Rourke against Short
| Jurisdiction | England & Wales |
| Judgment Date | 24 January 1856 |
| Date | 24 January 1856 |
| Court | Court of the Queen's Bench |
English Reports Citation: 119 E.R. 717
IN THE COURT OF QUEEN'S BENCH AND EXCHEQUER CHAMBER
S. C. 25 L. J. Q. B. 196; 2 Jur. N. S. 352; 4 W. R. 247. Applied, Higginson v. Simpon, 1877, 2 C. P. D. 78. Discussed, Wilson v. Cole, 1877, 36 L. T. 704.
[904] rourke against short. Thursday, January 24th, 1856. Plaintiff and defendant, while conversing as to some rags which plaintiff proposed to sell and defendant to purchase, disputed as to the price of a former lot of rags, plaintiff asserting the price to have been lower than defendant asserted it to have been. They agreed that the question should be referred to M,, a spirit merchant, and that whichever party was wrong should pay M. for a gallon of brandy, and that, if plaintiff was right, the price of the lot now on sale should be 6s. per cwt., but, if defendant was right, 3s. M. decided that plaintiff was right. Plaintiff sent the ;rags, to defendant, but defendant refused to accept them at 6s., offering; 5s. - To an action for goods bargained and sold, defendant pleaded the facts apeciftlly (except as to the reference to M.), averring that 6s. was higher and 3s. lower than the value of the rags bargained for, and justified the refusal to accept on tbe ground that the agreement was made by way of wager, and therefore within stab. 8 & 9 Viet. c. 109, s. 18. - Held that the plea was good, and was supported by the facts. And this, whether or not the fact of the agreement relating to the brandy was taken into consideration. [S. C. 25 L. J. Q. B. 196 ; 2 Jur. N. S. 352 ; 4 W. R. 247. Applied, Higginson v. Simpson, 1877, 2 C. P. D. 78. Discussed, Wilson v. Cole, 1877, 36 L. T. 704.] Declaration for goods bargained and sold. Pleas. 1. Never indebted. 2. That, "just before the alleged bargain and sale of the said goods in the fcaid declaration mentioned, in a certain discourse then held between the plaintiff and i the defendant, a dispute arose between them, as to whether certain rags, theretofore iold and delivered by the plaintiff to the defendant, were stated, in a certain invoice which had been theretofore delivered of and concerning such ragg, to have been so sold and delivered at or for the price or sum of 5s. 9d. for every 112 Ibs. of such rags, 718 ROTJRK.E V. SHORT 8 EL. S BL 905. or at and for the price of 6s. for every 112 Ibs. of such rags: and the plaintiff then asserted that the said price of the said rags was stated, in the said invoice, to be at and after the rate or price of 5s. 9d. for every 112 Ibs. of such rags ; and the defendant then, on the contrary, asserted that the said price of the said rags was stated in the said invoice to be at and after the rate or price of 6s. for every 112 Ibs. of such rags. Whereupon it was, illegally and by way of gaming and wagering, agreed by and between the plaintiff and the defendant that, if the said assertion "of the plaintiff [905] respecting the price of the said rags should be thereafter found to be correct, then and in such case be, the defendant, should pay for and on behalf of the plaintiff the price or value of one gallon of the best brandy, and should also accept and receive of and from the plaintiff, who should then deliver to the defendant, the said goods in the said declaration mentioned at and after the rate or price of 6s. for every 112 Ibs. of the said goods, the same being more than the real value of the said goods: and that, if, on the contrary, the said assertion of the defendant respecting the price of the said rags should be...
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