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![handle is hein.slavery/ssactsengr0254 and id is 1 raw text is: LEROUX V. BROWN
be substituted for it. So that the defendant seeks to shew that the agreement declared
upon is put an end to by another agreement to which the defendant himself is no
party.] It is enough for the defendant to shew that the plea gives colour: it admits
the agreement, and the work done under it: Leyfield's case, 10 Co. Rep. 88; Stephen
on Pleading, 5th edit. p. 234. There are many cases where the setting up such a
collateral agreement as this does not make the plea objectionable on this ground.
Thus, in Smart v. Hyde, 8 M. & W. 723, 1 Dowl. N. S. 60, a declaration in assumpsit
stated, that, in consideration that the plaintiff [799] would buy of the defendant a
mare at a certain price, the defendant promised that she was sound, and averred as
a breach that she was not sound. The defendant pleaded that the mare was sent to
a repository for the sale of horses, to be sold according to certain rules, which were,
that a warranty of soundness should remain in force until noon of the day after the
sale, when it would be complete, and the responsibility of the seller terminate, unless
in the meantime a notice and certificate of unsoundness were given; that the sale
took place subject to the rules, and that the same were agreed to by the parties, and
that such notice and certificate were not given within the time limited: and it was
held, that the plea was good, and did not amount to the general issue. It admits,
said Parke, B., the contract and the promise, but shews it to have been subject to
certain rules which have not been complied with. What is the meaning of those
terms? It seems to me to be this, that the warranty shall be deemed to have been
complied with, unless a notice and certificate shall be delivered to the vendor before
twelve o'clock at noon of the day next after the day of the sale. That is not a denial
of the warranty, but a mere condition annexed to it. No notice and certificate were
delivered, and therefore the contract is to be considered as complied with. If the
matter relating to the notice had been by way of proviso upon the warranty, it might
perhaps have been necessary to state it in the declaration : but upon that point I give
no opinion. It is enough to say that every word of this plea is consistent with the
contract stated in the declaration. Sieveking v. Dutton, ante, vol. iii., p. 331, 4 D. &
L. 197, is to the same effect. [Maule, J. I think this plea clearly amounts to the
general issue. It is very like the plea in Solly v. Neish, 2 C. M. & R. 355, 5 Tyrwh.
625, 4 Dowl. P. C. 248.]
[800] Lush, in reply, was desired by the court to confine himself to the objection
in substance to the plea. Belshaw v. Bush is very distinguishable from this case:
there, the payment by the stranger was made on behalf of, and was adopted by, the
defendant: here, there was an executory contract between the plaintiff and the
defendants for the erection of a church; before that agreement was executed, another
agreement between the plaintiff and a stranger was substituted,-a new contract with
a stranger; not an act done in satisfaction of an existing claim. There must be two
parties to the rescision of an agreement. [Maule, J. If the plaintiff and the defen-
dant had agreed as the plaintiff and Thomas Prothero did by the agreement of the
18th of February, 1850, no doubt the first agreement would have been rescinded.
But it is not alleged here that Prothero made that agreement on behalf of the defen-
dant, so as to entitle him to ratify and adopt it. It is hardly possible to say that the
plaintiff could have sued the defendants on that agreement.] The defendants seek to
alter their contract, by another contract to which they are no parties. [Maule, J.
There are in fact two agreements capable of subsisting together.] Exactly so.
JERVIS, C. J. In the view we take of this plea, it will not be necessary to con-
sider further the construction of the 51st section of the 15 & 16 Viet. c. 76. We think
the plea is bad in substance, on the ground just stated.
The rest of the court concurring,
Judgment for the plaintiff.
[801] LEROUX v. BROWN. Nov. 10, 1852.
[S. C. 22 L. J. C. P. 1; 16 Jur. 1021 ; 1 W. R. 22. Commented on, but followed,
Williams v. Wheeler, 1860, 8 C. B. N. S. 299, 316. Considered, Gibson v. Holland,
1865, L. R. 1 C. P. 6. Referred to, Britain v. Bossiter, 1879, 11 Q. B. D. 128;
Adams v. Clutterbuck, 1883, 10 Q. B. D. 406 ; Maddison v. Alderson, 1883, 8 App.
Cas. 474. Adopted, In re Hoyle, [1893] 1 Ch. 97. Referred to, Ilochefoucald v.
12 C. B. 799.
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