an arbitrator, he may give interest, whether it was demanded in the notice of action or not (i).

[A notice of a call on a contributory, under a voluntary winding-up under the supervision of the Court, stating that interest would be charged if the call were not paid at the time appointed, has been held a sufficient demand (k). A mere letter of application for a loan until a day named, is not a written instrument by virtue of which the loan is payable at a certain time, sufficient to satisfy the statute (7).]

Written instrument by virtue

of which a debt

is payable.

Wherever interest is solely given by this statute, the jury are Discretion of left entirely to their own discretion whether they will grant it the jury. or not, and where they think fit to withhold it, the Court will not interfere. Therefore, where the agreement was to pay a debt by half-yearly instalments on specified days, "with interest for the same sums at the rate of 57. per cent. per annum, to be reckoned from the 1st October then next, until the day of payment thereof, such interest to be paid by equal half-yearly payments," it was decided that interest upon the arrears of interest could not be allowed at common law; that it might be given under the stat. 3 & 4 W. IV. c. 42, s. 28, but that as the jury had refused to allow it, the propriety of their decision could not be questioned (m). Nor can their decision be questioned, though they give interest at 57. per cent. when this is higher than the current rate of interest at the time (n).

Interest can only be given under this statute by the jury. Accordingly, where a plaintiff, after making a demand for the express purpose of obtaining interest, consented to a comproImise which deprived him of his right to go before a jury, without stipulating for interest, he was held to have lost his right to it (o).

III. As to interest upon judgments, it is enacted by 1 & 2 Interest upon Vict. c. 110, s. 17, that every judgment debt shall carry interest judgments. at the rate of 47. per cent. from the time of entering up the

(i) Edwards v. G. W. Ry. Co., 11 C. B. 588; 21 L. J. C. P. 72. [(k) Re Overend, Gurney & Co., Ex parte Lintott, L. R. Eq. 184; Barrow's Case, L. R. 3 Ch. 784; 38 L. J. Ch. 15. As to liability for interest on calls after forfeiture of the shares, see Re Blakeley Ordnance Co. (Stocken's Case), L. R. 3 Ch. 412; 37 L. J. Ch. 230.]

[(1) Taylor v. Holt, 3 H. & C. 452; 34 L. J. Ex. 1.]

(m) Attwood v. Taylor, 1 M. & G. 279.

(n) Mowatt v. Lord Londesborough, 4 E. & B. 12. (0) Berrington v. Phillips, 1 M. & W. 48.

I

In cases of error.

judgment, or from the time of the commencement of the act. The judgments named in this section are judgments of the superior courts of Westminster; and the act equally applies to all such judgments, whether against the defendant, for the subject-matter of the suit, or against the plaintiff for costs (p). The time of entering up judgment for the purpose of this act is from the entry of the incipitur in the Master's book, and not from the final completion of the judgment after the taxation of costs (q).

Where a writ of error is brought upon a judgment, it was formerly discretionary with the Court above to grant interest on the judgment of the Court below. But now, by 3 & 4 W. IV. c. 42, s. 30, "if any person shall sue out any writ of error upon any judgment whatsoever given in any Court, in any action personal, and the Court of error shall give judgment for the defendant thereon, then interest shall be allowed by the Court of error for such time as execution has been delayed by such writ of error for the delaying thereof." This statute is imperative, and interest will be calculated at 47. per cent. (r); and may be awarded by the House of Lords (s).

(p) Pitcher v. Roberts, 2 Dowl. N. S. 394; Newton v. Conyngham, 17 L. J. C. P. 288.

(q) Fisher v. Dudding, 3 Sco. N. R. 516; Newton v. Grand Junc. Ry. Co., 16 M. & W. 139.

(r) Levy v. Langridge, 4 M. & W. 337.
(s) Garland v. Carlisle, 5 Cl. & F. 355.

UNDER the general head of contracts of sale may be considered several forms of action, the damages in which are governed by analogous principles. They are not only the most. ordinary; but the rules connected with them are the simplest, and therefore the most proper to commence with.

Contracts of sale may give rise to actions by the vendor against the vendee, or vice versa: the vendor may sue the vendee for default in payment, or for a refusal to accept; the vendee may sue the vendor for a refusal to deliver, or for a breach of warranty as to the quality of the article. Differences will also arise according to the subject-matter of the contract, which may relate to chattels, such as goods, shares, or stock, or to land. Each of these will require a separate examination. I. Sales of goods.

1. Where the vendee has actually received the goods, of Damages where course the action can only be for the price. This case pregoods have been received. sents no difficulty: the price is generally ascertained by the contract, or is settled by the jury at the fair value of the article. Claims for interest will be regulated by the principles laid down in the preceding chapter (a). On the other hand,

(a) Ante, pp. 105–113.

Or property has passed to defen

dant.

Damages for refusing to accept.

the defendant may allege that the article is inferior to that for which he had bargained, and may claim a reduction of damages on that account. The principles upon this point have also been discussed at sufficient length in a previous part of this work (b).

Even where no delivery to the defendant has been, or can be made, as, for instance, where the sale was of a specific quantity of butter, which was lost by shipwreck, the plaintiff may recover the full price in an action for goods bargained and sold, if the property has passed to the defendant (c). Where goods are sold, to be paid for by a bill, which is not given, assumpsit for goods sold and delivered cannot be maintained before the time at which the bill, if given, would have fallen due. But the plaintiff may sue at once for the breach of the special agreement (d); and will recover the whole amount of the bill (e). It has been suggested in America, that there ought to be a rebate of interest in proportion to the stipulated period of credit (ƒ).

2. The defendant may refuse to accept the goods. In this case, if the property has passed to him, the vendor may at his option consider the contract of sale as still unbroken, and recover their entire price in an action for goods bargained and sold, even though they have not been delivered (g). He may on the other hand, after the time for acceptance has expired, or any other essential condition has been broken, sue for breach of the contract, even after he has resold the goods (h). Time from which In the latter case, the measure of damages is the difference between the contract price and the market price at the time when the contract ought to have been completed (1), for the seller may take his goods into the market and obtain the current price for them (k). Accordingly where a contract was

difference of

value to be calculated.

(b) Ante, p. 71.

(c) Alexander v. Gardner, 1 Bingh. N. C. 671.

(d) Mussen v. Price, 4 East, 147.
(e) Hutchinson v. Reid, 3 Camp. 329.
(f) Hanna v. Mills, 21 Wend. 90.

(g) Graham v. Jackson, 14 East, 498.

(h) Maclean v. Dunn, 4 Bingh. 722. It was decided by Lord Ellenborough that an action for goods bargained and sold would be maintainable, even af er a resale by the plaintiff; Mertens v. Adcock, 4 Esp. 251, but this case, after being several times doubted, has been overruled; Lamond v. Davall, 9 Q. B. 1030.

(i) Boorman v. Nash, 9 B. & C. 145.

(k) Per Cur., Barrow v. Arnaud, 8 Q. B. at p. 610, in Ex. Ch.

made early in January, to supply a quantity of corn “to be delivered at Birmingham as soon as vessels could be obtained," and on the 26th January defendant gave notice to the plaintiff that he would not accept it if delivered; it was at that time on its way to B., and on its arrival there the defendant was required to accept it, and refused, upon which the action was brought; the question was, whether the damages should be calculated according to the market price on the 26th January, when the notice was given, or the price on the last day when the contract could have been completed, viz., when the wheat was tendered for acceptance. The latter was held to be the proper rule. Lord Abinger, C. B., said, "The proper period at which to calculate the damages was when the defendant ought to have received the goods. The original contract was in no way modified by the notice, and the plaintiffs were not bound then to sell in order to reduce the damages." And Parke, B., said, "The notice amounts to nothing until the time when the buyer ought to receive the goods, unless the seller acts on it in the mean time, and rescinds the contract" (1). In the same case Parke, B., stated his opinion that no action would have lain for breach of contract upon the mere receipt of the notice, but that the plaintiff was bound to wait until the time arrived for the delivery of the wheat, to see whether the defendant would then receive it. This position, however, has been denied by the Queen's Bench, and they have laid it down, that where a refusal to perform a contract can be proved by evidence, which shows that the party has utterly renounced the contract, or has put it out of his own power to perform it, the injured party may at his option sue at once, or wait till the time when the act was to be done (m). A similar decision was given in a previous case, the facts of which were as follows.

(1) Philpotts v. Evans, 5 M. & W. 475.

(m) Hochster v. De Latour, 2 E. & B. 678; [Frost v. Knight, L. R. 7 Ex. 111; 41 L. J. Ex. 78, in Ex. Ch. The refusal to perform the contract must be distinct and unqualified, and must be acted upon as a breach by the person entitled to insist on performance; 2 Smith's L. C. 17, 6th ed.; Reid v. Hoskins, 4 E. & B. 979; 25 L. J. Q. B. 49; 26 L. J. Q. B. 3; Avery v. Bowden, 5 E. & B. 714; 6 E. & B. 963; 25 L. J. Q. B. 49; 26 L. J. Q. B. 3; Danube, &c., Ry. Co. v. Xenos, 11 C. B. N. S. 152; 13 C. B. N. S. 825; 31 L. J. C. P. 84, 284; Bartholomew v. Markwick, 15 C. B. N. S. 711; 33 L. J. C. P. 145; Inchbald v. Western Neilgherry Coffee Co., 17 C. B. N. S. 733; 34 L. J. C. P. 15; Masterton v. Mayor of Brooklyn, 7 Hill, 62. (Am.)].