knows to
be insolvent, he will be responsible in damages to his
employer, (c)
920. Receipt of money and goods by agents on ac-
count of their principals. — It is a settled rule that an
agent shall not, after accounting with his principal,
and receiving money in his capacity of agent, after-
wards say that he did not do so, and did not receive
it for the benefit of his principal, but for some other
person, {d^ unless there has been a mistake and a
void payment ab initio, so that the money never was,
in truth, received for the principal. But, if the agent
effects a contract of sale at a high price in consequence
of a fraudulent misrepresentation made by him, and
receives such price, but is afterwards compelled to re-
fund the money to the purchaser, the principal can
not maintain an action for money had and received,
against the agent, to recover the price, inasmuch as
the sale is avoided by the fraud of the agent, and the
money received under it becomes the property of the
purchaser, and is not money had and received for the
use of the principal, {e) And, although an agent has
received goods from his principal to hold on account
of the latter, or although he has received goods from
a third party, and has agreed to hold them for his
principal, he may, under certain circumstances, set up
a jus tertii. Thus, if an auctioneer has received goods
for public sale from a person who is not the owner of
them, and has no right to sell them, and the real
(c) Heys v. Tindall, i B. & S. 296 ; 540. Edgell v. Day, 35 L. J., C. P.
30 L. J., Q. B. 362. 7 ; L. R., I C. P. 80.
id) Dixon v. Hamond, 2 B. & Aid. {e) Parke, B., Murray v. Mann, 17
313- Havves v, Watbon, 2 B. & C. L. J., Ex. 256. 2 Exch. 541.
Sec. III.] PRINCIPAL AND AGENT. 635
owner intervenes and forbids the sale, or claims the
nione}' realized by the sale, the auctioneer may set up
the title of such real owner against the claims of the
fictitious owner from whom he received the goods. (/)
So, where a wharfinger received notice that goods de-
posited at his wharf were marked with a fraudulent
imitation of a trademark, and that the owner of the
trade-mark was about to apply to the Court of Chan-
cery for an injunction to prevent the sale of the goods,
and, after the injunction had been granted, but before
the wharfinger had notice that it had been granted,
he refused to deliver the goods to the owner, it was
held that he was justified in such refusal, (^g)
Where a managing owner of a ship, or "ship's
husband," employed certain agents for general pur-
poses, and amongst others to receive and pay moneys
■on account of the ship, and kept a general account
with them, and also a separate account as managing
owner or ship's husband of the ship's disbursements and
earnings, and, in order to obtain the freight earned by
the vessel from the East India Company, it was nec-
essary that a receipt signed by the managing owner,
and by one or more of the other owners also, should
be given for the money due, and, upon a receipt of
this description, the agents received ^^2,000, which
was placed by them to the credit of the managing
owner in his account with them, it was held that the
money was received by the agents as agents of the
managing owner, and that the transaction was in effect
the same as if the other joint-owners and the manag-
ing owner had received the money, and it had been
then handed over to the managing owner, who had
(/) Biddle v. Bond, 6 B. & S. 225 ; {g) Hunt v. Manieve, 33 Beav. 157;
34 L. J., Q. B. 137. Hardman v. 34 L. J., Ch. 142.
Wilcock, 9 Bing. 382.
636 LAW OF CONTRACT. [Bk. II. Ch. IIL
then placed it in the hands of the agents, as his
bankers/ on his own account, and that the joint-owners
could not treat the agents as their debtors. (/^) But
where the plaintiffs were owners of a ship, and one of
them was ship's husband, and the latter instructed the
defendant at Quebec to charter the vessel from thence
to England, and the defendant effected a charter-party,
making the freight payable to himself at Quebec, and
received the freight, and claimed to retain it in liquida-
tion of a debt due to him from such ship's husband, it
was held that the contract between the ship's husband
and the ship agent with respect to the management
and chartering of the vessel was a contract which be-
longed to all the shipowners, and that the defendant
was bound to pay over to them the money received
under that contract, (i)
92 1 . Receipt of money by sub-agents. — Every agent
is responsible for money received by a sub-agent em-
ployed by him for the purpose of receiving the money,
whether the principal had, or had not, reason to sup-
pose that there was any necessity for the employment
of asub-agent. Thus, if the customer of certain bankers
hands them a bill, in order that they may receive the
money due upon it, and they send the bill to their cor-
respondents at a distant place, and the bill is presented
by them, and the amount paid, the payment to the
sub-agent employed by the bankers for the purpose of
receiving the money is a payment to the bankers to
whom the bill was delivered by the customer, and they
are responsible to him for the money, although it never
reaches their hands and is never passed by them to
(h) Sims V. Brittain, 4 B. & Ad. 375. (t) Walshe v. Provan, 8 Exch. 843.
' Ante, § 801.
Sec. III.] PRINCIPAL AND AGENT. 637
the credit of the customer. (/&) The sub-agent so em-
ployed to receive money is accountable only to the
agent, his employer, and can not be sued for the money
by the principal. (/) But if he is not strictly a sub-
agent, as, for example, if he has received direct in-
structions from the principal, or is in any respect the
agent of the latter, he will be accountable accordingly.
Thus, where a creditor employs a country solicitor to
recover a debt, and the country soHcitor employs a
London solicitor to set the legal machinery in motion
and the debt is paid to the London solicitor, the latter
is accountable to the client for the money, and can not
retain it in satisfaction and discharge of a debt due to
him from his immediate employer, the country solici-
tor, {ni)
922. Payment by one agent to another agent. —
Where an agent who receives money for his principal
pays it over to another agent of that principal, he is
bound to pay it in such a way as shall enable the agent
to perform his duty to his principal, i.e., he must pay
in cash, and not merely settle it in account between
that agent and himself; or, if he does so settle it, he
takes it on himself to show an authority from his prin-
cipal, and that there was an account between the prin-
cipal and that agent, on which the principal was in-
debted to the latter, (n)
923, Purchases by the agent with the money of the
J)rincipal. — The property of a principal intrusted to
his factor or agent belongs to the principal, notwith-
standing any change which the property may have un-
dergone in point of form, so long as such property
(k) Mackersay v. Ramsays, 9 CI. & wright v. Hately, Ves. jun. 292.
Fin. 845. Story's Agency, s. 203.
(J) Ireland v. Thompson, 4 C. B {m) Hanley v. Cassan, II Jur. 1088.
•1149 ; 17 L. J., C. P., 248. Stephens v. (») Alderson, B., ib.
Badcock, 3 B. & A. D., 354. Gart-
638 LAW OF CONTRACT. [Bk. II. Ch. IIL
is capable of being identified and distinguished.
Where, therefore, a draft for money was intrusted to
a broker to buy exchequer bills for his principal, and
the broker received the money and purchased Ameri-
can securities with it, and absconded, and was taken
on his way to America, and surrendered the securities
to his principal, it was held that the principal was en-
titled to the securities so purchased as against the as-
signees of the bi'oker, who had become bankrupt. (0)
924. Frajids by agents on their principals. — Agents
are in a sense trustees, and they owe to their principals
a similar duty to that which trustees owe to their
cestui que trust. Therefore, when two agents concur
in a fraud, both are liable in equity, although one of
them only has the benefit of the fraud. Where two
confidential agents of a partnership conspired together
to obtain for themselves the shares of the partner at
an undervalue by keeping the accounts of the firm
fraudulently, it was held that their misconduct might
be treated as a breach of trust. (/)
925. Payment of commission. — If the amount of
commission is named by the principal in his letter of
instruction to the agent, and the agent declares that
it is quite inadequate, but nevertheless acts upon the
instructions, he will be bound by the specified com-
mission. If he accepts the retainer, he must take it in
its entirety, and can not adopt part and repudiate
part, and sue for a reasonable remuneration for his ser-
vices. (^) A commission-agent, employed to negoti-
ate a sale upon the terms that he is to be paid a com-
mission on the amount of purchase-money, or on the
happening of a certain event, will not be entitled to
(0) Taylor v. Plumer, 3 M. & S. Ch. 68.
562. {q) Moore v. Maxwell, 2 C. & K.,
(/) Walsham v. Stainlon, 33 L. J., 554.
Sec. III.] PRINCIPAL AND AGENT. 639
any commission until the purchase-money has been
received, or the event has happened, unless there has
been fraudulent delay or willful neglect on the part of
the employer, {r) In the ordinary course of commer-
cial dealings a compensation is impliedly understood
to be due to every person who undertakes the duties
and services of an agent, the amount being generally
governed by the usage of trade ; but parties who sell
as mortgagees or trustees are not entitled to commis-
sion, in the absence of any express contract or agree-
ment to pay them for their services. Where a broker
took an assignment of several cargoes in trust to sell
on their arrival, and out of the proceeds to repay the
amount of his advances, and some of the cargoes
were received and sold by him under the power in the
deedj whilst the rest were sold under an order made in
a suit instituted by him to enforce his security, it was
held that in the latter sales he was entitled to his or-
dinary commission, but not in the former, as he sold,
as regarded them, as a trustee. {£) The fact that a
party has agreed to sell goods on commission may be
proved by oral evidence, though the terms as to the
payment of such commission have been reduced into
writing. (/) An authority to sell upon certain terms
and for certain commission is revoked by the death of
the principal before the authority has been acted upon
and executed ; and if the agent sells after the death of
the principal, he will not be entitled to the agreed
commission, unless the personal representative has re-
newed the authority with knowledge of the contract.
(u) If the commission is to be paid on the "net pro-
{r) Bull V. Price, 5 M. & P. 2 ; 7 if) Whitfield v. Brand, 16 M. & W.
Bing. 237. Alder v. Boyle, 4 C. B. 282.
635. («) Campanari v. Woodbum, 15 C.
{s) Arnold v. Gamer 2 Ph. 231. B, 400 ; 24 L. J., C. P. 13.
640 • LAW OF CONTRACT. [Bk. II. Ch. III.
ceeds," it is payable only on the actual sum which
reaches the pocket of the principal after deducting all
charges and expenses, {v)
926. Extra work by agents. — For all work done
by the agent in discharge of his business as agent he
is paid by his commission, and can make no extra
charge ; but for work done by order of the principal,
beyond his duty as an agent, he is entitled to make
an extra charge, provided the work was done under
circumstances fairly giving rise to an inference that he
was to receive an extra remuneration, (jy)
927. Right of ship-brokers to commission. — Ship-
brokers are usually entitled, by the custom and usage
of trade, to ^5 per cent, commission upon the freight
payable upon charter-parties obtained and entered into
by their aid and exertions ; and if the amount of freight
is uncertain, they may, if they think fit, sue for a reason-
able remuneration upon a quantum meruit. The right
to the commission does not depend upon the fact of
the ship's earning freight ; and the claim is not liable
to be cut down by the loss of the vessel, or her failure
to get a cargo. {£) When a ship-broker has intro-
duced the captain of a ship and a merchant to each
other, and they by his means enter into some negotia-
tion for a voyage, the broker is, in general, by usage
of trade, entitled to his commission if a charter-party
is effected between them for that voyage, even though
they may employ another broker to prepare the char-
ter-party, or may write the charter-party themselves.
And if a broker, authorized by both parties, and acting
as the agent of each, communicates to the merchant
what the ship-owner charges, and also communicates to
the ship-owner what the merchant will give, and he
(i/) Caine v. Horsfall, i Exch. 519. 658.
(y) Marshall v Parsons, g C. & P. (z) Hill v. Kitching, 3 C. B. 306.
Sec. III.] PRINCIPAL AND AGENT. 641
names the ship and the parties, so as to identify the
transaction, and a charter-party is ultimately eflFected
for that voyage, this broker is entitled to his commis-
sion ; but if he does not mention the names, so as to
identify the transaction, he does not get his commis-
sion to the exclusion of another broker who afterwards
introduces the parties personally to each other ; for, if
the ship and the parties are not named, the brokers
might change the ship, and put in another, pending
the negotiation, (a)
Where a ship-owner employed A, a ship-broker, to
procure a charter for his ship, and A employed B, an-
other broker, who procured the charter, evidence of a
usage of trade was admitted to show that the second
broker, who actually procured the charter, was entitled
to his commission from the ship-owner, {h) But to
render the ship-owner responsible upon an implied
contract with the second broker, it must be shown
that the ship-owner was cognizant of the employment
of the latter, and knew, at the time he accepted the
charter, that it had been obtained through his instru-
mentality, {c) A usage of trade can not be given in
evidence to impose on the party who has entered into
the contract another and wholly different obligation,
and to show that, because he has agreed to consign
the ship to the charterer's agents on the outward voy-
age, he is therefore liable to pay the agent's com mis
sion.on the homeward cargo, {d)
928. Right to commission of policy brokers. — By
the 30 Vict. c. 23, s. 16, the principal is not to be liable
(fl) Burnett v. Bouch, 9 C. & P. 2 H. & N. 564.
.624. (f) Smith V. Boucher, I C. & K.
{b) Smith V. Boutcher, I C. & K. 576.
574. But see Schmating v. Tomlin- {d) Phillips v. Briard, I H. & N.
son, 6 Taunt. 147. Boulton v. Jones, 27 ; 25 L. J., Ex. 233.
II. — 41
642 LAW OF CONTRACT. [Bic. II. Ch. IIL
to pay the brokers commission upon effecting a policy
of sea insurance, or any premium paid by the broker,
unless the policy is duly stamped ; and any sums so
paid are to be deemed to have been paid without con-
siderationj and are to remain the property of the prin-
cipal.
929. Right to commission of travelers for
orders, — When a commission -agent, employed by a
manufacturer to obtain orders, is to receive a commis-
sion "on all goods bought " by persons from whom he
obtains orders, the commission is earned as soon as a
valid bargain of purchase and sale has been made be-
tween the manufacturer and the purchaser introduced
by such agent, whether the goods are at the time in
existence or not in existence, and whether the contract
is, or is not, ultimately carried into effect, and whether
it turns out to be a bad bargain, productive of loss, or
an advantageous transaction, {e)
930. Cotnmission of house-agents, estate-agents
and auctioneers. — If a man having a house or estate to
sell or let, places it in the hands of several house-
agents, with instructions to procure a purchaser or
tenant, the successful agent is alone entitled to com-
mission, unless instructions have been given to the
other house-agents to advertise the house, or render
some particular or special services in the matter, entit-
ling them by the custom of the trade to some remun-
eration. (/) But, if the relation of buyer or seller is
really brought about by the act of the agent, he is en-
titled to his commission, although the actual sale was
not effected by him. (_f) Where A promised to pay
B a sum of money if he would procure him a tenant
(c) Lockwood V. Levick, 8 C. B., N. S. 296 ; 26 L. J., C. P. 33.
S. 603 ; 29 L. J., C. P. 340. (g) Green ,. Bartlett, 14 C. B., N.
(/) Prickett v. Badger, i C. B., N. S. 685.
Sec. III.] PRINCIPAL AND AGENT. 643
at a certain rent, it was held that B was entitled to the
money as soon as a party introduced by him had been
accepted by A, and a binding agreement for the ten-
ancy had been entered into. (K) In a great number
of instances house-agents go to a great deal of trouble
on the terms that, if they get no purchaser they shall
have no claim ; and, if upon the contingencies which
have happened nothing was to be paid, nothing can
of course be recovered. {€) Where an auctioneer was
employed to sell ground-rents by auction, on the terms
of receiving one per cent, commission on the sale, and,
after he had advertised the sale, but before the day of
sale, the employer sold the rents by private contract, it
was held that a notorious custom in the trade, for the
auctioneer to receive his full commission in such a
case, might be engrafted upon the contract, {k) But
the usage must be so universal that every one in the
trade must be taken to know it. (/)
931. The right of the agent to be reimbursed
upon the revocation of his authority depends upon the
terms of the contract by which his services were re-
tained, and the custom and usage of the trade in
which he is engaged. When an agent is employed to
sell or to let, on the terms that he is to be paid a certain
percentage on the price or the rent, the general under-
standing is that he takes his chance of a large remun-
eration in case he finds a purchaser or a tenant, but
gets nothing if he fails in so doing ; but, if trouble
and expense have been properly incurred by the agent
in endeavouring to carry into effect the instructions
of the principal, and the latter revokes the au-
thority, and prevents the agent from reaping the ex-
(k) Horford v. Wilson, i Taunt. 15. (k) Rainy v. Vernon, 9 C. & P.
(0 Green v. Mules, 30 L. J., C. P. 559-
343. (/) Wood V. Wood, I lb. 60.
644 LAW OF CONTRACT. [Bk. II. Ch. III.
pected reward, the principal is bound to remunerate
him for his trouble and expenses in the mat-
ter, (m)
Where an estate-ag-ent, employed to sell at a
given price, succeeds in finding a purchaser, but the
principal then declines to sell, the agent is entitled to
sue for a reasonable remuneration for his services ; and
the amount of his commission on the price would
seem to be the sum to which he is fairly entitled ; but,
if the authority is revoked before it is executed, and a
purchaser has been found, it does not follow that he
is entitled to sue upon an implied contract for remun-
eration for his work and labor in endeavoring to
find a purchaser or a tenant. (ii) If it is the practice
of house-agents to charge a fee for entering property
to be let or sold in their register book, and the em-
ployer has notice of this, or it is proved to be a
known custom of the trade, the employer will be
bound-to pay this fee, although the authority may be
revoked, or the agent may have failed to render any
beneficial service. This registration fee is all that the
house-agent is entitled to charge for ordinary services,
in the absence of any special instructions for advertise-
ments, (o)
Where a public company employed a broker to
dispose of their shares, on the terms that he should be
paid ^loo down, and ;^400 in addition upon the al-
lotment of the whole of the shares of the company,
and the broker disposed of a considerable number of
shares, when the company was wound up, it was held
that the broker was prevented from earning the ^400
(ot) Simpson v. Lamb, 17 C. B. Campanari v. Woodburn, 15 C. B.
616. 407.
{n) Pickett v. Badger, i C. B., N. {0) Simpson v. Lamb, 17 C. B. 616.
S. 295 ; 26 L. J, C. P. 33.
Sec. III.] PRINCIPAL AND AGENT. 645
by the act of the company, and was therefore entitled
to sue them for damages. (/)
932. Lien of factors and brokers. — Factors and
brokers to whom goods are consigned to be sold have
a lien for the general balance due to them from their
employers or principals in the ordinary course of their
business as factors, and for their acceptances on behalf
of such employers, upon the goods whilst they are in
their possession, and on the moneys realised by the
sale of them, {f) This right exists universally by the
custom of the trade. It is part of the law merchant,
and as such is judicially taken notice of by the courts,
no proof being ever required as a matter of fact that
such general lien exists. The lien does not extend to
a collateral debt not growing out of the relationship
of principal and factor, such as a debt due for rent, (r)
nor to goods which have not actually reached the
hands of the factor, (J) and come into his possession
with the consent and direction of the owner ; conse-
quently, if goods have been left at the factor's place of
business by mistake or inadvertence, (/) or have been
taken possession of by him without the authority of
the owner, he can not set up a lien upon them for his
balance, {u) And, if the party from whom he re-
ceives the goods is only an agent, he can not retain
them as against the true owner of the debt that was
due to him from the agent at the time the goods were
put into his hands, and which was not contracted on
the credit of the deposit of the goods ; but it is other-
wise if he has made advances on the credit of the de-
(p) Inchbald v. Western Neilgherry (r) Houghton v. Mathews, 3 B. &
&c., Co., 17 C. B., N. S. 733 ; 34 L- P- 485-
J., C P. 15. W Kinloch v. Craig, 3 T. R. 123.
(q) Kriiger v. Wilcox, Ambl. 252. (/) Lucas v. Dorrien, 7 Taunt. 278,
Hudson V. Granger, 5 B. & Aid. 31. («) Taylor v. Robinson, 2 Moore,
Hammond v. Barclay, 2 East, 227. 730.
646 LAV/ OF CONTRACT. [Rk. 11. Ch. III.
posit, not knowing the depositor to be an agent, (v)
The factor can only claim a lien for his general balance
upon goods which come to his hands as factor. A
factor, therefore, who effects a policy of insurance, not
as factor but as an insurance-broker, is not entitled to
a general lien on a policy in his hands for a balance
due to him in his character of factor, (^y)'
933. Lien of insurance-brokers. — Insurance-brok-
ers have also, by the general usage and custom of
trade, a lien for the general balance due to them from
their employers upon all policies effected by them for
such employers, and left in their hands, and upon all
moneys received by them upon such policies from the
underwriters, unless the party for whom they effected
the policy was himself only an agent in the matter, iii
which case the extent of the lien will depend upon
the disclosure or concealment of the agency, and the
degree of credit they may have given to the agent,
under the impression that he was the party really in-
terested in the policy. The lien does not extend to a
collateral debt not incurred in respect to brokerage
business. If a policy-broker is employed by an agent,
and there is no disclosure of the agency, and nothing
to lead the broker to think that any third party is in-
terested in the policy, and the assurance is accordingly
{v) Pultney v. Keymer, 3 Esp. i3i. (;/) Dixon v. Stansfield, 10 C. B.
398.
An insurance broker may retain his principal's policy, if
the latter be indebted to him on the balance of their insurance
accounts; Spring v. Ins. Co., 8 Wheat, 268 ; Moody v. Web-
ster, 3 Pick. 454 ; Cranston v. Ins. Co., 5 Bin. 538 ; and may
apply to such balance moneys received on account of the
policy, even with notice that it belongs to a third person ; see
Foster v. Hoyt, 3 Johns. Cas. 327 ; but not if he knows his
principal to be the agent of another party. Shook v. David-
son, 16 Pet. I ; Bank v. Bank, 17 Id. 174; and see Jarvis v.
Rodgers, 15 Mass. 396.
Sec. III.] PRINCIPAL AND AGENT. 647
effected in the name of the agent as owner, and a loss
occurs, and the policy is allowed, after the loss, to re-
main in the broker's hands, and the latter then per-
mits the agent to get into his debt, not knowing him
to be an agent, the broker will have a lien as against
the principal upon the policy, and upon the money he
receives thereon from the underwriters, to the extent
of the debt due to him from the agent as well as for
his commission and charges for eflFecting the policy,
(s) But, if there is the slightest indication of the
agency to the broker, such as a declaration by a Brit-
ish subject in time of war that the property is
neutral, («) or a statement that the assurance is to be
effected " for a correspondent in the country," (d) or
that the property to be insured belongs to a merchant
abroad, who has consigned it to the agent with full
power of disposition over it, and with authority to in-
dorse the bill of lading, (c) the broker will have a
lien only for his commission and charges for the insur-
ance, and not for the balance due to him from the
agent.*
934. Lzen of solicitors. — Solicitors also have a
lien upon all money recovered by them in the actions
and suits in which they are employed, and upon all
the deed's and papers and other articles of their clients
which come to their hands in their professsional capaci-
ty, for the purposes of business, not only for the costs of
the particular cause or matter with which such deeds
or papers are connected, but for the costs due to them
(z) Mann v. Forrester, 4 Campb. 61. 337.
Westwood V. Bell, ib. 355. Olive v. (i) Snook v. Davidson, 2 Campb,
Smith, 5 Taunt. 56. 218.
(a) Maauss v. Henderson, I East, {c) Lanyon v. Blanchard, ib. 597.
See last note.
648 LAW OF CONTRACT. [Bk. II. Cii. IIL
generally from their clients, (d) But the lien does
not attach while the suit is still pending ; and the
parties may compromise the dispute and thus deprive
the solicitor of his lien, if the compromise is boni fide.
(e) By the 23 & 24 Vict. c. 127, s. 28, the court may
charge property recovered through the instrumentality
of a solicitor with the payment of his costs. If
the solicitor discharges himself during the suit, he
loses his lien, so far, at any rate, as relates to papers
necessary for the successful prosecution of the suit ;
but it is otherwise if he is discharged by his client. (/)
A solicitor has no lien upon the will of a client for
the costs incurred in the preparation of it, and can
not therefore refuse to produce it after his client's
death until his costs have been paid. And, where
deeds are delivered for a specific purpose, the right of
lien is extinguished as soon as the particular purpose
has been accomplished ; and it may be superseded
altogether by the attorney's taking from the client
security for his costs. (£■) A solicitor can not set up
the lien of his London agent on the papers of his client
: gainst the claims of that client, the client having
paid his solicitor's bill. (A) The town agent of a
country solicitor has a lien only upon the money re-
covered, and upon the papers in his hands in the par-
ticular cause in which he is engaged, for the amount
due to him by the solicitor in that particular cause.
He can not set up a claim of lien for the general bal-
ance due to him from the country solicitor who em-
(u') Stevenson v. Blakelock, I M. J., Q. B. 65. Mercer v. Graves, L. R.,
& S. 535. Lambert v. Buckmaster, 2 7 Q. B. 4gg ; 41 L. J., Q. B. 212.
B. & C. 616. Blunden v. Desert, 2 (/) Faithful, in re, L. R., 6 Eq.
Dru. & W. 405. Friswell v. King, 15 325.
Sim. 191. (^) Genges v. Genges, 18 Ves. 294.
(e) Morrison ex parte, L. R., 4 Q. B. Balch v. Lymes, Turn. & R. 92.
153. S. C. Sullivan v. Pearson, 38 L. {h) In re Andrew, 30 L. ]., Ex.
403.
Sec. 1 1 1. J PRINCIPAL AND AGENT. 649
ploys him, and can not retain the money or papers of
the client to satisfy his general debt, (z) ^
A solicitor can not set up a general lien for the bal-
ance due to him in respect of services not rendered by
him as a solicitor; nor can he detain deeds and papers
which do not come to him in his professional char-
acter. He has no lien, for example, where he acts or
holds papers as town clerk, (/§) or steward of a manor ;
(/) he can not set up any lien which is inconsistent
with the nature of his employment, or the terms, or
conditions, or express or implied trust upon which he
received the papers, {m) His right, moreover, is de-
pendent upon the rights of his clients ; and he can not
acquire more extensive powers over the papers in his
hands than the client himself possessed at the time he
deposited them with him. {n) If a solicitor transacts
business for a firm in partnership collectively, and also
manages the private business of the members of the
firm individually, he has no lien upon the private
securities, deeds, and writings of one partner in re-
spect of the business done for the firm. (<?)"
935. Lien of shipmasters. — An agent can not, in
general, acquire a lien upon the property of his prin-
cipal for work done by others whom he has employed
and paid. But a shipmaster has a lien on the freight,
not only for his wages, but for any expenditure which
(t) White V. R. Ex. Ass. Co., 7 («) Hollis v. Clarige, 4 Taunt. 807.
Moore, 249. Moody v. Spencer, 2 D. Esdaile v. Oxenham, 3 B. & C. 229.
& R. 6. Anon., 2 Dick. 802. Lightfoot v. Keene, i M. & W. 745.
(k) Champernown v. Scott, 6 Mad. Molesworth v. Robbins, 2 Jones &
93. Lat. 358.
(/) Rex V. Sankey, 5 Ad. & E. 428. (p) Steadman v. Hockly, 15 M. &:
(tii) Lawson v. Dickenson, 8 Mod. W. 553.
307.
' See ante, § 790,
' Id.
6so LAW OF CONTRACT. [Bk. II. Ch. III.
he may make in the ordinary discharge of his duties
as master, and which is necessary for the performance
of the voyage ; (/) and where he makes a special con-
tract, in itself tilira vires, in order to fulfill which he
incurs special expenses, if the owner adopts the bene-
fit of that contract, he must also bear its burthens.
Where, therefore, the master of an ordinary seeking
ship entered into a charter-party, under seal, to carry
troops from the Mauritius to England, and stipulated,
on his own responsibility, in the charter-party, that he
would make certain alterations in the ship, in order to
enable him to carry the troops, and at the Cape of
Good Hope entered into another charter-party, not
under seal, to a similar effect, and made the specified
alterations, and paid money and drew bills to meet
the expenses necessary to the making of these altera-
tions, and the voyage was performed, it was held that,
in equity, the master was first entitled out of the freight
earned under these charter-parties.tobe repaid the sums
advanced, and to be indemnified against the bills, and
that the owner (or his mortgagee) was only entitled
to the nett freight after deducting these charges. (^)
At common law the master has a possessory lien on
the cargo, not only for freight, but also for general
average, (r)
636. Indemnification of agents. — The principal is
bound to indemnify his agent in respect of all pay-
ments which may be made by the latter in the due
course of his employment. {£) If the agent has
necessarily incurred liabilities and expenses in follow-
er) The Fei-onia, L. R., 2 Adm. 65 ; (j) Risbourg v. Bruckner, 3 C. B.,
37 L. J., Adm. 60. N. S. 823 ; 27 L. J., C. P. 90. Taylor
{q) Bristow v. Whitmore, 9 H. L. v. Stray, 2 C. B., N. S. 175. Westropp
C 391- V. Solomon, 8 C. B. 369. Johnstone
(f) Cleary v. M'Andrew, 2 Moo. P. v. U>bonie, 11 Ad. & E. 549.
C, N. S. 216.
Sec. III.] PRINCIPAL AND AGENT. 651
ing out his instructions bonS. fide, he may sue the
principal upon an implied promise of indemnity ; (/)
but he can not resort to the principal for an indemnity
against the consequences of his own default, wrongful
act, or want of skill and caution in the execution of
his commission, {u) although a general indemnity
against all charges and expenses he may be put to in
executing his commission may have been given to him
by his employer, (v) If the agent, in the execution
of his commission, has been compelled to pay money
on behalf of the principal, he is entitled to recover the
amount from the latter, whether the principal has or
has not been relieved from liability by the payment,
(j)/) If A employs B as a broker to buy shares in a
company, according to the rules of the Stock Ex-
change, for a certain account day, and B, in accordance
with such rules, pays for and takes a transfer of the
shares on that day, A is bound to repay B the amount
so paid, although before such account-day the com-
pany is being wound up under the 25 & 26 Vict. c.
89, s. 153, which enacts that every transfer of shares
shall then be void, unless the court otherwise orders.
{£) By the Roman and continental law, it is laid
down that there results from all agencies, mandates,
and commissions, an implied contract on the part of
the principal or employer to indemnify the agent for
all his disbursements and expenses, and for all the lia-
{{) Adamson v. Jarris, 4 Bing. 71; Ex. 44.
12 Moore, 241. Betts v. Gibbins, 2 {y) Brittain v. Lloyd, 14 M. & W.
Ad. & El. 57 : 4 N. & M. 64. Rawl- 762 ; 15 L. J., Ex. 43. Spurrier v.
iiigs V. Bell, I C. B. g6o. Elderton, 5 Esp. i. Pettiman v.
(«) Toplis V. Grane, 7 Sc. 641. Keble, 9 C. B. 701.
Farebrother v. Aiisley, i Camp. 347. (z) Chapman v. Shepherd, L. R., 2
Duncan v. Hill, L. R., 8 Ex. 242 ; 42 C. P. 228 ; 36 L. J., C. P. 113. Bieder-
L. J., Ex. 179. "lan V. Stone, 36 L J., C. P. iqS ; L.
{v) Ibbett i. De la Salle, 30 L. J., R., 2 C. P. 504.
652 LAW OF CONTRACT. [Bk. II. Ch. III.
bilities incurred by him in the execution of his com-
mission, (a)
937, Breach of warranty of autkorziy by agents
Where an agent pretended to be authorized by a speci-
fied firm to purchase a ship on their behalf, and it
turned out that he had no authority, and the shipowner
was obliged to look out for another purchaser of the
vessel, and lost ^250 on the re-sale, it was held that
the ^^250 was the measure of damage in an action
against the agent for a breach of an implied undertak-
ing or promise that the authority which he professed
to have did in point of fact exist, {b^ Where an
agent pretended to be authorized to grant a lease, and
it turned out that he had no such authority, it was
held that the intended lessee was entitled to recover
the value of the lease and all costs paid and incurred
by him in endeavoring to enforce specific performance
down to the time when the agent disclosed the fact
of his want of authority, but not the damages and costs
arising out of the re-sale by the intended lessee of his
lease, (f) If a man puts money into the hands of an-
other to purchase goods, and he neglects to make the
purchase, and is sued for a breach of his undertaking
in that behalf, the proper measure of damages is the
value of the goods to the employer if they had been
duly purchased, not the value of the money, (d)
(a) Dig. lib. 17, tit. i, lex 12,55 g. Hughes v. Grseme, aK/f ; Pow v. Davis,
Poth. Mandat, No. 68-75. Domat. liv. ante.
I, tit. 15, § 2. (c) Spedding v. Nevell, L. R., 4 C.
(b) Simons v. Patchett, 17 Ell. & P. 212 ; 38 L. J., C. P. 133. Godwin
Bl. 568 ; 26 L. J., Q. B. 195. And v. Francis, L. R., 5 C. P. 295 ; 39 L.
see further, as to damages recoverable J., C. P. 121.
for false representation of authority (d) Ehrensperger v. Anderson, 3
by agents, Collen v. Wright, 8 Ell. Exch. 158.
and Bl. 659; 27 L. J., Q. B. 215.
Sec. IV.] CONTRACTS FOR CARRIAGE. 653
SECTION IV.
CONTRACTS FOR CARRIAGE.
938. Of contracts for the carriage of merchan-
dise.— Every person who accepts goods and chattels
for conveyance to a particular destination for hire or
reward, paid or agreed to be paid him for the carriage
of them, impliedly lets out his labor and care in return
for the hire or reward agreed to be paid to him. The
contract, therefore, belongs to the class locatio operis.
It was styled by the Roman jurists locatio operis mer-
cium vehendarum, or the letting out of the work of
carrying merchandise. The owner who delivered the
goods to the carrier to be carried was the letter of the
work of carrying; and he was also at the same time
the hirer of the labor and services of the carrier ; whilst
the carrier, on the other hand, was both the hirer of
the work of carrying and the letter of his own labor
and services, care, and attention, to be employed in
and about the conveyance and transport of the mer-
chandise.
939. Contracts of affreightment— Charter-parties.
— When goods and merchandise are carried by sea
from one place to another, they are usually shipped on
board a vessel under a charter-party or a bill of lading.
A charter-party is a contract whereby the ship-owner
or the shipmaster covenants or agrees for the use of
the ship by the charterer for some specified period of
time, or for a particular voyage or adventure. The
contract derives its name from the Latin term charta
partita, there being anciently as many divided parts of
ihe contract as there Vi^ere parties to it, each party
6S4 I-AW OF CONTRACT. [Bk. II. Ch. III.
having his part of the contract as a security against
fraud or mistake. The customary stipulations on the
part of the shipowner or master are, that the ship shall
be tight and staunch, and well equipped and manned,
and furnished with all the necessaries for the voyage ;
that she shall be ready by a day appointed to receive
the cargo, and shall wait a certain number of days to
take it on board, and after lading, shall sail with the
first fair wind for the destined port, and there deliver
the goods in proper order and condition to the order
of the charterer ; and further, that during the contin-
uance of the voyage the ship shall be tight and staunch,
and furnished with sufficient men and other necessaries,
to the best of the owner's endeavors. The charterer,
on the other hand, usually covenants to load the ship
after she shall be ready to receive her cargo, and un-
load her within a certain number of days, and to pay
freight at so much per ton according to the tonnage
of the vessel, or according to the quantity of goods
shipped on board, or according to the time of the ship's
employment. Prima facie, the law of the place where a
contract is made is that which the parties are to be
presumed to have adopted as the footing upon which
they dealt ; and such law ought to prevail in the ab-
sence of circumstances indicating a different intention.
But a contract of affreightment made between a char-
terer and shipowner of different nationalities in a place
where they are both foreigners may, under some cir-
cumstances, be construed by the law of the nation of
the ship, (a)
940' When the contract operates as a demise or
bailment of the ship. — Although the shipowner, by the
charter-party, expressly grants the vessel to be used
(a) Lloyd v. Guibert, 6 B. & S. loo ; L. R., I Q. B. 115 ; 35 L. J., Q. B. 74.
Sec. IV.] CONTRACTS FOR CARRIAGE. 651;
by the charterer, the contract will, nevertheless, not
amount in general to a demise or bailment of the ship
to the charterer, so as to clothe him with the possession
of the vessel, but simply to a contract for the use of
the ship, together with the services of the master and
crew, for the conveyance of merchandise, i.e., to a con-
tract for the letting and hiring of the work of carrying
merchandise. If the end sought to be attained by a
charter-party can be accomplished without a transfer
of the possession of the vessel to the charterer, the
courts will not give effect to the contract as a demise
of the ship, although there may be express words of
grant and demise. (Ji) If, however, the nature of the
service and the due attainment of the object sought to
be accomplished require the vessel to be absolutely
under the control, and subject to the orders and direc-
tions, of the charterer; if she is to be employed in
warfare, or in the fishing or coasting trade, or as a gen-
eral ship for the conveyance of merchandise by the
charterer for third parties, and is to be at the general
disposal of the latter to sail upon any service that he
may require, the courts will give effect to the contract
as a demise of the ship, (c) In this case the contract
is a contract for the letting and hiring of a chattel, and
belongs to the class locatio rei. ' The services of the
master and crew pass as merely accessorial to the prin-
cipal subject-matter of the contract ; they attorn, as it
were, to the charterer, and become temporarily the ser-
vants of the latter, bound to obey his orders.
941. Parties to charter-parties. — If the parties
(V) Christie v. Lewis, 5 Mooer, 253 ; {c) Trinity House v. Clerk, 4 M. &
2 B. & B. 410. Saville V. Campion, 2 S. 295, 299. Hutton v. Bragg, 7
B. & Aid. 510. Dean v. Hogg, 4 M. Taunt. 14.
& Sc. 195.
' Ante, § 790.
656 LAW OF CONTRACT. [Bk. II. Ch. III.
have contracted by deed, the contract is with those
who have executed the instrument, and covenanted
therein in their own names, or by some known title or
description. If the charter-party contains covenants
both on the part of the owners and the master for the
conveyance of the cargo, and has been executed by
both, .either the owners or the master are responsible
at the election of the covenantee. If it has been en-
tered into and executed by the owners alone, they
alone are liable upon it ; whilst, if the master is the
only executing party, the contract is with him alone,
although the deed may be expressed to be made by him
for and on behalf of his employers, the shipowners. If
the master covenants in his own name, the contract is
exclusively the contract of the master.^ He consti-
tutes himself in such a case the carrier of the goods,
and becomes personally responsible upon the express
covenants contained in the charter party, and also
upon all such implied covenants and engagements as
result from the contract and the nature of the employ-
ment, (flf)
When a charter-party of affreightment operates as
a demise or bailment of the ship to the charterer, and
the vessel is employed by the latter as a general ship
{d) Horsley v. Rush, cited 7 T. R. 209.
' See ante, vol 1, § 71, et seq. as to a charter party made by
a master. See King v. Lennox, 19 Johns. R. 235; Hurry v.
Assignees of Hurry, 2 Wash. R. 145 ; The Schooner Tribune,
3 Sumn. R. 144. It is said, in Dixon on the Law of Shipping,
citing Pickering v. Holt, 6 Greenl. R. 160, to be well settled
that " the master has no power, merely in the character ot
master, without a superadded agency, to bind the owners by a
charter party under his hand and seal, so as to subject them
to an action of covenant thereon. See 3 Kent Com. 3d ed.
204; Mears v. Morrison, Breese, 172; Deming v. Bullitt, i
Black, 241.
Sec. IV.] CONTRACTS FOR CARRIAGE. 657
for the conveyance of merchandise, the charterer be-
comes the carrier of the goods shipped on board, and
the master is his servant and agent whilst procuring
freight and contracting with third parties for the car-
riage of merchandise, and not the agent of the regis-
tered owners of the vessel, and the latter, consequently,
can not be made responsible for the loss of, or injury
to, the goods shipped on board under such contracts.
{e) But when the charter-party operates merely as a
contract between the charterer and the shipowner for
the conveyance by the latter of goods and merchan-
dise to be shipped on board by the charterer, the reg-
istered owners are then the carriers of the goods, and
will be responsible to the charterer for the non-con-
veyance of them, according to their contract. And if
the ship is put up as a general ship, without any inti-
mation that she is under charter, and third parties ship
goods and take bills of lading from the master, the
owners will be responsible for the safe stowage and
carriage of the goods so shipped. (/") If in such a
case the master refuses to sign bills of lading, except
" as per charter-party," the shipper can not be com-
pelled to accept such bills, but may insist on having
his goods returned, (^g) Although the shipowners
are not parties to a charter-party under seal, entered
into by the master in his own name on their behalf,
yet they are responsible for a breach of those duties
and obligations which attach to them in their charac-
ter of carriers, independently of the charter-party.
Thus, where a plaintiff had shipped a cargo of oranges
on board a vessel, of which the defendants were the
ie) James v. Jones, 3 Esp. 27. Ma- Maggiore, L. J?., 2 A. & E. 106 ; 37 L.
jor V. White, 7 C. & P. 41. J., Adm. 52.
(f) Sandeman v. Scurr, L. R., 2 Q. (g) Peck v. Larsen, L. R., 12 Ec^.
B.86; 36 L. J.,Q. B.58. TheFiglia 378 ; 40 L. J., Ch. 763.
II. — 42
658 LAW OF CONTRACT. [Bk. II. Ch. IIL
owners, to be carried for hire from St. Michael's to-
London, but the defendants employed an unskillful
master, through whose negligence the oranges were
lost, it was held that the shipowners were responsible
for the loss, although the goods had been shipped on
board by virtue of a charter-party of affreightment
under seal executed by the master, by which the latter
had covenanted to convey the cargo to its destination.
(^k) When the contract of affreightment is not under
seal, the action for the breach of such contract, and of
the implied promises and engagements resulting from,
the acceptance of goods to be carried for hire, may be
brought, either against the owners who appoint the
master to the command of the vessel, and constitute
him their agent for the employment of the ship, or
against the master who has accepted the goods to be
carried, whether the contract is expressed to be made,
or whether the goods have been accepted by him,
in his own name only, or for and on behalf of his prin-
cipals and employers ; but, when the plaintiff has
elected to proceed against and has sued one, the other
is discharged, (z) An agent is not ordinarily liable,
as we shall presently see, upon simple contracts en-
tered into by him in a representative character on be-
half of his principal ; but the master of a ship is con-
sidered to be something more than a mere agent, and
is made responsible accordingly, (^k) '
942. Performance of the terms and conditions of
the contract. — If, by a charter-party of affreightment,
{h) Leslie v. Wilson, 6 Moore, 429 ; (k) Ellis v. Turner, 8 T. R., 533
3 B. & B. 171. Fletcher v. Braddick, Boson v. Sandford, i Show. 104.
5B. &P. 186. Fenton V. Dub. St. P. Morse v. Slue, 1 ventr. igo, 238. Liver
Co., 8 Ad. & E. 843. Alkali Co. ,. Johnson, L. R., 7 Ex.
(0 Priestly v. Fernie, 3 H. & C. 367 ; 41 L. J., Ex. no.
977 ; 34 L- J- Ex. 172.
' See ante, vol. i, § 71, ei seq., and last note.
St:c. IV.] CONTRACTS FOR CARRIAGE. 659
a shipowner agrees that his sliip shall sail to a " safe
port " to take in a cargo, the naming of a " safe port "
is a condition precedent to the shipowner's liability to
send out the vessel. (/) The voyage begins from the
time the vessel breaks ground to proceed to her place
of loading ; so that if the charter-party contains the
usual exception of dangers and accidents of seas,
rivers, and navigation during the voyage, and the ves-
sel is delayed or hindered by foul weather in getting
there, the delay is within the exception, (m) If the
shipowner agrees that the vessel shall leave England
on or before a particular day to bring back a cargo
from a foreign port, or that she shall arrive at a foreign
port by a particular day and shall be ready to receive
cargo, the departure or arrival of the vessel at the
time specified constitute a condition precedent to the
freighter's liability to provide the cargo, and use the
ship, and pay freight, (n) Where, by charter-party,
the freighter covenanted to pay freight for a vessel at
so much a ton per month until her final discharge, so
much of such freight as might be earned at the time
of the arrival of the ship at her first destined port
abroad, to be paid within ten days next after arrival
there, and the remainder of the freight at specific peri-
ods, it was held that the arrival of the ship at her
first destined port abroad was a condition precedent to
the owner's right to recover any freight. {0)
943. Representations in charter-parties. — If a ves-
sel is described in a charter-party as A i, it is a war-
(/) Raev. Hackett, 12M. & W. 724; 644. Oliver v. Fielden, 4 Exch. 135.
13 L. J., Ex. 216. Croockewit y. Fletcher, i H. & N.
(«) Barker V. M' Andrew, 18 C. B. 912; 26 L. j., Ex. 153. Behn v.
N. S. 759 ; 34 L J., C. P. 191. Burness, 3 B. & S. 759 ; 32 L. J., Q.
(«) Glaholm v. Hayes, 2 Sc. N. R. B. 204. ' '
471. Shadforth v. Higgin, 3 Campb. {o) Graves v. Legg, 9 Exch. 717 ;
385. Lovatt V. Hamilton, 5 M. & W. 23 L. J., Ex. 231.
66o LAW OF CONTRACT. [Bk. II. Ch. III.
ranty that she is A i at the time the description is
given, but not that she shall continue so, or retain the
same letter on her arrival at the port of loading. (/)
A representation in a charter-party that the ship char-
tered is " now at sea, having sailed three weeks ago,"
is a warranty ; {q) and describing her as " the steam-
ship H," is a warranty that the principal motive power
is steam ; (r) but a representation that she is i8o tons
when she is 200 is mere description and a warranty.
{/) A statement in a charter-party that the ship is
expected to be at Alexandria about the 13th of Decem-
ber is a warranty that she is then in such a place and
under such engagement as that she may reasonably be
expected to be at Alexandria about the day named. (/)
Whenever a descriptive statement in a charter-party
was intended to be a substantive part of the contract,
it will be as a warranty. Such a statement is more or
less important, in proportion as the object of the con-
tract more or less depends upon it. In some cases, if
not performed by the party making it, it will enable
the other to repudiate the contract in toto. In other
cases it gives only a claim to compensation in damages
for a breach of contract, (u) '
(p) Hurst V. Osborne, i8 C. B. 154; {s) Baker v. Windle, 6 El. & BI.
25 L. J., C. P. 209. Ruth V. Mac- 674.
millan, 33 L. J., Ex. 38 ; 2 H. & C. {t) Corkling v. Massey, L. R., 8 C,
750. P. 395 ; 42 L. J., C. P., 153.
(?) Ollive V. Booker, i Exch. 416. (a) Behn v. Burress, 3 B. & S. 753 ;
(r) Eraser v. The Telegraph Con- 32 L. J., Q. B. 204. Neill ,. Whit-
struction Co., L. R., 7 Q. B. 566; 41 worth, 34 ib. C. P. 155 ; 18 C. B. N.S.
L. J.,Q. B.249. 435.
' It is always an implied warranty in the contract, that the
ship he sufficient for the voyage ; and the owner, like all other
common carriers, is an insurer against everything except the
perils. Putnam v. Wood, 3 Mass. 481 ; Pelva v. Low, 2
J hns. C IS. 134; Elliott v. Russell, 10 Johns, i ; Richards v.
(A\. ert, 5 Day, 415 ; Emery v. Mersey, 4 Greenl. 407 ; Bell v.
Sec. IV.] CONTRACTS FOR CARRIAGE. 66 1
944> Substantial performance of conditions pre-
cedent.— Where the plaintiff covenanted to let his
shifi to freight to the defendants, and take a cargo on
board, and proceed therewith to Naples, and make de-
livery thereof to the agents of the defendants, and,
having so done, receive on board a return cargo, and
the defendants, in consideration of the premises, cov-
enanted that they would provide a complete home-
ward cargo and pay freight, and the plaintiff received
the cargo and proceeded with it to Naples, where it
was seized by the Neapolitan Government, it was held
that the material part of the covenant was the letting
of the ship and the making of the voyage, and, as that
Reed, 4 Binn. 127; Hart v. Allen, 2 Watts, 114; Reed v.
Dick, 8 Id. 480 ; 3 Kent Com. (5th ed.) 205. It is the duty
of the owner of a ship, when he charters her or puts her up
for freight, to see that she is in a suitable condition to trans-
port her cargo in safety, and he is to keep her in that condi-
tion, unless prevented by perils of the seas or unavoidable ac-
cidents. If the goods be lost by any defects in the vessel,
whether latent or visible, known or unknown, the owner is
answerable to the freighter, upon the principle that he tacitly
contracts that his vessel shall be fit for the purpose for which
he designs her. Putnam v. Wood, 3 Mass. 481 ; and see Kim-
ball v. Tucker, 10 Id. 192 ; Goodridge v. Lord, Id. 483.
The owner's responsibility begins when the wharfinger's ends,
when the goods are delivered to some responsible person upon
the ship ; 3 Kent (sth ed.) 206; Dixon on Shipping, § 119;
and the shipowner is liable for latent defects in his ship,
whose existence is unknown to himself; Backhouse v. Sneed,
I Murphy, 173. And it is held to constitute unseaworthiness
if a ship proceed without a pilot in waters where it is the
custom to take a licensed pilot. Keller v. Firemens' Ins. Co.,
3 Hill, 250; McMillan v. Insurance Co., i Rice, 248; Silva v.
Low, I Johns. Cas. 184 ; Dow v. Smith, i Caines, 32 ; Bell v.
Read, 4 Binn. 124; Brown v. Gerrard, 4 Yates, 115 ; Stocker
V. Merrimack Ins. Co., 6 Mass. 220 ; Cleveland v. Union Ins.
Co., 8 Id. 308 ; and this, even where a pilot refused to take
out the ship; Stanwood v. Rich, cited in Dixon on Shipping,
8 121.
f,62 LAW OF CONTRACT. [Bk. II. Ch. III.
had been performed, the defendants were bound to
provide the return cargo and pay the freight, (x) And,
where the plaintiff's let a ship to the defendants, and
covenanted to take on board at Havre six pipes of
brandy, with such other goods as the captain might
procure on freight, and proceed therewith to Terceira,
and there take a cargo on board and proceed therewith
to London, and the defendants in consideration of the
completion of the voyage, covenanted to pay freight,
and guaranteed the ship a complete cargo home, and
it appeared that the voyage to Terceira had been per-
formed, and that the ship was ready to receive the
return cargo at that place, it was held that the cove-
nant relating to the taking on board the brandy at
Havre and carrying it to Terceira was not a condition
precedent to the liability of the defendants upon their
covenant to provide the homeward cargo, but a dis-
tinct and independent covenant, for the breach of
which the plaintiffs were liable in damages, (^y)
945. Time of performance. — If the vessel is to
proceed to a particular port and there load a full cargo,
the loading must be completed within a reasonable
time ; and, if unusual and extraordinary circumstances
ai-ise preventing the shipowner from doing what he
has undertaken to do, he must make compensation in
damages, as he ought to have provided against the
unforeseen contingency by his contract. {£) If parties
by advertisement hold out that they are ready to give
a guarantee that a vessel shall sail on a particular day,
ix) Storei- V.Gordon, 3 M & S. 308. B. N. S. 497; 28 L. J., C. P. 33.
{y\ Fothergill v. Walton, 8 Taunt. Kearon v. Pearson, 7 H. & N. 386;
576 ; 2 Moore, 630. Stavers v. Curl- 31 L. J., Ex. i ; and see Ford v.
ing, 3 So. 740. I'ust V. Dowie, 33 L. Cotesworth, L. R., 4 Q. B. 134 ; 39
J., Q. B. 172 ; 34 ib, 127 ; 5 B. & S. L. J., Q. B, 188, where the charter
20. Behn v. Burness, anic. party was silent as to the time for un-
(z) Adams v. Royal Mail, &c,, 5 C. loading.
Sec. IV.] CONTRACTS FOR CARRIAGE. 663
and an intended passenger takes a berth on the
strength of the assurance, the time named will be of
the essence of the contract, (a) But this is not the
case, if merchandise is shipped on board, and the
vessel carries it to the place of destination. Where,
by charter-party, the plaintiff let his vessel to freight
to the defendant, and covenanted that the vessel
should sail with the next wind on a voyage to Cadiz,
and the defendant covenanted that, if the ship went
the intended voyage and returned to the Downs, the
plaintiff should have so much by way of freight for
the voyage", the substance of the covenant was con-
sidered to be that the ship should perform the intended
voyage, that being the primary intention of the par-
ties, and not merely that she should sail with the next
wind, which might change every hour, and that this
was shown by the covenant of the defendant, who
was to pay so much for the performance of the voy-
age, and not merely for sailing with the next wind. (<5)
And, where the covenant was that the vessel should
proceed with the first convoy to Spain and Portugal,
and there make a delivery of the cargo, &c., in con-
sideration whereof the defendant covenanted to pay
freight, it was held that the main object of the con-
tract was the performance of the voyage, and that the
sailing with the first convoy was not a condition pre-
cedent to the plaintiff's right to recover freight for
the voyage actually performed, but a distinct covenant,
for the breach of which he was liable in damages, (c)
So, where the covenant was that the ship should sail on
freight to Demerara on or before the 12th of February
(a) Cranston v. Marshall, 5 Exch. 397. Bornmann v. Tooke, I Campb.
395 ; 19 L. J., Ex. 340. 377-
{,i) Constable v. Cloberie, Palm. (<r) Davidson v, Gwynne, 12 East,
380.
664 ^^W OF CONTRACT. \Bk. II. Cli. III.
and the vessel did not sail until the 12th of March,
Lawrence, J., held that, as the voyage had been
actually performed, and the cargo conveyed to the
destined port, and the profit of it gained by the de-
fendant, there could be no foundation for saying that
the defendant should not pay the freight for it accord-
ing to the covenant, and that he might bring a cross
action to recover damages for the not sailing in time,
if he had sustained any. {d ) And, where the plain-
tiff let his vessel to the defendant, and covenanted
forthwith to make her tight, staunch, and strong, and
well, and sufficiently manned and victualled, «&.c., for
a twelve month's voyage, and the defendant covenan-
ted to pay freight so much per ton per month, and
the vessel was taken into the service of the defend-
ants, who used her for several months, and then
refused to fulfill their covenant to pay freight, on the
ground that the plaintiff had not manned and vict-
ualled the ship, and made her tight and strong, accord-
ing to his covenant, it was held that, as the defendants
had not repudiated the ship because she was not forth-
with made tight, staunch, and strong, but had taken
her into their service and navigated her, they had no
right to insist that the forthwith making her tight, &c.,
vvas a condition precedent to their own liability upon
t'le covenant, [e]
946. Rcaso7table time of performance. — If a ship-
owner covenants generally that a ship shall sail to a
particular port, and there take on board a cargo to be
provided by the charterer, the sailing of the vessel
direct and without any deviation or delay to the ap-
pointed port is not a condition precedent to the char-
terer's liability to provide and ship the cargo ; but, if
(r/) Hall V. Cazencve, 4 East, 477. (e) Havelock v. Geddes, lo East,
564-
Sec. IV.] CONTRACTS FOR CARRIAGE. 665
the delay has been unreasonable, and the charterer has
thereby lost all the benefit of the voyage, and been
prevented from procuring the cargo, he will then be
released from his liability upon the contract. (/)
947. Waiver of time of performance. — If a
shipowner agrees that his vessel shall leave Eng-
land for a foreign port on or before a particular
day to bring back a cargo, the departure of the
vessel at the time specified may be so far of the
essence of the contract that the charterer or freighter
will not be bound to provide the cargo and use the
ship and fkay freight unless the vessel sails at the
time appointed and proceeds by the direct and
usual course to the place of destination ; (^g) but,
if the vessel sails after the time, and the charterer
nevertheless ships the cargo on board and uses the
ship, the time of the vessel's sailing from England is
no longer of the essence of the contract, and he can
not refuse to pay freight and to fulfill his part of the
engagement because the vessel did not sail on the
exact day specified. If it is covenanted by the ship-
owner that the ship shall be at a particular port by a
day named ready to take a cargo on board, the char-
terer or freighter may not be bound by his covenant
or agreement to ship a cargo on board and pay freight,
if the vessel is not ready at the place appointed by
the day named ; but, if after the day has passed, the cargo
is shipped on board pursuant to the covenant, the time
of shipment can not be relied upon as a condition
precedent to the payment of the freight.
948. Mode of performance — Complete cargo. —
(/) Clipsha* V. Vertue, 5 Q. B. {g) Freeman v. Taylor, i M. & Sc.
265. Tarrabochia v. Hickie, i H. & 182 ; 8 Bing. 124. OUive v. Booker, I
N. 183 ; 26 L. J., Ex. 26. Hurst v. Exch. 421. Behn v. Burness, 3 B. &
Usboni'e, 18 C. B. 144 ; 25 L. J., C. P. S. 760 ; 32 L. J , Q. B. 206.
209.
666 LAW OF CONTRACT. [Bk. II. Ch. III.
The performance of a contract that a vessel shall sail
to a foreign port, and there load a particular cargo, is
to be regulated, as regards the loading of the cargo;
by the custom and usage of the port where the cargo
is to be taken on board. (//) If the charterer has
agreed to load the ship with a full and complete cargo,
he is bound, in certain cases to fill up interstices with
broken stowage. ( z) In some cases he may load a full
cargo of the lightest commodities; and, if any ballast is
then wanting, it must be put in by the master. (A) It is
the duty of the owner of a vessel to stow the cargo
with as much skill as a competent stevedore can do ;
(i) but he is not responsible to the charterer, when the
stevedore is appointed by the latter, although it is pro-
vided that he is to act under the master's orders ; for
such a provision only means that the master is to have a
general control over the stevedore, so as to secure the
proper trim and safety of the ship, {m)'
949. Impossibility of performance — Contracts to
procure and carry cargoes and merchandise. — We
have already seen that it is a rule of law that, when-
ever a party enters into an absolute and unqualified
contract to do some particular act, the impossibility of
{h) Cuthbert v. Gumming, II Exch. 53. Moorson v. Page, 4 Campb. 103.
408 ; 24 L. J., Ex. 310. Hudson v. {/) Anglo-African Company v. Lan-
Clementson, 18 C. B. 213. sed, L. R., I C. P. 226 ; 35 L. J., C.
{i\ Cole V. Meek, 15 C. B. N. S. P. 145.
795 ; 33 L. J., C. P., 183. (m) Blaikie v. Stembridge, 6 C. B.
{k) Irving ,. Clegg, I Bing. N. C. N. S. 909 ; 28 L, J., C. P. 329.
' See Taunton Copper Co. v. Merchants' Ins. Co., 22
Peck, 108; Stilson V. Wyman, Davies, 172 ; The Paragon Ware,
322; The Rebecca, Id. 188; The Waldo, Davies, 161; The
Schooner Seaside, 2 Sumner, 567 ; Bartol v. Dodge, 5 Greenl.
282 ; Barber v. Brace, 3 Conn. 9 ; Smith v. Wright, i Caines,
43; Lenox v. Union Ins. Co., 3 Johns. Cas. 178; Vernard v.
Hudson, 3 Sumner, 405; Crear)- v. Holly, 14 Wend. 26; War-
ing V. Morse,
Sec. IV.] CONTRACTS FOR CARRIAGE. 667
performance occasioned by inevitable accident, or by
some unforeseen occurrence over which he had no con-
trol, will not release him from the obligation of his
contract. (;?) Therefore, if a shipowner has covenanted
to procure and ship on board a cargo of guano,
corn, or timber, at a specified port, the circumstance
that no guano, corn, or timber was to be procured at
that port, (0) or that its exportation had been pro-
hibited, (/) or that the loading of it on board vsras
prevented by an embargo, {q) or by want of water, (r)
or by the plague, (j) will not constitute an answer to
an action for the non-performance of the contract.
950. Implied authority of the agents of ship-char-
terers.— The agent of the charterer of a ship, to whom
the ship is addressed for loading under a charter-party,
has no implied authority to substitute a diflFerent voy-
age from that which is stipulated for by the charter-
party, and can not by agreement with the shipmaster
substitute a different port of loading, or a diflFerent
quality or description of cargo, from that prescribed
by the charter-party. (/)
951. Shipment and carriage of merchandise
tinder bills of lading. — When the use of an entire ves-
sel, or a certain amount of stowage therein, is not con-
tracted for, but the merchant or owner of the goods
merely sends certain parcels or packages of goods on
board, to be conveyed to the port of destination, the
master or commander of the vessel, or some person
acting for him, usually gives a receipt for them, and
(») Ante. {r) Schilizzi v. Derry, 4 Ell. & Bl.
{o) Hills V. Sughrue, 15 ,M. & W. 886.
261. Kirk V. Gibbs, i H. & N. 815 ; (j) Barker v. Hodgson, 3 M. & S.
26 L. J., Ex. 2og. , 267. Marquis of Bute v. Thompson,
(/) Blight V. Page, 3 B. & P. 13 M. & W. 487.
205, n. W Sickens v. Irving, 7 C. B., N. S,
(q) Sjoerds v. Luscombe, 16 East, 165 ; 2g L. J., C. P. 25.
201.
668 LAW OF CONTRACT. [Bk, II. C^. III.
the master aftci-wards signs and delivers to the mer-
chant sometimes two and sometimes three parts of a
bill of lading,' of which the merchant commonly sends
one or two to his agent, factor, or other person to
whom the goods are to be delivered at the place of
destination : that is, one on board the ship with the
goods, another by the post or other conveyance, and
one he retains for his own security, (x) The bill of
lading is a written or printed memorandum, signed by
the master, acknowledging the shipment of the goods
on board, and promising to deliver them at the port
of destination to a person named as the consignee, or
his assigns, on payment of freight, primage, and aver-
age, " the act of God, the queen's enemies, fire, and all
the every other dangers and accidents of the seas, riv-
ers,and navigation of whatever nature and kind soever
excepted." The master, who thus acknowledges the
receipt of the goods, and promises to carry and deliver
them is personally responsible for the fulfillment of his
engagement ; [y) and the shipowner or charterer, who
receives the fruit and earnings of the ship, is also
liable upon the bill of lading, although he is not
named therein, (z) Delivery to the shipowner's ser-
vants alongside the vessel is equivalent to a delivery
on board, (a:) The duty to deliver the goods under a
bill of lading arises on presentment of the bill ; and, if
it is not presented to the master on the arrival of the
ship at her place of destination, the master is not
bound to keep the goods for an indefinite time on
board his ship, but may deliver them to any trust-
ee) Abbott on Shipping, by Serjt. (a) British Columbia & Vancouver
Shee, 279. Island Spar, Lumber, and Saw-mill
(y) Domat, lib. i, tit. 16, b. 2, Co., Lim., v. Nettleship, L. R, 3 C. P.
(sjCannanv. Meaburn,8 Moore,i27. 4S9 ; 37 L. J., C. P. 237.
' Ank, § 604.
Sec. IV.] CONTRACTS FOR CARRIAGE. 669
worthy person to be kept until the bill of lading is
presented, {b) A bill of lading signed by the master
is not conclusive upon the shipowner as to the ship-
ment of the goods mentioned therein ; {c) but it is so
upon the master as against the consignee or assignee
under a bill of lading without notice, unless in the
case of fraud. (</) The consignee has no right to
deduct from the freight payable on delivery of goods
the value of articles which, though mentioned in the
bill of lading, turn out not to have been put on
board, {e)
952. Countermand of the shipment — Re-delivery
af the goods to the consignor. — When goods have been
shipped by a charterer or consignor on board a vessel
to be carried and delivered to the consignee, pursuant
to a contract of sale, or under bills of lading, or under
any contract by which the ownership and right of
property in the goods have been transferred to the
consignee or some third party, the consignor's power
■over the goods is gone, and he can not lawfully coun-
termand the consignment and require the goods to be
delivered back to him. He can not, after he has ceased
to be the owner of them, stop them in transitu, and pre-
vent their delivery to the consignee, unless the latter
has become bankrupt.' But, if the goods are merely
addressed to the consignor's agent for sale, or under
circumstances which do not divest the consignor of
his ownership and right of property in the goods, he
(*) Howard V. Shepherd, 19 L. J., C. 382; 35 L. J., C. P. 215. Jessel v.
P. 255 ; 9 C. B. 321. And see the 25 Bath, L. R., 2 Ex. 267 ; 36 L. J., Ex.
& 26 Vict. c. 63, ». 67, fost. 149-
(c) Grant v. Norway, 10 C. B. 688. {a) 18 & 19 Vict. ... ill, s. 3.
Hubbersty v. Ward, 8 Exch. 334. W Meyer v. Dresser, 16 C. B. N.
Vallieri v. Boyland, L. R., 1 C. P. S. 646 ; 33 L. J., C. P. 289
• Ante.
6/0 LAW OF CONTRACT. [Bk. II. Cii. III.
may countermand the consig-nment and require the
goods to be returned to him, subject to the following-
qualifications and restrictions. If the ship is a general
ship, carrying other goods besides those of the con-
signor, the goods must be demanded back a conve-
nient time before the period appointed for the ship's
sailing, and the demand must be accompanied by a
tender of the freight, and of the reasonable costs and
charges of the re -shipment and re-delivery of the goods,
and the demand must appear to have been made at a
time when it was reasonably in the power of the mas-
ter to comply with it, without injury to the cargo or
the property of other parties on board, and without
creating delay in sailing. If the entire vessel has been
chartered, the charterer may demand back the goods,
on tendering all the reasonable charges and lawful
claims of the shipowner and master upon them, to-
gether with the expenses of re-shipment. (_/) By the
Spanish commercial code, every person who embarks
goods in a general ship may unload the goods shipped,
paying half freight, the expense of loading and un-
loading, and all the damage to the other shippers,
unless these last oppose the unloading, in which case
they are entitled to the goods, and must take them upon
themselves, paying the contract price. ( g) An owner
of goods shipped to proceed to a foreign port has a
right to have them re-delivered to him when the
vessel, having commenced her voyage, meets with a
disaster, whereby the goods are damaged so much that
they can not be profitably carried to their destina-
tion, (^h)
953. Loss of or damage to goods by the way. —
(/) Thompson v. Small, i C. B. C. B. 355..
328 ; 14 L. J.. C. P. 157. (/.) Blasco ,. Fletcher, 14 C. B. N.
ig) Cod. de Com. 765, Art. cited i S. 147 ; 32 L. J., C. P. 284.
Sec. IV.] CONTRACTS FOR CARRIAGE. 671
Whenever a party has absolutely contracted to carry
cargoes or merchandise from one place to another,
subject to certain express exceptions, he has impliedly
contracted to carry them safely ; (J) and the circum-
stance that he had been prevented from fulfilling his
contract by some casualty or inevitable accident, will
constitute no answer to an action brought against him
for the recovery of damages for the breach of contract,
if the casualty has not been expressly provided against
by the contract. Therefore, where the defendant
agreed to carry the plaintiff's goods by ship from
Gibraltar to London, calling at Cadiz, and the goods
were seized by the revenue authorities at Cadiz, and
condemned and sold, it was held that such seizure and
sale formed no answer to an action for the non-deliv-
ery of the goods. (/§) If the vessel becomes disabled,
and gets to port in a sinking state, the master is bound
to tranship and forward the cargo, if he has the means
of transhipment at hand, (/) and is allowed a reason-
able time to do so ; (tn) but, if the vessel is wrecked,
and the master has no means of transhipment, (n) and
no piospect of obtaining any, or if the cargo is of a
perishable nature, and can not be transhipped and for-
warded to the place of destination without risk of
serious injury or total destruction, he is then clothed
with an implied authority from the owners of such
cargo to do the best he can with it for their benefit;
and, if, being unable to communicate with the owner,
(t) Rogers v. Head, Cro. Jac. 262. {m) The Soblomsten, L. R., I Adm.
Matthers v. Hopping, i Keb. §52. 293 ; 36 L. J., Adm. 5.
(k) Spence v. Chodwitk, 10 Q. B. (») As to the duty of the master to
517 ; 16 L. J., Q. B. 313. Evans v. tranship and forward the goods, see
Hutton, 5 Sc. N. R. 670; 2 Dowl. N. Shipton v. Thornton, 9 Ad. & E. 337.
S. 600. Gosling V. Higgins, l Campb. Gibbs v. Grey, 2 H. & N. 30 ; 26 L. J.,
450. Ex. 286. Mathews v. Gibbs, 2 El. &
(/) Cannan v. Meaburn, 8 Moore, EI. 2S2 ; 30 L. J., Q. B. 55. But see
127. the Hamburg, 32 L. J., Adm. i6i.
672 LAW OF CONTRACT. [Bk. II. Ch. III.
he acts boni fide with ordinary diligence, forethought,
and prudence, he exempts his employers, the ship-
owners, from all liability for the loss. (<?) But he is
not entitled to carry on goods in an unfit state against
the express wish of the shippers in order to earn the
freight. (/) ' In such a case the accomplishment of
the contract by the shipowner has been prevented by
peril of the sea and the dangers and accidents of navi-
gation. Damage done to a cargo by rats is not a
danger or accident of the seas ; and therefore, if a ship
is greatly infested by rats and serious damage done to
the cargo, the undertaker of the work of carrying is
responsible for the injury, although he may have kept
cats on board for the express purpose of destroying the
rats. (^) ^
{o) The Giatitudine, 3 Rob. 261. Q. b. 246; ib. 7 Q. B. 225; 39 L.
Ireland v. Thompson, 4 C. B. 168 ; 17 J._ Q. B. 167 ; 41 ib. 158.
L. J., C. P. 241. The Australasian (q) Laveroni v. Drury, 8 Exch. 170;
Steam Co. v. Morse, L .R., 4 P. C. 222. 22 L. J., Ex. 2. Kay v. Wheeler, L.
(p) Notara v. Henderson, L. R., 5 R., 2 C. P. 302 ; 36 L, J., C. P. 180.
' But see Jordan v. Warren Ins. Co., i Story, 342 ; The
Ship Nathaniel Hooper, 3 Sumner, 554; Cage v. Baltimore
Ins. Co., 7 Cranch, 358 ; Hunter v. Union Ins. Co., i Wash.
C. C. 530 ; Hedfield v. Jameson, 2 Mump. 53 ; Bark v. Nor-
ton, 2 McLean, 422. " If the goods be delivered in specie, be-
ing articles of the same sort as those shipped, and not the
mere remains of its destruction or decay," says Dixon on
Shipping, § 193, "freight is due, and accordingly, though the
goods may be totally lost to all the purposes for which they
can be available to the shipper, there is not a total loss of
freight. Hugg v. Augusta Ins. Co., 7 How. S93 ; Griswold v.
New York Ins. Co., 3 Johns. 321. But for goods which
perish by the perils of the sea during the voyage, no freight is
due ; as where a ship leaks owing to tempestuous weather ;
and sugar, which was being carried in hogsheads properly
stowed, was washed out, and had disappeared. Frith v.
Baker, 2 Johns. 327. But if the commodity is lost by decay,
leakage, evaporation, or other causes than the perils of the
sea, freight is still due. Id. Coffin v. Storer, 5 Mass. 251.
Aymar v. Astor, 6 Cowen, 266 ; 3 Kent Com. 300; Dixon *
Sec. IV.] CONTRACTS FOR CARRIAGE. 677,
954' Of ^^^ implied promise to carry safely. —
Whenever goods have been bailed by one man to an-
other upon the faith of an express or implied under-
taking by the latter to carry them to a distant part, it
is no answer to an action brought against him to re-
cover damages for the breach of his engagement, to
say that the goods were lost by the way, the very fact
of the loss affording prima facie evidence of neglect
and want of care, (r) If the goods have been stolen,
or consumed by fire, or destroyed by accident, without
fault or neglect or want of care and caution on the
part of the undertaker of the work, the latter stands ex-
cused, and may avail himself of the robbery or the un-
avoidable accident as an answer to an action brought
against him for the non-delivery of the goods to the
consignee. " He is only," observes Holt, C. J., " to
do the best he can ; and if he be robbed, &c., it is a
good account ; for it would be unreasonable to charge
him with a trust further than the nature of the thing
puts it into his power to perform it." {s) A loss by
theft or secret purloining of goods is prima facie evi-
dence of negligent keeping ; and the carrier must rebut
this presumption by showing that he had taken all
such precautions as appeared to be necessary to guard
against it. In an action against the commander of a
(>-) Parry v. Roberts, 3 Ad. & E. 120. {s) Holt, C. J., I Smith's L. C. 51h
ed. 181, 182.
on Shipping, § 264, maintains that the owner is liable for
damage to the ship by rats, and that such damage is not in-
cluded in "perils of the sea." And see Garrigues v. Coxe, i
Binn. 592. But the rule as to the cargo is not laid down as
broadly with us as in the text, Aymar v. Astor, cited above,
holding that a damage to the cargo by rats is not one of the
exceptions necessarily included under the "perils of the sea,"
in the bill of lading, but the question must depend upon
whether there was due diligence on the part of the master and
mariners to prevent it.
XI.— 43
674 ^A^ OF CONTRACT. [Bk. II. Ch. IIL
ship of war for the loss of two casks of dollars which
had been delivered to him to be carried from the
river Plate to London upon freight for hire, it appeared
that on the arrival of the ship in the Thames, the two
casks had been opened and plundered by the crew ;
and it was held that the very occurrence of the loss
was prima facie evidence of negligent keeping on the
part of the defendant, and that he was responsible for
the loss.. (/) In the contract of a shipowner to carry
goods shipped on board his vessel, it has been held
t'hat there is no implied condition that the vessel shall
be seaworthy, but the rule is not undisputed, (u) '
{i) Hodgson V. Fullarton, 4 Taunt. (a) Schloss v. Heriot, 14 C. B., N.
787. Hatchwell v. Cooke, 6 Taunt. S. 59; 32 L. J., C. P. 211.
577-
' But the English case cited by the author was an action to
recover plaintifFs proportion of average. As to the rule in the
United States, see the cases cited in note i, p. 660. But the im-
plied wsLrmnty of seaworthiness, at the commencement of the
voyage, attaches between insurer and insured; and the insured
(whether on ship, freight, or cargo,) is understood to warrant
impliedly that the ship is, in construction, materials, quali-
fication of the master, competency and numbers of her crew,
in equipment, tackle, rigging, stores, and general outfit, fit for
the voyage or service proposed. Warren v. United Ins. Co.,.
2 Johns. 231; Prescott v. Union Ins. Co., i Whart. 399;
Deshon v. Merchants' Ins. Co., 11 Mete. 207; Starbuck v.
New England Ins. Co., 19 Pick, 199. And in Putnam v. Wood,
3 Mass. 48 ; the rule is laid down emphatically as between
shipper and owner as well, the court holding that it is the
duty of the owner of a ship, when he charters her, or puts her
up for freight, to see that she is in a suitable condition to
transport her cargo in safety ; and he is to keep her in that
condition, unless prevented by perils of the seas, or unavoida-
ble accidents. If the goods are lost by any defect in the ves-
sel, whether latent or visible, known or unknown, the owner
is answerable to the freighter, upon the principle that he tac-
itly contracts that his vessel shall be fit for the use for which
he employs her; and there is no difference between insurers ot
Sec. IV.] CONTRACTS FOR CARRIAGE. 675
955. Limitation of liability by special contract. —
There are certain cases, as we shall presently see, where
a carrier contracts for the conveyance of very perishable
or fragile articles, in which he may accept the goods
and contract to carry them on the express terms that
he shall not be responsible for damage done to them
in the transit' Generally speaking, )iowever, it is not
competent to a party to enter into a contract for the
performance of a particular duty, and by the same
contract to stipulate that he shall be exempt from all
legal responsibility if he neglects to do what he has
undertaken to perform. " We can not," observes Lord
Ellenborough, " construe a contract for the carriage
of goods between the owners of vessels carrying goods
for hire and the persons putting the goods on board
so as to make the owners say we will not be answera-
ble at all for any loss occasioned by our own miscon-
duct ; for this would in effect be saying, ' We will be
at liberty to receive your goods on board a vessel,
however leaky ; we will not be bound to provide a
crew equal to the navigation of her ; and if through
the ship and insurers of the cargo in this respect. If the ship
be not seaworthy at the commencement of the voyage, the
contract of insurance is void, and the insurers, whether of
ship or cargo, are discharged. Taylor v. Lowell, 3 Mass. 331.
And the implied warranty of seaworthiness is, that the vessel
shall be able to perform her voyage with the cargo with which
she is then loaded. Abbott v. Broome, i Caines, 292. Nor is
it sufficient to satisfy this warranty of seaworthiness that the
ship has been pronounced seaworthy by skillful shipwrights,
after careful examination. Brig Casco, Davies, 192; 5 Kent
Com. 391, note. Hoxie v. Pacific Mutual Ins. Co., 7 Allen,
211. The only exception is in the case of what are known
as " time policies," effected on a vessel at sea ; in these cases'
there is no implied warranty of seaworthiness.. On a time
policy on a vessel in port, the warranty is understood. Hoxi j
V. Pacific Ins. Co., 7 Allen, 221.
' See post, § 988.
6^6 LAW OF CONTRACT. [Bk. II. Ch. III.
these defaults the goods are lost, we will pay noth-
A stipulation in a bill of lading that the shipowner
is not to be accountable for leakage or breakage ab-
solves him from responsibility for leakage and break-
age the result of mere accident, where no blame is im-
putable, or for leakage the result of bad stowage
where the shippers have themselves superintended the
stowage, (jv) but does not exempt him from the
obligation which the law imposes upon him of taking
reasonable care of goods entrusted to him to be carried.
{£) And an exception in a bill of lading of " accidents
or damage of the seas, rivers, and steam navigation of
whatever nature or kind soever," does not protect the
shipowner from liability for damage arising from a
collision caused by gross negligence of his ship's mas-
ter and crew, {a)
956. Loss by the act of God, dangers and accidents
of the seas, rivers, and navigation. — From losses oc-
casioned by the act of God, by the Queen's enemies,
and the dangers and perils of the sea and of naviga-
tion, the carrier by water is, and always has been, ex-
empt by the common law ; but he is not exempt, nor
does the exception in the bill of lading or other con-
tract of affreightment exempt him, from accidents oc-
casioned by his own negligence and misconduct or
want of skill, or the negligence, misconduct, or want
of skill of the persons whom be has entrusted with the
navigation of the vessel, {b) The expression "act of
(w) Lyon /. Mells, 5 East, 438. Navigation Co., L. R., 3 C. P. 14 ; 37
Ellis ,. Turner, 8 T. R. 531. See L. J., C. P. 3.
however. The Duero, L. R., 2 A. & (a) Lloyd v. Gen. Iron Screw Col.
E. 293 ; 38 L. J., Adm. 69. Co., 3 H. & C. 284 ; 33 L. J., Ex.
(jy) Ohrloffv. Briscall, L. R., 1 P. 269.
C. 231 ; 35 L. J., P, C. 63. (b) Mansfield, C. J., I Doug. 278.
(z) Phillips v. Clark, 2 C. K., N. S. Siordet v. Hall, i M. & P. 561.
164. Czech V, The (".eneral .Steam
Sec. IV.] CONTRACTS FOR CARRIAGE. 677
God " denotes natural accidents, such as lightning,
earthquake, and tempest, and not accidents arising
from the negligence of man. And the term " dangers
and accidents of the sea and of navigation " denotes
the dangers and accidents peculiar to the ocean and to
navigation from port to port which no human care or
skill can guard against, or surmount, such as accidents
resulting from the irresistible violence of the winds
and waves, and from tides and currents ; (c) the de-
struction of a perishable cargo or of living animals
from the rolling of a ship in a storm ; (d) jettison of
goods from irresistible necessity to lighten the ship
and save her from foundering; (e) the grounding of a
vessel on the hard and uneven bottom of a dry har-
bor, in which she had been obliged to take refuge, {/)
or on a sunken rock or sand-bank not generally known,
and not marked on the ordinary charts or maps ; ir-
resistible attacks by pirates ; (^g) the accidental break-
ing of tackle by which the vessel is moored in port ; (/^)
or accidental collisions in fogs or storms, where no
blame is imputable to either of the vessels striking to-
gether, (z)
(c) Hodgson V. Malcolm, 2 B. & P., (/jFletcherv.Inglis,2 B.& Ald.3l5.
N. R. 336. (g) Pickering V. Barclay, Styles, 132.
{d) Lawrence v. Aberdein, 5 B. & (h) Laurie v. Douglas, 15 M. & W.
Aid. no. 746.
(e) Bird v. Astcock, 2 Bulst, 280. (i) BuUer v. Fisher, 3 Esp. 67.
' Lord Mansfield's rule was, that the act of God was " some-
thing in opposition to the act of man." The law presumes
against the carrier, unless he shows it was done by the king's
enemies, or by such an act as could not happen by the interven-
tion of man. Richards v. Gilbert, 5 Day, 415 ; Mc Arthur v. Sears,
21 Wend. 190; Sherman v. Wells, 28 Barb. 403 ; Fergusson v.
Brent, 12 Md. 9. The act of God concurring with other and
human agencies will not excuse. Sprowi v. Kellar, 4 Stew.
& P 382 ; but see Hill v. Sturgeon, 28 Mo. 323. So where a
flood rises higher than ever it was known to before, it is an
act of God, and the carrier will be relieved, unless his own
6/8 LAW OF CONTRACT. [Bk. II. Ch. III.
957' When a loss occasioned by negligence or
misconduct is not a loss from peril of the sea, though
the sea does the mischief — The general rule in cases
negligence, as, for instance, his neglect to forward the goods
before, has reasonably contributed to the loss by the flood.
Read v. Spalding, 5 Bosw. 395 ; 30 N. Y 630; see Michaels
V. New York, &c., R. R. Co., 30 N. Y. 564; Merritt v. Earle,
29 N. Y. 115. It must be something against which human
foresight or sagacity could not have guarded. Colt v. Mc-
Mechen, 6 Johns. 160; McArthur v. Sears, 21 Wend. 190; Mc-
Call V. Brock, 5 Strobh. 119; Steamboat Co. v. Tiers, 4 Zab.
697. But when the rudder of a ship proved defective, although
the ship had been lately completely repaired, the carrier could
not escape on that plea. Backhouse v. Sneed, i Murph. 173.
Explosion of a boiler is not an act of God, nor a conspiracy
of servants to leave their master's employment. Blackstone
V. New York, See, R. R. Co., i Bosw. 177 ; but see Cox v. Peter-
son, 30 Ala. 608 ; Hibler v. McCartney, 31 Id. 501 ; nor a col-
lision on river, even if it were entirely the fault of another vessel,
colliding with the carrier; Converse v. Brainard, 27 Conn. 607;
nor thefts by the crew or others; Schieffelin v. Harver, 6
Johns. 170 ; nor the shifting of a buoy at the entrance to a har-
bor, while the ship was absent on her voyage; Reeves v.
Waterman, 2 Spears, 197; nor for delay on account of the in-
creased dangers of navigation as winter approached; Falway
V. Northern Transportation Co., 15 Wis. 129; nor by cars run-
ning over one who, having no place to stand on a train, fell
from it ; Golden v. Pennsylvania R. R. Co., 30 Pa. St. 242 ;
nor a dense fog, if loss occur through want of care, as running
at a high rate of speed ; The Rocket, i Biss. 354; nor for in-
juries, from extreme cold, to perishable goods (as potatoes), if
the carrier did not take due care to protect them. Wing v.
New York, &c., R. R. Co., i Hilt. 263 ; Bulkley v. Naumkeag
Cotton Co., 24 How. (U. S.) 386. Fire caused by lightning;
Mershon v. Hobensack, 2 Zab. 372; or striking upon a rock
not hitherto known, and not laid down in any chart ; Williams v.
Grant, 6 Conn. 487 ; Pennerville v. Cullen, 5 Harring, 238; Col-
lier V. Valentine, 1 1 Mo. 299 ; or a snag in a river, brought there
by a recent freshet, Smyrl v. Niolon, 2 Bailey, 421 ; Faulkner
v. Wright, I Rice, 108; an unexpected obstruction to naviga-
tion by the freezing of a canal; Parsons v. Hardy, 14 Wend. 215;
Harris v. Rand, 4 N. H. 259 ; and see to the same point, Crosby
V. Fitch, 12 Conn. 410 ; Price v. Hartshorn, 44 N. Y. 94.
Sec. IV.] CONTRACTS FOR CARRIAGE. 679
of insurance is, that the immediate and not the remote
cause of loss is to be considered : but this rule does
not apply as between the owner and the carrier of
goods. Thus, if a vessel deviates from its proper
course, and sails unnecessarily through dangerous
straits and channels, or into seas infested with pirates,
and is wrecked or plundered in consequence of such
-deviation, the loss, though proximately caused by what
is usually termed " a peril of the sea," is deemed to
have been occasioned by the misconduct of the master
or commander, who had improperly gone out of his
way to meet the danger. A collision arising from the
negligence of the crew of the ship is not a peril of the
sea within the meaning of an exception of loss arising
from perils of the sea in a bill of lading, (^k) If the
cargo is seriously damaged or destroyed by rats, the
loss is not the result of a danger or an accident of the
seas, but of neglect and want of care on the part of the
master and crew. (/) If a vessel becomes unseaworthy
and the owner neglects to avail himself of an oppor-
tunity to repair her, and thereby causes the loss of the
cargo, the loss is the result of negligence, (ni) If
the vessel at the time of the commencement of the
voyage is unseaworthy — if the hull is worm-eaten or
gnawed by rats, or the timbers are rotten, and the ves-
sel is shaken to pieces and founders in a gale which a
stout and seaworthy ship would have withstood in
safety, the loss, though proximately caused by the vio-
lence of the winds and waves, has not, in contempla-
tion of law, been occasioned by peril of the seas, but
by the negligence and misconduct of the owner of the
ship, who is responsible to the owner of the cargo for
(k) Grilt V. The General Iron Screw (I) Laveroni v. Drury, ante.
<i;ol.Co.,L.R.,iC.P.6oo;ib.,3C.P.476; (m) Worms v. Storey, ri Exch. 430 {
35 L. J., C. P. 321 ; 37 L- J-. C. P. 205. 25 L. J., Ex. I.
68o LAW OF CONTRACT. [Bk. II. Ch. IIL
the loss of the goods shipped on board, (n) When,
on the other hand, from the rolling and laboring of a
ship in a storm, a number of horses, though properly
stowed and secured on board at the commencement
of the tempest, broke loose and kicked each other to
death in the hold of the vessel, the loss, though proxi-
mately caused by their own hoofs, was deemed to have
been occasioned by peril of the sea. (o) '
" If a ship perish in consequence of striking against
a rock or shallow, the circumstance under which that
event has taken place must be ascertained in order to
decide whether it happened by a peril of the sea, or by
the fault of the owner, carrier, or master.' If the situa-
tion of a rock or shallow is generally known, and the
ship is not forced upon it by adverse winds, or storms,
and tempests, the loss is to be imputed to the fault of
the master. And it matters not, in such a case, whether
the loss arises from his rashness in not taking a pilot,
or from his own ignorance or unskillfulness. On the
other hand, if the ship is forced upon such a rock or
shallow by adverse winds or tempests, or if the shallow
is occasioned by a recent and sudden collection of
sand in a place where ships could before sail with
safety, or if the rock or shallow is not generally
known ; in all these cases the loss is to be attributed
to the act of God, and it is deemed a peril of the
sea" {p) If the carrier by water overloads his vessel,,
and so causes it to founder in a gale of wind, the loss-
is occasioned by the negligence of man ; but it is,
otherwise, if the boat has not been surcharged, but
sinks solely through the violence of the winds and
(«) Hunter v. Potts, 4 Campb. 202. {0) Gabay v. Lloyd, 3 B. & C. 793.
(p) Abbott, by Shee, 389, 8th ed.
' See last note.
' Williams v. Grant, 16 Conn. 487 ; Pennerville v. Cullen,
5 Harring. 238; Collier v. Valentine, 11 Mo. 299.
Sec. IV.] CONTRACTS FOR CARRIAGE. 68 »
waves. (^) If a hoyman shoots a bridge in tempest-
uous weather or at a dangerous period of the tide, and
the hoy is sunk, the loss is occasioned by the negli-
gence of the hoyman ; but, if he has shot the bridge
at a proper time and in proper weather, but the hoy
has been taken aback by a sudden gust of wind, and
has been driven against the abutments of the bridge
and sunk, and the goods on board lost, the loss is
deemed to have been occasioned by the act of God
and the carrier, consequently, is exempt from responsi-
bility in respect thereof, (r)
958. Proof that the loss was occasioned by negli-
gence and not by a peril of the sea. — In order to deter-
mine whether the loss has or has not been occasioned
by the negligence or want of skill of the servants of
the shipowner, " the established rules of nautical prac-
tice, the usages and regulations of particular ports and
rivers, the state of the wind, the tide, and the lights
the degree of vigilance of the master and crew, and
all other circumstances bearing upon the conduct and
management of the vessel must be considered." (s) '
959. Loss by fire. — Limitation of the responsibil-
ity of owners and part owners of ships by statute. —
By the 17 & 18 Vict. c. 104, s. 503, it is enacted that
no owner of any sea-going ship or share therein shall
be liable to make good any loss or damage which may
happen, without his fault or privity, to any goods or
merchandise taken on board such ship by reason of
any fire happening on board, or to any gold, silver,
diamonds, watches, jewels or precious stones taken on
board, by reason of any robbery, embezzlement, mak-
(g) 22 Assiz. 41. Williams v. Lloyd, (j) Abbott, ut sup. 207. Tufif v.-
Jones's Rep. 180. Warman, 5 C. B. N. S. 573
(r) Amies v. Stevens, I Str. 128.
' See ante, note i, p. 677.
682 LAW OF CONTRACT. [Bk. II. Ch. III.
ing away with, or secreting thereof, unless the owner
or shipper thereof has at the time of shipping the
same, inserted in his bills of lading, or otherwise
declared in writing to the master or owner of such
ship, the true nature and value of such articles. (^)
And by the 25 & 26 Vict. c. 63, s. 54, the owners of
any ship, whether British or foreign, («) shall not in
cases where all or any of the following events occur
without their actual fault or privity, that is to say : — •
(i) where any loss of life or personal injury is caused
to any person being carried in such ship ; (2) where
any damage or loss is caused to any gcods, merchan-
■dise, or other things whatsoever on board any such
ship ; (3) where any loss of life or personal injury is
by reason of the improper navigation of such ship as
aforesaid caused to any person carried in any other
ship or boat ; (z^) (4) where any loss or damage is, by
reason of the improper navigation of such ship as
aforesaid, caused to any other ship or boat, or to any
goods, merchandise, or other things whatsoever on
board any other ship or boat — be answerable in dam-
ages in respect of loss of life or personal injury, either
alone or together with loss or damage to ships, boats,
goods, merchandise, or other things, to an aggregate
amount exceeding ^15 for each ton of their ship's
tonnage ; nor in respect of loss or damage to ships,
goods, merchandise, or other things, whether there be
in addition loss of life or personal injury or not, to an
aggregate amount exceeding /^S for each ton of the
ship's tonnage. By the 17 & 18 Vict. c. 104,5. 516,
nothing contained in the act is to take away any lia-
(/) The nature of the articles must {u) The Amalia, 32 L. J., Adm. 191.
be described, and their money value (v) As to the mode of procedure in
stated. Williams v. Afric. St. Ship case of loss of life or personal injury,
Co., I H, & N. 302 ; 26 L, J., Ex. 69 see the 17 & 18 Vict. c. 104, .ss. 507-
512.
Sec. IV.] CONTRACTS FOR CARRIAGE. 683
bility to which any master or seaman, being also owner
or part owner of the ship to which he belongs, is sub-
ject in his capacity of master or seaman.
The limitation of liability under the Act of 1854,
does not extend to the owner of any lighter, barge, boat
■or vessel, used solely in rivers or inland navigation, or to
any ship or vessel not duly registered, (j)/) The Acts,
it will be seen, embrace two descriptions of losses, the
one a loss or damage to the cargo laden on board the
ship occasioned by the negligence of the master or
mariners, and rendering the shipowner liable, ex con-
tractu, at common law to the extent of the value of
such cargo; and the other a loss or damage to the
ship or cargo of some third party, occasioned by the
negligence or misconduct of the master, in respect of
which the owner is liable ex dilicto, but not upon any
contract. To an action, ex delicto in respect of an in-
jury to the property of a third party, both the shipowner
and the master are liable — the owner, as the employer,
responsible for the wrongful act done by the servant
in the course of his employment, and the other as the
party actually committing the injury ; and it is this
liability ex delicto to which the Act of 1854 refers,
when it provides that nothing therein contained shall
lessen or take away any responsibility to which any
master or mariner might then by law be liable,
notwithstanding such master or mariner might be an
owner or part owner of his ship or vessel. If the
master be a part owner, his responsibility, if he is sued
{ex delicto) in his character of master, and not as
one of several part owners, will not be limited by the
Act ; but if he is sued as one of the part owners with
the other part owners, the circumstance of the loss
(/) Morewood v. Pollok, 22 L. J., Q. B. 250 ; i Ell. & Bl. 743.
6R4 -LAW OF CONTRACT. [Bk. II. Ch. III.
being occasioned by his fault, and with his privity, will
not take away from the other part owners the protec-
tion which the statute intended to give them. (2) If
the ship is sunk by a collision with another vessel, the
shipowner is not released from liability by the loss of
his vessel, (ff) '
(z) Bayley, J., Wilson v. Dickson, (a) Brown v. Wilkinson, 15 M. &
2 B. & Aid. 13. W. 391 ; 16 L. J., Ex. 34. Tlie Mel-
lonna, 12 Jur. 271.
' The act of congress of March 3, 185 1, to limit the lia-
bility of shipowners, as contained in the Revised Statutes
of the United States, Revision of 1873-1874, is as follows:
§4281. — If any shipper of platina, gold dust, silver bullion,
or other precious metals, coins, jewelry, bills of any bank or
public body, diamonds or other precious stones, or any
gold or sil'ver in a manufactured or unmanufactured state,
watches, clocks, or time-pieces of any description, trinkets,
orders, notes or securities for payment of money, stamps,
maps, writings, title-deeds, printings, engravings, pictures,
gold or silver plate or plated articles, glass, china, silks
in a manufactured or unmanufactured state, and whether
wrought up or not wrought up with any other mate-
rial, furs, or lace, or any of them contained in any parcel
or package or trunk, shall lade the same as freight or bag-
gage on any vessel, without, at the time of such lading
giving to the master, clerk, agent, or owner of such vessel
receiving the same, a written notice of the true character and
value thereof, and having the same entered on the bill of
lading therefor, the master and owner of such vessel shall
not be liable as carriers thereof in any form or manner; nor
shall any such master or owner be liable for any such goods
beyond the value and according to the character thereof so
notified and entered. § 4282. — No owner of any vessel shall
be liable to answer for or make good to any person any loss
or damage which may happen to any merchandise whatsoever,
which shall be shipped, taken in, or put on board any such
vessel, by reason or by means of any fire happening to or on
board the vessel, unless such fire is caused by the design or
neglect of such owner. § 4283. — The liability of the owner
of any vessel for any embezzlement, loss, or destruction by
any person of any property, goods, or merchandise shipped
or put on board of such vessel, or for any loss, damage, or
Sec. IV.] CONTRACTS FOR CARRIAGE. 685
960. Losses occasioned by the negligence of licensed
pilots. — The 17 and 18 Vict. c. 104, s. 388, further ex-
empts the owner and master of a ship from liability in
injury by collision, or for any act, matter or thing lost,
damage or forfeiture done, occasioned or incurred, with-
out the privity or knowledge of such owner or owners,
shall in no case exceed the amount or value of the interest
■of such owner in such vessel, and her freight then pending.
^ 4284. — Whenever any such embezzlement, loss, or destruc-
tion is suffered by several freighters or owners of goods,
wares, merchandise, or any property whatsoever on the same
voyage, and the whole value of the vessel and her freight for
the voyage is not sufficient to make compensation to each of
them, they shall receive compensation from the owner in pro-
portion to their respective losses ; and for that purpose, the
freighters and owners of the property, and the owner of the
vessel, or any of them, may take the appropriate proceedings
in any court for the purpose of apportioning the sum for
which the owner of the vessel may be liable among the
jjarties entitled thereto. § 4285. — It shall be deemed a suffi-
cient compliance on the part of such owner with the require-
ments of this Title, relating to his liability for any embez-
zlement, loss, or destruction of any property, goods, or
merchandise, if he shall transfer his interest in such vessel
and freight for the benefit of such claimants, to a trustee to be
appointed by any court of competent jurisdiction, to act as
such trustee for the person who may prove to be legally
entitled thereto ; from and after which transfer all claims and
proceedings against the owner shall cease. § 4286. — The
charterer of any vessel, in case he shall man, victual, and navi-
gate such vessel at his own expense, or by his own procure-
.ment, shall be deemed the owner of such vessel, within the
meaning of the provisions of this Title relating to the limi-
tation of the liability of the owners of vessels; and such
vessel, when so chartered, shall be liable in the same manner
as if navigated by the owner thereof § 4287. — -Nothing in
the five preceding sections shall be construed to take away
•or affect the remedy to which any party may be entitled
against the master, officers, or seamen, for or on account or
any embezzlement, injury, loss, or destruction of merchandise,
or property put on board any vessel, or on account of any
negligence, fraud, or other malversation of such master, offi-
cers, or seamen, respectively ; nor to lessen or take away any
686 LAW OF CONTRACT. [Bk. II. Ch. III.
respect of losses or damage occasioned by the neg-
lect or incapacity of a licensed pilot in charge of the
vessel. " The shipowners are not responsible when
they take a pilot by compulsion ; but in all other cases
they are responsible for the acts of the pilot." (J>) " It
is the duty of the master to look after the pilot in the
case of his palpable incompetency, or intoxication, or
of the loss of his faculties. The taking of a pilot
under the Act does not relieve the shipowner from the
ordinary legal consequences resulting from the negli-
gence of the master and crew." {c)
{i) The Energy, L. R., 3 A. & E. Jur, 298. The Duke of Manchester,
48 ; 39 L. J., Adm. 25. The Ocean 10 Jur. 865. The Iron Duke, 9 Jur.
Wave, L. R., 3 P. C. 205. The Cala- 476. The lona, L. R., i P. C. 426-
bar, L. R., 2 P. C. 238. The Lion, The Valasquez, L. R., I P. C. 494;
L. R., 2 P. C. 52 ; 38 L. J., P.C. 57. 36 L. J., Adm. ig. The Queen, L.
(c) Dr. Lushington, The Eden, 10 R., :i A. & E. 354 ; 38 L. J., Adm. 39.
responsibility to which any master or seamen of any vessel
may by law be liable, notwithstanding such master or seaman
may be an owner or part owner of the vessel. § 4288. — Any
person shipping oil of vitriol, unslacked lime, inflammable
matches, or gunpowder in a vessel taking cargo for divers
persons or freight, without delivering at the time of ship-
ment a note in writing, expressing the nature and character
of such merchandise to the master, mate, officer, or person in
charge of the lading of the vessel, shall be liable to the
United States in a penalty of one thousand dollars. But this
section shall not apply to any vessel of any description what-
soever used in rivers or inland navigation. § 4289. — The
provisions of this Title relating to the limitation of the lia-
bility of the owners of vessels, shall not apply to the owners
of any canal boat, barge, or lighter, or to any vessel of any
description whatsoever used in rivers or inland navigation.
As to the liability for loss by fire under this Title, see Walker
V. Transportation Company, 3 Wall, 150. As to the loss not
exceeding the value of the ship or the interest of the owner
therein and the transfer to a trustee, see Norwich Company v.
Wright, 13 Wall. 104; the steamboat City of Norwich, i Ben.
89. As to when the charterer of a vessel will be considered
the owner, see Thorp v. Hammond, 12 Wall. 40S ; and as to
Sec. IV.] CONTRACTS FOR CARRIAGE. 687
96 1 . Delivery of goods by shipowners. — There is
an implied engagement on the part of every undertaker
of the work of carrying, to proceed by the usual and
ordinary course to the port of destination or place of
delivery without delay, and without unnecessary devia-
tion, {d ) If it is customary for the carrier by water
to carry merely from port to port, or from wharf to
wharf, and for the owner or consignee to fetch the
goods from the vessel itself, or from the wharf, as soon
as the arrival of the ship has been reported, the carrier
must give such owner or consignee notice of the arri-
val of the goods on board, or at the customary place
of destination, in order to discharge himself from fur-
ther liability as a carrier. He can not at once dis-
charge himself from all responsibility by immediately
landing the goods without any notice to the consignee,
but is bound to keep the goods on board or on the
wharf, at his own risk, for a reasonable time, to enable
the consignee or his assigns to come and fetch them.
{e) The Merchant Shipping Amendment Act, 1862
(25 & 26 Vict, c 63, ss. 67, et seq.), empowers the
shipowner to enter and land goods in default of entry
and landing by the owner ; and nowithstanding the
landing, the shipowner may, by giving notice for that
purpose, preserve his lien for freight. The Act also
provides for the sale of the goods, if they are not
claimed by the owner. (/)
((/) Davies v. Garrett, 4 M. & P. (/) Berresford v. Mongomerie, 17
540 ; 6 Bing. 716. C. B. N. S. 379 ; 34 L. J., C. P. 41.
(f) Bourne V. Gatifff, 3 Sc. N. R. Willson v. London, Italian, and
44 ; 8 ib. 604 ; 11 CI. & Fin. 45. Adriatic Steam Nav. Co., 35 L. J., C.
P. 9 ; L. R., I C. P. 61.
the exception of vessels employed in inland navigation, see
Propeller Niagara v. Cordes, 21 How. (U. S.) 26; Moore v.
Transportation Company, 24 Id. i.
€88 LAW OF CONTRACT. [Bk. II. Ch. III.
962. Losses on board lighters conveying goods
from the ship to the shore. — When the vessel is not
able to discharge at a wharf, but the goods are placed
in lighters to be conveyed from the ship to the shore,
and are lost on their passage through the neglect or
want of skill of the lighterman, the loss will fall on
the owner of the goods, if the lighterman is paid and
employed by him ; (_f ) but if he is employed and paid
by the shipowner or carrier, he is then the servant of
the latter, expediting the goods in the further prose-
cution of the voyage to their place of destination, and
the carrier, consequently, must make good the loss.
Generally speaking, the task of discharging the cargo
in the port of London is accomplished through the
medium of public lightermen, whose lighters are
entered at Waterman's Hall, and who are public
officers employed and paid by the merchants and
owners of the goods. The lightermen are responsible,
in their character of common carriers, to the merchant
who employs them ; and the shipowner is discharged
as soon as the goods have been safely loaded on board
such lighters. But he is not, by the custom of the
river Thames, exonerated from liability until the load-
ing is complete ; and he is not discharged from his
■obligation to guard the portion of the cargo that has
been placed in the lighter, by telling the lighterman
that he has not sufficient hands on board to take care
of it. He is, on the other hanb, bound to take care
of the lighter and its contents until it is fully laden,
and is ready to leave the side of the ship. (Ji) The
protection afforded by the 17 & 18 Vict. c. 104,5. 503,
to owners of sea-going vessels in respect of loss or
(g) Sparrow v. Caruthers, 2 Str. (Ji) Catley v. Wintringham, I
1236. Strong V. Natally, 4 B. & P. Peake, 202. Robinson v. Turpin, ib.
•6-19. 203 n. (a).
Sec. IV.] CONTRACTS FOR CARRIAGE. 689
damage by fire to goods or merchandise shipped on '
board, does not extend to the case of a fire happening
on board lighters employed by the shipowner in carry-
ing goods from the shore to be laden on board the
vessel. (?) Therefore, if goods are set on fire by rea-
son of the negligence of such lightermen, the ship-
owners are responsible for the damage.'
963. Payment of the freight or hire — If a char-
ter-party amounts to a demise of the ship to the chart-
erer for a certain term at a certain hire, and the vessel
is bailed to him pursuant to the contract, he is respon-
sible for the payment of the hire at the expiration of
the teiin of hiring, although the vessel may have been
lost ; but, if the shipowner merely grants the use of
the vessel, retaining the possession of it through the
medium of his own seamen and servants, the ship-
owner loses his right to the hire, at the same time that
the charterer is deprived of the use and enjoyment of
the vessel. When the charter-party amounts merely
to a contract by the shipowner or shipmaster for the
conveyance of merchandise to a specified destination,
the fulfillment of the covenant or undertaking to carry
the goods, or the shipowner's readiness and willingness
to fulfill it, is a condition precedent to the payment of
the hire, so that the plaintiff must of necessity show
the work done, or that he was ready and willing to do
it, and was hindered from doing it by the defendant,
(«) Morewood y. PoUok, 22 L. J., B. 250 ; I Ell. & Bl. 743.
' In cases of general average, a loss upon lighters, used
when a ship is in distress, or to save her from any calamity, is
considered as though it were a jettison, and enters into the com-
putation, but if lost upon such lighters used for purposes of
sending the goods ashore, their loss gives no claim to contribu-
tion; Dixon on Shipping, §558; and see in the case of the jet-
tisoned goods; Whitteridge v. Norris, 6 Mass. 125 ; Lewis v.
Williams, i Hall, 430; The Nathaniel Hooper, 3 Sumner, 542.
II- —4+
690 LAW OF CONTRACT. [Bk. II. Ch. III.
before he can demand the money, (^k) Ordinarily,
the right to the freight does not arise until the goods
are not only conveyed to their destination, but also
delivered ; (/) or, in the case of a charter-party, until
the charterers have had the full use of the ship for the
purposes for which they chartered it. (m) The freight
may, however, by the special contract of the parties,
be made payable on the delivery of the goods on
board, (11) on the sailing, {0) or on the final sailing of
the vessel from the port of loading (/) prior to the
performance of the voyage, or at any other period of
time which they may choose to appoint ; but, in all
cases of doubtful construction, the courts will adhere
to the maxim that the freight is not due until it has
been earned by the performance of the work for which
it is to be paid. (^) Where the freight was to be paid
" within three days after the arrival of the ship, and
before delivery of any portion of the goods," and the
ship arrived in port, but was sunk and the goods de-
stroyed within the three days, it was held that the
freight was not payable, (r) If freight is paid in ad-
vance and the cargo is lost, the freight so paid can not
be recovered back, {s) unless the loss has been oc-
(k) Tate V. Meek, 2 Moore, 291. {o) Thompson v. Gillespy, 5 EU. &
Campion v. Colvin, 3 Sc. 350 ; 3 Bing. Bl. 2og ; 24 L. J., Q. B. 340. Hudson
N. C. 17. Pothier, Traite de la v. Bilton, 6 EI. & Bl. 565 ; 26 L. J.,
charte-partie, part I, s. 3,§ 2. Cleary Q. B. 27.
V. M'Andrew, 2 Moo. P. C. N. S. 216. {p) Roelundts v. Harrison, g Exch.
The Soblomsten, L. R., i Adm. 293 ; 444 ; 23 L. J., Ex. 169.
36 L. J., Adm. 5. (q) Mashiter v, Buller, 1 Campb.
(/) Cato V. Irving, 5 De G. & S. 84. Abbott, C. J., Manfield v. Mait-
210, 224; 21 L. J., Ch. 675. land, 4 B. & Aid. 585. Vlierboom v.
[m] Brown v. Tanner, L., R. 3 Ch. Chapman, 13 M. & W. 230.
597 ; 37 L- J. Ch. 923. {r) Duthie v. Hilton, L. R., 4 C. P.
(«) Andrew v. Moorhoiise, 5 Taunt. 138 ; 38 L. J., C. P. 93.
438 ; I Marsh. 122. De Silvale v. (j) Saunders v. Drew, 3 B. & Ad.
Kendall, 4 M. & S. 42. 450. Byrne v. Schiller, L. R., 6 Ex.
319; 4oL- J-, Ex. 177.
Sec. IV.] CONTRACTS FOR CARRIAGE. 691
casioned by negligence, or misconduct, or want of
skill in the navigation of the vessel. If by the occur-
rence of an accident on the voyage delay is occasioned,
the master may claim a reasonable time to carry on
the cargo, either in the same ship when repaired, or by
transhipping it into another vessel. (/)
When the use of the entire vessel is bargained
for, (ii) and the charterer covenants or agrees to pro-
vide and ship a full cargo, and pay freight therefor at
so much a ton, and the shipowner sends out the ves-
sel, the circumstance that the lading has been preven-
ted by some unforeseen cause or inevitable accident
does not release the charterer from- his contract. And,
when the goods have been shipped on board, the
charterer can not abandon them and refuse to pay the
freight on the ground that they have been damaged
or destroyed by perils of the sea, (^x) or by the fault
of the master and crew ; (jj/) rior can he deduct from
the freight the value of missing articles, (^z) When
the charterer merely covenants to pay freight at the
rate of so much a ton, etc., for the goods actually
shipped on board, and does not covenant to furnish
any particular quantity of goods, he is only liable for
the quantity of goods actually shipped ; but, if he con-
tracts for the use of the entire ship, or part of a ship,
or for a certain specified tonnage, the payment of
freight must be proportioned to the amount of ton-
nage, space, or accommodation he has contracted for.
If he covenants to ship on board a full and complete
cargo, and to pay so much a ton for every ton loaded
(/) Cleary v. M 'Andrew, 2 Moo. P. (x) Abbott on Shipping, 380, 381.
C, N. S. 216. 0) Dakin v. Oxley, 15 C. B., N. S.
(«) As to putting cargo in the 646 ; 33 L. J., C. P. 115.
cabin, see Mitcheson v. Nicol, 7 Exch. (z) Meyer v. Dresser, 16 C. B., N.
929 ; and on deck, see Neill v. Ridley, S. 646. 33 L. J., C. P. 289.
9 Exch. 6S0.
692 LAW OF CONTRACT. [Bk. II. Ch. III.
on board, he is bound to put on board and to pay-
freight for as much as the ship will hold and safely
carry, whatever may be the amount of the burthen
and tonnage of the vessel mentioned in the charter-
party. A misdescription of the ship's burthen does
not in such a case exonerate the charterer from the
liability to ship on board, and to pay freight for, a full
and complete cargo, provided the charterer has had an
opportunity of examining the ship, and forming his
own judgment of her capacity, and there has been no
fraudulent misrepresentation or concealment of the
truth, id) Although the charterer has taken the
w^hole ship, and covenanted to provide and put on
board, and pay freight for, a " full and complete cargo,"
yet the shipowner may take on board merchandise as
ballast, provided it occupies no larger space than the
ballast would have done, and does not interfere with
the proper shipment and carriage of the cargo. (<5)
964. Calculation of the freight. — When freight is
covenanted to be paid at the rate of so much per ton
for the goods shipped on board, the freight is to be cal-
culated and paid on that quantity alone which is put
on board, carried throughout the whole voyage, and de-
livered, at the end of it, to the merchant. If, there-
fore, a cargo of corn increases in bulk and weight
during the voyage, or after the cargo is taken out of
the vessel, the freight is payable only on the quantity
actually shipped on board, and not on the increased
quantity delivered ; for such a cargo may be increased
in bulk and deteriorated in quality by the negligence
of the master and crew during the voyage, {c')
(a) Hunter v. Fry, 2 B. &. Aid. (b) Towse v. Henderson, 4 Exch.
424. Thomas v. Clarke, 2 Stark. 893.
450. Barker v. Windle, 6 Ell. & Bl. (c) Gibson v. Sturge, 24 L. J., Ex.
675. 121. Buckle V. Knoop, L. R., 2 Ex.
125, 333 ; 36 L. J., Ex. 4g, 223.
Sec. IV.] CONTRACTS FOR CARRIAGE. 693
965. Payment pro ratd.—\i the covenant or agree-
ment of the shipowner or master be entire for the
conveyance of a full cargo of merchandise for a spe-
cific sum, the charterer is not bound to accept and pay
for half a cargo ; but, if the charterer loads less than a
full cargo, or if part of the cargo is lost without any
default on the part of the shipowner, the whole of the
sum is payable, (d) And, if he agrees to pay by the
bale or cask, or at the rate of so much a ton, he is
bound to accept and pay for what has been actually
brought and tendered to him. (e) He must pay, also,
in all cases, for such goods as he actually accepts ; and,
if he voluntarily accepts goods short of the port of
destination, so as to raise an inference that further car-
riage of the goods was dispensed with, (/") he is lia-
ble upon an implied contract to pay pro rati, itineris
peracti. This apportionment usually happens when
the ship, by reason of some disaster, goes into a port
short of the place of destination, and is unable to pro-
secute and complete the voyage, (^g)
966. Time freight. — When the charterer engages
to pay so much per month, week, or day of the voy-
age, or of the ship's employment, and no time is fixed
for the commencement of the computation, his liabil-
ity for the freight will begin on the day that the ship
breaks ground and commences the voyage, and will
continue during all unavoidable delays for provisions
repairs, &c., not occasioned by the negligence or mis-
conduct of the master or owners. (Ji) The month is
always understood to be a calendar, and not a lunar,
{d) Robinson v. Knight, L. R., 8 C. (/) The Soblomsten, L. R., i Adm.
P. 465; 42 L. J., C. P. 211. The 293; 36L. J., Adm. 5.
Norway, 3 Moo. P. C, N. S. 245. (g) Vlierboom v. Chapman, 13 M.
{e) Christy v. Row, I Taunt. 314. & W. 239.
Ritchie v. Atkinson, 10 East, 295, (h) Havelock v. Geddes, 10 East,
310. 566. Ripley v. Scaife, 5 E. & C. i6g.
694 LAW OF CONTRACT. [Bk. II. Ch. III.
month ; (z) and the freight becomes due in general at
the expiration of each month, or other interval of
time limited by the parties for its payment, whether
the ship does or does not ultimately arrive at her place
of destination. But, w^here the freighter covenanted
to pay freight for a vessel at so much a ton per month
untfl her final discharge, so much of such freight as
might be earned at the time of the arrival of the ship
at her first destined port abroad to be paid within ten
days after her arrival there, and the remainder of the
freight at specific periods, it was held that the arrival
of the ship at her first destined port abroad was a con-
dition precedent to the owner's right to recover any
freight, {k)
967. Shipowner s lien for the freight — Payment
of freight by the consignee. — If the shipowners have
by the charter-party divested themselves of the pos-
session of the vessel in favor of the charterer,
they have, of course, no lien upon the goods shipped
on board, and can not take possession of them and
detain them as a security for the rent or hire agreed to
be paid for the use of the vessel. (/) But, if the
charter-party does not amount to a bailment of the
ship, but the shipowners keep possession of the vessel,
and contract merely to carry merchandise for the
charterer for certain freight, the delivery of the goods,
and the payment of the freight constitute mutual con-
ditions to be performed at the same time, so that the
shipowner may retain the cargo until he is tendered
payment of the freight. (;«)' When, however, by the
(;■) Jolly V. Young, I Esp. 186. (ot) Saville v. Campion, 2 B. &
{k) Gibbon v. Mendez, 2 B. & Aid. Aid. 503. Campion v. Colvin, 3 Sc.
17. Smith V. Wilson, i East. 437. 3S8 ; 3 Bing. N. C. 17. Tate v. Meek,
(/) Hutton V Bragg, 7 Taunt. 14. 2 Moore, 293.
' Dixon on Shipping, § 174; The Eddy, 5 Wall. 493; Du-
Sec. IV.] CONTRACTS FOR CARRIAGE. 695
terms of the contract, credit is given for the payment
of the freight, as, for instance, if it is to be paid a
month or three months after the arrival of the ship,
the carrier must forthwith deliver the goods, and rely-
on the subsequent performance by the charterer of his
contract to pay ; {n) and, if the latter becomes bank-
rupt prior to the arrival of the vessel at the port of
destination, his assignees are entitled to demand the
goods, and the shipowners can not claim any lien upon
them for freight, (d) If the master does not think fit
to insist on his right of detention, but delivers the
goods to the consignee, and the latter afterwards re-
fuses to pay the freight, or pays the master by a bill of
exchange which turns out to be worthless, the master
may resort to the consignor or shipper for payment,
«(/) unless he has for his own convenience and accom-
(«) Alsager v. St. Kath. Dock Co., &e., L. R., i C. P. 689 ; L. J., C. P.
.14 M. & W. 794 ; 15 L. J., Ex. 34. 306.
(tf) Tamvaco v. Simpson, L. R., i (f) Tapley v. Martens, 8 T. R. 453.
C. P. 363 ; 35 L. J., C. P. 196. Fry Shepard v. De Bernales, 13 East, 572.
V. Chartered Mercantile Bk. of India, Domett v. Beckford, 5 B. & Ap. 521.
pont V. Vance, 19 Ho-.v. (U. S.) 168. And not only the owner
ihas a lien, but the seamen have a lien for their wages on the
freight. In Poland v. Brig Spartan (Ware, 134), it was held
that the seamens' lien on the freight was not taken away by
the statute which gave them process against the vessel ; and
that if the vessel was chartered by persons bearing the expense
of victualling and manning her, the lien would attach to
cargo shipped on the charterer's account for a charge in the
nature of freight ; and see Sheppard v. Taylor, 5 Pet. 675;
Brown v. Lull, 2 Sumn. 443 ; Pittman v. Plooper, 3 Sumn. 50.
So, too, the lien against the cargo will attach where the ship
.and cargo belong to the same person, although it has passed
to assignees upon the insolvency of its owner; Poland v Brig
Spartan, Ware, 134; Sheppard v. Taylor, 5 Pet. 675; "and if
the owner receives any freight, whether in full or in part of
what is earned, the whole wages due attach upon it ; for as
the wages are nailed to the last plank of the ship, so also they
are to the last payment of the freight;" Brown v. Lull, 2
Sumn. 443; Pittman v. Hooper, 3 Id. 50, 186.
696 LAW OF CONTRACT. [Bk. II. Ch. IIL
modation preferred a bill when he might have had cash,
(^) Payment to the shipowners on their demand is
a discharge against any claim by the master; and, on
the other hand, payment to the master, in the absence
of any notice from the owners to withhold it, is a valid
payment as against them, (r) The consignee is
prima facie the owner of the goods, and as such, is
liable for the freight ; but, if he be not the owner, he
is not liable for freight simply as consignee, except on
a new contract to pay the freight. If the goods have
always been delivered on payment of freight by the
defendant, that is reasonable evidence that in the par-
ticular case he agreed to pay the freight, (s)
968. Of the liability for freight resulting from
the acceptance of goods under bills of lading. — It has
been held that, if a person receives goods under a bill
of lading in which it is expressed that the goods are
to be delivered to him, he paying freight, he, by im-
plication, agrees to pay freight. (/) The law does not,
however, imply any contract for the payment of the
freight from the delivery and acceptance of less than
the whole cargo, {u) or from the mere fact of the ac-
ceptance of the goods ; but it is for a jury to say
whether the acceptance, coupled with the particular
terms of the bill of lading under which the goods
were received, estabhshes the existence of a contract
on the part of the consignee to pay the freight, {x)
If the consignee receives the goods without any dis-
(7) Strong V. Hart, 5 B. & C. i6o. Bell v. Kymer, 5 Taunt. 477. Gumm
{r) Smith v. Plummer, I B. & Aid. v. Tyrie, 33 L. J., Q. B. 97 ; 34 ib^
575. Atkinson v. Cotesworth, 3 B. & 124; 6 B. & S. 299.
C. 6.(8. («) Young v. Moeler, 5 Ell. & BI.
(.r) Coleman v. Lambert, 5 M. & 762 ; S. C. nom. MoUer v. Young,-
W. 505. 25 L. J.,Q. B. 94.
(/) Cock V Taylor, 13 East, 403. (;r) Zwilclienbart v. Henderson, g*
Wilson V. Kymer I M. & S. 157. Exch. 722 ; 23 L. J., Ex. 234.
Sec. I v.] CONTRACTS FOR CARRIAGE. 697
claimer of his liability, and there is no reference on the
face of the bill of lading to any charter-party whereby
the consignor has contracted to pay the freight, the
presumption is that the consignee has agreed to pay
it ; but when the bill of lading provides for the pay-
ment of the freight as per charter-party, and the con-
signor has contracted by such charter-party for the
payment of the freight, it does not necessarily follow
that the consignee, by accepting the goods under the
bill of lading, has himself contracted to pay it, although
he is generally considered so io do. The contract for
the payment of the freight inserted in the charter-
party does not run with the property in the goods, and
is not transferred with it so as to throw the burden of
performance upon the parties into whose hands the
goods come by indorsement of the bill of lading. But
it has been so much the practice for the indorsee of
the bill of lading to pay the freight which the con-
signor or charterer has by the charter-party, contracted
with the shipowner to pay, that the acceptance of the
goods by such indorsee without any disclaimer of his.
liability is evidence of a new contract and a new agree-
ment for the payment of the freight mentioned there-
in, the consideration for which is the delivery of the
goods to him at his request ; (jj/) and if such new con-
tract is established, the remedy for the freight on the
bill of lading against the consignee or his assignee co-
exists with the remedy against the original consignor
or charterer upon the charter-party, {z) Where a
charter-party, stipulating for freight in a lump sum of
^2,800 in full of all charges, contained the following
clause, "The captain to sign bills of lading at any rate
of freight without prejudice to this charter," it was held
(y) Sanders v. Vanzeller, 4 Q. B. (z) Christy v. Row, I Taunt. 30(X
295. Kemp V. Clark, 12 Q. B. 647. Shepard v. De Beinales, 13 East, 565-
698 LAW OF CONTRACT. [Bk. II. Ch. III.
that, so long as the goods shipped remained the prop-
erty of the charterers or of their agents, they were
liable to the lump freight, and the shipowners had a
lien for it, but that the shipowners might be bound to
deliver the goods to a boni fide holder for value of
the bill of lading upon payment of the freight men-
tioned in the bill of lading, (a) The master has no
authority to draw bills of lading making the freight
payable otherwise than to the owner. (^) If the
axnount of the freight is specified on the face of the
bill of lading, it is, in general, conclusive between the
parties, (c) Where, therefore, a mere nominal rate of
freight was provided to be paid by the bill of lading,
the shipowner being also owner of the cargo, it was
held that a subsequent mortgagee of the ship and
freight could not charge the assignee of the bill of
Jading the current rate of freight, but was confined to
the nominal freight specified on the face of the bill of
lading, (a') If the receiver of the goods appears on
the face of the bill of lading to be an agent acting on
behalf of a known principal who is the consignee, the
principal and not the agent is then liable for the freight.
{e) But if the agency is undisclosed, and the princi-
pal has given the agent no authority to pledge his
credit for the payment of the freight, and the goods
never reach the hands of the principal, the latter can
not be made responsible for the amount of the freight ;
(/) and the agent who actually received the goods
under the bill of lading is then the party to be pro-
fa) Gledstanes v. Allen, 12 C. B., 278,
202. (d) Brown v. North, 8 Exch. i ; 22
(i) Reynolds v. Jex, 34 L. J., Q. B. L. J., Ex. 49.
251- (t) Amos V. Temperley, 5 JW. & W.
(c) Foster v. Colby, 3 H. & N. 715 ; 805.
28 L. J., Ex. Bl. Shand v. Sander- (/) Tobin v. Crawford, g M. & W.
-^on, 4 H. & N, 389; 28 L. T.. Ex. 71B.
Sec. IV.] CONTRACTS FOR CARRIAGE. 699
ceeded against, {g) Where a bill of lading represented
the freight of goods to have been paid, when, in fact, it
had not been paid, it was held by the court that, though
such representation was, not conclusive as between
the shipper of the goods and the shipowner, yet, as
against an endorsee for value of the bill of lading
without notice, the freight must be held to have been
paid. (/?)
Where, by the terms of the charter-party, the ship
is let for a particular voyage, and the charterers are to
pay the shipowners a lump freight for the whole voy-
age, and the master, at the request of the charterers, is
to make bills of lading at any rate and payable in any
manner the charterers may choose, without prejudice to
the charter, this gives to the charterers the direct man-
agement as to the terms on which the bills of lading
are to be signed. And, when it is once shown that
the master was, in fact, acting for the charterers, and
this is made known to the shippers, the charterers
are entitled to recover the freight under the general
authority which the shipov^ners have conferred upon
them, (z)
969. Stipulated payments in lieu of freight ex-
tinguishing the right of lien. — When it is stipulated
that a certain specified sum of money shall be paid in
respect of goods shipped on board a particular vessel
within a certain specified period after the sailing of the
vessel, whether the goods shall then have been con-
veyed to their place of destination or not, or whether
they shall ever be so conveyed or not, and to secure
{g) Dougal V. Kemble, 3 Bing. 383 ; (O Marquand v. Banner, 6 Ell. &
II Moore, 250. Bl. 245 ; 25 L. J., Q. B. 313. Kern
(h) Howard v. Tucker, I B. & Ad. v. Deslandes, 10 C. B., N. S. 205 ; 30
712. Kirchner v. Venus, 12 Moore, L. J., C. P. 297.
P. C. 399.
700 LAW OF CONTRACT. [Bk. II. Ch. III.
this arrangement the amount is made payable by the
shipper, the sura stipulated to be paid is not freight,
but a payment in lieu of freight. In this case there is
no lien upon the goods to secure the payment, neither
the consignee nor his goods being liable for the pay-
ment of the sum stipulated to be paid, which is held
to be not freight, but a remuneration for receiving the
goods with a qualified contract for conveying them,
and not a reward for actual conveyance, (y^) But
parties who have by special contract superseded- the
rights and obligations which the law attaches to freight
in its legal sense, may, if they think fit, create a lien on
the goods for the performance of the agreement into
which they have entered ; and they may do this, either
by express conditions contained in the contract itself
or by agreeing that, in case of failure of performance
of that agreement, the right of lien for what is due
shall subsist as if there had been an agreement for
freight ; and the usage of the place where the contract
was made may be annexed to the contract so as to
create a lien, provided both parties were cognizant of
the usage at the time they made their contract. (/)
970. Retainer of goods in the Queens warehouse
for freight. — By the 22 & 23 Vict. c. 37, s. 2, any
officer of the customs, having the charge or custody of
any goods which shall have come to his hands under
the laws relating to the customs, is authorised and em-
powered to refuse delivery thereof from the Queen's
warehouse or other place in which the same shall be
deposited, until proof shall be given to his satisfaction
that the freight due upon such goods has been paid.
971. Payment of demurrage on charter-parties
and bills of lading. — Where the charter-party is silent
{k) Howv. Kirchner, ii Moore, P. f/) Kirchner v. Venus, 12 Moore,
C. 2V P. C. 398.
Skc. IV.] CONTRACTS FOR CARRIAGE. 701
as to the time to be occupied in the discharge, the
contract implied by law is that each party will use
reasonable diligence in performing that part of the
delivery which, by the custom of the port, falls upon
him ; and there is no.implied contract by the shipowner
that the discharge shall be performed in the time
usually taken at the port, (m) The charterer usually
covenants or promises to load or unload the vessel
within a certain time, or, if he fails so to do, to pay so
much per diem during the delay. This payment, as
well as the delay itself, is called in mercantile and
legal phraseology, demurrage. The charterer can not
escape from liability upon his express covenant or
promise to pay demurrage, by showing that the delay
was occasioned by some unforeseen event not provided
for by the contract, such as the crowded state of the
docks, the delays of Custom-house officers, or the in-
clemency of the weather, (n) or the neglect of the
holders of the bill of lading to present it and claim
the goods, (o) But, if the delay is occasioned by the
wrongful and unauthorized interference of the ship-
owner himself with the unloading of the cargo, the
detention is not then the detention of the charterer,
and the shipowner can not claim demurrage in respect
thereof (^fi) The lay days count in general from the
time the vessel arrives in the dock, and is in the man-
agement of the dock company's or harbor-master's
officers ; (^) and when neither is to blame for delay,
the number of days run from the time when the ship
is in a dischargeable state ; and if no period is men-
tioned, the cargo is to be discharged in a reasonable
{m) Ford v. Cotesworth, L. R., 4 (0) Erichsen v. Barkworth, 3 H. &
<2. B. 127 38 L. J., Q. B. 52. N. 894 ; 28 L. J., Ex. 95.
(«) Blight V. Page, 3 B. & P. 295, n. (p) Benson v. Blunt, I Q. B. 870.
Barret v. Dutton, 4 Campb. 333, (?) Tapscott v. Balfour, L. R., 8
C. P. 46 ; 42 L. J., C. P. 16.
702 LAW OF CONTRACT. [Bk. II. Ch. III.
time, to commence from the time when the ship is in
a state to begin delivering, (r) Where ^5 per diem de-
murrage was stipulated to be paid, " to reckon from the
time of the vessel being ready to unload, and in turn,
to deliver," it was held that the words "in turn to de-
liver " applied to the public rules and regulations of
the port of discharge, and that the charterers were not
liable for the payment of demurrage until their " turn
to deliver " had come, in conformity with the regula-
tions of the port, {s) If, after the loading has been
completed, the vessel is detained by a sudden frost, (J)
or by foul weather and contrary winds, no right to de-
murrage arises by reason of such detention, (ti)
The days mentioned in the clause of demurrage
are understood, it is said, by the custom of the port
of London, to be working days, and do not, conse-
quently, include Sundays and Custom-house holi-
days, (v) There does not, however, appear to be any
general custom to this effect, (jj/) The lay days allowed
are, moreover, to be reckoned from the time of the
ship's arrival at the usual place of discharge, and not
from her arrival at the entrance of the port, although
for the purposes of navigation she may have discharged
a portion of her cargo at the entrance of the port. (^) If
the parties, by mutual consent, substitute a new port
for the port mentioned in the contract of affreight-
ment, the freighter will be entitled to the lay days,
and the shipowner to the demurrage, stipulated for by
(r) Brown v. Johnson, i Car. & («) Jamieson v. Laurie, 6 Bro. P..
Marsh. 440 ; 10 M. & W. 331. C. 474,
(s) Robertson v. Jackson, 2 C. B. (v) Cochran v Rctberg, 3 Esp. 121..
412 ; 15 L. J., C. P. 28 Taylor v. (y) Brown v. Johnson, 10 M. & W.
Clay, 9 Q. B. 713. Leidemann v. 334.
Sthultz, 14 C. B. 51. But see Lawson {z) Brereton v. Chapman, 7 Bing..
». Burne.ss, i H. & C. 396. 559. Kell v. Anderson, 10 M. & W.
(t) Pringle ,. Molleit, 6 M. & W. 498. Bastifell v. Lloyd, i H. & C-.
83. 388 ; 31 L. J., Ex. 413.
Sec. IV.] CONTRACTS FOR CARRIAGE. 703
the original contract, (a) If a consignee accepts
goods under a bill of lading, at the bottom of which
is a memorandum, to the effect that the ship is to be
cleared within a certain time, and that demurrage, at
the rate of so much per diem, is to be paid after that
day, he will be liable for the payment of such demur-
rage, and may be sued therefor by the master ; (J)) but
he is not responsible to the master for demurrage if no
such clause is contained in the bill of lading, (c) or if
the delay is caused by the master's improperly refusing
to deliver the whole cargo, (d) Where, by the bill
of lading, the vessel is to be unloaded in her regular
turn, the consignor is liable for her detention beyond
her regular turn, although there is no express contract
for demurrage in the bill of lading, (i)
972. Primage and avera.ge. — The freighter whose
merchandise has been conveyed to the port of desti-
nation is also liable for the payment of certain cus-
tomary charges called primage and average. The first
is a small customary payment 'to the master for his
trouble, and the second consists of several petty
charges, such as towage, beaconage, pilotage, &c. (/")
973. General average and contribution. — By the
ancient laws of the Rhodians it was provided that, if
several persons had laden goods on board a ship to be
carried for hire, and the goods of one of them were
thrown overboard in a storm to lighten the vessel and
save her from perishing, the loss incurred for the sake
(a) Jackson v. Galloway, 6 So. 792. (d) Young v. Moeller, 5 Ell. & Bl.
{b') Jesson v. Solly, 4 Taunt. 54. 762. S. C. nom. MOUer v. Young, 25
Stindt V. Roberts, 17 L. J., Q. B. 166 ; L. J., Q. B. 94.
12 Jur. 518. Wegener v. Smith, 15 (e) Cawthion v. Trickett, 15 C.
C. B. 2S5 ; 24 L. J., C. P. 25. B., N. S, 754 ; 33 L- J-, C. P. 183.
(c) Brouncker v. Scott, 4 Taunt, i. And see Shadforlh v. Cory, 32 L. J., Q.
Smith V. Sieveking, 5 Ell. & Bl. 589 ; B. 379.
24 L. J., Q. B. 257. Chappell v. (/) Abbott, 404. Pothier (Avaries),
Comfort, 10 C. B., N. S. 802 : 31 L. J., No. 147.
C. P. 58.
704 LAW OF CONTRACT. [Bk. II. Ch. III..
of all should be made good by the contribution of
all. {g) This equitable rule of law was adopted by
the Romans, and has been introduced into the mari-
time code of continental Europe. It is said to have
been engrafted upon our own common law by the
Normans, and has certainly existed as a custom
amongst merchants in this country from a very early
period. The obligation to contribute, which is deemed
by the common law to be tacitly entered into by
the shipowners and owners of the cargo, i's called gen-
eral or gross average ; and the parties subject thereto
are bound to contribute rateably according to the
value of their several proportions of the property
saved. The law of contribution is thus explained by
Domat in his Treatise on the Civil Law : — " When, in
order to lighten a ship in peril of shipwreck, part of
the cargo is cast into the sea, and the ship by that
means is saved, this loss is common to all those who
have anything to lose in that peril. Thus the master
of the ship, all those whose merchandise or effects
have been saved, and those whose goods have been
thrown overboard, will each bear their share of the
loss, in proportion to the share they had in the whole.
If, for example, the ship and the whole cargo were
worth 100,000 crowns, and that which was cast over-
board was worth 20,000 crowns, the loss being a fifth,
each will contribute a fifth part of the value of what
he has saved, which will make in all 16,000 crowns ;
and by this contribution, those who lost the 20,000
crowns, in recovering 16,000, will remain losers only
of a fifth part, like the rest." (A)
(g) Dig. lib. 14, tit. 2, lex I, De Code de Commerce, liv. 2, tit. II,
lege Rhodi^. Pothier, Traite des Des Avaries.
Avaries, Partie 2, ed. Dupin, 371. {h) Domat, les Lois Civilcs, liv. 2,
tit. 9, 3. 2, 6.
Sec. IV.] CONTRACTS FOR CARRIAGE. 70s
Everything saved pays contribution according to
its value ; the shipowner contributes in proportion to
the value of the ship and furniture, except the pro-
visions of the passengers and crew, (z) and the pas-
sengers and owners of goods shipped on board in pro-
portion to the value of the property they save, ex-
cepting the clothes on their backs, but not excepting
their wearing apparel and jewels deposited on
board, (k) The freight and earnings of the ship, after
•deducting the wages of the master and crew and other
expenses of the voyage, likewise form the subject of
contribution and general average ; and, if a ship be
chartered out and home for one entire and indivisible
sum for the use of the ship out and home, the entire
freight for the outward and homeward voyage must,
when ultimately earned, contribute to the loss, whether
the loss has occured upon the outward or the home-
ward voyage. (/) Goods stowed upon the deck of
the vessel, and thrown overboard during a storm, are
not excluded from the benefit of general average and
contribution, unless it be shown that the lading was
improper and calculated to impede the navigation of
the vessel, and increase the risk of the voyage, (m)
To establish a claim for general average, it must
be shown that the goods were thrown overboard in a
moment of distress and danger, with a view of pre-
serving the ship and cargo ; if they have been washed
out of the ship by the violence of the waves, or have
been damaged or destroyed by lightning or tempest,
or have been unnecessarily cast overboard by the mas-
(0 Brown v. Stapyleton, 4 Bing. (J) Williams v. Lond. A. Co., I M.
119. & S. 325.
(k) Pothier, Avaries, art 3. By the {m) Milward v.. Hibbert, 3 Q. B.
civil law, wearing apparel was made I20, 137. Gould v. Oliver, 2 Sc. N.
to contribute towards the general R. 241. Johnson v. Chapman, 19 C.
average. Dig. lib. 14, tit. 2, Lex 2, § 2. B., N. S., 563 ; 35 L. J., C. P. 23.
Jl — 45
7o6 LAW OF CONTACT. [Bk. II. Ch. III.
ter, or crew, or passengers, the loss will not support a
claim for general average. («) If the masts and
cables of the vessel have been cut away for the purpose
of preventing shipwreck, the owners of the cargo must
contribute towards the loss of the shipowner ; but, if
they are blown away, or injured in consequence of the
necessity of carrying a great and unusual press of can-
vas to escape a threatening danger, or if the ship was
not seaworthy at the commencement of the voyage,
and the loss was occasioned by reason of such unsea-
worthiness, the loss is not the subject of contribution
and general average. (^) If a ship accidentally runs
foul of another ship in a fog or storm, and the master
is compelled to cut away his rigging in order to pre-
serve the ship and cargo, and is obliged to put into
port to repair and renew that which has been sacri-
ficed, the expense of re-landing and warehousing the
cargo, and of the repairs, so far as they are absolutely
necessary to enable the ship to prosecute the voyage,
form the subject of general average. (/)
If part of the cargo has been taken out and put
into lighters, to enable a stranded vessel to be got
afloat and sent into port for repairs, the whole expense
of the operation, which is for the common benefit of
ship, goods, and freight, forms the subject of general
average ; (y) ^ but not, as a general rule, expenses in-
(k) Mouse's case, 12 Co. 63. Dob- 2, tit. 19, s. 2, 11.
son V. Wilson, 3 Campb. 486. Pothier, {/>) Plummer v. Wildman, 3 M. &
Part 2, a. 2, art. i. S. 482, qualified by Hallett v. Wig-
{0) Birkley v. Presgrave, i East, ram, 9 C. B. 601 ; 19 L. J., C. P. 288.
220. Covington v. Roberts, 5 B. & P. Hall v. Janson, 4 Ell. & Bl. 508.
379. Power V. Whitmore, 4 M. & S. Harrison v. Bank of Australia, L. R.,
149. Schloss V. Heriott, 14 C. B., 7 Ex. 39 ; 41 L. J., Ex. 36.
N. .S. 59; 32 L. J., C. P. 211. Dig. (y) Moran v. Jones, 7 Ell. & BI.
lib. 14, tit 2, lex 3, lex 5. Doraat, liv. 533 , 26 L. J., Q. B. 187.
' Whittridge v. Norris, 6 Mass. 125; Lewis v. Williams, 1
Sec. IV.] CONTRACTS FOR CARRIAGE. 707
curred after the cargo has been safely discharged
and warehoused for the purpose of saving the ship
alone, (r)
If it is necessary to lighten the ship to enable her
to get into a port of safety, and a portion of the cargo
is taken out for the purpose and put into lighters, and
the lighters perish ere they reach the shore, the loss
will be common, and the owners of the residue of the
cargo must contribute thereto, as it was for the gene-
ral benefit that the discharge was made. But, if the
ship is cast away and the lighter gets safe to port,
there is then, it is said, no contribution, but each must
bear his own loss. If a ship that has been saved from
one danger of shipwreck by throwing some of the
goods overboard, is afterwards sunk in another place,
and a portion of the cargo is recovered from the wreck,
the owners of the cargo so recovered must contribute
to make up the loss of those whose goods were thrown
overboard for the purpose of avoiding the first peril,
as the goods recovered might then have perished but
for the sacrifice of the things thrown overboard to es-
cape it. But, if he whose goods were thrown overboard
at first, happens afterwards to recover them, he shall
not contribute towards the subsequent loss, as that loss
has m nowise contributed to the safety of the goods so re-
covered. If by reason of a jettison of goods, some por-
tions of the residue of the cargo have been exposed and
injured, this injury must, by the civil law, be made
good by contribution. The owner of the damaged
goods himself contributes towards the total loss ac-
(r) Job V. Langton, 6 EU. & Bl. 792 ; rojani, L. R., 5 Ex. 116; 39 L. J.,
26 L. J., Q. B. 97. Walthew v. Mav- Ex. 81.
Hall, 430; The Nathaniel Hooper, 3 Sumner, 542; Hayliger
V. Fireman's Ins. Co. 11 Johns. 85.
7o8 LAW OF CONTRACT. [Bk. II. Ch. III.
cording to the actual value of such goods after the in-
jury, and is then entitled to contribution in respect of
his own partial loss, (.y) It has been held that the ex-
penditure of ammunition in resisting capture by a
privateer, the damage done to the ship in the combat,
and the expense of curing the wounded, are not the
subject of contribution and general average. The cor-
rectness of this decision, however, may be doubted,
opposed as it is to the opinions of some of the most
eminent writers on maritime law, and to the acknowl-
edged principle of contribution. (^) By the civil law,
the goods cast overboard were valued only at their in-
voice price or prime cost. " A practice formerly pre-
vailed in this countiy to adopt this valuation if the
loss happened before half the voyage was performed ;
but if it happened afterwards, then to value the goods
at the clear price which they would have fetched at
the place of destination. The last valuation is now
adopted in all cases where the average is adjusted
after the ship's arrival at the place of destination.
But if the ship is compelled to return to its port of
lading, and the average is immediately adjusted, the
goods only contribute according to the invoice price,"
(u) or even less, if in all probability they would have
arrived in a damaged state, the general rule being that
the value of goods jettisoned is to be taken to be the
sum which it may fairly be assumed they would have
been worth to the owner at the port of adjustment.
(x) As soon as the average has been calculated, and
(j) Dig. lib. 14, tit 2, lex 4, § 1, 2, 7. 337. Benecke, 280. Pothier (Avaries),
Domat. liv. 2, tit. 9, s. 14 (Avaries), s. 2, No. 144.
No. 145. Pothier, des Avaries, art. («) Abbott, Contribution.
4- (jt) Fletcher v. Alexander, L. R., 3
(/) Taylor v. Curtis, 6 Taunt. 608. C. P. 375 ; 37 L. J., C. P. 193.
lb. 638 — 643. Phillips on Insurance,
Sec. IV.] CONTRACTS FOR CARRIAGE. 709
the exact amount of contribution ascertained, an action
may be brought for its recovery, (jv) '
974- -Damages for breach of charter-parties. — The
(j) Birkley V. Presgrave, i East, Schloss v. Heriott, 14 C. B., N. S. 59 ;
220. See the form of declaration, 32 L. J., C. P. 214.
' " The main characteristic of a general average," says
Dixon on Shipping, § 546, " is that it is the intentional result
of the act of man, not immediately the physical effect of the
perils insured against. A storm arises ; the ship is making
water with every sea, or drifting in upon rocks and breakers,
and in imminent peril of being lost. If goods are thrown
overboard to lighten her, or masts cut away to bring her up,
the damage is a general average loss. If, instead of this, the
goods are washed out by the waves, or the mast snapped
asunder by the wind, the loss falls entirely on the owner of
the property damaged ; and if he be insured, is the basis of a
claim against his insurers in partial loss." And consult as to
what may be proper cases for general average, the recent
adjudications in McLain v. Cummings, 73 Pa. St. 98; The Mil-
waukee Belle, 2 Biss. 197; The Congress, i Id. 42; Fowler v.
Rathbone, 12 "Wall. 102; Bales of Cotton, 8 Blatchf. 221;
Fitzpatrick v. Bales of Cotton, 3 Ben. 42 ; Jones v. Bridge, 2
Sweeney, 431; Star of Hope, 9 Wall. 203; Rathbone v.
Fowler, 6 Blatchf. 294. When the wages, provisions, and
other expenses of a voyage to a port of necessity may con-
tribute to a general average, see Thornton v. United States
Ins. Co., 12 Me. (3 Fairf) 150; Potter v. Ocean Ins. Co.,
3 Sumn. 27 ; Walden v. Leroy, 2 Caines, 262 ; Henshaw
V. Marine Ins. Co., Id. 247 ; Parker v. Phoenix Ins. Co., 8
Johns. 307 ; Rogers v. Murray, 3 Bosw. 357 ; The Mary, i
Sprague, 17; Leavenworth v. Delafield, i Caines, 573; Bed-
ford Ins. Co. V. Parker, 2 Pick. i. But sailor's wages and pro-
visions are not liable for repairs and demurrage; Wight-
man V. McAdam, 2 Brev. 230; Dunham v. Commercial Ins.
Co., II Johns. 315; McBride v. Marine Ins. Co., 7 Id.
431. But the expense or loss must have been intended to
save and preserve the remaining property, and have been
successful in so doing. Williams v. Suffolk Ins. Co., 3 Sumn.
510. Everything is to be estimated in the general average
as it is at the time ; Maggrath v. Church, i Caines, 196;
whether it be exposed to the actual risk or not, so long as it
has a common interest with the rest; Nelson v. Belmont, 21
N. Y. 36. And the expenses of a trial and appeal in a
7IO LAW OF CONTRACT. [Bk. 11. Cii. III.
measure of damages for the breach of the ordinary
contract or covenant in a charter-party to procure and
ship a cargo and pay freight^ is to be ascertained by
calculating the freight to be earned, and deducting the
expense which the shipowner would have been put to,
but did not incur, in earning it, and also what the ship
earned (if anything) during the period which would
have been occupied in performing the voyage if the
charter-party had been fulfilled, (z) If, subsequently
to the breach of contract, the shipmaster has been
offered a cargo and has refused it, or has neglected an
opportunity of receiving cargo and earning freight, the
measure of damages will be the amount of freight
agreed to be paid, minus what the ship-master
might have earned if he had thought fit. (a) When
goods shipped on board have been sold at an inter-
mediate port to defray expenses necessarily incurred
in repairing the vessel, the shipper is not entitled to
claim the price they might have realized at the port
of delivery unless the ship and cargo arrived there in
safety, (d) ^
{:) Smith V. M'Guire, 3 H. & N. (a) Harries v. Edmonds, iC.&K. 686.
567 ; 27 L. J., Ex. 465. Wilson v. (i) Atkinson v, Stephens, 21 L. J.,
Hicks, 26 ib. 442. Ex. 333.
foreign court will constitute a general average loss; Dorr v.
Union Ins. Co., 8 Mass. 494; but medical attendance for a
sailor on the ship; Reed v. Canfield, i Sumn. 195; Nevitt v.
Clark, 01c. Adm. 316; a master's commissions or disburse-
ments ; Dodge v. Union Ins. Co. 17 Mass. 471 ; or foreign ex-
cliange (Id.) may not. The question as to whetlier a voluntary
stranding of a vessel is a case for general average, is answered
in the negative in Meech v. Robinson, 4 Whart. (Pa.) 360 ; and
affirmatively in Mutual Safety Ins. Co. v. Cargo Brig George,
Olc. Adm. 89; Gray v. Wain, 2 Serg. & R. 229 ; Cozr v. Rich-
ards, Id. 237 ; and see Bradhurst v. Columbian Ins. Co., 9
Johns. 9; and cases cited at the commencement of this note.
' AnU, § 939.
It is tlie master's duty to sell a cargo at a port of neces-
Sec. IV.] CONTRACTS FOR CARRIAGE. 711
975- Restrictions on the carriage of dangerous
goods. — By the 36 & 37 Vict. c. 85, s. 25, the master or
owner of any vessel may refuse to take on board any
package or parcel which he suspects to contain goods
of a dangerous nature, and may require it to be opened
to ascertain the fact. By s. 26, where any dangerous
goods {c) or any goods which, in the judgment of the
master or owner of the vessel, are of a dangerous
nature, have been sent or brought aboard any vessel
without being marked or without notice being given
as required by the Act, (d) the master or owner of the
vessel may cause such goods to be thrown overboard,
(<:) That is, aquafortis, vitriol, of the package, and written notice of
naphtha, benzine, gunpowder, lucifer- their nature and of the name and ad-
matches, nitro-glycerine, petroleum, dress of the sender or carrier must be
or any other goods of a dangerous given at or before the time of sending
nature, sect. 23. the same to be shipped, or taking the
(rf) By sect. 23, the nature of the same on board the vessel,
goods must be marked on the outside
sity, whether this be the original port of the shipment to
•which the ship may have returned, or any intermediate port
at which the ship arrives ; and this he may do, in the absence of
instructions from the shipper, even though the cargo may
be in a condition to be carried in specie to the port of destina-
tion and tliere landed. Jordan v. Warren Ins. Co., i Story,
342. In case of shipwreck, the sale is on the ground that it is
a, legal necessity, and not that it is best for all concerned.
Bryant v. Commonwealth Ins. Co., 13 Pick. 543. But see as
to the sale, Searle v. Scovell, 4 Johns. Cas. 218 ; Saltus v. Ocean
Ins. Co., 12 Johns. 107 ; American Ins. Co. v. Center, 4 Wend.
52 ; Hall V. Franklin Ins. Co., 9 Pick. 478 ; Treadwell v. Union
Ins. Co., 6 Cowen, 270; Jordan v. Warren Ins. Co., i Story,
C C. 342. A sale is, however, the last thing that the master
should think of, and is only justified by a necessity which
supersedes all human laws; Dixon on Shipping, § 160; and
the master has no right to sell the cargo because the
whole can not be sent on ; Id. § 166 The owners of the cargo
so sold have a lien upon the vessel for its value. Id. § 165.
And persons buying under such circumstances do not acquire
a title as against the owner, but must answer to him for the
712 LAW OF CONTRACT. [Bk. II. Cii. III.
together with any package or receptacle in which they
are contained ; and neither the master nor the owner
of the vessel will be subject to any liability in respect
of such throwing overboard. '
976. Carriage of passengers and merchandise by
land by parties not being common carriers — Injuries
to passengers and goods. — All persons who undertake
the work of carrying passengers by land for hire im-
pliedly warrant their vehicles, horses, harness, and
equipments to be roadworthy, in good traveling order,
and reasonably secure and sufficient in strength for
the accomplishment of the journey, so far as that con-
dition of things can be secured by the exercise of skill
and foresight ; but the carrier does not warrant that
they shall be perfect for their purpose ; and, therefore,
he is not responsible for a defect in the vehicle, the
existence of which no skill, care, or foresight could
have detected, {e) As the work of driving is a work
of skill, the carrier or coach-proprietor impliedly
undertakes, if he drives himself, that he is possessed
of, and will exercise, competent skill and knowledge
of driving. If, on the other hand, he accomplishes,
the work through the medium of inferior agents and
servants, he impliedly undertakes to provide fit and
proper persons to execute the office. If the driver
overloads the carriage, or drives with immoderate
speed, or with defective reins, or with reins so loose
(e) Barns v. Cork & Bandon Rail. he.id v. The Midland Ry. Co., L. R.,
Co., 13 Ir. C. L. R. 546. Christie v. \ Q. B. 379; 38 L. J., Q. B. 169..
Griggs, 2 Campb. 81. Sharp \. Grey, Francis v. Cockerel], L. R., 5 Q. B.
9 Bing. 457 ; 2 M. & Sc. 620. Read- 154 ; 39 L. J., Q. B. 291.
value; Id. §160; Everett v. Saltus, 15 Wend. 474; Dodge v.
Union Ins. Co., 17 Mass. 478; Whitney v. Fireman's Ins.
Co., 18 Johns. 208.
' See § 288, Revised Statutes of the United States, printed
ante, on p. 686 of this vohime,
Sec. IV.] CONTRACTS FOR CARRIAGE. 713
that he can not readily command his horses, or if he
passes unnecessarily along unsafe parts of the road, or
through narrow gateways or dangerous passages, or
takes the wrong side of the road, and a collision
occurs, the proprietor of the carriage will be answer-
able for injuries sustained by the passengers. (/")
And if, from the negligence or recklessness of the
driver, or defects in the carriage, harness, or equip-
ments, the passenger is placed in so perilous a situa-
tion as to render it advisable for him to leap to the
ground to avoid a greater peril reasonably to be appre-
hended, and he sustains an injury in so doing, the
coach proprietor is answerable therefor, (^g) In de-
termining the question of negligence in cases of col-
lision, the law Or custom of the road as to passing
vehicles is to be taken into consideration ; but it does
not follow that a person who neglects that custom,
and is on the wrong side of the road when a collision
takes place, is necessarily guilty of negligence. " Cir-
cumstances may frequently arise where a deviation
from what is called the law of the road would not
only be justifiable, but absolutely necessary." (^)
Every person who receives goods to be carried
from one place to another is bound to provide tar-
paulins and proper " covering to protect the goods
from injury by rain." (z)
977. Loss of goods or money by the way. — A per-
son who receives things to be carried by him for hire
to a certain destination can not set up a mere loss of
them by the way as an answer to an action for the
non-delivery of them according to his contract.^
(/) Aston i. Heaven, 2 Esp. 536. (/<) Wayde v.Lady Carr,2 D.&R.256.
Bremner v. Williams, i C. & P. (0 Webb v. Page, 6 Sc. N. R. 957 ;
A\t 6 M. & Gr. 204. Walker V, Jackson, 10
■ (^) Jones V. Boyce, i Stark. 493. M. & W. 168.
' Ante, §§ 953, 954,958-
714 LAW OF CONTRACT. [Bk. II. Ch. III.
Where the plaintiff delivered to the defendant ^3, to
be carried to South wark, for reasonable hire and re-
ward, it was held that the law would imply a promise
from the defendant " safely to convey " the money,
although he was not a common carrier, and although
no sum certain had been agreed to be paid him as the
price of the carriage, {k) And, where a traveler
hired a cab for the conveyance of himself and his lug-
gage to a railway station, and the luggage was placed
on the outside of the cab, it was held that the law
would imply from the acceptance of the luggage by
the cabman, to be carried, together with the passen-
ger, for hire, a promise from him "safely and securely"
to carry it, and that he was responsible for the loss of
a portion of it by the way. (/) ' This promise to
carry safely, which the law implies from all persons
who undertake the carriage of goods for hire, is not
understood to mean that the goods shall be carried
and delivered safe at all events, but that they shall be
kept safe from all such hazards and contingencies as
might have been foreseen and guarded against by the
exercise of vigilance or skill. The contract is " a con-
tract to carry safely and securely as far as regards the
neglect of the carrier himself and his servants, but not
to insure the safety of the goods ;" and the carrier
therefore would not be liable for losses by robbers, or
any taking by force ; but he is prim^ facie responsi
ble for a secret theft of them, and can only discharge
{k) Rogers v. Head, Cro. Jac. 262. (/) Ross v. Hill, 2 C. B. 877; 15
Matthews v. Hopping, i Keb. 852. L. J., C. P. 182.
' Peixotti V. McLaughlin, i Strob. 468 ; Dickinson v. Win-
chester, 4 Cush. 115; and this although the consideration for
the passenger's carrying was that he should put up at a cer-
tain hotel, whose proprietor was proprietor of the convey-
ance ; Dickinson v. Winchester, supra.
Sec. IV.] CONTRACTS FOR CARRIAGE. 715
himself from liability by proving his own care and
watchfulness and blamelessness in the matter.'
Where the defendant received eleven boxes of
gold dust, under a special contract to carry them and
deliver them at the Bank of England, " robbers and
dangers of the road excepted," and one of the boxes
was secretly stolen, it was held that the defendant was
responsible for the loss; that a secret theft or pilfering
was not within the exception as to robbers, nor was it
a danger of the road within the meaning of the con-
tract, (m) If the owner accompanies the goods to
take care of them, and loses them himself, the carrier
is not responsible for the loss. («) But, if the goods
are actually bailed or delivered into the hands of the
carrier, under a stipulation that the owner's servant
shall accompany them, " the carrier accepting no re-
sponsibility," the latter will still be liable for the con-
sequences of his own negligence, {d)
978. Who is to be deemed a common carrier. — Every
person who plies with a carriage by land, or a boat or
vessel by water, between different places, and professes
openly to carry passengers and goods for hire, is a
common carrier.^ Such are railway companies, who
{ni) De Rothschild v. R. M. St. P. (o) Martin v. The Great Indian
Co., 7 Exch 734 ; 21 L. J., Ex. 273. Pen. Ry. Co., L. R., 3 Ex. 9 ; 37 L.
(«) Brind v. Dale, 8 C. & P. 209, J., Ex. 27.
211 ; 2 M. & Rob. 80.
' Ante, §§ 953, 9S4-9S8.
'' A person who undertakes, though only on that partic-
ular occasion, to carry for hire, without special contract, incurs
the responsibility of a common carrier; Moss v. Bettis, 4
Heisk, 661 ; but see Fish v. Clark, 49 N. Y. 122. One who
has never assumed or oifered to carry chattels of a certain
class, except upon special terms, is not liable, as a common
<;arrier, for a refusal to carry such property. Lake Shore, &c.,
R. R. Co. V. Perkins, 25 Mich. 329. And one who contracts
7i6 LAW OF CONTRACT. [Bk. II. Cii. III.
profess to carry passengers, parcels, and merchandise,
stage-coach and stage-wagon proprietors, lightermen,
hoymen, barge owners, canal boatmen, and the owners
and masters of ships and steamboats employed as gen-
eral ships trading regularly from port to port for the
transportation of all persons offering themselves or
their goods to be conveyed for hire to the port of
destination. (/) The owner of a lighter, hoy, or flat,
which he uses regularly for carrying therein for hire
from place to place the goods of such persons as choose
to employ him, is a common carrier, although he does
not ply regularly between fixed termini, {q) It is the
duty of all who hold themselves out to the world as
common carriers, to carry, for every person who ten-
ders them the proper charge, all goods which they
have convenience for carrying, and in respect of which
they hold themselves out as carriers, without subject-
ing the person tendering the goods to any unreason-
(p) Robinson v. Dunmore, 2 B. & Rail. Co., 23 L. J., C. P. 73.
P. 416. Laveroni v. Urury, 8 Exch. (7) Liver Alkali Co. v. Johnson, L.
166. Crouch V. Lond. & North-West. I., 7 Ex. 267 ; 41 L. J., Ex. no.
to cut timber and transport it to a place where it is to be de-
livered and used, is not, while transporting it, a common car-
rier. Pike V. Nash, 3 Abb. N. Y. (App. Dec.) 610. One main-
taining a ferry for his own use or for the convenience of cus-
tomers, is not a common carrier; Self v. Dunn, 42 Ga. 528;
and see Fish v. Clark, 2 Lans. 176. A tow boat company is
not a common carrier; Arctic, &c,, Ins. Co. v. Austin, 54 Barb.
559; or one who carries gratuitously; Citizens' Bank v. Nan-
tucket Steamboat Co., 2 Story, 16. As to who are private car-
riers, and not common, see Pennewill v. Cullen, 5 Harr. 238;
Shelden v. Robinson, 7 N. H. 157 ; Moriarty v. Harnden's
Express, i Daly, 227. And whether one is a common carrier
or not, is a question for the jury under direction of the
court; Haynie v. Baylor, t8 Tex. 498; Gordon v. Hutchin-
son, I Watts. & S. 285 ; and consult generally Southern Ex.
Co. V. McVeigh, 20 Gratt. 264; Christienson v. American
Ex. Co., 15 Minn. 270; Paige v. Smith, 99 Mass. 395.
Sec. IV.] CONTRACTS FOR CARRIAGE. 71;
able or unusual conditions. (;') By many of the rail-
way Acts it is expressly enacted that railway com-
panies shall act as common carriers, that they shall
convey passengers and goods by locomotive engines,
and that they shall provide for all persons conveying
and sending goods by their railway every reasonable
convenience and facility for the loading and unload-
ing of goods, (s)
979- The nature and extent of the duties of the
common carrier are regulated by the nature and ex-
tent of his public prof ession and practice. — If he selects
a particular line or description of business, he can not,
so long as he adheres to it with good faith, be com-
pelled to go beyond it. If he is a common carrier of
passengers merely, he can not be compelled to carry
goods. If he journeys by a particular roundabout
road between one place and another, he is not bound
to carry by a shorter route ; but he is bound to use
reasonable despatch and to deliver within a rea-
sonable time, {f) If he limits his enterprise and busi-
ness to the carriage of particular classes of merchan-
dise or chattels, he can only be compelled to carry the
things he publicly professes to carry, and is in the
habit of carrying. If the carriage of certain commod-
ities is attended with inconvenience or some peculiar
risk, he may refuse to receive and carry such articles
as a common carrier, {x) but may, nevertheless, accept
and carry them under a special contract throwing the
risk of damage to them from ordinary accidents during
(r) Garton v. Brist. & Ex. Rail. 4 B. & S. 66 ; 32 L. J., Q. B. 292. In
■Co. I B. & S. 162 ; 30 L. J., Q. B. re Oxlade v. The North Eastern Ry.
r294. Co., 15 C. B., N. S. 680.
(s) Pegler v. Montn. Rail. &c., Co., 6 {x) Johnson v. Mid. R. Co., 4 Exch.
H. & N. 644 ; 30 L. J., Ex. 249. 371. McManus v. Lane. & York. R.
(0 Hales V. Lond. & N. W. R. Co., Co.. 4 H. & N. 327 ; 28 L, J., Ex.
353-
7i8 LAW OF CONTRACT. [Bk. II. Ch. III.
the transit upon the owner or the consignor. (^) * In
the absence of a contract to deliver at a particular time,
the duty of a common carrier is to deliver at a reason-
able time, looking at all the circumstances of the case ;
and since his first duty is to carry safely, he is justified
in incurring delay, if delay is necessary to secure the
safe carriage, (^z)
As regards dogs and live animals, which a common
carrier is not, by his public profession and employ-
ment, bound to carry, (a) he may decline to re-
(y) Peek v. North Staff. Rail. Co., (z) Great Northern Ry. Co. /. Tay-
32 L. J., Q. B. 241. Phillips v. Ed- lor, L. R., I C. P. 385 ; 35 L. J., C. P.
wards, 28 L. J., Ex. 52 ; 3 H. & N. 210.
813. Austin V. Manch. R. Co., 16 Q. {a) See however, Willes, J., in.
B. 600 ; 10 C. B. 454. Carr v. Lane. Blower v. the Great Western Ry.
& York. Rail. Co., 7 Exch. 707. Co., L. R., 7 C. P. 662 ; 41 L. J., C.
P. 268.
' See the recent case of Lake Shore, &c., R. R. Co. v. Per-
kins, 25 Mich. 329, which held that one who was in the habit
of making special contracts for the transportation of live
stock, was not liable, as a common carrier, for refusing to
carry such chattels. Also Roberts v. Riley, 15 La. Ann. 103 ;;
Moore V. Evans, 14 Barb. 524; Bingham v. Rogers, 6 Watts
& S, 495; Moriarty V. Harnden's Express, i Daly, 227. So a
common carrier of passengers may make a special agreement
that a passage shall be made in one continuous trip, and
within a specified time. Barker v. Coffin, 31 Barb. 556. If
common carriers specially undertake to deliver safely any
article carried, they will be responsible thereunder, even for
a loss by unavoidable accident. Guither v. Barnet, 2 Brev.
488. When bills of lading are special contracts, see Farn-
ham V. Camden, &c., R. R. Co., 55 Pa. St. 53. A receipt given
by a common carrier must be interpreted as a whole. Butler
v. Steamer Arrow, 6 McLean, 470. But carriers can not make
a special contract against their own negligence ; for such a
contract would be against public policy. Indianapolis, &c., R-
R. Co. v. Allen, 31 Ind. 394 ; Michigan &c. R. R. Co. v. Eaton,
Id. 397, note, but the special contract must be express, and
can not be established from custom ; Cox v. Hersley, 69 Pa.
St. 243 ; but see Farmers', &c., Co. v. Champlain, &c., Co., 18.
Vt. 131.
Sec. IV.] CONTRACTS FOR CARRIAGE. 719
ceive and carry them except upon certain special
conditions, and under a special contract regulating
and defining the nature and extent of his liability, (b) '
But in the case of a railway or canal company the con-
ditions or special contract must be just and reasonable,
must not exempt the company from liability for their
own neglect or default, and must be in writing, signed
by the consignor or his agent, (c) Where carriers by
sea give public notice that they receive goods for ship-
ment on the condition and agreement only of the ship
sailing under a bill of lading in the form ordinarily
adopted, they are not bound to receive and carry
otherwise than in accordance with their published
terms, (d)
The mere posting up at a particular railway station
of a list of tolls taken by the company for the carriage
of coals, amongst other things, will not constitute the
company common carriers of coals from that particu-
lar station, if it appears that they have no accommoda-
tion there for receiving coals, and do not, in point of
fact, carry them from that spot, although they carry
them over other parts of their line, (i)
By the 29 & 30 Vict. c. 69, s. 6, no carrier is bound
to receive or carry any goods which are specially dan-
gerous. (/) If a carrier is employed to carry an arti-
cle of such a dangerous nature as to require extraor-
{b) Harrison v. Lond. & Br. Rail. (f) Oxlade v. North-E. Rail. Co.,
Co., 2g L. J., Q. E 218 ; 31 L. J., Q. 15 C. B., N. S, 680. Johnson v.
B. H3 ; 2 B. & S. 122. Mid. Rail. Co., 4 Exch. 372.
{c) 17 & 18 Vict. c. 31, s. 7. Fosl. (/) Specially dangerous goods are
(d) Phillips V. Edwards, ante, nitro-glycerine or glonoine oil, and
Wilton V. Royal Atlantic Mail St. any other goods that may be so de-
Packet Co., 10 C. B., N. S. 453 ; clared by order in council, 29 & 30
30 L. J., C. P. 369. Vict. c. 6g, ss. I and 2.
' See Lake Shore, &c., R. R. Co. v. Perkins, 25 Mich. 329,
cited ante, note i, p. 718.
720 LAW OF CONTRACT. [Bk. II. Ch. III.
dinary care in its conveyance, the fact must be com-
municated to him, or the consignor will be responsi-
ble for any injury that may result to the carrier or his
servants from the want of such communication, (j^)^
980. Of the public profession of railway companies
made through the medium of their time-tables. — If a
railway company publishes, or authorizes the publica-
tion of, a time-table, representing that a train will run
at a particular hour to a particular place, the company
impliedly undertakes to dispatch a train at or about
the time specified, and will be responsible in damages
to all who tender themselves for conveyance at the
appointed time and find that no train at all has been
provided ; {K) but railway companies do not by their
time-tables guarantee the arrival of their trains at in-
termediate stations, or their departure from them, at
the exact time fixed. All they undertake to do is to
carry the passenger without any unreasonable and un-
necessary delay, (z)
981. Booking places in coaches. — If four ladies,
wishing to travel together, take " the whole inside of
a coach," the coach-proprietor and his servants have
no right to separate them, and do not fulfill their con-
tract by furnishing a double-bodied coach, and tender-
ing three inside places in one division and one in the
other, {k) " If a person takes a place in a stage-coach,
and pays at the time only a deposit, as half the fare,
for example, and is not at the inn ready to take his
place when the coach is setting off, the coach-proprie-
tor is at liberty to fill up his place with another pas-
{g) Farrant V. Barnes, II C. B., N. (t) Hurst v. Gt. West. Rail. Co., 19
S. 553 ; 31 L. J., C. P. 137. C. B., N. S. 310 ; 34 L. J., C. P. 264.
(/4) Denton v. Gt. North, R. Co., 5 (It) Long v. Home, i C. & P. 611.
Ell. & Bl. 868 ; 25 L. J., Q. B. 129.
' See ante, § 4288 U. S. Rev. Stat., printed on p. 686 of this vol.
Sec. IV.] CONTRACTS FOR CARRIAGE. 721
senger; but, if at the time of taking his place, he pays
the whole of the fare, in such case the coach-proprie-
tor can not dispose of his place, but the passenger may
take it at any stage of the journey he thinks fit." (/)
982. Implied undertaking of railway companies
io forward passengers without unnecessary delay. — •
Every railway company also which has sold tickets to
an intended passenger impliedly undertakes to provide
means of conveyance and forward him to his place of
destination with reasonable speed, {m) ' If railways
are impeded by snow, the company must lise all rea-
sonable exertions to forward their passengers and clear
the line for traffic. («) ^
983. Contracts for the carriage of passengers by
common carriers impose upon them the duty of taking
the utmost care for the safe conveyance of such pas-
sengers ; and, if an accident arises causing injury to
(/) Ker V. Mountain, I Esp. 26. Gt. North. Ry. Co., I H & N. 408.
(ot) Gt. North. Rail. Co. .. Haw- («) Briddon v. Gt. North. Ry. Co.,
croft, 21 L. J., Q. B. 179. Hamlin v. 28 L. J., Ex. 51.
' See Galena, &c., R. R. Co. v. Rae, 18 111. 488; Denney
V. New York, &c., R. R. Co., 13 Gray, 481 ; LifiFord v. R. R.
Co., 7 Rich. 409; Lowe v. Moss, 12 111. 477 ; contra, Nashville,
&c. R. R. Co. V. Johnson, 6 Heisk, 271 ; holding that he is not
liable for delay by an accident not inevitable, if there be no
negligence on his part. And in an action for not delivering
goods in a reasonable time, the measure of damages is the
value of the goods at the place and time they should have
been delivered, and the loss and expense caused by the delay ;
Kyle V. Laurens R. R. Co., 10 Rich. 382 ; or, in a proper
case, the value of the use of the article during the time of its
detention ; Priestly v. Northern, &c., R. R. Co., 26 111. 205 ; or
for the loss of a market for the goods ; Falway v. Northern
Transportation Co., 15 Wis. 129; and the " reasonable time " is
a question for the jury ; Conger v. Hudson River R. R.
Co., 6 Duer, 275.
" And when the cause of the delay, as ice or low water, is
removed, the duty to transport revives. Lowe v. Moss, 12
111. 477-
II. — 46
722 LAW OF CONTRACT. [Bk. II. Ch. III.
any of them, a common carrier can discharge himself
from liability only by proving that the accident was
inevitable, (o) ' that is, that it did not occur from the
want of due care, not only on the part of himself and
his servants, but also on the part of any independent
contractor who may have been employed by him to
construct the means of conveyance. (/) The carrier,
however, is not bound at his peril to provide a car-
riage roadworthy at the commencement of the jour-
ney ; and, if the carriage turns out to be defective, he
is not liable to a passenger for the consequences, if the
defect was of such a nature that it could neither be
guarded against in the process of construction nor dis-
covered by subsequent examination. (^) " But a
passenger may, by special agreement, contract to be
carried at his own risk, so as to exempt the company
from responsibility for even the gross and willful neg-
ligence of their servants, (r)
984. Limitation of the liability of common carriers
by public notice. — [Although, as we have seen, the com-
mon carrier may limit his liability, at common law, by
express contract, yet he can not do so merely by means
of printed notices, placards and posters affixed to his
conveyance, or printed upon his tickets. Every
owner or maintainer of a conveyance can not be al-
(o) Barns v. Cork & Bandon Ky. 291. John v. Bacon, L. R., 5 C. P.
Co., post. 437 ; 39 L. J., C. P. 365.
(/) Grote V. The Chester & Ploly- ( g) Readhead v. The Midland
head Ry. Co., 2 Ex. 251. Burns v. Ry. Co., L. R., 4 Q. B. 379 ; 38 L.
The Cork & Bandon Ry. Co., 13 Ir. J., Q. B. 169.
C. L. R. 543. Francis v. Cockerell, (r) McCawley v. Farness Ry. Co.,
L. R., 5 Q. B. 184; 39 L. J., Q. B. L. R., 8 Q. B. 57 ; 42 L. J., Q. B. 4.
' See ante, note 1, p. 677. Where a trunk in the possession
of a common carrier is lost, the inference is that it was lost or
mislaid through the negligence of the carrier; Camden, &c.,
R. R. Co. V. BaldaufF, 16 Pa. St. 67.
' See ante, note i, p. 660.
Sec. IV.] CONTRACTS FOR CARRIAGE. 723
lowed to change the law of the land, at his own con-
venience, by simply displaying a memoranda that " the
baggage of passengers is at the risk of the owners." '
The utmost effect of such a notice would be to
protect the carrier from the ordinary and known risks
of transportation. ^
In order to make such a notice a special contract
binding on the passenger, such as the carrier has a
right to make, the passenger, on his part, must assent
to it. ' But the burden of proving the passenger's
assent is, in every case, on the carrier. * It has been
held that a carrier may limit his liability by a general
notice if its terms are clear and explicit, and if the
party with whom the carrier deals is fully informed of
its terms and effect. ^ And where the notice was
printed in English, and the passenger was a German,
who did not understand that language, it was held
that the terms must be explained to him in order to
' HoUister V. Nowlen, 19 Wend. 234; Cole v. Goodwin,
Id. 234; Clark v. Faxton, 21 Id. 153; Powell v. Myers, 26 Id.
591; Camden Transportation Co. v. Belknap, 21 Id. 354;
Jones V. Voorhies, 10 Ohio, 145 ; Southern Ex. Co., v. Newby,
36 Ga. 635 ; Mosher v. Southern Ex. Co., 38 Id. 37 ; Prentice
V. Decker, 49 Barb. 21 ; Lunburgerv. Westcott, Id. 285 ; Bean
Y. Green, 12 Me. 422; Derwort v. Loomer, 21 Conn. 245;
Moses V. Boston, &c., R. R. Co., 32 N. H. 523.
' Nashville R. R. Co. v. Johnson, 6 Heisk, 271; Durr v.
New Jersey, &c., Co., 11 N. Y. (i Kern.) 485 ; Rawson v. Penn-
sylvania R. R. Co., 2 Abb. (N. Y.) Pr., N. S. 220 ; Kimball v.
Rutland R. R. Co., 26 Vt. 247 ; Nevins v. Bay State, &c., Co.,
4 Bosw. 225.
' Sager V. Portsmouth, &c., R. R. Co., 31 Me. 228;Fille-
brown v. Grand Trunk R. R. Co., 55 Me. 462.
' McMillan v. Michigan, &c., R. R. Co., 16 Mich. 79; Far-
mers' &c.. Bank v. Champlain Transportation Co., 23 Vt.
186; Bean v. Green, 12 Me. (3 Fairf.) 422. Verner v. Sweit-
zer, 32 Pa. St. 208 ; Mobile, &c., R. R. Co., 4 Weiner, 49
Miss. 725.
' Camden, &c., R. R. Co. v. Baldauf, 16 Pa. St. 67.
724 LAW OF CONTRACT. [Bk. II. Ch. III.
relieve the carrier. ■ If the shipper of goods accept a
receipt containing a printed notice of restrictions upon
the carrier's liability, with full knowledge of the same,
and without objection, he will be held to consent to
the special contract as fully as if he had signed his
name thereto. " But the question of such knowledge
and assent is one of fact for the jury, to be determined
by evidence aliunde, and is not a subject of presump-
tion from the terms of the receipt alone, or from the
naked fact of the receipt having been delivered to the
shipper. ' So it was held that evidence that a notice
that baggage carried in the " Telegraph Line " would
be at the risk of the owner, conspicuously placarded
in most of the stage office's on the route, and par-
ticularly where the plaintiff had resided for three years
immediately preceding the loss of his trunk, would
not authorize a jury to infer knowledge, in the plaintiff,
of the terms upon which the coaches were run." Nor
is a passenger on a steamboat chargeable with notice
of the contents of a placard posted in the boat, merely
from the fact that he had the opportunity to read it, if
he so desired. ^
Neither will carriers be permitted, by special con-
tract, to change the law of the land. It is against pub-
lic policy, for instance, to permit common carriers to
make special contracts against their own negligence.'
* Camden, &c., R. R. Co. v. Baldauf, i6 Pa. St. 67.
' Adams Ex. Co. v. Haynes, 42 111. 89.
= Id. 49-
* HoUister v. Nowlen, 19 Wend. 234; Cole v. Goodrich,
Id. 251.
' Macklin v. New Jersey Steamboat Co., 7 Abb. (N. Y.) Pr.,
N. S. 229.
' Indianapolis, &c., R. R. Co. v. Allen, 31 Ind. 394; Mich-
igan, &c., R. R. Co. V. Heaton, Id. 397 ; Railroad Company v.
Lock wood, 17 Wall. 357.
Sec. IV.] CONTRACTS FOR CARRIAGE. 725
985. Carriage of gold and silver, jewelry, title-
deeds, glass, silk, &c. — As the common carrier was re-
sponsible at common law for the safe carriage of
goods and merchandise, and was bound to make good
losses by robbery, he was allowed to charge a rate of
carriage proportioned to the risk he ran. This risk
naturally depended upon the value of the articles he
carried ; and, therefore, when a common carrier was
required to carry a bag of gold across Hounslow
Heath, it was thought that he was justly entitled to
charge more than the ordinary rate of remuneration
for merchandise, (s) " His warranty and insurance,"
observes Lord Mansfield, '' are in respect to the reward
he is to receive ; and the reward ought to be propor-
tionable to the risk. If he makes a greater warranty
and insurance, he will take greater care, use more
caution, and be at the expense of more guards and
other methods of security ; and, therefore, he ought, in
reason and in justice, to have a greater reward." "A
higher price ought in conscience, to be paid him for
insuring the safety of money, jewels, and valuable
things, than for insuring common goods of small
value." {t) Hence, when packages were brought to
common carriers for conveyance, it became usual foi
the latter to ask the value, and to charge accordingly,
and it was held that the owner was, in all cases, bound
by his representation of value, and could not give
evidence of the falseness of his own statement in order
to throw an increased responsibility upon the common -
carrier. But the owner was not bound to declare the
value of the parcel unless he was asked ; if the com-
mon carrier asked no questions, and there was no
fraud or intentional concealment, to give the case a
(j) Tyly V. Morrice, Carth. 486. {t) Aslon, J., 4 Burr. 2302, 2303.
726 LAW OF CONTRACT. [Bk. II. Ch. III.
false complexion, the common carrier was responsible
for the safety of the parcel, whatever might be its
value. (?/)
To obviate the inconvenience of asking ques-
tions in each case, and the difficulty of proving the
statements made on each occasion, common carriers
resorted to the expedient of advertising in news-
papers, and posting on the walls of their booking-
offices, public notices, to the effect that they would not
be liable for the loss of money and valuables enclosed
in packages and parcels, unless they received notice of
their existence, nor for the loss of ordinary goods and
chattels beyond a certain amount, unless the value of
such goods was declared and entered at the office, and
an increased rate of remuneration paid for their convey-
ance. So long as these public notices and advertise-
ments were used with the bona fide intention of pro-
tecting the common carrier against fraud on the part
of persons sending packages of great value and small
bulk for conveyance, and of securing to him a rate of re-
muneration proportioned to the value of the parcel
and the risk he ran, they were encouraged and sup-
ported ; {pc) but, when they were used, as they soon
were, for the purpose of enabling the common carrier
altogether to shake off his common law responsibility,
and of concealing and favoring fraud towards his cus-
tomers, and shielding him from the consequences of
his own negligence and misconduct, they were con-
. demned and discouraged. All sorts of difficulties at
last arose with respect to these notices. On some oc-
casions they were held to be inoperative, because the
party bringing the goods to the office where they
were posted up, was unable to read, and the notice
(«) Riley v. Home, 2 M. A P. 340. Harris v. Packwood, 3 Taunt. 264,
(x) Gibbon v. Payiiton, 4 IJurr. 2301. Mar>h v. Home, 5 B. & C. 326.
Sec. IV.] CONTRACTS FOR CARRIAGE. 727
consequently afforded him no information, {y) or be-
ing able to read, he never did read the notice ; {z)
and it was sometimes held that the attention of the
consignor of the parcel ought to be drawn to the
printed terms of conveyance in such a way that, if he
remained in ignorance of them, such ignorance was
willful or attributable to his own negligence. («)'
The contradictory decisions upon the proof and
effect of these notices, and the confused state of the law
respecting them, at last rendered the interference of the
legislature necessary in order to protect the common
carrier, on the one hand, from fraud and concealment
on the part of the consignor of parcels and packages
and to protect the consignor, on the other, from fraud
negligence, and misconduct on the part of the com-
mon carrier.
986. Common Carriers' Act — Declaration of
■value by consignors. — The 1 1 Geo. 4, and i Wm. 4, c.
68, commonly called the Carriers' Act, exempts com-
mon carriers by land from liability for the loss of, {b)
or injury to, gold or silver, precious stones, jewelry
watches, clocks, trinkets, bills, orders, notes, or securi-
ties for payment of money, stamps, maps, writings
title deeds, paintings, engravings, pictures, {c) plated
articles, glass, silks, (a^) in a manufactured or unman-
(y) Davis v. Willan, 2 Stark. 280. pictures, are within the Act. Hender-
(z) Kerr v. Willan, ib. 54. Butler son v. London & North Western Ry.
V. Heane, 2 Campb. 415. Co., L. R., 5 Ex. 90.
(a.) Clayton v. Hunt, 3 ib. 27. {d) Silk guards and silk dresses
•Gouger v. Jolly, Holt, 317. Walker are included under the term silks.
V. Jackson, 10 M. & W. 173. Brooke Bernstein v. Baxendale, 6 C. B., N.
V. Pickwick, 4 Bing. 222. S. 259 ; 28 L. J., C. P. 265, overrul-
[b) Hearn v. Lond. & L. S. R. Co. ing Davey v. Mason, Car. & M. 50.
10 Exch. 801 ; 24 L. J., Ex. 180. So, also, is elastic silk webbing, made
(£■) Where framed pictures are sent as described in Brunt v. The Midland
by a carrier, the frames, as well as the Ry. Co., 2 H, & C. 889 ; 33 L. J.,
Ex. 187.
' See ante, § 987.
728 LAW OF CONTACT. [Bic. II. Cu. IIL
ufactured state, furs, lace, (^) &c., contained in any
parcel or package which shall have been delivered,
either to be carried for hire or to accompany the person
of any passenger in any public conveyance, when the
value of such articles or property contained in such
parcel or package shall exceed the sum of ten pounds,
unless, at the time of the delivery thereof for the pur-
pose of being carried or of accompanying the person of
any passenger, the value and nature of such articles or
property shall have been declared by the person send-
ing or delivering the same and the increased charge
thereinafter mentioned, or an engagement to pay the
same, accepted by the person receiving such parcel
or package. Mere mention of the value to a station-
master is no declaration of value within the meaning
of the Act, if it was not intended to operate as a de-
claration of value, (y) When the declaration is
formally made, the carrier is entitled, if the value ex-
ceed ^lo, and he has a notice of the increased rate of
charge for parcels exceeding the value of ^lo stuck
up in his office, to demand the increased rate of charge;
but, if he does not think to notify the increased rate
of charge, he can not demand it ; and, if he has noti-
fied it, but fails to demand it, he must^ be taken to
have received the goods subject to his common law
liability as an insurer of theirsafe conveyance, and will
not be entitled to the protection of the statute. (£■)
The consignor is bound by his declaration, and can not
afterwards show that the value of the goods exceeded
that declared. (A) If the journey is to be performed
(e) By the 28 & 29 Vict. c. 94, s. i, (g) Behrens v. Gt. North Rail. Co.,
the term "lace" is not to include 30 L. J., Ex. 153; 31 L. J., Ex. 299;
machine-made 1 ce. 7 H. & N. 950.
(/) Robinson v. .S. W. Rail. Co. (A) M'Cance v. Lond. & N. W. R..
19 C. B., N. S 51 ; 34 L. J., C. P. Co.. 3 H. & C. 343 ; 34 L. J., Ex..
235- .30.
Sec. IV.] CONTRACTS FOR CARRIAGE. 729
partly by lamd and partly by sea, the carrier is entitled
to the protection of the Merchant Shipping Acts, as
far as the journey is to be performed at sea, (?) and to
the protection of the Carriers' Act so far as it is to be
performed by land ; {k) and he will not lose such pro-
tection by having received the goods under a special
contract, unless its terras are inconsistent with the
goods having been received by him in his capacity of
a carrier. (/)
987. Losses from robbery and theft by the common
carrier's servants. — Nothing in the Carrier's Act is.
(s. 8) to protect any common carrier for hire from
liability to answer for loss of, or injury to, any goods
or articles arising from the felonious acts of any coach-
man, guard, bookkeeper, porter, or other ser\'ant in
the carrier's employ, nor to protect any such coach-
man, &c., from liability for any loss or injury occasioned
by his own personal neglect or misconduct. The
common carrier's liability, therefore, in respect of losses,
resulting from thefts committed by his own servants,
or persons in his employ, remains the same as it was
before the statute was passed. The statute imposes
no express liability upon the common carrier. It
simply relieves him from the necessity of proving a
notice limiting his liability in certain cases, and then
restricts that relief to losses not occasioned by the
felonious acts of persons in his employ. If, therefore,
a common carrier has given express notice to the con-
signor that he will not be responsible for parcels or
packages above the value of ^10, unless the value is
declared, and an increased rate of remuneration paid
(z) London & S. W. Rail. Co. v. Ry. Co., 6. B. & S. g6i ; L. R., i Q.
James, L. R., 8 Ch. 241 ; 42 L, J., B. 54 ; 35 L. J., Q. B. 40.
Ch. 337. ('') Baxendale v. The Great Eastern
(k) Le Conteur v. London & S. W. Ry. Co., L. R., 4 Q. B. 244 ; 38 L. J..
Q. B. 137.
730 LAW OF CONTRACT [Bk. 11. Cii. III.
according to a printed tariff or scale of charge, and
the common carrier afterwards accepts a parcel to be
carried, knowing it to be worth more than ;^io, with-
out demanding or receiving the premium for insur-
ance, and the parcel is purloined by his own servant,
the case is not within the protection of the statute,
and the common carrier is responsible for the theft.
(m) But if he receives the goods under a special con-
tract, and not upon his customary liability as an in-
surer of safe conveyance, he is chargeable only for neg-
ligence and want of ordinary care, (n)
In order to establish the fact of theft by the common
carrier's servants, it is not enough to lay before a jury
facts from which they might infer that such a felony
had been committed. Evidence reasonably sufficient
to obtain a conviction for the felony must be proved
by the plaintiff, in order to give him the benefit of the
exception in the statute. (£>)
988. Liabilities of the covimon carrier's servants,
— Sect. 8 of the statute provides, that the Act shall
not protect the coachman, guard, bookkeeper, or other
servant of the common carrier, from liability for losses
or injuries occasioned by their own personal neglect
and misconduct. This applies to liabilities ex delicto ;
for the coachman, guard, or other servant is not, by
the common law, liable in any way ex contractu to
the owner of the goods for loss or damage arising from
his own personal negligence. The contract for the
carriage of them is made with the common carrier or
coach-proprietor who carries on the business, and not
with a mere servant or agent who has no interest in
(/«) Metcalfe v. Lond. & Br. Rail. C. B. 140. Gt. West. Rail. Co. ..
Co., 4 C. B., N. S. 307 ; 27 L. J., C. Riniell, 27 L. J., C. P. 204.
"P- 205. \o) Metcalfe v. Lond. & Br. Rail.
(«) Butt V. Gt. West. Rail. Co., II Co., suftra
Sec. IV.] CONTRACTS FOR CARRIAGE. 731
the concern, and does not share in the profits of the
trade. Thus, where an action was brought against a
coach-porter for the value of a parcel lost by him, and
also against the driver of a stage coach for the loss of
a trunk, it was held that, as the defendant in each case
had received the article as the servant and agent of
the coach-proprietor, and not on his own account, he
could not be sued by the owner of the goods for the
loss. (/)
989. Inability of common carriers to rid themselves
by public notice of the duties imposed upon them by the
ancient custom, of the reaM — Limitation of the liabil-
ity of common carriers by special contract. — The fourth
section of the Carrier's Act enacts, that no public
notice or declaration shall be deemed or construed to
limit, or in anywise affect the liability at common law
of any common carriers in respect of any articles or
goods to be carried or conveyed by them, but that they
shall be liable, as at common law, to answer for the
loss of, or injury to, any articles and goods in respect
whereof they may not be entitled to the benefit of
that Act, any public notice or declaration by them
made and given contrary thereto, or in anywise limit-
ing such liability, notwithstanding. But nothing con-
tained in the Act is (s. 6) to annul or in anywise affect
any special contract between common carriers and
any other parties for the conveyance of goods and
merchandise. This statute is confined to public notices,
such as were very common before the Act — notices
addressed to the public at large, raising a question in
every case whether the notice was brought home to
the particular person. It is not applicable to a notice
(/) Cavanagh v. Such, i Pr. 331. Williams v. Cranston, 2 Stark. 82.
' See ante, § 987.
732 LAW OF CONTRACT. [Bk. II. Ch. III.
specifically delivered to form the basis of a special con-
tract with him. (^) Where the common carrier is noi
a common carrier of the particular description of goods
tendered him for conveyance, and has the option of
receiving them or rejecting them at his own good will
and pleasure, he may prescribe his own terms of con-
veyance ; and, if the party delivering goods to be car-
ried has been personally served with a notice of the
terms on which the common carrier carries goods, and,
after seeing the notice sends the goods, he must be
taken to agree that they shall be carried on those
terms, and there is then a special contract between
him and the common carrier for their conveyance, (r)
unless the carriage is by railway or canal, so as to ne-
cessitate a signed special contract under the Railway
and Canal TraflEic Act. (s) But this is not the case
with regard to such articles as the common carrier is
bound by his public profession and employment to
carry. With regard to them, the owner has a right to
insist that the comrron carrier shall receive the goods
subject to all the responsibilities incident to his em-
ployment. (/) " If the delivery of the goods under
such circumstances authorizes an implication of any
kind, the presumption is as strong, to say the least,
that the owner intended to insist on his legal rights, as
it is that he was willing to yield to the wishes of the
carrier." (ti) Special contracts with railway and canal
companies must, as we shall presently see, be authen-
(?) Walker v. York & North Mid. cross, 6 T. R. 17. Garton v. Brist.
Rail, Co., 2 Ell. & Bl. 761. Van & Ex. Rail. Co., i B. & S. 162 ; 30
Toll V. South Eastern Rail, Co., 31 L. L. J., Q. B. 276.
J., C. P. 241. (ii) IloUister v. Nowlen, 19 Wend.
(r) Wightman, J., 2 EU. & Bl. 760. 247, New Jersey St. Nav. Co. v.
(j) Post Merchts. Bank, 6 How. 344. Crouch
(t) Ld. Kenyon, Kirkman v. Shaw- v. London & Nonh West. R. Co.. 23
L. J., C. P. 73.
Sec. IV.] CONTRACTS FOR CARRIAGE. 733
ticated by a signed writing.' If the consignor of pack-
ages exceeding ;^io in value, containing the valuable
articles specified in the Carrier's Act, objects to pay
the ad valorem rate of carriage or premium of insur-
ance, and wishes to have the parcel carried as a parcel
of ordinary value, at the ordinary rate of carriage for
parcels of similar bulk and weight, the common carrier
may, if he pleases, waive his right to the increased re-
muneration or premium of insurance, and agree to
earry for a smaller sum, upon the terms that he is not
then to be responsible upon the extended customary
liability of a common carrier as an insurer against rob-
bery and the dangers and accidents of the road. " This
limitation," observes Parke, B., "it is competent for a
common carrier to make, because, being entitled by
common law to insist on the full price of carriage be-
ing paid beforehand, he may, if such price be not
paid, refuse to carry upon the terms imposed by the
common law, and insist upon his own terms." (v)
990. Common carriers may protect themselves by
special contract from, loss by fire and sea risks, and
may carry goods on the terms that they are not to be
held responsible at all for such losses, (jj/) ^
991. Stipulations exempting com.mon carriers by
■water from, loss of luggage, unless a bill of lading
has been signed for it. — Where the Atlantic Mail
Steam Navigation Company issued passengers' tickets
on which was printed a notice or condition " that the
ship will not be accountable for luggage, goods, or
other descriptions of property, unless bills of lading
(w) Wyld V. Pickford, 8 M. & W. Collins v. Brist. & Ex. Rail. Co., il
458. Exch. 790 ; 7 H. L. C. 205.
(>■) Having v. Jodd, i Stark. 74.
' Post, §§ 1002, 1003.
' Infra.
734 LAW OF CONTRACT. [Bk. II. Ch. IIL
have been signed therefor, each passenger allowed
twenty cubic feet of luggage free," it was held that the
company had a right to impose this condition on
their passengers provided it was imposed upon all
alike ; that the passenger, therefore, was bound to get
a bill of lading for all the luggage for which he in-
tended to make the ship accountable, but that he had
the option of taking luggage under his own personal
control without any bill of lading, carrying it, in that
case, at his own risk, {z) If the company does not
impose the same terms upon all pa.ssengers alike, or
the passenger offers to sign a bill of lading and is un-
able to obtain it, the company can not avail them-
selves of the condition as protecting them from liabil-
ity, {a)
■ 992. When the carrier may by special contract
exempt himself from all responsibility for damage to
certain classes and decriptions of goods in transitu. —
Whenever a man enters into a contract for the car-
riage of goods, he impliedly grants or lets out some
labor and care for the accomplishment of the work
of carrying, in return for the hire paid or agreed to be
paid him ; and it was formerly held that he could not
enter into the contract, and at the same time say that
he would bestow no labor or care at all in and about
the performance of what he had undertaken to do, and
for which he received his hire. " It is impossible,"
justly observes Lord Ellenbourgh, " without outrag-
ing common sense, so to construe a special contract
for the carriage of goods, as to make tlie carrier say,.
'We will receive your goods; but we will not be
bound to take any care of them, and will not be an-
(e) Wilton V. Royal Atl. Mail St. (a) Gt. West. Rail. Co. v. Good-
Nav. Co., 10 C. B., N. S. 453 I 3° L. man, 12 C. B. 313.
J., C. P. 369.
Sec. IV.] CONTRACTS FOR CARRIAGE. 735
swerable at all for any loss occasioned by our own
misconduct, be it ever so gross and injurious.'" {b) "If
the carrier should perchance refuse to carry the stuffe,
unless promise were made unto him that he
should not be charged for any misdemeanor that should
be in him, the promise were void ; for it were against
reason and against good manners ; and so it is in all
other cases like." (c) In the case of articles of a perish-
able nature, such as fish, or of a very delicate and
fragile nature, such as statuary, sculptured alabaster, or
marble, which the common carrier does not commonly
profess to carry, and which may be readily injured^
nobody knows how, the common carrier may, as we
have seen, refuse to receive and carry such articles,,
except under a special contract exonerating him from
all responsibility for damage done to them in transitu
not occasioned by the neglect or default of himself or
his servants, (d^ So, with regard to horses, it is said
to be very reasonable that common carriers by railway
should be allowed to make agreements for the purpose
of protecting themselves against the peculiar risks at-
tendant upon the carriage of horses by railway, arising
from the rapid motion and strange noises, which are
calculated to alarm horses and cause them to kick and
break the carriage, and do themselves injury. It was,
therefore, held, before the passing of the Railway and
Canal Traffic Act, ' that railway companies might, by
special contract, throw the risk of the conveyance of a
horse by railway upon the owner of the horse, so that,
if the horse was injured in the transit from any ordinary
(b) Lyon v. Mells, 5 East, 438. 5 H. & N. 875 ; 29 L. J., Ex. 441.
(c) Doct. & Stud. Dial. 2, ch. 39. Peek v. North Staff. Rail. Co., 32 L.
Noy's Maxims, ch. 43, 92. J., Q. B. 241. Leeson v. Holt, I
(d ) Beal v. South Devon Rail. Co., Stark. 186.
' Fast, § 1003.
736 LAW OF CONTRACT. [Bk. II. Ch. Ill
railway casualty, the owner would have no remedy
against the company for the loss, (e)
The notices commonly given by common carriers
before the passing of the Carrier's Act, that they
would not be responsible for the loss of or damage to
parcels above a certain value, unless the value was de-
clared and a premium of insurance paid, were held to
apply only to the responsibilities and liabilities of the
carrier as an insurer of the safety of the goods, and
did not and could not exempt him, in the absence of
fraudulent concealment of value or risk on the part
of the consignor, from the consequences of his own
misconduc^j9i;svjiegligence, or from the misconduct and
negligence, of -his. servants and persons in his em-
ploy. (/") ' !A Byi -understanding the terms of the notice
in this limited sen^q," observes Bayley, J., "the com-
mon carrier will be exempt from those peculiar liabili-
ties which attach to him only in his character of com-
mon carrier, but not from the consequence of his own
misfeazance, for which every bailee is responsible." (£■)
Having, by notice or special contract, divested him-
self of his customary liability of an insurer against
robbery and fire and the dangers and accidents of the
road, " he still," observes Parke, B., " undertakes to carry
from one place to another, and for some reward in re-
spect of the carriage, and is therefore bound to use
ordinary care in the custody of the goods, and their
conveyance to, and delivery at, the place of destina-
tion, and in providing proper vehicles for their car-
riage." (^) Where a cask of brandy of the value of
(e) Carr v. Lane. & York. Rail. Co., 356. Duff v. Budd, 6 Moore, 477.
7 Exch. 714. Harrison v. Lond. Br. (^) Garnett v. Willan, 5 B. & Aid.
& S. Co. Rail. Co., ante, quali- 57.
fied by Peek v. North Staff. Rail. Co., {A) Wyld v. Pickford, 8 M. & W.
32 L. J., Q. B. 241. 461. Smith v. Home, 8 Taunt. 144;
(/) Birket v. Willan, 2 B. & Aid. 2 Moore, 18.
Sec. IV.] CONTRACTS FOR CARRIAGE. 737
£']o was accepted by a common carrier to be carried
for hire, and the cask began to leak on the road, and
the carrier's servant was told that the brandy was es-
caping, but he made no attempt to stop the leak and
save the brandy at any of the stages at which he
stopped, although he might easily have done so, and
the brandy was consequently lost, it was held that the
carrier was not protected from the consequences of
the negligence of his servant by having given notice
to the consignor that he would not be answerable for
any goods of what nature or kind soever above the
value of ^5, if lost, stolen, or damaged, unless a special
agreement was made and an adequate premium paid
over and above the common carriage ; for here the
goods were of large bulk and known quality, and the
value was obvious as well as the degree of care reason-
ably requisite for their conveyance. {Ji)
993. Void limitations of liability. — A person who
undertakes the public employment of a common car-
rier of merchandise or of passengers and luggage has
no more right, it is apprehended, to engraft upon his
contract or employment the terms that " all merchan-
dise received by him to be carried is carried at the risk of
the owners," or that " all luggage delivered to him by his
passengers is carried at the risk of the passengers,"
and that " he will not be responsible if it is lost or
damaged by the way," than a common innkeeper has
to refuse to receive guests, except on the terms that
he shall not be responsible for the safe keeping of
their goods and luggage deposited in his inn. The
consignor of merchandise or the passenger has a righl
to reject these terms, and to insist that merchandise,
such as is ordinarily carried by the common carrier, or
(k) Beck V. Evans, i6 East, 247. Smith ». Home, 8 Taunt. 144 ; z
Moore, 18.
11.— 47
738 LAIV OF CONTRACT. [Bk. II. Ch. III.
the customary allowance of luggage for a passenger,
shall be taken at the common carrier's risk, provided
the consignor makes the declaration of value, and is
ready to pay the premium of insurance, in those cases
where the declaration and payment are required by
law. " The traveller," observes an American judge,
" is under a sort of moral duress, a necessity of employ-
ing the common carrier ; and the latter shall not be
allowed to throw off his legal liability. He shall not
be privileged to make himself a common carrier for
his own benefit and a mandatary or less to his em-
ployer. He is a public servant, with certain duties
defined by law ; and, as Ashurst, J., said of the duties
of innkeepers, they are indelible."( /) But in our own
law, where the carriage of particular articles is attended
with any peculiar or extraordinary risk, the common
carrier is entitled, as we have seen, to refuse to receive
and carry such articles, unless the nature and value of
the articles are declared, and an increased charge paid
for insurance ; but he may, at the same time, receive
and carry them under a special contract, providing
that they shall be carried at the risk of the owner at a
lower rate of charge.^ And, if he is a common carrier
of passengers merely, and does not profess to cany,
and does not receive for carriage, luggage with his pas-
sengers, but allows them to carry with them, under
their own care, a small quantity of personal luggage,
he is not responsible for the loss of it. (m) "
(/) Cowen, J., Cole V. Goodwin, 19 234. Angell on Carriers, App. xviii..
Wend. 281. Hollister v. Nowlen, ib. xxiii,
(m) See infra.
' Ante, §§ 994, 995.
And so with the passenger: a common carrier, in consid-
eration of an abatement, in whole or in part, of his legal fare,
may lawfully contract with a passenger that he will take upon
himself the risk of damage from any negligence of the carrier's
Sec. IV.] CONTRACTS FOR CARRIAGE. 739
994. Loss of passengers' luggage by railway com-
panies.— If a railway company starts an excursion
train for passengers merely, but allows each passenger
to carry with him a small quantity of luggage free at
his own risk, and passengers avail themselves of the
privilege, and the luggage is lost, the company is not
responsible for the loss of it ; {n) but it is otherwise
in the case of ordinary trains for passengers and lug-
gage where the company receive luggage for carriage.
{0) Where a railway company made a by-law to
the effect that they " would not be responsible for the
care of luggage, unless booked and paid for," it was
held that the by-law was null and void. (/) Railway
companies are responsible for the acts and omissions
of their porters in the management and delivery of
passengers' luggage. ( ^ ) But if a passenger packs
merchandise in carpet-bags and portmanteaus, and
passes it off as luggage, he can not recover for the loss
of it, as he is guilty of an unfair concealment towards
the company, in preventing them from making the
charge they would be entitled to make for the carriage
of merchandise, (r) A railway company is, in general,
(«) Stewart v. Lond. & N. West. J., Q. B. 213. Macrow v. Great
Rail. Co., 33 L. J., Ex. 199 ; 3 H. & Western Ry. Co., L. R., 6 Q. B. 612 ;
C. 135. 40 L- J- Q- B. 300.
ip) As to what is " ordinary lug- (/) Williams v. Gt. West. Rail. Co.,
gage," see Phelps v. Lond. & N. W. lo Exch. 15.
Rail. Co., 34 L. J., C. P. 259; 19 C. (q) Mid. Rail. Co. v. Bromley, 17
B., N. S. 321. Hudston v. Midland C. B. 375 ; 25 L. J., C. P. 94.
Ry. Co., L. R.. 4 Q. B. 366 ; 38 L. (r) Cahill v. Lond. & North-West,
agents or servants, for which the carrier would otherwise be
liable. Bissell v. New York, &c., R. R. Co., 25 N. Y. 442'.
Public policy is satisfied by holding the carrier bound to take
the risk of its servants' negligence when the passenger pays
the fare established by the legislature. He may voluntarily,
and for any valuable consideration, waive the right to in-
demnity, and such a contract is binding. Id.
740 LAW OF CONTRACT. [Bk. II. Ch. III.
liable for the loss of a passenger's luggage, though
carried in the carriage in which he himself is travelling,
(i-) But the passenger must take ordinary care of it ;
and, therefore, where the passenger left the carriage in
which his luggage was for another in the course of the
journey, and his portmanteau was stolen, it was held
that the company was not responsible. (/)
995. Losses occasioned by the negligence of the
consignor — Defective packing. — If the loss has been
occasioned by the negligence of the consignor or his
servants, in not .properly packing or securing the goods,
the carrier is not responsible for the loss. If wine or
spirits escape by reason of a defective bung in a cask,
the carrier will not be answerable, {u) unless it be
shown that the carrier had notice of the leakage, and
had the means of stopping it and neglected to do so, and
that by reason thereof the plaintiff sustained the injury
of which he complains {x') If the defective packing
of goods is patent and visible, and easily remedied,
and the common carrier accepts the goods for convey-
ance, he is bound to take all reasonable means t6 pro-
vide for their safety, (^y) But if the mode of packing
is that in ordinary use, and the carrier is led by the
sender's conduct to conclude that it is safe, the carrier
will not be responsible for injury to the goods arising
from such packing. {£)
996. Loss arising from the nature and character
Rail. Co., 13 C. B., N. S. 818 ; 31 L. {t) Talley v. Great West. Ry. Co.,
J., C. P. 271 ; 30 ib. 294. Belfast & L. R., 6 C. P. 44 ; 40 L. J., C. P. 9
Ballymena Rail. Co. v. Keys, 9 H. L. («) Hudson v. Baxendale, 2 H. &
C. 556. Great Northern Rail. Co. v. N. 575.
Shepherd, 8 Exch. 30 ; 21 L. J., Ex. (x) Beck v. Evans, 16 East, 244.
286. (j/) Stuart V. Crawley, 2 Start.
(j-) Le Conteur v. London. & South 324.
Western Ry. Co., L. R., i Q. B. 54 ; (2) Richardson v. North -Eastem
6 B. & S. 961 ; 35 L. J., Q. B. 40. Ry. Co., L. R., 7 C. P. 74 ; 41 L. J.,
C, P. 60.
Sec. IV.] CONTRACTS FOR CARRIAGE. 741
of the thing carried. — A common carrier is not liable
for the deterioration by ordinary wear and tear of the
goods carried, (a) or for loss arising from their inher-
ent tendency to decay or ignite. {U) Nor is he liable
for injury to animals, the result of some vice which, by
its own internal development, affects the animal with-
out any default or negligence of the carrier, (r)
997. Inability of railway and canal companies to
exempt themselves from responsibility for negligence.
— By s. 7 of the 17 & 18 Vict. c. 31, it is enacted that
every railway company shall be liable for loss of, or
injury to, any horses, cattle, or other animals, or to
any articles, goods, or things, in the receiving, {d')
forwarding or delivering thereof, occasioned by the
neglect or default of such company or its servants,
notwithstanding any notice, condition, or declaration
made and given by such company contrary thereto, or
in anywise limiting such liability. And it is declared
that every such notice, condition, or declaration shall
be null and void ; but nothing contained in the Act
is to prevent railway and canal companies from making
such conditions with respect to the receiving, forward-
ing, and delivering of horses, cattle, animals, articles,
goods, or things, as shall be adjudged by the court or
judge before whom any question relating thereto shall
be tried, to be just and reasonable ; but every notice,
condition, and declaration under the statute, however
reasonable, must be made in writing, and be signed in
(3) Brass v. Maitland, 6 El. & Bl. Kendall v. London & North- Western
470. Alstor V. Herring, 11 Exch. Ry. Co., L. R., 7 Ex. 373 ; 41 L. J.,
822. Ex. 184.
(B) Rohl V. Parr, i Esp. 444. Boyd (d) As to when a horse is received,
V. Dubois, 3 Campb. 133. see Hodgman v. The West Midland
I/) Blower v. Gt. West. Ry. Co., L. Ry. Co., 35 L. J., Q. B 233 ; 35 L.
R., 7 C, P. 655 ; 41 L. J- C. P. 268. J., Q. B. 85 ; 5 B. & S. 173 ; 6 B. &
S. 560.
742 LAW OF CONTRACT. [Bk. II. Ch. III.
the mode provided by the statute,' in order to be bind-
ing in law upon the sender, (e)
998. Declaration of value. — No greater damages
than _;^5o are to be recovered for loss of or injury to a
horse, (/) ;!^i5 per head for neat cattle, and £2 per
head for sheep and pigs, unless the person sending or
delivering the same to such company shall at the time
of such delivery have declared them to be of higher
value, in which case the company is entitled to de-
mand and receive, by way of compensation for the in-
creased risk and care thereby occasioned, a reasonable
per-centage upon the excess of the value so declared
above the limited sums to be paid in addition to the
ordinary rate of charge ; and such per-centage or in-
creased rate of charge is to be notified in the manner
prescribed by the 1 1 Geo. 4 & i Wm. 4, c. 68, and to
be binding upon the company in manner therein men-
tioned. (^)
999. Special contracts with railway and canal
companies for the carriage of goods and chattels. — By
the Railway and Canal Traffic Regulation Act (17 &
18 Vict. c. 31), it is further enacted (s. 7), that no
special contract between any railway or canal company
and any other parties respecting the receiving, for-
warding, or delivering of any animals, articles, goods,
or things, shall be binding upon or affect any such
party unless the same be signed by him, or by the
[e) McMaiius v. Lane. & York. {g) Hodgman v. West. Mid. Rail.
Rail. Co., 4 H. & N. 335 ; 28 L. J. Go., 5 B. & S. 173 ; 33 L, J., Q. B.
Ex. 35g. Peek v. North Staff. Rail. 233. As to dog.";, see Harrison v.
Co., 10 H. L. C. 473 ; 32 L. J., Q, B. Lond. &. Br. Rail Co., 2 B. & S. 122,
241. Simons V. Gt. West. Railw. Co., 152; 29 L. J., Q, B. 214; 31 L. J.
18 C. B. 805 ; 26 L. J., C. P. 25. Q. B. 113. As to the mode of declar-
(/) McCance v. Lond. & N. W. ing the value, see Robinson v. The
Rail. Co., 3 H. & C. 343 34 L. J., London & South Western Kail. Co.,
Ex. 39. ante.
' See ante, § 987.
Sec. IV.] CONTRACTS FOR CARRIAGE. 743
person delivering such animals, articles, goods, or
things respectively, for carriage ; but nothing therein
contained is to alter or aifect the rights, privileges, or
liabilities of any such company, under the 11 Geo. 4, &
I Wm. 4, c. 68, w^ith respect to articles of the descrip-
tion mentioned in that Act. Special contracts w^ith
railway and canal companies, therefore, for the carriage
of merchandise and chattels, are placed under the con-
trol of the judges, so that no contract signed by the
customer, regulating the liability of the company in
and about the safe keeping, preservation, and carriage
of such chattels, can protect the company, unless the
judge shall think the conditions imposed by the con-
tract just and reasonable ; and no condition, how^ever
just and reasonable, can protect the company, unless
it be contained in a contract signed in accordance with
the statute. (^) But no special contract signed ac-
cording to the statute is necessary to define the
nature and extent of the public profession of the com-
mon carrier and of the duties he undertakes in favor
of the public at large ; (?) and a contract not signed is
valid as against the company, (i)
1 000. What are unjust and imreasonable conditions
in special contracts for the carriage of chattels by rail-
■way or canal. — Whenever, in order to bring a railway
or canal company within the protection of a condition
or special contract, it is necessary to construe it as ex-
cluding responsibility for losses occasioned by the
company's negligence and misconduct, the condition
(h) Peek v. North Staff. Rail. Co., C. B. 829. McMamis v. Lane. &
70 H. L. C. 473 ; 32 L. J., Q. B. 241. York. Rail. Co.. 4 H. & N. 335 ; 28
Aldridge v. Gt. West. Rail. Co., 15 L. J.. Ex. 359.
•C. B., N. .S. 582 ; 33 L. J., Q. B. 161. {i) Ante.
AUday V. Gt. West. Rail. Co., 34 L. W Baxendale v. Great Eastern Ry.
J., Q. B. 5 ; 5 B. & S. 903. Lend & Co., L. R., 4 Q. B. 244. 251 ; 38 L. J.,
JsTorth-West. Rail. Co. v. Dunham, 18 Q. B. 137.
744 LAW OF CONTRACT. [Bk. II. Ch. IIL
or special contract is unreasonable and unjust, and
therefore void. (/) Where a railway company ac-
cepted horses for conveyance under a special contract
providing that the horses were to be carried at the risk
of the owner, and that the company were not to be
responsible for any injury, however caused, to horses
travelling upon the railway or in the company's vehi-
cles, and the company provided rotten and insecure
carriages, so that holes were made by the horses' feet
in the bottom of the carriages, and the animals were
injured, it was held that the special contract did not
protect the company from responsibility for the injury,
as the damage did not result from any of the risks
naturally incident to railway travelling, but from their
own negligence in not providing proper vehicles for
the conveyance of the horses, (ni) And, where a
railway company received goods to be carried under a
condition absolving them from all liability for the loss,
of, or damage to, goods insufficiently or improperly
packed, marked, directed, or described, the condition
was held to be unreasonable and unjust, as insufficient
packing, marking, or directing, &c., of goods constitu-
ted no sufficient ground for relieving the company from
all liability respecting the performance of the duty
they had undertaken to fulfill, (n) '
It is the duty of every railway or canal company
setting up a condition in qualification and restriction
(/) Peek V. North Staff. Rail. Co., Co., 2 H. & C. 951 ; 33 L. J., Ex. 155.
su/ira. Lloyd v. Waterford & Lim. Harrison v. Lond. Br. & S. C. Rail-
Rail, Co., 15 Jr. Com. I.aw Rep., Q. Co., 2g L. J., Q. B. 214 ; 31 L. J., Q.
B. 37. AUday v. Gt Western Ry. Co,, B. 113.
supra. Rootli v. N. East. R. Co., L. (n) Simons v. Gt. West. Rail. Co.,
R,, 2 Ex. 173 ; 36 L. J., Ex. 83. nn/e, Lond. & North-West. Rail.
(;«) McManus v. Lane. & York Co. v. Dunham, sufira. Garton v.
Rail. Co.. 4 H. & N. 335 ; 28 L. J. The Bristol & Exeter Rail. Co., E
Ex. 359. Gregory v. West. Mid. Rail. B. & S. 112 ; 30 L. J., Q. B. 273.
' Redfield on Carriers, § 149.
Sec. IV.] CONTRACTS FOR CARRIAGE. 745
of their common law liability to make out that the
condition is just and reasonable ; and, if they make an
extra charge for insuring the safe conveyance of live
animals, they must show that the extra charge is rea-
sonable and just. (0) '
1 00 1. What are just and r easonable conditions, —
It has been held that a condition that all claims for
loss or damage should be made within seven days
after the time when the goods have been delivered, is.
just and reasonable, (/>) also a condition that a railway
company will not undertake to forward goods by any
particular train, or be answerable for their non-arrival
in time for any particular market, {q) and that they
will not be responsible, under any circumstances, for
loss of market or other loss or injury arising from de-
tention of trains, exposure to weather, stowage, or
from any cause whatever other than gross neglect or
fraud, (r) or that they will not be responsible for the
risks attendant upon the carriage by railway of perish-
able articles, live animals, and chattels, such as acci-
dents occasioned by the fright or restiveness of horses,
or from the wheel of a carriage taking fire, {s) or loss,
arising from delay in forwarding fish, where it is
impossible to know the exact condition of the fish at
the time of its delivery to be carried, and where the
slightest delay in its transmission may occasion a vast
loss, (/) or for loss or damage to fragile materials
(o) Harrison v. Lond., Br. & S. C. R. Co., 2 C. B., N. S. 7 ; 26 L. J., C. P.
Rail. Co., Carton v. Britt. & Ex. Ry. 158. Lord v. Mid. R. Co., L. R., 2 C.
Co., Peek v. Nortli StaflF. &c. Co., ante. P. 339 ; 36 L J.. C. P. 170.
{p) Lewis V. Gt. West. Rail. Co., (r) Bealv. S.D. R. Co.,3 H. & C.337.
29 L. J., Ex. 425 ; 5H. &N. 867. (j) Austin v.Man.R. Co., 10 C.B. 475.
Kg) Beal v. S. Dv. R. Co., 5 H. & N. {t) Beal v. S. Dv. R. Co.,sufra. Wren
875:29L. J.,Ex.44i. Whitev. G. W. v. E. Co. R.Co.,35 Law T. R., Q. B. 5.
' So a regulation by a carrier of passengers that the passen-
ger must either pay fare or produce his ticket, is a reasonable
resulation. Tovvnshend v. N. Y., &c. R. R. Co., 6 Am. R. R. 1 60.
746 LAW OF CONTRACT. [Bk. II. Cn. III.
such as statuary or sculptured marbles, not occasioned
by the negligence of the company or its servants, (u)
If the company offers the consignor a boni fide prac-
tical choice, either to have his goods carried in the
usual way, at a reasonable rate, or at his own risk at a
lower rate, and he elects the latter, the condition is not
unreasonable. (:t;)'
1002. Liability of a railway company during sea
iransiL-^SSfhen a railway or canal company contracts
by through booking to carry any animals, luggage, or
goods from place to place, partly by railway and partly
by sea, or partly by canal and partly by sea, a con-
dition exempting the company from liability for any
loss or damage which may arise during the carriage by
sea of such animals, luggage, or goods from the act of
God, the king's enemies, fire, accidents from machin-
ery, boilers, and steam, and all and every other dangers
and accidents of the seas, rivers, and navigation, of
whatever nature and kind soever, will, if published in a
conspicuous manner in the office when such through
booking is effected, and if printed in a legible manner
on the receipt or freight note which the company gives
for such animals, luggage, or goods, be valid as part of
the contract between the consignor of such animals
(a) Peek v. North Staff. R. Co., ante, tended by the 25 & 27 Vict. c. 92, to
(x) Blackburne, J., ib. Stewart v. steam vessels employed by railway
London & North-Western Ry. Co., companies, as auxiliary to their line of
3 H. & C, 135 : 33 L. J., Ex. igg. railway, and to the traffic carried on
See Zunz v. South-Eastern Ry. Co., by means of such steam vessels. But
L. R,,4 Q. B. 539 ; 38 L. J., Q. B. 209. it does not apply to passengers' lug-
Van Toll V. Soulh-Eastern Rail. Co., gage, nor to goods received by the
12 C. B., N. S. 75 ; 31 L. J., C. P. 241. company for safe custody, and not for
The 17 & 18 Vict. i,. 31, s. 7, is ex- carriage.
' See Camden, &c., R. R. Co. v. Belknap, 21 Wend. 354;
Hickox V. Naugatuck R. R. Co., 31 Conn. 281.
Sec. IV.] CONTRACTS FOR CARRIAGE. 747
luggage, or goods and the company, in the same
manner as if the company had signed and delivered
to the consignor a bill of lading containing such con-
dition, (a)
Where a railway company, under a contract for
carrying persons, animals, or goods by sea, procure the
same to be carried in a vessel not belonging to the
company, they will be answerable in damages in re-
spect of loss of life or personal injury, or in respect
of loss or damage to such animals or goods during the
carriage in such vessel, in like manner, and to the same
amount, as they would be answerable if the vessel had
belonged to them, (by
1003. 0/ the implied authority of the servants
of a railway company to bind the company by special
contract. — " It is the duty of railway companies to
have some person capable of giving directions and of
dealing with everything that the exigency of the traf-
fic may require, and of granting any reasonable de-
mand. The persons who are said to be general super-
intendent and managing director have power to bind
the company as to all things within the scope of the
business of the company by any contract within the
limits of their employment." {c) If they act beyond
{a) 31 & 32 Vict. c. 119, s. 14. 4 Law T. R., N. S., Ex. 830. Robin-
(h) 34 & 35 Vict. c. 78, s. 12. son v. The Great Western Railw. Co.,
if) Brown v Brist. & Ex. Rail. Co., 35 L. J., C. P. 123.
' So where a line of passenger transportation, by stage-
coaches, was intersected by a ferry not belonging to the pas-
senger carriers, but hired to carry their stages across, the stage
company was held responsible for the negligence or miscon-
duct of the ferry company and its servants, as being, for the
time, the former's agents and servants ; McLean v. Burbank,
II Minn. 277.
748 LAW OF CONTRACT. [Bk. II. Ch. III.
the scope of their ordinary business, it must be shown,
in order to bind the company, that they are acting
under a special authority from the company, that is,
the board of directors, {d') But, if there is a particu-
lar course of dealing with which the consignor is ac-
quainted, he must be taken to know that the servants
have no power to bind the company on any but the
usual terms, {e) '
1004, Acceptance of goods to be carried beyond the
district traveled over by the carrier to whom they have
been delivered. — When a common carrier takes into
his care a parcel directed to a particular place, and does
not by positive agreement limit his responsibility to a
part only of the distance, that is prima facie evidence
of an undertaking on his part to carry the parcel to
the place to which it is directed, although the place
may be beyond the limits within which he ordinarily
professes to carry on his trade. His responsibility,
therefore, continues to the door of the address to
which the goods are destined ; and he can not release
himself from such responsibility by transferring the
goods to another carrier, or sending them by another
conveyance; (/") and it makes no difference whether
part of the carriage is by land and part by water, or
whether part of the distance is by railway, part by
water, and part by stage coach. (_^ ) If a railway com-
pany accepts goods for conveyance to a particular des-
tination beyond the limits of its own line of railroad,
and receives one entire payment for the whole journey,
and the goods are lost whilst in the hands of another
railway company to whom they have been delivered
(d) Taff Vale Rail. Co. v. Giles, 23 (/) Garnett v. Willan, 5 B. & Aid.
L. J., Q. B. 43. 53-
(<?) Slim V. Great Northern Rail., 23 {g) Wilby v. West Corn. Rail. Co.,
L. J., C. P. 168. 2 H. & N. 707.
' See ante, note i, p. 750.
Sec. iV.] CONTRACTS FOR CARRIAGE. 749
to be forwarded on their journey, the first railway
company is responsible for the loss, as being the party
contracting with the consignor or consignee, for the
conveyance of them ; {h) and a proviso in the contract
exonerating the company from all liability in respect
of loss of, or damage to, the goods occurring beyond
the limits of its own line of railway, from the negli-
gence of other companies to whom the goods have
been delivered to be forwarded, is repugnant and void,
(z) But if the company limits its public profession
of a common carrier to its own line of railway, and
undertakes merely to forward goods to another railway
company for further transit, and expressly receives the
price of such further transit for the mere purpose of
conveying it to such last-named company, they may
exempt themselves from liability for loss, damage, or
detention, after they have been delivered to other
carriers, and are no longer in their possession. (>^)
Railway companies may also enter into such arrange-
ments with one another as to become agents for one
another, and responsible for each other's acts, so that
a contract to carry and deliver cattle made with one
company may render the other liable for a breach oc-
curring on the line of the latter. (/) If one rail-
way company receives goods to carry part of the way,
and then transfers them to another company to carry
them to the place of destination, the agents of the
latter company are agents of the first company for re-
ceiving notice of countermand ; and if they receive
{h) Muschamp v. Lane, and Prest. (0 Brist. & Ex. Rail. Co. y. Collins,
Rail. Co., 8 M. & W. 421. Webber 7 H. L. C. 321.
V. Gt. West. Rail. Co., 3 H. & C. 771 ; (k) Aldridge v. Gt. West. Rail. Co.,
34 L. J., Ex. 170. Watson v. Am- 15 C. B., N. S. 382; 33 L. J., C. P.
bergate Rail. Co., 15 Jur. 448. 161.
Mytton V. Mid. Rail. Co., 4 H. & N. (0 Gill v. Manchester, &c., Rail.
620 ; 28 L. J., Ex, 385. Co., L. R., 8 Q. B. 186 ; 42 L. J., Q.
B. 89.
750 LAW OF CONTRACT. iBK.U.Qn.Ul.
such notice and pay no attention to it, the first com-
pany is responsible for the neglect, (m) * The con-
signor may receive the goods at any stage of the jour-
ney, and may alter their destination at his pleasure. («)■
1005. Effect of giving the carrier a wrong direc-
tion for the delivery of the goods. — If, after the car-
rier has fulfilled his part of the contract by conveying
the goods to the place to which they are directed, it
should appear that there is no such person as the one
to whom the goods are addressed, or if the consignee
refuses them, then an entirely new contract arises by
implication of law between the carrier and the con-
signor; the carrier holds the goods as the bailee of the
consignor, and is bound to take due and ordinary care
(m) Scothorn v. South Staff. Rail. («) London & N. W. Rail. Co. v„
Co., 8 Exch. 345. Croucli v. Gt. Bartlett, 7 H. & N. 400 ; 31 L. J.,.
West. Rail. Co., 27 L. J., Ex. 345; 3 Ex. 92. Butterworth v. Brownlow, ig.
H. & N. 201. C. B., N. S 409 ; 34 L. J., C. P. 266.
' A carrier who receives goods as a carrier, and not as a
forwarder, and forwards them to their destination from the
end of his line, in tlie exercise of a sound discretion, can not
be held responsible for want of notice of his action to the
owner or consignee. Cramer v. American, &c., Ex. Co., 56
Mo. 524. In Massachusetts, Connecticut, and Vermont, it is.
the rule that the first carrier is not liable for the negligence
of any other, unless he has assumed such liability by special
contract. Nutting v. Connecticut, &c., R. R. Co., i" Gray^
502 ; Hood V. Connecticut, &c., R. R. Co., 22 Conn, i ; Id. 502 ;,
Farmers', &c.. Bank v. Transportation Company, 33 Vt. 186.
In Connecticut it is said that the presumption is, that the first
carrier undertakes to be responsible only for his own default.
Hood V. Connecticut River R. R. Co., 22 Conn, i ; Converse
V. Norwich, &c., Co., 33 Id. 166. But in that state it has been
also held, that a carrier has no power to contract for the de-
livery of goods at the end of its line, and outside of the state;
Naugatuck R. R. Co. v. Waterbury Button Co., 24 Id. 168;,
and in New York it is held that the fact of a carrier receiving
goods addressed to a point beyond his route, is not prima
facie evidence of his undertaking to carry through to that
point. Fairchild v, Slocum, 19 Wend. 329; Redfield oa
Carriers, ch. xv., and cases cited.
Sec. IV.] CONTRACTS FOR CARRIAGE. 751
of them, and to deliver them to the consignor, on being
paid his fair and reasonable charges. (0)
1006. Payment of the fare or hire — Carrier's
lien. — When credit has not, by the express contract of
the parties, been given for the payment of the price of
the carriage of goods, the delivery of the goods to the
consignee and the payment of the price of the carriage
of them are concurrent acts to be performed at
the same time, so that the carrier is entitled to
retain possession of the things he has carried until he
receives or is tendered his hire for their conveyance.
If the consignee refuses to pay the sum demanded for
the carriage of them, the carrier is not justified in at
once sending them back to the place from whence
they came, but must hold them a reasonable time, to
see if the consignee will accept and pay for them. (/)
If he still refuses, the carrier then holds them at the
disposal and for the benefit of the consignor, and is
entitled to look to the latter for the payment of his
hire. But the carrier has no right of lien, by the com-
mon law, for anything beyond the price of the carriage
of the goods conveyed. He can not detain them
until he has received payment of a general balance due
to him from the owners of such goods, {g) When
goods delivered to be carried are received from the
wagon of the common carrier by the consignee, and
are merely carried into the warehouse to be weighed,
the carrier has no right to charge for warehouse-room ;
and if the goods are taken up on the road, and have
never been booked, he has no right to charge for the
(o) Metcalfe v. Lond. & Br. Rail. (/) Gt. West. Ry. Co. v. Crouch, 3
Co., 4 C. B. N. S. 318 ; 38 L. J., C. H. & N. 201. S. C. Crouch v. Gt.
P. 335. Heugh V. Lond. & North Western Ry. Co., 27 L. J., Ex. 345.
West. Ry. Co., L. R., 5 Ex. 51 ; 39 (?) Butler v. Woolcott, 2 B. & P.,
■ L. J., Ex. 48. McKeart v. M'lvot, L. N. R. 64.
R., 6 Ex. 36 ; 40 L. J., Ex. 30.
752 LAW OF CONTRACT. [Bic. II, Ch. Ill:
booking of them ; and if, after tender of the price of
the carriage, he detains them for these small charges,
the detention is unlawful, and an action may be brought
against him in respect thereof, (r)' If a railway com-
pany makes and posts at the offices and stations a by-
law to the effect that every passenger who loses his
ticket shall be liable to pay the full fare from the most
distant station on the line, the company has no power
to enforce the by-law by detaining the person of a
(r) Lambert v. Robinson, i Esp. 119.
' See Boggs v. Martin, 13 B. Mon. 239-243, The owner
may deduct the amount of injury received by goods from the
amount of the carrier's lien. Snow v. Carruth, 19 Month.
Law Rep. 198. The lien does not attach until the service has
been performed. Palmer v. Lorillard, 16 Johns. 348. A com-
mon carrier who innocently receives goods from a wrong-
doer, without the owner's consent, has no lien on them as
against the owner; Robinson v. Baker, 7 Cush. 137 ; even for
freight on them paid to a previous carrier; Stevens v. Boston,
&c., R. R. Co., 8 Gray, 262. A false and fraudulent promise
to pay charges upon goods, made to a carrier, for the purpose
of inducing a delivery, does not divest his lien, and he may
sue for the goods in replevin. Bigelow v. Heaton, 6 Hill, 43;
Hayes v. Riddle, i Sandf 248. The last carrier may detain
the goods until all charges during the transit are paid ; Lee
V. Salter, Lalor Supp. to H. & Denio, 163 ; this lien includes
charges of warehouse men and forwarders. See Cooper v.
Kane; 19 Wend. 386; Dawson v. Kettle, 4 Hill, 1007. Carri-
ers of passengers have a lien upon the baggage of a passen-
ger for the amount of his fare, but not upon his person.
McDaniel v. Robinson, 26 Vt. 316; Root v. Great Western
R. R. Co., 45 N. Y. 524. The carrier might, before this de-
cision, charge himself by proof of his usage of simply de-
livering to the next carrier ahead of him. Van Santvoord v.
St. John, 6 Hill, 157 ; Farmers', &c.. Bank v. Transportation
Co., 23 Vt. 186. Where a telegraph company agrees to trans-
mit a message to its final destination, it is liable for the
negligence of connecting lines. Shearman and Redfield on
Negligence, § 562.
Sec. IV.] CONTRACTS FOR CARRIAGE. 753
passenger who has lost his ticket and refuses to pay
the specified amount, (j)
1007. Common carrier's charges — Railway
charges — By-laws — The statutes requiring justices of
the peace to assess and fix the price of all land car-
riage of goods have long since been repealed ; (/) but
the hire or charge for^ the carriage must be fair and
reasonable, and must not exceed the ordinary and cus-
tomary rate of remuneration. If a person sends to a
carrier's office to know his rate of charge, the carrier is
bound by the representation there made by his clerks ;
and, if goods are sent upon the faith of such represen-
tation, the carrier can not charge more than the sum
named, although the clerk may have inadvertently
fallen into a mistake, (u) When, by a railway Act, it
is enacted that the word " toll " shall include the
charge for. goods conveyed by the railway, whether
for the use of the railway, or for the moving power, or
for the use of the carriage, prima facie it includes
everything that a carrier does, and for which he is en-
titled to charge, {x') By the acts of parliament under
which railway companies are incorporated, it is gener-
ally provided that the charges for the carriage of goods
shall be reasonable and equal to all persons. Where
a railway company acted as a common carrier of
goods, and issued certain scales of charge for the car-
riage, including the collection, loading, unloading, and
delivery, and also carried goods for other carriers, to
whom they have made certain allowances for collec-
tion, &c., but in their dealings with a particular carrier
(j) Chilton V. Lond. & Croyd. Rail. («) Winkfield v. Packington, 2 C. &
Co., i6 M. & W. 212 ; i6 L. J., Ex. P. 600.
go. (*■) Pegler v. Monm. Rail. & Can.
(/) 7 & 8 Geo. 4, c. 39. Co., 6 H. & N. 644 ; 30 L. J., Ex.
249.
11.-48
754 J-AW OF CONTRACT. [Bk. II. Ch. III.
they refused to make these allowances, it was held
that the charges to the latter were not equal or rea-
sonable, and that he might recover from the company-
divers extra charges paid by him over and above what
had been charged to other carriers and to the public,
such payments not being voluntary, but made in order
to induce the company to do that which they were by
law bound to do without requiring such payments.
No distinction must be made by the company between
one class of persons and another. The company can
not, therefore, charge a person, who is himself a com-
mon carrier, for a parcel or package, whatever may be
its contents, more than it would charge one of the
public, (y ) Charges for collection and delivery of
parcels can not be included in the general charge for
the carriage, so as to impose upon parties who do not
require these services, and do not avail themselves of
them, the burthen of paying for them, (z) No un-
reasonable preference or advantage can lawfully be
given to any particular person or company, or to any
particular description of traffic, (a) But the fair in-
terests of the railway company must be taken into
consideration ; and they are entitled to make a differ-
ence in their charges where it is shown that there is a
diflFerence in the cost of carriage to the company, and
in the labor and expense incurred by them in the de-
livery of the goods, (d)
1 008. Carriage of packed parcels. — A railway
'(» Parker -v. Gt. West. Rail. Co., ,(a) 17 & 18 Vict. c. 31, s. 2.
7 M. & Gr. 253 ; 7 Sc. N.R. 835 ; 11 C. (*) Ransome v. E. Co. Rail. Co., I
B. 545 ; 21 L. J., C. P. 57. Parker v. C. B., N. S. 437. Oxlade v. North-
Briit. & Ex. Rail. Co., 6 Exch. 702. East. Rail. Co., ib. 454. Baxendaile
(z) Baxendale v. Gt. West. Rail. Co.. v. East. Co. Rail. Co., 4 C. B., N. S.
16 C. B.,T^. S. 137; 33 L. J., C. P. 81 ; 27 L. J., C. P. 137. As to
197. Garton v. Bristol & Exeter Rail, tonnage rates and parcel rates, see
Co., I B. & S. 112 ; 30 L. J., Q. B. 273. Parker v. Gt. West., 6 Ell. & Bl. 103.
Sec. IV.] CONTRACTS FOR CARRIAGE. 755
company has no right to make an increased charge for
packed parcels, in order to prevent carriers from enter-
ing into competition with them in the conveyance of
goods ; and there is no difference between a packed
parcel sent to an individual containing parcels belong-
ing to a variety of people, and parcels sent to an indi-
vidual all the contents being his own. {c) But in
certain cases ao extra charge might be made for in-
creased risk ; (d) and, if the company has to make
separate deliveries to several different persons, they
are entitled to make an additional charge in respect
of the increased trouble. (/) When the duty of mak-
ing equal charges to all persons is not imposed upon
the company, they may impose a different rate of car-
riage for packed parcels from what they charge for
ordinary packages. (/)
1009. Charge for luggage by excursion trains. —
Where a passenger by an excursion train, knowing that
the railway company did not allow passengers to carry
luggage by such trains, nevertheless secretly put lug-
gage into the train, it was held that the law would im-
ply a promise from the wrongdoer to pay the company
for the carriage of it. (^)
1010. Notice of action to railway companies. —
When an Act of Parliament constituting and incorpor-
ating a railway company provides that no action
should be brought against the company for anything
(c) Pickford v. Grand June. Rail. Western Ry. Co. v. Sutton, L. R., 4
Co., 10 M. & W, 399. Crouch v. Gt. H. L. 226 ; 38 L. J., Ex. 177.
North. Rail. Co., 11 Exch. 755. [d) Garlon t. Bristol & Ex. Rail.
Piddington v. S. E. R. Co., 5 C. B., Co., 4 H. & N. 49 ; 28 L. J., Ex. 169.
N. S. 120 ; 27 L. J., C. P. 295. Bax- (e) Baxendale v. East. Co. Rail. Co.,
endale v. The London and South TUpra.
Western Rail. Co., L. R., r Ex. 127 ; (/) Branly v. S. E. Rail. Co., 30 L.
35 L. J., Ex. 108. Garton v. Brist. & J., C. P. 286 ; 12 C. B., N. S. 63.
Exeter Rail. Co., supra. Great {,g) Rumsey v. N. E. R. Co., 32 L.
J., C. P. 245 ; 14 C. B., N. S. 641.
756 LAW OF CONTRACT. [Bk. II. Cii. III.
done or omitted to be done pursuant to the Act, or in
execution of the powers and authorities given by the
Act, unless previous notice in writing shall have been
given by the party intending to prosecute such action,
or unless such action shall have been brought within
a certain limited period, the enactment does not, in
general, extend to actions ex contractu, and does not
restrain or affect the liability of the company upon
contracts entered into by it in its character of a com-
mon carrier. The omission by a plaintiff, consequently,
to give such notice does not preclude him from recov-
ering damages against the company for its negligence
or misconduct, or for a breach of those duties and
obligations which result from the nature of its em-
ployment as a common carrier. (A) But, where the
parties were trying, in an action ex contractu, the
right of the company to make certain charges under
the particular provisions of their Act of Parliament,
the action was considered to be brought for something
done under the Act, and notice of action was held to
be necessary, (z)
lOII. Of the parties to be made plaintiffs in
actions against carriers for the loss of, or injury to,
goods. — The action against a carrier for the loss ot
goods entrusted to him for conveyance should, in the
absence of an express contract for the carriage of
them, be brought by the owner of the goods ; for with
him, as the party damnified, is the implied contract for
their safe conveyance deemed to be made. When
goods are delivered to a carrier in execution of a con-
tract of sale, for the purpose of transmission to an in-
tended purchaser, and no express contract founded
{K) Palmer V. Grand June. Rail. Co,, 5 Q. B. 747.
4 M. & W. 749; 7 Dowl. P. C. 232. (i) Kent v. Gt. West. Rail. Co., 3
Carpue v. Lond. & Bright. Rail. Co., C. B. 714 ; i6 L. J., C. P. 72.
Sec. IV.] CONTRACTS FOR CARRIAGE. 757
upon a pecuniary consideration moving from the con-
signor has been entered into between the carrier and
the consignor for the carriage of them, the law raises
an implied promise for their safe conveyance in favor
of the party in whom the right of property in the goods
is at the time vested. If, therefore, the right of prop-
erty and the risk of loss have, by a previous contract
of purchase and sale, or a contract to send the goods
in satisfaction and discharge of a debt due from the
consignor to the consignee, passed to the consignee,
the latter is the only party entitled to sue the carrier
for an injury to the goods, v^rhether such carrier be a
carrier by land or a carrier by water, and whether he
be named by the purchaser or chosen by the vendor.
{k) If, on the other hand, from fraud or non-com-
pliance with the requisites of the Statute of Frauds,
no actual sale has taken place so as to transfer the
right of property and the risk of loss from the con-
signor to the consignee, the consignor is the proper
party to maintain the action. (/) So, if a tradesman
merely sends goods for approval to a particular cus-
tomer, or on terms of "sale or return," or sends
goods of the value of ^10 and upwards pursuant to
an oral order or an oral contract of sale, to a person
w\iO has not given " earnest " or made a part payment,
or accepted any part of the goods, and the contract
is void by reason of non-compliance with the provis-
ions of the Statute of Frauds, then, as there has been
no actual sale so as to transfer the right of property
(k) Dawes v. Peck, 8 T. R. 332. Harden, 4 East, 217. Evans v.
Button V. Solomonson, 3 B. & P. 5S4. Nichol, 4 Sc. N. R. 43.
Dunlop V. Lambert, 6 01. & Ein. 600. (/) Coombs v. Brist. & Ex. Rail.
Brown v. Hodgson, 2 Cambp. 36. Co., 3 H. & N. 510 ; 27 L. J., Ex.
King V. Meredith, ib. 639. Fragano 401. DufF v. Budd, 6 Moore, 469.
V. Long, 4 B. & C. 219. Coxe v. Stephenson v. Hart, I M. & P. 357 ;
4 Bing. 476.
7S8 LAW OF CONTRACT. [Bk. II. Ch. III.
and the risk of loss to the consignee, the consignor is
the party to sue the carrier, {m) But, when a special
contract has been entered into between the carrier and
the consignor, whereby the carrier, in consideration of
a sum of money paid or agreed to be paid by the con-
signor as the price of the carriage of goods, agrees
with him to convey them to the consignee, it is no
answer to an action brought by the consignor against
the carrier upon such special contract to say that he is
not the owner of the goods. In such a case the ac-
tion may be brought either by the consignor with
whom the express engagement was made, or by the
consignee, as the owner of the goods in whose behalf
it was made. («)
Where the plaintiff, the consignor, having received
goods from Amsterdam to be transmitted to the con-
signee in Surinam, shipped them on board the de-
fendant's vessel, upon a bill of lading which stated that
the goods were shipped by the plaintiff, that
they were to be delivered in Surinam to the
consignee or his assigns, and that the freight was paid
by the plaintiff in London, it was held, by Lord Ellen-
borough, that the defendant, after having signed such
a bill of lading, could not bring the ownership of the
goods into question. The consideration upon which
the contract was founded moved from the plaintiff;
the undertaking was made to him ; and he was there-
fore entitled to maintain the action to recover the
value of the goods, and would hold the sum recovered
as a trustee for the real owner, (o) Where a laundress
residing at Hammersmith, was in the habit of em-
(m) Coates v. Chaplain, 3 Q. B. v. Wilson, I T. R. 659. Dunlop v.
489. Lambert, 6 CI. & Fin. 600.
(«) Davis V. James, 5 Burr. 2680. (o) Joseph v. Knox, 3 Campb. 320.
Bell V. Chaplain, fiord. 321. Aloore Sargent v. Morris, 3 B. & Aid. 277.
Sec. IV.] CONTRACTS FOR CARRIAGE. 759
ploying a carrier to convey linen from Hammersmith
to the consignee at London, and the carrier was paid
by the laundress, it was held that the latter was en-
titled to maintain an action upon the special contract
against the carrier for the loss of the goods by the
way, although they belonged to the consignee. (/)
In these cases the bailee of the goods, who has a
special property in them, may enforce the express
contract entered into with the carrier, unless his prin-
cipal interferes to prevent him. "The rule is, that
■either the bailor or the bailee may sue ; and, which-
ever first obtains damages, it is a full satisfaction." (^)
But a settlement for loss or damage, made with a per-
son bringing the goods to the carrier, which person
has no property or interest in the goods, will not be
an answer to an action by the owner, (r)
1 01 2. yoint bailments to common carriers. —
Where a box delivered to a carrier to be carried, con-
tained things belonging to each of the plaintiffs separ-
ately, but none in which they had a joint ownership,
it was held that nevertheless there was a joint bail-
ment in respect of which they might sue jointly, {s)
1 013. Parties to be made defendants — Carriage
■of goods and passengers over distinct lines of railway.
— We have already seen that, where goods are delivered
to, and received by, a railway company to be carried to
a particular destination, the railway company receiving
the goods is the jDarty to be sued for the loss of or
damage to them, although the loss or damage has been
sustained on the line of a second or third railway
(/) Freeman v. Birch, i N. & M. (r) Coombs v. Bristol & Ex. Rali.
420.
( q) NicoUs V. Bastard, 2 C. M. & {s) Metcalfe v. Lend. & Br. Rail,
JR. 660. Co., 4 C. B., N. S. 318 ; 27 L. J., C
Co., 3 H. & N. I ; 27 L. J., Ex. 269.
Co., 4 (
P. 335-
76o- LAW OF CONTRACT. [Bk. II. Cir. III.
company, to whom they have been delivered by the
first railway company to be carried to their place of
destination. The contract is made with the first rail-
way company to whom they have been delivered, and
to whom the hire for the entire journey has been
paid ; (^f) but both companies may, under certain cir-
cumstances, become joint contractors for the convey-
ance of the goods. («) The same rule prevails with
regard to the passenger and his luggage, so that, if one
fare is paid and one ticket given for the entire jour-
ney, the contract is with the company issuing the
ticket and receiving the money, and not with a second
or third railway company over whose line the passen-
ger is traveling in order to reach his destination, (x)
And the company with which the contract is made
will be liable for the negligence of such other railway
company, the contract being that due care shall be
used in carrying the passenger from one end of the
journey to the other, so far as is within the compass of
railway management. (j|/) But every railway com-
pany which allows its railway to remain open for pub-
lic traffic is responsible to passengers who sustain
injury from the line being unsafe and dangerous, al-
though such persons are conveyed along it in the
carriages of some other company. (2)
I0I4> Damages in actions against carriers. —
Generall)'- speaking, when articles of merchandise, such
{() Brist. & Exeter Rail. Co. v. Col- North-Eastern Ry. Co., L. R., 3 Q.
liiis, 7 H. L. C. 231. Coxon .. Gt. B. 349 ; 37 L. J., Q. B. 258.
West. Rail. Co., 5 H. & N. 274: 29 (y) Thomas v. Rhymney Ry. Co.,.
L. J., Ex. 165. L. R., 6 Q. B. 266 ; 40 L. J., Q. B.
(;<) Hayes V. South Wales Rail. Co., 8g. But see Wright v. Midland Ry.
9 Ir. Com. Law Rep., C. P. 474. Co., L. R., 8 Ex. 137 ; 42 L. J., Ex.
(x) Mylton v. Mid. Rail. Co., 4 H. 89.
& N. 621 ; 28 L. J., Ex. 385. Great (s) Birkett v. Whitehaven, &C.,.
Western Ry. Co. v. Blake, 7 H. & N. Rail. Co., 4 H. & N. -38; 28 L. J.„
987 ; 31 I,. J., Ex. 346. Buxton v. Ex. 348.
Sec. IV.] CONTRACTS FOR CARRIAGE. 761
as corn, hops, hemp, &c., are delivered to a carrier to
be carried to a market town, and the carrier fails to
deliver them in the ordinary course, and the goods
come to a fallen market, the difference between the
marketable value of the goods at the time they would
have been sold if they had been carried according to
contract, and their marketable value at the earliest
period at which they could have been brought to mar-
ket after their delivery to the consignee, will be the
measure of damages recoverable, (a) If the goods
have been lostaltogether, the consignee is not restricted
to the value of the goods at the place where they
were delivered to the carrier to be carried ; but, if
their marketable value was greater at the place of des-
tination than at the place of consignment, the con-
signee is entitled to reco\rer that difference, as being a
loss likely to arise in the ordinary course of trade. (Sy
If there is no market at the place of delivery, the dam-
ages must be ascertained by taking into consideration^
in addition to the cost price and expense of transit,
the reasonable profit of the importer. (/) Where
goods were delivered to a carrier by sea to be carried
from Glasgow to Vancouver's Island, and on the ar-
rival of the ship at the latter place they could not be
found, it was held that the true measure of damages
w^as the cost of replacing the lost articles in Van-
couver's Island, with interest at 5 per cent, on the
amount until judgment, by way of compensation for
the delay, {d) '
In an action against a common carrier for loss sus-
(«) Rice V. Baxendale, 30 L. J., Ex. Co., supra.
371. O'Hanlan v. Gt. Western Rail. (c) British Columbia Saw Mill Co.
Co., 6 B. & S. 484 ; 34 L. J., Q. B. v. Nettleship, L. R., 3 C. P. 499,
t54. (d) Collardv. S. E. Ry. Co., 30 L.
(b) O'Hanlan v. Gt. Western Rail. J., Ex. 393.
' Kyle V. Laurens R. R. Co., 10 Rich. 382.
762 LAW OF CONTRACT. [Bk. II. Ch. Ill,
tained by long delay in the delivery of articles of merchan-
dise intrusted to him to be carried, whereby the con-
signee had lost the season for selling them to advan-
tage, and the marketable value of the articles was se-
riously diminished, it was held that the carrier was an-
swerable for this loss, it being such as might naturally
be expected to result from great delay in delivering
articles of merchandise, (e) But the plaintiff is not
entitled to recover damages for loss of wages of work-
men kept unemployed by reason of the non-arrival of
the goods, or for loss of profit which might have been
made if the goods had been delivered in due course, if
the carrier had no notice of the purpose for which the
goods were wanted ; (/) and if the carrier held the
goods, at the time of the loss, in the character of a
warehouseman, he can not, in general, be made respon-
sible for more than the actual value of the goods. (_^) '
(e) Wilson v. Lane. & York. Rail. Amberg., &c. , Ry. Co., 15 Jur. 448;
€0., 9 C. B., N. S. 632 ; 30 L. J., C. And see Home .. Midland Ry. Co.,
P. 233. L. R., 8 C. P. 131 ; 42 L. J„ C. P. 59:
(/) Le Peinteurv. S. E. Rail. Co., (^) Henderson v. N. E. R. Co., 9
56 Law T. R. 170. Hadley v. Eaxen- W. R. 519.
dale, 23 L. J., Ex. 179. Watson v.
" The rule of damages in cases of delay is stated anfe, in
note I, p. 721. If the carrier's neglect is not the proximate
cause, he is not liable, as where lie is longer upon the route by
reason of having a lame horse, and is so overtaken by a deso-
lating flood. Morrison v. Davis, 20 Pa. St. 171. He is not
liable for a decline in the price of goods when the delay was
inevitable; Lepford v. Railroad Co., 7 Rich. 409; 13 Gra)',
481 ; Galena, &c., R. R. Co. v. Roe, 18 111. 488; or he may be
liable for interest on the value of the thing lost ; Kyle v.
Laurens R. R. Co., lo Rich. 382. Prospective profits will not
be allowed to enter into the measure of damages. Redfield
on Carriers, § 31. The value of the goods at the place of des-
tination is the true rule of damages. Harris v. Panama R. R.
Co., 3 Bosw. 7; Greeffv. Swetzer, 11 La Ann. 324; Taylor
V. Collier, 26 Ga. 122 ; Dean v. Vaccaro, 2 Head. 488 ; Davis
V. New York, &c., R. R. Co., i Hilt. 543 ; Michigan, &c., R.
R. Co. V. Carter, 13 Ind. 164; Spring v. Haskell, 4 Allen, 112.
Sec. IV.] CONTRACTS. FOR CARRIAGE. 763
If the plaintiff, being the consignor of horses, or
other articles, makes a declaration of value which is
below their real value, in order to get them carried at
a lower rate of charge, he will be bound by his declar-
ation of value, and can not recover more than he has
himself declared. (/?)
1015. (Contracts for the transmission of messages
by electric telegraph — Limitation of liability. — Acts
of Parliament under which electric telegraph companies
are incorporated, generally provide that the telegraph
shall be open for the sending and receiving messages
by all persons alike, without favoror preference subject
to any reasonable regulations made by the company.
It has been held to be a reasonable regulation for the
company to stipulate that they will not be responsible
for mistakes made in the transmission of messages,
unless the messages are repeated, and an additional
payment is made for such repetition of the message,
(z') If a telegraph company negligently makes a
mistake in the transmission of a message, it is liable
to the sender only, and not to the receiver, although
the latter may have acted on the message so erroneously
transmitted, and may have sustained damage by so
doing. (Ji) '
(h) McCance v. Lond. & North- {b) Playford v. The United King-
West. Rail. Co., 34 L. J., Ex. 39. dom Electric Telegraph Company,
ii) McAndrew v. Elect. Tel. Co., 17 Limited, L. R., 4 Q. B. 706 ; 38 L.
C. B. 13. J-. Q- B. 249.
When goods are damaged, the owner can not refuse to receive
them, and sue the carrier tor total loss; Shaw v. South Caro-
lina R. R. Co., 5 Rich. 162; but the carrier is only liable for
the damage ; Id. Michigan, &c., R. R. Co. v. Bivens, 13 Ind. 263.
' Telegraph companies are common carriers ; but they will
not be subjected to the same severe rule of responsibility of
common carriers of merchandise, but held liable only for neg-
ligence, or willful misconduct. Leonard v. Albany, &c., Tele-
graph Co., 41 N. Y. 544 ; De Rutte v. New York, &c.. Tele-
graph Co., I Daly, 547 ; New York & Washington Tele-
;64 LAW OF CONTRACT. [Bk. II. Ch. III.
1 0 1 6. Proof of a jus tertii by the common car-
rier.— A common carrier is not estopped from dis-
puting the title of the person from whom he has re-
ceived goods to be carried, or from disputing the title
of the consignee, and showing that the real ownership
of the goods is vested in some third party who has
come forward and claimed the goods and received them
from the carrier. (/)
(/) Sheridan v. New Quay Co., 4 C. ruling Laclough v. Towle, 3 Esp.
B., N. S. 618 ; 28 L. J., C. P. 58. 114.
Cheesman v. Exall, 6 Exch. 344, over-
graph Co. V. Dryburg, 35 Pa. St. 298 ; Parks v. Alta, &c.
Telegraph Co., 13 Cal. 422; Western, &c., Telegraph Co. v.
Carew, 15 Mich. 525 ; Breese v. United States Telegraph Co.,
45 Barb. 274; Binney v. New York, &c., Telegraph Co., 18
Md. 341 ; Shearman & Redfield on Negligence, 556 ; Ellis,
V. American Telegraph Co., 13 Allen, 226. "The degree of
care which a telegraph company is bound to use may be
called ' ordinary,' if we measure the meaning of that word
solely by reference to the kind of care which a man of ordi-
nary prudence would use in telegraphing for himself. But as
compared with almost any other kind of business, the care re-
quired of a telegrapher would be called 'great care.' " Shear-
man & Redfield on Negligence, § 557. So it has been held
culpable negligence in a telegraph compan)' to keep an opera-
tor who does not know of the existence of an adjoining town ;
Western, &c.. Telegraph Co. v. Buchanan, 35 Ind. 430 ; or the
mistake of one letter in a word, which caused a loss of many
hundred dollars ; N. Y. & Washington Telegraph Co. v.
Dryburg, 35 Pa. St. 298. It is said that, although the contract
is between the telegraph company and the sender of the mes-
sage, the receiver may sue upon it, since it is for his benefit;
Shearman & Redfield on Negligence, § 560 ; citing as to
the right of a third person to sue upon a contract made for his
benefit. Lawrence v. Fox, 20 N. Y. 268 ; Burr v. Beers, 24
Id. 171 ; Steman v. Harmon, 42 Pa. St. 49.
END OF VOL. IL
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