TROVER for six stacks of oats. Pleas: first, not guilty; 1841. Thursday, April 15th. On a contract for the sale of as a specific chat at tel on credit, second, that the plaintiff was not possessed of the oats "Sold to Mr. John Martindale six oat stacks, for eighty-five pounds. John Smith gives John Martindale liberty to let the stacks stand, if he thinks fit, until the middle of August next; and John Martindale to pay John Smith for the stacks in twelve weeks from the date hereof." time, without express stipulation, is not of the essence of the con tract; and price, though The plaintiff did not pay or tender payment of the pur- vendor to rechase money to the defendant within the twelve weeks. cover such VOL. 1.-G. D. chattel. The vendor cannot rescind the contract on non-payment at the day. B 1841. MARTINDALE 0. SMITH. Before the expiration of the credit the defendant told the plaintiff that if he did not pay the purchase money on the Monday, the 16th July, which was the last day of the twelve weeks, he should not have the oats. Two days after the expiration of the twelve weeks, the plaintiff tendered the purchase money to the defendant, and offered to pay interest for the intervening time; but the defendant refused to accept the money, and then and immediately before the tender he asserted his right to deal as he pleased with the oats, and refused to give possession of them to the plaintiff. A formal demand and refusal were also proved. On the S1st July the defendant gave the plaintiff a written notice that, he having failed in performing his part of the contract, the defendant considered the contract at an end, and meant to keep or dispose of the stacks as he thought proper. The defendant subsequently sold and delivered the oats to another party. Upon this evidence the learned judge directed a verdict to be given for the plaintiff, reserving leave to move to enter a verdict for the defendant on the second issue. In the Easter term following a rule was obtained accordingly; against which It cannot Alexander and Knowles shewed cause (a). be disputed that by this contract the property in the oats, which must be treated as a specific chattel, passed immediately to the plaintiff: Tarling v. Baxter (b). If any injury had happened to them, the plaintiff must have borne the loss; and the only consequence of the non-payment could be to give the vendor a lien, which would be determined by the tender: Bloxam v. Sanders (c), Dixon v. Yates (d). The case of Langford v. Tiler (e) was a sale of goods not upon credit, and there it was held that the (a) In Hil. T. last, March 18. & R. 272. (c) 4 B. & C. 941; S. C. 7 D. & R. $96. (d) 5 B. & Ad. 313; S.C. 2 N. & M. 177. (e) 6 Mod. 162; S. C. 1 Salk. 113. contract was determined by the neglect of the vendee to pay, after a request by the vendor to him to take them away within a reasonable time: but in Greaves v. Ashlin (a), Lord Ellenborough held that the vendee's neglect to take away goods within a reasonable time did not entitle the vendor to put an end to the contract, though it might make him liable to pay warehouse room, or to an action for not removing them, should the vendor be prejudiced by the delay. In Wilmshurst v. Bowker (b) the contract of sale was conditional upon the delivery by the vendee to the vendor of the draft upon a banker; and, that not having been done, it was held that the former was not in a condition to maintain trover, he never having had the right of possession; but the Court of Common Pleas appear to have been of opinion that he might have maintained a special action upon the case for any damage sustained by him in consequence of a resale by the vendor. Coslake v. Till (c) has been cited to prove that the time stipulated in such an agreement as this is of the essence of the contract; but that was an agreement for the purchase of stock in trade, fluctuating in amount; and Lord Gifford decided the case expressly on the ground, that, "where the subjectmatter which is to be bought and sold is in its very nature exposed to daily variations, time must necessarily form a very material ingredient in the contract." According to the terms of this contract, the failure to observe a condition by the one party does not entitle the other to rescind the contract, which could not be but by consent or on the ground of fraud: Gompertz v. Denton (d). There was no evidence to shew that it was any part of the original agreement, or that before the day of payment it was agreed by the parties, that on a failure of payment the vendor should be at liberty to rescind the contract; nor indeed could such evidence be admitted, for that would be (a) 3 Camp. 426. (b) 5 Bing. N. C. 541; S. C. 7 Scott, 561. (c) 1 Russ. 376. (d) 1 C. & M. 207. 1841. MARTINDALE v. SMITH. 1841. MARTINDALE บ. SMITH. to vary a contract, required by the Statute of Frauds to be in writing, by parol: Greaves v. Ashlin (a), Goss v. Lord Nugent (b). Cresswell (with whom were Dundas and Ramshay), in support of the rule. The question, in whom was the property in the oats, is not material in this case. The real question is whether, at the time the action was brought, the plaintiff had the right of possession. The plaintiff had not the right of possession; for, having broken the contract himself in a material part, he has no locus standi in court to complain of any subsequent breach of contract by the defendant. In addition to this objection to the plaintiff's right to recover, the authorities shew that the defendant, upon the failure of the plaintiff to perform his part of the contract, had a right to rescind it. Here the whole consideration for the defendant's contract failed. The failure of performance by the plaintiff, and the positive assent of the defendant to a rescinding, are equivalent to an agreement by both parties to rescind, though one party alone could not rescind; Hunt v. Silk (c). The time was of the essence of the contract. The case of Wilde v. Fort (d) decided that, “if the vendor of an estate by auction does not shew a clear title by the day specified, the purchaser may recover back his deposit and rescind the contract, without waiting to see whether the vendor may ultimately be able to establish a good title or not." Sir E. Sugden (e) speaks of the rule of law as clear, that "the time fixed is, at law, of the essence of the contract;" and, after remarking upon the relaxation of this rule which exists. in courts of equity in suits for specific performance, he observes that it is perhaps a subject of regret that equity 28. (a) 3 Campb. 426. (b) 5 B. & Adol. 58; 2 N. & M. (c) 5 East, 449. (d) 4 Taunt. 334. (e) Vend. & Purch. 10th edit. 402. should have assumed a power of dispensing with the literal observance of the rule. In Hagedon v. Laing (a) it was held that the limitation of time for payment was by way of indulgence to the vendee, and, though not called upon to decide the point, the Court appear to have been strongly of opinion that, after the day, the vendee, who had made default in payment, had lost all interest in the subject of the contract. There was an attempt at the trial to prove a parol dispensation, by the defendant, with the observance by the plaintiff of the period of payment; but such a fact, if proved, clearly would have been inoperative: Stead v. Dawber (b), Marshall v. Lynn (c). Stead v. Dawber (b) is an authority for the position that in such a contract as this, time is of the essence of the contract. Cur, adv. vult. Lord DENMAN C. J. now delivered the judgment of the Court. The plaintiff had purchased of the defendant six stacks of oats for 85l., to be paid for at the end of twelve weeks. By the contract defendant had given plaintiff liberty to let them stand on his premises, where they remained till defendant gave plaintiff notice, that unless they were paid for within the twelve weeks he should not have them. Plaintiff demanded them and tendered the price, but after the stipulated time. Defendant refused to give them up, and converted them to his own use. Plaintiff brought this action of trover for them. The pleas were not guilty, and that plaintiff was not possessed of the stacks as his own property, when the case appeared to be as above stated. Having taken time to consider of our judgment, owing to the doubt excited by a most ingenious argument, whether the vendor had not a right to treat the sale as at an end, and reinvest the property in himself, by reason of the vendee's failure to pay the price at the appointed time, we are clearly of opinion that he had no such right, and that the action is (a) 1 Marsh. 514. (c) 6 M. & W. 109. 1841. MARTINDALE v. SMITH. |