Sotilichos v Kemp
| Jurisdiction | England & Wales |
| Judgment Date | 23 November 1848 |
| Date | 23 November 1848 |
| Court | Exchequer |
English Reports Citation: 154 E.R. 775
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 18 L. J. Ex. 36.
SoTIL[OHOS v. kemp. Nov. 23, 1848. - [n an action for refusing to accept a cargo of linseed, which plaintiff had sold defendant, and which was to arrive by a vessel, "fourteen days to be allowed for the delivery of it," and evidence was otiered dehors the contract, to shew what the parties intended by the period assigned for the delivery of the cargo : -Held, that, in the absence of any usage or evidence to raise an ambiguity as to the terms of the contract, such evidence was properly rejected. [S. C. 18 L. J. Ex. 36.] Assumpsit. The declaration stated, that the defendant agreed to buy of the plaintiff 1000 quarters of linseed, expected to arrive by the " Enterprise," to be delivered at Hull at 4ns. per quarter, " fourteen days to be allowed for the delivery of the said seed from the time of the ship's being ready to discharge after its at rival." Averment, that although the plaintiff was ready and willing to deliver the seed, yet that the defendant would not accept it. Plea (amongst others), that the plaintiff was not ready and willing to deliver the seed within a reiisonable time; upon which issue was joined. It appeared at the trial of the cause, before Cresswell, J., at the last York Summer Assizes, that the "Enterprise" arrived on the 14th of April, when the defendant applied for the linseed, but the captain refused to deliver it up to him, as 776 RERRItS'G V HUDSON 3 SX 106 he had not at that time the bill of lading On the 22nd the bill of lading having arrived, the captain then offered to deliver the seed to the defendant, but he refused to accept, as the market in the meantime had fallen considerably It thereupon was contended, on the part of the defendant, that [106] the provision in the agreement, by which fourteen days were to be allowed for the delivery of the seed, was for the benefit of the purchaser, and that he had the whole of that time before he took away the seed , and of that opinion was the learned judge, but he lefused to receive evidence for the purpose of explaining the meaning of the patties, and left it to the jury to say, Whether the offer on the 22nd was made within a reasonable time The jury found a verdict far the plaintiff, with 2701 damages Martin moved (Nov 6th) for a rule nisi for a new trial, on the ground of mia-dnection, and also of the verdict being against the evidence The...
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