PLEADING AND EVIDENCE FOE THE PLAINTIFF. 



169 



will come under a general averment of performance of con- 

 ditions precedent (o). But if a place is mentioned, and no 

 time (p), or the defendant has incapacitated himself from 

 completing the agreement, as by reselling, &c., a request to 

 deliver is unnecessary {q). 



" In any action for breach of contract to deliver specific 

 or ascertained goods the Court may, if it thinks fit, on the 

 application of the plaintiff, by its judgment or decree direct 

 that the contract shall be performed specifically, without 

 giving the defendant the option of retaining the goods on 

 payment of damages. The judgment or decree may be 

 unconditional, or upon such terms and conditions as to 

 damages, payment of the price, and otherwise, as to the 

 Court may seem just, and the application by the plaintiff 

 may be made at any time before judgment or decree " (r). 



Where the vendor has delivered the horse, and the pur- 

 chaser neglects or refuses to pay for him ; or if a horse or 

 goods be taken in part payment, and the residue is un- 

 paid (s) ; or if the purchaser has the horse on the terms 

 of sale or return, and keeps him an unreasonable time, the 

 vendor may maintain an action for goods sold and 

 delivered (t). 



Where a portion only of a larger bulk of goods to be 

 delivered in pursuance of a written contract by a stated 

 time has been delivered, and the purchaser then rescinds 

 the contract, the vendor may maintain an action for goods 

 sold and delivered, although the time fixed for the payment 

 of the goods has not elapsed (m). 



And where A. agreed to give a horse warranted sound in 

 exchange for a horse of B. and a sum of money, and 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 {x) . 



Where an article, which has been paid for, does not 



Specific per- 

 formance. 



Goods sold 

 and deliyered 

 for payment 

 of the price. 



Action main- 

 tainable on 

 rescission of 

 contract by 

 one of the 

 parties. 



Horse sold 

 and delivered. 



Money had 

 and received 



(o) Bach V. Owen, 5 T. E. 410. 



(p) See Jmes y. Gibbons, 22 L. J., 

 Ex. 348. 



{q) Soivdell v. Farsons, 10 East, 

 359. 



()■) Sale of Goods Act, 1893, s. 52. 

 This enactment reproduces, with 

 modifications owing to the Judicature 

 Acts and Orders, s. 2 of 19 & 20 Vict, 

 c. 97 (the Mercantile Law Amend- 

 ment Act, 1856), now repealed. 



(s) Sheldon v. Cox, 3 E. & C. 420 ; 

 Harrison v. Luke, 14 M. & W. 139. 



it) Bayley v. Gouldsmith, Peake, 

 56; Bianchi \. Nash, 1 M. & W. 

 545 ; Dt/er v. Coioley, 17 L. J., 

 Q. li. 361 ; Moss v. Sweet, 16 Q. B. 

 493 ; 16 L. T., 0. S. 341. 



(u) Bartholomew T. 3Iarkwick, 33 

 L. J., C. P. 145. 



(x) Sheldon v. Cox, 3 B. & C. 

 420; 6 D. & R. 277; i:arl of 

 Falmouth v. Fenrose, 6 B. & C. 387 ; 

 and see 2 Chit. Pleading, 6th ed. 

 167. 



