Zulueta and Others v Miller and Others
| Jurisdiction | England & Wales |
| Judgment Date | 07 May 1846 |
| Date | 07 May 1846 |
| Court | Court of Common Pleas |
English Reports Citation: 135 E.R. 1197
IN THE COURT OF COMMON PLEAS.
[895] ZULUETA AND OTHERS V. MlLLER AND OTHERS. May 7, 1846. A plea framed fairly to raise the question whether the action is not rendered unmaintainable by reason of the non-performance of an alleged condition precedent, is an issuable plea. Assumpsit. The declaration stated that, on the 2nd of November, 1844, by a certain agreement in writing, dated, &c., then made between the defendants on the one part, and the plaintiffs on the other part, and signed by the plaintiffs and the defendants respectively, it was agreed that the defendants should furnish a pair of direct-acting steam-engines of the collective power of 350 horses, of the best materials and workmanship, fitted complete with expansion valves and gear, tubular boilers, safety-valves, nozzles, and gear, stop-valves, nozzles, and gear, brine-pumps and refrigerators or other suitable apparatus, a small engine to fill the boilers, water-gauges and gauge-cocks, hand-pump and leather hose, feed, injection, and blow-off pipes and cocks; all the pipes of copper that could with propriety be made of that material, chimney and steam-chest casing, paddle-wheels and flats, coal-cases, fenders, (a)1 Q. d. a gratuitous bailment for the sole benefit of the bailor,-depositum or man-datum ; not commodatum,-a gratuitous bailment for the sole benefit of the bailee. (a)2 But by the resolution of the judges respecting motions for new trials, in cases before sheriffs and judges of inferior courts of record,-" upon all motions respecting causes tried before sheriffs or judges of inferior courts of record, pursuant to the statute (3 & 4 W. 4, c. 42), ss. 17, 18, the party making the application to the court above must produce an examined copy of the notes of the sheriff or his deputy or of the judge who tried the cause, together with an affidavit verifying such to be a true copy." And see Mansell or Mansfield v. Brearey, 1 A. & E. 347, 3 N. & M. 471 ; Burney v. Mawson or Moxall, 1 A. & E. 348, n., 3 N. & M. 472, n.; Hall v. Middleton, 4 N. & M. 368; Walker v. Needham, 3 M. & G-. 557. (b) Vide ante, 874 (b). 1198 ZTJLUBTA V. MILLER 2C.B. 896. ladders, and flooring-plates, including a complete set of engineers' tools to work the engines, and extras as per a certain list No. 1, which then accompanied the said agreement, erected on board, painted and ready with every metallic part complete to set to work, for 15,0501.; and, further, to supply the duplicates, extras, and stores, as per a certain list No. 2, which accompanied the said agreement, for 16401.; and that the engines should be completed ready to be put on board in eight months from the date of the said agreement; and the consumption of fuel to be 5 Ibs. of good coal per horse-power per hour; and that the plaintiffs should pay them the said sums in the following manner, viz. one fourth part on signing the said agree-[896J-ment, one fourth part when the engines should be half finished, one fourth part when the engines should be ready to be put on board, one fourth part when the engines should be completed on board. Averment that, the said agreement being so made as aforesaid, afterwards, and before the commencement of the suit, to wit, on the day and year aforesaid, in consideration thereof, and that the plaintiffs, at the request of the defendants, had then promised the defendants to perform the said agreement in all things on the defendants' part to be performed, the defendants then promised the plaintiffs to perform the agreement in all things on the defendants' part to be performed ; that the plaintiffs did, on signing the said agreement, to wit, on the day and year aforesaid, and long before the commencement of the suit, pay the defendants one fourth part of the said sum of 15,0501., and they the plaintiffs, at the time when the said engines ought, according to the said agreement, to be completed ready to be put on board, and at the time when they ought, according to the said agreement, to have been completed on board respectively, were...
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