194 



PLEADING, EVIDENCE AND DAMAGES. 



Defence in 

 action for not 

 delivering. 



Where evi- 

 dence of the 

 usage of trade 

 is not admis- 

 sible. 



Defence for 

 Goods sold 

 and delivered. 



Defence to 

 action on a 

 Cheque for 

 the price. 



Evidence in 



pose (ii) ; or that it was not the Horse which he bargained 

 to purchase, though of the same name (.r), or that the 

 Contract was made without the proper formalities (//). 



In an action for not delivering a Horse, the defendant 

 may show that he did not sell a Horse to the plaintiff at 

 all, or that the Sale was informal under the Statute of 

 Frauds (s). And where he contests it in his pleading, he 

 may show that the plaintiff was not Ready and Willing to 

 accept and receive it and pay the Price {a). And where 

 no particular time has been specified for delivery, he may 

 show that the plaintiff never made any demand {b). 



Where there is no ambiguity in the language of a 

 contract, evidence is not admissible to show that, by the 

 usage of the particular trade, persons selling under such 

 contracts are not bound to deliver the goods without pay- 

 ment (c). 



^\Tiere an action is brought for the price of a Horse as 

 Goods sold and delivered, the defendant, by proper allega- 

 tions in his statement of defence, may dispute the Sale and 

 Delivery in point of fact. Therefore he may show that the 

 Sale was on credit which had not expired when the action was 

 brought {d) ; that no absolute Sale took place ; that there 

 was no Delivery at all [e) ; or that the Delivery was for the 

 purpose of a reasonable trial, and that the Horse did not 

 suit (/) ; or he may show that the Horse was returned on 

 the ground of a Breach of Warranty, pursuant to an 

 agreement embodied in the contract. If his defence is 

 Payment, of course it must be specially pleaded. So also 

 must want of title (r/). 



Breach of Warranty is no answer to an action on a 

 Cheque for the price ; but a fraudulent representation 

 is (70. 



However, it is only reasonable and just that when an 



(«) Chanter v. Hopkins, 4 M. & 

 W. 406. 



(a) Raffles V. IFicheUiaus, 33 L. J., 

 Ex. 160. 



(v) Frcnd v. Dennett, 27 L. J., 

 C. P. 314 ; Bradley v. Barehleij, 14 

 M. & W. 873. 



[z) Johnson v. Dodyson, 2 M. feW. 

 653 ; ElUott v. Thomas, 3 ibid. 170; 

 Buttcrmcre v. Hayes, 5 ibid. 456. 



(«) Raivson v. Johnson, 1 East, 

 203. 



ib) Bach V. Given, 5T. R. 410. 



(e) Spartali v. Beneche, 10 C. B. 

 212 ; and see Humphrey v. Bale, 11 

 L. J., Q B. 390. 



[il) Broomfield v. Smith, 1 M. & 

 W. 542 ; Wchh v. Fairmanner, 3 M. 

 & W. 473 ; and see I'aul v. Dod, 

 2 C. B. 800. 



{(■) See Smith v. Bolt, 9 C. & P. 

 696. 



(/) Street v. Blay, 2 B. & Ad. 

 456; Mossy. Siveet, 16 Q. B. 493. 



[y) Walker v. Melhr, 11 Q. B. 

 478. 



[h) Lciris V. Cosfjreave, 2 Taunt. 2. 



