Harman v Ouden. in B. R
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1792 |
| Date | 01 January 1792 |
| Court | Court of the King's Bench |
English Reports Citation: 92 E.R. 975
COURT OF KING'S BENCH, COMMON PLEAS AND EXCHEQUER
case 59. harman vers. ouden. in B. R. Assumpsit to deliver oatmeal on board a vessel (to be brought by the plaintiff) on or before the 18th of January ; breach, that he did not deliver upon the 18th is good after verdict. 1 Ld. Raym. 620, S. C. 12 Mod. 421, S. C. Holt 127, S. C. 1 Salk. 140, S. C. 5 Com. Dig. 41, 42. Bull. Ni. Pri. edit. 1790, p. 162. Co. Litt. 211 a. Cro. Jac. 9. 2 Lev. 293. 2 Vent. 221, S. C. This was an aetioii upon the case upon an assumpsit, in which the plaintiff declared, that in consideration of 701. paid by him to the defendant, the defendant assumed to deliver so many quarters of oatmeal at Newhaven aboard a vessel, to be there prepared by the plaintiff, on or before the 18th day of January next following; and it was assigned for breach, that the defendant did not deliver the quarters of oatmeal upon the said 18th day of January, at Newhaven, to his damage, &c. After a verdict for the plaintiff in the county of Sussex, it was moved in arrest of judgment, that here the breach was [90] not well assigned; for the plaintiff laid in hia declaration the promise to be, to deliver the oatmeal on or before the 18th day of January, so that the defendant had liberty to tender or deliver it before that day, as well as at that day; the breach is", that the defendant did not deliver it at the day, but it is not said, that he did not deliver it before. But Holt C.J. gave the opinion of the Court, that the declaration was sufficient, for the 18th day of January was the proper day for the delivery ; for if the defendant had tendered the quarters of oatmeal at any time before that day, and the plaintiff had not been there to accept of the tender, the tender had not been good (a)1; and in an action brought by the plaintiff, the defendant cannot avoid the payment by such a tender; and this appears by the case Cro. Eliz. 14(6). A man was bouud by an obligation to pay money on the 29th of September or before, and he tendered tbe money at the place on the 28fch of September, the...
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