176 



PLEADING, EVIDENCE AND DAMAGES. 



Proof in goods 

 sold and 

 deKrered, 



Proof in 

 money had 

 and received. 



Proof of an 

 account stated. 



tlie plaintiff must prove that he was reridi/ and wiUiny to 

 accept and pay for it. But where there is a traverse of 

 readiness, if nothing remain for the plaintiff to do, it lies on 

 the defendant to disprove, rather than on the plaintiff to 

 prove, the readiness and willingness to deliver (o). But it 

 will not be necessary to prove a tender of the money {p). 

 And it is sufficient evidence that the plaintiff was ready and 

 tcilUng, if within a reasonable time the horse is demanded 

 by him (g), or his servant {p). 



Where the plaintiff after delivering the horse brings an 

 action for his price, he must be prepared to prove, if denied, 

 1st, the sale, of which the delivery of the horse to the 

 defendant and an acceptance by him will be sufficient 

 prima facie evidence (r) ; 2nd, the delirery either to the 

 defendant or his agent, or something which has been done 

 equivalent to a delivery (s) ; and 3rd, the price agreed upon 

 for the horse ; but if the price forms no part of the contract, 

 or if the contract is merely to be implied from the delivery 

 to and acceptance by the defendant, the plaintiff must be 

 prepared to show the real and reasonable rahie of the horse 

 by persons of competent experience. 



Where the plaintiff after a breach of warranty sues for 

 repayment of the purchase-money as money had and received, 

 he may be compelled by a jD^oper defence to prove the 

 receipt of the money by the defendant, and his own title to 

 recover it as received for him it). He must, therefore, 

 prove the consideration, and the performance of it on his part, 

 namely, the payment of a particular price {u) ; also the 

 warranty, the breach of warranty, and either an actual 

 rescission of the contract or a piower to rescind, and a conse- 

 quent fender of the horse. 



To support a claim for money found to be due on an 

 account stated, it must appear that, at the time of the 

 accounting, which must have been before action brought, a 

 demand existed between the parties respecting which an 



(o) Matvson v. Johnson, 1 East, 

 203 ; 6 E. R. 2S2 ; TTaterJioiise v. 

 Skinner, 2 B. & P. 4i7. 



(p) Jl'ilkesv. Ail-'mson, 1 Marsh. 

 412 ; Levy v. Lord Scrhrt, 7 Taunt. 

 318 ; Tempest v. Eilner, 2 C. B. 308. 



(j) Squire V. Sunt, 3 Price, 68. 



(r) lietitntt v. Hendersmi, 2 Stark. 

 N. P. C. 550; and see Smith v. 

 Rolt, 9 C. & P. 696, and Eoscoe, 

 N. P. 16th ed. 528. 



(s) Lee V. Shore, 1 B. & C. 94 ; 

 Smith V. Chance, 2 B. & A. 755 ; 

 21 E. E. 485. See also Bartholomeio 

 y. Marktviek, 33 L. J., C. P. 145, 

 and TFebi v. Fairmancr, 3 M, & "W. 

 473. 



(t) Eoscoe,N. P. 16th ed. 575. 



(m) Harvey y. Archbold, 3 B.& C. 

 626 ; Sernasconi v. Anderson, M. & 

 M. 183 ; LeesoH y. Smith, 4 N. & M. 

 304. 



