Stead against Dawber and Stephenson
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1839 |
| Date | 01 January 1839 |
| Court | Court of the Queen's Bench |
English Reports Citation: 113 E.R. 22
IN THE COURT OF QUEEN'S BENCH.
S. C. 2 P. & D. 101; 9 L. J. Q. B. 101. Considered, Marshall v. Lynn, 1840, 6 Mee. & W. 117. Not applied, Martindale v. Smith, 1841, 1 Q. B. 396. Discussed, Noble v. Ward, 1866-67, L. R. 1 Ex. 122; L. R. 2 Ex. 138; Ogle v. Vane, 1867-68, L. R. 2 Q. B. 281; L. R. 3 Q. B. 272. Referred to, Tyers v. Rosedale and Ferryhill Iron Company, 1873-75, L. R. 8 Ex. 316; L. R. 10 Ex. 195. Discussed, Hickman v. Haynes, 1875, L. R. 10 C. P. 604.
stead against dawber and stephenson. 1839. Declaration, in assumpsit, stated that plaintiff agreed to buy, and defendant to sell, a cargo to be delivered "on the 20th to the 22d instant," to be paid for by acceptance three months from delivery; and that afterwards, before the 22d, plaintiff, at request of defendant, gave time for the delivery to the 24th ; breach, that defendant, though requested (to wit, on 24th) to deliver, had not, on 24th or any other time, delivered; special damage by rise of price between the agreement and breach. Plea, that the giving of time was part of a contract for the sale of goods at the price of above 101.; and that there was no part acceptance, or earnest, or note or memorandum in writing. Replication, that the giving of time was not part of the contract, &c. It appeared that there was a written contract, as stated in the declaration, for the delivery " on the 20th to the 22d;" but, the 22d falling on Sunday, plaintiff, at defendant's request, verbally agreed to enlarge the time to the 23d or 24th. The price fluctuated between the time of the agreement and the 24th, being higher on the last day. It was understood that the enlargement of time would postpone the delivery of the three months' acceptance. Held, that on these facts defendant, under stat. 29 Car. 2, c. 3, s. 17, was entitled to the verdict, the enlargement of time having materially varied the contract, substituting for it a new contract on a similar consideration, and not being merely a dispensation from performance on a particular day. [S. C. 2 P. & D. 101; 9 L. J. Q. B. 101. Considered, Marshall v. Lynn, 1840, 6 Mee. & W. 117. Not applied, Martindale v. Smith, 1841, 1 Q. B. 396. Discussed, Noble 10 AIX ft E. 58. STEAD V. DAWBER 23 v. Ward, 1866-67, L. E. 1 Ex. 122; L. E. 2 Ex. 138; Ogle v. Vane, 1867-68, L. E. 2 Q. B. 281; L. E. 3 Q. B. 272. Eeferred to, Tyers v. Eosedale and Ferryhitt Iron Company, 1873-75, L. E. 8 Ex. 316; L. E. 10 Ex. 195. Discussed, Hidtman v. Haynes, 1875, L. E. 10 C. P. 604.] Assumpait. The declaration stated that the plaintiff heretofore, to wit 10th May, 1836, at the special instance, &o., bargained for and agreed to buy of the defendants, and defendants then bargained for and agreed to sell to plaintiff, a sloop-load of about 400 quarters of ground bones, of good merchantable quality, [58] at 16s. 6d. a quarter, free on board, to be delivered on the 20th to the 22d then instant; payment by acceptance three months from delivery; that afterwards, and before the said 22d day of May, to wit 17th May, plaintiff, at the special instance, &c., gave time to defen dants for the delivery of the said sloop-load of ground bones until the 24th day of the said month of May j and, although plaintiff hath always, from the time of the making the said contract hitherto, been ready and willing to accept and receive from defendants the said sloop-load, &c., and to pay for the same at the rate or price and in manner aforesaid, whereof defendants, during all the time aforesaid, had notice, and were, to wit on 24th May, requested by and on behalf of plaintiff to deliver to him the said sloop-load of ground bones, yet defendants, not regarding their said contract...
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