By articles of agreement between the Lords Commissioners of the Admiralty, on behalf of the crown, and C., in consideration of the payments therein stipulated, C. covenanted that he would during the continuance of the contract convey to the satisfaction of the commissioners the mails which should from time to time by the commissioners or the Postmaster-General be required to be conveyed between Dover and Calais, and Dover and Ostend, by means of a sufficient number (not less than six) of vessels of certain tonnage, and properly officered, manned, and equipped. That one or more of such vessels should be at all times ready to convey the Bombay, India, and other distant mails, or for other special service for the government between Dover and Calais, without any charge beyond the subsidy thereinafter mentioned, and also for the like special service between Dover and Ostend, for which the commissioners were to pay 58 pounds. each voyage. In addition, it was to be lawful for the commissioners to require the contractor to provide vessels to convey distinguished persons not exceeding twelve voyages from port to port in any one year free of all charge beyond the said subsidy; but if more than twelve in a year, the voyages in excess to be paid for at the rate of 23 pounds. each. That one of such vessels should leave Dover and Calais respectively every week-day, and one leave Dover and Ostend respectively every alternate week-day. Penalties were then provided for the observance of the contract by the contractor. The commissioners in consideration of the premises, and of the contractor at all times strictly performing the covenants and agreements on his part, agreed, on behalf of the crown, that they would pay him by bills at seven days a sum out of moneys to be provided by parliament, after the rate of 18,000 pounds per annum, by quarterly payments; the first payment to be three months from the commencement of the service. The contract was to commence from the date and continue for eleven years. The contractor was to be at liberty to employ the vessels in other services, subject to the penalties provided, if he was unable also to perform the services contracted for.
Held: that there was in the above agreement only a covenant by the Commissioners, on behalf of the crown, that, in consideration of the contractor performing his part of the contract, by having vessels always ready for the service, the crown would pay him if parliament provided the funds; and that there was no implied covenant on the part of the commissioners to employ the contractor ; and that a petition of right, founded on the agreement, and alleging that the commissioners had refused to employ the contractor to carry the mails, and did not nor would permit him to perform the agreement, and prevented him from carrying the mails, and claiming damages, could not he maintained. On the argument of cross demurrers, the late practice in the Court of Queen’s Bench will at present be adhered to; and the plaintiff, and not the party first demurring, has a right to begin.
(1865-1866) LR 1 QB 173, [1865] UKLawRpKQB 27
Commonlii
England and Wales
Updated: 27 September 2021; Ref: scu.653039 br>