maintain

might be supported (a). It is in general a question When for the jury, to whom the credit has been given (b): able. and, if the vendor has once given the credit solely and exclusively to some third person, he cannot transfer his claim to the defendant (c).

Where there has been a special agreement, it is Special said that the plaintiff ought in general to declare "greement. specially (d), instead of the common count for goods sold. Thus, where the contract was proved to have been, that the goods should be paid for partly in money and partly in buttons, Buller, J., nonsuited the plaintiff on the ground that he ought to have declared on the special agreement (e); and where goods were sent on sale or

(a) Keate v. Temple, 1 B. & P. 158; Brooker v. Wood, 5 B. & Adol. 1052. See Simpson v. Penton, 2 Cr. & Mees. 430; Edge v. Frost, 4 D. & R. 243.

(b) Storr v. Scott, 6 C. & P. 241; Eaden v. Titchmarsh, 1 Ad. & Ell. 691; Jennings v. Griffiths, Ry. & Moo. 44.

(c) Baker v. Buckle, 7 B. Moore, 349. See Bramah v. Abingdon, cited 15 East, 66; Patterson v. Gaudassequi, 15 East, 62.Post.

(d) 1 Chitt. Pl. 302. See Lightfoot v. Creed, 8 Taunt. 268; S. C. 2 B. Moore, 255; Hoppe v. Symonds, 2 Chit. Rep. 324; Davis v. Nicholls, 2 Chit. Rep. 320; Baker v. Dewey, 1 B. & C. 704; Dunn v. Body, 1 Stark. N. P. C. 220; Rees v. Manners, 3 Smith, Rep. 119; Weaver v. Burrough, 1 Stra. 648. [The special agreement may be given in evidence by the defendant, without being specially pleaded under the New Rules, Alexander v. Gardner, 3 Dowl. P. C. 146.]

(e) Harris v. Fowle, cited 1 H. Bl. 287; Talver v. West, Holt, N. P. C. 178.

Special

agreement.

return, i. e. on the understanding, that, if they were not returned within a specified time, they were to be considered as sold, Lord Ellenborough is reported to have been clearly of opinion that an action for goods sold could not be supported (ƒ). However, it has been frequently held at nisi prius that a special count is not necessary in such case, and that an action for goods sold will lie after the expiration of the specified time (g). So, where defendant agreed to give a gun and a certain sum of money in exchange for another gun, it was held, that, upon his refusal to perform the agreement according to the terms, an obligation resulted to pay in money, and that the general count was sufficient (h). So, where there has been a special contract, of which part has been performed, but the part executory has been rescinded (i), or under the circumstances is not available (k), the plaintiff may recover on the common count for the part executed. It is laid down generally, that, where the duty of the defendant is simply to pay money, the general indebitatus count is usual and most

(f) Lyons v. Barnes, 2 Stark. N. P. C. 39.

(g) Harrison v. Allen, 1 C. & P. 235; Coleman v. Gibson, 1 M. & Rob. 168; Bailey v. Gouldsmith, Peake, 56. See Barbe v. Parker, 1 H. Bl. 283.

(h) Forsyth v. Jervis, 1 Stark. N. P. C. 437; Sheldon v. Cox, 3 B. & C. 420; S. C. 5 D. & R. 277.

(i) Oxendale v. Wetherell, 9 B. & C. 386.--Post.

(k) Mavor v. Payne, 3 Bingh. 285; S. C. 2 C. & P. 91.

agreement.

advisable (1). And it is said, that such form of Special action is maintainable, although there be a special agreement, if such special agreement does not, by express stipulation or necessary intendment, preclude the plaintiff from recovering (m).

any

credit.

Where, by the terms of the contract, credit is to Sale on be given to the purchaser, the vendor cannot under circumstances maintain an action for goods sold until the time of credit has expired. If he subsequently discovers that the defendant is guilty of fraud, and that he never intended to give a bill in payment according to the terms of the contract, or that the bill if given is valueless, the vendor ought to rescind the contract, and sue in trover to recover the goods themselves (n). So, if the purchaser, by way of payment for the goods, has given his acceptance to a bill to which the drawer's name was afterwards to be added by the vendor, the original debt is suspended until the time has run on the instrument; therefore, until that time has expired, the vendor cannot have recourse to

(1) Per Parke, J., Streeter v. Horlock, 1 Bingh. 37. See Ingram v. Shirley, 1 Stark. N. P. C. 185; Bull. N. P. 139.

(m) Per Gibbs, C. J., Robson v. Godfrey, Holt, N. P. C. 237. See Adams v. Fairbairn, 2 Stark. N. P. C. 277; Harris v. Oke, Bull. N. P. 140; Payne v. Bacomb, 2 Dougl. 651; Alexander v. Gardner, 1 Bingh. N. S. 671; Pearson v. Pearson, 5 B. & Ad. 859.

(n) Strutt v. Smith, 1 Cr. Mees. & R. 312; Fergusson v. Carrington, 9 B. & C. 59; S. C. Dan. & Lloyd, Merc. Ca. 198; 3 C. & P. 457; see below, Chap iv.

Sale on credit.

his demand for goods sold, although the bill remain unnegotiated in his hands and without any drawer's name thereto (o). If the purchaser, without fraud, refuses to perform the contract by giving a bill or note in payment according to his undertaking, the proper remedy is an action for the breach of the special agreement (p). Thus, where the purchaser is to pay in three months by a bill at two, the credit is for five months, and he cannot be sued for goods sold before that time has expired (q). So, where the goods are sold at six months' credit, payment to be then made by a bill at two or three months at the purchaser's option, this is in effect nine months' credit (r). And, where the sale is at six or nine months' credit, the purchaser, by not paying at the end of the six months, makes his election to take credit for the nine(s). But, where some act was to be done by the purchaser to signify his assent to take the extended credit, and he has omitted to perform such act, he will be held to have waived his option of extending the credit; thus, where the goods were sold at three months' credit, and the plaintiff was then to

(0) Simon v. Lloyd, 2 Cr. Mees. & R. 187.

(p) Mussen v. Price, 4 East, 147; Miller v. Shawe, cited 4 East, 149; Dutton v. Solomonson, 3 B. & P. 582; Seymour v. Pychlau, 1 B. & A. 14; see Day v. Picton, 10 B. & C. 120; Hoskins v. Duperoy, 9 East, 498.

(q) Mussen v. Price, 4 East, 147.

(r) Helps v. Winterbottom, 2 B. & Adol. 431.

(s) Price v. Nixon, 5 Taunt. 338; see 2 B. & Ad. 436.

credit.

take the defendant's bill for three months, if fur- Sale on ther time should be wished for, an action for goods sold will lie immediately after the expiration of the first three months, unless the bill is then given (†).

It has been held, that, if it be intended to set up the defence that the sale was on credit, and that the time has not expired, this must be specially pleaded (u); but the decision has since been doubted (r).

.

ble after

expired.

After the expiration of the time of credit, the Maintainaplaintiff need not declare specially, but may re- credit has cover in an action for goods sold (y). Indeed the latter seems in strictness the proper form of action, because the damages in the other might not be for the full value of the goods, but merely for the special damage which the vendor could prove that

(t) Nickson v. Jepson, 2 Stark. N. P. C. 227.

(u) Edmunds v. Harris, 4 Nev. & M. 182; S. C. 6 C. & P. 547; see Rules Hil. T. 4 Will. IV.-Post.

(x) Per Parke, B., 1 Cr. Mees. & R. 743. And it seems the decision cannot be supported: for, if the plaintiff in effect declares upon a ready money contract, the defendant, under the issue that he did not undertake or promise in manner and form, &c., must be at liberty to show that it was a credit transaction; it would not be matter in confession and avoidance, but in denial. See the Reporters' note, 4 Nev. & Man. 183.

(y) Brooke v. White, 1 N. R. 330; Swancott v. Westgarth, 4 East, 75; Heron v. Granger, 5 Esp. 271; See per Chambre, J., Miller v. Shawe, cited 4 East, 149; per Lord Tenterden, C. J., 2 B. & Adol. 434. Lord Alvanley, C. J., once expressed a contrary opinion, 3 B. & P. 586.