PLEADING AND EVIDENCE FOTl THE rLATNTTFF. 175 



Where the property has completely passed (/>), and the Action for 

 Yendor does not wish to deliver the Horse till he has re- P!.'^*^° °* 

 ceived the Price agreed upon ; or if the purchaser refuse to 

 receive him, the Vendor may bring an action for payment 

 of the price of the Horse (r). 



Where the Purchaser refuses to accept the Horse he Actiou for not 

 has bought, the Vendor may maintain against him an 'Accepting-, 

 action for not accepting, even though the Horse may after- 

 wards have been re-sold {d) ; and the Statement of Claim 

 will set out facts showing the ConHideration and the Pro- 

 mhe, the Breach, and the Bamafje. Where a certain time 

 or place for delivery has been agreed upon, it is the duty 

 of the Vendor to tender the Horse, and such Tender must 

 be proved {e). 



Where by the terms of the Contract the defendant was 

 bound to fetch away the Horse, the plaintiff should state 

 in the Statement of Claim that he has not done so, and aver 

 his own readiness and willingness to deliver (/) . 



It appears that the general averment of the performance 

 and happening of all things necessary to the plaintiff's 

 right of action imports a sufficient statement of his being 

 ready and willing to do all things necessary to be done on 

 his part for the future (</). But the general averment of 

 readiness and willingness is not sufficient in a case of con- 

 dition precedent {li): 



Where the Pm'chaser of goods refuses to take them, the Resale of the 

 Vendor by reselling them does not preclude himself from ^^^^*- 

 recovering Damages for breach of Contract. And it was 

 decided by the Court of Common Pleas that " when a 

 party refuses to take goods he has purchased, they should 

 be resold, and that he should be liable for the loss, if any, 

 upon the resale" ii). 



An action for the detention of goods may be maintained Action for 

 by any person who has either an absolute or a special Retention of 

 property in goods, which are capable of being ascertained, '^ 

 against another, who is in actual possession of such goods 



(5) Atkinson v. Bell, 8 B. & C. (c) Bordenave v. Gregory, 5 East, 



277; Scott v. England, 2 D. & L. 111. 



524. (/) Bach v. Owen, 5 T. R. 409 ; 



(c) Biinmore v. Taylor, Peake, N. Jiairson v. Johnson, 1 East, 203 ; 

 P. C. r)G; HanJccy v. Smith, Ibid. Wilks y. Atkinson, 1 Marsh. 412. 

 57, n. ( r/) Bcntlcy v. Baives, 9 Ex. 666. 



[d) Maclean v. Bunn, 1 M. & P. (//) Roberts v. Brett, 6 C. B., 

 761; S. V. 4 BiDg. 722; More v. N. S. 611, 633. 



Mibier, Peake, N. P. C. 58, n. (*) Maclean v. Bunn, 4 Biug. 



722. 



