172 



PLEADING, EVIDENCE AND DAMAGES. 



Statemeut of 

 facts in an 

 action for 

 breach of 

 contract. 



Statement of 

 tacts in an 

 action for 

 deceit. 



Statement of 

 the considera- 

 tion. 



If the horse 

 turn out 



lucky. 



to whicli a fscicnter must be laid ; and also the statement 

 of the damage. 



In an action for breach of contract, a preamble, stating 

 the circumstances under which the contract was made, or 

 to which the consideration has reference, is sometimes neces- 

 sary. But where the mere statement of the consideration and 

 promise will be sufficientlj' intelligible without any prefatory 

 allegation, they may be set forth without any preamble. 



The action for a misrepresentation in the nature of deceit 

 seems to be an exception from the general rule, that in 

 actions for words, or special damage arising therefrom, the 

 very words must be set out, but the statement of claim 

 must correctly state the contract (o). 



The consideration may either be executed or executory. 

 An executed consideration consists of something pa.'it, or 

 done before the making of the promise, and must be shown 

 to have arisen at the defendant's request {p). 



An executory consideration is something to he done, and 

 in the statement of it a greater degree of certainty is re- 

 quired {q). But in either case the whole of the considera- 

 tion, if it be an entire one, should be stated ; no part of it 

 ought to be omitted (r). Thus, where an agent sold a 

 horse belonging to A., and another belonging to B., to C. 

 at an entire price, and warranted them sound ; and B.'s 

 horse turning out to be unsound, G. brought his action 

 against B., declaring in the usual form as upon a purchase 

 and warranty of one horse only ; Lord EUenborough, 0. J., 

 held that the evidence did not support the declaration, 

 because the contract being entire for the sale of two horses, 

 the plaintiff could not divide it, and declare upon it as upon 

 the sale of one horse only (.s). 



But where, in an action of asstnnpsit on the warranty of 

 a horse, the consideration stated for the warrant}- was, that 

 the plaintiff would purchase the horse for 63/. ; but the 

 consideration as proved was, that the plaintiff would pay 

 that sum, and if the horse was " /ncky," would give the 



(o) Gutsole Y. Mathers, 1 M. & W. 

 495; Barleij v. ll'alford, 9 Q. B. 

 197. See also 1 Chit. Pleading, 6th 

 td. 384; and Irdavd\. Johnson, 1 

 liiug. N. C. 162 ; Srothertou v. Wood, 

 6 Moore, 34 ; Hoormem ^ . Broun, 3 

 Q. B. 11. 



{p) See 1 Chit. Pleading, 6th ed. 

 'I'ii ; and Kinr/ v. Sears, 2 C., M. & 

 11. .53. 



{q) See 1 Chit. Pleading, 6th ed. 

 296 ; and Ring v. Soxhrouc/h, 2 Tyrw. 

 468; ,S'. C, 2 C. & J. 418. 



(r) Clarke v. Graij, 6 East, 664 ; 

 see also Robertson v. Soinird 3 

 C. P. D. 280 ; 47 L. J., C. V. 480. 

 As to an exchange, see Mai/or of 

 Reading v. Clarke, i E. & Aid. 269. 



(s) Hymonds v. Carr, 1 Camp. 361. 



