sold as aforesaid; and although the plaintiffs have always been ready and willing to deliver the said iron to the defendants at the place, and on the terms, and in manner aforesaid; and although the residue of the price of the said iron, after the rate aforesaid, amounted to a large sum, to wit, £1900, of which premises the defendants have always had notice; and although the delivery of the said iron was not required or taken by the defendants on or before the said 30th day of April, in the year aforesaid; and although the said 30th day of April, 1845, had elapsed long before the commencement of this suit, yet the defendants, not regarding their said promise in that behalf, did not nor would, on the said 30th day of April, 1845, or at any other time before or since, pay to the plaintiffs the said sum of £1900, or any part thereof, but have always wholly neglected and refused so to do; and the same and every part thereof is still wholly due and unpaid to the plaintiffs, and the plaintiffs have lost and been deprived of the same, and of all interest and profit, which they might and otherwise would have made from the same, and from and in consequence of the performance of the said contract by the defendants. The declaration likewise contained a count upon an account stated.

[*155

To this the defendants pleaded, non assumpserunt, a set-off, and several other pleas; one of which was, a denial of the readiness and willingness of the plaintiffs to deliver the said iron to them, the defendants, in manner and form as in the declaration alleged. The facts of the case, so far as they affected the questions which arose at the trial, sufficiently appear on the face of the declaration.

Martin, for the defendants, contended, that the averment, that the plaintiffs were ready and willing to deliver the 600 tons of iron mentioned in the declaration, had not been made out; inasmuch as, in order to support that averment, it was necessary to show that so much of some specific iron had actually been appropriated by the vendor for that purpose.

CRESSWELL, J.-I take this to be merely an averment of the readiness and willingness of the plaintiffs to deliver to the defendants 600 tons of such iron as they contracted for.

Martin then submitted, that the plaintiffs were not entitled to recover in this action the full sum of £1900, which had not been paid by the defendants, but merely the damages which they had sustained by the defendants' breach of contract. This case was like that of Laird v. Pim, 7 M. & W. 474, where it was said, that a party cannot recover the full value of a chattel, unless under circumstances which import that the property has passed to the defendants, as in the case of goods sold and delivered, where they have been absolutely parted with, and cannot be sold again.(a)

(a) Per Parke, B., Laird v. Pim, 7 M. & W. 478.

Knowles and Crompton, contrà.—Laird v. Pim does not *apply

*156] to this case; for here the defendants expressly agreed to pay for

the iron on the 30th of April. There being, therefore, a day fixed for the payment of the money, it is submitted that the plaintiffs might have brought an action of debt for a sum certain, and have left the defendants to their cross action, according to the case of Pordage v. Cole ;(a) and, consequently, that they are entitled to recover in the present action the whole money remaining unpaid by the defendants. Indeed, the defendants themselves have treated the case in this way, for they have pleaded a set-off.

CRESSWELL, J.-My present opinion is, that the plaintiffs are entitled to recover the whole sum, as it was agreed to be paid on a day certain. Verdict for the plaintiffs.

Knowles and Crompton, for the plaintiffs.
Martin and Cowling, for the defendants.

[Attorneys-Duncan & R., and Rogerson.]

(a) 1 Wms. Saunders, 319 1; and see the notes to that case, Id. 320 1.

*157]

*TOULMIN v. HEDLEY. Aug. 25.

Where a party buys a specific cargo of goods, expected by a particular ship, and which are war. ranted to be of a particular quality, he has a right, on the arrival of the ship, to inspect such cargo before it is delivered to him, in order to ascertain whether the warranty has been complied with; and if it have not, he may reject the cargo altogether. But if the cargo be once delivered to him, he has no right to return it, on the ground that it does not correspond with the warranty. Where the Court were of opinion, that the direction of the learned Judge who tried the cause, though in terms correct, might still have been misunderstood by the jury, they granted a new trial.

ASSUMPSIT for goods sold and delivered, and on an account stated.Plea, non assumpsit.

This action was brought to recover the price of a cargo of guano sold by the plaintiff to the defendant, under a contract dated the 13th of March, 1845. The contract was: "To deliver, perils of the seas excepted, the full and entire cargo, all on board, of guano expected by the ship Sarah;' price 77. 108. per ton, of 20 cwt. net; duty paid; to be delivered in bags. Quality warranted equal to average imports from Ichaboe, and in sound and merchantable condition. Guano to be taken from alongside the ship, at the expense and risk of the buyer. To be weighed at the quay beams. Cash on delivery, less two and a half per cent. Buyer to advance to seller's agent £750 on the arrival of the vessel at her port of discharge, on having an order for the delivery of 100 tons."

On the arrival of The Sarah" at Falmouth, on her passage home, orders were received from the defendant directing the vessel to proceed to Glasgow, there to discharge her cargo according to the contract. The

vessel accordingly proceeded to the Clyde, and arrived at Glasgow on the 19th of May. After her arrival at that place, one Clint, who was the defendant's agent, took samples of the guano from her hold. The cargo was dug into to the depth of about two feet for that purpose; but the captain told Clint that he might dig down to the kelson if he pleased; and Clint admitted that this might have been done. On the 22d of May, Clint wrote to the captain to say, that he had made arrangements with Connal & Co. to receive the cargo of "The Sarah," provided it proved to be of average quality, as per contract; and the latter likewise stated, that the result of the analysis of the samples would be obtained on the following Saturday, namely, on the 24th of May. The result of this analysis, however, was never communicated to the plaintiff. *On the 26th of May the captain commenced to discharge the [*158 cargo. On the 30th, the defendant wrote to the captain to say, "that, if the guano was equal to the average imported before the 13th of March, it was to be delivered to Connal & Co." By this time, however, upwards of forty tons of the cargo had actually been discharged into the stores of that firm; and, from the 31st of May until the 8th of June, the captain continued to discharge the cargo, during which period Clint was often at the vessel, whilst Connal's foreman was alongside almost daily. On the 6th of June, the plaintiff wrote to the defendant to request payment of the £750; and, on the 7th of that month, the defendant wrote an answer, stating that the guano had been inspected; that the average quality did not come within the meaning of the contract; and that he would decline paying the £750 until this point was settled. Accordingly, on the 8th of June, the delivery of the cargo was stopped; but by this time not more than seventy or eighty tons remained to be delivered. The whole cargo was 411 tons. The captain then called in two persons who were conversant with guano, for the pose of inspecting the remainder of the cargo. They did so, and gave it as their opinion that the cargo was above the average quality. This opinion was confirmed by an analysis of the guano itself; and, accordingly, the captain on the 10th of June, delivered the residue of the cargo into the stores of Connal & Co. After this the defendant wrote to the plaintiff, stating, that, having had an opportunity of inspecting the guano, he found that it was not according to the warranty, and that therefore he would not accept it; and a letter from the defendant was likewise read, in which he asserted that the captain had delivered the guano into Connal & Co's. stores, under a promise that it should be so delivered for the purpose of its being inspected; but there was no other evidence of this. Witnesses were also called for the defendant, who expressed an opinion to the effect that the cargo was not of an average quality.

Watson, for the plaintiff.-The defendant had no right to introduce into the contract the proviso contained in Clint's letter

K

pur

[*159

of the 22d of May. Moreover, he had previously had samples of the guano, which were to have been analyzed by the 24th; and, with the knowledge thus acquired of the quality of the guano, he permitted the cargo to be delivered. But this was a sale of a specific cargo, and the property therein would therefore pass to the defendant by such sale, unless, from the non-compliance with the warranty, he had set his face against it from the first. This, however, he did not do. He had an opportunity of examining the cargo; he allowed it to be landed without objection; and now he refuses to accept it. But it is submitted, that he was bound either to take or reject the cargo from the first. When a seller gives a warranty in such a case as the present, the buyer has only the power of inspecting the article bought in bulk; and, consequently, as the goods in this case were actually delivered, the defendant's only remedy is, on the plaintiff's original warranty.

Martin, contrà.-It is submitted, that the only question in this case is, whether the warranty was complied with. There was no acceptance of the cargo by the defendant. It could not be inspected until landed from the ship; the defendant offered to take to it if the quality was as warranted; and, inasmuch as it was landed under this condition, there was no acceptance if the cargo was not of that quality. This is not like the case of the purchase of a specific article, such as a horse. There, the buyer has an opportunity of examining the article purchased; and if he does not return it, he must bring his action on the warranty. But, if a man buys that which he has no opportunity of examining at the time, he has a right to reject it, if, when delivered, it be found not to be of the quality warranted.

Cresswell, J.-This cargo was warranted to be equal to *the *160] average imports from Ichaboe, and in sound and merchantable condition. It is true that this was a contract for a specific cargo; but it had not been seen by the defendant; and I think, therefore, that, before accepting it, he was entitled to look at it, in order to see whether it corresponded with the terms of the warranty or not; and that, if it did not, he was entitled to reject it. The defendant might either take to the cargo, and run the risk of his action on the warranty, or he might insist on inspecting it, and reject it if it was inferior to the quality warranted. I shall therefore ask you, first, if this cargo actually corresponded with the warranty, because, if it did, the defendant was bound to accept it and if you should not be of this opinion, I shall ask you, secondly, whether the delivery took place under an arrangement, that the defendant might inspect the cargo, and then return it, if found not to correspond with the warranty; or whether it was delivered to him, he taking it as a delivery of the cargo, and intending to rely for his remedy on the warranty alone. If it was agreed that the cargo should be landed for the purpose of inspection, the defendant had a right to reject

it. If it was landed under no such agreement, the defendant was bound to keep the cargo, and rely for his remedy on the warranty only. (a) Verdict for the plaintiff.

Watson and Cowling, for the plaintiff.

Martin, Murphy, Serjt., and Addison, for the defendant.

[Attorneys-Gladsden, and -]

IN the following Michaelmas Term, Martin moved for and obtained a rule to show cause why the above verdict *should not be set aside and a new trial had, on the ground of misdirection, and also [*161 because the verdict was against evidence; against which, in Hilary Term, 1846 (24th January),

Watson and Cowling showed cause.(b)—They contended that the question was left to the jury much too favourably for the defendant. The contract being for the purchase of a specific article, the jury should have been directed, that, if the cargo did not comply with the warranty, the defendant could look for his remedy only to an action on the warranty itself. At all events, the jury had come to the correct conclusion in finding that the cargo did actually correspond with the warranty; and the verdict, therefore, ought not to be disturbed.

Martin and Addison (with whom was Murphy, Serjt.), contra.—The learned Judge should have told the jury, that, in order to the cargo being in compliance with this warranty, such quality of the cargo throughout should have been equal to the average imports. To constitute a cargo of an average quality, it was not sufficient to set-off so much of the cargo as was good against so much that was inferior. The true question was, whether the average imports contained so much bad stuff as this cargo contained; and the mode in which the case was left to the jury was calculated to withdraw their attention from this point. [Parke, B.Did the learned Judge say anything in the course of his charge to the jury which would lead them to do this?] Not specifically, perhaps; but the way in which the learned Judge left the case to the jury, when taken in connexion with the evidence which was given in the course of the trial, particularly in answer to questions put by the learned Judge himself, was likely to have this effect.

POLLOCK, C. B.-In terms, the direction of the learned *Judge [*162 is not open to exception; in what precise sense he used those terms, does not appear. The question left to the jury was certainly one capable of being misunderstood; and I believe the Court agree with me in opinion, that, for this reason, the cause should go down again for trial. As this, however, is not a case in which, strictly speaking, the (a) See Lorymer v. Smith, 1 B. & C. 1; and the judgment of the Court in Street v. Blay, 2 B. & Ad. 456, 460, 463.

(b) Before Pollock, C. B., and Parke and Platt, Bs.