Clarke v Gardiner

• Jurisdiction: Ireland
• Judgment Date: 31 January 1861
• Date: 31 January 1861
• Court: Court of Common Pleas (Ireland)

Common Pleas.

CLARKE

and

GARDINER.

Warner v. WellingtonENR 3 drew. 523-37.

Smith v. Neale 2 C. P., N. S., 67.

Adams v. LindsellENR 1 B. & Ald. 681.

Dunlop v. Higgins 1 H. L. Cas. 381.

Brant v. BrownENR 3 B. & C. 668.

Champion v. Plummer 1 B. & Pul. 458.

Allen v. BennettENR 3 Taunt. 169.

Saunderson . Jackson 2 B. & Pul. 238.

Egerton v. MathewsENR 1 Stark, 140.

Roe v. OsborneENR 6 East, 306.

Laythorp v. BryantENR 2 B. N. C. 735-45.

Haughton v. MortonIR 5 Ir. Com. Law Rep. 329.

Boydell v. DrummondENR 11 East, 142.

Payne v. CaveENR 3 T. R. 148.

Duncan v. TophamENR 8 C. B. 225.

Adams v. LindsellUNKENR 1 B. 7amp; Al. 681.

Dunlop v. Higgins 1 H. L. Cas. 381.

472 COMMON LAW REPORTS. H. T. 1861. It would be superfluous to dwell upon the total absence of resem CommonPleas. blance between the facts of that case and the present. HAMILL V. HENRY. BALL and KEOGH, JJ., concurred. Motion refused with costs. • CLARKE v. GARDINER. Jan. 28, 31. G., a mer- THIS was an action for the non-delivery of a lot of guano, and the chant, residing in D., having non-acceptance of another lot. The first count of the summons and sent some guano from D. plaint stated that defendant had sold to plaintiffs, and plaintiffs had to., em- pl Loyed 'an bought of defendant, 21 tons, 19 cwt., 0 qrs., 151bs. Peruvian guano, agent to sell at same at 12. a 12. 5s. per ton, to be paid for in net cash on delivery ; and 5s. per ton, although a reasonable time for the delivery of the said guano had net cash. C., a merchant in elapsed, since the making of the said contract, and although the L., in conse quence, wrote plaintiffs had been always ready and willing to accept and pay for to G., offering to take the same at the price aforesaid, and had done all things to entitle them, guano, pro vided G. &c., yet defendant would not deliver, &c. would. pur chase in return The second count stated a sale to defendant of 75 bags of guano, another lot belonging to as per sample, containing 5 tons, 9 cwt., 3 qrs., 10 lbs., at the price of C.G. in reply, wrote ly, 8 per ton e , to be paid by the defendant accepting a bill of exchange acceptin the to be drawn by the plaintiffs upon the defendant, for the price of offer forg the purchase of his saidgoods as aforesaid, and payable in four months after the date lot, but agree- ing to take of said bill ; and although the plaintiffs tendered and sent and only five tons of C.'s lot, to be paid for by a bill. On receipt of this letter, C. at once shipped the five tons for D., consigned to G. In the course of the same day, G . s agent called on C. to inform him that G. declined to sell his lot of guano to C., unless the carriage from D. to L. were paid in addition to the price of 12. 5s. This being refused, G. refused to deliver his lot to C. or to receive the five tons from C., who brought an action accordingly. C., jury found that the mercantile meaning of the term net cash was, that the seller and not the buyer should pay the freight to L.-Held, that the fact of C. putting the five tons of guano on board, consigned to G., prior to the conversation with G.'s agent, was such an acceptance as rendered the contract complete and binding on G.-(CHRISTIAN, J., dubitante.) COMMON LAW REPORTS. 473 offered to defendant said guano, to be sold as aforesaid, and H. T. 1861. omonPleas. although the plaintiffs tendered to defendant such bill of exchange C for his acceptance, and did all other things, &c., the defendant would CLARKE v. not accept said goods, or pay the plaintiffs the price, by accepting GARDINER. said bill of exchange, &c. The defendant, by his pleas, denied the several contracts. Issues accordingly. The action was tried at the Sittings after Michaelmas Term, before NONAHAN, C. J., one of the plaintiffs in person conÂÂducting their own case ; and it appeared that they were LiverÂÂpool merchants ; that the defendant was a merchant resident in Londonderry. The defendant having some Peruvian guano in Londonderry, forwarded it to Liverpool. The defendant having instructed his Liverpool agent to sell the guano, the latter comÂÂmunicated with the plaintiffs, who, on the 4th of June last, wrote to defendant as follows :-" We will take the lot at 12. 5s. per ton, " net cash, the day we receive it, provided you do a little trade with "us, and buy, say twelve tons of the inclosed sample of guano, at " 8 per ton, four months' acceptance. If accepted, you will please "send us a delivery order for the guano, and we will weigh it in "presence of Mr. Gilliland, or any other gentleman you may appoint, " and same day remit you amount of invoice." On the following day the defendant replied as follows :-"I really cannot give the " guano at the price you mention ; but, being in want of cash, I " must take it, and will forward a delivery order attached to cash " order for 200 to-morrow, 21 tons, 19 cwt., 0 qrs., 5lbs. weight of " guano, at 12. .5s. Mr. Gilliland will look after the weight. I " cannot undertake more than five tons of the guano you send samÂÂ" ple of at present, but will hereafter do what I can." The plaintiffs having, on the 7th of June, written to Gilliland, the defendant's agent, apprising him that they would not honor the defendant's draft for 200...