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to a gift of personal property are, primâ facie, void, and the gift remains unaffected thereby. An instance of this is where a testator makes a bequest to a legatee with a direction that in case of his or her marriage the property shall pass to another. And the same rule applies in the case of a mixed fund, and also, it seems, to a legacy to be raised by the conversion of land. The fact that there is a gift over will not in any of these cases save the condition.
But, nevertheless, where the gift is to a woman, and the intention of the donor appears to be not to restrain marriage, but merely in good faith to make a provision for her as long as she remains single, a limitation of personal property until marriage has been sustained. The distinction of principle between these two cases is clear enough, though its application may on the facts often be difficult
A condition subsequent in general restraint of marriage, attached to a gift of real estate, is, it seems, valid ; à fortiori, if, in this case the intention appears to be to create a provision for a woman until marriage.
It must be observed that conditions in general restraint of marriage are always valid in gifts to widows, and are indeed matters of every-day occurrence; and this not only in the case of a bequest by a testator to his own widow, but also in a gift to the widow of another person.
A gift over on the second marriage of a man has also been sustained. (Allen v. Jackson, L. R. 1 Ch. D. 399; H. A. Smith's Principles of Equity, 161, 162.)
41. A. is duly registered and entitled to rote at an election for members of parliament. The returning officer refused to admit his vote. Has A. under any, anul vhat, circumstances a right of action in respect of such refusal, and, if so, against whom? Does it make any, and if any, what, difference if the candidate for whom A. in. tended to rote is elected ? Refer if you can to any leading case on the subject.
The facts as above stated are identical with those in the leading case of Ashby v. White (14 State Trials, 695 ; Haynes's Student's Leading Cases, 41). If the returning officer, on A.'s application to vote, refuses to let him do so, A. has a right of action against the returning officer because there exist the two necessary elements to give a right of action, viz., (1) a legal right in A. to vote; (2) the prevention of A.'s exercise of his legal right by the returning officer. It will not be necessary for A. to prove that he sustained actual injury, and therefore the fact that the candidate for whom A. intended to vote was elected will not preclude A. from recovering some, though it be only nominal, damages. That case was decided upon the common law maxim, “Injuria sine damno oritur actio." (Broom's Common Law, 91.)
42. What are the three chief contracts which are held to be illegal at common law as being in violation of public policy and the interests of the State, and, if you can, give an example of each.
(1.) Contracts in general restraint of trade-as, for example, where on the sale of the goodwill of a miller's business the vendor covenants never to use or carry on his trade as a miller in any part of England for the rest of his life, such a covenant is void. (See Mitchell v. Reynolds, 1 Smith's L. C. 406; 1 P. Wms. 181; and notes ; Haynes's Student's Leading Cases, 54).
(2.) Contracts in general restraint of marriage—as where A. enters into a bond that he will remain a bachelor all his life.
(3.) Contracts respecting the sale and transfer of public appointments—as, for example, an agreement between the corporation of a borough and a clerk of the peace appointed by them that he should be paid in future a salary, and account to them for the fees of his office received by him. This was held void on the ground of public policy.
Other kinds of contracts, held to be illegal at common law as being in violation of public policy and the interests of the State, are contracts affecting the course of justice, contracts affecting the revenue of this country, contracts violating the law of maintenance and champerty, agreements to fight, as tending to create a breach of the peace, &c., &c. (Chitty on Contracts, 10th ed., 613—626.)
43. A. verbully agrees to buy of B. a crop of grass growing on a certain close, to be cleared by the end of July, at £6 per acre; half the price to be paid down before any of the grass is cut. A. does not pay. Can B. enforce the agreement ? Give reasons for your
No, B. cannot, because the agreement is not in writing so as to satisfy the 4th section of the Statute of Frauds, the agreement in this case being a contract or sale of lands, or an interest in or concerning them. And there is here no part performance by the parties so as to take the agreement out of the statute. (Crosby v. Wadsworth, 6 East, 602 ; Broom's Common Law, 5th ed., 387; Chitty on Contracts, 10th ed., 274.)
44. Contract for the sale of 200 tons of potatoes off a certuin piece of land, which in ordinary years was amply suficient to produce such a crop, but owing to blight only produced 80 tons, which were delivered to the purchaser. Can he maintain an action against the vendor for the remaining 120 tons ?
No, he cannot, as the contract is a contract to deliver a specific thing in the sense that it is a contract to deliver a particular portion out of a specific thing (Howell v. Coupland, 43 L. J. Q. B. 201; L. R. 1 Q. B. D. 258 ; following Taylor v. Caldwell, 3 B. & S. 826; 32 L. J. Q. B. 164). “The reasoning upon which the case of Taylor v. Caldwell was founded was that in a contract for the delivery of a specific thing the law makes it part of the contract that the thing shall be in existence when the time comes for the fulfilment of the contract. The same reasoning applies where it is for the delivery of a portion out of a specific thing; for example, a contract to deliver so many tons of sugar out of a particular cargo. There the sugar contracted for would be part of a particular quantity; but if when the time arrived for the completion of the contract the ship were lost, I take it that it would be implied from the terms of the bargain that it should be at an end if the whole quantity of the sugar had perished without default on either side." (Per Blackburn, J., in Howell v. Coupland, supra; see also McLay v. Perry, 44 L. T. 152; Chitty on Contracts, 10th ed., 665.)
45. C. and D. ucre negotiating for the supply by the former to the latter of a certain machine for a particular purpose, to be delivered by the end of the following April. B. was employed loy C. to make a part of the machine, and B. contracted to make it " soon as possible,” knowing, however, when he so contracted, the time by which the whole machine was to be delivered. B. dill not complete his part of the work until the end of May. D. then refused accept
Has C. any remedy against either D. or B. for breach of contract, and what will be the measure of damages, if any?
D. being justified in his refusal to accept the machine, C. has no remedy against him.
C., however, has a remedy against B. for the breach of his contract, and the measure of damages will be the amount of the expenses he has been put to in making other parts of the machine than those made by B., and the loss of profit which he incurred through C.'s non-performance of the contract. (The facts were identical in The Hydraulic Engineering Co. v. McHaffie (App.), L. R. 4 Q. B. D. 670; 27 W. R. 221.)
46. B., a broker, acting for C., made a contract for the sale of goods to D., sending a note to each party, but signing only the one which was sent to the seller. The broker entered the contract in his book, in which he signed both the bought and sold notes. D. kept the note which was sent to him without objection until called upon
to accept the goods, when he repudiated the contract, on the ground that the note sent to him was not signed. Give your opinion, with reasons, as to the right of the seller to enforce the contract against the buyer.
The seller is entitled to enforce the contract against D., the buyer, on the ground that where a broker is employed to buy or sell goods for one person, and he agrees with another for their sale or purchase, he is considered to be the agent of both; and his signature to either the bought or the sold note will bind both parties within the Statute of Frauds. And it would appear that if there be a good note in the broker's book, but no bought or sold notes, the note in the broker's book, signed by him, will be good evidence of the contract to satisfy the statute. (Chitty on Contracts, 10th ed., 363, 364.)
47. A. buys from B. certain bales of Manillu hemp—so described in the contract—expectedl to arrive by ships named fram abroad. Vessels arrive at Liverpool anul hemp delivered damaged so as to be unmerchantable, but being properly described as Manilla hemp. A. had no opportunity before the purchase of inspecting the hemp. Is or is not A. entitled to repudiate the contract, and upon what grounels?
In the above càse there is an implied warranty that the goods shall answer the description given of them in the contract, and, as A. had no opportunity of inspecting the hemp before the purchase, that the hemp is saleable or merchantable under that description. A. is therefore here entitled to have deducted from the purchase money the difference between the value of the hemp as it actually arrived and the value of the hemp as it ought to have arrived. If he has paid for the goods, A. can sue B. for that difference upon discovering the breach of the implied warranty. (See Jones v. Just, 37 L. J. Q. B. 89; 9 Best & S. 141; L. R. 3 Q. B. 197. Chitty on Contracts, 10th ed.,412; Addison on Contracts, 7th ed., 493.) The maxim caveat emptor does not apply as the purchaser had no opportunity to inspect the goods before the purchase. (Jones v. Just, supra.)
48. Give your opinion, with reasons for it, as to the liability of the defendant in the following case :--
Plaintiff, on the verbal order of the defendant, shipped certuin goods from abroad to this country at the price of £200. On arrival the goods were sent to a shipping agent of the plaintif", who received and warehoused them with a wharfiner, informing the defendant of their arrival. The wharfinger hanted to the agent a delivery warrant whereby the goods were made deliverable to him or his assignees by indorsement on payment of rent and charges. The agent indorsed and delivered the warrant to the defendant, who kept it for several months, and did not pay either the price of the gooils or the charges upon them, nor dil he return the warrant, but repudiatell the contract altogether, whereupon the plaintiff brought an action against him for the price of the goods.
In our opinion the defendant will not be liable, because there is no acceptance though there is a delivery of the goods sold within the meaning of the 17th section of the Statute of Frauds. There is no