DELIVERY AND PAYMENT. 29 



such condition would appear to be good ; as where the 

 plaintiff purchased a Horse for 55/., and the defendant 

 warranted him sound, and agreed to give back 1/. if the 

 Horse did not bring the plaintiff 4/. or 5/. profit (c). 



But if such condition is not ascertainable, of course it EfEect where 

 cannot be enforced, and then it becomes an immaterial not ascer- 

 part of the agreement. Thus, where a horse was sold to *^i^^"^le. 

 the plaintiff for 100 guineas, " and 10/. more if the Horse 

 suited him," Lord Tenterden said, " If the buyer had 

 kept the Horse, I do not see how the seller could have 

 maintained any action to recover the 10/. The buyer 

 might have said, ' the Horse does not suit me, but I choose 

 to keep him nevertheless' " (r/). So, also, where the plain- 

 tiff agreed to purchase a Horse for 63/., and " if the Horse 

 was lucky, he would give the defendant 5/. more, or the 

 buying of another Horse," it was held that this part of 

 the agreement was too vague to be legally enforced, and 

 did not amount in point of law to a promise. Thus, Lord 

 Tenterden said, " The remaining part of the consideration, 

 that if the Horse proved lucky the plaintiff should give 5/. 

 more, or the buying of another Horse, is much too loose 

 and vague to be considered in a Court of law. Who is to 

 say under what circumstances a Horse shall be said to 

 have proved ' lucky' ? The price at which the Horse sold 

 would not determine it. Suppose a year passed before the 

 advanced price was obtained, it might then still be a ques- 

 tion, whether the bargain had been lucky or not. But 

 admitting that this could be ascertained, how could the 

 contract to give 5/., or the buying of another Horse, be 

 enforced ? It is at the option of the contracting party to 

 do either ; and what could be made of an action for not 

 buying another Horse ? The party sued might say he 

 was ready to buy, but too much was asked" (e). 



Where from the whole tenor of a contract it is clear Unreasonable 

 that, however unreasonable and oppressive a stipulation or ^^* notthere- 

 condition may be, the one party intended to insist upon, rejected. 

 and the other to submit to it, the Court will give full 

 effect to the terms which have heen agreed upon between 

 the parties (/). 



The rule of law is, that where there is an immediate The risk after 

 sale, and nothing remains to be done by the vendor as sale. 



(c) m>/th V. Hampton, 3 Bing. 234. 



472. (/■) Stadhard v. Lee, 32 L. J., 



[d) Cave v. Coleman, 3 M. & R. 3. Q. B. 75 ; Andreus v. BeJfield, 2 C. 

 \e) Guthing v. Lynn, 2 B. & Adol. B , N. S. 779. 



