Gilbert v. Manchester Iron Manufacturing Co.

Headnote

Where a manufacturer of iron ware, delivered to another manufacturer of the same article, a quantity of ware, upon an order in these words : “Will you lend me, until my furnace gets in blast, and let me pay you in the same ware, the following articles, viz.” &c.; and afterwards brought his action to recover the value of the ware ; it was held, that to entitle him to sustain his action, it was incumbent upon him to prove a demand of the articles to be returned.

Motion to set aside report of referees. The plaintiff sought to recover the value of a quantity of iron ware delivered by him, on orders drawn by the agents of the defendants, in the following form : “ Will you please to lend us, until our *furnace gets in blast, and let us pay you in the same ware, the following articles (enumerating them.) The plaintiff, in one count of his declaration, charged the sale and delivery of a large quantity of iron ware, and that the defendants promised to pay him an equal value of iron ware, whenever the same should be manufactured by them ; and averred that at a subsequent day a sufficient quantity had been manufactured by the defendants to pay him the ware so sold and delivered, and that he was ready to receive it. In another count he charged the contract to be, that in consideration that he would sell and deliver to the defendants a certain other large quantity of iron ware, they would pay him an equal value of iron ware, on demand, whenever they should have made at their furnace a sufficient quantity to repay him ;

and averred that, confiding in such promise, he sold and delivered to the defendants a large quantity of iron ware, of the value, &c ; and that the defendants afterwards made at their furnace sufficient ware to repay him ; and that he demanded the same, but that they had not paid him. The declaration also contained the common counts. The delivery by the plaintiff of a quantity of ware was proved, and that the plaintiff, on its delivery, stated that he would prefer to receive the articles in return at the manufactory of the defendants, as it was nearer market than his own. It was also proved, that subsequently the defendants made, at their furnace, a large quantity of ware, which was put into their warehouse, but no part of it was set aside for the plaintiff. No demand for a return of a like quantity of iron ware having been proved, the counsel for the defendants insisted that the plaintiff was not entitled to recover under his declaration for the ware delivered to the defendants ; but the referees decided that under the contract proved, it was the duty of the defendants, as soon as their furnace was in blast, to select and set aside for the plaintiff ware of an equal value to that received, from him; and that although the defendants might have had ware at their furnace of sufficient value to repay the plaintiff, yet, that not having selected and set aside a sufficient quantity to repay him, they were liable in this action. The referees reported a sum as due to the plaintiff. The defendants moved to set aside the report, on various ^grounds—and, amongst others, that the referees had erred in the above decision. ’ -