Moore v Campbell
| Jurisdiction | England & Wales |
| Judgment Date | 07 July 1854 |
| Date | 07 July 1854 |
| Court | Exchequer |
English Reports Citation: 156 E.R. 467
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 2 C L R. 1084; 28 L. J. Ex. 310. Followed, Noble v Ward, 1867, L R 2 Ex. 135. Referred to, Tyers v. Rosedale and Ferryhill Iron Company, 1873, L. R 8 Ex. 316: reversed, L R. 10 Ex. 195
[323] moore v campbell July 7, 1854 -The plaintiff employed a broker to purchase for him some hemp The broker, having negotiated with the defendant, signed and sent to him a note of the purchase of 100 tons of hern}), to arrive by certain ships; " payment, at the option of the buyer, by acceptance at six months from delivery, 01 cash in fourteen days less two-and-a-half per cent to be taken from the quay at the landing weights." The defendant afterwards signed and sent to the broker a note, differing in several material points from the note sent to him On the 18th of September, a ship arrived with 50 tons of hemp, and on the 2^th was warehoused at the broker's verbal request On the 3rd of October the plaintiff declared his option to pay by bill. The defendant afterwards tendered to the broker delivery orders for "about" 50 tons of hemp, but the broker refused to receive them and give the plaintiff's acceptance, on the ground of the quantity being so described, and the defendant in consequence resold the hemp. The plaintiff' then sued the defendant for not delivering the hemp, and declared on the note signed by the defendant as the contract between them Held .-First, that it was a question for the jury whether both parties 468 MOORE V. CAMPBELL 10 EX. 324. intended that the note signed by the defendant should be the contract, in which case there was a sufficient memorandum within the Statute of Frauds , or whether the defendant never intended to be bound as seller unless the buyer also signed a conelative note to bind him, and if so, there was no valid coutiact -Secondly, that eudence was admissible to prove that, by usage of trade, the delivery orders were in the usual form when goods weie warehoused in bulk; and when that evidence was coupled with proof that the goods warehoused weie actually of that weight at the landing scales, ,md that the particular orders referred to the identical goods so weighed, such delivery orders were a sufficient performance of the contract to deliver. Thirdly, that the parol agreement to alter the written contract to deliver the hemp on the quay by substituting a delivery from the warehouse, did not operate as a new contiact so as to be a waivei or discharge of the old one; for such agreement was void by the Statute of Frauds But if the plaintiff had accepted the goods in the warehouse, or even the delivery orders in the form offered, as a performance of the contiact on the defendant's part, there would have been a good answer by way of accord and satisfaction.-Quaere, -Whether the plaintiff declared his option and was ready to give his acceptance ii due time |S. C. 2 C L. R 1084; 28 L. J. Ex 310. Followed, Noble v Waid, 1867, L K 2 Ex. 135. Referred to, Tyert v. llosedale and FeiryhUl Iron Company, 1873, L. K 8 Ex. 316 : reTersed, L E. 'lO Ex. 195 ] The declaration stated, that, in September, 1853, the defendant agreed with the plaintiff to sell to him 100 tons of Petersburgh clean hemp, expected to arrive at Liver-pool by certarn ships, namely, fifty tons by the ship "George Green," and fifty tons by the ship " Trina," at the price of 341 per ton from the quay, and on the terms, that, if the ship or ships should be lost, or the hemp damaged on the voyage, the said contract should fee considered void for such quantity as might be lost or damaged, the quality to be of fair average of the season; and, if any dispute should arise, the same should be settled by arbitration Payment to be made by the plaintiff by six months' acceptance, or cash in fourteen days, less two and a half per cent discount, at the buyer's option, and on the terms of customary allowances Averments that, after the making of the contract, the ship "George Green" arrived at Liverpool with fifty [324] tons of such hemp on board, and not damaged, and the quantity of fifty tons of hemp thereupon became deliverable to the plaintiff, according to the terms of the said contract, and the plaintiff was at all times ready to accept the said quantity of fifty tons of hemp, according to the said contract, and to exercise his option, and to pay for the same by a six months' acceptance, and the plaintiff did all things necessary to be done by him in...
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