the first place, there was a complete binding contract, and therefore no acceptance was necessary in order to make a complete delivery and further-even if the express contract was open, and the plaintiff was bound to resort to an implied contract, there is sufficient on the face of the evidence to bind the defendant. The letter of the 17th of October must be looked to. Now, before that letter was written, there had been a trial of the mare by the son riding her; there had been no trial in harness: then the defendant writes to offer twenty guineas, subject only to a warranty, which terms the plaintiff accepts. There was then, therefore, a complete executory contract between them, on the plaintiff's warranting her sound; for the warranty then imported soundness only.

(ALDERSON, B.: It is shown by the subsequent correspondence, that it meant sound and quiet in harness.)

The defendant certainly introduced that term, but it does not appear that the plaintiff assented to it. The opinion of the jury ought to have been taken whether the trial, without harness, did not import that the warranty agreed for applied to soundness only. If any new term was to be introduced, the assent of the plaintiff was necessary to give it effect; and even if there was such assent, it did not become a condition precedent to the payment of the price, without consideration.

(PARKE, B.: True, if there was a binding contract before; but that is the difficulty.

ALDERSON, B.: I think it is clear that at that time the contract was not only for the defendant to give a warranty, but such a warranty as the parties should afterwards agree upon.)

It is submitted that the contract was substantially completed between the parties: if so, no acceptance was necessary, and the learned Judge was wrong in resting the case upon the defendant's intention to accept, as constituting a delivery. Delivery may be complete, for the purpose of *this action, without acceptance. It has been universally held, in special declarations on a contract, that a substantial performance of conditions precedent is sufficient.

But further, even if the express contract remained open, the acts of the defendant were sufficient to fix him with an implied

promise to pay the price, and it was misdirection, under the circumstances, to ask the jury whether the mare had been kept beyond a reasonable time. The son rode her eighteen miles; the defendant kept her two days, and then returned her with her legs swollen. These acts of the defendant (looking also to his previous conduct as to the trials of the mare, &c.) were sufficient to conclude him as the purchaser: Street v. Blay (1).

(PARKE, B.: The question, whether the defendant has so dealt with her as to raise an implied promise to pay, has been left to the jury, and they have found he did not accept her.)

Lastly, with respect to the evidence offered as to the unsoundness of the mare, it was never put to the jury what would be the value of her if unsound: and the jury, when the question was put to them as to the return within a reasonable time, would assume that he had a right to return her, being unsound. But the case of Street v. Blay shows, that having had an opportunity of exercising. his judgment on the mare before the purchase, he might have accepted and received her so as to preclude himself from returning her on discovering a non-compliance with the warranty, and yet the return might have been within a reasonable time, assuming him not to have so precluded himself from it.

(PARKE, B.: That would be so, had there been a complete contract of purchase; here the question is, whether there ever was a purchase.)

PARKE, B.:

I am of opinion that this rule should be discharged. The first question to be disposed of is, whether there is any evidence of a complete contract in writing *between the parties. If there was, then the only step necessary to be proved in order to entitle the plaintiff to recover in this action, was to prove the delivery of the mare, and it was not competent to the defendant to annex to it any conditions. It certainly appears that the mare was seen by the defendant, and ridden in his presence, and twenty guineas offered by him for her, prior to the first material letter to which I am about to advert; that is, on the 16th of October. Then, on the 17th, the defendant writes a letter to the plaintiff, which amounts to a proposal to take the mare on new terms, one of which was not (1) 36 R. R. 626 (2 B. & Ad. 456).

R.R.-VOL. LI.

33

JORDAN

V.

NORTON.

[161]

JORDAN

v.

NORTON.

[ *162 ]

yet arranged between the parties. (His Lordship read the letter.) This letter amounts only to a proposal to give twenty guineas for the mare, provided she were warranted; but the terms of the warranty still remained to be agreed upon. If the parties do not agree upon a warranty which shall be satisfactory to both, there is no complete contract. We are to see, then, whether there was a warranty subsequently agreed on. Next comes the letter of the 26th of October. (His Lordship read it.) By that letter the defendant agrees to be bound by the contract, if the plaintiff will give a warranty of a particular description-viz. that the mare is quiet in harness; that is, primâ facie, in all descriptions of harness. The plaintiff replies, that he will agree, not to the precise terms of the warranty asked for, but only that she is quiet in double harness. The correspondence, therefore, amounts altogether merely to this: that the defendant agrees to give twenty guineas for the mare, if there is a warranty of her being sound and quiet in harness generally, but to that the plaintiff has not assented. The parties never have contracted in writing ad idem.

We are then to ascertain, in the next place, whether this is supplied by the parol evidence, or by the acts or conduct of the parties. There is nothing in the parol evidence to supply it: the question therefore is, first, *whether the conduct of the defendant's son at the "World's End" amounts to an acceptance. It is contended that the defendant is bound by the son's acts on that occasion; but I think he is not, because the son had only a limited authority; and if a party contracts with another through his agent, he can take only such rights as the agent can give and this is no hardship on the plaintiff, because he was distinctly informed that the son was authorized to receive the mare if a warranty were given that she was quiet in harness. Then the only remaining question is, whether she was in fact accepted by the defendant on the terms of the limited warranty proposed by the plaintiff. That question was left to the jury, and they found it in favour of the defendant. I agree, that if there was a complete contract in writing before, the direction of the learned Judge would not have been quite correct: but the question being whether there was an acceptance in fact, the contract not being complete before, the direction was perfectly unexceptionable. The case comes therefore to this: there was no complete contract in writing by which both parties were bound, there was no sufficient delivery to the defendant,

and there was no acceptance. The defendant is therefore entitled to the verdict.

BOLLAND, B.:

I am of the same opinion. There is one point only which I will observe upon. It is said, that after the mare was taken home, she was kept for such a time as showed that the defendant intended to adopt the act of his son, and amounted to an acceptance on the new terms. That reasoning may apply to the case of a specific chattel, where the party has had an opportunity of exercising his judgment upon it: but here the defendant had had no previous opportunity of ascertaining whether the mare was quiet in all harness, which was what he required: the plaintiff had only warranted her quiet in double harness.

ALDERSON, B.:

If the contract was complete-if the one had agreed to sell and the other to buy completely, there was a sufficient delivery. Again, if the son was authorized to receive the mare on the limited terms agreed to by the plaintiff, the delivery to him was sufficient : or if, not being so authorized, the defendant had nevertheless agreed to receive her on the delivery to him, that would have been sufficient to bind him. But the son had no such authority, and the father, immediately on the mare coming home, repudiates his act, and within a reasonable time returns her. I think there was no case for the plaintiff.

GURNEY, B., concurred.

Rule discharged.

AYREY AND ANOTHER v. FEARNSIDES AND OTHERS (1). (4 Meeson & Welsby, 168-170; S. C. 1 H. & H. 202; 7 L. J. (N. S.) Ex. 288; 6 Dowl. P. C. 654.)

Held, that a paper, whereby the defendants promised to pay the plaintiffs, or order, the sum of 137., for value received, with interest at 5l. per cent., and all fines according to rule, could not be declared on as a promissory note.

The jury having found general damages on a declaration containing a count on the above instrument (as a promissory note), and a count on an account stated, the Court awarded a venire de novo.

DEBT on an instrument (declared as on a promissory note) whereby the defendants jointly and separately promised to pay to the (1) See Bills of Exchange Act, 1882 (45 & 46 Vict. c. 61), s. 9 (1).—R. C.

1838.

Exch, of

Pleas

[168]

AYREY v.

FEARNSIDES.

[ *169 ]

[170]

plaintiffs, or order, the sum of 137. on demand, for value received, with interest at 5l. per cent., " and all fines according to rule." There was also a *count on an account stated. The defendant pleaded to the first count, payment; to the second, nunquam indebitatus; and at the trial, before the under-sheriff of Yorkshire, the plaintiff had a general verdict.

W. H. Watson having obtained a rule nisi to arrest the judgment, on the ground that the instrument declared on could not be considered as a promissory note within the statute, but only as an agreement, for which no consideration was shown in the declaration.

Wightman showed cause:

The words, "and all fines according to rule," are altogether insensible, and may be rejected as surplusage; their presence, therefore, does not vitiate the instrument, which, in all other respects, is a complete promissory note. It was certainly held in Smith v. Nightingale (1), (which appears to be the nearest case to the present), that an instrument whereby the party promised to pay a sum certain, "and also all other sums that might be due," was not a promissory note within the statute. But there, the last words, although not capable of any definite construction, were not so insensible as that they could be rejected as surplusage, since they showed that some more money was due, only they did not specify the amount with sufficient precision. But here, the words do not import any promise to pay money; and there is nothing to show what they have reference to, or what is the nature of the fines spoken of. Besides, the instrument must be either a promissory note or an agreement at common law; and it clearly is not the latter for the words in question have no intelligible meaning in themselves, neither could evidence be admitted to explain them aliunde, if they were declared on as a contract.

Watson, in support of the rule:

It does not follow that, because the precise amount or even nature of the *fines referred to is not specified, the words can be rejected as surplusage. If any construction can by possibility be put upon them which can make them sensible, they cannot be rejected; and it is plain that they may refer to money due for pecuniary forfeitures, as, for instance, for violation of the rules of a benefit

(1) 20 R. R. 694 (2 Stark. 375).