Smith against Surman
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1829 |
| Date | 01 January 1829 |
| Court | Court of the King's Bench |
English Reports Citation: 109 E.R. 209
IN THE COURT OF KING'S BENCH.
S. C. 4 Man. & Ry. 455; 7 L. J. K. B. 0. S. 296. Discussed, Wright v. Percival, 1839, 8 L. J. Q. B. 260. Considered, Morton v. Tibbett, 1850, 15 Q. B. 437. Distinguished, Wilkinson v. Evans, 1866, L. R. 1 C. P. 411; Marshall v. Green, 1875, 1 C. P. D. 40.
[561] smith against surman. 1829. A., being the owner of trees growing on his land, verbally agreed with B., while they were standing, to sell him the timber at so much per foot. B. afterwards offered to sell the butts of the trees to a third person, and said he would convert the tops into building stuff. A. afterwards, by letter, required B. to pay for the timber, which he, B., had bought of him. B. wrote a letter in answer, stating that he had bought the timber, but that he had bought it to be sound and good, and that it was not so : Held, first, that the contract was not a contract for the sale of lands, tenements, or hereditaments, or any interest in or concerning the same within the meaning of the fourth section of the Statute of Frauds, but that it was a contract for the sale of goods, wares, and merchandizes, within the seventeenth section. Secondly, that as the purchaser did not, in his letter, recognize the absolute contract described in the vendor's letter, but stated one conditional as to quality, there was no note in writing of the bargain to satisfy the Statute of Frauds. Thirdly, that there had been no part acceptance or actual receipt of the goods to satisfy the statute, inasmuch as there was nothing to shew that the purchaser had divested himself of his right to object to the quality of the goods, or that the seller had lost his lien for the price. [S. C. 4 Man. & Ry. 455; 7 L. J. K. B. 0. S.'296. Discussed, Wright v. Perciml, 1839, 8 L. J. Q. B. 260. Considered, Morton v. TiVbett, 1850, 15 Q. B. 437. Distinguished, Wilkinson v. Evans, 1866, L. R. 1 C. P. 411; Marshall v. Green, 1875, 1 C. P. D. 40.] Declaration stated that the plaintiff on, &c. at, &c. at the request of the defendant bargained with the defendant to sell to him, and the defendant agreed to buy of the plaintiff a large quantity of timber, to wit, 230 feet of timber lying and being in and upon certain lands of the plaintiff, at a certain rate or price, to wit, at the rate or price of 18d. for each and every foot thereof, to be fetched, taken, and carried away by the defendant from the said lands of the plaintiff; and to be paid for by !the defendant at the rate or price aforesaid, within a reasonable time then next following; and in consideration thereof, and also in consideration that the plaintiff at the like request of the defendant, had undertaken and faithfully promised the defendant to permit and suffer the defendant to fetch, take, and carry away the said timber from the lands of the plaintiff, the defendant undertook and faithfully promised the plaintiff to fetch, take, and carry away the timber from the lands of the plaintiff, and to pay the plaintiff for the same at the rate aforesaid, within a reasonable time. Breach, that the defendant refused to fetch and carry away the timber or to pay for the same. There were counts for goods [562] bargained and sold, and goods sold and delivered. Plea, the general issue. At the trial before Vaughan B. at the Summer Assizes for the county of Worcester 1828, it appeared that this action was brought to recover 171. 3s. 6d. the value of 229 feet of ash timber, at Is. 6d. per foot, which the plaintiff had agreed to sell to the defendant under the following circumstances :-The plaintiff, the proprietor of a coppice, had given orders to have some ash trees cut down, and the defendant on the 7th of April, while the trees were in the course of being cut, 210 - SMITH V. SURMAN 9 B.-& C. 563. and after two of them had been actually felled, came to the coppice, and the plaintiff pointed out to him the trees, which were numbered. The defendant, after he had looked at them, said to one of the bystanders, that he had made a good bargain, and told one of the persons who was cutting them, to tell the other men to cross cut them fair, and they were cut accordingly. The defendant afterwards said he had bought ten trees only, and that the reason he did not have them was, that they were unsound. After the trees were cut they measured 229 feet 7 inches. The person who measured them afterwards met the defendant, who asked him if he had measured the timber at Mr. Smith's, and receiving an answer in the affirmative, the defendant offered to sell him the butts, (which he alleged he had bought of Mr. Smith,) but this not being acceded to, the defendant asked him if he knew any person who wanted any butts, and then said he would go to Mr. Smith's and convert the tops into build ing stuff. The defendant not having taken the timber away, the attorney of the plaintiff, by his direction, wrote the following letter to the defendant upon the subject:-" Sir, I am directed by [563] Mr. Smith, of Norton Hall, to request you will forthwith pay for the ash timber which you purchased of him. The trees are numbered from one to fourteen, and contain, upon a very fair admeasurement, 229 feet 7 inches. The value at Is. 6d. per foot amounts to the sum of 171. 3s. 6d. I understand your objection to complete your contract is on the ground that the timber is faulty and unsound, but there is sufficient evidence to shew that the same timber is very kind and superior, and a superior marketable article. I understand you object to the manner in which the trees were cross cut, but there is also evidence to prove they were so cut by your direction. Unless the debt is immediately discharged, I have instructions to commence an action against you." In answer to this letter the defendant wrote to the plaintiff's attorney as follows:-" Sir, I have this moment received a letter from you respecting Mr. Smith's timber, which I bought of him at Is. 6d. per foot, to be sound and good, which I have some doubts whether it is or not, but he promised to make it so, and now denies it. When I saw him he told me I should not have any without all, so we agreed on these terms, and I...
To continue reading
Request your trial
-
Duppa, Executor of Baskerville v Mayo
...90, Harweod v. Goodright, per Lord Mansfield. And see 11 Mod. 122, Brunker v. Cook.(g) this ic a contract merely for the sale of goods. 9 B. & C. 561, Smith v. Surrnan. 4 Mann. & R. 455, S. C. And, per Littledale J., even if the contract were for the sale of the trees, with a specific liber......
-
The Queen against The Inhabitants of Hockworthy
...of land. The agreement for cutting browze was a contract for the sale of goods, like the bargain for [498] timber in Smith v. Surman (9 B. & C. 561). The demise of pasture is a demise of the land for the purpose of pasturing, and this may pass by livery of seisin, Shepp. Touchst. 97 ; it is......
-
Bailey and Another v Sweeting
...the statute. I think the case of Cooper v. Smith, 15 East, 103, in substance is not distinguishable from this.' In Smith v. tiurman, 9 B. & C. 561, 4 M. & B. 465, in 1829, the plaintiff's attorney wrote to the defendant,-'Sir,-I am directed by Mr. Smith, of Norton Hall, to request you will ......
-
Wontner v Shairp
...10th edit. p. 165 ; citing Holland v. Eyre, 3 Sim. & Stu. 194; Routledge v. Grant, 4 Bingh. 653, 1 M. & P. 717; and Smith v. Surman, 9 B. & C. 561. 4C.B.426. WONTNER V. SHAIBP 573 the deed when prepared, nor paid a second call when made, nor appeared at any meeting, nor interfered with any ......