Kenyon v Tayleur

• Jurisdiction: Ireland
• Judgment Date: 27 January 1859
• Date: 27 January 1859
• Court: Queen's Bench Division (Ireland)

Queen's Bench.

KENYON

and

TAYLEUR.

Com. Law Proc. Act 1853, s. 61.

Mosely v. M'MullenIR 6 Ir. Com. Law Rep. 69.

Boake v. M'CrackenIR 6 Ir. Com. Law Rep. 259.

Haysleden v. Staff 5 Ad. & Ell. 153.

Dawson v. CollisENR 10 C. B. 523.

Habgood v. Paul 8 Ir. Com. Law Rep., App., xxiii.

Withers v. ReynoldsENR 2 B. & Ad. 882.

Nash v. BreezeENR 11 M. & W. 352.

Com. Law Proc. Act 1853, s. 56.

8 Ir. Com. Law Rep., App., xxiv.

Com. Law Proc. Act 1853, s. 56.

Nash v. BreezeENR 11 M. & W. 355.

lxxvi Appendix. H. T. 1859. I Queen's Bench. KENYON v. TAYLEUR.* Jan. 27. (Queen's Bench.) To an action MoTtort to set aside defences as embarrassing. for the breach of a contract The summons and plaint stated that, by a contract entered into for the sale between the plaintiff and defendant, on the 5th of March 1858, the and delivery of coals, the de- defendant agreed to sell, and did sell, to the plaintiff 3000 tons of fendant, in ad- the defendant's best Arley Mine four-foot coal, at eight shillings per dition to a general tra- ton, shipped free on board, in the North Docks, Liverpool, the 3000 verse of the on tons to be taken by the plaintiff before the 1st of March 1869, up contract sued on, pleaded the terms that the defendant would, when thereunto required, from twospecial def , in time to time, between the said 5th of March 1858 and 1st of March defences, which he set 1859, ship certain portions of said 3000 tons of coal on board such forth an addi tional term by ships as the plaintiff should procure and provide for said purpose. which the con- That the defendant was aware that the plaintiff entered into said tract was qua. lified, and contract for the said coal, for the purpose and with the intention which the of re-selling same to divers persons at a profit. That the plaintiff plaintiff had omitted to afterwards, and after the making of the said contract, to wit, on state, and averred that, the, &e., chartered and provided two ships, to wit, the " M." and upon breach " D.," for the purpose of having the said coal shipped on board them by the plain tiff of the con- by the defendant for the plaintiff, pursuant to the, terms of said conÂtract so qua- tract, to be by said ships conveyed to the respective ports for which lifted, the defendant had, the plaintiff had so chartered them as aforesaid, and then gave notice masighh, et lawfully ly thereof to the defendant, and required him to load the said ships ed thecontract. with portions of the said coal. That the said defendant did, in -Held, that the special de- pursuance and part performance of his said contract, ship certain fences were portions of said coal on board the said ships so chartered by the properly plead ed, and were plaintiff as aforesaid. That the plaintiff had chartered one of said not embarrass- ships, to wit, the "M.," for the port of Cork, and the other of said ng. Per CRAMP- ships, to wit, the " D.," with the option of despatching her to either TON, J.-Such of the ports of Cork or Waterford. That the plaintiff had selected special de fences are to despatch the said ship " D." to the said port of Waterford. unnecessary, Breach-That, although the plaintiff was always ready and inasmuch as evidence of the willing and offered to do all things on his part and behalf to be special matter P opt me and one, and to d dd d had always been ready and willing may be given under the tra- accept and receive the said portions of coal, so shipped as aforesaid vers of the contract; ract; but on board the said two ships, and to pay for the same at the price the defendant nevertheless has the option, instead of relying solely on the traverse, to apprise the plaintiff of his real defence, by specially setting it forth upon the record. * Before the Full Court. Appendix. lxxvii aforesaid, of all which the said defendant bath always had notice, H. T. 1859. yet the defendant, after he had so as aforesaid shipped the said Queen's Bench coals on board the said two ships, for and on behalf of the plaintiff, KENYON and in pursuance of the said contract, although often requested so V. to do, refused to allow plaintiff to despatch...