https://www.commonlii.org/uk/cases/EngR/1790/

COOKE against OXLEY. Friday, May 14th, 1790. A. having proposed to sell goods to B., gave him a certain time at his request to determine whether he would buy them or not; B. within the time determined to buy them, and gave notice thereof to A. ; yet A. was not liable in an action for not delivering them, for B. not being bound by the original contract, there was no consideration to bind A. [16 East, 45.]

[Considered, Adams v. Lindsell, 1818, 1 B. & Ald. 682. Referred to, Dickinson v. Dodils, 1876, 2 Ch. D. 469. Discussed, Stevenson v. M'Lean, 1880, 5 Q. B. D. 352. Referred to, Bristol Aerated Bread Company v. Maggs, 1890, 44 Ch. D. 625.]

This was an action upon the case; and the third count in the declaration, upon which the verdict was taken, stated that on, &c. a certain discourse was had, &c. concerning the buying of 266 hogsheads of tobacco; and on that discourse the defendant proposed to the plaintiff that the former should sell and deliver to the latter the said 266 hogsheads [at a certain price]; whereupon the plaintiff desired the defendant to give him (the plaintiff) time to agree to or dissent from the proposal till the hour of four in the afternoon of that day, to which the defendant agreed; and thereupon the defendant proposed to the plaintiff to sell and deliver the same upon the terms aforesaid, if the plaintiff would agree to purchase them upon the terms aforesaid, and would give notice thereof to the defendant before the hour of four in the afternoon of that day; the plaintiff averred that he did agree to purchase the same upon the terms aforesaid, and did give notice thereof to the defendant before the hour of four in the afternoon of that day; he also averred that he requested the defendant to deliver to him the said hogsheads, and offered to pay to the defendant the said price for the same, yet that the defendant did not, &c.

A rule having been obtained to shew cause why the judgment should not be arrested, on the ground that there was no consideration for the defendant's promise,

Erskine and Wood now shewed cause. This was a bargain and sale on condition; and though the plaintiff might have rescinded the contract before four o'clock, yet not having done so, the condition was complied with, and both parties were bound by the agreement. The declaration considered this as a complete bargain and sale; for the breach of the agreement is for not delivering the tobacco, and not for not selling it.

Lord Kenyon, Ch.J. (stopping Bearcroft, who was to have argued in support of the rule). Nothing can be clearer than that [654] at the time of entering into this contract the engagement was all on one side; the other party was not bound; it was therefore nudum pactum.

Buller, J.-It is impossible to support this declaration in any point of view. In order to sustain a promise, there must be either a damage to the plaintiff, or an advantage to the defendant: but here was neither when the contract was first made. Then as to the subsequent time, the promise can only be supported on the ground of a new contract made at four o'clock; but there is no pretence for that. It has been argued that this must be taken to be a complete sale from the time when the condition was complied with: but it was not complied with, for it is not stated that the defen- dant did agree at four o'clock to the terms of the sale; or even that the goods were kept till that time.

Grose, J.-The agreement was not binding on the plaintiff before four o'clock; and it is not stated that the parties came to any subsequent agreement; there is therefore no consideration for the promise.

Rule absolute (a).