178 



PLEADING, EVIDENCE AND DAMAGES. 



Proof of the 

 bargain and 



Proof of tlie 

 consideration. 



Proof of 

 payment of 

 the price. 



Appropria- 

 tion ol^ money 

 tendered. 



A sale may in all cases be implied prima facie from 

 evidence of a delivery to, and an acceptance by, tlie pur- 

 chaser (/*). We have seen in Chapter I., what is suificient 

 evidence of a contract for sale, either where the value is 

 under 10/. ; or the agreement is not to be performed 

 within a year ; or the value is 10/. or upwards, wthin the 

 4th section of the Sale of Goods Act, 1893. Where 

 there is an agreement in writing, it should be put in and 

 proved, and it is not necessary that it should be stamped («'). 

 Where, however, the hargain and sale has been made 

 by word of mouth, the plaintiff Qc), or some witness of 

 the transaction must be called. 



Where the consideration is set out in the statement of 

 claim as executory, it will in point of fact depend upon the 

 same proof as the contract for sale. When it is executed, 

 the plaintiff must show that it took place before the con- 

 tract, and that it arose at the defendant's request (/). In 

 the case of a sale he must prove payment of the price ; 

 but where the consideration is another horse, or other 

 goods, a delivery and acceptance must be proved. Where, 

 however, the transaction is substantially a sale, the plaintiff 

 may prove that the defendant took another horse in part 

 payment (»«). 



The payment of the price is usually proved by producing 

 the receipt, which of course must bear a stamp where the 

 sum is 21. or upward («) ; and if no receipt was given, 

 or it was unstamped or lost, the plaintiff, or some person 

 who witnessed the transaction, must be put into the box (o). 



Where a claim consists of several items, the party 

 making the tender has a right of appropriation ; but if he 

 omits to make any appropriation, the right to appropriate 

 is transferred to the other party {p) . 



The plaintiff's horse, warranted quiet in harness, was 

 sold for 16/. at Aldridge's repository. It was afterwards 

 returned on the ground that it did not answer its war- 

 ranty, and, on being tried in a break, was found not to be 

 quiet in harness. By the printed regulations of the reposi- 

 tory the purchase-money for any horse, carriage, &c., sold 

 there was not to be paid over to the vendor until four days 



{h) Bennett v. Jlencla-son., 2 Stark. 

 .5.50 ; and see Smithy. JRolt, 9 C. & 

 P. 696. 



{)) Skrhw T. Elmore, 2 Camp. 

 407 ; 11 li. R. 7o4. 



[k) 14 A; 15 Vict. c. 99, s. 2. 



[l) King V. Sean, 2 Cr. II. & E. 



48. 



(m) Mandsy. Burton, 9 East, 349. 



(«) 33 & 34 Vict. c. 97, s. 120. 



(o) See Bamhert v. Cohen, i Esp 

 213; 6 R. R. S.54. 



(p) See per "Wilde, G.J.,Eardwn- 

 ham V. Allen, 5 C. B. 797. 



