bid is accepted; before then he is exclusively the vendor's agent. Warlow v. Harrison, 1 E. & E. 295, 309; 28 L. J., Q. B. 18; 29 L. J. Q. B. 14. Where the auctioneer himself sues, his signature for the defendant cannot be relied upon as a compliance with the statute. See Farebrother v. Simmons, 5 B. & A. 333; Sharman v. Brandt, L. R., 6 Q. B. 720, and cases cited ante, p. 309. Where a person, to whom money was due from the owner of goods sold by auction, agreed with the owner before the auction that goods bought by him should be set against the debt, and he became the purchaser of goods, and was entered as such by the auctioneer, it was held that he was not bound by the conditions of sale which specified that purchasers should pay part of the price at the time of the sale and the rest on delivery. Bartlett v. Purnell, 4 Ad. & E. 792. But, in general, where there are printed conditions of sale, no oral declaration made by the auctioneer at the time of the sale is admissible in evidence to alter them. Shelton v. Livius, 2 C. & J. 411. Though where the goods are of less value than 107., and there is no signature, such declarations are admissible; Eden v. Blake, 13 M. & W. 614; and semble, per Rolfe, B., S.C., that as the contract would be complete on the fall of the hammer, a subsequent signing by the auctioneer would make no difference. As to the right to retract biddings, vide ante, p. 309.

Sale by a broker.] Where a broker is the agent of both parties, he may bind them by signing the same contract on behalf of the buyer and seller. See the usual forms, and the effect of broker's notes fully considered in Blackburn's Treatise on Contract of Sale, Part I., c. 5. The practice (at least among London brokers) is to make an entry of the contract in his book and sign it, and then to send a copy of it to each party, and, in general, the "bought note" to the buyer, and "sold note to the seller, and these notes, duly delivered by the broker to the parties, have been held, if not the contract itself, proper evidence of the contract, and constitute a sufficient note in writing to bind each party. Rucker v. Cammeyer, 1 Esp. 105; Thornton v. Meux, M. & M. 43; Trueman v. Loder, 11 Ad. & E. 589. And such notes are admissible, where the entry in the broker's book has never been signed by him. Goom v. Aflalo, 6 B. & C. 117. But if the entry in the book has been signed, it is questionable whether this is not the best evidence, as being the original entry of the contract. See Heyman v. Neale, 2 Camp. 337. "Where there has been an entry of the contract by the broker in his book, signed by him, I should hold, without hesitation, notwithstanding some dicta and a supposed ruling of Ld. Tenterden in Thornton v. Meux (supra) to the contrary, that this entry is the binding contract between the parties, and that a mistake made by him when sending them a copy of it, in the shape of a bought or sold note, would not affect its validity." "But the broker, to

save himself trouble, now omits to enter and sign any contract in his book, and still sends the bought and sold note as before. If these agree they are held to constitute a binding contract. If there be any material variance between them they are both nullities, and there is no binding contract." Per Ld. Campbell, C. J., in Sievewright v. Archibald, 17 Q. B. 124-5; 20 L. J., Q. B. 538; and see per Patteson, J., S. C. Where there is a material variance between the bought and sold notes, and the broker has not signed the contract in his book, there is no valid contract. Grant v. Fletcher, 5 B. & C. 436; Gregson v. Ruck, 4 Q. B. 737; Cowie v. Remfrey, 5 Moo. P. C. 232. But where the differences can be reconciled by oral testimony of mercantile usage, and shown to be only apparent, such evidence is admissible. Bold v. Rayner, 1 M. & W. 343; Kempson v. Boyle, 3 H. & C. 763; 34 L. J., Ex. 191. Where the bought note was in the

form "Bought of R. & Co., for account of H. & Co.," and the sold note in the form, "Sold to our principals for account of R. & Co.; "it was held there was no variance between them, oral evidence being admissible to show who the principals were. Cropper v. Cook, L. R., 3 C. P. 194. Where the sold note is in the name of an agent, it may be shown orally on behalf of the buyer, that in all previous transactions between them the vendor had contracted in the agent's name. Trueman v. Loder, ante, p. 514. So where the contract was made by a broker, on behalf of principals whose names were not disclosed, oral evidence that by the usage in London in such a case the broker is liable to be treated as principal, is admissible to charge the broker, unless the contract provides for the final determination of differences by him, vide ante, p. 26.

Where a broker employed to buy goods for his principal, A., himself sells the goods, he cannot sign a valid note, so as to bind A., and, indeed, it seems that there is no contract at all. Sharman v. Brandt, L. R., 6 Q. B. 720, Ex. Ch. In an action by the purchaser against the seller of goods for not delivering them, the bought note per se is evidence of the contract against the seller on proof of the employment of the broker by him. Hawes v. Forster, 1 M. & Rob. 368. The conduct of the defendant may afford evidence that the broker was authorized to contract for him. Thompson v. Gardiner, 1 C. P. D. 777. If the seller intend to insist on a variance between the bought and sold note, it is for him to produce and prove the latter. Hawes v. Forster, supra. So the sold note signed by the broker acting for both parties, and delivered by him to the purchaser, is a sufficient memorandum to bind the purchaser within sect. 17, in the absence of proof of any variance between it and the bought note. Parton v. Crofts, 13 C. B., N. S. 11; 33 L. J., C. P. 189. Even if they differ, yet if one be signed by a principal in the contract, it will be evidence of the contract as against him. Rowe v. Osborne, 1 Stark. 140. So where the notes disagree, the entry in the book, if brought home to the knowledge of the parties, or even if not known to them, may be evidence of the contract; semb. Thornton v. Charles, 9 M. & W. 802; and see the observations of Parke, B., in that case; but the point is not a settled one; see Heyman v. Neale, Sievewright v. Archibald, ante, p. 514; and Parton v. Crofts, supra. Where the broker in the bought and sold notes described the sellers' firm as A., B., and C.; but the firm had, unknown to the broker, been changed to A., D., and E., it was held that A., D., and E. might sue on the contract, it not appearing that the defendant had been prejudiced or excluded from a set-off, and there being some evidence of his having treated the contract as subsisting with the plaintiffs. Mitchell v. Lapage, Holt, N. P.

253.

A material alteration in the sale note by the broker, at the instance of the seller, after the bargain made and without the consent of the purchaser, precludes the seller from recovering. Powell v. Divett, 15 East, 29. So, where the buyers altered the bought note in a material particular by an addition at the foot of it (referred to by an asterisk in the body of it), though the breach was unconnected with the alteration. Mollett v. Wackerbarth, 5 C. B. 181. Where the sold note was sent back altered and signed by the seller, and the buyer proceeded on it as the contract, it was held to be a question for the jury whether this was a contract, or only an offer by the seller provided a bought note to the like effect were signed by the buyer. In this case there was no bought note in evidence at all, and the broker was agent of the buyer only. Moore v. Campbell, 10 Exch. 323; 23 L. J., Ex. 310. If the two principals agree in the broker's presence, and the broker's note does not correspond with the terms agreed upon, then there is no written contract by an agent lawfully

authorized, and a party, who did not assent to the alteration, is not bound. Pitts v. Beckett, 13 M. & W. 743; contra, where there is evidence from which a subsequent assent to such alteration may be implied. Harnor v. Groves, 15 C. B. 667; 24 L. J., C. P. 53.

A distinction has been made between a contract in writing and a note or memorandum in writing of a contract within the Stat. of Frauds; see the judgments in Sievewright v. Archibald, 17 Q. B. 107, 114, 124; 20 L. J., Q. B. 538; and in Parton v. Crofts, ante, p. 515; but in many cases this distinction seems to have been lost sight of.

Readiness of the plaintiff to deliver.] An averment of readiness and willingness to deliver is sufficient, where delivery and payment are to be concurrent acts. Boyd v. Lett, 1 C. B. 222; Jackson v. Allaway, 6 M. & Gr. 942. It is enough for the plaintiff to show under this allegation, either that he has offered to deliver, or that the defendant has dispensed with delivery, or has made it an idle and useless form to attempt to deliver. The averment involves the ability of the plaintiff to deliver. Lawrence v. Knowles, 5 N. C. 399; De Medina v. Norman, 9 M. & W. 820: Spotswood v. Barrow, 1 Exch. 804. On a claim averring readiness of the plaintiffs to manufacture certain articles ordered by the defendant, it is enough to show that the defendant had countermanded the manufacture while in progress, and after delivery of some, and had notified his refusal to accept any more; and, per cur., in common sense, the meaning of such an averment "must be that the non-completion of the contract was not the fault of the plaintiffs, and that they were disposed and able to complete it, if it had not been renounced by the defendant." Cort v. Ambergate Ry. Co., 17 Q. B. 127, 144; 20 L. J., Q. B. 460; Baker v. Farminger, 28 L. J., Ex. 130. Under the traverse of this allegation, the plaintiff must prove that he is ready to deliver an article corresponding with that which was contracted for; per Cresswell, J., in Boyd v. Lett, supra; and an opportunity must be given for examination. Isherwood v. Whitmore, 10 M. & W. 757.

Under a contract for the sale of a cargo, if the buyer reject a cargo tendered, the seller may, within the time limited by the contract, tender another cargo. Borrowman v. Free, 4 Q. B. D. 500. As to what is sufficient tender of bills of lading, on the sale of goods to be shipped, see Sanders v. Maclean, 11 Q. B. Ď. 327, C. A.

Where the plaintiff has, otherwise than at the buyer's request, delayed delivery beyond the proper time, he cannot enforce acceptance, unless the defendant has entered into a new binding contract. Plevins v. Downing, 1 C. P. D. 220. As to waiver by the buyer of performance by the seller of a term of the contract, see Leather Cloth Co. v. Hieronimus, L. R., 10 Q. B. 140, cited post, p. 531. See, however, Sanderson v. Graves, L. R., 10 Ex. 234.

Refusal to receive.] It must be shown that the defendant has refused to receive under circumstances which do not warrant a refusal. Therefore, where a tender is necessary, it must be made at a reasonable time and place, and be such as to afford the defendant an opportunity of examining and receiving the goods; for without such opportunity it is no tender. Thus, a tender of articles in closed casks, so as to prevent inspection, is no tender. Isherwood v. Whitmore, supra. Nor is it sufficient to show a tender of the goods at the defendant's warehouse at a late hour after it is shut up, and the defendant has left it. But if the defendant be present, and able to examine and receive them, the tender will not be bad merely because tho hour is late and unreasonable. Startup v. Macdonald, 6 M.

& Gr. 593. On the sale of goods for shipment by steamer or steamers, the defendant must accept such part of the goods as arrives in one steamer. Brandt v. Lawrence, 1 Q. B. D. 344, Č. A. But where, on the sale of twenty-five tons pepper, October shipment, the name of vessel, &c., were to be declared within sixty days from the date of the bill of lading, and within the time twenty-five tons were declared by the B. vessel, only twenty tons of which complied with the contract, and no further declaration was made, it was held that the defendant need not accept the twenty tons. Reuter v. Sala, 4 C. P. D. 239, C. A. The tender must not be of a larger quantity than was bought; Dixon v. Fletcher, 3 M. & W. 146; Hart v. Mills, 15 M. & W. 85; at least, unless the tender be divisible, or the surplus not charged for. If the buyer give a limited order for certain specified goods, and the seller send those and others from a distant place in one package, charged at a lump sum, the consignee may repudiate the whole and refuse to receive the package. Levy v. Green, 8 E. & B. 575; 27 L. J., Q. B. 111, Ex. Ch. ; 1 E. & E. 969; 28 L. J., Q. B. 319; and see Macdonald v. Longbottom, 1 E. & E. 977, 987; 28 L. J., Q. B. 293; 29 L. J., Q. B. 256; Tamvaco v. Lucas, 1 E. & E. 581; 28 L. J., Q. B. 150, 301. If the defendant notify his intention to refuse, and forbid the plaintiff to deliver goods ordered to be made, then the plaintiff need not proceed to complete the contract on his part, and may show this under an alleged refusal to accept, although the goods are not ready for delivery, and could not be delivered; for the plaintiff is thereby discharged" from proceeding further; and such a notice to the plaintiff will support an allegation that the defendant "prevented and discharged" the plaintiff from supplying the goods and executing the contract. Cort v. Ambergate Ry. Co., ante, p. 516. And a countermand by the person ordinarily representing the defendant in his dealings with the plaintiff (as the engineer of a railway), is sufficient, although the defendant be a corporate body, and the notice not under seal; S. C. See further, as to readiness to receive, post, pp. 523, 524.

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Damages.] In an action for not accepting goods, the difference between the contract price and the market price on the day the contract was broken is the ordinary measure of damages. Boorman v. Nash, 9 B. & C. 145; Boswell v. Kilborn, 15 Moo. P. C. 309. And the right to re-sell (though not the obligation to do so) exists in all cases of sale where the vendee wrongfully refuses to receive, and there is no express stipulation precluding such right. Maclean v. Dunn, 4 Bing. 722, 728; Barrow v. Arnaud, 8 Q. B. 609, 610, Ex. Ch. And it makes no difference in this respect whether there be or be not an express condition of re-sale. Lamond v. Darall, 9 Q. B. 1030. Where goods were to be delivered at a certain time, and while on their way the vendee gave notice that he would not accept, the measure of damages is the difference between the contract price and the market price on the day fixed for the delivery, and not that on the day on which the seller received the notice. Phillpotts v. Evans, 5 M. & W. 475; and see Leigh v. Paterson, 8 Taunt. 540, post, p. 527. Where the defendant has ordered goods and then wrongfully countermanded the order, and thereupon the vendor ceases to manufacture them, he is entitled to damages for the goods in hand, and to such profit as he would have made if the contract had been fully carried out. Dunlop v. Higgins, 1 H. L. C. 381. Where the payment was to be by bill, plaintiff may recover the amount which would have accrued on it for interest. Boyce v. Warburton, 2 Camp. 480. Where no difference is proved between the contract price and the market price, only nominal damages are recoverable. See Valpy v. Oakeley, 16 Q. B. 941.

Defence.

By Rules 1883, O. xix. r. 15, the defendant must plead specially all facts not previously stated on which he relies, and must raise all such grounds of defence as, if not pleaded, would be likely to take the plaintiff by surprise; and r. 17 provides that the defendant shall not deny generally the allegations in the statement of claim; vide ante, p. 301. Where therefore the defence is that the contract is materially different from the one alleged in the statement of claim, or that the goods were in fact sold with a qualification or condition annexed, which the goods tendered did not satisfy, this must be specially pleaded in the defence.

The admissibility of evidence under certain common defences will be found under the general head of Defences in actions on simple contracts, post, pp. 628 et seq.

Denial of Contract.] By Rules 1883, O. xix. r. 20, ante, p. 302, a denial of a contract operates only as a denial of the making of the contract in fact, and not of its legality or its sufficiency in law, whether with reference to the Statute of Frauds or otherwise. This requires the defendant specifically to allege in his defence that he relies on the objection to the contract arising under that Statute. Clarke v. Callow, 46 L.J., Q. B. 53, C. A.

The following are defences which must also be specially pleaded :— Where a joint order is given for several articles at several prices, the contract is entire, and the purchaser may refuse to accept one, unless the others are delivered; Champion v. Short, 1 Camp. 53; and where goods are sold as "about" a certain quantity, "more or less," the latter words are intended to provide only for a small excess, and the purchaser is not bound to accept 350 tons on a bargain for "about 300 tons, more or less;" at least, not unless it be shown that a large excess was contemplated. Cross v. Eglin, 2 B. & Ad. 106; Tamvaco v. Lucas, ante, p. 517. See also Cockerell v. Aucompte, 2 C. B., N. S. 440; 26 L. J., C. P. 194; Macdonald v. Longbottom, 1 E. & E. 977, 987; 28 L. J., Q. B. 293; 29 L. J., Q. B. 256; Beckh v. Page, 5 C. B., N. S. 708; 7 Id. 861; 28 L. J., C. P. 164, 341; Morris v. Levison, 1 C. P. D. 155. Where the defendant instructed the plaintiffs to buy for him 500 tons of sugar, "50 tons more or less of no moment if you are enabled to get a suitable vessel;" and the plaintiffs bought 400 tons, parcel by parcel according to the usage of the market, and could buy no more at the price named, it was held that the defendant was not bound to accept the 400 tons, as the usage could not affect the express order. Ireland v. Livingston, L. R., 5 Q. B. 516, Ex. Ch. (reversed on another ground, L. R., 5 H. L. 395). See, however, Johnston v. Kershaw, L. R., 2 Ex. 82. A contract to sell "all spars manufactured by M., say about 600 red pine spars," was held not to amount to a warranty as to the quantity of the spars. M'Connel v. Murphy, L. R., 5 P. C. 203. See also Gwillim v. Daniell, 2 C. M. & R. 61. A contract to buy "a cargo of about the following lengths, &c., in all about sixty fathoms," is not satisfied by the delivery of sixty fathoms, part of a cargo of eighty fathoms, although the sixty fathoms were severed from the remainder, for “cargo" means the whole loading of the ship. Kreuger v. Blanck, L. R., 5 Ex. 179, following Sargent v. Reed, Str. 1228; Borrowman v. Drayton, 2 Ex. D. 15, C. A.; Anderson v. Morice, 1 Ap. Ca. 713, D. P., distinguished in Colonial Insur. Co. of New Zealand v. Adelaide Marine Insur. Co., 12 Ap. Ca. 128, P. C. A contract to supply "the whole steel" required for the Forth bridge, subject to conditions which contained the clause, "the estimated