the purchaser would have had no right of doing: Street v. Blay (1). On this declaration, the plaintiff seeks to recover unliquidated damages; but, in the contract proved, his course would be to return the horse, and sue the seller for money had and received, the contract being rescinded by the previous agreement of the parties.

LORD ABINGER, C. B.:

The first point in this case is not altogether free from doubt; but the case of Price v. Morgan is very analogous to the present. That was an action of assumpsit, and the Court thought that in substance the action was brought for the price of the pony. The word "demand" must be construed to mean a claim ejusdem generis with debt; and when the claim is under 20l., and is in the nature of a demand for which assumpsit will lie, it may be reasonably considered as falling within the terms of the statute. I am disposed, therefore, to adhere to the authority of Price v. Morgan, which was not a stronger case than this. This is an action for the breach of a warranty to go quiet in harness, which would be limited by the price of the horse and the price of his keep, if any; and the whole demand is under 201. I am rather disposed to extend than to limit the operation of the statute. As to the other points, the general principle stated by Mr. Byles is quite true, that if there has been a parol agreement, which is afterwards reduced by the parties into writing, that writing alone must be looked to to ascertain the terms of the contract; but the principle does not apply here; there was no evidence of any agreement by the plaintiff that the whole contract should be reduced into writing by the defendant; the contract is first concluded by parol, and afterwards the paper is drawn up, which appears to have been meant merely as a memorandum of the transaction, or an informal receipt for the money, not as containing the terms of the contract itself. With regard to the last point, it was a question for the jury whether it was intended to be a conditional sale, or whether what the defendant said was not rather an emphatic mode of giving a warranty: and I think the jury have very probably drawn the right conclusion.

BOLLAND, B.:

But for the case of Price v. Morgan, I should certainly have (1) 36 R. R. 626 (2 B. & Ad. 456).

ALLEN

v.

PINK.

[144]

doubted whether this was a case within the Act; and if the application had been made to me, it is not a case which I should have sent before the sheriff. The object being to lessen expense, and facilitate the trial of simple cases, I have looked upon the statute as being confined to cases of money demands; here the damages are unliquidated, and depend on the view that may be taken of the warranty. However, I do not mean to express any dissent from the case of Price v. Morgan; and more especially as Mr. Byles alleges that in this case there was no warranty.

ALDERSON, B.:

I consider the first point as determined by Price v. Morgan, and that the present case does not fall within the authority of Smith v. Brown, which was for unliquidated damages altogether. This is in substance an action for the price of the horse, to be recovered by proof of the breach of warranty; the plaintiff cannot recover more than that amount, which is clearly within the limit of the statute. On the other points I concur, and think the verdict was right. Rule discharged.

1838.

Exch. of Pleas. [ 155 ]

JORDAN v. NORTON.

(+ Meeson & Welsby, 155-163; S. C. 1 H. & H. 234; 7 L. J. (N. S.) Ex. 281.) In assumpsit for a mare sold and delivered, to which the defendant pleaded non assumpsit, it appeared that the defendant, having seen and ridden the mare, wrote to the plaintiff: "I will take the mare at 20 guineas, of course warranted; and as she lays out, turn her out my mare." The plaintiff agreed to sell her for the 20 guineas. The defendant subsequently wrote again to him: "My son will be at the World's End' (a public-house) on Monday, when he will take the mare and pay you: send any body with a receipt, and the money shall be paid; only say in the receipt, sound, and quiet in harness." The plaintiff wrote in reply, "She is warranted sound, and quiet in double harness; I never put her in single harness." The mare was brought to the "World's End" on the Monday, and the defendant's son took her away without paying the price, and without any receipt or warranty. The defendant kept her two days, and then returned her as being unsound. The learned Judge stated to the jury that the question was whether the defendant had accepted the mare, and directed them to find for the defendant if they thought he had returned her within a reasonable time; and desired them also to say whether the son had authority to take her without the warranty. The jury found that the defendant did not accept the mare, and that the son had not authority to take her away: Held, on motion to enter a verdict for the plaintiff, that there was no complete contract in writing between the parties; that,

therefore, the direction of the learned Judge was right; that the defendant was not bound by the act of the son in bringing home the mare, inasmuch as he had thereby exceeded his authority as agent; and consequently that the plaintiff was not entitled to recover.

ASSUMPSIT for the price of a mare sold and delivered, and on an account stated. Plea, non assumpsit. At the trial before Gurney, B., at the last Oxford Assizes, it appeared that, after some negotiation between the plaintiff and defendant (who lived at a distance of about thirty miles from each other) for the purchase by the defendant of the plaintiff's mare, she was sent on the 16th of October, 1837, at the defendant's request, to a public-house called the "World's End," nearly half-way between their houses, for trial by the defendant. The defendant's son, in his presence, rode the mare, and the defendant then offered twenty guineas for her, which was refused by the plaintiff's servant who had her in charge, he having directions from the plaintiff not to take less than 221., and he took her back. The plaintiff, however, was afterwards willing to let the defendant have her for twenty guineas, and wrote to him to that effect. The defendant wrote in answer as follows: "UXBRIDGE, October 17, 1837.

"SIR, I will take the mare at twenty guineas, of course warranted; but as you say you have another horse that I shall buy, the same expense will bring the two up; therefore, as the mare lays out, turn her out my mare; and I will meet you at West Wycombe, Saturday or Monday, which day you like, and pay you at once.-W. NORTON."

The mare was sent to Wycombe accordingly, but the defendant was not there; two appointments also which were subsequently made, one at the "World's End," and the other at Wycombe, not having been kept by him, the plaintiff wrote to him on the subject, and received the following answer:

66

"UXBRIDGE, October 26th, 1837.

SIR, Of course I mean to have the mare, and if you had read my note properly it would have saved you a great deal of trouble. I now say, my son will be at the World's End' on Monday, the 30th instant, when he will take the mare and pay you. If you want to go elsewhere, send any body with a receipt, and the money shall be paid; only say in the receipt sound, and quiet in harness."

On the 27th of October the plaintiff wrote in answer: "I will send the mare as desired; she is warranted sound, and quiet in double harness; I never put her in single harness, as I never

JORDAN

v.

NORTON.

[156]

JORDAN

10.

NORTON.

[ *157 ]

wanted it." On the 30th the mare was sent to the "World's
End," according to the appointment; but the defendant's son not
being there, the plaintiff's servant left her in the care of the
landlord, with directions not to give her up to the defendant
without payment of the price. After he had gone, the defendant's
without paying for her, rode her

son came, took away the mare
home (a distance of eighteen miles) to the defendant's stable,
where she was kept two days, and then sent back as being unsound,
her legs being at that time swelled; but the plaintiff refusing to
receive her, she was turned out of his yard, and it did not appear
what had become of her. The son, who was called as a witness
for the defendant, said that his father had given him directions
not to bring the mare away from the "World's End" without the
warranty, and was angry with him for having done so. He also,
as well as the person who took her back to the plaintiff's, spoke to
her unsoundness at that time. This evidence was objected to by
the plaintiff's counsel, but the learned Judge held that it was
receivable *in mitigation of damages. In summing up, his Lord-
ship told the jury that the plaintiff was bound, in order to recover,
to prove a delivery of the mare; but there could not, under the
circumstances of the case, be a complete delivery unless there had
been an acceptance on the part of the defendant, whereby he had
waived the conditions he had previously required, and which the
plaintiff had not complied with, namely, the giving of a receipt,
and of a warranty inserted in it: that the question whether there
had been such acceptance would depend on whether the defendant
had returned the mare within a reasonable time or not; and if
they thought he had returned her within a reasonable time, that
they should find for the defendant; if not, for the plaintiff. He
also desired them to state their opinion whether the defendant's
son had authority to take away the mare without a warranty.
The jury found that the defendant had not accepted the mare, and
that the son had no authority to take her away. The learned
Judge thereupon directed a verdict for the defendant, giving the
plaintiff leave to move to enter a verdict for the sum of 217. in case
the Court should think the direction to the jury, and the admission
of evidence of unsoundness, to have been wrong.

Talfourd, Serjt., having obtained a rule to enter a verdict, or to enter a verdict for nominal damages, on the latter ground of objection, or for a new trial,

Ludlow, Serjt., now showed cause:

The defendant's son having, as the jury have found, acted without his authority in taking home the mare, the defendant was not bound by his act; and having returned her within a reasonable time, he has done nothing whereby to waive his previous demand of a warranty and of a receipt. Neither of these having been given, and there having been no acceptance by the defendant, the contract was never complete *so as to bind the defendant. It is true, the plaintiff offered to give a limited warranty, that the mare was quiet in double harness; but that not being co-extensive with the warranty required by the defendant, left the contract still open, and nothing but an actual acceptance of the mare, and a waiver of the warranty, could render the defendant liable for the price. Whatever the contract was, the vendor had a right to insist on the payment of the price before delivery; so, on the other hand, the vendee had a right to insist on the terms interposed by him, viz. that he should have a receipt for the money, in which should be embodied an acknowledgment of the warranty required by him. If the plaintiff insists that he has delivered the mare, he must be taken to have adopted the condition of the defendant, that a warranty should be given of her being quiet in harness generally, without any limitation. In effect, the son goes home to ascertain whether the father will adopt the delivery. There was no contract which the plaintiff could enforce, except that, the terms of which were stated by the defendant, and from which he has never receded. He was therefore clearly entitled to a verdict.

Talfourd, Serjt., and Keating, contrà :

There was a complete delivery to the son, who was the agent pointed out by the father himself to receive the mare, and the party with whom the plaintiff was to deal. The defendant was not entitled afterwards to object that the son had but a limited authority, and that he was his agent for some purposes, and not for others.. He might as well have said the son was his agent to receive the mare, but not to pay the price. He authorized him. to do all that related to the delivery; and it must be taken as if the defendant had been there himself, without having written the letter of the 27th, and had taken her away without insisting on the previous conditions.

But the learned Judge misdirected the jury, in leaving to them the question whether the defendant had accepted the mare. In