Henry Tennyson against William O'Brien
| Jurisdiction | England & Wales |
| Judgment Date | 05 November 1855 |
| Date | 05 November 1855 |
| Court | Court of the Queen's Bench |
English Reports Citation: 119 E.R. 565
IN THE COURT OF QUEEN'S BENCH AND EXCHEQUER CHAMBER
Discussed, Savage v. Canning, 1867, Ir. R. 1 C. L. 446.
[497] henry tennyson against william o'brien. Monday, November 5th, 1855. Count on a contract by plaintiff to deliver to defendant at C. a cargo in March. Breach, that defendant would not accept, or pay for, the goods. Pleas: (I) Non assumpsit; (2) That plaintiff was not ready or willing to deliver at C. in March. Issue thereon.-At the trial, it appeared that defendant had by letter requested plaintiff to postpone the shipment for defendant's convenience; that the ship arrived in C. on the evening of the 31st March, and consequently that the cargo was not ready for delivery till April. The Judge, on plaintiff's applica- 566 TENNYSON V. O'BRIEN 5 EL. & BL. 498. tion, amended the count by inserting an averment that, at defendant's request, plaintiff delayed the shipment, and defendant promised to accept a delivery of that shipment with reasonable speed, and exonerated plaintiff from delivering in March. Defendant objected to the amendment being made, and requested a postponement of the trial, which the Judge refused. Thereupon defendant refused to alter his plea, or appear further; and the jury, under the Judge's direction, assessed the damages.-On a motion for a new trial,-Held : that, whether the discretion of a Judge at Nisi prius in making an amendment to raise the real point in controversy, and in imposing terms, be reviewable in bane or not, it was in this case properly exercised. And that, no injustice being suggested to have been sustained by defendant in consequence of the refusal to postpone the trial, the discretion of the Judge in that respect ought not to be reversed.-Rule refused. [Discussed, Savage v. Canning, 1867, Ir. R. 1 C. L. 446.] The first count, as originally framed, stated a contract by which plaintiff was to deliver to defendant a cargo of potatoes, say 50 to 100 tons, at Cardiff, in any part of the month of March 1855, at 51. 10s. per ton. Averment of general performance. Breach : that defendant would not accept or pay for the potatoes. Second count for goods bargained and sold. Pleas: 1. To first count, Non assurapsit. 2. To 2d count, Never indebted. 3. To first count, that plaintiff was not ready and willing to deliver the potatoes in Cardiff in any part of the mouth of March. Issues thereon, On the trial, before Lord Campbell C.J., at...
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Savage v Canning
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