Mussen against Price and Another
| Jurisdiction | England & Wales |
| Judgment Date | 28 June 1803 |
| Date | 28 June 1803 |
| Court | Court of the King's Bench |
English Reports Citation: 102 E.R. 786
IN THE COURT OF KING'S BENCH.
Applied, Dutton v. Solomonson, 1803, 3 B. & P. 586. Referred to, Hickling v. Hardey, 1817, 1 Moore, 64; Rugg v. Weir, 1864, 16 C. B. N. S. Explained, Anderson v. Carlisle Horse Clothing Company, 1870, 21 L. T. 761. Referred to, Jefferson v. Querner, 1874, 30 L. T. 867. Applied, Rabe v. Otto, 1903, 89 L. T. 562.
mussen against price and another. Tuesday, June 28th, 1803. Where goods were sold upon a contract that the vendee was to pay for them in three months by a bill of two months : Held that the contract was for a credit of five months, and therefore that assumpsit for goods sold and delivered could not be brought at the end of three months upon the neglect of the vendee to give his bill at two months; the remedy being by a special action on the case for damages for the breach of contract in not giving such bill. [Applied, Duiton v. Solomonson, 1803, 3 B. & P. 586. Referred to, Eickling v. Eardey, 1817, 1 Moore, 64; Rugg v. Weir, 1864, 16 C. B. N. S. Explained, Anderson v. Carlisle Horse Clothing Company, 1870, 21 L. T. 761. Referred to, Jefferson v. Querner, 1874, 30 L. T. 867. Applied, Babe v. Otto, 1903, 89 L*. T. 562.] This was an action for goods sold and delivered, tried before Rooke J. at the last Lancaster Assizes; and the only question was, whether the action were commenced before the time of credit on which the goods had been contracted to be bought was expired? The goods in question were a quantity of cotton, valued at 2171., for which payment was to be made by the defendants in three months after the 15th of September 1802, (the day on which the bargain was concluded,) by a bill of two months. The action being commenced in Hilary term lastj before the expiration of five months from the 15th of September preceding, the defendant's counsel objected that it was prematurely brought, and therefore that the plaintiff should be nonsuited : but the learned Judge held, that unless the defendants could shew (which they did not do) that they had given or tendered such a bill at the end of the three months, the action would lie for goods sold and delivered. Accordingly the plaintiff recovered, but the point was saved for the consideration of the Court. And in the last term Raine obtained a rule nisi for setting aside the verdict and entering a nonsuit, principally upon [148] the authority of a case of Millar v. Shaw, at Lancaster Lent Assizes 1801, before Chambre J., where the plaintiff was nonsuited on a similar objection. Cockell Serjt. Holroyd, and Yates, now shewed cause against the rule. The contract was in substance for the sale of the goods upon an absolute credit of three months only, with an indulgence to the defendant to give a bill at two months instead of ready money, provided he was enabled to get a good acceptance, and was desirous so to do. Then the defendant having broken the condition...
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...Therefore, where goods are sold to be paid for by a bill, and the purchaser refuses to give the bill, the declaration must be special; 4 East, 147, Mussen v. Price. 3 Bos. & Pull. 582, Dutton v. Solomanson. 9 East, 498, Hoskins v. Duperoy; unless the plaintiff wait till the bill would have ......
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