proceedings (x)), except where upon the face of the proceedings it is grounded upon a clear misconception of English (y) or international law (2). It may, however, be questioned on the ground that the foreign court had not jurisdiction of the subject matter of the suit (a), e. g., that the defendant was never within the jurisdiction of the court (b); or on the ground of fraud, for fraud vitiates the most solemn proceedings even of our own courts (c); or on the ground that it is repugnant to natural principles of justice, e. g., that defendant had no opportunity given him of making a defence (d). And such facts may be shown by extrinsic evidence (e). They will also lie on a decree of the Court of Chancery, or a colonial court of equity, where the suit terminates in the simple result of ascertaining a clear balance and an unconditional decree that an individual must pay it (f). See post, tit. "Debt." The indebitatus counts will not lie upon a bill of exchange by the payee against the acceptor (g), because the acceptance is only a collateral engagement to pay the debt of another, namely, the drawer; nor will they lie for a wager (h); nor for goods bargained, unless there has been a sale (i); e. g., for goods made to order, before a delivery of them by the maker, or an appropriation of them by the person for whom they were made (k); for the property must be changed to make the action maintainable. Thus, where the plaintiffs agreed to sell to the defendants a quantity of butter which they expected from Sligo, the quantity, quality and price being specified in the contract, and the butter to be paid for by bill at two months from the date of landing; and the defendants accepted the invoice and bill of lading, but the butter was lost by shipwreck on the passage from Sligo, it was held, that the plaintiffs might recover the price of the butter from the defendants in an action for goods bargained and sold; and per Tindal, C. J.: "I agree that the plaintiffs must show that the property in the goods passed to the defendants by the contract, for unless it did, the goods were not bargained and sold to them; but if the goods were ascertained and accepted before the action was brought, it is no objection that they were not in the possession of the plaintiffs at the time of the contract. In Rhode v. Thwaites, the vendor having in his warehouse a quantity of sugar in bulk, agreed to sell twenty hogsheads; four hogsheads were delivered; (x) See Molony v. Gibbons, 2 Camp. 502, except where the irregularity is contrary to the universal principles of justice, as in Reynolds v. Fenton, infra. (y) Novelli v. Rossi, 2 B. & Ad. 757. Whether this fact could be shown by extrinsic evidence, quære. (z) Pollard v. Bell, 8 T. R. 444. (a) Ferguson v. Mahon, 11 A. & E. 179. (b) Buchanan v. Rucker, 9 East, 191, but this fact would not conclusively show a want of jurisdiction. Douglas v. For.. the vendor filled up and appropriated to the vendee sixteen other hogsheads; informed him that they were ready, and desired him to take them away; the vendee said he would take them as soon as he could; and it was held, that the appropriation having been made by the vendor and assented to by the vendee, the sixteen hogsheads thereby passed to the latter (i), and that their value might be recovered by the vendor under a count for goods bargained and sold. Here it is impossible to say that the goods were not ascertained and accepted before the action was brought, for the quantity, quality and price were all specified in the invoice, and the bill of lading was regularly indorsed to and accepted by the defendants" (k). If a plaintiff, having declared on a special agreement, and also on the indebitatus counts, fail in proving the special agreement, he may resort to the general count (1). "If A. declare upon a special agreement, and likewise upon a quantum meruit, and at the trial prove a special agreement, but different from that which is laid in the declaration, he cannot recover on either count: not on the first, because of the variance, (i. e. if not amendable); nor on the second, because there was a special agreement; but if he prove a special agreement and the work done, but not pursuant to such agreement, he shall recover upon the quantum meruit; for otherwise he would not be able to recover at all." Bull. N. P. 139; Str. 648. "I apprehend the rule to be this: where a party declares on a special contract, seeking to recover thereon, but fails in his right so to do altogether, he may recover on a general count, if the case be such, that, supposing there had been no special contract, he might still have recovered for money paid or for work and labour done. As in a case of a plaintiff suing a defendant as having built a house for him according to agreement: there, if he fail to prove that he has built it according to agreement, he may still recover for his work and labour done" (m). "If a man agrees to build for another a house, to be paid for it, and afterwards builds the house, in this case he has two ways of declaring, either upon the original executory agreement, as to be performed in futuro, or upon the indebitatus counts on a quantum meruit, when the house is actually built, and the agreement executed” (n). If there be a count on a special contract, and a common count for work, labour and materials, and the plaintiff fails to recover on the special contract, the plaintiff can recover, on the common count, only so much as the work and materials are worth; Chappell v. Hickes, 2 C. & M. 214; subject to a reduction of damages in respect of any breach of contract on his (i) See Aldridge v. Johnson, 7 E. & B. 885, acc. (k) Alexander v. Gardiner, 1 B. N. C. 676; and see Watt v. Baker, 2 Exch. 1; Godts v. Rose, 17 C. B. 229; Tansley v. Turner, 2 B. N. C. 151; Brown v. Hare, 27 L. J., Exch. 372. (1) Leeds v. Burrows, 12 East, 4. See Pl. R., Hil. T. 1853, R. 1 & 3. (m) Cooke v. Munstone, 1 N. R. 354. (n) Per Denison, J., Alcorn v. Westbrook, 1 Wils. 117. part (o). In Thornton v. Place, however, Park, J., said,— "When a party engages to do certain work on certain specified terms, and in a certain specified manner, but in fact does not perform the work so as to correspond with the specification, he is not of course entitled to recover the price agreed upon in the specification, nor can he recover according to the actual value of the work, as if there had been no special contract. What the plaintiff is entitled to recover is the price agreed upon in the specification, subject to a deduction, and the measure of that deduction is the sum which it would take to alter the work, so as to make it correspond with the specification" (p). And this principle would seem the more correct one where it is applicable, otherwise the plaintiff might, in spite of his breach of contract, recover more under a quantum meruit, than he was entitled to under the special contract. Where the defendant answers the plaintiff's claim for breach of the special contract, and the plaintiff resorts to a quantum meruit for service performed, the jury may inquire what that service is reasonably worth. Baillie v. Kell, 4 B. N. C. 638. See Read v. Rann, 10 B. & C. 438. Where a person agrees to do certain specified work for a certain specified sum, under a fraudulent representation by the other party, of the amount of work to be performed, he cannot recover on a quantum meruit for the real value of the work, but, on ascertaining the fraud, should repudiate the contract, and sue for the deceit (g). Action cannot be brought before Expiration of Credit.-In an action for goods sold and delivered, it appeared that the goods in question had been valued at a certain sum, for which payment was to be made by the defendant in three months by a bill of two months. The action was commenced before the expiration of five months from the day on which the contract was made. The Court of Queen's Bench were of opinion that the action was prematurely brought before the expiration of the credit, and that the defendant ought to have been sued for the not giving at the end of three months a bill of two months, in which action the plaintiff would have been entitled to recover damages against the defendant for his not having given the bill, such as the loss of interest, &c. (r). So where the bill was in fact drawn but refused acceptance (s). So where goods are sold, to be paid for partly by cash, but not specifying any goods in particular as the object of the cash payment, and the residue by bills at certain intervals, this is an entire contract, and no action will lie for goods sold and delivered, even (0) Mondell v. Steel, 8 M. & W. 858. See Turner v. Diaper, 2 M. & G. 241. (p) 1 M. & Rob. 218. Acc. Robson v. Godfrey, Holt, 236; Ellis v. Hamlyn, 3 Taunt. 52. (q) Selway v. Fogg, 5 Q. B. 83. 582. B. & P. for the cash payment, till the expiration of the credit (t). But where goods were sold at three months' credit, and the vendor agreed to take the vendee's bills for three months more, if at the expiration of the first three months the vendee wished for further time, this is a condition, and if the vendee does not avail himself of it by giving the bills, the action may be commenced at the expiration of the first three months (u). So where goods were sold on an agreement for payment by bills at four months or cash, and the defendant paid part of the price in cash, it was held that he had exercised his option, and that the plaintiff might sue before the expiration of the four months (v). Where the goods are fraudulently bought, the seller cannot sue for goods sold and delivered before the credit, if any, has expired, though he may in the interim disaffirm the contract, and maintain trover against the original purchaser (z). Where, however, goods are sold, and a bill or cheque is taken in payment payable at a future day, but without any express agreement for time for the payment of the goods; in this case, if the cheque is dishonoured, or the bill refused acceptance, the drawer may be sued immediately upon the original cause of action, without any regard being had to the time which the bill or cheque has to run; for there being no agreement as to time, the party takes them as payment, and, therefore, if they turn out to be good for nothing, the creditor has not received that which the other undertook to give him, and may therefore pursue his remedy immediately. Stedman v. Gooch, 1 Esp. 5; Owenson v. Morse, 7 T. R. 64; Brown v. Kewley, 2 B. & P. 518. A debtor is not discharged by giving a cheque which produces nothing, although payment in cash may have been previously tendered; and the circumstance of the cheque being given by the agent of a debtor, who is at the time indebted to his principal in a larger amount, makes no difference. Everett v. Collins, 2 Campb. 515. Goods were sold at six months' credit, payment to be then made by a bill at two or three months, at the purchaser's option; it was held (Park, J., dubitante,) that this was in effect a credit for eight or nine months; that the statute of limitations would begin to run from the expiration of that time, and that before that time no action for goods sold and delivered could be maintained, although the plaintiff might have declared specially on the omission to give a bill at the end of six months (y). Where goods were sold "to (t) Paul v. Dodd, 2 C. B. 800; Day v. Picton, 10 B. & C. 120. (u) Nickson v. Jepson, 2 Sta. 227. (v) Schneider v. Foster, 2 H. & N. 4. (z) Strutt v. Smith, 1 C. M. & R. 312. Whether also against a person who has bought the goods from the original purchaser without notice of the fraud, quære. White v. Garden, 10 C. B. 919; Merry v. Kingsford, 1 H. & N. 512. (y) Helps v. Winterbottom, 2 B. & Ad. 431. be paid for in two months," it was held, that the day of the contract was excluded (z). Whether Action lies when Contract is entire.-A. agreed to deliver to B. 100 bags of hops, at a certain price per cwt., by a certain time. A. having delivered twelve bags before the stipulated time, and demanded payment, which was refused, immediately commenced an action for the price of the bags delivered. It was held, that as the contract was entire, the plaintiff was not entitled to bring an action, until the whole quantity was delivered, or until the time for delivering the whole had arrived (a). So where A. undertook, for a specific sum of money, to repair and make perfect a given article, then in a damaged state, and did repair it in part, but did not make it perfect, it was held that he could not recover for the value of the work done and materials found. In this case the contract was to do a specific work for a specific sum (b). So where A. agreed to assign to B. a lease of certain premises and to sell him a greenhouse erected thereon (which A. had the power to remove at the end of the term) with some furniture, &c. for 497., and B. was let into possession, but no assignment of the lease was made to him, it was held that the contract was entire, and that as the lease had not been assigned A. could not recover for the price of the greenhouse which had not been removed, although he might for the chattels which had been (c). So where a seaman agreed to serve for a certain voyage, taking for wages a certain proportion of the net proceeds of the cargo; and, further, "that no one of the said officers and crew shall demand or be entitled to his share of the net proceeds of the said cargo until the arrival of the said ship or vessel at London, &c.," and the ship was disabled on the voyage and condemned in a foreign port, and never did reach London, but the cargo was transhipped into another vessel, and delivered in London, and the freight upon it paid, and the seaman died during the voyage in the second ship, it was held that his administrator was not entitled to anything under the agreement, but only for his service on board the second vessel on a quantum meruit (d). But where a ship, being damaged at sea, put into a harbour to receive some repairs which had become necessary, and a shipwright was engaged and undertook to put her into thorough repair: before this was completed, he required payment for the work already done, without which he refused to proceed, and the vessel remained in an unfit state for sailing: it was held, that the shipwright might maintain an action for the work already done; for there was (z) Webb v. Fairmaner, 3 M. & W. 473. (a) Waddington v. Oliver, 2 N. R. 61. 71. (d) Jesse v. Roy, 1 C. M. & R. 317; and see Mitchell v. Darthez, 2 B. N. C. 555; as to clerks' salaries, Lamburn v. Cruden, 2 M. & G. 253. |