goods sold and delivere

GOODS SOLD AND DELIVERED. This phrase is frequently used in actions of 
assumpsit, and the sale and delivery of goods are the foundation of the 
action. When a plaintiff declares for goods sold and delivered, he is 
required to prove, first, the contract of sale; secondly, the delivery of 
the goods, or such disposition of them as will be equivalent to it; and, 
thirdly, their value. 11 . Shepl. 505. These will be separately considered. 
     2. - 1. The contract of sale may be express, as where the purchaser 
actually bought the goods on credit, and promised to pay for them at a 
future time; or implied, where from his acts the defendant manifested an 
intention to buy them; as, for example, when one takes goods by virtue of a 
sale made by a person who has no authority to sell, and the owner afterwards 
affirms the contract, he may maintain an action for goods sold and 
delivered. 12 Pick. 120. Again, if the goods come, to the hands of the 
defendant tortiously, and are converted by him to his own use, the plaintiff 
may waive the tort, and recover as for goods sold and delivered. 3 N. H. 
Rep. 384; 1 Miss. R. 430, 643; 3 Watts, 277; 5 Pick. 285; 4 Binn. 374; 2 
Gill & John. 326; 3 Dana, 552; 5 Greenl. 323. 
     3. - 2. The delivery must be made in accordance with the terms of the 
sale, for if there has not been such delivery no action can be maintained. 2 
Ired. R. 12; 15 Pick. 171; 3 John. 534. 
     4.- 3. The plaintiff must prove the value of the goods; where there is 
an express agreement as to their value, be established by evidence, but 
where there is no such express agreement, the value of the goods at the time 
of sale must be proved. Coxe, 261. And the purchaser of goods cannot defend, 
against an action for the purchase money, by showing that the property was 
of no value. 8 Port. 133. 
     5. To support an action for goods sold and delivered, it is 
indispensable that the goods should have been sold for money, and that the 
credit on which they were sold should have expired. But where the goods have 
been sold on a credit to be paid for by giving a note or bill, and the 
purchaser does not give it according to contract, although the seller cannot 
recover in assumpsit for goods sold and delivered till the credit has 
expired, yet he may proceed immediately for a breach of the agreement. 21 
Wend. 175. 
     6. When goods have been sold to be paid for partly in money, and partly 
in goods to be delivered to the vendor, the plaintiff must declare 
specially, and he cannot recover on the common count for goods sold and 
delivered. 1 Chit. Pl. 339; 1 Leigh's N. P. 88; 1 H. Bl. 287; Holt, 179.