A B having entered into a contract with a landed proprietor for the purchase of eleven lots of timber growing on his property, on terms that forbade him cutting or removing more than four lots at one time, on 3rd May 1918 sold one of the lots delivered on rail to C D without disclosing to him the above limitation. At the time that the contract of sale to C D was entered into, cutting operations were going on on four lots. The contract with C D provided that the purchase price of pounds 10,000 should be paid to the extent of pounds 5000 forthwith and pounds 5000 when timber to that value had been railed. The purchaser paid the first instalment of pounds 5000, and the seller was proceeding to fell the trees on the lot sold when he was stopped by the proprietor on the ground that he was thus exceeding the four lots to which simultaneous operations were restricted. The purchaser pressed for fulfilment of his contract or return of the instalment, and the seller while endeavouring to obtain the landlord’s consent alleged various reasons for not carrying out the contract, such as the state of the roads and unsettled claims which he had against the purchaser. The seller obtained the proprietor’s consent in October 1918, but no deliveries were made before April 1919 under various excuses, when the purchaser commenced an action of damages against him for breach of contract. Held ( rev. judgment of the Second Division, diss. Viscount Finlay) that the purchaser was entitled to treat the seller as having repudiated the contract in respect that he had followed a course of conduct which would as its natural result put it out of his power to fulfil his contract when the time came for doing so.
Viscount Haldane, Viscount Finlay, Lord Dunedin, and Lord Shaw
[1922] UKHL 17, 60 SLR 17
Bailii
Scotland
Contract
Updated: 10 January 2022; Ref: scu.632807