Philip Bertie Petrides.

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tations, but Concealed Fraud and the absence of reasonable
means of discovery of such fraud is.

GIBBS v. GUILD. [1882 J

(51 L. J. <i. B. 313 ; 9 Q. B. I). 59; 46 L. T. 248 ; 30 VV*. R.
591— C. A.)

The plaintiff brought this action against the defendant as
promoter of a company to recover damages for fraudulent mis-
representations made by him more than six years before action
brought by reason of which the plaintiff was induced to buy
shares in a certain company. The statement of defence alleged
that the cause of action did not arise within six years, to which
the plaintiff replied that he did not discover the fraud, or that
the defendant had been a party to it, and that the plaintiff could
not by reasonable diligence have discovered it, until within six
years before the action. Further, that the defendant actively
and deliberately concealed the existence and means of discover-
ing such fraud, in order to prevent and delay the plaintiff from
discovering it within six years.

Held, on demurrer, that this was a good reply.



DISCHARGE OF CONTRACT BY BREACH. 109

DISCHARGE OF CONTRACT BY BREACH.

Where a Contract for the execution of an entire Work is not
completed by one Party, A., through no fault of the other
Party, B., A. can recover nothing although the non-completion
is due to no fault of A.

CUTTER v. POWELL. [1795]
(6 T. R, 320; 3 R. R. 185.)

The defendant employed T. Cutter as second mate to the ship
Governor Parry on her voj 7 age to England. The terms were
contained in a note handed by the defendant to the deceased,
which ran as follows : —

" Ten days after the ship Governor Parry, myself master,
arrives at Liverpool, I promise to pay to Mr. T. Cutter the sum
of thirty guineas, provided he proceeds, continues, and does his
duty as second mate in the said ship from hence to the port of
Liverpool. — KiDgston, July 31st, 1793."

Before the ship arrived at Liverpool the mate died, and as he
had performed his duties till the day of his death, his adminis-
tratrix brought this action to recover what was due.

Held, that no wages could be recovered either on the
contract or on a quantum meruit.

" This is a written contract and speaks for itself. And
as it is entire, and as the defendant's promise depends on a
condition precedent to be performed by the other party, the
condition must be performed before the other party is entitled
to receive anything under it. It has been argued, however,
that the plaintiff may now recover on a quantum meruit .
but she has no right to desert the agreement ; for tvhenever
there is an express contract the parties must be guided by
it ; and one party cannot relinquish or abide by it as it
may suit his advantage. Here the intestate was, by the



1J0 CONTRACT.

terms of his contract, to perform a given duty before he could
call upon the defendant I" pay him anything; if was a
condition precedent, trillion I performing which the defendant
is not liable. And that seems to me to conclude the question ;
the intestate did not perform the contract on his port; he
was not indeed to blame for not doing it ; but still, as this
luas a condition precedent, and as he did not perform it, his
representative is not entitled to recover."



Where a Contract for the execution of an entire Work is not com-
pleted by one Party, A., through no default of the other, A.
can recover nothing.

SUMPTER v. HEDGES. [1898]

(67 L. J. Q. B. 545 ; (1898) 1 Q. B. 673; 78 L. T. 378 ;

46 W. R. 454— C. A.)

The plaintiff, a builder, in consideration of a lump sum to be
paid to him by the defendant, agreed to erect certain buildings
upon the defendant's land. Before the completion of the
buildings the plaintiff abandoned the contract, and thereupon
the defendant took possession of the buildings which had been
erected and completed them himself. In an action by the
plaintiff, in respect of so much of the agreed work as had been
executed before the abandonment of the contract, to recover as
for the value of work done and materials provided —

Held, that in the absence of evidence of a fresh agree-
ment by the defendant to pay the plaintiff the value of the
work done and materials provided prior to the abandonment
of the original contract, the plaintiff was not entitled to
recover ; and that the mere fact of the defendant talcing
possession of the buildings ivas not evidence from which a
fresh agreement could be inferred.



DISCHARGE OF CONTRACT BY BREACH. Ill

Where a Contract is not Entire but Divisible, incomplete per-
formance by one Party does not disentitle him to payment on
a quantum meruit for the work actually performed, but
entitles the other Party to such Damages as are caused by
his default.

RITCHIE v. ATKINSON. [1808]
(10 Kast, 295; 10 R. R. 307.)

The plaintiff, who was the master of the ship Adelphi, a
vessel of 400 tons, made an agreement with the defendant that
the ship should proceed to St. Petersburg, and that the
defendant should there load her with a complete cargo, and that
the ship should then proceed to London, and that the plaintiff
should receive 51. per ton for hemp and 5s. a ton for iron as
freight. The British consul informed the plaintiff that an
embargo would be placed on British ships in the harbour at
St. Petersburg. Thereupon the master put to sea with the
vessel only half full of the defendant's cargo. In an action by
the plaintiff on a quantum meruit —

Held, that the contract was not entire but divisible^ and
that the delivery of a complete cargo was not a condition
precedent, but that the plaintiff might recover freight for the
amount of cargo actually shipped at the stipulated rale per
ton, and that the defend ant had his remedy in damages for
short delivery.



A Breach of a Condition is a Ground for Rescission or Damages.

BEEN v. BURNESS. [1862]

(32 L. J. Q. B. 204 ; 3 B. & 8. 751 ; 9 Jur. (N. S.) 620 ; 8 L. T. 207 ;

11W.E. 496.)

By a memorandum of charter-party dated London, the 19th
of October, the plaintiff's ship was chartered to the defendant as
follows : "It is this day mutually agreed between A. Behn, the



112 CONTRACT.

owner of the good ship or vessel called the Marfaban, of 420
tons or thereabouts, now in the port of Amsterdam, and James
Burness, of London, merchant, that the said ship, being tight,
staunch, strong and every way fitted and ready for the voyage,
shall, with all possible dispatch, proceed direct to Newport,
Monmouthshire," &c. On the loth October the ship was at
Nieuwediep, and under favourable circumstances would have
reached the docks at Amsterdam in twelve hours more, but in
consequence of wind and the absence of steam-tug power, she
did not reach the docks till the 23rd of October. She dis-
charged her cargo with all possible dispatch, was immediately
made ready for sea, and without any delay sailed on the 16th
of November, and proceeded direct to Newport, where she
arrived on the 1st of December. The defendant refused to load
the ship, as he had engaged to do by the charter-party. In an
action brought against him for such refusal, it was —

Held, that the words " now in the port of Amsterdam "
in the charter-party amounted to a condition, and that, as
the ship tvas not in the port of Amsterdam at the time
when the charter-party was made, the defendant was justified
in saying that there had been a failure of performance of a
condition precedent, and in refusing altogether to carry out
the contract.



Where a Party to a Contract renounces it he can be sued at once
although the Date of Performance has not arrived.

HOCHSTER v. DE LA TOUR. [1853]

(22 L J. Q. B. 455 ; 2 El. & Bl 678 ; 17 Jur. 972 ; 1 W. R, 469.)

The plaintiff agreed with the defendant to enter his employ
as a courier, and to travel with him for three months certain,
from the 1st of June following, for a certain monthly wage.
The defendant, however, thought better of the matter, and
before the 1st of June told the plaintiff he would not require



DISCHARGE OF CONTRACT BY BREACH. 113

his services. The plaintiff promptly issued a writ, and claimed
damages for breach of contract. Ihe defendant in the action
contended that no action could be brought till the date of
performance.

Held, after the refusal by the defendant to employ, the
plaintiff was entitled to bring an action immediately, and
was not bound to wait until after the day agreed upon for
the commencement of performance.



A Person with whom a Contract has been Broken may fulfil the
same himself, but must not do it Unreasonably, Oppressively
or Extravagantly.

LE BLANCHE v. LONDON & NOETH WESTERN
RAILWAY CO. [1876]

(45 L. J. C. P. 521 ; 1 C. P. D. 286 ; 34 L. T. 667 ; 24 W. R. 808.)

The plaintiff, being desirous of going from Liverpool to
Scarborough, took a through ticket of the 'defendant company.
To get to Scarborough it was necessary to change at Leeds and
York on to the lines of two other companies. The defendants'
train having arrived late at Leeds, the plaintiff missed his con-
nection both there and at York, and instead of arriving at
Scarborough at 7.30, as he would have done if he had been able
to make his connections, he found himself at York at 7 o'clock,
and no train till 8 o'clock. He promptly ordered a special,
which took him to Scarborough by 8.30, about an hour and
a half before the time he would have arrived if he had caught
the 8 o'clock train. He then brought an action to recover 12/.,
the cost of the special train, from the railway company.

Held, although the defendants had been guilty of a breach
of contract, the plaintiff was not entitled to recover the cost
of ihe special, for though a person with whom a contract

j. i



114 CONTRACT.

has been broken has a right to fulfil that contract for him-
self as nearly as man be, he must not do this unreasonably
or oppressively as regards the other party, or extravagantly ',
and therefore tl<e plaintiff was not justified in taking a
special to save himself the discomfort and ennui of an hour's
detention at York.



CONDITIONS AND WARRANTIES.



There is an Implied Condition on the Letting of a Furnished House
that it is fit for Habitation.

SMITH v. MASKABLE. [1843]
(12 L. J. Ex. 223 ; 1 1 M. & W. 5 ; Car. & M. 479.)

The defendant entered upon the occupation of a furnished house
under an agreement to pay a weekly rental of eight guineas for
five weeks, and at the expiration of one week left the house on
account of its being infested with bugs.

Held, in an action for use and occupation to recover
the balance of five weeks 1 rental, that the nuisance, was a
defence to the action, for a man who lets a ready-furnishi d
house does so on an implied condition or obligation that it

is in a fit state far occupation.



A Warranty must be made during the Negotiations for Sale.

HOPKINS r. TANQUERAY. [1854]
(23 L. J. C. P. 162; 15 C. B. 130; 2 0. L. K, 842 ; 18 Jur. 608.)

The defendant, whose horse was at an auction stable for sale,
seeing the plaintiff on the day before the sale examining the



CONDITIONS AND WARRANTIES. 115

horse, told him bond fide that the horse was " sound in every
respect." Next day the horse was put up for sale by auction
without a warranty, and the plaintiff, induced by what the
defendant had told him, became the purchaser.

Held, in an action for a breach of warranty, that there
was no evidence to go to the jury that the horse was sold
with a warranty ; the representation by the defendant not
Jorming part of the contract of sale, not having been made
during any negotiations for the sale.

What passed in the stable undoubtedly amounted to a
representation that the horse was sound ; and if it had
been made pending a contract between the parties for the
sale of the horse it would have amounted to a warranty.



Railway Companies are not Insurers of Passengers, but must take
" due care," and are liable for Negligence.

KEADHEAD v. MIDLAND EAILWAY CO. [1869]
(38 L. J.Q. B. 169; L.E. 4 Q. B. 379; 16 L. T. 485 ; 9 B. & S. 519 ;

17 W. E. 737.)

The plaintiff was being carried as a passenger for hire on
the defendant railway, when the carriage in which he was
travelling left the metals and was upset. The accident was
caused by the breaking of the tyre of one of the wheels of the
carriage, owing to a latent defect in the tyre, which was not
attributable to any fault on the part of the manufacturer, and
could not be detected previously to the breaking.

Held, that the company were not liable in respect of
such injury , there being no contract of warranty and in-
surance in the case of passengers that the carriage should
be in all respects perfect for its purpose, that is to say,
free from all defects likely to cause peril.

i2



116 CONTRACT.

There is no contract, either of general or limited war-
ranty and insurance, entered into by the carrier of pas-
sengers : the contract of such a carrier and the obligation
undertaken by him is to take due care {including in that
term the use of skill and foresight) to carry the passengers
safe! j). The absence of such care — in other ivords, negli-
gence — would alone be a breach of this contract and render
the carrier liable to damages.



Railway Companies are Insurers of Personal Baggage, whether to
be carried in Guard's Van or with the Passenger, provided
the Passenger is not guilty of Contributory Negligence.

THE GREAT WESTERN RAILWAY COMPANY v. BUNCH.

[1888]

(57 L. J. Q. B. 361 ; 13 A. C. 31 ; 17 Q. B. D. 215 ; 58 L. T. 128 ;

36 W. R. 785.)

Mrs. Bunch, being about to travel with her husband by a
Great Western Railway train, arrived at the station on Christ-
mas Eve forty minutes before the train, which was not yet
drawn up at the platform, was timed to arrive. A porter
received the luggage and labelled two pieces. Mrs. Bunch told
the porter that she wished the third piece, a bag, to be put into
the carriage with her, and asked him if it would be safe to
leave it with him. He replied that it would be quite safe, and
that he would guard the luggage and put it into the train. She
then went to meet her husband at the ticket office, where he took
the ticket. The plaintiffs returned together in ten minutes, and
found that the labelled articles were in the van but that the bag
was missing.

Held, the luggage lairing been handed t<> the porter
a reasonable time before the departure <f tin' train, the
company was liable.



CONDITIONS AND WARRANTIES. 117

A railway company, in accepting a passenger s luggage
for carriage in a passenger train, and in the carriage
with the passenger himself, enters into a contract as
common carrier, modified only to the extent that if loss
happens by reason of want of care of the passenger him-
self who has taken within his own immediate control the
goods which are lost, their contract as insurers does not
apply to loss occasioned by the passenger s own default.



A Railway Company is not liable where Luggage is handed to a
Porter for Safe Custody and not for Transit.

WELCH v. LONDON AND NOETH WESTEEN EAILWAY
COMPANY. [1886]

(34 W. E. 166.)

The plaintiff, on the 10th of November, 1884, went to the
defendants' station at Liverpool, and finding that the train by
which he had intended to travel had gone, he said to the
porter to whom he had entrusted his luggage : "I missed the
train. I find it has gone. Now, John, look after the luggage
until the next train goes to Euston." He theu went to the
billiard room of the hotel, and an hour later returned to find
that his luggage had disappeared. He therefore brought this
action to recover damages for its loss.

Held, by the Divisional Court, the defendants were not
liable, and that this case icas clearly distinguishable from
Great Western Railway Co. v. Bunch, for in this ease
the luggage was not delivered to the porter on behalf of
the company for transit, but was delivered to him to be
looked after by him on his own responsibility.



118 CONTRACT.

A. L. Smith, J. : " It makes all the difference for l lie
purpose j or which the chattels are handed to the porter.
If I give my luggage to a porter while 1 go to <jet my
ticket, I should say lie takes it for the purpose of transit,
but if I deliver it to him while 1 go to play at billiards,
then it is otherwise."



Goods Sold by Description which the Buyer has no Opportunity of
Inspecting are subject to an Implied Warranty that they are
Merchantable under the Description Sold, and the maxim
" caveat emptor " does not apply.

JONES v. JUST. [1868]
(37 L. J. Q. B. 89 ; L. E. 3 Q. B. 197 ; 18 L. T. 208 ; 16 W. R. 643.)

The plaintiffs, merchants at Liverpool, through their brokers,
contracted to buy from the defendant, a merchant in London,
certain bales of Manilla hemp, which were expected to arrive
per ship from Singapoie. On ariival the bales were examined,
and a number of them were found to be in such a state as to
afford strong evidence that they had at some time, probably
from a shipwreck when on the voyage from Manilla to Singa-
pore, been wetted through with salt water, and had afterwards
been unpacked, dried and repacked in the bales which were
afterwards shipped at Singapore. An action was brought by
the plaintiffs to recover the loss in value on account of this
damage.

Held, that in every contract to supply goods of a
specif ed description which tin buyer has no opportunity
to inspect, the goods must not only in fad answer the
specific description, but must also be saleable or mer-
chantable under that description; so that in thus case thi



CONDITIONS AND WARRANTIES. I 19

question for the jury was, whether this hemp delivend at
Singapore was merchantable or saleable in the market
under the description of " Manilla hemp" and the jury
having found that it was not, the plaintiff tons entitled to
damcnjrs.

Held also, that the plaintiffs not having had an oppor-
tunity of exercising any judgment of their own, the maxim
of caveat emptor could not apply.



Deviation of a Ship is justifiable to save Life, but not to Salve.

SCAEAMANGA v. STAMP. [1880]

(49 L. J. C. P. 674 ; 5 C. P. D. 295 ; 42 L. T. 840 ; 28 W. E. 691 ;
4 Asp. M. C. 295—0. A.)

The plaintiffs chartered the defendants' steamship Olytnpias
to carry a cargo of wheat from Cronstadt to Gibraltar, which
having started on her voyage, when nine days out, sighted
another steamship, the Avion, in distress, and on nearing her
found that the machinery of the Avion had broken down,
and that the vessel was in a helpless condition. The weather
was fine and the sea smooth, and there would have been no
difficulty in taking off and so saving the crew r ; but the master
of the Arion, being desirous of saving his ship as well as the
lives of the crew, agreed to pay 1,000/. to the master of the
Olympian to tow the ship into the Texel.

Having taken the Avion in tow, the Olympias, when off the
Dutch coast, on the way to the Texel, went ashore, and, with
her cargo, was ultimately lost.

The plaintiffs brought this action claiming the value of the
goods, alleging that the goods were not lost by perils of the sea
so as to be within the exception of the charter-party, but were
lost through the wrongful deviation of the defendants' vessel.



120 CONTRACT.

Field, a deviation made by a vessel for the yyuipase of
saving property is not justifiable, and the shipowner is
liable to the charterer for loss or damage occasioned
thereby. A deviation made solely for the purpose of
saving life is justifiable.



DA31AGES FOR BREACH OF CONTRACT.



Damages for Breach of Contract represent the Actual Loss
Sustained so far as it was in contemplation of the Parties at
time of Contract. Special Circumstances affecting 1 Loss must
be known to both Parties.

HADLEY v. BAXENDALE. [1854]
(23 L. J. Ex. 179 ; 9 Ex. 341 ; 2 C. L. E. 517 ; 18 Jur. 358 ;

2 W. E. 302.)
The plaintiff had employed a carrier to convey a broken shaft
belonging to his mill to an engineer. The carrier was guilty
of an unreasonable delay in delivering it, and the engineer was
thereby prevented from at once making a new shaft from the
model of the old one, and the mill remained idle for a con-
siderable time.

Held, in an action against the carrier for the delay,
that the jury in estimating the damages were not justified
in taking into their consideration the loss oj j/rofit.s by
reason of the stoppage of the mill That the damages
recoverable for a breach of contract are such as mag
fairly and reasonably be considered as arising naturally,
i.e., according to tin- usual course of tilings, from the
breach of the contract itself or such as may be reasonably
supposed to have been in the contemplation of both parties
at the time they made the contract as the probable result
of the breach of it.



Damages for breach of contract. 121

Where a contract is made under special circumstances
which are communicated by one of the contracting parties
to the other, the damages resulting from a breich of the
contract, which the parties would reasonably be supposed
to have contemplated, are the amount of injury estimated
in money which would ordinarily follow from such a
breach of contract under the special circumstances. But
if the special circumstances are unknown to the party
breaking the contract, he, at the most, can only be held to
hare contemplated the amount of injury which would
arise generally, and in the great multitude of cases, not
affected by any special circumstances, from such a breach
of contract.



A Sum of Money payable on Breach of Contract is deemed Liqui-
dated Damages if it is a genuine Estimate of probable Loss
caused by Breach, otherwise it will be deemed a Penalty.

PUBLIC WOEKS COMMISSIONEE v. HILLS. [1906]

(75 L. J. P. C. 69; (1906) A. C. 368; 94 L. T. 833;
22 T. L. E. 589— P. C.)

In this action, the question arose as to whether a sum of
money, which the contract provided was to be paid in certain
events, was to be deemed liquidated damages, in which case
the plaintiff would be entitled to the whole amount, or was in
the nature of a penalty, when the amount provided for in the
contract would not be regarded, but the actual damage suffered
would have to be estimated.

Held, under a stipulation in a contract the criterion
whether a sum, described either as penalty or liquidated
damages, is truly liquidated damages, and as such not to be
interfered with by a Court, or a penalty which covers but



122 CONTRACT.

does not assess the damage, lies in the ascertainment whether
the sum stipulated for can or cannot be regarded as " a
genuine pre-estimate of the creditor's probable or possible
interest in the due performance of the principal obligation"
or is a sum liable /<> fluctuation in amount according to
circumstances.

A Sum payable on the happening of one Event only is generally
looked upon as Liquidated Damages.

LAW v. THE LOCAL BOARD OF REDDITCH. [1892]

(61 L. J. Q. B. 172 ; (1892) 1 Q. B. 127 ; 66 L. T. 76 ;

56 J. P. 292— C. A.)

A contract made with an urban authority for the construction
of certain drainage works, provided that the works were to be
completed in all respects and cleared of all implements, tackle,
&c. on or before the 80th April, 1889; and that in default of
such completion the contractor should forfeit and pay to the
urban authority the sum of K>0/., and 61. for every seven days
during which the works should be incomplete after the said
time, and that the sums so forfeited might be recovered by the
urban authority from the contractor as and for liquidated
damages.

The works remained incomplete for twelve weeks after the
30th April, 1889, and the defendants claimed the sum of 160/.,
being 100/. and 61. per week for the twelve weeks, on the ground
that they might be treated as liquidated damages and not as
penalties.

Held, that as there was only one event — the non-comple-
tion of the work* by the specified date, upon the happening
of which the sums of 100/. and 51. per week were to
become payable — those sums must be considered as liquidated
damages and not as penalties, and the plaintiff was entitled
to judgment.



IMPOSSIBILITY OF PERFORMANCE. 123

Where it has been agreed by the parties to a contract
that in case of one of them doing or omitting to do sortie
one thing, that party shall pay a specific sum to the other
as damages, the sum so agreed to be paid is, as a general
rule, to be considered by the Court to be a sum in the nature
of liquidated damages, and not in the nature of a penalty.
There is one recognized exception to that rule, which is that
if a large sum of money is to be payable in respect of the



Online LibraryPhilip Bertie PetridesStudent's cases : illustrative of all branches of the law → online text (page 11 of 29)