FODDER OR CONSUMING PRICE. 335 



^' fodder p'ke'" or "a consuming price.'' The plaintiff entered in 1848 

 on the occupation of Morden Heath, a farm of Lord Hardwicke's, under 

 a written agreement made between his lordship's steward on his behalf 

 and the plaintiff's father and brother, at the commencement of a four- 

 teen years' lease in 1839. By clause A, the latter agreed '' to pay £5 

 for every load of fodder, straw, haulm, dung, or turnips which shall 

 be sold or carried off the premises, and the same sum for every 

 load of hay or wheat-straw sold or carried off the premises, fur which 

 there shall not be two loads of good dung or other manure (at the 

 option of the landlord) to be spent on the premises. Clause 15 was to 

 the effect that they agreed " to purchase all the hay, sainfoin, and tares 

 now in the yard, also all tlic dung and manure now on the 'premises, also 

 all the straw from the crops now stacked or about to be stacked in the 

 yard, paying a fair price for the same, to be ascertained by valuers on 

 both sides. Lord Hardwicke also engaged in a supplementary agree- 

 ment, when the tenant quitted the farm " to purchase all hay, sainfoin, 

 and tares in the yard the produce of the farm "' ('' all dung and manure 

 on the premises" struck out), "also all straw from the crops of the 

 previous harvest that may be on the premises, paying a fair price for 

 the same, to be ascertained by valuers." The plaintiff quitted the farm 

 at Michaelmas, 1853, and two valuers were appointed to value between 

 him and the incoming tenant. On the subject of the tillages, the fold- 

 ings, the fixturep, and some other matters, they agreed. The market 

 value of the straw at the tune was admitted to be 25s. per ton, but the 

 plaintiff's valuer estimated it at a " consuming price," or two-thirds of 

 the market value, while the defendant's valuer estimated it at a fodder 

 or browsage price, being one-half of the market value. On this point 

 they failed to agree, and as the negociations respecting a referee went 

 off, the valuation came to nothing, and an action was brought. It was 

 proved that according to the custom of the country, the incoming 

 tenant, in the absence of a special agreement, usually paid the outgoing 

 tenant for the straw at a consuming price ; but that if the outgoing 

 tenant was bound to consume all the manure on the farm, the allowance 

 in respect of straw as between him and the incoming tenant would be 

 only at fodder price. 



The defendant insisted that, firstly, plaintiff could not maintain his 

 action, as there had been no valuation pursuant to an agreement of 

 May 30th, 1853 ; and secondly, that the terms of the contract under 

 which plaintiff had entered on the farm precluded any claim on his part 

 to be paid more than a fodder price for the straw on quitting it. The 

 above agreement was to the effect that the defendant would pay the 

 plaintiff for all the cultivation done upon the falloAVS, for the carriage 



