Damages. quantity, he is not bound to accept more (r); but, When a bill. or note has if he acquiesces in such additional quantity, he will be bound (y). It seems the value of additional goods, work, &c., would be measured, not according to the special contract relating to the rest, but according to a reasonable rate of charge (*). Where a promissory note or bill of exchange been given. has been given in payment by the vendee, he cannot give in evidence, either by way of defence to an action on the instrument or in reduction of damages, the bad quality of the goods, or the unreasonableness of the price, or even non-compliance with an express warranty; but must have recourse to a cross action (a). Yet if he can establish fraud, it would defeat the contract altogether (b). (x) Cross v. Eglin, 2 B. & Ad. 106. (y) Robson v. Godfrey, Holt, N. P. C. 236; S. C. 1 Stark. N. P. C. 275; Lovelock v. King, 1 M. & Rob. 60. (z) Pepper v Burland, Peake, 103; per Lord Kenyon, C. J. (a) Knox v Whalley, 1 Esp. 159; Morgan v. Richardson, 1 Campb. 40, n.; Tye v. Gwynne, 2 Campb. 346; Solomon v. Turner, 1 Stark. N. P. C. 51; Obbard v. Betham, M. & Malk. 483; S. C. Lloyd & Welsby, Merc. Ca. 180. Because, although a total want of consideration may be shown in answer to an action on the instrument, a partial failure of consideration is no defence; see Bayl. Bills, 395, (4th Ed.). See the plea put on the record in Low v. Burrows, 2 Ad. & Ell. 483-as to part, that the consideration was the sale of a chattel, with a warranty, which warranty had been broken; as to the residue, no consideration both parts of which would have been clearly bad, the former on general, and the latter on special, demurrer. (b) Solomon v. Turner, 1 Stark. N. P. C. 51; Fleming v. Simpson, 1 Campb. 40, n.; Lewis v. Cosgrave, 2 Taunt. 2. pulated 3. Where there has been a stipulated price, and Damages. no warranty or special agreement as to quality, it here stiseems to be doubtful whether the inferiority in price only. quality or the utter worthlessness of the goods can be given in evidence in mitigation of damages. The question does not appear to have arisen; but, by analogy to the case of Street v. Blay (d), it would seem that at all events the defendant should be at liberty to give evidence of bad quality in reduction of damages, wherever he would be entitled to recover in a cross action on an implied warranty (e). Of Payment. Under the head of quantum of damages, it may Payment. be considered what is a sufficient payment to discharge the purchaser. As a defence in bar of the action, payment must be specially pleaded by the new rules (ƒ); yet evidence of payment has been admitted in reduction of the damages, although not pleaded specially (g). to contract. Payment made according to the mode stipulated According at the time of the sale will be sufficient; and even if such mode of payment was illegal, it does not lie in the plaintiff's mouth to take advantage of (d) 2 B. & Ad. 456, 464. Supra, p. 270. (e) See below, Part 2, Chap. iii. as to implied warranty. (f) Rules Hil. T. 4 Will. IV. See below. (g) Shirley v. Jacobs, 2 Bingh. N. S. 88; Cozens v. Padden, Exch. Trin. T. 1835, cited ib. 89. T Payment, it (h). So if the vendor has directed the purchaser By bill or note. to remit the money in a particular manner, compliance with such direction will discharge the purchaser, though the money be lost (i), unless due caution has not been used (k). So, a transfer to the account of the plaintiff made, according to agreement, in the books of the mutual banker of the parties, will amount to payment, though the banker become bankrupt before any money actually passes, or even before notice of the transfer having been made reaches the plaintiff, the latter having previously given his assent (1). The vendor is bound by the terms of the contract, which he has authorized the vendee's broker to communicate to his principal; therefore payment according to such terms will discharge the latter (m). Payment by a bill of exchange or promissory note is primâ facie evidence of payment for the goods sold; and it is for the plaintiff to show that the security has been dishonoured (n). (h) Alexander v. Owen, 1 T. R. 225. However, S. C. 12 B. Moore, 306. (m) Horsfall v. Fauntleroy, 10 B. & C. 755; S. C. Lloyd & Welsby, Merc. Ca. 340. (n) Stedman v. Gooch, 1 Esp. 5; Hebden v. Hartsink, 4 Esp. 46; Kearslake v. Morgan, 5 T. R. 513; Richardson v. Rickman, cited id. 517; Tapley v. Martens, 8 T. R. 451. See Bunney v. Poyntz, 4 B. & Ad. 568, 573. in general, unless the vendor has agreed to run the Payment. risk of the bill or note which he takes in payment being bad, if the instrument is dishonoured, it will not be considered payment (o); provided that the vendor has not by laches made it his own, in which case it would operate in discharge of the original cause of action (p). Therefore, the plaintiff may sue upon the original consideration, where the bills given in payment are not available for want of a stamp (9), or otherwise (r); or, if at the time of the action brought they remain overdue and unpaid in the vendor's hands (s), or the hands of his agent (t); or, even where judgment has been recovered on the bill, if the judgment is still un (0) Owenson v. Morse, 7 T. R. 64; Fry v. Hill, 7 Taunt. 397; Swinyard v. Bowes, 5 M. & S. 62; Everett v. Collins, 2 Campb. 515; Marsh v. Pedder, 4 Campb. 257; Brown v. Kewley, 2 B. & P. 518; Hickling v. Hardey, 7 Taunt. 312; Goodwin v. Coates, 1 M. & Rob. 221; Robinson v. Read, 9 B. & C. 449. See Rogers v. Langford, 1 Cr. & Mees. 637. However, if the vendor has parted with the chattel, the dishonour of the bill gives him no lien thereon: and even if the agreement was that he should have a claim upon it until payment, this is but a personal licence available only against the purchaser himself; Howes v. Ball, 7 B. & C. 481. (p) Camidge v. Allenby, 6 B. & C. 373; Alderson v. Langdale, 3 B. & Ad. 660. Chit. Bills, 197; Bayl. Bills, 167. (q) Brown v. Watts, 1 Taunt. 353; Wilson v. Vysar, 4 Taunt, 288; Tyte v. Jones, 1 East, 58, n. (r) Plimley v. Westley, 2 Bingh. N. S. 249; Atkinson v. Hawdon, 2 Ad. & Ell. 628. 20. (s) Burden v. Halton, 4 Bingh. 454. (t) Hadwen v. Mendizabel, 10 B. Moore, 477; S. C. 2 C. & P. Payment. To agent of vendee. satisfied (u). So, if the vendor has lost the bill before payment, he may sue upon the original contract of sale(r), provided that the purchaser is not liable to a subsequent holder (y). So, the purchaser is not discharged by the vendor taking a bill from the agent, which is afterwards dishonoured, though the bill have been renewed without notice (2). But if payment in cash has been offered, and the vendor for his own convenience has elected to take a bill (a); or, if he voluntarily agrees to run the risk (b), even where the purchaser knew at the time that the bill was worthless (c), the vendor will not be entitled, upon the dishonour of the instrument, to resort to his demand for goods sold. The debt is in every case suspended (even where it is not discharged) by the acceptance of the security; therefore, until the time on the bill has expired the vendor cannot sue on the original consideration (d). Payment by the purchaser to his own agent will (u) Tarleton v. Allhusen, 2 Ad. & Ell. 32. (y) Champion v. Terry, 3 B. & B. 295. (z) Clarke v. Noel, 3 Campb. 411; Robinson v. Read, 9 B. & C. 449. (a) Smith v. Ferrand, 7 B. & C. 19; 160; Bolton v. Richard, 6 T. R. 139; 296. Strong v. Hart, 6 B. & C. (b) See Owenson v. Morse, 7 T. R. 66. (d) Simon v. Lloyd, 2 Cr. Mees. & Rosc. 187. See above, p. 249. |