184 



PLEADING, EVIDENCE AND DAMAGES. 



Defence in 

 action for not 

 deliverino;. 



Where evi- 

 dence of the 

 usage of trade 

 is not admis- 

 sihle. 



Defence for 

 goods sold 

 and deliTered. 



Defence to 

 action on a 

 hill for the 

 price. 



the same name (e), or that the contract was made without 

 the proper formalities (/). 



In an action for not delivering a horse, tlie defendant 

 may show that he did not sell a horse to the plaintiff at all, 

 or that the mle was informal under the Statute of Frauds (g). 

 And where he contests it in his pleading, he may show that 

 the plaintiff was not ready and willing to accept and receive 

 it and pay the price {h). And where no particular time 

 has been specified for delivery, he may show that the 

 plaintiff never made any demand («'). 



Where there is no ambiguity in the language of a con- 

 tract, evidence is not admissible to show that, by the usage 

 of the particular trade, persons selling under such contracts 

 are not bound to deliver the goods without payment {k). 



Where an action is brought for the price of a horse as 

 goods sold and delivered, the defendant, by proper allega- 

 tions in his statement of defence, may dispute the sale and 

 delivery in point of fact. Therefore he may show that the 

 sale was on credit which had not expired when the action 

 was brought (/) ; that no absolute sale took place ; that 

 there was no delivery at all (»*) ; or that the delivery was 

 for the purpose of a reasonable trial and that the horse did 

 not suit (n) ; or he may show that the horse was returned 

 on the ground of a breach of warranty, pursuant to an 

 agreement embodied in the contract. If his defence is 

 payment, of course it must be specially pleaded. So also 

 must want of title (o). 



A breach of warranty cannot properly be pleaded by way 

 of defence, even pro tanto, to an action brought by the 

 seller upon a bill of exchange, or other negotiable security 

 given by the buyer for the price, except where there has 

 been a total failure of consideration, and the buyer has 

 repudiated the contract (^). But since the Judicature 



[e) Raffles y. WicheUiaus, 33 L. i ., 

 Ex. 160. 



(/) Frend v. Bennett, 27 L. J., 

 C. P. 314 ; BradUy T. Bardslcy, 14 

 M. & W. 873. 



(a) Johnson Y. Dodffson, 2 M. & 

 W. 653 ; MUott v. Thomas, 3 ibid. 

 170 ; Buttermere v. Hayes, 5 ibid. 

 456. 



(A) Rawson y. Johnson, 1 East, 

 203 ; 6 E. R. 252. 



(i) Bach Y. Owen, 5 T. E. 410. 



(k) Spartali Y. Benceh; 10 C. B. 

 212 ; and see Humphrey y. Dale, 27 



L. J., Q. B. 390. 



g) Broomfield Y. Smith, 1 M. & 

 W. 542 ; IVebb Y. Fairmanner, 3 M. 



6 W. 473 ; and see Paul v. Bod, 2 

 C. B. 800. 



{m) See Smith y. Solt, 9 C. & P. 

 696. 



(«) Street \. Blaii, 2 B. & Ad. 

 456 ; Moss v. Stvcct, 16 Q,. B. 493. 



(o) JFal!cerY.Mellor,U Q. B.47S. 



{p) See Moygridge v. Jones, .'-J 

 Camp. 38; KnoxY. TT/i alley, lUsp. 

 159 ; TFells y. Hopkins, 5 M. & W. 



7 ; Byles on Bills, 15th ed. 157. 



