Startup and Another v Macdonald
| Jurisdiction | England & Wales |
| Judgment Date | 21 January 1841 |
| Date | 21 January 1841 |
| Court | Court of Common Pleas |
English Reports Citation: 133 E.R. 799
IN THE COURT OF COMMON PLEAS
See S. C. 6 Man. & G. 593
startup and another v. macdonald. Jan. 21, 1841. [See S. C. 6 Man. & G. 593.] Where, upon a sale of merchandise, it was stipulated that the delivery should be within the last fourteen days of March, the delivery stipulated for was construed by the court-hsesitante Erskine J.,~to be a delivery within the ordinary hours of business. Assumpsit. The declaration stated, that on the 20th of October, 1837, the defendant bargained for, and bought of the plaintiffs, and the plaintiffs then sold to the defendant, ten tons of merchantable linseed oil, at the rate and price of 31s. 6d. per cwt., with usual allowances, to be free delivered by the plaintiffs to the defendant within the last fourteen days of March, J.838, and paid for, at the expiration of that time, in cash, deducting 2|- per cent, discount. Mutual promises. Breach: that although the plaintiffs afterwards, and within the last fourteen days of March, 1838, to wit, on the 31st day of March, 1838, were ready and willing, and then tendered and offered, to deliver to the defendant the said ten tons of merchantable linseed oil, and then requested the defendant to accept the same, and although the price for the said linseed oil, at the rate aforesaid, amounted to a large sum of money, to wit, 3151., and although the said time for payment for the said linseed oil has long elapsed, yet the defendant did not, nor would, when he was so requested as aforesaid, or at any time before or afterwards, accept the said linseed oil or any part thereof, of or from the plaintiffs, and has not, although often requested so to do, paid [396] them for the same, or any part thereof, but has hitherto wholly neglected and refused so to do. By reason whereof the plaintiffs have lost, and been deprived of, divers great gains and profits, which they might and would have derived from the said sale of the said linseed oil, and have also suffered great losses from the decreased value thereof. Pleas: first, that the said tender of, and offer to deliver, the said linseed oil, and the request to accept the same, were made on the last of the said fourteen days, at a late time of that day, to wit, at nine o'clock in the night time, the same being, by reason of such lateness thereof, an unreasonable and improper time in that behalf for the said tender and delivery of the said oil; and that the plaintiffs were not, until a late, and for the delivery and acceptance of the said oil, an unreasonable and improper time of the day, to wit, at the hour aforesaid, ready or willing to deliver the said linseed oil to the defendant, modo et forma. Verification. To this plea the plaintiffs replied de injuria ()2; upon which issue was joined. The defendant, in a second plea, traversed the tender, and, in a third, pleaded non assumpsit; upon both of which pleas issue was joined. July 3.-At the trial, before Erskine J., at the sittings at Guildhall, after Trinity term, 1839, the following sold note was produced and proved by the plaintiffs :- (a)1 Vide Crawshay v. Thompson, Michaelmas term, post. (a)2 As to this replication in assumpsit, vide ante, vol. i. p. 720. 800 STARTUP V. MACDONALD 2 MAN. & G. 397. "London, 20th October 1837. " Sold for Messrs. Startup and Philpott, to Mr. A. Macdonald, ten tuns merchant able linseed oil, at 31s. 6d. per cwt.: usual allowances: to be free delivered within the last fourteen days of March 1838, and paid for at the expiration of that time in cash, deducting 2\ per cent, discount. " james nicholl, Broker, "No. 3, Adam's Court." [397] The plaintiffs further shewed that ten tons of merchantable linseed oil sent by them from their crushing mills near Maidstone, arrived at a wharf in London at six o'clock in the evening of Saturday the 31st of March, and at half-past six notice was given at the defendant's warehouse that the oil was on its way. The ten tons were put into two waggons...
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