168 



PLEADING, EVIDENCE AND DAMAGES. 



Resale of the 

 goods. 



Action for 

 detention of 

 goods. 



Action for not 

 delivering. 



Where the purchaser of goods refuses to take them, 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 Hable for the loss, if any, upon 

 the resale" {h). 



An action for the detention of goods may be maintained 

 by any person who has either an absolute or a special pro- 

 perty in goods, which are capable of being ascertained, 

 against another, who is in actual possession of such goods 

 either by delivery or finding, and refuses to deKver 

 them («'). 



As this action proceeds on the ground of property in the 

 plaintiff at the time of action brought, it cannot be main- 

 tained, if the defendant took the goods tortiously, for by 

 the trespass the property of the plaintiff is divested [(«). 

 But if I lend a man a horse, and he afterwards refuses to 

 restore it, this injury consists in the detaining, and not in 

 the original taking ; and the regular method for me to 

 recover possession is by action for the detention (/.■). This 

 would be the proper form of action for the specific restitu- 

 tion of a horse, which has been unlawfully detained by a 

 trainer, veterinary surgeon, livery stable-keeper, or other 

 person, into whose hands it had lawfully come in the first 

 instance. 



Where the seller wrongfully neglects or refuses to deliver 

 the horse he has sold to the buyer, the buyer may maintain an 

 action against the seller for damages for non-delivery (/) ; and 

 where a particular time for delivery has been agreed upon, the 

 statement of claim will set out facts showing the consideration 

 waApronme, the breach and the damage, and aver a readi- 

 ness and willingness to accept and receive the horse and 

 pay the price {nn). If no particular time has been specified, 

 and the contract be to deliver the horse generally, as A^-here 

 an action of assumpsit fornot detiveriiig was brought against 

 a party who had sold the plaintifl; a mare, and promised, if 

 she proved unsound, to provide another or return the 

 money (w), there must be a special request to deliver, which 



[h) Maclean v. Dmm, i Bing. 

 7'22. 



{i) Selwyn's N. P., 12th ed. 660, 

 662. 



(A) 3 Steph. Com. 524. 



{I) Sale of Goods Act, 1893, s. 51, 



sub-s. (1). 



()«) Bordenace v. Gregory, 5 East, 

 111. See Order XIX. r. 14. 



(n) 3 Wentw. 3; and 2 Chit. 

 Pleading, 6th ed. 166. 



