PLEADING AND EVIDENCE FOR THE PLAINTIFF. 177 



in damages, he may maintain against liim an action for 

 not ddkering (ii) ; and where a pai-ticular time for dehvery 

 has been agreed upon, the Statement of Claim will set out 

 facts showing the CouHideyation and Promise, the Breach 

 and the Damage, and aver a readiness and willingness to 

 accept and receive the Horse and pay the Price (o) . If no 

 particular time has been specified, and the Contract be 

 to deliver the Horse generally, as where an action of 

 Assufnjysif for not delivering was brought against a party 

 who had sold the plaintiff a Mare, and promised, if she 

 proved Unsound, to provide another or retmii the money (p), 

 there must be a special Request to deliver, which will come 

 imder a general averment of performance of conditions 

 precedent {q) . But if a place is mentioned, and no time (r) , 

 or the defendant has incapacitated himself from completing 

 the agreement, as by reselling, &c., a Bequest to deliver is 

 imnecessary (s). 



Where the Vendor has delivered the Horse, and the Goods sold 

 Pm'chaser neglects or refuses to pay for him ; or if a and delivered 

 Horse or Groods be taken in part payment, and the residue of^he Prioe. 

 is unpaid (;*) ; or if the Pm-chaser has the Horse on the 

 terms of sale or retm-n, and keeps him an unreasonable 

 time, the Vendor may maintain an action for Goods sold 

 and delivered iii) . 



Where a portion only of a larger bulk of goods to be Action main- 

 delivered in pursuance of a written contract by a stated tainable on 

 time has been delivered, and the pmxhaser then rescinds ContracUw 

 the contract, the Vendor may maintain an action for goods one of the 

 sold and delivered, although the time fixed for the payment Parties, 

 of the goods has not elapsed {x). 



And where A. agreed to give a Horse warranted sound, Horse sold 

 in exchange for a Horse of B. and a sum of money, and ^^^ delivered, 

 the Horses were exchanged ; but B, refused to pay the 

 money, pretending that A.'s Horse was unsound ; it was 

 held that A. might recover for a Horse sold and delivered (y) . 



(w) Bach V. Owen, 5 T. li. 410. (?«) Bayley v. Gouldsmith, Peake, 



(o) 15 & 16 Vict. c. 76, s. 57; 56; and see Bianchi v. Kash, 1 



BorclenavcY. Gregory, 5 East, 111. M. & W. 545; and see Dyer v. 



[p) 3 Wentw. 3; and 2 Chit. Cowley, 17 L. J., Q. B. 361 ; Moss 



Pleading-, 6tli ed. 166. v. Sweet, 16 L. T., Q. B. 441. 



{q) Bach v. Owen, 5 T. R. 410. {x) Bartholomew v. Markwkk, 33 



(>■) See JonesY. Gibbons, 22 L. J., L. J., C. P. 145. 

 Ex. 348. ( y) Sheldon v. Cox, 3 B. & C. 



(s) Bowdell V. Parsons, 10 East, 420 ; S. C, 5 D. & E. 277 ; Earl of 



359. Falmouth v. Penrose, 6 B. & C. 387; 



{t) Sheldon v. Cox, 3 B. & C. 420; and see 2 Chit. Pleading, 6th ed. 



Harrison v. Zahe, 14 M. & W. 139. 167. 



O. N 



