CHAPTER IX. 



PLEADING, EVIDENCE AND DAIIAGES. 



Pleading and Evidence for the Plaintiff. 



Where you proceed for a breacli of an executory con- Executory 

 tract, you must rest on the contract itself; but when the and executed 

 contract has been executed, you proceed on the promise 

 implied by law (a). 



" Where, under a contract of sale, the property in the Action for 

 goods has passed to the buyer, and the buyer wrongfully P"'=i^- 

 neglects or refuses to pay for the goods according to the 

 terms of the contract, the seller may maintain an action 

 against him for the price of the goods " (6) . 



" Where, under a contract of sale, the price is payable 

 on a day certain irrespective of delivery, and the buyer 

 wrongfully neglects or refuses to pay such price, the seller 

 may maintain an action for the price, although the property 

 in the goods has not passed, and the goods have not been 

 appropriated to the contract" (c). 



Where the buyer wrongfully neglects or refuses to accept Action for not 

 and pay for the horse he has bought, the seller may maintain accepting. 

 an action against him for damagesfor non-acceptance ((i),even 

 though the horse may afterwards have been re-sold (e) ; and 

 the statement of claim will set out facts showing the con- 

 sideration and the promine, the breach, and the damage. 

 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 (/). 



Where by the terms of the contract the defendant was 

 bound to fetch away the hurse, the plaintiff should state in 

 the statement of claim that he has not done so, and aver his 

 own readiness and willingness to deliver {(j). 



(a) Per Lord Campbell, Lowe v. 761 ; 8. C, 4 Bing. 722 ; Sore v. 



London and NorthTFestern Sail. Co., 3/Uner, Peake, N. P. C. 58, n. 



21 L. J., Q. B. 363. {/) Bordenave v. Gregory, 6 East, 



(*; Sale of Goods Act, 1893,8.49, 111. 



sub-s. (1). C^) Bach V. Owen, 5 T. E. 409 ; 



(e) Ibid., sub-s. (2). Rawson v. Johnson, 1 East, 203; 



\d) Ibid., s. 50, sub-s. (1). 6 E. E. 252; WilTes v. Atkinson, 1 



(e) Maclean v. Dunn, 1 M. & P. Marsh, 412. 



