1839.

LAWRENCE and Another, Assignees of W.OKILL, April 23. a Bankrupt, v. KNOWLES.

a

and

1. In an action by Plain

tiffs as as

ance of a contract, the

issue raised was, whether

O. and Plaintiffs, as his assignees, had been always ready and

THE declaration contained two counts: the first, on contract dated the 12th of June 1833, by which Okill agreed to purchase from the Defendant sixty shares signees of O., in the Grand Junction Railway, at 147. 5s. per share, a bankrupt, net payment, as follows, to wit, 155l. on the 15th of June against Defendant, for 1833, and the remainder on the 29th June; and in non-performconsideration thereof, and that Okill promised to accept the shares and pay for the same, the Defendant promised Okill, before his bankruptcy, to deliver transfer the shares upon request : the count then averred that Okill, on the 15th of June, paid the Defendant 155l. in part; and afterwards and before the bankruptcy, and after the 29th of June, to wit, on the 6th of July 1833, and on divers other times, between that day and the 1st of January 1835, paid the Defendant divers other sums of money, amounting to 5851. andinsolvency in part payment, &c., which the Defendant accepted, and of O., and the waived the payment of the remainder on the 29th of of his assets, June 1833: that although the Defendant delivered thirty- were circumfive shares, and Okill, before his bankruptcy, and the which the Plaintiffs as his assignees, after his bankruptcy, were always ready and willing to pay the remainder of the price, together with all calls made in respect of the shares, and the Plaintiffs as assignees afterwards, and after the bankruptcy, to wit, on the 11th of January willing.

willing to perform it:

Held, that the bankruptcy

insufficiency

stances from

jury might properly infer

that he and

his assignees had not been ready and

2. The con

tract was to be performed on the 1st of July 1835; and another issue was, whether Plaintiffs had abandoned it: Held, that they were bound to make their election within a reasonable time, and that, as they had taken no decisive step till January 1838, the jury might properly infer they had abandoned the con

tract.

11Esch 10 10. en cr.19.

DD 3

1. H. & N. 545.

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1838, tendered the residue, together with the amount paid for calls, &c. ; yet the Defendant did not deliver the shares.

The second count was on a contract, dated the 1st of July 1834, for the sale by the Defendant to Okill of fifty shares in the same railway, at 10l. premium; and in consideration that Okill would buy and would accept the same on the 1st of July 1835, and would allow the Defendant interest upon such calls as were paid before that time, the Defendant promised Okill to deliver him the shares on the 1st of July 1835. The count then stated the bankruptcy of Okill on the 3d of February 1835; and that the Plaintiffs, as his assignees, were always, on and after the 1st of July 1835, ready and willing to pay the Defendant for the shares after the rate aforesaid, with interest upon calls paid from the 1st of July 1834; and afterwards, to wit, on the 11th of January 1838, tendered the moneys due; but that the Defendant would not deliver the shares. There was also a count for money had and received by the Defendant to the use of the Plaintiffs as assignees, and for money due on an account stated between the assignees and the Defendant.

The Defendant pleaded, 1st, non-assumpsit to the whole declaration. 2d, To the first count,-a traverse of the payment by Okill, and of the acceptance and receipt of the several sums in the first count mentioned in part payment, and of the waiver of payment of the remainder on the 29th of June, modo et formâ. 3d, To the first count, traverse of the allegation, that Okill before his bankruptcy, and the Plaintiffs as his assignees afterwards, were ready and willing to pay the remainder of the price, together with all sums paid for calls, modo et formâ. 4th, To the first count, that the alleged tender in the first count mentioned was made at an unreasonable time after the alleged waiver; and that

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Okill, or the Plaintiffs, within a reasonable time after the alleged waiver, were not ready and willing to pay the remainder of the price, and did not tender it within LAWRENCE a reasonable time after the waiver, or after the 29th of KNOWLES. June 1833. Verification. 5th, To the first count,that after making the promises in the first count mentioned, and payment and delivery of the shares in part performance, and waiver by the Defendant of the remainder of the price, and before the bankruptcy, mutual promises were made by Okill and the Defendant not to require further performance, and a mutual agreement thereupon to abandon the contract. Verification. 6th, To the first count, that the Plaintiffs, as assignees, did not, at the bankruptcy, or for a long time, to wit, six months, or in any reasonable time after the bankruptcy, adopt the contract, but declined so to do; with averment of mutual promises between the Plaintiffs and the Defendant, dispensing each other from further performance, as in the last plea. Verification.

7th, To the second count, traverse of the allegation that the Plaintiffs, as assignees, were ready and willing to pay the Defendant for the shares, as in the second count mentioned, and made the tender in that count mentioned, or requested the Defendant to deliver the shares. 8th, To the second count, that the alleged tender was made at an unreasonable time, and at a time unreasonably long after the 1st of July 1835. Averment, that neither the Plaintiffs nor any other persons were, within a reasonable time after the 1st July 1835, ready and willing to pay, nor did they tender within a reasonable time after that day. Verification. 9th, To the second count (as in the sixth plea), that the Plaintiffs, as assignees, did not adopt the contract within a reasonable time after the bankruptcy with averment of mutual abandonment. Verification. 10th, To the second count, that after theᎠ Ꭰ Ꮞ

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thirty-five shares had been delivered to the Plaintiffs, whilst 1157. was due to the Defendant, and before the bankruptcy, &c., to wit, on the 17th of January 1834, the Defendant agreed to give Okill further time, until the acceptance hereinafter mentioned should become due; that he would lend Okill a further sum, to wit, 2851.; that Okill should give the Defendant his acceptance for 400l.; that the Defendant should hold the remainder of the said shares until Okill's acceptance should become due; and, if the acceptance were not paid, the Defendant should be at liberty to sell them: averment, that the Defendant did give further time, and lend 2857., and that Okill gave his acceptance for 400l., and made default; and thereupon the Defendant sold the remainder of the shares, according to the agreement. Verification.

The particular of demand claimed 21887. 15s. 11d., the value of the shares in the first count mentioned, which the Defendant refused to deliver, over and above the price paid by Okill for the same; and 56517. 15s. 4d., the value of the shares in the second count mentioned, over and above the money agreed to be paid for the same.

At the trial it appeared that, on the 12th of June 1833, the Defendant sold Okill sixty Grand Junction Railway shares, at 147. 5s. per share, 155l. to be paid on the following Saturday, and the remainder on the 29th of June 1833.

On the 1st of July 1834, the Defendant sold Okill fifty Grand Junction Railway shares, at 10l. premium each, to be delivered on the 1st of July 1835, Okill allowing the Defendant interest on such calls as should be paid in the interim.

'The sixty shares in the first contract were not paid for by Okill on the 29th of June 1833, according to the stipulation; and it being inconvenient for him to pay, the Defendant granted him several extensions of time.

On the 29th of August 1833, having received from Okill the sum of 275l., he delivered thirty-five of the shares to him, or his order, and agreed to give him time until the January following, for the payment of the balance on the remaining twenty-five. When January came, Okill could not meet the balance of 115l. and interest; and the Defendant then agreed to lend him 285., and to give him until the month of January 1835 to make good the balance due on the twenty-five shares, Okill giving his acceptance at twelve months' date for 4001, the aggregate of the two sums of 1157. and 285l. Okill made default in payment of this bill, and in about a month afterwards became bankrupt. The fiat was issued on the 3d of February 1835, and the Plaintiffs were chosen assignees on the 23d. The bankrupt obtained his certificate on the 22d of May following; but for several months in the spring of that year was confined for debt in Lancaster Castle, and within the proper time after commitment gave notice of his intention to apply for his discharge under the insolvent debtors' act.

On the second contract, in which the shares were not deliverable until the 1st of July 1835, five months after the bankruptcy, no tender of the price was made to the Defendant, nor was any notice given to him by the Plaintiffs that they were ready to perform the contract on their parts, and should require performance on his, except as hereafter mentioned.

In July and September 1835 the bankrupt called on the Defendant on the subject of this contract: the Defendant said shares would be lower, but refused to have any thing to do with the bankrupt.

Nine or ten calls were made by the company between the time of the contracts and the tender by the Plaintiffs hereafter mentioned, and no provision was made for such calls either by the bankrupt or his assignees, al

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