v. HEMINGWAY means and opportunities as aforesaid, endeavour to establish and HAMILTON. aid and assist in establishing at the coast of Africa, for the said James Hemingway and J. F. Agitt, such trade as aforesaid, in competition with, and to the prejudice of the defendants, and their said trade as aforesaid: and so the defendants say that the said agreement of the said *first count mentioned, was and is wholly fraudulent and void and of no effect. Verification. { *121 ] [122] Replication, de injuriâ: to which there was a special demurrer, on the ground that the replication de injuriâ could not be replied to a plea like this, which did not consist of matter of excuse, but of matter of going to avoid the supposed contract in the first count mentioned, and to show that it never was a binding or valid contract, but was void in law on the ground of the fraud and conspiracy alleged in the plea. Joinder in demurrer. Crompton, in support of the demurrer : The application of the replication de injuriâ to cases of assumpsit is to be governed by the same rules which applied to the actions in which it used to be pleaded before the new rules: that is, the plea to which it is replied must be mere matter of excuse for the breach complained of, not matter going to destroy the ground on which the action is founded, whether by denying it or avoiding it: Whittaker v. Mason (1), Crisp v. Griffiths (2), Griffin v. Yates (3), Isaac v. Farrar (4), Parker v. Riley (5). (PARKE, B.: This appears to be a kind of double plea-that the contract was entered into by a conspiracy, and that it was afterwards violated.) If the plaintiff The latter part may be rejected as surplusage. (PARKE, B.: There is no misrepresentation of any existing fact, but only an intention at the time of the contract to depart from it, (1) 2 Bing. N. C. 359; 2 Scott, 367. (3) 2 Bing. N. C. 579; 2 Scott, 845. (4) 1 M. & W. 65. which intention is not alleged to have been carried into effect. HEMINGWAY That does not vitiate the contract.) The fraudulent design taints the whole contract. If he goes out, and renders the defendants services, he may recover on a new contract for a quantum meruit, but not on the contract so tainted. LORD ABINGER, C. B.: Suppose a man contracts in writing to sell goods at a certain price, and afterwards delivers them, could the buyer plead that at the time of the contract, the seller fraudulently intended not to deliver them, but to dispose of them otherwise? The plea is clearly bad. PARKE, B.: If the plea sufficiently shows that there was a breach of the condition entered into by the plaintiff, then the replication is good, because the plea is only matter of excuse for the nonperformance of the contract on the defendants' part. On the other hand, if it does not, then the plea is bad, because it shows no actual fraud, but only an intended breach of the agreement: if the plaintiff does not in fact commit it, the agreement is not broken; if he does, he forfeits his remuneration. v. HAMILTON. The other Barons concurring, Judgment for the plaintiff. Cresswell appeared to argue for the plaintiff. ALLEN v. PINK. (4 Meeson & Welsby, 140-145; S. C. 1 H. & H. 207; 7 L. J. (N. S.) Ex. 206.) The first count of the declaration was on the warranty of a horse sold by the defendant to the plaintiff for 71. 2s. 6d., and for the expense of its keep. There were also counts for money had and received, and on an account stated; and the damages were laid at 201. At the trial, the plaintiff recovered the 77. 2s. 6d., the price of the horse: Held, that the action was triable before the sheriff under a writ of trial. The defendant gave a verbal warranty of the horse, which the plaintiff thereupon bought and paid for, and the defendant then gave him the following memorandum: "Bought of G. P. a horse for the sum of 7l. 28. 6d. -G. P." Held, that parol evidence might, notwithstanding, be given of the warranty. ASSUMPSIT. The first count of the declaration stated, that in consideration that the plaintiff would buy of the defendant a certain horse, for a certain sum, to wit, 71. 2s. 6d., the defendant promised 1838. Exch. of [140] ALLEN v. PINK. [141] the plaintiff that the horse was then a quiet worker, and would go well in spare harness. It then averred the purchase of the horse, and the payment of the price by the plaintiff, and alleged as a breach that the horse was not a quiet worker, and would not go in spare harness, but on the contrary thereof, was unquiet and vicious, and became of no use or value to the plaintiff, whereby he was put to charges and expenses, to wit, the sum of 51., in taking care of it. There were also counts for money had and received, and on an account stated: to the plaintiff's damage of 201. Pleas, first, non assumpsit to the whole declaration; secondly, to the first count, that the horse was a quiet worker, and would go well in spare harness; on which issue was joined. The plaintiff's particulars of demand were as follows: "On the indebitatus counts the plaintiff seeks to recover 71. 2s. 6d., the price of a horse, which sum was fraudulently received by the defendant under colour of a contract of sale thereof to the plaintiff, with a warranty which the defendant knew to be false, and which horse the defendant has subsequently received back." The cause was tried in this Term before Arabin, Serjt., at the Sheriff's Court in London, under a writ of trial which had been obtained by consent of both parties. It appeared that in the month of April last, the plaintiff treated for the purchase of the horse in question, at Aldridge's repository, when the defendant said that if he did not work well, and go quietly in spare harness, the plaintiff was to send him back, and he should have his money *returned. The plaintiff, after some further conversation, bought him for 71. 2s. 6d., which sum he paid the defendant shortly afterwards at a public house, and then received from him the following memorandum: "Bought of G. Pink, a horse for the sum of 71. 2s. 6d. "G. PINK." On putting him into harness, the plaintiff found that the horse was vicious and unruly, and accordingly sent him back to the defendant; and having demanded his money again, which was refused, he brought this action to recover it. A verdict having been found for the plaintiff, under the direction of the learned Serjeant, for 71. 2s. 6d., Byles obtained a rule nisi for a new trial, on several grounds of objection taken at the trial: First, that this being an action for unliquidated damages, was a cause which the sheriff was not empowered, under the 3 & 4 Will. IV. c. 42, s. 17 (1), to try: Smith v. Brown (2); secondly, that the terms of the contract being ascertained by the bought note delivered to the plaintiff, which contained no warranty, the parol evidence of a warranty was not receivable Gardiner v. Gray (3), Powell v. Edmunds (4); and thirdly, that the evidence did not prove the warranty alleged in the declaration, but a conditional contract to take the horse back in the event of his not working well, &c. : Gurney showed cause: It may perhaps be admitted, that if this was a case in which the judge had no power under the statute to make the order for trial before the sheriff, the sheriff had no jurisdiction to try it. But there is nothing to show that this is a debt or demand *on which the sum sought to be recovered, and indorsed on the writ, exceeds 201. As the order was obtained by consent of both parties, the plaintiff has a right to assume, until the contrary is shown, that the sum indorsed, and sought to be recovered, was within the amount limited by the statute. Then, as to the nature of the action. Actions of tort have no doubt been decided not to be within the Act: Watson v. Abbot (5), Smith v. Brown (2). But this is in assumpsit, and is in substance an action for the price of the horse. Price v. Morgan (6), is directly in point. There the declaration was on an assumpsit by the defendant that he was authorized by a third party to purchase on his behalf a pony from the plaintiff, which the plaintiff therefore sent to the defendant; containing also counts for a pony sold and delivered, and on an account stated: and it was held that the case was within the Act. PARKE, B., says—"This was an action in substance for the price of the pony, and therefore within the Act." Here the verdict was in fact for the actual price of the horse. (He was then stopped by the COURT.) Byles, contrà: The 16th and 17th sections of the statute do not enable a Judge to make an order, even with the consent of the parties, in a case (1) Repealed by 30 & 31 Vict. c. 142, s. 6. See now the County Courts Act, 1888, s. 56. The words of the statute on which the question turned are, “any debt or demand in which the sum sought to be recovered, and indorsed on the writ of summons, shall not exceed 201."-R. C. (2) 2 M. & W. 851. (3) 16 R. R. 764 (4 Camp. 144). ALLEN v. PINK. [143] like this, where the damages are of an unliquidated nature. The "debt or demand" must be such as might be indorsed on a writ. What that is, is shown by the rule of H. T. 2 Will. IV. (1): "It is ordered that upon every bailable writ or warrant, and upon the process or copy served for the payment of any debt, the amount of the debt shall be stated, and the amount of what the attorney claims for the costs, &c." The rule explains what the statute intends, viz. a debt of such a nature as that the party might be arrested for it, if sufficient in amount. Then the 17th section also says, that the issues shall be tried before the sheriff, or any 'Judge of any court of record for the recovery of debts." 66 (Lord Abinger, C. B.: What meaning do you give to the word "demand"?) A claim for which an indebitatus assumpsit will lie may properly be called so, especially when it is on a quantum meruit. The same words "debt or demand" occur in the Bankrupt Act, under which a creditor cannot prove for unliquidated damages: so also in many Acts establishing courts of requests, in which the extended meaning now contended for has never been put upon them. It is not only necessary that there shall be an indorsement of a definite sum under 20l., but it must be an action of a nature in which there can be such an indorsement. This Court cannot give judgment, the verdict being general, if the case was not within the statute: Smith v. Brown. Secondly, the contract having been reduced to writing, no evidence was admissible of any parol warranty to add to it: Greaves v. Ashlin (2). (ALDERSON, B.: What you call a bought note was nothing more than an informal receipt.) It contains all the terms of the contract, as far as they relate to the party signing it: it ascertains the seller's name, the chattel to be sold, and the price. Lastly, the warranty was not proved as laid: the evidence is of a mere conditional contract, that if the horse is not a good worker, &c., the plaintiff may send him back, and the bargain shall be rescinded; which, on a contract of warranty of a specific chattel, (1) See analogous rule under the r. 6.-R. C. Judicature Acts: R. S. C. Ord. III. (2) 14 R. R. 771 (3 Camp. 426). |