"The board declined to have anything further to do in the matter, and went on with other business," the defendant meaning thereby, that the plaintiffs were cognisant of and had sanctioned improper and fraudulent conduct by their agent at Guildford, and were accustomed to carry on their said trade there improperly and fraudulently. And the plaintiffs claimed 5007.

The defendant pleaded,-first, not guilty,-secondly, as to the printing and publishing the said words, that, before the committing of the grievances in the declaration mentioned, and before and at the several times of the happening of the matters and things mentioned and referred to in and by the words in the declaration alleged to have been printed and published, that the plaintiffs carried on the business of coal merchants at Guildford and other places, their said business of coal merchants at Guildford being conducted and managed by William Smart, being the same person as in the said words was mentioned as Mr. Smart: That, whilst the plaintiffs so carried on the said business at Guildford, they the plaintiffs, by the said William Smart, their agent in that behalf, made a contract in writing with the board of guardians of the poor of the said Guildford union in the declaration mentioned, whereby the said plaintiffs agreed to sell and deliver to the said guardians at the workhouse of the said union thirty tons of coal in the said contract described as best coals, at the price of 248. 6d. per ton: That, in part performance of the said contract, the plaintiffs, on divers occasions before the committing of the said grievances, delivered at the said workhouse for the said guardians coals of a sort called Derby Brights, as the plaintiffs well knew: That, at the time of the *making of the said contract, [*105 and from thence thitherto, coals brought by sea from Newcastle and other places on the coast of Northumberland and Durham were and are coals commonly called and known by the name of best coals, and which said best coals were and are superior in quality and of greater price than a certain other sort of coals called and known by the name of Derby Brights, as the plaintiffs well knew: nevertheless, the plaintiffs directed their said agent the said William Smart to represent and pretend to persons proposing to buy and buying coals from the plaintiffs through the said William Smart, that the said coals called or known by the name of Derby Brights were better in size and quality than coals brought from Newcastle aforesaid: That, in part performance of the said contract, the plaintiffs, and the said William Smart, as their agent, relying on the directions aforesaid, afterwards, on divers occasions before the committing of the said grievances, delivered at the said workhouse for the said guardians coals of the said sort called Derby Brights, instead of and not being best coals, and being of an inferior quality and less price than best coals, as the plaintiffs well knew: That, on the occasions on which the said coals were delivered at the said workhouse as aforesaid, the plaintiffs sent with the said coals a weighing-machine

for the purpose of therewith weighing the said coals; and that, in weighing the said coals with the said machine on the occasions of their being so delivered as aforesaid, a wooden wedge was by the servants of the plaintiffs placed under the lever of the said machine, which prevented the said lever from acting freely: That coals weighed in the said machine when the said wedge was so placed under the said lever thereof, appeared to weigh more than the same coals appeared to weigh in the said machine when the said wedge was not so placed under the said lever thereof, and more than the true weight thereof: That, on the first occasion when' *the plaintiffs so as aforesaid delivered at the said workhouse for *106] the said guardians a part of the said coals so contracted for as aforesaid, the said coals sent were weighed by the said machine of the plaintiffs with the said wedge placed under the said lever thereof; and that it then appeared by such weighing that more coals had been brought to the said workhouse in the wagons of the plaintiffs than was sufficient to make up the quantity of coals on that occasion to be delivered; whereupon a part of the coals so brought was carried back in the said. wagons, and the residue thereof only was delivered at the said workhouse; and the said residue was in fact deficient in quantity: That, after the said first occasion when the plaintiffs so as aforesaid delivered at the said workhouse for the said guardians part of the said coals so contracted for as aforesaid, the said guardians, being possessed of a machine for the weighing of coals, certain sacks full of coal, and certain empty sacks, were weighed in the said machine of the said guardians, and the same were also weighed in the same machine of the plaintiffs without the said wedge being placed under the said lever thereof, when the said sacks full of coal and empty sacks appeared according to both of the said machines to be of the same weight; but that sacks, whether filled with coals or empty, being weighed in the said machine of the plaintiffs when the said wedge was placed under the said lever thereof as aforesaid, appeared to weigh more, to wit, 7lbs. more, than the same sacks filled with coals, or the said empty sacks, appeared to weigh when weighed in the said machine of the said guardians: That, afterwards, and before the committing of the grievances in the declaration, a meeting of the said guardians was held at the said workhouse, which was attended by the then chairman of the said guardians, and also, among other of the said guardians, by Major Onslow, Mr. Drury, Mr. Strong, and Mr. Elwin, respectively mentioned in *the said words so *107] printed and published, and there were present at the said meeting the said William Smart, and the governor of the said workhouse, and the porter of the said workhouse: And that, at the said meeting, the several letters were read, and the several questions were asked, and the several answers thereto were given, and the said statements were made, which were mentioned in the said words in the declaration alleged to have been printed and published by the defendant, and which said words

so printed and published contained and were a true report and account of all that was said or done at the said meeting; and the matters and things therein contained of and concerning the plaintiffs, and of and concerning them in their said trade, were and are true.

The plaintiffs took issue upon both these pleas. (a)

*The cause was tried before Willes, J., at the sittings in London after last Trinity Term.

[*108

It appeared that the plaintiffs and the defendant were rival coal merchants. On the part of the defendant, it was submitted, that the libel did not impute personal misconduct to the plaintiffs, but only to their agent; and that, although the innuendo stated that the defendant meant to impute to the plaintiffs that they had sanctioned the fraudulent and improper conduct of their agent, and the defendant by his plea of justification adopted that construction of the libel, still he was not bound to prove it.

The learned judge, however, ruled that the defendant having by his plea alleged that the fraud of their agent was sanctioned by the plaintiffs, he must prove it: and he told the jury that they must find for the plaintiffs, unless they were satisfied that the defendant had shown some complicity on their part in the misconduct and fraud imputed to their agent.

The jury returned a verdict for the plaintiffs, damages 408.

Byles, Serjt. (with whom was Collier, Q. C., and Unthank), now moved for a new trial, on the ground of misdirection.-The question is, whether the libel imputes personal misconduct to the plaintiffs, or only imputes fraud and misconduct to their agent, and whether the record is so framed that it was necessary for the defendant, in order to support his justification, to prove that the plaintiffs were cognisant of and sanctioned the alleged fraud. The innuendo is, "meaning thereby that the plaintiffs were cognisant of and had sanctioned improper and fraudulent conduct by their agent at Guildford, and were accustomed to carry on their said trade there improperly and fraudulently." The defendant by his plea follows the innuendo, and says that the coals (a) The plaintiffs also demurred to the second plea, alleging for cause "that the plea, although it did not deny that the libel was published in the sense attributed to it by the declaration, does not show any facts which justify the publication of it in that sense; for, it does not show that the plaintiffs were cognisant of and had sanctioned the improper and fraudulent conduct of their agent at Guildford which is mentioned in the libel, and that they were accustomed to carry on their trade there improperly and fraudulently."

The defendant joined in demurrer, the points marked for argument on his part being,-"1. That the second plea is good, inasmuch as it shows that the statements made in the alleged libel are true. 2. That the alleged libel on the face of it shows that no fraud of which the plaintiffs were personally cognisant is imputed to them. 3. That, notwithstanding the 61st section of the Common Law Procedure Act, 1852 (15 & 16 Vict. c. 76), the plaintiffs cannot enlarge the sense of a written libel like that declared on and set out verbatim. 4. That the plea affects to justify merely the printing, &c., of the very words used, and does not justify the sense imputed, supposing that, in a case like the present, such sense can by innuendo be carried beyond the meaning of the words themselves."

delivered, as *mentioned in the libel, were inferior in quality, *109] as the plaintiffs well knew, and deficient in weight. The real issue is, does the alleged libel state, or by fair inference imply, that the Messrs. Prior were personally guilty of fraud in the transaction, or cognisant of and participant in the fraud of their agent. Since the Common Law Procedure Act, (a) it is not necessary to prove the whole plea.

CRESSWELL, J.—I cannot entertain the slightest doubt that the libel in question does impute to the plaintiffs complicity with their agent,-personal misconduct and fraud. It begins with these words "The way in which Messrs. Prior do things at Guildford!!" and ends with a recommendation of one of the guardians to "have nothing more to do with Messrs. Prior."

WILLES, J.-I thought the defendant was very fortunate to have a verdict against him for 40s. only. Rule refused.

(a) See 15 & 16 Vict. c. 76, ss. 61, 76, 77.

*110]

*ATWOOD and Others v. EMERY.

Nov. 7.

A contract by a manufacturer to furnish certain specified goods "as soon as possible," means, within a reasonable time, regard being had to the manufacturer's ability to produce them, and the orders he may already have in hand.

THIS was an action for not accepting and paying for goods contracted for.

The first count of the declaration stated, that it was agreed by and between the plaintiffs and defendant, that the plaintiffs should as soon as possible send to the defendant, at the Cooperage, Blackwall, 350 bundles of iron hoops, each bundle to contain twenty-four hoops of certain sizes specified in the order for the said hoops, dated the 30th of November, 1855, also 200 bundles of iron hoops, each bundle to contain forty-eight hoops of certain sizes specified in the said order, and each of the said 550 bundles to be firmly tied with rope-yarn: and that the defendant should accept the said bundles of hoops, and pay the plaintiffs for the same so much as they should be reasonably worth. Averment, that the plaintiffs did all things necessary for them to do, and were ready and willing to do all things necessary for them to be ready and willing to do, to entitle them to have the agreed bundles of iron hoops accepted and paid for by the defendant as agreed, and that the time for doing so elapsed before this suit: Breach, that the defendant made default in accepting and paying for the said hoops as agreed, and would not accept the same, or any part thereof; whereby the plaintiffs not only lost all the benefits and profits which would have accrued to them from the performance of the said agreement, but were put to great trouble, costs,

and damages, and did much work, and consumed much time of their servants in and about sending the said hoops according to the said agreement, and taking the same away from the said cooperage, and storing and keeping the same, when *refused by the defendant, and used and occupied much valuable store-room in so storing and keeping the same.

[*111

The declaration also contained counts for work done and materials provided, goods sold and delivered, goods bargained and sold, interest, and money due on accounts stated.

The defendant pleaded,-first, to the first count, that it was not agreed by or between the plaintiffs and defendant in manner and form as in that count alleged,-secondly, to the first count, that the plaintiffs did not, according to the said agreement in the said first count mentioned in that behalf, as soon as possible, according to the true intent and meaning of the same agreement, send to the defendant at the said Cooperage, Blackwall, such bundles of iron hoops as they ought to have sent according to the said agreement in that behalf, or any part thereof, nor were they ready and willing so to do,-thirdly, to the residue of the declaration, never indebted. Upon these pleas the plaintiffs joined issue.

The cause was tried before Willes, J., at the sittings at Westminster after the last term. The facts were as follows:-The plaintiffs are iron merchants carrying on business under the name of "The Weardale Iron Company," and having extensive works at Darlington and at Ferry Hill, and also a counting-house and place of business at White Lion Wharf, Upper Thames Street, London. The defendant is a cooper carrying on business at Blackwall. In November, 1855, the defendant, having entered into a contract with government for a large number of casks to be furnished within a limited time, called at the plaintiffs' counting-house in Upper Thames Street, and asked the plaintiffs' manager within what time he could execute an order for iron hoops. The manager, referring to a former transaction with them, on which occasion the order had been executed within five weeks, said they would not exceed that time. * Shortly afterwards, viz. on [*112, the 30th of November, the defendant instructed his clerk to send to the plaintiffs' counting-house a written order for the quantity of hoops required (about 15 tons), which was done, the letter requesting the plaintiffs to deliver them as soon as possible.

On the 7th of January, 1856, the defendant wrote to the plaintiffs' manager, saying that the hoops must be delivered immediately, or he must decline taking them; and, the time for the execution of his contract with the government having expired, the defendant was compelled to obtain the hoops elsewhere, and on the 28th of January he sent them the following letter: