Dawson v Collis and Another
| Jurisdiction | England & Wales |
| Judgment Date | 16 January 1851 |
| Date | 16 January 1851 |
| Court | Court of Common Pleas |
English Reports Citation: 138 E.R. 208
IN THE COURT OF COMMON PLEAS
S. C. 2 L. M. & P. 14; 20 L. J. C. P. 116.
208 D A WSON V. COLLIS 10 C. B. 523. [523] dawson v. collis and another. Jan. 16, 1851. [S. C. 2 L. M. & P. 14; 20 L. J. C. P. 116.] Plea,-to an indebitatus count for goods sold and delivered, goods bargained and sold, and on an account stated,-as to 1911., parcel, &c., that the defendants made the promise in respect of goods, to wit, 31 pockets of hops bargained and sold by the plaintiff to the defendants ; that, at the time of the promise, the plaintiff produced and shewed the defendants a sample, and promised to deliver the hops equal thereto; that they made their promise as to the said 1911., parcel, &c., on the faith, and in consideration of the said promise, and not otherwise; and that the hops were not equal to the said sample ; wherefore the defendants refused to accept them :-Held, bad, on special demurrer, as amounting to non assumpsit.-Qusece, whether the plea would not have been also bad for attempting to limit the plaintiff's proof to goods bargained and sold, if specially demurred to on that ground.-Upon the sale of specific goods, with a warranty that they are equal to sample, the vendee cannot, it seems, refuse to receive them, on the ground that they do not correspond with the sample, unless there be an express condition to that effect; but must resort to a cross-action, or rely on the non-correspondence with sample as a ground for reduction of damages. Assumpsit for goods sold and delivered, goods bargained and sold, and for money found due upon an account stated. The defendants pleaded,-first, except as to 171., non assumpsit. Secondly,-as to the causes of action in the declaration mentioned, so far as the same relate to the sum of 1911. 9s. 2d., parcel of the moneys in the declaration mentioned (no part of the said sum of 1911. 9s. 2d. being parcel of the said sum of 171. in the said first plea above excepted),-that the said sum of 1911. 9s. 2d., parcel, &c., was and is claimed by the plaintiff to be due and owing to him from the defendants, and the defendants became and were indebted therein as in the declaration alleged, and made their said promise as in the declaration alleged, so far as the same relates to the said sum of 1911. 9s. 2d., for and in respect of divers goods and chattels, to wit, thirty-one pockets of hops, then, to wit, on the day and year in the declaration [524] mentioned, bargained and sold by the plaintiff to the defendants, and at their request, as in the declaration alleged: that, before and at the time of the said bargain and sale, and of the making of the said promise of the defendants in the declaration mentioned, as to the said sum of 1911. 9s. 2d., parcel, &c., the plaintiff produced and shewed to the defendants a certain sample of the said hops, and then promised the defendants to deliver the said hops to the defendants, and that the whole of the said hops were equal in quality and description to the said sample: that the defendants then bargained for and bought the said hops, and every part thereof, and made the said promise in the declaration mentioned as to the said sum of 1911. 9s. 2d., parcel, &c., on the faith and terms, and in consideration of, the said promise of the plaintiff, and not otherwise: that the said hops were not, at the time of the making of the said bargain and sale, and of the making of the said promise of the defendants, nor were they at any time since until or at the time of the commencement of this suit, nor have they ever since been, nor are they, equal in quality and description to the said sample ; but, on the contrary thereof, the same were, and every part thereof was, of a very inferior and bad and indifferent quality and description, and of much less value, and of no use or value to the defendants; wherefore the defendants did not nor would accept the said hops, or any part thereof, and then broke their said promise in the declaration mentioned, so far as related to the said sum of 1911. 9s. 2d., as they lawfully might for the causes in that plea aforesaid,-verification. Special demurrer, assigning for causes, amongst others,-that the plea confesses the cause of action, but does not avoid the same, inasmuch as the breach of a warranty is no cause for rescinding an executed contract of sale;-that the plea admits that...
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