Goddard LJ said: ‘He, therefore, was unwilling to carry out the duty assigned by the contract to him. The defendants either were of the same opinion or adopted his view; for this purpose, it matters not which. Consequently, they neither required him to certify in accordance with the contract, nor did they appoint anyone else in his place’ and ‘Equally, it seems to me, [the Employers] must appoint someone who is willing to perform the duty assigned to him by the contract. If he will not or cannot perform that duty, they must appoint someone who will. Here it is clear that Dr Telfer refused to perform the simple duty of certifying whether the work was properly done….because he took the view, and I will assume honestly, that the contract enabled and, indeed, required him to do something else . . He, therefore, was unwilling to carry out the duty assigned by the contract to him. The defendants either were of the same opinion or adopted his view; for this purpose, it matters not which. Consequently, they neither required him to certify in accordance with the contract, nor did they appoint anyone else in his place. It is no answer to them to say that they had misinterpreted the contract. It is often the case that a person is guilty of a breach of contract because he has placed a wrong construction on it, but that affords him no defence.’
Judges:
Goddard LJ
Citations:
[1943] 76 Ll LR 113
Jurisdiction:
England and Wales
Cited by:
Appeal from – Panamena Europea Navigacion v Frederick Leyland and Co HL 1947
The parties had entered into an agreement providing for arbitration of any disputes. Lord Thankerton said: ‘By entering into the contract the respondents agreed that the appellant’s surveyor should discharge both these duties and therefore they . .
Cited – AMEC Mining v Scottish Coal Company SCS 6-Aug-2003
The pursuers contracted to remove coal by opencast mining from the defender’s land. They said the contract assumed the removal first of substantial peat depositys from the surface by a third party. They had to do that themselves at substantial cost. . .
Lists of cited by and citing cases may be incomplete.
Contract
Updated: 28 May 2022; Ref: scu.185451
