1866. NICHOLSON V. BRADFIELD Union. they afterwards accepted, and it was held no answer to an action for the price that the contract was not under seal, as the purposes for which the guardians were incorporated Guardians of required them to provide such articles. And this is confirmed by Haigh v. The Guardians of North Bierley Union (a). Those decisions are founded in justice. In the former case Wightman J. asked, can the Corporation receive and keep the benefit, and then refuse to pay for the goods supplied because there was no contract under seal? [Blackburn J. referred to The London Dock Company v. Sinnott (b).] The preceding cases are supported by Reuter v. The Electric Telegraph Company (c), Henderson v. The Australian Royal Mail Steam Navigation Company (d). [Blackburn J. Those were trading Companies. The other side will probably not dispute that such Companies are liable. The great authority against you is Lamprell v. The Guardians of the Billericay Union (e).] That case is referred to and overruled in Clarke v. The Guardians of the Cuckfield Union (f). [Blackburn J. True. But Lord Wensleydale always considered the decision of the Exchequer in Lamprell v. The Guardians of the Billericay Union (e) as right and Clarke v. The Guardians of the Cuckfield Union (f) as wrong.] The defendants having accepted and had the benefit of the coal, justice requires that they should pay for it. [Blackburn J. Part of the plaintiff's claim at least seems untenable.] is willing to make any proper deductions. The plaintiff Harington (J. O. Griffits with him), for the defendants. It must be conceded that Clarke v. The Guardians of the (a) E. B. & E. 873. (c) 6 E. & B. 341. (b) 8 E. & B. 347. (d) 5 E. & B. 409, ad id. (e) 3 Exch. 283. (f) 21 L. J. Q. B. 349; 16 Jur. 686; Bail Court Cas. 81. 1866. NICHOLSON V. Guardians of Cuckfield Union (a) and Haigh v. The North Bierley Union (b) are authorities in favour of the plaintiff, and that they are more or less supported by several others, such as The East London Waterworks Company v. Bailey (c), Arnold v. The Mayor &c. of Poole (d), The Mayor of Ludlow v. Charlton (e), Diggle v. The London and Blackwall Railway Company (ƒ), Homersham v. The Wolverhampton Waterworks Company (g), Paine v. The Guardians of the Strand Union (h), The London Dock Company v. Sinnott (i). The judgments in the first two cases however are not in very positive terms, and they are opposed to Church v. The Imperial Gas and Coke Company, in error (j), Beverley v. The Lincoln Gas Light and Coke Company (k) and The Copper Miners Company v. Fox (1), while Lamprell v. The Guardians of the Billericay Union (m) is expressly in point for the defendants. With the exception of a Nisi prius decision in De Grave v. The Mayor &c. of Monmouth (n) all the cases that seem in favour of the other side were contracts for trading purposes, in addition to which the consideration was executed, the Corporation having had the benefit of the goods supplied and ratified the contract; whereas here they repudiated it. In Smart v. The Guardians of the West Ham Union (o), Parke B., after referring to the decision of Clarke v. The Guardians of the Cuckfield Union (a), says, p. 875, "In the case of Sanders v. The Guardians of the St. Neots Union (p) I (a) 21 L. J. Q. B. 349; 16 Jur. 686; Bail Court Cas. 81. (b) E. B. & E. 873. (d) 4 M. & Gr. 860. (f) 5 Exch. 442. (h) 8 Q B. 326. (1) 6 A. & E. 846. (1) 16 Q. B. 229. (n) 4 C. & P. 111. (p) 8 Q. B. 810. (c) 4 Bing. 283. am reported to have overruled the objection, that the defendants could not contract except under seal; but that is not so. I allowed the case to proceed, because I thought the objection was apparent on the record." The Court is therefore unshackled by authority. The Consolidated Orders of the Poor Law Commissioners arts. 44-49, 24th July, 1847 (a), direct all contracts by guardians to be in writing, but say nothing about a seal. [Blackburn J. How can they dispense with a seal if the law requires one? These orders, however prudent, are merely by way of advice or direction to the board of guardians, but not affecting the rights of third parties.] The case must be dealt with in the same way as if this were an action by the plaintiff for nonacceptance of the coals. Powell replied. The defendants did not repudiate the contract. The question is concluded by authority. A calculation was then made, by which it appeared that the plaintiff could only be entitled to recover 261. 10s., if at all. BLACKBURN J. We will consider this case. There are decisions precisely in point both ways. Cur. adv. vult. The judgment of the Court was now delivered by BLACKBURN J. (After stating the facts.) It is clear that the plaintiff cannot be in a better position than if the contract had been executed by the defendants. By the terms of the contract it is clear that the defendants (a) See Glen Consolidated and other Orders of the Poor Law Commissioners and the Poor Law Board, pp. 26-29, 4th ed. 1866. NICHOLSON V. Guardians of 1866. NICHOLSON V. Guardians of had a right to require the plaintiff to take away so much of the coals remaining as were not according to contract; and we think that, as the two parcels sent in in July were mixed together so that the heap was partly Ruabon and partly not, the whole of these coals must be considered as not according to the contract, though had they been kept separate one parcel would have been according to it. The plaintiff cannot therefore in any view recover for the price of so much of these latter coals as were not consumed, and the defendants are also entitled to charge him with the extra cost of the supply of coals in their place, and the six tons of this inferior mixture which were actually used cannot be charged at the full contract price. The plaintiff therefore cannot recover for the whole sum he claims. But the defendants had no right under the contract to require the plaintiff to remove the portion of the Aberdare coals which in August still remained unconsumed, those coals having been delivered in June, and being in all respects according to the contract. There is indeed a term in the contract that a proper bill of parcels shall be delivered with each lot of goods sent in, or the guardians may reject them, and it appears that the bills of parcels for the Aberdare coal were not sent in till some time after the delivery; but though this would have entitled the defendants to refuse to receive the goods so sent in, and probably to send back the whole if inadvertently taken in, provided they did so promptly, it did not authorise them to return a part of the goods so sent in, especially after such a lapse of time. The plaintiff therefore, if the contract had been sealed with the seal of the Corporation, would have been entitled to recover, but not the whole of his demand. At the time of the argument the amount of the deduc tions was calculated, and it appeared he would be entitled to 261. 10s. 1866. NICHOLSON BRADFIELD There remains therefore only the question whether Guardians of the facts that the defendants are a Corporation, and that the contract was not under their seal, makes any difference as to the whole or part of this demand. Mr. Harington argued that the price of those coals which still remained unconsumed and which the Corporation were ready and willing and offered before action to return, stood on a different footing from the price of the portion consumed, and that, as to those at least the plaintiff could not recover; but we think that there is no such distinction. We think that if the defendants are bound to pay for any of the coals as goods sold and delivered, their liability was fixed as soon as the coals, being according to contract, were received so that there remained nothing to be done but to pay for them; and that this liability could not be got rid of by any subsequent offer to return the coals, which the plaintiff was not, under the contract, bound to accept; and which, if he had at that time accepted them, would by no means have put him in the same position as if the goods had never been kept by the defendants. We think therefore that the only question is whether the absence of a sealed contract does under such circumstances prevent the plaintiff from recovering. It is not necessary to express any opinion as to what might have been the case if the plaintiff had been suing on this contract for a refusal to accept the coals or any other breach of the contract while still executory, or how far the principle of The London Dock Company v. Sinnott(a) would then have applied to such a contract. The goods (a) 8 E. & B. 347. VOL. VII. 3 E B. & S. |