The Revised Reports; Being a Republication of Such Cases in the English Courts of Common Law and Equity

The Revised Reports; Being a Republication of Such Cases in the English Courts of Common Law and Equity : From the Year 1785, as Are Still of Practical Utility Volume 21

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This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1819 edition. Excerpt: ...It is not mere neglect in the course of performing the contract, but an absolute refusal by the defendant to execute the engagement entered into by him; for here he contracted to send by one conveyance, the proprietors of which would be responsible in case of loss, and he sends by another owned by different proprietors. This, therefore, is not a mere breach in the mode of performance, but is ir1 direct contravention of his contract, and therefore a direct misfeasance. The plaintiffs in this case might have declared, that they having delivered to the defendant a parcel for a particular purpose, he. by a direct misfeasance, converted it to a different purpose, and a count in trover might have been joined. I entertained some doubts in the course of the argument, whether assumpsit was the proper form of action, on the ground that the concealing from the defendant the value of the parcel might be considered such a fraud on the part of the plaintiffs, as to annul the contract altogether, and then the party must have had recourse to his remedy for the misfeasance. But, upon further consideration, I am of opinion, that the contract was not rendered wholly void by that act of the plaintifis. For it appeared that the defendant would have sent the parcel by the same coach, even if the plaintiffs had described it as a parcel of value, inasmuch as all parcels sent to the oflice before a certain hour, were forwarded by that coach: and, therefore, the concealment of the value was not the cause of the non-performance of the 'contract, in which respect this case is distinguishable from Batson v. Donovan. There the foundation of the action was the negligence of the carriers in the course of performing the contract; here the ground of action is more

Product details

  • Paperback | 284 pages
  • 189 x 246 x 15mm | 513g
  • United States
  • English
  • black & white illustrations
  • 1236811909
  • 9781236811905