Clark and Another v Wright

• Jurisdiction: Ireland
• Judgment Date: 26 May 1860
• Date: 26 May 1860
• Court: Exchequer (Ireland)

Exchequer.

CLARK and another

and

WRIGHT.

Harnor v. GrovesENR 15 C. B. 667.

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

Loder v. KekuleENR 3 C. B., N. S., 128.

Coles v. BulmanENR 6 C. B. 184.

Harman v. Bennett 1 Fos. & Fi. 400.

Dawson v. CollisENR 10 C. B. 523.

Rowe v. FarenIR 8 Ir. Com. Law Rep. 46.

Morton v. Tibbett 15 Q. B. 428.

Read v. HutchinsonENR 3 Camp. 352.

Fitzgerald BrowneIR 4 Ir. Com. Law Rep. 178.

Harnor v. Groves 15 Com. B. 667.

Campbell v. Fleming 1 Ad. & Ell. 40.

Chapman v. MortonENR 11 M. & W. 534.

Morton v. Tibbett15 Q. B. 428.

Parker v. PalmerENR 4 B. & Ald. 387.

Edan v. Dudfield 1 Q. B. 302.

Curtis v. pugh 10 Q. B. 111.

Loder v. KekuleENR 3 C. B., N. S., 128.

Bushell v. Wheeler 15 Q. B. 442, n.

Morton v. Tibbett 15 Q. B. 432.

Okell v. Smith 1 Stark., N. P. C., 107.

Bailey v. Gouldsmith 1 Peake, N. P. C., 56.

Beverley v. The Lincoln Gas-light CompanyENR 6 Ad. & El. 829.

Grimaldi v. WhiteENR 4 Esp. 95.

Groning v. Mendham 1 Stark., N. P. C., 257.

Hopkins v. Appleby 1 Atark., N. P. C., 477.

Milner v TuckerENR 1 Car. & P. 15.

Chapman v. MortonENR 11 M. & W. 534.

Morton v. Tibbett 15 Q. B. 435, 442.

Hart v. MillsENR 15 M. & W. 85.

Oxendale v. WetherellENR 9 B. & C. 386.

Read v. RannENR 10 B. & C. 438.

402 COMMON LAW REPORTS. the jury generally, as you did; but you ought to have told them that the defendants were not liable unless they could, by the exerÂÂcise of care, have then, by a new physical act, irrespegtive of the continuing negligence, so operating and causing the injury, have -- prevented the consequences of the plaintiff's want of care. There is no authority, that I know of, for such a statement of the law, and none such was cited. \The next exception is this; that there was no evidence of neglect on the part of the defendants, operating up to the time of the injury : but if there was evidence of neglect at" all in this case, it certainly was of negligence operating up to that time. The last exception is, that the Judge ought to have told the jury that the mere stepping out of the carriage by the plaintiff, as deposed to by three witnesses of the defendants, was itself an answer to the action. It is impossible to sustain that proposition. That was entirely a question for the jury, and was properly left to them. It seems to me impossible that, wholly irrespective of the circumstances under which the plaintiff left the carriage, even supÂÂposing it to have been then in motion, the Judge could have told them that there was such want of ordinary care as disentitled the plaintiff to recover. HUGHES, B., concurred. I E. T. 1860. CLARK and another v. WRIGHT.* May 3, 4, 26. The plaintiff THE action in this case was brought to recover a sum of 29. 6s., alleged an ab- solute sale, by for goods sold and delivered. The defendant pleaded, as to sample, of a quantity of guano to the defendant. The defendant alleged it to have been a contract for sale and return. The guano (a larger quantity than ordered) was consigned to the defendant, and, * Before PIGOT, C. B., FITZGERA.LD and Humus, BB. COMMON LAW REPORTS. 403 15s. 9s., for grass and clover seed, payment of that sum into Court ; and as to the remainder of said goods, "that the same "were not sold to the defendant, but the same were delivered as "a sample to the defendant, and were, within a reasonable time " after the delivery thereof; found by the defendant to be, and in ." fact were, bad and unmerchantable, and the defendant refused to " buy the same ; of which the plaintiff' had due notice." The material issues were-" First ; whether the goods were sold " by the plaintiff to the defendant, as alleged ? " Secondly ; whether the delivery of the said goods was made to " the defendant only as a sample, as stated in the defence, or is purÂÂ" suance of a contract for sale and delivery ? " Thirdly ; whether, if the goods were sold only by way of samÂÂple, -the same were bad and unmerchantable, and, if they were, " whether the defendant refused, within a reasonable time, to buy the same?" The case was tried in the Consolidated Court before Hayes, J., in Hilary Term 1860. The evidence given at the trial is fully stated in the LORD CHIEF BARON'S judgment. At the close of the case, the plaintiffs' Counsel called upon the learned Judge to direct a verdict for them, on the ground that, if it 'were a sale by sample, as alleged by the plaintiff, there was •no proof of the inferiority of the article to the sample ; and, if a deliÂÂvery on sale and return, the defendant,..by dealing with the article as he had done, had effectually taken with the goods, and made them his own ; so that the plaintiffs were, at all events, entitled to a verdict for such sum as the jury should think the goods worth. on the day after its arrival, the defendant sent a portion of it to a chemist to be analysed, who made an unsatisfactory report. There was evidence of repudiation by the defendant, and also some evidence of acceptance. While the guano was being analysed, the defendant sold one bag of the guano, and subsequently sold a second.-Held, that the question whether the defendant's acts amounted to an acceptance of the goods was a question for the jury, and was properly left to them. Held also, that the plaintiff was entitled to a verdict for the value of the two 'lags sold. 404 COMMON LAW REPORTS. His Lordship refused so to direct the jury ; but left it to them to say whether this was a sale by sample, or only a delivery on sale and return ; and if the latter, whether the defendant had taken with the goods. The jury found for the, defendant, and also found that the value...