Beattie and Another, Executors of Boake Deceased, v M'Cracken

• Jurisdiction: Ireland
• Judgment Date: 30 January 1856
• Date: 30 January 1856
• Court: Court of Common Pleas (Ireland)

Common Pleas.

BEATTIE and another, Executors of BOAKE deceased,

and

M'CRACKEN.

Cousins v. PaddonENR 2 Cr., M. & R. 547.

Hayselden v. StaffENR 5 Ad. & El. 153.

Morgan v. PebrerENR 3 Bing., N. C., 457.

Jones v. NanneyENR 1 M. & W. 335.

Edmonds v. HarrisENR 2 Ad. & El. 414.

Moss v. Sweet 16 Q. B. 493.

Sieveking v. DuttonENR 3 C. B. 331; S. C., 4 Dow. & Low. 197.

Hebbert v. SheeENR 1 Camp. 113.

Lorymer v. SmithENR 1 B. & C. 1.

Kemble v. Mills 1 M. & Sel. 757.

Hart v. Mills 15 W. & W. 85.

Isherwood v. WhitmoreENRENR 10 M. & W. 757; S. C., 11 M. & W. 347.

Dawson v. CollisENR 10 C. B. 523.

COMMON LAW REPORTS. 259 BEATTIE and another, Executors of BOAKE deceased, v. M'CRACKEN. (Common Pleas.) Jan. 29, 30. THIS was an action for goods bargained, sold and delivered by the testator in his lifetime to the defendant. The summons and plaint consisted of the common counts, namely, for goods bargained, sold and delivered by the testator to the defendant at his request ; for money due upon an account stated, to the testator ; and for money due upon an account stated, to the plaintiffs. The defendant pleaded to the first cause of action that no goods were bargained, sold or delivered, as in the summons and plaint alleged ; and the only issue upon which any evidence was offered to the jury was, whether the goods were sold and delivered by the testator in his lifetime to the defendant, as in the plaint alleged? This case was tried before the LORD CHIEF JUSTICE of the ComÂmon Pleas, at the Sittings after last Michaelmas Term ; and it appeared that the goods in question, which consisted of horse-butts, had been ordered by the defendankand delivered to him ; but that at the time of the order it had been agreed between him and the testator Boake, that if the defendant did not approve of the quality of the article when delivered, of which a sample had been previÂously sent, it was to remain in his hands until Boake should arrive in Belfast, and then be returned ; that the goods had not been approved of by defendant when delivered, and that they were still lying in his hands, ready to be returned, but that the plaintiff's representatives refused to accept them. At the close of the trial, Counsel on behalf of the plaintiff called upon his Lordship to direct a verdict for the plaintiff, upon the grounds that it was not open to the defendant to rely upon the 260 COMMON LAW REPORTS. H. T. 1856. above defence on the pleadings, but that such defence should have CommonPleas. been specially pleaded. The jury having found a verdict for 130AKE the defendant, leave was reserved to change it into a verdict for v. M'CRACKEN. the plaintiff, if the Court above should be of opinion that the above matter should have been pleaded specially. A conditional order for this purpose having been obtained Maedonogh (with him M'Mechan) showed cause. The defendant pleaded that no goods were bargained, sold or delivered, as in the summons and plaint alleged, and thereby put the plaintiff upon proof of such a contract as would raise an imÂplied promise to pay upon request. The plaintiff contends that the condition under which these goods were sold should have been set forth in the pleadings : but in this case, one side of the contract having been performed, the general form of indebitatus assumpsit was the proper one. This is a defence by way of denial, and not by way of confession and avoidance, as described in section 70 of the Common Law Procedure Act. Under such a plea as this a party may, under the English practice, show that the goods delivered were not such as were contracted for, although there was a special contract to pay a certain price : Cousins v. Paddon (a); Jervis' New Rules, pp. 126-9. If this matter had been specially pleaded, the plea would have been set aside as argumentative, or amounting to the general issue : Hayselden v. Staff (b) Morgan v. Pebrer (e); Jones v. Nanney (d). Edmonds v. Harris (e) will be relied upon by the other side, but it has been overruled. Whiteside (with him A. Close), in support of the conditional order. The English New Rules cannot affect the present case, which must be decided according to the provisions of ss. 69, 70 & 71 of the Common Law Procedure Act, the object of which was (a) 2 Cr., M. & R. 547. (b) 5 Ad. & El. 153. (c) 3 Bing., N. C., 457. (d) 1 M. & W. 335. (e) 2 Ad. & ET. 414. COMMON LAW REPORTS. 261 to induce the traverse of some particular fact. If the contract H. T. 1856. had been specially set forth in the summons and plaint, there is C ommon Pl eas. no doubt but that this defence should have been specially pleaded. BOAKE v. Where goods delivered on the terms of sale and return are not ratRAcKEN. returned within a reasonable time, the price may be recovered under the common counts for goods sold and delivered : Moss v. Sweet (a). A plea of sale according to sample is a good plea : Sieveking v. Dutton (b) ; and therefore such a defence could not have been objected to as embarrassing. The authorities cited by the other side refer exclusively to England, where the general issue has not been totally abolished ; but in Ireland a plea of never indebted will not be allowed. Section 56 of the Common Law Procedure Act shows that the facts constituting the defence should have been specially pleaded. There is no doubt but that there was an order for these goods, and the only question...