Moss against Sweet and Another
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1851 |
| Date | 01 January 1851 |
| Court | Court of the Queen's Bench |
English Reports Citation: 117 E.R. 968
QUEEN'S BENCH.
S. C. 20 L. J. Q. B. 167; 15 Jur. 536. Commented on, Ray v. Barker, 1879, 4 Ex. D. 282. Dictum not applied, Elphick v. Barnes, 1880, 5 C. P. D. 325. Observations applied, Ornstein v. Alexandra Furnishing Company, 1895, 12 T. L. R. 128. Distinguished, Weiner v. Gill, [1906] 2 K. B. 581.
- - ' 193-6 -7 yJ. T [493] Moss against sweet'and another. Wednesday, January 15th, 1851 (a). Where goods delivered " on sale or return " are not returned within a reasonable time, the sale of the goods becomes absolute, and the price may be recovered undet the common count for goods sold and delivered. [S. C. 20 L. J. Q. B. 167 ; 15 Jur. 536. Commented on, Bay v. Barker, 1879, 4 Ex. D. 282. Dictum not applied, Elphide v. Barnes, 1880, 5 C. P. D. 325. Observations applied, Ornstein v. Alexandra Furnishing Company, 1895, 12 T. L. R. 128. Distinguished, Weiner v. Chill, [1906] 2 K. B. 581.] Assumpsit for goods sold and delivered. The defendant Sweet suffered judgment by default. The other defendant pleaded non assumpsit: issue thereon. On the trial, before Lord Campbell C.J., at the London sittings after last Michaelmas term, it appeared that the goods in question had been delivered to the defendants, who were partners in trade, on sale or return. The defendant Sweet, who was called as a witness for the plaintiff, explained the meaning of delivery " on sale or return " to be, that tbe goods are taken as sold unless returned, at the buyer's option, within a reasonable time. The jury expressed their concurrence in this explanation ; and also found that the present was such a case of sale or return. No question was raised whether a reasonable time had elapsed before tbe commencement of the action : but it was objected that the action for goods sold and delivered could not be maintained at all under the circumstances, and that the plaintiff should have declared upon the special agreement. His Lordship overruled the objection : and a verdict was found for the plaintiff. Wordsworth now moved for a new trial, on the ground of misdirection. Iley v. Frankenstein (8 Scott's New E. 839), is an express authority that, where goods are delivered on "sale or [494] return," a declaration as upon an absolute sale of goods cannot be supported, notwithstanding the lapse of a reasonable time for the return of the goods ; and tbat the remedy is by a special declaration for not returning tbe goods pursuant to...
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