Cundell and Another v Dawson
| Jurisdiction | England & Wales |
| Judgment Date | 08 May 1847 |
| Date | 08 May 1847 |
| Court | Court of Common Pleas |
English Reports Citation: 136 E.R. 552
IN THE COURT OF COMMON PLEAS
S. C. 17 L. J. C. P. 311; 11 Jur. 634.
[376] cundell and another v. dawson. May 8, 1847. [S. C. 17 L, J. C. P. 311; 11 Jur. 634.] A contract entered into in contravention of a statutory provision, whether the prohibition is express, or is implied from the imposition of a penalty, will not support an action.-A statute (1 & 2 Viet. c. ci. s. 3) enacted, "that, with any quantity of coals exceeding 560 Ibs. delivered by any cart, waggon, or other carriage, within the cities of London and Westminster, or within twenty-five miles from the general (a) And see, as to sheriffs, rules, Johnson v. Brazier, clerk, 1 Ad. & E. 654, 3 N. & M. 654; Lewis v. Holding, 2 M. & G. 882, 3 Scott, N. B. 191; Melville v. Smark, 3 M. & G. 57, 3 Scott, N. E. 346 ; Brown v. Ludham, 6 M. & G. 169, 6 Scott, N. E. 934; and the statute 1 & 2 Viet. c. 45, s. 2. 4C. B.377. CUNDELL -V. DAWSON 553 post-office, the seller should deliver or cause to be delivered to the purchaser, or to his agent or servant, immediately on the arrival of the cart, waggon, or other carriage in which such coals should be sent, and before any of such coals should be unloaded, a ticket, according to a certain form; and that, in case any such seller should not deliver or cause to be delivered such ticket as aforesaid to'the purchaser of such coals, or to his agent or servant, before any part of such coals were unloaded, every such seller should, for every such offence, forfeit and pay any sum not exceeding 201." By the form given, the ticket was required to be "signed" with the name or names of the seller or sellers, and that of the carman, in words at full length :-field, that the neglect to deliver such ticket might be pleaded in bar to an action for the price of the coals.-In debt for goods sold and delivered, the defendant pleaded, that the goods were divers quantities of coals by the defendant purchased of the plaintiffs, and by the plaintiffs sold and delivered to the defendant ; that the said quantities of coal were respectively delivered by the plaintiffs to the defendant after the passing of the above act; that each of the quantities of coal so sold and delivered, at the respective times of the sales and of the deliveries thereof, exceeded in weight 560 Ibs., and that each of the quantities of coals was so delivered, within the city of London, in two carts and two waggons ; that the plaintiffs were the sellers of the said quantities of coals; and that the plaintiffs, so being the sellers, did not deliver or cause to be delivered to the defendant, or to his agent or servant, immediately on the arrival of the carts and waggons, and before any of such quantities of coals were unloaded, a ticket with each of the said quantities of coals, nor with any of them, according to the required form, signed by the plaintiffs, with their names in words at full length, according to the statute; and that the defendant, at the times of the said sales and deliveries of the coals, was not a seller of, or dealer in, coals, nor did he purchase the same, or any part thereof, at the coal-market:-Held, that the plea sufficiently alleged an omission to deliver a ticket, in contravention of the statute :-That it properly alleged the want of signature by the sellers :-And that the fact of the defendant being a dealer in coals at the respective times of the sales and deliveries, or of his having purchased the coals at the coal-market,-by which the necessity of delivering a ticket would have been dispensed with,-was sufficiently negatived. Debt, for goods sold and delivered, and for money found due upon an account stated. * Pleas-first, never indebted-secondly, payment-[377] thirdly, to the first count, that the goods in the said first count mentioned to have been sold and delivered by the plaintiffs to the defendant as therein mentioned, were divers quantities of coals by the defendant purchased of the plaintiffs, and by the plaintiffs sold and delivered to the defendant, on divers days and times, and that the said sum of 501. in the said first count mentioned, wherein the plaintiffs allege the defendant was indebted to them, was and is for the price and value of the said quantities of coals so sold and delivered by the plaintiffs to the defendant as aforesaid, and not otherwise, or for any other goods of any other kind or description whatsoever; that the said quantities of coal were respectively delivered by the plaintiffs to the defendant after sixty days after the passing of a certain act of parliament made and passed in a certain session of parliament holden in the 1st and 2nd years of. the reign of Her Majesty, Queen Victoria, intituled " An act to continue for seven years an act for regulating the vend and delivery of coals in London and Westminster, and in certain parts of the adjacent counties " (1 & 2 Viet. c. ci.), to wit, on the 1st of June, 1843, and on divers other days and times between that day and the 1st of June, 1844, and before the commencement of this suit; that each of the said quantities of coals so delivered by the plaintiffs to the defendant as aforesaid, on the days and times aforesaid, at the respective times of the sales and of the said deliveries thereof to the defendant as aforesaid, respectively exceeded in weight 560 Ibs., and that each of the said quantities of coals were (was) respectively so delivered as aforesaid by the plaintiffs to the defendant, within the city of London, by and in divers, to wit, two carts and two waggons ; that the plaintiffs were the sellers of each and every of the said quantities of the said coals so sold [378] and delivered to the defendant as aforesaid; and that the plaintiffs, so being the sellers of the said quantities of the said coals, did not deliver, or cause to be delivered to the defendant, he the defendant being the purchaser of each and every of C. P. Xiv.-18* 554 CUNDELL V. DAWSON 4 C. B. 379. the said quantities of coals, or to his, the defendant's, agent or agents, or servant or servants, immediately on the arrival of the said carts and waggons in which each of such quantities were respectively sent, and before any of such quantities of coals were unloaded, a paper or ticket with each of the said quantities of coals, or with, any or either of them', according to the form in schedule (A.) to the said act annexed, respectively signed by the plaintiffs, the sellers of the said quantities of coals, with their names in words at full length, according to the form and effect of the said statute, but wholly neglected so to do, contrary to the said statute; and that he the defendant, at the times of the said sales and of the said deliveries of the said coals to him as aforesaid, was not a seller of or dealer in coals, nor did he the defendant purchase the same, or any part thereof, at the coal-market-verification. The plaintiff demurred specially to the third plea, assigning for causes-that it was pleaded to the whole of the first count, which was admitted by the plea to be founded upon several distinct sales and several distinct deliveries of coals at several distinct times, and yet the defendant in and by the plea pretended that the whole of the said sales and deliveries were illegal and void, because the plaintiffs did not immediately on the arrival of the said carts and waggons, and before any' of the said quantities of coals were unloaded, deliver to the defendant a paper or ticket, according to the form in the schedule to the said act annexed; and the defendant thereby sought to avoid all the sales and deliveries of the said coals, and all the contracts upon which the plaintiffs had declared in their first count, because they [379] did not comply with the enactment of the statute upon the first delivery of the said coals; and it was consistent with the plea, that the plaintiffs, on the second and every subsequent occasion, did deliver a paper and ticket as required by the said statute ; and the plea, being bad in part, was bad altogether-that the plea was uncertain and repugnant, in this, to wit, that it was therein alleged that the plaintiffs did not, immediately on the arrival of the said carts and waggons, and before the unloading of any of the said quantities of coals, deliver a paper or ticket, and the non-delivery of the paper and ticket which the defendant there alleged, was a non-delivery after all the carts and waggons had arrived, and before any of the coals were unloaded; and, as it appeared that the said coals were delivered at different times, some of the coals must have been unloaded before all the said carts and waggons had arrived-that the plea was further uncertain, in this, to wit, that it did not appear thereby whether the defendant meant that no paper or ticket was delivered, or that an informal paper and ticket was delivered with the said coals, and the plea by argument and inference admitted that a paper and ticket was delivered with the said quantities of coals, but that such paper or ticket was not signed by the plaintiffs, the sellers thereof, with their names in words at full length-that the said act of parliament in the plea mentioned did not require that any such paper or ticket should be delivered with coals, as the paper and ticket in the plea mentioned-and that it did not appear that the defendant ever returned or offered to return to the plaintiffs, or was ready to return to them, the said coals. Joinder in demurrer. April 23. Unthank (with whom was Byles, Serjt.) in support of the demurrer. This plea is framed upon the 3rd section of the 1 & 2 Viet. c. ci., which enacts, " that, [380] with any quantity of coals exceeding 560 Ibs. delivered by any cart, waggon, or other carriage, within the cities of London and Westminster, or within the distance of twenty-five miles from the general post-office, the seller or sellers thereof shall deliver, or cause to be delivered, to the purchaser...
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