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Contract - From: 1849 To: 1899

This page lists 397 cases, and was prepared on 20 May 2019.

 
Ripley v McLure (1849) 4 Exch 345
1849


Contract
The parties entered into an executory contract to sell and purchase a cargo of tea upon its arrival. The cargo arrived, but before it did so, the defendant had discharged the plaintiff from performance, and refused to perform the agreement. Held: The plaintiff had not been bound to provide a response to the defendant's purported discharge of the contract. The defendant's refusal before the cargo arrived to complete the contract was not itself a breach, but was evidence of a continuing intention to break the contract, and operated as a waiver of the condition precedent and that in turn put the defendant in breach.

 
Moore v Garwood (1849) 4 Ex 681
1849
CEC
Patteson J
Contract
The plaintiff sued to recover a deposit which he had paid in 1845, at the height of the great Victorian railway boom, for shares in a proposed railway company. The scheme was afterwards abandoned and the company never incorporated. Whether he was entitled to his money back depended partly upon the terms of the prospectus and some letters and partly upon what had been said at a meeting of the promoters and subscribers when it first appeared that the formation of the company was likely to be delayed. The court directed the jury that: "the nature of the contract into which the parties had entered was rather a question of fact than of law, because it did not consist of one distinct contract between the parties, but of a series of acts and things done, from which the jury were to determine what was the real intention and meaning of the parties when they entered into the mutual relation in which they stood." Held: . The main point in the case was: "whether it was a question of law for the judge, - whether he ought to have taken upon himself to say what the contract was; or, on the other hand, whether that was a question for the jury. Now there was a good deal of evidence, independent of these letters and of other documents. There was the conduct of the parties, which was relied upon, and which appeared from the statements of the witnesses in the progress of the trial. We therefore think that, looking at all the circumstances of the case, the Lord Chief Baron could hardly have put the case in better terms to the jury. . . . If the contract had depended solely upon the written documents, the [contrary] argument might have prevailed; but as it does not, we think the question was properly submitted to the jury."
1 Citers


 
Forth v Simpson [1849] EngR 641; (1849) 13 QB 680; (1849) 116 ER 1423
23 May 1849


Contract
A racehorse trainer cannot exercise a lien over a racehorse for his fees if the contract reserves to the owner (expressly or by implication) the right to decide the places at which and the jockeys by whom it is to be raced.
1 Citers

[ Commonlii ]
 
Beckham v Drake [1849] EngR 843; (1849) 2 HLC 579; (1849) 2 HL Cas 579; (1849) 9 ER 1213
11 Jul 1849
HL
Lord Mansfield, Erle CJ
Contract, Insolvency
An action was brought on a contract for hiring and service, where the plaintiff was to serve for seven years, and the defendant to pay weekly wages during that time; and the breach was a dismissal during the seven years. The plaintiff, after this breach, and before the commencement of the action, became bankrupt; and the question was, whether this cause of action passed from the plaintiff to his assignees. Held: Lord Mansfield said: "The general principle is, that all rights of the bankrupt which can be exercised beneficially for the creditors do so pass, and the right to recover damages may pass though they are unliquidated . . This principle is subject to exception. The right of action does not pass where the damages are to be estimated by immediate reference to pain felt by the bankrupt in respect of his body, mind or character, and without immediate reference to his rights of property. Thus it has been laid down that the assignees cannot sue for breach of promise of marriage, for criminal conversation, seduction, defamation, battery, injury to the person by negligence, as by not carrying safely, not curing, not saving from imprisonment by process of law …"
1 Cites

1 Citers

[ Commonlii ]

 
 Irvine v Kirkpatrick; HL 1850 - (1850) 7 Bell App (HL) 186
 
Sleigh v Sleigh (1850) 5 Exch 345
1850


Contract
The court considered a claim for an indemnity under a bill of exchange which was said to be unenforceable.
1 Citers


 
Boreham v Bignall [1850] EngR 384; (1850) 8 Hare 131; (1850) 68 ER 302
12 Mar 1850


Contract
A bequest of annuity to the testator's nephew for life, or until his bankruptcy or insolvency, and after his decease, bankruptcy or insolvency to be paid to his wife, for the personal support of herself, her husband and his children, during the life of his nephew and his wife, and the survivor of them ; and in case they, or either of them, should attempt to alienate the annuity, the trustees to be empowered to apply it towards the support of their children. The first wife of the nephew, to whom he was married before the date of the will, survived the testator, and the gift of the annuity was held not to extend to the widow of the nephew who was his second wife.
[ Commonlii ]

 
 Pettman v Keble; 4-Jun-1850 - [1850] EngR 620; (1850) 9 CB 701; (1850) 137 ER 1067

 
 Millward v Littlewood; 6-Nov-1850 - [1850] EngR 814; (1850) 5 Exch 775; (1850) 155 ER 339
 
Ellen v Topp [1851] EngR 323; (1851) 6 Exch 424; (1851) 155 ER 609
15 Apr 1851

Pollock, C.B
Contract
A boy was placed as apprentice with the plaintiff then an auctioneer, appraiser and corn-factor. The plaintiff abandoned the trade of corn-factor, and the boy left. The plaintiff claimed against his father. Held: The action for the apprentice's desertion failed. The abandonment of the trade of corn-master was a good answer to the claim on the apprenticeship deed.
Pollock CB spoke of the attempted construction of a contract ex post facto, saying: "It is remarkable that according to this rule the construction of the instrument may be varied by matter ex post facto"
1 Citers

[ Commonlii ]
 
Boden v French [1851] EngR 420; (1851) 10 CB 886; (1851) 138 ER 351
5 May 1851


Contract

[ Commonlii ]
 
Southall v Rigg; Forman v Wright [1851] EngR 490; (1851) 11 CB 481; (1851) 138 ER 560
13 May 1851


Contract
To a count on a promissory note, the defendant pleaded that the note was given without consideration, and then went on to allege that it was obtained from him by the plaintiff upon a representation that he the defendant was indebted to the plaintiff in the sum mentioned in the note, whereas in truth and in fact no such sum of money, or any part thereof, was ever due from the defendant to the plaintiff. Held. sufficient, without alleging that the representation was made fraudulently. To a count upon a promissory note, the defendant pleaded ‘( that he was indebted to one F. in the sum of 101. 14s. l0d., and no more; that the plaintiff fraudulently, deceitfully and falsely represented to the defendant that there was due from the defendant to F. the sum of 32l. 6s. I0d., and then demanded of, and, by means of such representation as aforesaid, induced the defendant to deliver to him the note in the count mentioned.” It was proved, and found by the jury, that the note was obtained by a false representation by the plaintiff that 32l. 6s. 10d. was due, but that such representation had been made without fraud. Held, that the evidence sustained the plea; for, that the words ‘‘ fraudulently and deceitfully” might be rejected, and that the plea was in substance a plea of partial failure of consideration.
[ Commonlii ]
 
Parkin v Thorold [1851] EngR 542; (1851) 2 Sim NS 1; (1851) 61 ER 239
2 Jun 1851


Equity, Land, Contract
A purchase was to be completed on the 25th October. Before that, day arrived the purchaser, at the vendor's request, extended the time to the 5th of November. The title, however was not completed on that day. Held, that the purchaser was at liberty to abandon the contract.
1 Citers

[ Commonlii ]
 
Wilkinson v Fowkes [1851] EngR 741; (1851) 9 Hare 193; (1851) 68 ER 471
26 Jul 1851


Contract

[ Commonlii ]
 
Reynell v Sprye (1852) 1 De G M and G 660
1852


Contract

1 Citers



 
 Lumley v Wagner; 1852 - (1852) 1 De G M and G 604; [1852] EWHC Ch J96
 
Hoghton v Hoghton (1852) 15 Beav 278; [1852] EngR 446; (1852) 15 Beav 278; (1852) 51 ER 545
16 Apr 1852
CA
Romilly MR
Contract, Equity, Litigation Practice
When a person has made a large voluntary disposition the burden is thrown on the party benefitting to show that the disposition was made fairly and honestly and in full understanding of the nature and consequences of the transaction. Romilly MR discussed the "sacred" nature of "without prejudice" negotiation and that he would disregard "admissions made solely for the purpose of compromise".
1 Citers

[ Commonlii ]

 
 Parkin v Thorold; CA 1-May-1852 - (1852) 22 LJ Ch 170; [1852] EngR 535; (1852) 16 Beav 59; (1852) 51 ER 698

 
 Bluck v Gompertz; 7-Jun-1852 - [1852] EngR 689; (1853) 7 Exch 862; (1852) 155 ER 1199
 
Couturier And Others v Hastie And Others [1852] EngR 774; (1853) 8 Exch 40; (1852) 155 ER 1250
26 Jun 1852


Transport, Contract
Action for recovery of cargo lost at sea.
1 Citers

[ Commonlii ]

 
 Crowhurst And Mary His Wife v Laverack; 20-Nov-1852 - [1852] EngR 1029; (1852) 8 Exch 208; (1852) 155 ER 1322
 
White v Bluett (1853) 23 LJ Ex 36; (1853) LTOS 123; (1853) 2 WR 75; (1853) 2 CLR 301
1853

Pollock CB
Contract
The son complained at his father's disposition of his property. He had given his father a promissory note. His father said that he would release the son from the promissiory note if the son ceased to complain. Held: The promissory note could be enforced. The son's promise was too vague, and gave no consideration, since he had only refrained from doing what he had no right to do.

 
Fisher v Bridges [1853] 3 EL and BL 643
1853


Contract

1 Citers


 
Henry Stephenson Johnson And Isabella, His Wife v Samuel Lucas [1853] EngR 12; (1853) 1 El and Bl 659; (1853) 118 ER 584
1853


Contract
A declaration by husband and wife on an account stated rnust shew that the accounting was concerning matters in which the wife had an lnterest. So held, on demurrer to a declaration posterior to the coming into effect of stat. 15 and 16 Vict, c. 76.
[ Commonlii ]
 
Robertson v Wait (1853) 8 Ex 299
1853


Contract, Agency

1 Citers



 
 Lumley v Gye; 1853 - (1853) 2 E and B 216; [1853] EngR 15; (1853) 2 El and Bl 216; (1853) 118 ER 749; [1853] EWHC QB J73
 
Gerhard v Bates [1853] 2 EB 476
1853

Lord Campbell
Contract
The promoter of companies had promised the bearers of share warrants that they should have dividends for so many years, and the promise as alleged was held not to shew any consideration. Held: Any promise had been made to the original bearer and not to the plaintiff, and that as the plaintiff was not suing in the name of the original bearer there was no contract with him, and there was no consideration shewn for the promise to him.
1 Citers


 
Robertson And Another v Wait And Another [1853] EngR 77; (1853) 8 Exch 299; (1853) 155 ER 1360
13 Jan 1853


Transport, Contract

[ Commonlii ]
 
Pulsford v Richards [1853] EngR 417; (1853) 17 Beav 87; (1853) 51 ER 965
18 Apr 1853


Contract, Torts - Other
Where a party, by misrepresentation, draws another into a contract, such party may be compelled to make good the representation, if that be possible, but if it be impossible, the person deceived may avoid the contract. The same principle applies, though the party at the time believed the statement to be true, if in the clue discharge of his duty, he ought to have then known otherwise.
Third parties, who by false representations induce others to enter into contracts, are estopped from afterwards falsifying their statement, and, if necessary, may be compelled to make them good. But the false statement of one, not a party to the agreement entered into on the faith of it, is not a ground for avoiding it.
Misrepresentations may be either by a suppression of the truth or an assertion of what is false ; but to be the ground for avoiding the contract, the representation must be one “dans locum contractiui", or such that it is reasonable to infer that in its absence the party deceived would not have entered into the contract.
[ Commonlii ]

 
 Hochster v De La Tour; QBD 25-Jun-1853 - [1853] EWHC QB J29; [1853] 2 E and B 678; [1853] EngR 760; (1853) 2 El and Bl 678; (1853) 118 ER 922; [1853] EWHC QB J72
 
Hastie And Others v Couturier And Others [1853] EngR 764; (1853) 9 Exch 102; (1853) 156 ER 43
25 Jun 1853


Transport, Contract

1 Cites

1 Citers

[ Commonlii ]
 
Regina v John Eagleton (No 1) [1854] EngR 34; (1854) Dears 376; (1854) 169 ER 766
1854


Contract, Crime

1 Cites

1 Citers

[ Commonlii ]
 
Regina v John Eagleton (No 2) [1854] EngR 35; (1854-55) Dears 515; (1854) 169 ER 826
1854


Contract, Crime
The defendant contracted in writing with the guardians of a parish to supply and deliver for a certain term to the out-door poor, at such times as the guardians should direct, loaves of bread of three and a half pounds weight each. The guardians were, during thesaid term, to pay the defendant after certain rates and prices for the bread so supplied, and of which a bill of particulars should have been sent. The contract contained a provision that in case the defendant broke the terms of his contract in any of the ways therein named, one of which was by a deficiency in the weight stated and charged for in the said bill of particulars, the guardians might employ other persons to supply the bread, and charge the defendant with the costs of such supply above the price contracted for, and might retain any moneys due to te defendant under the contract at the time of such breach towards such costs, or the damages which the board might sustain, and might also put in suit against the defendant a bond which he then executed, and which was conditioned for the due performance of is contract. The indictment contained ten counts, the first seven of which were in substance the same, and charged the defendant with a common law misdemeanour , in supplyimg and delivering, as such contracor, loaves of bread to different poor persons which loaves were deficient in weight, intending to injure and defraud such poor persons and to deprive them of proper and sufficient food and sustenance, and to endanger their healths and constitutions, and to cheat and defraud the said guardians.
1 Citers

[ Commonlii ]
 
Victors v Davies [1854] 12 MW 758
1854


Contract

1 Citers



 
 Hadley v Baxendale; Exc 23-Feb-1854 - [1854] EWHC Exch J70; [1854] EngR 296; (1854) 9 Exch 341; (1854) 156 ER 145
 
Wood v Midgley [1854] EngR 313 (B); (1854) 5 De G M and G 41
28 Feb 1854
HL

Land, Contract
A defence founded on the Statute of Frauds may be taken by demurrer.
A demurrer, for that, it appears on the bill that the agreement therein alleged to have been entered into, is not in writing signed by the Defendant, is not a speaking demurrer.
A memorandum that A. had paid to B. £60 as a deposit in part payment of £1000 for the purchase of a house, the terms to be expressed in an agreement to be signed as soon as prepared. Held, not a sufficient agreement in writing.
An allegation that the defendant had approved of a draft agreement, but had asked that, in order to save him the trouble of writing till it was copied, he might be allowed to call and sign the fair copy in the morning, which he promise but failed to do: Held, not a sufficient allegations of fraud to preclude him from setting up the Statute of Frauds as a defence.
[ Commonlii ]
 
Mowatt v Lord Londesborough [1854] EngR 656; (1854) 4 El and Bl 1; (1854) 119 ER 1
19 Jun 1854


Contract
Assumpsit for money had and received, and interest
[ Commonlii ]
 
Thomson v James (1855) 18 D 1
1855

Lord President McNeill, Lord Deas
Scotland, Contract
Lord President McNeill discussed the postal rule in the law of contract: "By putting the letter of acceptance into the post office, the offeree did just what he had been invited to do, and all that it was incumbent on him or possible for him to do by way of acceptance, by the mode of communication which he was authorised, if not invited by the offeror to adopt."
1 Citers


 
Simpson v Eggington (1855) 10 Exch 845; [1855] EngR 220; (1855) 10 Exch 845; (1855) 156 ER 683
9 Feb 1855

Parke B
Contract, Landlord and Tenant, Company, Contract
It is a good answer to a plea of set-off, that the amount has heen paid by a person professing to act as agent for and on account of the plaintiff, though without his authority, and that the latter ratified the act at the time of the trial. The treasurer of a corporation paid their clerk (the defendant) the amount of his year's salary, both parties believing at the time that the treasurer had the authority of the corporation to make such payment, but the treasurer had no such authority, and the corporation afterwards repudiated the payment and dismissed the defendant from their service. In an action against the deferidatit for the recovery of certain monies paid to him on account of the corporation -- Held, that the corporation was entitled, at the trial, to ratify the act of their treasurer, and, consequently, that the defendant could not set off the amount of his salary as due to him from the corporation.
The court found no evidence that as between himself and the landlord, or between himself and the plaintiff, the defendant had acted or purported to act or regarded himself as acting as agent for the plaintiff when making payments of what the tenant claimed had been his rent. Held: Parke B said: "The general rule as to payment or satisfaction by a third person, not himself liable as a co-contractor . . appears to be, that it is not sufficient to discharge a debtor unless it is made by the third person, as agent, for and on account of the debtor and with his prior authority or subsequent ratification."
1 Citers

[ Commonlii ]
 
Simpson v Eggington (1855) 10 Exch 845; [1855] EngR 220; (1855) 10 Exch 845; (1855) 156 ER 683
9 Feb 1855

Parke B
Contract, Landlord and Tenant, Company, Contract
It is a good answer to a plea of set-off, that the amount has heen paid by a person professing to act as agent for and on account of the plaintiff, though without his authority, and that the latter ratified the act at the time of the trial. The treasurer of a corporation paid their clerk (the defendant) the amount of his year's salary, both parties believing at the time that the treasurer had the authority of the corporation to make such payment, but the treasurer had no such authority, and the corporation afterwards repudiated the payment and dismissed the defendant from their service. In an action against the deferidatit for the recovery of certain monies paid to him on account of the corporation -- Held, that the corporation was entitled, at the trial, to ratify the act of their treasurer, and, consequently, that the defendant could not set off the amount of his salary as due to him from the corporation.
The court found no evidence that as between himself and the landlord, or between himself and the plaintiff, the defendant had acted or purported to act or regarded himself as acting as agent for the plaintiff when making payments of what the tenant claimed had been his rent. Held: Parke B said: "The general rule as to payment or satisfaction by a third person, not himself liable as a co-contractor . . appears to be, that it is not sufficient to discharge a debtor unless it is made by the third person, as agent, for and on account of the debtor and with his prior authority or subsequent ratification."
1 Citers

[ Commonlii ]
 
Dobie v Larkan [1855] EngR 266; (1855) 10 Exch 776; (1855) 156 ER 654
23 Feb 1855


Contract
To an action on a bill of exchange for 501., drawn by M. upon and accepted by the defendant, and by M. indorsed to the plaintiff, the defendant pleaded first, that the bill was drawn by M. and accepted by the defendant, and indorsed by M. to the plaintiff, and the plaintiff first held tbe same for the special purpose of getting the same discounted, and to hand the proceeds thereof to the defendant ; that the plaintiff, acting in fraudulent collusion with M, got the bill discounted and, contrary to and in violation of the special purpose for which the bill was drawn, accepted and indorsed, and for which the plaintiff first held the same, handed to the defendant 171. and no more, being part of the proceeds thereof; and that there never was any other consideration for the acceptance by him of the bill, or for the plaintiff being the holder thereof. Secondly, as to 171, a tender of that amount. Held, on motion for judgment non obstante veredicto, that the first plea, though informal, was good in substance, since it confessed a prima facie title in the plaintiff by indorsement, and avoided it by shewing that he was the holder of the bill for a special purpose only, and without consideration - Also that the second plea was had, for tbe acceptor of a bill of exchange cannot plead a tender after the day of payrnent. A plea of tender ought not to be joined with a plea containing a denial of the right of action for the same sum.
[ Commonlii ]
 
William Lewis v John Henry Bright and Charles Francis Browne [1855] EngR 398; (1855) 4 El and Bl 917; (1855) 119 ER 341
27 Apr 1855


Contract
Where a clergyman engages in trade, contrary to the provisions of stat1 and 2 Vict c 106 s29, and makes a contract in the course of such trade, such contract may, under the proviso in sect 31, be enforced either against or by the clergyman, though both parties contract with knowledge of the facts constituting the illegality.
[ Commonlii ]
 
John Henry Fitch v William Jones [1855] EngR 528; (1855) 5 El and Bl 238; (1855) 119 ER 470
2 Jun 1855


Contract, Banking
Action on a promissory note at two months after date by indorsee against maker.
[ Commonlii ]
 
George Avery v Samuel Wilson Bowden (1855) 5 EandB 714; [1855] EngR 842; (1855) 5 El and Bl 714; (1855) 119 ER 647
26 Nov 1855


Contract
The parties agreed a charterparty involving the ship arriving at a port and taking 45 days to unload and load up before leaving. The defendant ordered the boat to leave early and without the cargo. He pleaded that, war having been declared between Britain and Russia, it would have been unlawful to load up. This would have counted as trading with the enemy. Held: No cause of action for breach of contract had arisen before the performance of the contract would have become unlawful. A frustrating event (the Crimean War) could excuse further performance of a contract even if the relevant party was already in breach.
1 Citers

[ Commonlii ]
 
Louis Castrique v Guiseppe Buttigieg [1855] UKPC 26
27 Nov 1855
PC

Contract, Banking
The liability of an indorser to his immediate indorsee arises out of a contract between them, and this contract in no instance consists exclusively in the writing popularly called an indorsement, vhich is necessary to the existence of the contract in question but arises out of the written indorsement itself ;
[ Bailii ]
 
Avery v Bowden [1856] EngR 3; (1856) 6 El and Bl 962; (1856) 119 ER 1122
1856


Contract

1 Cites

[ Commonlii ]
 
Avery v Bowden (2) [1856] EngR 2 (B); (1856) 6 El and Bl 972
1856


Contract

1 Cites

[ Commonlii ]
 
Greyv Ellison (1856) 1 Giff 438; 65 ER 990
1856

Stuart V-C
Landlord and Tenant, Contract
A policy of insurance was created in which one department of an insurance company purported to effect a contract with another department of the same company. Although different individuals were parties to the contract, they all contracted as agents for the company with the intention that it alone should be able to sue and be sued on the policy. Held: The policy was a nullity. It infringed the two party rule. A company, even though it might operate different kinds of business from separate premises, cannot contract with itself. It is merely whimsical to grant a lease of one’s own property to oneself. Two agents of the same principal cannot contract with each other.
1 Citers


 
Palmer v Goren (1856) 25 LJ Ch 841
1856


Landlord and Tenant, Contract
The court considered events where a vendor of leasehold land had failed to maintain the insurance pending completion, and in breach of the lease: "It is, in fact, the duty of the vendor so to act that nothing done by him prior to the completion of the contract shall constitute a forfeiture of the lease. The policy of insurance not having in this case been kept up till the completion of the contract, so rendering the property liable to a forfeiture, that was not done by the vendors that which they should have done, and therefore, I think, the purchaser ought to be discharged from his contract."
1 Citers


 
Tarrabochia v Hickie (1856) 1 Hurlstone and Norman 183
1856

Pollock CB, Bramwell B
Contract
The parties had agreed that the ship would sail on a particular day, but there was no express term to state the importance of any breach. Held: Bramwell B said: "No doubt it is competent for the parties, if they think fit, to declare in express terms that any matter shall be a condition precedent, but when they have not so expressed themselves, it is necessary for those who construe the instrument to see whether they intend to do it. Since, however, they could have done it, those who construe the instrument should be chary in doing for them that which they might, but have not done for themselves."
1 Citers


 
In re An Act For Enabling The Newcastle And Darlington Junction Railway Company To Purchase The Brandling Junction Railway And In The Matter Of The York, Newcastle And Berwick Railway Act, 1847 etc [1856] EngR 326; (1856) 3 Sm and G 307; (1856) 65 ER 671
7 Mar 1856


Contract, Land
One of the conditions at an attempted sale by auction under a decree provided that the purchase should be completed on a day named, and that, if from any cause whatever the purchase-money should not then be paid, interest should be paid from that date. The purchase was by private contract, subject to the conditions of sale, and also subject to the purchase being approved by the Court. The purchase-money was a fund in Court, and after a long delay the conveyancing counsel approved of the title for the purchasers. Held. Neither party being to blame for the delay, the purchasers could not be relieved from their obligation to pay interest.
[ Commonlii ]
 
Couturier and others v Hastie and Another [1856] UKHL J3; 10 ER 1065; [1856] EngR 713; (1856) 5 HLC 673; (1856) 10 ER 1065
26 Jun 1856
HL

Contract, Transport
Action for recovery of value of cargo lost at sea.
1 Cites

[ Bailii ] - [ Commonlii ]
 
Lake v Brutton [1856] EngR 763 (B); (1856) 8 De G M and G 440
9 Jul 1856


Land, Contract
Where a mortgage was taken in part in respect of a sum for which the mortgagee represented himself to the mortgagor as being liable as a surety for the latter, and such representation was erroneous, to the knowledge of the mortgagee : Held, that to that extent the security could not be supported.
A debtor deposited a policy with his creditor as a security. Afterwards the debtor; with a surety who did not know of the deposit, covenantal with the creditor for payment of the debt, and contemporaneously the debtor executed a deed of counter security to the surety, neither deed referring to the deposit of the policy. Subsequently the debtor assigned the policy to the creditor as a security. Held, that the surety, on paying the debt, was entitled to the policy.
[ Commonlii ]

 
 Hamlin v Great Northern Railway Co; 19-Nov-1856 - (1856) 1 H and N 408; [1856] EngR 918; (1856) 156 ER 1261
 
Smith v Neale (1857) 2 CB(NS) 67; [1857] LJCP 143; [1857] LTOS 93; [1857] 3 Jur NS 516; [1857] 5 WR 563; [1857] 140 ER 337
1857


Contract
The defendant wrote to the plaintiff requesting the assignment of a patent to him to hold as trustee for an institution who would pay him a share of the profits on exploitation of the patent, and if the profits fell below a figure, the patent would be re-assigned. The plaintff agreed orally. Held: The Statute did not apply, since everything which would need to be done could be done within the year. If a signed contract had been necessary, a contract by the party charged had been established, since the parol acceptance of the written and siged offer was sufficient.
Statute of Frauds 1677 4
1 Citers


 
Jesse Brandon, Samuel Holbert Ellis and Haim Guedalla v Samuel Scott and Charles Robinson [1857] EngR 159; (1857) 7 El and Bl 234; (1857) 119 ER 1234
23 Jan 1857


Contract

[ Commonlii ]
 
Shee v French, French v French [1857] EngR 352; (1857) 3 Drew 716; (1857) 61 ER 1076
17 Mar 1857


Contract

[ Commonlii ]
 
French v Styring [1857] EngR 509; (1857) 2 CB NS 357; (1857) 140 ER 455
8 May 1857


Contract
A & B were joint owners of a race horse, and had agreed that A should keep and train and have the general management of the horse, conveying him to and entering him for the different races ; that 35s. per week should be allowed for his keep ; and that the expenses of keep, &e. should be borne jointly by A. and B., and the horse’s winnings be equally divided between them. A. having paid all the expenses of the keep and management of the horse, and there being no winnings to divide. Held, that, even assuming that this agreement constituted a partnership between A. and B. (which the court, dissentiente Cockburn, CJ, thought it did not), A. was entitled to recover from B. a moiety of the disbursements made by him on account of the horse, as being in the nature of an advance of capital for B.
1 Citers

[ Commonlii ]

 
 Benwell v Inns; 18-Jul-1857 - [1857] EngR 778; (1857) 24 Beav 307; (1857) 53 ER 376
 
Boulton v Jones (1857) 2 H and N 564; [1857] EngR 935; (1857) 157 ER 232
25 Nov 1857
CEC
Pollock CB Martin B
Contract
The defendant sent a written order for goods to a shop owned by Brocklehurst and which was addressed to him by name. Unknown to the defendant, Brocklehurst had earlier that day sold and transferred his business to Boulton. Boulton fulfilled the order and delivered the goods to the defendant without notifying him that he had taken over the business. The defendant accepted the goods and consumed them in the belief that they had been supplied by Brocklehurst. When he received Boulton's invoice he refused to pay it, claiming that he had intended to deal with Brocklehurst personally, since he had dealt with him previously and had a set-off on which he had intended to rely. Held: The defendant was not liable for the price. There was no contract.
Pollock CB said: "Now the rule of law is clear, that if you propose to make a contract with A, then B cannot substitute himself for A without your consent and to your disadvantage, securing to himself all the benefit of the contract."
Martin B said: "Where the facts prove that the defendant never meant to contract with A alone, B can never force a contract upon him; he has dealt with A, and a contract with no one else can be set up against him." Bramwell B: "I do not lay it down that because a contract was made in one person's name another person cannot sue upon it, except in cases of agency. But when any one makes a contract in which the personality, so to speak, of the particular party contracted with is important, for any reason, whether because it is to write a book or paint a picture, or do any work of personal skill, or whether because there is a set-off due from that party, no one else is at liberty to step in and maintain that he is the party contracted with, that he has written the book or painted the picture, or supplied the goods; and that he is entitled to sue, although, had the party really contracted with sued, the defendant would have had the benefit of his personal skill, or of a set-off due from him." Channell B: "The plaintiff is clearly not in a situation to sustain this action, for there was no contract between himself and the defendant. The case is not one of principal and agent; it was a contract made with B, who had transactions with the defendant and owed him money, and upon which A seeks to sue."
1 Citers

[ Commonlii ]

 
 Shadwell v Shadwell And Another; 1858 - [1858] EngR 147; (1858) 6 CB NS 679; (1858) 144 ER 618
 
Harmer v Cornelius (1858) 5 CB (NS) 236
1858
CexC
Willes J
Employment, Contract
An artist was to be employed as a "panorama and scene-painter" for a period of at least a month. Held. The employer was entitled to terminate the contract after two days when the artist proved to be incompetent. Willes J said: "When a skilled labourer, artizan, or artist is employed, there is on his part an implied warranty that he is of skill reasonably competent to the task he undertakes, – Spondes peritiam artis. Thus, if an apothecary, a watch-maker or an attorney be employed for reward, they each impliedly undertake to possess and exercise reasonable skill in their several arts. The public profession of an art is a representation and undertaking to all the world that the professor possesses the requisite ability and skill."
1 Citers


 
Midland GW Railway of Ireland v Johnson (1858) 6 HLR 798
1858


Contract
Rectification is not available where the mistake is one of law as to the legal effect of particular terms, rather than a mistake of fact.
1 Citers


 
Clarke v Dickson (1858) EL BL and EL 148
1858

Crompton J, Erle J
Equity, Contract
The plaintiff brought his claim for money had and received by the purchaser of shares in a company. He said that he had been induced to purchase the shares by a fraudulent misrepresentation but he had failed in his action at common law. Held: Erle J: "the plaintiff cannot avoid the contract under which he took the shares, because he cannot restore them in the same state as when he took them." Crompton J: "when once it is settled that a contract induced by fraud is not void, but voidable at the option of the party defrauded, it seems to me to follow that, when that party exercises his option to rescind the contract, he must be in a state to rescind it; that is, he must be in such a situation as to be able to put the parties into their original state before the contract . . . The plaintiff must rescind in toto or not at all; he cannot both keep the shares and recover the whole price. That is founded on the plainest principles of justice. If he cannot return the article he must keep it, and sue for his real damage in an action on the deceit."
1 Citers


 
John Scott The Younger v Littledale And Others [1858] EngR 226; (1858) 8 El and Bl 815; (1858) 120 ER 304
19 Jan 1858


Contract

[ Commonlii ]
 
Booker v Seddon [1858] EngR 611 (A); (1858) 1 F and F 196
28 Apr 1858


Contract
On an agreement that the defendant, on the completion of the purchase of certain property, should pay to the plaintiff a sum of money, and that the plaintiff should lend upon it a certain sum (not expressing to whom), evidence was admitted to show that the loan was to be to a third party, and that the agreement was made on his behatf.)
[ Commonlii ]
 
William Pain Beecham and Richard Smith v Henry Tilden Smith [1858] EngR 742; (1858) El Bl and El 442; (1858) 120 ER 574
28 May 1858


Contract
Action by A. and B., payees of a joint and several promissory note, against C., one of the makers. Plea, that the said note was made (setting it out) by B., out of the plaintiffs, the defendant, and another : and that the defendant, in case the plaintiffa were to recover from him in that action the amount of the said note, would be entitled to call on B. for contribution. On demurrer, held a bad plea, as being no answer to the action upon the several contract by C. - Semble, per Lord Campbetl C.J., that, even if the plea had beeri good, a replication, averring that the plaintiffs made the said note only as sureties for third parties, would have been a good answer.
[ Commonlii ]
 
Ockenden v Henly [1858] EngR 757; (1858) El Bl and El 485; (1858) 120 ER 590
31 May 1858


Contract, Land
Plaintiff put up for sale by auction real property, upon Conditions of sale which stipulated that the purchaser of each lot should "forthwith pay into the hands of the auctioneer deposit of 20 per cent. on the purchase money, and sign the agreement "to pay the remainder, and "that, if the purchaser of either lot shall fail to comply with these conditions, the deposit money shall be actually forfeited to the vendor, who shall be at full liberty to resell such lot either by public auction or private contract ; and any deficiency tbat may arise upon such resale, together with all expences attending the same, shall immediately after such second sale be made good by such defaulter ; and, on non-payment thereof, such amount shall be recoverable by the vendor, as and for liquidated damages." Defendant became a purchaser at the auction, but did not pay the deposit or complete the purchase. Plaintiff resold at a price below that for whiich defendant had purchased ; and the deficiency, with the expences of sale, exceeded the amount of the deposit.-Held: that plainitiff was entitled to recover from defendant the amount of the deficiency and expences only, and not, in addition to this, the amount of the deposit.--Per Curiam, Had the deposit been paid, and the bargain completed, the deposit would have gone in part payment of the purchase money : and, in the case of the non-completion of the bargain, if the deficiericy and expences had together been less than the deposit, the purchaser would have been entitled to the whole deposit, but nothing more.
[ Commonlii ]
 
Mercer v Irving [1858] EngR 787; (1858) El Bl and El 563; (1858) 120 ER 619
4 Jun 1858


Contract

[ Commonlii ]
 
Holliday v Morgan [1858] EngR 1066; (1858) 1 El and El 1; (1858) 120 ER 808
2 Nov 1858


Contract, Animals
A warranty of soundness, oil the sale of a horse, is broken by a malformation, existing from the birth of the horse, which, at the time of the sale, renders the horse less fit for reasonable use. - As an extraordinary convexity of the cornea of the eye, producing shortsightedness, in consequence of which the horse is liable to shy. - Such a defect in the eye is not so patent a defect that a purchaser with express warranty is bound to notice it.
[ Commonlii ]
 
In The Matter Of The Complaint Of Joseph Baxendale And Others, Carrying On Business Under The Firm Of Pickford and Co, Common Carries v The Great Western Railway Company [1858] EngR 1101; (1858) 5 CB NS 309; (1858) 144 ER 123
9 Nov 1858


Commercial, Contract

[ Commonlii ]
 
Warlow v Harrison [1858] EngR 1193; (1858) 1 El and El 295; (1858) 120 ER 920
25 Nov 1858
QBD
Lord Campbell
Contract
Three following horses were advertised for sale at auction being the property of a gentleman and sold without reserve. The auctioneer had knocked one down as sold for 61 guineas, but the bid was from the owner. The plaintiff sued the auctioneer, (not the vendor). He had been the highest independent bidder at 60 guineas. He said that the auctioneer was his agent acting to complete the contract on his behalf. The auctioneer now appealed against a finding against him. Held: The auctioneer's appeal succeeded. There was no contract because the vendor had revoked the auctioneer's authority to accept the plaintiff's bid, and therefore no question of the impact of Section 17 of the Statute of Frauds arose.
1 Cites

1 Citers

[ Commonlii ]

 
 Scholefield v Temper; 1859 - (1859) 4 De G and J 429; (1859) Johns 155; [1859] EngR 773

 
 Smith v Kay; HL 1859 - [1859] EngR 38; (1859) 7 HLC 750; (1859) 11 ER 299
 
De Mattos v Gibson (1859) 4 De G and J 276
1859


Contract
The purchaser of an interest in property may not use it so as to breach contractual rights of which he was aware when he acquired the interest.
1 Cites

1 Citers


 
Betts v Burch [1859] EngR 585; (1859) 4 H and N 506; (1859) 157 ER 938
11 May 1859

Martin B, Bramwell B
Contract
Martin B regretted that he was "bound by the cases" and prevented from holding that "parties are at liberty to enter into any bargain they please" so that "if they have made an improvident bargain they must take the consequences". Bramwell B did not share the concern.
1 Citers

[ Commonlii ]
 
Fowler v Fowler [1859] EngR 598; (1859) 4 De G and J 250; (1859) 45 ER 97
12 May 1859

Lord Chelmsford LC
Contract, Equity
Lord Chelmsford LC said that a party seeking rectification must establish clearly "that the alleged intention to which he desires" (the instrument) "to be made conformable continued concurrently in the minds of all parties down to the time of its execution, and also must be able to shew exactly and precisely the form to which the deed ought to be brought".
[ Commonlii ]
 
Frederick Levy And Abraham Levy v Henry Green [1859] EngR 617; (1859) 1 El and El 969; (1859) 120 ER 1174
17 May 1859


Contract
Action for goods sold and delivered.
[ Commonlii ]
 
Francis v Hawkesley [1859] EngR 646; (1859) 1 El and El 1052; (1859) 120 ER 1204
30 May 1859


Limitation, Contract

[ Commonlii ]
 
Liversidge v Broadbent [1859] EngR 674; (1859) 4 H and N 603; (1859) 157 ER 978
3 Jun 1859


Contract

[ Commonlii ]
 
Falcke v Gray [1859] EngR 710; (1859) 4 Drew 651; (1859) 62 ER 250
13 Jun 1859


Contract, Equity
The Court will enforce specific performance of a contract to purchase chattels, if damages will not be an adequate compensation.
But where the contract, although not actually fraudulent, was one in which the parties were not on an equal footing, the Plaintiff knowing, and the purchaser being ignorant, of the value of the thing sold, and the price appeared to be inadequate, the Court refused relief.
[ Commonlii ]
 
Cuckson v Stones [1859] EngR 924; (1859) 1 El and El 247; (1859) 120 ER 902
1 Nov 1859


Employment, Contract

1 Citers

[ Commonlii ]
 
Dingle v Hare [1859] EngR 977; (1859) 7 CB NS 145; (1859) 144 ER 770
15 Nov 1859


Contract, Damages
In an action for a breach of warranty on the sale of goods which the buyer has sold again. Held. The proper measure of damages was the difference between the real market value at the time of the sale and the contract price. Quaere, whether the buyer might not have been entitled to recover a sum fairly and reasonably paid by him as compensation to a third person to whom he had upon the faith of the defendant’s warranty sold a portion of the goods?
[ Commonlii ]
 
Warlow v Harrison [1859] EngR 1046; (1859) 1 El and El 309; (1859) 120 ER 925
26 Nov 1859
CExC
Baron Martin, Willes, Bramwell JJ
Contract, Agency
The plaintiff had bid for a pony at the defendant's auction, but had been sold by the auctioneer defendant, accepting the higher bid of the owner himself. There was no reserve. He appealed against rejection of his claim against the auctioneer. Held: The appeal failed on the existing pleadings, but said that the plaintiff might succeed on a retrial after the court allowed an amendment.
Baron Martin held there to be a contract with the auctioneer that the sale was to be without reserve: "Upon the facts of the case, it seems to us that the plaintiff is entitled to recover. In a sale by auction there are three parties, viz. the owner of the property to be sold, the auctioneer, and the portion of the public who attend to bid, which of course includes the highest bidder. In this, as in most cases of sales by auction, the owner's name was not disclosed: he was a concealed principal. The name of the auctioneers, of whom the defendant was one, alone was published; and the sale was announced by them to be `without reserve.' This, according to all the cases both at law and equity, means that neither the vendor nor any person in his behalf shall bid at the auction, and that the property shall be sold to the highest bidder, whether the sum bid be equivalent to the real value or not; Thornett v. Haines (a). We cannot distinguish the case of an auctioneer putting up property for sale upon such a condition from the case of the loser of property offering a reward, or that of a railway company publishing a time table stating the times when, and the places to which, the trains run. It has been decided that the person giving the information advertised for, or a passenger taking a ticket, may sue as upon a contract with him; Denton v. Great Northern Railway Company . . Upon the same principle, it seems to us that the highest bona fide bidder at an auction may sue the auctioneer as upon a contract that the sale shall be without reserve. We think the auctioneer who puts the property up for sale upon such a condition pledges himself that the sale shall be without reserve; or, in other words, contracts that it shall be so; and that this contract is made with the highest bona fide bidder; and in case of breach of it, that he has a right of action against the auctioneer. The case is not at all affected by the l7th Section of the Statute of Frauds, which relates only to direct sales, and not to contracts relating to or connected with them" . . And "We entertain no doubt that the owner may, at any time before the contract is legally complete, interfere and revoke the auctioneer's authority: but he does so at his peril; and, if the auctioneer has contracted any liability in consequence of his employment and the subsequent revocation or conduct of the owner, he is entitled to be indemnified."
1 Cites

1 Citers

[ Commonlii ]
 
Chittenden v Day [1860] EngR 34 (B); (1860) 2 F and F 77
1860


Contract, Torts - Other
A memorandum stamped as a receipt having been rejected, because requiring a stamp as an agreement, an agreement for the hire of goods of which the value was mentioned only by reference to the receipt, was held not to require a stamp, the value of the hire not appearing to exceed the amount of 20L, and the rejected receipt allowed to be looked at, with reference to the real date of the transaction, and in order to show fraud.
Trover by the plaintiff its assignee of one Grainger, an insolvent.
Pleas. Not gullty and not possessed.
[ Commonlii ]

 
 Shadwell v Shadwell and Another; CCP 11-Jan-1860 - [1860] EWHC CP J88; (1860) 9 CBNS 159; [1860] 142 ER 62
 
G F Fischer v Kamala Naiker Zemindar of Ammanaiknoor [1860] UKPC 7; (1860) 2 LT 94; (1860) 8 Moo Ind App 170
7 Mar 1860
PC

Contract
Madras
[ Bailii ] - [ Bailii ]
 
Greenough v McClellano [1860] EngR 878; (1860) 2 El and El 429; (1860) 121 ER 162
15 Jun 1860


Contract

[ Commonlii ]
 
Ex Parte William Ackroyd, John Foster And Edward Townend In The Matter Of An Arrangement By Deed Between William Cheesebrough And Samuel Laycock Tee, Carrying On Business Under The Style Or Firm Of William Cheesebrough &Amp; Son,etc [1860] EngR 1132; (1860) 3 De G F and J 726; (1860) 45 ER 1060
14 Nov 1860


Contract

[ Commonlii ]
 
J Aris v J Orchard [1860] EngR 1196; (1860) 6 H and N 160; (1860) 158 ER 66
24 Nov 1860


Contract, Jurisdiction, Litigation Practice

[ Commonlii ]
 
Walters v Morgan (1861) 3 De G F and J 718
1861


Contract
A person may make a representation by conduct if he fails to correct an impression given by his conduct.
1 Citers


 
Johnston v Robertson (1861) 23 D 646
1861

Lord Justice Clerk Inglis
Scotland, Contract
The parties agreed for the pursuer to erect a poor-house, to be completed and the keys were to be delivered by a specified day, under a penalty of £5 per week of delay in completing it. Held. This was not a penalty but a provision for pactional damages. Since the pursuer's claim for the price was itself illiquid, there could be no objection to the defender seeking to establish his countervailing illiquid claim for the appropriate pactional damages in the event that the jury held that the pursuer had not completed the works in time. Depending on the finding of the jury as to whether the work had been done properly, and as to any sum due as liquidated damages for delay, the pursuer's claim for the price would be reduced or, conceivably, extinguished.
Lord Justice Clerk Inglis said: "Every action on a mutual contract implies that the pursuer either has performed, or is willing to perform, his part of the contract; and it is, therefore, always open to the defender to say that under the contract a right arises also to him to demand performance of the contract before the pursuer can insist in his action."
1 Citers


 
Price v The Hong Kong Tea Company [1861] EngR 73; (1861) 2 F and F 466; (1861) 175 ER 1144
1861


Contract
On strong evidence of general usage, an accountant held that the jury might find that he was entitled to charge at the same rate for hs clerks as for himself, even during such portion of the time as he was not himself personally engaged in the work.
[ Commonlii ]
 
Fox v Nott (1861) 6 HandN 630
1861


Transport, Contract

Bills of Lading Act 1855
1 Citers


 
Scotson and others v Pegg [1861] EWHC Exch J2; (1861) 158 ER 121
28 Jan 1861
Exc
Martin B, Wilde B
Contract

[ Bailii ]
 
Westhead And Others v Sproson And Piper [1861] EngR 544; (1861) 6 H and N 728; (1861) 158 ER 301
1 May 1861


Land, Contract

1 Citers

[ Commonlii ]
 
Reid And Another v Dreaper [1861] EngR 586; (1861) 6 H and N 813; (1861) 158 ER 335
8 May 1861


Contract

[ Commonlii ]
 
Surtees v Lister [1861] EngR 638; (1861) 7 H and N 1; (1861) 158 ER 367
29 May 1861


Contract
A declaration stated that B and the defendant, joint owners of a horse and mare, agreed that the defendant should sell them, and pay one moiety of the proceeds to the plaintiff as the agent of B , who was abroad that the defendant sold the horse to C. for 600l, and the mare for 300l. and did not receive the price of the horse, but took from the purchaser of the mare a promissory note for 300l. which the defendant indorsed and delivered to the plaintiff as the agent of B, and the amount of which was received by the plaintiff as such agent that the defendant afterwards requested the plaintiff, upon his own responsibility, to pay the defendant one moiety of the 300l in the plaintiff’s hands as such agent, and the plaintiff paid the defendant 50l. That the defendant again requested the plaintiff, on his own responsibility, to pay the defendant 100l, the residue of the moiety of the 300l, which the plaintiff was willing to do provided the defendant, in consideration of the said sum of 50l. so paid and the further sum of 100l when paid, would undertake either to deliver to the plaintiff a bill of exchange for 233l 3s (being B.’s moiety of the proceeds of the sale of the horse, less the forfeits in respect of the same), drawn by the defendant upon and accepted by C at two months date, or pay the plaintiff 233l 3s in cash within two weeks , and thereupon the defendarit wrote and delivered to the plaintiff the following undertaking. "In consideration of your having paid me the sum of 150l. On account of my share of the mare, I hereby undertake to deliver to you a bill for 233l 3s. drawn by me upon and to be accepted by C at two months, or the above sum in cash within two weeks from this date.” On demurrer : Held, that the declaration disclosed a sufficient consideration for the defendant’s promise.
[ Commonlii ]
 
Tweddle v Atkinson, Executor of Guy, Deceased (1861) 1 B and S 393; 121 ER 762; [1861] EWHC QB J7; [1861] EngR 690; (1861) 121 ER 762; [1861] EWHC QB J57
7 Jun 1861
QBD
Wightman J, Crompton J
Contract
An agreement was made by the fathers of a bride and groom to pay the groom a sum of money. When the bride's father failed to pay, the groom sued. Held: The claim failed. Wightman J said that no stranger to the consideration could take advantage of a contract though made for his benefit.
Crompton J said that consideration must move from the promisee. The doctrine of privity means, and means only, that a person cannot acquire rights, or be subjected to liabilities, arising under a contract to which he is not a party.
1 Citers

[ Bailii ] - [ Commonlii ] - [ Bailii ]
 
M'Cance v The London And North Western Railway Company [1861] EngR 967; (1861) 7 H and N 477; (1861) 158 ER 559
19 Nov 1861


Contract, Estoppel
In an action against a railway Company, the first count of the declaration alleged that the plaintiff employed the defendants to provide trucks for the carriage of the plaintiff's horses, for hire to be paid by the plaintiff, in consideration whereof the defendants promised the plaintiff that the trucks should he reasonably fit and proper for the carriage of such horses Breach: that the defendants did not provide fit and proper trucks, whereby the plaritiff's horses were injured. Second count that the defendants having received certain horses of the plaintiff to be carried by railway, in consequence of the defective state of the truck and the negligerice and want of care of the defendants, the plaintiffs horses weie injured. Plea: payment of 25l. into Court Replication damages ultra. At the trial, it appeared that when the plaintiff delivered the horses to the defendants, he signed at their request a declaration that the value of the horses (did not exceed 10l. per horse, and that, on consideration of the rate charged for their conveyance, he thereby agreed that the same were to be carried entirely at the ownet's risk. In the course of the journey the horses were injured in consequence of the defective state of the truck in which they were carried. The horses were worth more than 10l each, and if taken at, their real value the damage sustained by the plaintiff was 65l, but if valued at 10l each the 25l. paid into Court covered the plaintiff's claim. A verdict having been entered for the plantiff for 40l. on motion to enter the verdict for the defendants, the Court being at liberty to draw inferences of fact Held that the plaintiff having made a wilfully false statement as to the value of the horses for the purpose of inducing, and having thereby induced, the defendants to enter into the contract, was not at liberty to shew their real value, in order to obtain compensation above the amount paid into Court -- Semble, that thedeclaration of the value of the horses formed no part of the contract, and that even if it were it did not render the contract a conditional contract --Also, that, the stipulation that the horses should he carried entirely at the owner's risk was not unreasonable and void within the meaning of the 17 & 18 Vict. C 31.
1 Citers

[ Commonlii ]
 
Smurthwaite v Wilkins (1862) 11 CB(ns) 842
1862

Erle CJ
Transport, Contract
The endorser of a bill of lading is not liable after he has endorsed over the bill of lading to another who is liable; the shipper remains liable as an original party to the contract. "Looking at the whole statute it seems to me that the obvious meaning is that the assignee who receives the cargo shall have all the rights and bear all the liabilities of a contracting party; but that if he passes on the bill of lading by indorsement to another, he passes on all the rights and liabilities which the bill of lading carries with it." Rejecting the argument that the endorser having passed on all his rights to the endorsee should retain all his liabilities in respect of the goods: "Such a construction might be very convenient for the shipowner but it would be clearly repugnant to one's notions of justice." and "The contention is that the consignee or assignee shall always remain liable like the consignor although he has parted with all interest and property in the goods by assigning the bill of lading to a third party before the arrival of the goods. The consequences which this would lead to are so monstrous so manifestly unjust that I should pause before I consented to adopt this construction of the act of parliament."
Bills of Lading Act 1855
1 Citers


 
Scott v Dawson (1862) 24 D 440
1862


Contract

1 Citers


 
Herschfeld v Brown [1862] EngR 69 (B); (1862) 3 F and F 219
1862


Contract
A person receiving a bill to get it discounted, has no authority to deal with it otherwise than for discount, and a deposit of it along with other bills, with a bill broker as a secunty for advances, the broker having notice that it was delivered for discount, is beyond the scope of the authority, and passes no property.
[ Commonlii ]
 
Ashpitel (Executor of James Peto) v Bryan [1862] EngR 3 (B); (1862) 3 F and F 183
1862

Mellor J
Contract, Estoppel
Defendant having accepted a bill drawn by procuration in the name of a person deceased, and handed it, indorsed in that name to a third party, held liable to that party ; and held no defence that the consideration was goods, assets of the deceased, in the possession of the endorsee, and that the bill was on an understanding that the indorsee should take out a adminiistration to his estate in the absence of evidence of an express agreement to that effect.
1 Citers

[ Commonlii ]
 
Price v Mouat [1862] EngR 136; (1862) 11 CB NS 508; (1862) 142 ER 895
1862

Erle CJ, Williams, Byles and Keating JJ
Employment, Contract
The plaintiff, who was known to be acting in the capacity of a "lace-buyer" was engaged by the defendant, a lace-dealer, under the following memorandum: "M agrees to engage P. for the term of three years from Monday the 15th of August, 1859, at the yearly salary of 500l payable monthly. P. to give the whole of his services, and to be advised and guided by M if necessary" In an action by P. against M. for a wrongful dismissal pending the term on the alleged ground of disobedience of lawful orders Held: that evidence was admissible to show the capacity in which the plaintiff was engaged, viz. as "lace-buyer" ; and that it was properly left to the jury to say whether or not the orders which he was alleged to have disobeyed were such as a person in that position was bound to obey.
The general rule is that a contract by which a person is employed in a specific character is to be construed as obliging him to render, not indeed all service that may be thought reasonable, but such service only as properly appertains to that character.
1 Cites

[ Commonlii ]
 
Curling v Austin [1862] EngR 299; (1862) 2 Dr and Sm 129; (1862) 62 ER 570
18 Jan 1862


Contract, Land

[ Commonlii ]
 
Cordingley v Cheesebrough [1862] EngR 426; (1862) 3 Giff 496; (1862) 66 ER 504
11 Feb 1862


Land, Contract
A lot sold by auction, described in the particulars of sale as a mansion-house and pleasure-grounds containing an area of 7683 square feet or thereabouts, contained in fact but 4350 square feet ; but one of the conditions being "that the admeasurements are presumed to be correct, but if any error be discovered therein no allowance shall be made or required either way." On a bill by the purchaser seeking specific performance with compensation the Court decreed specific performance without compensation, and ordered the Plaintiff to pay the costs of the suit.
[ Commonlii ]
 
Stallard v The Great Western Railway Company [1862] EngR 579; (1862) 2 B and S 419; (1862) 121 ER 1129
16 Apr 1862


Transport, Consumer, Contract

[ Commonlii ]
 
Clark v Malpas (1862) 4 De GF and J 401; [1862] EngR 604; (1862) 31 Beav 80; (1862) 54 ER 1067
25 Apr 1862


Contract
The court found a contract to be an unconscionable bargain where a poor and illiterate man was induced to enter into a transaction of an unusual nature, without proper independent advice, and in great haste; and the resulting transaction has been, not just hard or improvident, but overreaching and oppressive.
1 Citers

[ Commonlii ]
 
Cordingley v Cheeseborough [1862] EngR 605; (1862) 4 De G F and J 379; (1862) 45 ER 1230
28 Apr 1862


Land, Contract

[ Commonlii ]
 
The London And Westminster Loan And Discount Company v Chase And Another [1862] EngR 727; (1862) 12 CB NS 730; (1862) 142 ER 1329
30 May 1862


Contract

[ Commonlii ]
 
Clark v Malpas [1862] EngR 876; (1862) 4 De G F and J 401; (1862) 45 ER 1238
2 Jul 1862


Contract
A purchase from an illiterate poor man, who was ill at the time, set aside, the price being inadequate, the vendor having no professorial advice, and the transaction being completed in great haste and on terms unduly disadvantageous to him. The Master of the Rolls declared the conveyance void and directed it to be cancelled, but declined to direct a reconveyance: Held: on appeal, that the proper form of decree in such cases is not to declare the deed void, but to direct it to be set aside and order a reconveyance.
1 Cites

1 Citers

[ Commonlii ]
 
Felthouse v Bindley [1862] EWHC QB J35; [1862] EWHC CP J35; [1862] EngR 931; (1862) 11 CB NS 869; (1862) 142 ER 1037
8 Jul 1862
QBD
Willes J, Byles J, Keating J
Torts - Other, Contract
(Court of Common Pleas) An offeror cannot erect a contract between himself and the offeree by the device of stating that unless he hears from the offeree he will consider the offeree bound. He cannot assert that he will regard silence as acceptance: "If I hear no more I shall consider the horse mine" was not effective to create a contract.
[ Bailii ] - [ Bailii ] - [ Commonlii ]

 
 Henry Wulff Trigge And Alfred Trigge v Flavien Lavallee; PC 5-Dec-1862 - [1862] EngR 1147; (1862) 15 Moo PC 270; (1862) 15 ER 497
 
Laver v Fielder [1862] EngR 1179; (1862) 32 Beav 1; (1862) 55 ER 1
18 Dec 1862


Contract

[ Commonlii ]
 
Swift v Swift [1863] 3 I Eq R 267
1863
PC
Lord Plunket LC
Contract
A claim was made for sepcific performance of a contract for the payment of an annuity of £40.00 per quarter. Held: Specific performance was ordered. Lord Plunket LC: " It is said she has a complete remedy at Law for the breach of this contract, and that, therefore, this Court should not interfere. Now, the remedy at Law could only be obtained in one of two ways, either by at once recovering damages for all the breaches that might occur during the joint lives of herself and the defendant, or by bringing four actions in each year, and recovering in each the amount of a quarterly payment of the annuity. Those are the two modes of redress open to the plaintiff at Law. And I am called on to refuse relief here on the ground that such remedies are equally beneficial and effectual for the plaintiff as that which this Court could afford. To refuse relief on such a ground would not, in my opinion, be a rational administration of justice. I do not see that there is any authority for refusing relief, and certainly there is no foundation in reason for doing so." As to the case of Adderley: " Applying this to the present case, leaving the plaintiff to proceed at Law and to get damages at once for all the breaches that might occur during the joint lives of her and the defendant, would, in effect, be altering the entire nature of the contract that she entered into: it would be compelling her to accept a certain sum, a sum to be ascertained by the conjecture of a jury as to what was the value of the annuity. This would be most unreasonable and unjust : her contract was for the periodical payment of certain sums during an uncertain period ; she was entitled to a certain sum of money, and she agreed to give up that for an annuity for her own and the defendant's lives, and to insist on her now accepting a certain sum of money in the shape of damages for it, would be in effect to make her convert into money, what she, having in money, exchanged for an annuity. As to her resorting four times every year to a Court of Law for each quarterly payment of this annuity, it is a manifest absurdity to call that a beneficial or effectual remedy for the plaintiff ; and resting the case on that ground alone, I think I am warranted by the highest authority in granting the relief sought."
1 Cites

1 Citers


 
Hardman v Booth (1863) 1 H and C 803
1863
CEC
Pollock CB
Contract
Gandell carried on business in two capacities: as clerk to Gandell & Co, of which his father was sole proprietor. He had no authority to contract. He was in partnership with Todd, as Gandell & Todd. He purported to conclude a contract to purchase cloth from the plaintiffs, holding himself out as a member of Gandell & Co. The first instalment of the cloth was delivered to the premises of Gandell & Co and the second instalment was collected in a cart owned by Gandell & Co. Edward Gandell took the cloth to the defendant and purported to pledge it to secure a loan to Gandell & Todd. The issue was whether in these circumstances any contract was concluded between the plaintiffs and Gandell & Todd, under which the property in the cloth passed to them. He became bankrupt. The court held that no contract had been concluded.
Pollock CB said: " in this case I think it clear that there was no contract. Mr Hawkins contended that there was a contract personally with Edward Gandell, the individual with whom the conversations took place. It is true that the words were uttered by and to him, but the plaintiffs supposed that they were dealing with Gandell & Co., the packers, to whom they sent the goods; the fact being that Edward Gandell was not a member of that firm and had no authority to act as their agent. Therefore at no period of time were there two consenting minds to the same agreement."
1 Citers


 
Cook And Another v Lister [1863] EngR 154; (1863) 13 CB NS 543; (1863) 143 ER 215; (1863) 1 New Rep 280; (1863) LJCP 121; (1863) 7 LT 712
19 Jan 1863

Willes J
Banking, Contract
Three parties including the defendant had drawn bills against each other, which bills came to the plaintiff as bona fide holder for value indorsee. Various sums had been paid on account, and the plaintiff sued the defendant but giving him credit only for the sums he had paid, saying that any excess would be held for the use of the drawers. The defendant offered to pay the sums he owed and the balance outsanding under all the bills, but no more, and paid that sum into court. Held: Though the bills were not accomodation bills as such, the defendant could not be called on to pay the sum already paid again.
1 Citers

[ Commonlii ]
 
Ashpitel, Executor Of James Peto v Bryan [1863] EngR 158; (1863) 3 B and S 474; (1863) 122 ER 179
20 Jan 1863
QBD
Crompton J
Contract, Estoppel
Estoppel. Bill of exchange. Acceptor. Denial of indorsement. - Declaration by the executor of B. upon a bill of exchange purporting to be drawn by A. and accepted by the defendant, and indorsed by A. to B. Plea, that A. did not indorse the bill. It appeared that A., who was possessed of goods, being the stock in trade upon his premises, died intestate indebted to the defendant and other persons ; and it was arranged between B, and the defendant, who were two of his next of kin, that the defendant, should take possession of the goods and accept a bill of exchange for their value, purporting to be drawn and indorsed by A. The goods were accordingly delivered to the defendant, and the bill declared upon was drawn and indorsed to the plaintiff by procuration in the name of A., and accepted by the defendant. Held, that the defendant could not he allowed to set up as a defence to the action that the bill was not indorsed by A.
Cropmton J said: "If it appears . . that, by express agreement between the parties, a bill was drawn and indorsed by procuration in the name of a fictitious or dead person, and the position of one of the parties has been altered, as in the present case, by giving up certain goods to the other, that other is not at liberty afterwards to say that the fact which was assumed as the basis of the contract or arrangement, and upon which the other party acted, and thereby altered his position, was really untrue and that the bill is void."
1 Cites

1 Citers

[ Commonlii ]
 
Schroder v Ward [1863] EngR 174; (1863) 13 CB NS 410; (1863) 143 ER 162
21 Jan 1863


Contract

[ Commonlii ]
 
Stephanos Xenos And Another v Wickham, Chairman Of The Victoria Fire And Marine Insurance Company [1863] EngR 411; (1863) 14 CB NS 435; (1863) 143 ER 515
18 Apr 1863


Insurance, Contract

1 Cites

1 Citers

[ Commonlii ]
 
Taylor and Another v Caldwell and Another [1863] EWHC QB J1; (1863) 3 B and S 826; [1863] EngR 526; (1863) 122 ER 309
6 May 1863
QBD
Blackburn J
Contract
The defendants had agreed to hire a hall to give four concerts, but it burned down before they were to start. Held: Blackburn J said: "where, from the nature of the contract, it appears that the parties must from the beginning have known that it could not be fulfilled unless when the time for the fulfilment of the contract arrived some particular specified thing continued to exist, so that, when entering into the contract, they must have contemplated such continuing existence as the foundation of what was to be done; there, in the absence of any express or implied warranty that the thing shall exist, the contract is not to be construed as a positive contract, but as subject to an implied condition that the parties shall be excused in case, before breach, performance becomes impossible from the perishing of the thing without default of the contractor. " and "Although the Civil law is not of itself authority in an English Court, it affords great assistance in investigating the principles on which the law is grounded. And it seems to us that the common law authorities establish that in such a contract the same condition of the continued existence of the thing is implied by English law. "
1 Cites

1 Citers

[ Bailii ] - [ Commonlii ]
 
William Stirling The Younger v Maitland And Boyd (1864) 5 B and S 840; [1864] EngR 752; (1864) 122 ER 1043
1864

Cockburn CJ
Contract
Cockburn CJ stated: "I look on the law to be that, if a party enters into an agreement which can only take effect by the continuance of a certain existing state of circumstances, there is an implied engagement on his part that he shall do nothing of his own motion to put an end to that state of circumstances, under which alone the arrangement can be operative."
1 Citers

[ Commonlii ]
 
Alliance Bank Ltd v Broom (1864) 2 Dr and Sm 289
1864

Sir Richard Kindersley V-C
Banking, Contract
The bank demanded security for its loan in circumstances in which it would otherwise have enforced payment. It made no promise not to demand payment but: "the [bank] did in effect give, and the defendant received, the benefit of some degree of forbearance; not, indeed, for any definite time, but, at all events, some extent of forbearance."
1 Citers


 
Lee v Jones (1864) 17 CBNS 482
1864


Contract
Jones had guaranteed to Lee payment of any balance due to them by their agent Packer. Jones sought to set aside the guarantee on ground of fraud by Lee. The fraud alleged was the failure of Lee to disclose that Packer had not properly accounted to Lee for sums due in respect of previous transactions. The judge had concluded that the allegation was not enough to justify seeking the verdict of a jury and had entered judgment for Lee. Jones appealed. Held: The appeal succeeded. The facts relied on were enough to leave the issue of fraudulent concealment to the jury.
Blackburn J said: "a surety is in general a friend of the principal debtor, acting at his request, and not at that of the creditor; and, in ordinary cases, it may be assumed that the surety obtains from the principal all the information which he requires: and I think that great practical mischief would ensue if the creditor were by law required to disclose everything material known to him, as in a case of insurance. If it were so, no creditor could rely upon a contract of guarantee, unless he communicated to the proposed sureties everything relating to his dealings with the principal, to an extent which would in the ordinary course of things be so vexatious and annoying to the principal and his friends, the intended sureties, that such a rule of law would practically prohibit the obtaining of contracts of suretyship in matters of business. This is well pointed out by Lord Campbell in his judgment in Hamilton v Watson 12 Clark and Fin. 118. But I think, both on authority and on principle, that, when the creditor describes to the proposed sureties the transaction proposed to be guaranteed (as in general a creditor does), that description amounts to a representation, or at least is evidence of a representation, that there is nothing in the transaction that might not naturally be expected to take place between the parties to a transaction such as that described. And, if a representation to this effect is made to the intended surety by one who knows that there is something not naturally to be expected to take place between the parties to the transaction, and that this is unknown to the person to whom he makes the representation, and that, if it were known to him, he would not enter into the contract of suretyship, I think it is evidence of a fraudulent representation on his part."
1 Citers


 
O'Connell v Russell (1864) 3 Macph 89
1864


Scotland, Contract
An action will not be maintainable if it is, in substance, an action for recovery of money won by a wager on a horse race.
1 Citers


 
Traill v Baring (1864) 4 De G J and S318; [1864] EngR 106; (1864) 4 Giff 485; (1864) 66 ER 797; [1864] EngR 312 (B); (1864) 4 De G J and S 318
1864
CA
Turner LJ
Contract
The court considered a misrepresentation by conduct before contract. Turner LJ said: "I take it to be quite clear, that if a person makes a representation by which he induces another to take a particular course, and the circumstances are afterwards altered to the knowledge of the party making the representation, but not to the knowledge of the party to whom the representation is made, and are so altered that the alteration of the circumstances may affect the course of conduct which may be pursued by the party to whom the representation is made it is the imperative duty of the party who has made the representation to communicate to the party to whom the representation has been made the alteration of those circumstances and that this Court will not hold the party to whom the representation has been made bound unless such a communication has been made."
1 Citers

[ Commonlii ] - [ Commonlii ]
 
Keenan v Handley 1864 12 WR 1021
1864


Litigation Practice, Contract, Wills and Probate
The court considered the availability of specific performance as a remedy to a personal representative.
1 Citers


 
Middleton v Magnay (1864) 2 HandM 233
1864

Page-Wood V-C
Contract, Land
The vendor had agreed to grant a 21 year lease over certain land. In fact he only had an eight year lease in half the land. When the contract went off on account of the inability of the vendor to grant the lease contracted for the purchaser claimed a lien to secure repayment to him of expenditure on improvements undertaken by him pursuant to a term in the contract. Held: The claim succeeded to the extent of the vendor's interest. In law the contract took effect as one to assign such interest as the vendor did have.
1 Citers



 
 Inchbald v Western Neilgherry Coffee, Tea and Cinchona Plantation Co Ltd; 1864 - (1864) 17 CBNS 733
 
Stephen Parton v James Norman Crofts [1864] EngR 228; (1864) 16 CB NS 11; (1864) 143 ER 1027
4 Feb 1864


Contract

[ Commonlii ]
 
Rose v Watson (1864) 10 HLC 671; (1864) 33 LJCh 385; [1864] EngR 300; (1864) 10 HLC 672; (1864) 11 ER 1187
7 Mar 1864
HL
Lord Westbury, Lord Cranworth
Contract, Land
The buyer had paid deposits under an unconditional contract for the purchase of land induced by the misrepresentations of the seller. On discovering the falsity of the representations the buyer rescinded the contract and successfully resisted a claim for specific performance made against him. He now claimed against the vendor's successors in title to the land contracted to be sold the purchasers asserting a lien over that land to secure the repayment to them of the deposits paid under the contract. Held: The purchasers' claim succeeded. He was entitled, so far as the payments extended, to claim a lien on the estate for their amount, and to enforce that claim against the assignees of the vendor.
Lord Westbury said: "I think that your Lordships will agree with me that the case is determinable by principles which are very simple and very clear, and which have long been established in the Courts.
When the owner of an estate contracts with a purchaser for the immediate sale of it, the ownership of the estate, is in equity, transferred by that contract. Where the contract undoubtedly is an executory contract, in this sense, namely, that the ownership of the estate is transferred, subject to the payment of the purchase-money, every portion of the purchase-money paid in pursuance of that contract is a part performance and execution of the contract, and, to the extent of the purchase-money so paid, does, in equity, finally transfer to the purchaser of the ownership of a corresponding portion of the estate.
My Lords, that being so, we have only to inquire under the terms of the present contract whether the sums of money paid by the Respondent were, or were not, paid in pursuance of that contract. About that, my Lords, there is no controversy whatsoever. They were bona fide payments made by the Respondent, in conformity with the contract which required such payments to be made in part of the purchase-money; and they were accepted by the vendor as portions of that purchase-money. In conformity, therefore, with every principle, the purchaser paying the money acquired an interest in the estate by force of the contract and of that part performance of the contract, namely, the payment of that portion of the purchase-money.
Then, my Lords, if that contract fails, and the failure is not to be attributed to any misconduct or default on the part of the purchaser, the obvious question arises, is the purchaser to be deprived of the interest in the estate which he has acquired by that bona fide payment? And yet, my Lords that he ought to be so deprived is the whole controversy of the Appellants at your Bar. "
Lord Cranworth said: "There can be no doubt, I apprehend, that when a purchaser has paid his purchase-money, though he has got no conveyance, the vendor becomes a trustee for him of the legal estate, and he is, in equity, considered as the owner of the estate. When, instead of paying the whole of his purchase-money, he pays a part of it, it would seem to follow, as a necessary corollary, that, to the extent which he has paid his purchase-money, to that extent the vendor is a trustee for him; in other words, that he acquires a lien, exactly in the same way as if upon the payment of part of the purchase-money the vendor had executed a mortgage to him of the estate to that extent.
It seems to me that this is founded upon such solid and substantial justice, that if it is true that there is no decision affirming that principle, I rejoice that now, in your Lordships' House, we are able to lay down a rule that may conclusively guide such questions for the future."
1 Citers

[ Commonlii ]
 
Bermingham v Sheridan Re Waterloo Life and Assurance Company [1864] EngR 320; (1864) 33 Beav 660; (1864) 55 ER 525
16 Mar 1864


Contract, Company

[ Commonlii ]
 
Raffles v Wichelhaus and Another [1864] EWHC Exch J19; (1864) 2 H and C 906; [1864] EngR 150; (1864) 159 ER 375
19 Apr 1864
Exc

Contract
A contract referred to cotton 'to arrive ex Peerless from Bombay'. Two ships called the Peerless sailed from Bombay, one in October and one in December. The court accepted that the defendants meant the October vessel and the plaintiff the December vessel. Held: There was no contract - because the offer and acceptance, although verbally identical, could objectively refer to different ships of the same name, 'there was no consensus ad idem, and therefore no binding contract'. An agreement is void for mutual mistake if the agreement cannot be reasonably understood in the sense understood by either party - despite the apparent agreement, no offer was accepted. Parol evidence could be given for the purpose of showing that the plaintiff meant one 'Peerless' and the defendant the other.
[ Bailii ] - [ Commonlii ]
 
Crane v The London Dock Company [1864] EngR 406; (1864) 5 B and S 313; (1864) 122 ER 847
28 Apr 1864


Contract
A sale by sample is riot entitled to the privileges of a sale in market overt, 2 Quaere whether a purchase of goods made in a market, by a shopkeeper, of goods brought to his shop is so entitled?
[ Commonlii ]
 
Mallett v Bateman [1864] EngR 419; (1864) 16 CB NS 530; (1864) 143 ER 1235
30 Apr 1864


Contract
The plaintiff had contracted to supply goods to C. & Co., to be paid for in cash on each delivery. C & Co. being desirous of obtaining the goods on credit, the defendant (who had an interest in the peforrnance of the work upon which the goods were to he used) promised the plaintiff that, if he would supply the goods to C & Co. at a month’s credit, and would allow him (the defendant) 3 per cent upon the amount of the invoice, he would pay him cash, and take C. & co.’s bill, without recourse. Held. A contract to answer for the debt or default of another, within the 4th section of the Statute of Frauds.
[ Commonlii ]
 
Ashpitel, Executor Of James Peto v Bryan [1864] EngR 575; (1864) 5 B and S 723; (1864) 122 ER 999
14 Jun 1864
CEC
Pollock CB, Williams, Wills JJ, Bramwell and Channell BB
Contract, Estoppel
Bill of exchange. Acceptor. Denial of indorsement. Account stated. - Declaration by the executor of B. upon a bill of exchange purporting to be drawn by A. and accepted by the defendant, and indorsed by A. to B. ; with a count upon accounts stated. It appeared that A., who was possessed of goods, being the stock in trade upon his premises, died intestate, and indebted to the defendant and other persons ; and it was arranged between B. and the defendant, who were two of his next of kin, that the defendant should take possession of the goods and accept a bill of exchange for their value, purporting to be drawn and indorsed by A. The goods were accordingly delivered to the defendant, and the bill declared upon was drawn and indorsed to the plaintiff by procuration in the name of A., and accepted by the defendant. Held: affirming the judgrtlerit of the Queen's Bench ; that the defendant could not be allowed to set up as a defence to the action that the bill was not indorsed by A.-2. Semble. That the bill was evidence of an account stated.
Pollock CB said: "We all agree with the Court below that there may arise an estoppel by agreement, and that such an estoppel arises here. The parties agreed that the transaction should have this character, viz, that the defendant should appear to have bought the goods of John Peto, and that therefore the bill should be drawn and indorsed in the name of John Peto, and it was afterwards accepted by the defendant on the basis of that agreement. The defendant having accepted the bill after it had been drawn and indorsed in that name, and having promised payment of it, now says that it was not drawn and indorsed by John Peto; but he is estopped from doing so."
1 Cites

[ Commonlii ]
 
M'Cance v The London And North Western Railway Company [1864] EngR 595; (1864) 3 H and C 343; (1864) 159 ER 563
20 Jun 1864

Williams J
Contract, Estoppel
The plaintff contracted with the defendant for the transport of horses, understating their value. On their loss, the plaintiff sought their full value. The defendant had succeeded in limiting the award to the value stated. Held: Williams J cited with approval Blackburn's statement in his Treaty on the Contract of Sale that "when parties have agreed to act upon an assumed state of facts their rights between themselves are justly made to depend on the conventional state of facts, and not on the truth."
1 Cites

1 Citers

[ Commonlii ]

 
 William Dean And Archibald Stewart v James Byrnes, Robert Cook, Clark Irving, Thomas Walker, And Thomas Buchanan; PC 29-Jun-1864 - [1864] EngR 623; (1864) 3 Moo PC NS 92; (1864) 16 ER 35
 
John Black v James Rose [1864] EngR 624; (1864) 2 Moo PC NS 277; (1864) 15 ER 906
30 Jun 1864
PC

Contract, Transport
By a charter-party it was provided, that freight should be paid at the rate therein specified, "the cargo to be taken alongside, and to be taken from the ship's tackle at the port of discharge, free of risk and expense to the ship," Disputes having arisen during the delivery of the cargo, the Master required payment of the freight for the amount of cargo delivered each day over the ship's side into the consignees boats, and refused to deliver any more cargo, on the consignees' refusing to pay on delivery as required, The Supreme Court of Ceylon held, that by the terms of the charter-party, it was clear, that the intention of the parties was, that the Master should, on the arrival of the vessel at the port of destination, deliver, and the consignees receive, at the ship's side: and that as on such delivery and receipt the Master ceased to be responsible and to have any lien on the goods, he was justified in refusing to discharge the cargo without payment at the ship's side of the freight each day, on the quantity delivered, for his lien would be given up by delivery of the goods. Such decision affirmed on the same grounds by the Judicial Conunittee of the Privy Council.
[ Commonlii ]
 
Thompson v Hudson [1864] EngR 699 (A); (1864) 34 Beav 107
3 Nov 1864

Sir John Romilly MR
Contract, Costs
A judgment creditor, whose debt had been satisfied but who had not entered satisfaction on the rolls, was made a Defendant to a foreclosure suit. He disclaimed. Held, that he was not entitled to his costs, in consequence of his negligence in not entering up satisfaction of his judgment,
[ Commonlii ]
 
Platzhoff v Lebean [1865] EngR 40 (A); (1865) 4 F and F 545
1865


Agency, Contract

[ Commonlii ]
 
Williams v Reynolds And Another [1865] EngR 595; (1865) 6 B and S 485; (1865) 122 ER 1278
17 Jun 1865


Contract
Level of damages for non-delivery of goods
[ Commonlii ]
 
Lord v Jeffkins [1865] EngR 779; (1865) 35 Beav 7; (1865) 55 ER 796
14 Dec 1865


Contract

[ Commonlii ]
 
Reuss v Picksley (1866) LR 1 Ex 342; [1866] 4 HandC 588; [1866] 35 LJ Ex 218; [1866] 15 LT 25; [1866] 12 Jur NS 628; [1866] 14 WR 924 ex Ch
1866

Willes J
Contract
A written proposal was purportedly accepted orally. The requirements of the 1677 Statute were satisfied where a signed written offer containing the requisite terms was accepted orally by the other party.
Willes J said: "The only question is, whether it is sufficient to satisfy the statute that the party charged should sign what he proposes as an agreement, and that the other party should afterwards assent without writing to the proposal? As to this it is clear, both on reasoning and authority, that the proposal so signed and assented to, does become a memorandum or note of an agreement within the 4th section of the statute."
Statute of Frauds 1677 4
1 Citers


 
Gugen And Another v Sampson [1866] EngR 7; (1866) 4 F and F 974; (1866) 176 ER 872
1866


Contract, Insolvency

[ Commonlii ]
 
Purdie v Furness [1866] EngR 15; (1866) 4 F and F 942; (1866) 176 ER 859
1866


Contract, Litigation Practice

[ Commonlii ]
 
Walkee v Milnee And Another [1866] EngR 48; (1866) 4 F and F 745; (1866) 176 ER 773
1866


Contract

[ Commonlii ]

 
 Pearce v Brooks; 1866 - (1866) LR 1 Ex 213; [1861-73] All ER 102; (1866) 30 JP 295; 14 LT 288; 35 LJEx 134
 
Ramsgate Hotel Co v Montefiore (1866) 35 LJEx 90; (1866) LR 1 Exch 109
1866


Contract
An offer to take shares had been withdrawn before any notice of acceptance of the offer was given to the applicants. Immediately on notification of the call the applicant's solicitor wrote declining the shares and requesting the removal from the register. Held: An offer to make a contract must be accepted within a reasonable time.

 
Lyle v Richards (1866) LR 1 HL 222
1866
HL
Lord Westbury, Lord Cranworth LC
Contract, Landlord and Tenant
A lease described the southern boundary of the premises as "a straight line of about 355 fathoms from John Vincent's house . . to a bound-stone", which was then described, the demised premises being "particularly delineated by the map", that map being on the back of the lease. The problem was this that the lease did not say from what part of the house that line was to be drawn. Further, on the map John Vincent's house had been placed incorrectly. Held: Extrinsic evidence was admissible to determine the true boundary. The judge was required to ask the jury to include consideration of the map. There remained a latent ambiguity which would have to be resolved by evidence other than construction of the deed.
Lord Cranworth LC: "The map is referred to not for the purpose of shewing the site either of the house or the bound-stone. The facts as to the true position of the house and the bound-stone are ascertained by other means. The use of the map is to clear up what, without it, was uncertain, namely, from what part of the house the line was to be drawn; and for that purpose its exact site is immaterial." It was for the jury, strictly, to say where the boundary line was drawn on the map, but because it was so plainly drawn from the north-east corner of John Vincent's house the jury would have had so to find.
1 Citers


 
Xenos v Wickham (1866) LR 2 HL 296
1866
HL
Blackburn J, Lord Cranworth
Contract
Blackburn J said that a deed is delivered "as soon as there are acts or words sufficient to [show] that it is intended by the party to be executed as his deed presently binding on him."
Lord Cranworth said: "The maker (of a deed) may so deliver it as to suspend or qualify its binding effect. He may declare that it shall have no effect until a certain time has arrived or until some condition has been performed, but when the time has arrived, or the condition has been performed, the delivery becomes absolute, and the maker of the deed is absolutely bound by it, whether he has parted with possession or not. Until the specified time has arrived, or the condition has been performed, the instrument is not a deed; it is a mere escrow."
1 Cites

1 Citers


 
Dickinson v Burrell [1866] EngR 64; (1866) 35 Beav 257; (1866) B)
22 Jan 1866


Contract

[ Commonlii ]
 
Gee v Liddell [1866] EngR 66; (1866) 35 Beav 629; (1866) 55 ER 1041
23 Jan 1866


Contract, Wills and Probate, Limitation

[ Commonlii ]
 
George Jones Saxon Page v Cowasjee Eduljee [1866] EngR 77; (1866) 3 Moo PC NS 499; (1866) 16 ER 189
2 Feb 1866
PC

Contract

[ Commonlii ]
 
The Attorney-General, on Behalf of Her Majesty v The Sitting-Bourne, &C, Railway Company [1866] EngR 91; (1866) 35 Beav 268; (1866) 55 ER 899
10 Feb 1866


Land, Contract

[ Commonlii ]
 
Micholls v Corbett [1866] EngR 109; (1865-1866) 34 Beav 376; (1866) 55 ER 680
24 Feb 1866


Land, Contract

[ Commonlii ]
 
Shattock v Shattock [1866] EngR 140; (1866) 35 Beav 489; (1866) 55 ER 986
23 Apr 1866


Wills and Probate, Contract

[ Commonlii ]
 
Clark v Wallis [1866] EngR 143; (1866) 35 Beav 460; (1866) B)
26 Apr 1866


Land, Contract

[ Commonlii ]
 
Tarner v Walker [1866] EngR 165; (1866) 6 B and S 871; (1866) 122 ER 1415
8 Jun 1866


Contract

[ Commonlii ]
 
Tarner v Walker (1867) LR 2 QB 301
1867


Contract
The court considered whether the judge had properly left to the jury the issue of whether the plaintiff was entitled to recover an advertised reward which was to be paid to "any person who will give such information as shall lead to the apprehension and conviction of the thieves".
1 Citers


 
The Western Bank of Scotland v Addie (1867) 1 LR Scotch Appeals 145
1867
HL
Lord Cranworth, Lord Blackburn
Contract, Equity
Rescission of a share purchase agreement was sought on the grounds of fraudulent misrepresentation. Held: Lord Cranworth said: "Relief under the first head, which is what in Scotland is designated restitutio in integrum, can only be had where the party seeking it is able to put those against whom it is asked in the same situation in which they stood when the contract was entered into. Indeed, this is necessarily to be inferred from the very expression, restitutio in integrum; and the same doctrine is well understood and constantly acted on in England."
Lord Blackburn said: "a Court of Equity could not give damages, and, unless it can rescind the contract, can give no relief. And, on the other hand, it can take accounts of profits, and make allowance for deterioration. And I think the practice has always been for a Court of Equity to give this relief whenever, by the exercise of its powers, it can do what is practically just, though it cannot restore the parties precisely to the state they were in before the contract."
1 Citers



 
 Cooper v Phibbs; HL 1867 - (1867) 2 LR HL 149; [1867] UKHL 1
 
Burton v Pinkerton (1867) LR 2 Ex 340
1867

Baron Bramwell, Baron Martin and Baron Channell
Damages, Contract
The Plaintiff agreed to serve on the defendant's ship for twelve months, but left it when the Defendant berthed in a Peruvian port with a cargo which included ammunition, even though Peru was at war with Spain ("'two powers at peace with England"). The Plaintiff regarded the proposed voyage as both illegal and more dangerous than he anticipated at the time of entering into his contract. He was imprisoned for some days as a "Peruvian deserter'' and upon his release discovered that the ship had gone, still with some of his clothes on board. The jury gave damages for both the imprisonment and the clothing. Held: Both heads of damage were too remote. Baron Bramwell: "It is true that in one sense the defendant's conduct caused the imprisonment: but for that, no doubt, the plaintiff would not have been imprisoned. That, however, is not enough. Suppose, for instance, the plaintiff had met robbers whilst ashore, and been injured by them, he certainly could have recovered nothing from the defendant for such injury, yet the defendant might, in that case also, be said to have caused the damage. According to the ordinary rule, damage to be recoverable by a plaintiff must inevitably flow from the tortious act of the defendant. It must be caused by him as the causa causans, and this imprisonment was not so caused". The Plaintiff could only recover for lost wages and possibly something for inconvenience. A new trial was ordered as it was impossible to disentangle how much the jury had included under each of the heads.
1 Citers


 
Caton v Caton (1867) LR 2 HL 127
1867
HL
Lord Chelmsford C, Lord Westbury
Contract
A document began by referring to "the under mentioned parties" and then referred to the parties in question by name in relation to various promises. Neither party signed the document and the question was whether the document constituted a sufficient note or memorandum signed by the parties to be bound within Section 4. Held: It was not. There must be something, which can be regarded as a form of signature, which is voluntarily affixed to the document by way of authentication of it.
Lord Chelmsford C: "The cases on this point … establish that the mere circumstances of the name of a party being written by himself in the body of a memorandum of agreement will not of itself constitute a signature. It must be inserted in the writing in such a manner as to have the effect of "authenticating the instrument" or "so as to govern the whole instrument"… The name of the party, and its application to the whole of the instrument, can alone satisfy the requisites of a signature.
Lord Westbury said that if something was to be relied upon as a signature, it has to be: " . . . so placed as to show that it was intended to relate and refer to, and that in fact it does relate and refer to, every part of the instrument. … It must govern every part of the instrument. It must shew that every part of the instrument emanates from the individual so signing, and that the signature was intended to have that effect. It follows that if a signature be found in an instrument incidentally only, or having relation and reference only to a portion of the instrument, the signature cannot have legal effect and force which it must have in order to comply with the statute, and to give authenticity to the whole of the memorandum. "
Staute of Frauds 1677 84
1 Citers


 
Bowe and Christie v Hutchisons [1867] SLR 5 - 380
13 Mar 1867
SCS

Contract
A guarantee given to a firm of wholesale sugar merchants for "sugar," to be sold by them to another dealer in sugar, held to cover furnishings of treacle and syrup, the firm stating in evidence that such was the construction of "sugar" in the trade, and the defender leading no evidence to disprove that construction.
[ Bailii ]

 
 Massey v Sladen; 1868 - (1868) LR 4 EXD 13
 
British Columbia, etc. Saw Mills Co. Ltd v Nettleship [1868] LR 3 CP 499
1868

Willes J
Contract, Damages
Willes J said: "the mere fact of knowledge cannot increase the liability. The knowledge must be brought home to the party sought to be charged under such circumstances that he must know that the person he contracts with reasonably believes that he accepts the contract with the special condition attached to it . . Knowledge on the part of the carrier is only important if it forms part of the contract. It may be that the knowledge is acquired casually from a stranger, the person to whom the goods belong not knowing or caring whether he had such knowledge or not".
1 Citers


 
Blackmore v London and South Western Railway Company (1868) 38 LJ Ch 19
1868


Land, Contract

1 Citers


 
Engell v Fitch (1869) LR 4 QB 659; 10 BandS 738; 38 LJQB 304; 17 WR 894 ex Ch
1869
ChD

Land, Damages, Contract
The lease of land was sold at auction. The conditions of sale provided for possessionto be given on completion. The vendors, mortgagees with the right of sale, were unwilling to incur the expense of recovering possession. Held: The vendor was under a duty to do everything possible to make good title. The ordinary rule which would limit the damages on the purchase of real property did not apply. The purchaser could recover, the deposit expenses of investigating title, the loss of profit on a resale and cost of conveyance to a sub-vendee. The measure was the difference between the price in the contract and the value of land at the time of the breach.
1 Citers


 
Baily v De Crespigny [1869] LR 4 QB 180
1869
QBD
Hannen J
Contract
A lessor had covenanted that neither he nor his assigns would build on a piece of land adjoining the demised premises. A railway company, under powers derived from a subsequent private Act, compulsorily acquired the land and erected a station on it. Held: This relieved the lessor from his liability under the lease.
Liability to perform a contract may be discharged where events occur which would mean that continued liability would be "not to maintain the original contract, but to substitute a different contract for it."
1 Cites

1 Citers


 
Foster v MacKinnon (1869) LR 4 CP 704
1869

Byles J
Contract
The court considered a plea of non est factum. Held: Byles J set out situations where the plea was available: "It seems plain, on principle and on authority, that, if a blind man, or a man who cannot read, or who for some reason (not implying negligence) forbears to read, has a written contract falsely read over to him, the reader misreading to such a degree that the written contract is of a nature altogether different from the contract pretended to be read from the paper which the blind or illiterate man afterwards signs ; then, at least if there be no negligence, the signature so obtained is of no force. And it is invalid not merely on the ground of fraud, where fraud exists, but on the ground that the mind of the signer did not accompany the signature, in other words, that he never intended to sign, and therefore in contemplation of law never did sign, the contract to which his name is appended." and "But the position that, if a grantor or covenantor be deceived or misled as to the actual contents of the deed, does not bind him, is supported by many authorities." And "The defendant never intended to sign that contract, or any such contract. He never intended to put his name to any instrument that then was or thereafter might become negotiable. He was deceived, not merely as to the legal effect, but as to the actual contents of the instrument."
1 Citers


 
Reese River Silver Mining Co Ltd v Smith (1869) LR 4 HL 64
1869
HL
Lord Hatherley LC
Contract, Company
Rescission for misrepresentation is always the act of the party (representee) himself.
The fact that a person's name continues to remain on a company's register as member does not mean that it should have done so under the provisions of the Articles.
An election or decision to rescind, in order to be effective, must be exercised unequivocally, "in the plainest and most open manner competent".
1 Citers


 
Thompson v Hudson (1869) LR 4 HL 1; (1869) 4 HL 1
1869
HL
Lord Westbury, Lord Hatherley, Lord Colonsay
Contract
An agreement is not penalty if it simply reserves to a creditor the right to have his debt paid in full in the event that his debtor does not pay on a due date a smaller sum that he has agreed to accept in satisfaction
Lord Hatherley said: "I take the law to be perfectly clear upon these matters which we have to consider with reference to this and the subsequent agreements, namely, that where there is a debt actually due, and in respect of that debt a security is given, be it by way of mortgage or be it by way of stipulation that in case of its not being paid at the time appointed a larger sum shall become payable, and be paid, in either of those cases Equity regards the security that has been given as a mere pledge for the debt, and it will not allow either a forfeiture of the property pledged, or any augmentation of the debt as a penal provision, on the ground that Equity regards the contemplated forfeiture which might take place at Law with reference to the estate as in the nature of a penal provision, against which Equity will relieve when the object in view, namely, the securing of the debt, is attained, and regarding also the stipulation for the payment of a larger sum of money, if the sum be not paid at the time it is due, as a penalty and a forfeiture against which Equity will relieve.
Now, that being clear on the one hand, it is equally clear on the other that where there is a debt due, and an agreement is entered into at the time of that debt having become due and not being paid, in regard to farther indulgence to be conceded to the debtor, or farther time to be accorded to him for the payment of the debt, or in regard to his paying it immediately, if that be a portion of the stipulations of the agreement, or at some future time which may be named, and the creditor is willing to allow him certain advantages and deduction from that debt, as well as to extend the time for its payment, if adequate and proper security in the mind of the creditor be afforded him as his part of the bargain in respect of which he is to make these concessions, then it is perfectly competent to the creditor to say: "If the payment be not made modo et forma as I have stipulated, then forthwith the right to the original debt reverts, and it is to be open to me to proceed with reference to the original debt, and to exercise all those powers which I possess for compelling payment of the original debt; in other words, I am entitled to be replaced in the position in which I was when this agreement; which has been not broken, was entered into"."
Lord Colonsay said: "It is the reservation of an existing right. It is not the emergence of a right that was never in existence at all except on the violation of the agreement which was made. It is merely the reservation of what is the just and honest right of the party, which he was willing to waive to a certain extent, provided his debtor would do certain things, but if the debtor fails in doing those things, then that right which belongs to the creditor shall continue to belong to him, and he may enforce it".
Lord Westbury said: "It is plain enough that if part of a debt has been duly and unconditionally remitted, the part so unconditionally remitted ceases. If it be revived it becomes a subject in respect of which there is no longer any contract in existence, and which therefore may properly be regarded as a penalty."
1 Citers


 
Farrow vWilson (1869) LR 4 CP 744
5 Jul 1869
CCP
Willes and Montague Smith, J
Contract, Wills and Probate, Employment
The plaintiff had been employed by the deceased as a farm bailliff. The employment included both weekly wages and a residence. The employment was subject to six month's notice. After the death the personal representative, the defendant, terminated the employment contract. Held: Though as a general rule obligations under a contract continued to bind the estate upon death, this did not apply where personal considerations were dominant: "Where, however, personal considerations are of the foundation of the contract, as in cases of principal and agent and master and servant, the death of either party puts an end to the relation; and, in respect of service after the death, the contract is dissolved, unless there be a stipulation express or implied to the contrary. It is obvious that, in this case, if the servant had died, his master could not have compelled his representatives to perform the service in his stead, or pay damages, and equally by the death of the master the servant is discharged of his service, not in breach of the contract, but by implied condition."

 
Spencer v Harding (1870) LR 5 CP 561
1870

Willes J
Contract
Willes J considered what promise had been made where parties had bid in response to an advertisement, and the bidder sought to enforce the contract: "In the advertisement cases, there never was any doubt that the advertisement amounted to a promise to pay the money to the person who first gave information. The difficulty suggested was that it was a contract with all the world. But that,of course, was soon overruled. It was an offer to become liable to any person who before the offer should be retracted should happen to be the person to fulfil the contract, of which the advertisement was an offer or tender. That is not the sort of difficulty which presents itself here. If the circular had gone on, ‘and we undertake to sell to the highest bidder,'the reward cases would have applied, and there would have been a good contract in respect of the persons."
1 Citers


 
Godwin v Francis (1870) LR 5 CP 295
1870

Bovill CJ
Contract
The court was asked as to the effect of a note or memorandum in the form of instructions to a telegraph company signed by the party to be charged on whose behalf the telegram concerned was sent. Held: Bovill CJ said: "the mere telegram written out and signed in the way indicated by the telegram clerk, if done with the authority of the vendors, would have been a sufficient signature".
Staute of Frauds 1677 9
1 Citers


 
London and South Western Railway Company v Blackmore (1870) 4 AC 610; (1870) LR 4 HL 610; (1870) LJ Ch 713; (1870) 23 LT 504; (1870) JP 324; (1870) 19 WR 305; (1870) LR 4 HL 610; 39 LJCh 713
1870
HL
Lord Westbury, Lord Hatherley LC
Land, Contract
In 1861 the railway company used its statutory powers to buy some of Mr Blackmore's land for railway purposes. In 1864 they had a dispute over their boundary. This was settled by an agreement that he should build a wall to be maintained at their joint expense. The agreement included a release of claims in general terms. In 1866 the railway company decided that it did not need the land it had taken and proposed to sell it as surplus land. Mr Blackmore claimed that, as the person from whom it had been taken, he had a statutory right of pre-emption under the Land Clauses Consolidation Act 1845. The railway company argued (rather faintly, it would seem, by their second counsel) that it fell within the description of claims which he surrendered when settling the boundary dispute. Held: Where a release of a contractual obligation is given, its language will be interpreted having regard to the surrounding circumstances against which it came into existence and with special reference to the ambit of the dispute that was the occasion of its creation.
Lord Westbury said: "The general words in a release are limited always to that thing or those things which were specially in the contemplation of the parties at the time when the release was given. But a dispute that had not emerged, or a question which had not at all arisen, cannot be considered as bound and concluded by the anticipatory words of a general release."
Land Clauses (Consolidation) Act 1845 127 128
1 Cites

1 Citers


 
Francis v Cockrell (1870) LR 5 QB 501
1870
CEC
Cleasby B
Contract
The plaintiff was injured by the fall of a stand on a racecourse, for a seat in which he had paid. The defendant was part proprietor of the stand and acted as receiver of the money. The stand had been negligently erected by a contractor, though the defendant was not aware of the defect. Held: The claim succeeded.
1 Cites



 
 Callisher v Bischoffsheim; 1870 - (1870) LR 5 QB 449

 
 British American Telegraph C v Colson; 1871 - [1871] LR 6 Exc 108

 
 Smith v Hughes; QBD 1871 - (1871) LR 6 QB 597
 
McBlain v Cross (1871) 25 LT 804
1871


Contract
The court considered the stautus under the 1677 statute in the case of a telegram which stated that it came from the sender and did so with his express authority.
Statute of Frauds 1677 9
1 Citers



 
 Ex parte Llynvi Coal and Iron Co; In re Hide; 1871 - (1871) LR 7 Ch App 28
 
Clough v London and North Western Railway Co [1871] LR 7 Exch 26
1871

Mellor J
Contract, Equity
When considering an application for rescission the court must ask whether the representee has elected to affirm the contract, elected to rescind the contract or made no election. Mellor J said: "In such cases the question is, has the person on whom the fraud was practised, having notice of the fraud, elected not to avoid the contract? Or has he elected to avoid it? Or has he made no election?
We think that so long as he has made no election he retains the right to determine it either way, subject to this, that if in the interval whilst he is deliberating, an innocent third party has acquired an interest in the property or if in consequence of his delay the position even of the wrongdoer is affected, it will preclude him from exercising his right to rescind.
And lapse of time without rescinding will furnish evidence that he has determined to affirm the contract, and when the lapse of time is great, it probably would in practice be treated as conclusive evidence to shew that he has so determined. But we cannot see any principle, and are not aware of any authority for saying that the mere fact that one who is a party to the fraud has issued a writ and commenced an action before the rescission is such a change of position as would preclude the defrauded party from exercising his election to rescind."
1 Citers


 
Gray v Carr (1871) LR 6 QB 522
1871


Contract

1 Citers


 
Charles Seton Guthrie, and Others v Abool Mozuffer and Others [1871] EngR 11; (1871) 14 Moo Ind App 53; (1871) 20 ER 706
4 Feb 1871


Land, Contract

[ Commonlii ]
 
Oukur Pershad Bustooree,-Appellant; Mussamut Foolcoomaree Bebee,-Respondent [1871] EngR 25; (1871) 14 Moo Ind App 134; (1871) 20 ER 737
1 Jul 1871


Contract, Limitation
Action by a Firm against an Agent of the Firm, who received a puckah, or del credere commission, on the goods of the Principals sold by their Agent. The last item in the account between the Principals and Agent, in their dealings, accrued more than three years from the commencement of the suit. Held. On the construction of the Limitation of suis Act, No. XIV. of 1859, that as the action was for breach of contract, it fell within the words "for breach of contract" in cl. 9, sect, 1, and that, sect. 8 of that Act, which related to suits for balances of accounts current, did not apply.
[ Commonlii ]
 
Bradford v Williams (1872) 7 Exch 259
1872

Baron Martin
Contract
The ship's captain refused to load at the place stipulated for the month of September 1871, but was willing to load at a port he was permitted to select prior to that month. Held: The breach of the charter-party by the shipowner went to the root of the contract and the charterer was right in his refusal to load. Baron Martin said: "Contracts are so various in their terms that it is really impossible to argue from the letter of one to the letter of another. All we can do is to apply the spirit of the law to the facts of each particular case. Now I think the words 'conditions precedent' unfortunate. The real question, apart from all technical expressions, is what in each instance is the substance of the contract".
1 Citers


 
Llanelly Railway and Dock Company v London and North Western Railway Company [1872] Ch App 948
1872
CA
James LJ
Land, Contract
James LJ said: "I start with this proposition that prima facia every contract is permanent and irrevocable and it lies upon a person who say that it is revocable or determinable to show either something special in the contract itself, or something in the nature of the contract which it is reasonably to be implied that it was not intended to be permanent and perpetual, but was to be in someway or other subject to determination."
1 Citers


 
Castle v Playford (1872) LR 7 Ex 98
1872
Cexc
Cockburn CJ, Willes, Blackburn, Mellor, Brett and Grove JJ
Contract
The contract for the sale of ice was for cash on delivery at the rate of 20s a ton as weighed on arrival and delivery in the United Kingdom, but it was agreed that the buyer should "take upon himself all risks and dangers of the seas". The vessel was lost. Held: The true construction of the contract was from the buyer's viewpoint, as set out by Cockburn CJ's: "I will engage, when it arrives, to pay you according to what may be its value; and if, in the meantime, while it is upon the seas, it shall perish through the perils of the seas, I will undertake to pay you for it according to what may be estimated to have been its fair value at the time of going down."
Lord Blackburn said: "Now here the ship and the cargo have gone to the bottom of the sea, but in the case of Alexander v. Gardner and Fragano v. Long ( 4 B. and C. 219) it was held that if the property did perish before the time for payment came, the time being dependent upon delivery, and if the delivery was prevented by the destruction of the property, the purchaser was to pay an equivalent sum."
1 Citers


 
Martineau v Kitching (1872) LR 7 QB 436; 26 LT 836
1872
QBD
Cockburn CJ, Blackburn, Lush and Quain JJ
Contract
Sugar was agreed to be sold, with the price payable "Prompt at one month; goods at seller's risk for two months", to be kept at the seller's premises and drawn down by the buyers as wanted. After two months and after only some of the sugar had been drawn down by the buyers, a fire destroyed the rest. The buyer having disputed his liability to pay for the undelivered sugar which had been burned in the fire, the seller brought an action "to recover the price of [the] sugars sold" and the question was whether the sellers were so entitled. Held: They were.
Blackburn J said: "As a general rule res perit domino, the old civil law maxim, is a maxim of our law; and when you can show that the property has passed, the risk of the loss prima facie is in the person in whom the property is."
Blackburn J said: "As a general rule res perit domino, the old civil law maxim, is a maxim of our law; and when you can show that the property has passed, the risk of the loss prima facie is in the person in whom the property is." and ""[A]ssume that [property] had not passed. If the agreement between the parties was, 'I contract that when you pay the price I will deliver the goods to you, but the property shall not be yours, they shall still be my property so that I may have dominion over them; but though they shall not be yours, I stipulate and agree that if I keep them beyond the month the risk shall be upon you;' and then the goods perish; to say that the buyer could then set up this defence and say, 'Although I stipulated that the risk should be mine, yet, inasmuch as an accident has happened which has destroyed them, I will have no part of that risk, but will throw it entirely upon you because the property did not pass to me,' is a proposition which, stated in that way, appears to be absolutely a reductio ad absurdum; and that is really what the argument amounts to. If the parties have stipulated that, if after the two months the goods remain in the sellers' warehouse, they shall, nevertheless, remain there at the buyer's risk, it would be a manifest absurdity to say that he is not to pay for them; and I think the case of Castle v Playford is a clear authority of the Court of Exchequer Chamber, that where the parties have stipulated that the risk shall be on one side, it matters not whether the property had passed or not. The parties here have by their express stipulation impliedly said, after the two months the goods shall be at the risk of the buyer, consequently it is the buyer who must bear the loss."
1 Cites

1 Citers



 
 Frost v Knight; 1872 - (1872) LR 7 Ex 111; 41 LJEx 78
 
Radhabenode Misser v Kripa Moyee Debea [1872] EngR 8; (1872) 14 Moo Ind App 443; (1872) 20 ER 852
22 Jan 1872


Commonwealth, Contract

[ Commonlii ]
 
James Connolly v James Maclaren And John Maclaren [1872] EngR 25; (1872) 9 Moo PC NS 1; (1872) 17 ER 414
4 Jun 1872
PC

Commonwealth, Contract
(Canada) Action for damages for non-performance of a contract for the sale of certain Spars and Timber, “to be delivered free of charge tomorrow or as soon as they can be got out of the hands of the Guardian; but the Purchasers not bound to take them if not delivered in one week unless they like.” No delivery having been made within the time specified, by reason of the Guardian in possession of the Spars insisting on retaining them in consequence of a writ of saisie arret issued in an action instituted against the ostensible Owner of the Spars and Timber, whose mark they bore, having been served on him, notwithstanding that he was released by subsequent proceedings, and might have legally given them up: Held, that not having done so, the parties contracting for the sale of the Spars and Timber were relieved from the damages awarded by the Court below for the non-delivery thereof, on the ground that the reasonable construction of the words getting “out of the hands of the Guardian was he actual, and not constructive or legal title to the possession, which could alone insure the delivery [9 Moo. P.C. (N.S.) 191:- Held, also, that an action en guarantie, founded on the former right of action against the Guardian as guarantor by the original Contractors for damages for wrongful detention of the Spars and Timber, could not, under the circumstances, be sustained; and the judgment made in such an action, awarding damages, reversed,
[ Commonlii ]
 
Trefftz And Son v Antonio Canelli [1872] EngR 27; (1872) 9 Moo PC NS 22; (1872) 17 ER 422
14 Jun 1872
PC

Negligence, Contract, Commonwealth
C, a Merchant domiciled at Alexandria, being indebted to the Appellants, Merchants carrying on business at Leipsic, for the purpose of settling litigation between them, deposited with the Respondent (an English Merchant resident at Alexandria) certain Rills drawn in his favour as security for the Appellants' debt; the Respondent by the agreement between C and ths Appellants constituting himself a voluntary depositee of them, and undertaking to be responsible for them to the Appellants ''until the effective encashment of them, which remains entrusted to C." Held: The Respondent was not guilty of a breach of duty under this agreement in allowing C to take the Bills when due, for encashment at his discretion, and was not bound to see that C handed over the money to the Appellants.
[ Commonlii ]
 
Llanelly Railway and Dock Company v London and North Western Railway Company [1873] 8 Ch App 942; (1873) 42 LJ Ch 884; (1873) 29 LT 357; (1873) 21 WR 889
1873

Lord Selbourne
Contract
The parties had entered into a contract, in part to secure repayment of a loan, providing permission for the defendant to run its trains over the plaintiff's tracks. The contract made no provision for termination. Held: All the provisions of the agreement showed it to be non terminable. A decision as to whether it could be determined could not be itself determined by an arbitration arising n the service by one party of a notice determining the contract. If the notice was valid, there was no contract under which a reference could be made.
1 Cites

1 Citers



 
 Waugh v Morris; 1873 - (1873) LR 8 QB 202
 
In re Dagenham (Thames) Dock Co; Ex parte Hulse (1873) LR 8 Ch App 1022
1873
CA

Contract, Equity
The Court of Appeal in chancery heard an appeal from the Master of the Rolls from his refusal of the Master of the Rolls to make a declaration in the winding up of the purchaser company. The purchaser had sought a direction that if the balance of the purchase monies were paid with interest it should be relieved from termination of the contract brought about by its not paying the purchase money by the due date. The Lord Justices held that the forfeiture was in the nature of penalty from which the court would relieve. Relief was to be granted, not against the forfeiture of the instalments, but against the forfeiture of the estate under a contract which involved the retention of the purchase money. The Court granted the purchaser, who had been in possession for five years and carried out improvements, further time to pay the second and final instalment of a purchase price on the ground that the clause requiring him to vacate and to forfeit the first instalment for not having paid the second instalment on time, was a "penalty".
1 Citers



 
 Lamare v Dixon; HL 1873 - (1873) LR 6 HL 414

 
 Pearce v Watts; 1873 - (1873) LR 20 Eq 492
 
Wylie and Lochead v McElroy and Sons (1873) 1 R 41
1873
SCS
Lord Neaves
Scotland, Contract
Silence cannot normally be held to import assent to a contract proposal.

 
Earl of Aylesford v Morris (1873) LR 8 Ch App 484
1873

Lord Selborne LC
Contract
One party to a contract knew of the other's insanity. Held: The contract of a lunatic is voidable not void. "Fraud" in equity does not mean, and nor is it confined to, deceit; "it means an unconscientious use of power arising out of the circumstances and conditions" of the contracting parties.
1 Citers


 
Harris v Nickerson (1873) LR 8 QB 286
1873
CA
Blackburn J, Quain J
Contract, Agency
The Defendant auctioneer, had advertised a sale by auction of certain lots including office furniture on a certain day and the two following days; but the sale of furniture on the third day was withdrawn. The Plaintiff attended the sale and claimed against the Defendant for breach of contract in not holding the sale, seeking to recover his expenses in attending. Held: The claim failed.
Blackburn J said: "In the case of Warlow v. Harrison, the opinion of the majority of the judges in the Exchequer Chamber appears to have been that an action would lie for not knocking down the lot to the highest bona fide bidder when the sale was advertised as without reserve; in such a case it may be that there is a contract to sell to the highest bidder, and that if the owner bids there is a breach of contract."
Quain J said: "When a sale is advertised as without reserve, and a lot is put up and bid for, there is ground for saying, as was said in Warlow v. Harrison, that a contract is entered into between the auctioneer and the highest bona fide bidder."
1 Cites

1 Citers


 
Bolton v Madden (1873) LR 9 QB 55
1873


Contract
Blackburn J said that "The general rule is that an executory agreement, by which the plaintiff agrees to do something on the terms that the defendant agrees to do something else, may be enforced if what the plaintiff has agreed to do is either for the benefit of the defendant or to the trouble or prejudice of the plaintiff."

 
Ex parte Mackay; Ex parte Brown; In re Jeavons (1873) LR 8 Ch App 643
1873

James, Mellish LJJ
Insolvency, Contract
Mr Jeavons sold a patent regarding the manufacture of armour plates to a Brown & Co and Cammell & Co in consideration of the companies paying royalties. There was also a loan from the company to Mr Jeavons secured on the royalties. The parties agreed that (1) the companies would keep half the royalties towards satisfying the debt, and (2) in the event of Mr Jeavons' bankruptcy, they could also keep the other half of the royalties until the debt had been fully paid. Held: The first provision was valid, but the second was invalid.
James LJ said that provision (1) represented "a good charge upon one moiety of the royalties, because they are part of the property and effects of the bankrupt", but provision (2) "is a clear attempt to evade the operation of the bankruptcy laws" as it "provide[d] for a different distribution of his effects in the event of bankruptcy from that which the law provides".
Mellish LJ said that the case fell within the principle that: "a person cannot make it a part of his contract that, in the event of bankruptcy, he is then to get some additional advantage which prevents the property being distributed under the bankruptcy laws"
1 Cites

1 Citers



 
 Rossiter v Miller; 1873 - [1873] 3 APP Cas 1124
 
C P Henderson and Co v The Comptoir D'Escompte de Paris (1873-74) LR 5 PC 253
1873
PC

Commercial, Transport, Contract
The court considered a bill of lading in the usual form, save that the words "or order or assigns" are omitted. The court was prepared to assume that such a bill was not a negotiable instrument. It was argued that, notwithstanding the omission of these words, this bill of lading was a negotiable instrument, and there was some authority at nisi prius for that proposition; but the general view of the mercantile world was that, in order to make bills of lading negotiable, some such words as "or order or assigns" ought to be in them.
1 Citers



 
 The Proprietors of the Cork Distilleries Co v The Directors of the Great Southern and Western Railway Co; HL 1874 - (1874) LR 7 HL 269
 
Glaholm v Hays [1874] 2 Man and G 257
1874

Tindal CJ
Contract
A term in a charterparty provided that the vessel was to sail from England on or before the 4th of February. The question which arose was whether that term was a condition precedent upon the non-compliance wherewith the freighters were at liberty to throw up the charter. Held: In giving judgment, Tindal CJ said: 'Whether a particular clause in a charter-party shall be held to be a condition, upon the non-performance of which by the one party, the other is at liberty to abandon the contract and consider it at an end; or whether it amounts to an agreement only, the breach whereof is to be recompensed by an action for damages, must depend upon the intention of the parties to be collected, in each particular case, from the terms of the agreement itself, and from the subject matter to which it relates'. ' It cannot depend,' as Lord Ellenborough observes, ' on 'any formal arrangement of the words, but (must depend) on the reason' and sense of the thing as it is to be collected from the whole contract.'
1 Citers


 
City Discount v McLean (1874) LR; (1874) 9 CP 692
1874


Contract
The rule in Clayton's Case that payments are credited against the first item shown debited can be displaced by evidence of a contrary intention.
1 Cites



 
 Bain v Fothergill; HL 1874 - (1874) LR 7 HL 158; 43 LJ Ex 243; 31 LT 387; 39 JP 228; 23 WR 261
 
Stanton v Richardson [1874] 9 Common Pleas 390
1874


Contract, Transport
The shipowner contracted to carry wet sugar but the ship was not fit to carry it. The jury found also that it could not be made fit in time to avoid frustrating the purpose of the voyage. The molasses had drained from the wet sugar into the hold in large quantities and the ship's pumps were unable to deal with it. The cargo was unloaded. Held: The charterers were entitled to refuse to reload it or to provide any other cargo. If the defect had been or could have been remedied within a reasonable time so as not to frustrate the adventure the charterer's right would not have been to terminate the charter-party but to have claimed damages for any loss occasioned by the delay.
1 Citers


 
Treacy v Corcoran (1874) IR Vol VIII 40
1874

Monahan C J
Contract
(Irish Court of Common Pleas) The holder of a public office as Clerk of the Crown was entitled to be paid half yearly. During the course of a half year the plaintiff, Treacy, had resigned from that office. At the end of the half year the salary for the whole half year was paid to his successor, Corcoran. Treacy brought an action against Corcoran (not against the Treasurer of the County as payer). Held: Corcoran must pay to Treacy his apportioned share. Section 110 of the Grand Jury Act applied under which a salary was payable to the Clerk of the Crown. The 1870 Act applied: "That being so, it is clear that the salary of the Clerk of the Crown became due to Mr Treacy from day to day up to the 13th of April 1782, being the period during which he filled that office, and became recoverable by him on or after the 24th of July 1872, the proper time for payment having then arrived."
Apportionment Act 1870
1 Citers


 
Jackson v Union Marine Insurance Co Ltd [1874] LR 10 CP 125; [1874-80] All ER REP 317; 44 LJCP 27; [1874] 31 LT 789; [1874] 23 WR 169; [1874] 2 Asp MLC 435
1874
CCP
Baron Bramwell
Contract, Transport, Insurance
The plaintiff ship owner, contracted under a charterparty to proceed with all possible dispatch to Newport. He insured the cargo. The ship ran aground before the cargo could be collected, and was delayed. The charterers threw up the charterparty and contracted elsewhere for the delivery of the goods. The plaintiff claimed under his insurance. Held: The delay had been so long as to put an end to the contractual obligations. The charterers were therefore not obliged to load the cargo, and the loss constituted a loss of the chartered freight by perils of the sea. It was the happening of the event and not the fact that the event was the result of a breach by one party of his contractual obligations that relieved the other party from further performance of his obligations: "There are the cases which hold that, where the shipowner has not merely broken his contract, but has so broken it that the condition precedent is not performed, the charterer is discharged. Why? Not merely because the contract is broken. If it is not a condition precedent, what matters it whether it is unperformed with or without excuse? Not arriving with due diligence or at a day named is the subject of a cross-action only. But not arriving in time for the voyage contemplated, but at such a time that it is frustrated is not only a breach of contract, but discharges the charterer. And so it should though he has such an excuse that no action lies".
1 Citers


 
Vyse v Foster (1874-5) LR 7 HL 318
1874
HL

Contract
Where a person already has contractual relations with another, his assumption of a fiduciary role in relation to that other will not necessarily require him to abandon his own contractual interests.
1 Cites

1 Citers


 
Hobbs v London and South Western Railway Co (1875) LR 10 QB 111
1875

Mellor J, Cockburn CJ, Blackburn J
Damages, Contract
The court considered an application for damages for inconvenience in a breach of contract case: "for the mere inconvenience, such as annoyance and loss of temper, or vexation, or for being disappointed in a particular thing which you have set your mind upon, without real physical inconvenience resulting, you cannot recover damages. That is purely sentimental, and not a case where the word inconvenience, as I here use it, would apply." However the court upheld an award to a husband and wife for the inconvenience of having to walk home with young children four or five miles late on a drizzling night, although the wife's catching of a cold was found too remote.
1 Citers


 
Watkins v Nash (1875) LR 20 Eq 262
1875


Contract
The instrument at issue was delivered to the solicitor acting for the party intended to benefit under it. It was claimed that it was delivered in escrow. Held: On the detailed facts the delivery was not intended to be a delivery to the grantee, but was to the solicitor who was to hold the deed in an incomplete state for the benefit of all the parties to the transaction. Thus the instrument was not delivered as a deed but was in escrow only. For a delivery of a document to be in escrow, it must normally be made to a stranger to the contract.
1 Citers


 
Jones v North (1888) 21 QBD 544
1875

Bacon V-C
Commercial, Contract
Four parties were invited to tender for the supply of stone to a public authority. They agreed that one would buy stone from the others and submit the lowest tender, two parties were to submit a higher tender and the fourth party was to submit no tender. The defendants, in breach of the agreement, submitted a tender, which was accepted, and the party which was to supply under the agreement brought proceedings to restrain performance by the party which had broken ranks. Held: The action succeeded.
Bacon V-C considered the plaintiff's case as "very honest". It was submitted that the plaintiff could not obtain equitable relief since the arrangement was a device to compel the authority, under the fiction of a public competition, to accept tenders not representing the real market price of the commodity, but this submission the vice-chancellor rejected, finding the agreement to be "perfectly lawful", to contain "nothing illegal", and not deserving to be characterised as a conspiracy.
1 Citers


 
Currie v Misa (1875) LR 10 Exch 162; (1875) LR 10 Exch 153; (1876) 1 AC 554
2 Jan 1875

Lush J
Contract
The concept of "valuable consideration" was defined: "A valuable consideration in the sense of the law may consist either in some right, interest, profit or benefit accruing to one party, or some forbearance, detriment, loss or responsibility, given, suffered or undertaken by the other."


 
 Bettini v Gye; QBD 1876 - (1876 ) 1 QBD 183

 
 Thorn v Mayor and Commonality of London; 1876 - (1876) 1 App Cas 120

 
 Lysaght v Edwards; 1876 - (1876) 2 Ch D 449

 
 Smith v Webster; CA 1876 - [1876] 3 Ch D 49

 
 Poussard v Spiers; 1876 - [1876] 1 QBD 410

 
 Dickinson v Dodds; 1876 - [1876] 2 Ch 463
 
Winn v Bull (1877) 7 Ch D 29; 47 LJ Ch 139; 42 JP 230; 26 WR 230
1877

Sir George Jessel MR
Contract, Landlord and Tenant
By an agreement in writing, the defendant agreed with the plaintiff to take a lease of a house. The other details were included, but the agreement was 'subject to the preparation and approval of a formal contract". The plaintiff sought specific performance. Held: The words "subject to the preparation and approval of a formal contract" in a document prevented the document from being held to be a final agreement of which specific performance could be enforced.
Sir George Jessel MR said: "It comes, therefore, to this, that where you have a proposal or agreement made in writing expressed to be subject to a formal contract being prepared, it means what it says; it is subject to and is dependent upon a formal contract being prepared. When it is not expressly stated to be subject to a formal contract it becomes a question of construction, whether the parties intended that the terms agreed on should merely be put into form, or whether they should be subject to a new agreement the terms of which are not expressed in detail"
1 Citers



 
 Twycross v Grant; 1877 - (1877) 2 CPD 469

 
 Parker v South Eastern Railway Co; CA 1877 - (1877) 2 CPD 416; (1877) 46 LJQB 768
 
Tully v Howling [1877] 2 QB 182
1877


Contract
The parties contracted for a charter of twelve months. The owner could make it available only for ten. Held: The ship was not fit for the purpose for which she was chartered and could not be made fit within any time which would not have frustrated the object of the adventure.
1 Citers


 
Holme v Brunskill (1877) 3 QBD 495
1877
CA
Cotton LJ, Thesiger LJ
Contract
The plaintiff had let his farm in Cumberland to a tenant farmer, along with a flock of sheep. When let, the farm extended to 234 acres and there were 700 sheep. The surety guaranteed the tenant's obligation to re-deliver the flock of sheep in good condition at the end of the term of the lease. When the flock was re-delivered, however, the sheep were reduced in number and were not in good condition. Earlier, in the course of the term, the tenant had made an agreement with the plaintiff that he would surrender a field of about 7 acres in exchange for a decrease in his rent of £10 a year. The surety neither consented to, nor knew of, this variation to the original lease. Held: A guarantor is released from liability under a guarantee given to a creditor where that creditor and the principal debtor have entered into an agreement, subsequent to the giving of the guarantee, which has the effect of altering the contractual position between them, to the disadvantage of the guarantor, without his prior consent, and even though a jury had held that the variation had not substantially or materially altered the tenant's obligations under the lease.
Cotton LJ said: "The true rule in my opinion is, that if there is any agreement between the principals with reference to the contract guaranteed, the surety ought to be consulted, and that if he has not consented to the alteration, although in cases where it is without enquiry evident that the alteration is unsubstantial, or that it cannot be otherwise than beneficial to the surety, the surety may not be discharged; yet, that if it is not self-evident that the alteration is unsubstantial, or one which cannot be prejudicial to the surety, the Court, will not, in an action against the surety, go into an inquiry as to the effect of the alteration, or allow the question, whether the surety is discharged or not, to be determined by the finding of a jury as to the materiality of the alteration or on the question whether it is to the prejudice of the surety, but will hold that in such a case the surety himself must be the sole judge whether or not he will consent to remain liable notwithstanding the alteration, and that if he has not so consented he will be discharged."
1 Citers


 
A and J Inglis v Buttery and Co (1877) 5 R 58
1877
CA
Lord Justice Clerk Moncreiff
Contract
Surrounding circumstances are not admissible for any purpose of finding out which words the parties intended to use rather than did use in their contract. Lord Justice Clerk Moncreiff said that in all mercantile contracts "whether they be clear and distinct or the reverse, the Court is entitled to be placed in the position in which the parties stood before they signed."
Lord Gifford (dissenting) said: "Now, I think it is quite fixed - and no more wholesome or salutary rule relative to written contracts can be devised - that where parties agree to embody, and do actually embody, their contract in a formal written deed, then in determining what the contract really was and really meant, a Court must look to the formal deed and to that deed alone. This is only carrying out the will of the parties. The only meaning of adjusting a formal contract is, that the formal contract shall supersede all loose and preliminary negotiations - that there shall be no room for misunderstandings which may often arise, and which do constantly arise, in the course of long, and it may be desultory conversations, or in the course of correspondence or negotiations during which the parties are often widely at issue as to what they will insist on and what they will concede. The very purpose of a formal contract is to put an end to the disputes which would inevitably arise if the matter were left upon verbal negotiations or upon mixed communings partly consisting of letters and partly of conversations. The written contract is that which is to be appealed to by both parties, however different it may be from their previous demands or stipulations, whether contained in letters or in verbal conversation. There can be no doubt that this is the general rule, and I think the general rule, strictly and with peculiar appropriateness applies to the present case."
1 Citers



 
 Brogden v Metropolitan Railway Co; HL 1877 - [1877] 2 AC 666

 
 River Wear Commissioners v Adamson; HL 1877 - (1877) 2 App Cas 743
 
Mills v Haywood (1877) 6 Ch 196
1877

Cotton LJ
Contract, Landlord and Tenant
Mr Mills became the under tenant of the Radnor Tavern, 72, Chancery Lane, for a ten year term from 1861. The agreement between him and Mr. Austin, the holder of a long lease, contained an option to purchase the headlease. On 26th July 1867 Mr. Mills' solicitors wrote as follows: "Mr. Mills is desirous of exercising his right to purchase the lease of the Radnor, and has instructed us to call upon you, as far as you are concerned, to complete the sale, which he is ready and willing to do. We have informed Mr. Gibbon and the National Bank of this, and if there be any other parties now representing you, be kind enough to hand them this letter." A draft assignment was prepared but the details were never finalised. Mr. Mills continued to pay sums by way of rent up to and after the ten year period of the option had expired. In November 1872 Mr. Austin was adjudicated bankrupt and Mr. Haywood was appointed trustee. He decided to sell the Radnor Tavern and offered it first to Mr Mills. Mr Mills took advice and pursuant to that advice claimed specific performance of the option that he claimed to have been exercised. Vice-Chancellor Hall made a decree for specific performance. Held: The appeal succeeded. "If it were necessary to determine the point, there is considerable ground in the present case for holding that there had been a mutual abandonment of the contract, both sides treating the whole matter as at an end, and dealing with one another accordingly. But it is not necessary to give a decision on that point.
It is a well-established principle, as laid down by Lord Alvanley in Milward v Earl Thanet, that a party cannot call upon a Court of Equity for a specific performance unless he has shown himself ready, desirous, prompt and eager.
This rule is specially applicable where the subject-matter of the contract is of a somewhat speculative and fluctuating value, as the tavern, the subject of the present suit, must necessarily be; and the delay which has occurred in the present case from March, 1868, till May, 1873, unless satisfactorily explained, must be fatal to the plaintiff's title to a decree for specific performance. It was contended that the delay was solely attributable to the disputes between Gibbon and Austin; but even if this were so, it was the duty of the Plaintiff, if he desired to obtain specific performance, to insist upon, and if necessary file a bill to enforce, specific performance of his contract. Then it is said that the Plaintiff has been in possession, and that a purchaser in possession does not lose by delay his right to specific performance. But possession, in order to obviate the consequence to a purchaser of delay, must be possession under the contract sought to be enforced, that is (to use the words of Lord St. Leonards in Clarke v Moore) 'an enjoyment of the benefits given to him by the contract', and the vendor must have known, or have been bound to know, that the purchaser claimed to be in possession under the contract. In such a case, as, eg where the purchaser in possession has no right or title to such possession except as purchaser, his possession is an assertion on his part of his right under the contract of purchase, and acquiescence in his possession is a recognition by the vendor of this right. But where a tenant in possession contracts for the purchase of his landlord's interest the case is different. His right under the contract is to be no longer tenant of the vendor, and his possession as tenant is not an assertion of right under the contract of purchase. He may be in possession of the property, the house or land which is the subject of the contract of purchase, but, if he is, he is not in possession of, or asserting right to, the benefit or interest secured to him by the contract. ...
In my opinion, the result is that the plaintiff did not, from March, 1868, till May, 1873, claim to be in possession as purchaser, and there is nothing to show that the vendors recognised or were bound to recognise his possession as being that of purchaser under the contract for sale. In my opinion, therefore, his possession was not such as to prevent the delay which has occurred being fatal to his claim for specific performance."
1 Citers



 
 Cundy v Lindsay; HL 1878 - (1878) 3 App Cas 459

 
 W J Rossiter, George Curtis and others v Daniel Miller; HL 1878 - [1878] HL 1125
 
Fowler v Knoop (1878) 4 QBD 299
1878


Transport, Contract

1 Citers



 
 Bowman v Hyland; 1878 - (1878) 8 Ch D 588
 
Porteua v Watney (1878) 3 QBD 534
1878
CA

Contract

1 Citers



 
 Tharsis Sulpur v McElroy and Sons; HL 1878 - (1878) 5 R (HL) 171
 
Weir v Bell (1878) 3 Exch D 238
1878

Bramwell LJ
Contract, Torts - Other
"I think that every person who authorizes another to act for him in the making of any contract, undertakes for the absence of fraud in that person in the execution of the authority given, as much as he undertakes for its absence in himself when he makes the contract".
1 Citers


 
Doherty v Allman [1878] 3 App Cas 709
1878

Lord Cairns LC
Litigation Practice, Contract
An injunction will always issue to restrain a breach of a negative term in a contract. Lord Cairns LC said: "If parties, for valuable consideration, with their eyes open, contract that a particular thing shall not be done, all that a court of equity has to do is to say, by way of injunction, that which the parties have already said by way of covenant, that the thing shall not be done; and in such case, the injunction does nothing more than give the sanction of the process of the court to that which already is the contract between the parties. It is not then a question of the balance of convenience or inconvenience, or of the amount of damage or of injury – it is the specific performance, by the court, of that negative bargain which the parties have made, with their eyes open, between themselves."
1 Citers


 
In Re Hall and Barker (1878) 9 ChD 538
1878

Sir George Jessel MR
Contract
'If a man engages to carry a box of cigars from London to Birmingham, it is an entire contract, and he cannot throw the cigars out of the carriage half-way there, and ask for half the money; or if a shoemaker agrees to make a pair of shoes, he cannot offer you one shoe and ask you to pay one half the price.'
1 Citers


 
Britan v Rossiter (1879) 11 QBD 123
1879


Contract, Land
A contract which fails to meet the standards required under the Act is not not void, but is merely unenforceable.
Statute of Frauds 1677 3
1 Citers


 
Whaley Bridge Calico Printing Co v Green (1879) 5 QBD 109
1879

Bowen J
Equity, Contract
A director of a company who negotiated a purchase by the company for £20,000 of a property was promised but did not receive £3,000 out of the £20,000 from the vendor. Held: The contract was to be treated as having been entered into for the benefit of the purchaser without proof of fraud. The vendor was liable to the company for the £3,000, because the company was entitled to treat the contract between the vendor and the director as made by the director on behalf of the company. Bowen J held that it "could not be successfully denied" that if the £3,000 had been paid to the director he would have held it on trust for the company.

 
Household Fire Insurance Co v Grant [1879] 4 Exch D 216
1879
CA

Contract

1 Cites

1 Citers


 
King's Norton Metal Co Ltd v Edridge Merrett and Co Ltd (1879) 14 TLR 98
1879
CA
A L Smith LJ
Contract
A crook ordered some brass rivet wire from a metal manufacturer. On his stationery he represented falsely that he was in business in a big way, running a large factory and having several depots and agencies. The manufacturer supplied the goods but was not paid. Held: King's Norton was unable to recover the goods or their value from the third party to whom the crook subsequently sold them. A dealer who is induced by a rogue acting through the post, to believe that the rogue is some other person, when that person in fact had no separate identity, contracts instead with the rogue. The contract is voidable, but until avoided it enables a good title to be passed to an innocent purchaser by the crook. "The question was, With whom, upon this evidence, which was all one way, did the plaintiffs contract to sell the goods? Clearly with the writer of the letters. If it could have been shown that there was a separate entity called Hallam & Co, and another entity called Wallis then the case might have come within the decision in Cundy v Lindsay . . .. In his opinion there was a contract by the plaintiffs with the person who wrote the leters by which the property passed to him. There was only one entity, trading it might under an alias, and there was a contract by which the property passed to him.
1 Cites

1 Citers


 
In Re Banister; Broad v Munton (1879) 12 ChD 131
1879
CA
Fry J, Je ssel MR , LJ Cotton
Land, Contract
Property was sold from a deceased estate under an order of the Court.The purchaser found the title was defective. Held: A condition in a contract for the sale of land which purports to oust any right to object to the title or to raise requisitions cannot be relied on if it is misleading, or there has been less than full disclosure.
Fry J said: "It is also perfectly plain that, where the sale is under the direction of the Court, the Court will lean, if possible, to a more exact requirement of good faith and honesty on the part of the vendor; it will endeavour to insist upon that fair, straightforward, honest, open dealing which ought to characterise transactions between vendor and purchaser."
Jessel MR said: "in sales by the Court there should be at least as much good faith shewn towards the purchaser as, and perhaps a little more than, is required by ordinary vendors out of Court. The old Court of Chancery – and this Court is its successor – has always felt bound to see that purchasers are fairly and honestly dealt with in every respect; and if there is any difference – I do not say there is – the difference must surely be in favour of a purchaser who buys under the decree and order of the Chancery Division."
Cotton LJ said: "but I think in a case of this sort, where the sale is by the Court, the Court is bound to take more especial care, if possible, that there shall be nothing in the conditions, or in the representations therein contained, which by possibility can mislead a vendor, because the purchaser has a right to assume that the Court will take very good care that there shall be nothing that can in any way mislead him as to the title he is getting."
1 Citers



 
 Drew v Nunn; CA 1879 - (1879) 4 QBD 661; (1879 40 LT 671; (1879 48 LJQB 59
 
Waddell v Blockey (1879) 4 QBD 678
1879


Damages, Contract
The damages for an item bought as a consequence of a misrepresentation or other tort are to be calculated as at the date of sale.
1 Citers


 
Campbell v The Commercial Banking Company of Sydney (1879) 40 LT 137
1879
PC

Contract
"where a demand is made for a larger amount than that which is really due, such demand does not do away with the necessity of tendering what is actually due, unless there is at the same time refusal to receive less"
1 Citers



 
 Hussey v Horne-Payne; HL 1879 - [1879] 4 App Cas 311
 
Miller v Beale (1879) 27 WR 403
1879


Contract

1 Citers


 
Ex parte Jay, in re Harrison (1880) 14 ChD 19
1880

Cotton, James LJJ
Insolvency, Contract
A builder agreed with the owner of the land on which he was to build houses that upon his bankruptcy all the building materials on the land should become absolutely forfeited to the owner. The builder than charged the materials, but this was not registered as a bill of sale. The builder was then made bankrupt, and his trustee and the landowner disputed the right to the materials. Held: The agreement was void, as it violated or was "in fraud of" the bankruptcy laws. Upon bankruptcy, the bankrupt's property was really no longer his own, and becomes the property of his trustee in bankruptcy.
Cotton LJ said: "though the contract is good as between the parties to it, it is on principle void in the event of the builder's bankruptcy" and "there cannot be a valid contract that a man's property shall remain his until his bankruptcy, and on the happening of that event shall go over to someone else, and be taken away from his creditors."
James LJ said: "a simple stipulation that, upon a man's becoming bankrupt, that which was his property up to the date of the bankruptcy should go over to some one else and be taken away from his creditors, is void as being a violation of the policy of the bankrupt law."
1 Citers


 
Foulkes v Metropolitan District Railway Co (1880) 5 CPD 157
1880


Personal Injury, Contract
The court considered the liability of a railway company where the plaintiff had bought his ticket from one railway company, but claimed liability from another which had undertaken responsibility for part of the services to be rendered to the plaintiff under the contract evidenced by the ticket.
1 Citers



 
 Brownlie v Campbell; Brownlie v Miller; HL 1880 - (1880) 5 AC 925; (1880) 7 R (HL) 66
 
Babcock v Lawson (1880) 5 QBD 284
1880
CA
Bramwell LJ
Contract
A person who has acquired the goods by a fraud has a voidable title.
1 Citers


 
Wallingford v Mutual Society (1880) 5 App Cas 685
1880
HL
Lord Hatherley, Lord Selbourne LC, (Lord Blackburn
Contract, Litigation Practice, Torts - Other
Lord Hatherley said: "Now I take it to be as settled as anything well can be by repeated decisions, that the mere averment of fraud, in general terms, is not sufficient for any practical purpose in [a pleading]. Fraud may be alleged in the largest and most sweeping terms imaginable. What you have to do is, if it be matter of account, to point out a specific error, and bring evidence of that error, and establish it by that evidence. Nobody can be expected to meet a case, and still less to dispose of a case, summarily upon mere allegations of fraud without any definite character being given to those charges by stating the facts upon which they rest."
Lord Selbourne LC said: "With regards to fraud, if there be any principle which is perfectly well settled, it is that general allegations, however strong may be the words in which they are stated, are insufficient even to amount to an averment of fraud of which any Court ought to take notice. And here I find nothing but perfectly general and vague allegations of fraud. No single material fact is condescended upon; in a manner which would enable any Court to understand what it was that was alleged to be fraudulent."
1 Citers



 
 London Guarantie Company v Fearnley; HL 1880 - (1880) 5 App Cas 911

 
 Byrne v van Tienhoven and Co; 1880 - (1880) 5 CPD 344 (CP)
 
The Singer Manufacturing Company v Clark (1880) 61 LTR 591
1880

Hawkins J
Contract
In the case of an ordinary pledge there is an implied undertaking on the part of the pledgor that the property pledged is his own or that he has the authority of the owner to pledge it, and that it may safely be delivered back to him.
1 Citers


 
Re Garrud, Ex parte Newitt (1881) 16 Ch D 52
1881
CA
Brett, James LJJ
Insolvency, Contract
A building contract provided for forfeiture on the tenant's breach and not on bankruptcy. The bankrupt builder had broken the terms of his agreement with the landowner and it was provided in the agreement that the chattels would be forfeited to the landowner "as and for liquidated damages". Held: The provision was valid. Where an owner continued to make advances after the failure of a building contractor to complete on a particular day, that amounted to a waiver of his contractual right of forfeiture.
James LJ said: "Another point taken before us, which does not appear to have been really argued before the judge of the county court, was this - that the seizure was not made in sufficient time, that it was not made before the filing of the liquidation petition. To my mind it is immaterial at what particular moment the seizure was made. The broad general principle is that the trustee in a bankruptcy takes all the bankrupt's property, but takes it subject to all the liabilities which affected it in the bankrupt's hands, unless the property which he takes as the legal personal representative of the bankrupt is added to by some express provision of the bankrupt law. There is no such provision applicable to the present case. The building agreement provides, in effect, that in a certain event certain property of the builder may be taken by the landowner in full satisfaction of the agreement. It appears to me analogous to a sale of property with a power of repurchase in a certain event."
1 Citers



 
 Mackay v Dick and Stevenson; HL 1881 - (1881) 6 App Cas 251

 
 Rayner v Preston; 1881 - (1881) 18 Ch D 1

 
 National Mercantile Bank v Rymill; 1881 - (1881) 44 LTNS 767

 
 Seal v Claridge; 1881 - (1881) 7 QBD 516

 
 Couldery v Bartrum; 1881 - (1881) 19 Ch D 394

 
 Smith v Lucas; CA 1881 - (1881) 18 Ch D 531

 
 Redgrave v Hurd; CA 1881 - [1881] 20 ChD 1

 
 Roxburghe v Cox; 1881 - (1881) 17 Ch D 520
 
Dick and Stevenson v Mackay [1881] UKHL 387; 18 SLR 387
7 Mar 1881
HL
Lord Chancellor (Selborne), Lords Blackburn and Watson
Contract
Contract - Condition Precedent - When Implement of Condition Prevented by the Fault of the Debtor in the Obligation.
Application (in affirmation of a judgment of the Court of Session) of the doctrine Pro impleta habetur conditio cum per eum stat, qui, si impleta esset, debiturus esset.
In appeals falling within the 40th section of the Judicature Act no remit will be made to the Court of Session to pronounce findings as to matters of fact unless the record has distinctly raised questions relative thereto, and it can be shown from the record that the Court of Session has not exhausted the issue before it, the House of Lords having no concern with the proof led in the Sheriff Court.
[ Bailii ]
 
Caithness Flagstone Quarrying Co v Sir Tollemache Sinclair [1881] UKHL 466; 18 SLR 466
7 Apr 1881
HL
Lord Chancellor Selborne, Lord Blackburn, and Lord Watson
Agency, Contract
Writ - Holograph - Agreement Written by Factor to the Dictation of his Principal.
Held ( aff. judgment of the Court of Session) that an agreement written by the factor for one of the parties in the presence of the other party to the dictation of the factor's principal, and unsigned, is not a valid holograph writ of the principal so as to constitute, when formally accepted and acted on, a completed contract between the two parties interested therein.
[ Bailii ]
 
M'Bain v Wallace and Co [1881] UKHL 734; 18 SLR 734
27 Jul 1881
HL
Lord Chancellor Selborne, Lords Blackburn and Watson
Contract
Mercantile Law Amendment Act 1856 (19 and 20 Vict. c. 60, sec. 1) - Sale - Ship - Delivery
Where by a regular contract of sale, unqualified by any back-letter or other written agreement, a ship which was in course of construction had been sold and the price paid, but the ship itself not delivered to the buyer, the validity of the sale is not affected, so as to entitle the trustee on the sequestrated estate of the seller to prevent the buyer from obtaining possession of the ship, by the circumstances that the sale was entered into for the purpose of securing to the buyer certain cash advances made by him to the seller, and that the buyer intended to sell the ship upon delivery and retain only so much of the price as should refund him his advances.
Mercantile Law Amendment Act 1856
[ Bailii ]
 
Wallis v Smith (1882) 21 Ch D 243
1882
CA
Sir George Jessel MR
Contract, Damages
Jessel MR said: "You may depart from the literal meaning of words, if reading the words literally leads to an absurdity." and "It has always appeared to me that the doctrine of the English law as to non-payment of money - the general rule being that you cannot recover damages because it is not paid by a certain day, is not quite consistent with reason. A man may be utterly ruined by the non-payment of a sum of money on a given day, the damages may be enormous, and the other party may be wealthy."
He dealt with the question of whether a sum of money was a penalty or liquidated damages, saying: "I now come to the last class of cases. There is a class of cases relating to deposits. Where a deposit is to be forfeited for the breach of a number of stipulations, some of which may be trifling, some of which may be for the payment of money on a given day, in all those cases the Judges have held that this rule does not apply, and that the bargain of the parties is to be carried out. I think that exhausts the substance of the cases." However, he also observed that "The ground of that doctrine I do not know"
1 Citers


 
In re Hewer (1882) 21 ChD 871
1882

Bacon CJ
Contract
A true copy of a document was provided, but it was said that it could not be a true copy for an error as to the description of monthly payments. Held: Bacon CJ said that a true copy did not necessarily need to be an exact copy: "but that it shall be so true that nobody reading it can by any possibility misunderstand it." This was "as purely a clerical error as can be imagined."
Bills of Sale Act 1878
1 Citers


 
Scarf v Jardine [1882] 7 AC 345
1882
HL
Lord Blackburn, Lord Selborne LC
Litigation Practice, Estoppel, Contract
If there has been a conclusive election by the plaintiffs to adopt the liability of one of two persons, alternatively liable, they cannot afterwards make the other liable. The two claims are mutually exclusive or impossible in law. To establish an estoppel it must be shown that the person seeking to assert an estoppel has acted on the faith of the representation: "I put rather an emphasis on those last words 'against those who acted upon the faith that the authority continued.'"
An election to avoid a contract is not completed until the decision has been communicated to the other side "in such a way as to lead the opposite party to believe that he has made that choice".
'Novation' is a term derived from the civil law and therefore from Roman law. A novation operates where: "there being a contract in existence, some new contract is substituted for it, either between the same parties (for that might be) or between different parties; the consideration mutually being the discharge of the old contract."
Lord Blackburn said: "The principle, I take it, running through all the cases as to what is an election is this, that where a party in his own mind has thought that he would choose one of two remedies, even though he has written it down on a memorandum or has indicated it in some other way, that alone will not bind him; but so soon as he has not only determined to follow one of his remedies but has communicated it to the other side in such a way as to lead the opposite party to believe that he has made that choice, he has completed his election and can go no further; and whether he intended it or not, if he has done an unequivocal act - I mean an act which would be justifiable if he had elected one way and would not be justifiable if he had elected the other way -the fact of his having done that unequivocal act to the knowledge of the persons concerned is an election."
1 Citers


 
Yorkshire Railway Wagon Co v Maclure (1882) 21 CD 309
1882
CA

Contract

1 Citers


 
Taylor v Smetton (1883) 11 QBD 207
1883


Contract, Licensing
The defendant was accused of running an unlicensed lottery. He sold tea packets. With each tea packet he gave away a ticket allotting a prize to the purchaser. The prizes varied in value, and the purchaser would not know what he would receive until after he made the purchase. Held: The defendant was runing a lottery.
1 Citers



 
 Maddison v Alderson; HL 1883 - (1883) 8 App Cas 467
 
Young v Schuler (1883) 11 QBD 651
1883

Cotton LJ, Sir William Brett MR
Contract
The issue was whether Schuler had signed an agreement simply under a power of attorney on behalf of one of the named parties or, additionally, on his own behalf as a guarantor. In the case of an equivocal agency signature, it was held that evidence was admissible that the signature was also a personal signature - "evidence that he intended to sign in both capacities . . does not contradict the document and is admissible". Brett said: "But the questions whether a person has signed his name at the foot of a document, and if so, for what purpose, are questions of evidence, and any evidence on the subject which does not contradict the document is admissible . . This evidence does not contradict anything on the face of the document, and is, in my opinion, plainly admissible."
1 Citers


 
Mersey Steel and Iron Co v Naylor, Benzon and Co (1884) LR 9 App Cas 434
1884
HL
Lord Blackburn
Contract
The House explained the doctrine of repudiation of a contract: "where there is a contract which is to be performed in future, if one of the parties has said to the other in effect, ‘If you go on and perform your side of the contract I will not perform mine' . . that in effect amounts to saying, ‘I will not perform the contract.' In that case the other party may say, ‘You have given me distinct notice that you will not perform the contract. I will not wait until you have broken it, but I will treat you as having put an end to the contract, and if necessary I will sue you for damages, but at all events I will not go on with the contract'."
1 Citers


 
Smith v London and House Property Corporation (1884) 28 ChD 7
1884
CA
Bowen LJ
Contract
Bowen LJ said: "In considering whether there was a misrepresentation, I will first deal with the argument that the particulars only contain a statement of opinion about the tenant. It is material to observe that it is often fallaciously assumed that a statement of opinion cannot involve the statement of fact. In a case where the facts are equally well known to both parties, what one of them says to the other is frequently nothing but an expression of opinion. The statement of such opinion is in a sense a statement of a fact, about the condition of the man's own mind, but only of an irrelevant fact, for it is of no consequence what the opinion is. But if the facts are not equally known to both sides, then a statement of opinion by the one who knows the facts best involves very often a statement of a material fact, for he impliedly states that he knows facts which justify his opinion"
1 Citers


 
Howe v Smith (1884) LR 27 Ch D 89
1884
CA
Bowen, Cotton, Fry LJJ
Contract, Land
A contract for the sale of land required the purchaser to pay £500 "as a deposit and in part payment of the purchase money", and that if the purchaser failed to complete on time the vendor should be free to resell and recover any deficiency in price as liquidated damages. The purchaser failed to complete and the vendor resold the property for the same price. The question for the Court of Appeal was whether the vendor was entitled to retain the £500, having suffered no loss. Held: The court considered the contract and, in particular, what was meant by the words "as a deposit and in part payment of the purchase money". The contract meant that the payment was not to be merely a part payment but also a guarantee of performance, entitling the vendor to forfeit the payment if the purchaser failed to complete.
Bowen LJ said: "The question as to the right of the purchaser to the return of the deposit money must, in each case, be a question of the conditions of the contract. In principle it ought to be so, because of course persons may make exactly what bargain they please as to what is to be done with the money deposited. We have to look to the documents to see what bargain was made."
1 Citers


 
Kettlewell v Watson (1884) 26 Ch D 501
1884


Land, Contract
A vendor's lien was postponed to the equitable interest of a third party with whom the purchaser from the vendor had had dealings.
1 Citers


 
Regina v Moore (1884) 10 VLR 322
1884

Higinbotham J
Contract
(Australia) "Where a statute merely requires that a document shall be signed, the statute is satisfied by proof of the making of a mark upon the document by or by the authority of that signatory".
1 Citers


 
Bridger v Savage (1884) 15 QBD 363
1884


Contract
Void nature of gaming contract.
1 Citers


 
Smith v Chadwick (1884) 9 App Cas 187
1884
HL
Lord Blackburn, Lord Selborne LC
Contract, Insurance, Torts - Other
A purchaser claimed to have entered into the contract in reliance on the truth of a misrepresentation by the seller. The plaintiff claimed damages for deceit through having been induced to buy shares in an iron company by false representations in a prospectus as to the output of the iron works. Held: his claim failed because the critical words of the prospectus were ambiguous, and the plaintiff had failed to show that he understood them in a sense which was false.
An inference of inducement can be made or rebutted on evidence. Lord Blackburn, said: "I think if it is proved that the defendants with a view to induce the plaintiff to enter a contract made a statement to the plaintiff of such a nature as would be likely to induce a person to enter into a contract, and it is proved that the plaintiff did enter into the contract, it is a fair inference of fact that he was induced to do so by the statement."
. . and "In Pasley v Freeman, 2 Smith's Leading Cases 66, 73, 86 (8th ed), Buller J says: 'The foundation of this action is fraud and deceit in the defendant and damage to the plaintiffs. And the question is whether an action thus founded can be sustained in a court of law. Fraud without damage, or damage without fraud, gives no cause of action, but where these two concur an action lies, per Croke J, 3 Bulst 95.'
Whatever difficulties there may be as to defining what is fraud and deceit, I think no one will venture to dispute that the plaintiff cannot recover unless he proves damage. In an ordinary action of deceit the plaintiff alleges that false and fraudulent representations were made by the defendant to the plaintiff in order to induce him, the plaintiff, to act upon them. I think that if he did act upon these representations, he shews damage; if he did not, he shews none."
Lord Selborne LC said: "My Lords, I conceive that in an action of deceit, like the present, it is the duty of the plaintiff to establish two things; first, actual fraud, which is to be judged by the nature and character of the representations made, considered with reference to the object for which they were made, the knowledge or means of knowledge of the person making them, and the intention which the law justly imputes to every man to produce those consequences which are the natural result of his acts: and, secondly, he must establish that this fraud was an inducing cause to the contract; for which purpose it must be material, and it must have produced in his mind an erroneous belief, influencing his conduct."
1 Citers


 
Hettihewage Siman Appu v The Queen's Advocate (1883-84) LR 9 App Cas 571; [1884] UKPC 22
7 Apr 1884
PC

Contract, Commonwealth
(Ceylon)
[ Bailii ]

 
 Foakes v Beer; HL 16-May-1884 - (1884) 9 App Cas 605; [1884] UKHL 1
 
Smith v Land and House Property Corporation (1885) LR 28 Ch D 7
1885
CA
Bowen LJ
Contract, Torts - Other
Bowen LJ said: "if the facts are not equally known to both sides, then a statement of opinion by the one who knows the facts best involves very often a statement of material fact, for he impliedly states that he knows facts which justify his opinion".
1 Citers


 
In re Young and Harston's Contract [1885] 80 Ch D 168
1885
CA
Bowen LJ
Contract
The court set out what was meant by the term 'wilful default' when used in a contract for the sale of land. Bowen LJ said: "Wilful is a word of familiar use in every branch of law, and although in some branches of the law it may have a special meaning, it generally, as used in courts of law implies nothing blameable, but merely that the person of whose action or default the expression is used, is a free agent, and that what has been done arises from the spontaneous action of his will. It amounts to nothing more than this, that he knew what he was doing, and intends to do what he is doing, and is a free agent."
1 Citers


 
Gandy v Gandy (1885) 30 ChD 57
1885

Bowen LJ
Contract
In spite of earlier cases to the contrary, Tweddle v Atkinson had laid down "the true common law doctrine".
1 Cites



 
 Edgington v Fitzmaurice; CA 1885 - (1885) 29 Ch D 459
 
Birmingham and District Land Co v London and North Western Railway (1886) 40 ChD 268
1886
CA
Cotton LJ, Fry LJ, Bowen LJ
Contract, Estoppel
The court considered the creation of an estoppel: Cotton LJ: ". . what passed did not make a new agreement, but . . what took place . . raised an equity against him."
Bowen LJ said: "The truth is that the proposition is wider than cases of forfeiture. It seems to me to amount to this, that if persons who have contractual rights against others induce by their conduct those against whom they have such rights to believe that such rights will either not be enforced or will be kept in suspense or abeyance for some particular time, those persons will not be allowed by a Court of Equity to enforce the rights until such time has elapsed, without at all events placing the parties in the same position as they were before. That is the principle to be applied. I will not say it is not a principle that was recognised by Courts of Law as well as of Equity. It is not necessary to consider how far it was always a principle of common law."
Fry LJ considered that there was an essential difference between a claim for damages for breach of a contract and a claim for an indemnity under an express provision in a contract.
1 Citers


 
Nottingham Patent Brick Co v Butler (1886) 16 QBD 778
1886


Contract, Legal Professions
A solicitor stated that he was not aware that property was subject to any restrictions, but his failure to add that he had not read the relevant deeds made his statement a misrepresentation.
1 Citers


 
Johnstone v Milling (1886) 16 QBD 460
1886
CA
Lord Esher MR, Bowen LJ
Contract
The court considered the acceptance of the repudiation of a contract. Held: Lord Esher MR said: "When one party assumes to renounce the contract, that is, by anticipation refuses to perform it, he thereby, so far as he is concerned, declares his intention then and there to rescind the contract. Such a renunciation does not of course amount to a rescission of the contract, because one party to a contract cannot by himself rescind it, but by wrongfully making such a renunciation of the contract he entitles the other party, if he pleases, to agree to the contract being put an end to, subject to the retention by him of his right to bring an action in respect of such wrongful rescission. The other party may adopt such renunciation of the contract by so acting upon it as in effect to declare that he too treats the contract as at an end, except for the purpose of bringing an action upon it for the damages sustained by him in consequence of such renunciation. He cannot, however, himself proceed with the contract on the footing that it still exists for other purposes and also treat such renunciation as an immediate breach. If he adopts the renunciation, the contract is at an end except for the purposes of the action for such wrongful renunciation; if he does not wish to do so, he must wait for the arrival of the time when in the ordinary course a cause of action on the contract would arise. He must elect which course he will pursue."
Bowen LJ said that a repudiation "only becomes a wrongful act if the promisee elects to treat it as such", and "The claim being for wrongful repudiation of the contract it was necessary that the plaintiff's language should amount to a declaration of intention not to carry out the contract, or that it should be such that the defendant was justified in inferring from it such intention. We must construe the language used by the light of the contract and the circumstances of the case in order to see whether there was in this case any such renunciation of the contract."
1 Citers



 
 Lord Elphinstone v Monkland Iron and Coal Co; HL 1886 - (1886) 11 AC 332
 
Newbigging v Adam (1886) 34 Ch D 582
1886
CA
Bowen LJ
Company, Contract, Contract
A party seeking rescission of a contract must give back all that he received. The purpose of rescission is still to restore the parties as nearly as possible to the position in which they were before the contract was made. Bowen LJ said: "when you come to consider what is the exact relief to which a person is entitled in a case of misrepresentation it seems to me to be this, and nothing more, that he is entitled to have the contract rescinded, and is entitled accordingly to all the incidents and consequences of such rescission. It is said that the injured party is entitled to be replaced in statu quo. It seems to me that when you are dealing with innocent misrepresentation you must understand that proposition that he is to be replaced in statu quo with this limitation - that he is not to be replaced in exactly the same position in all respects, otherwise he would be entitled to recover damages, but is to be replaced in his position so far as regards the rights and obligations which have been created by the contract into which he has been induced to enter. That seems to me to be the true doctrine, and I think it is put in the neatest way in Redgrave v Hurd ."
1 Citers


 
National Provincial Bank v Jackson [1886] 33 Ch D 1
1886
CA
Cotton LJ
Contract
Two sisters executed deeds relating to their property, but did not read them first or having them read out to them or explained. They said that they had relied on their brother, a solicitor. Held: Cotton LJ said that they could not have been said to have been guilty of negligence in so doing, but their plea of non est factum failed as they knew that the deeds they signed dealt in some way with their houses.
1 Citers


 
Falke v Scottish Imperial Insurance Company (1886) 34 Ch D 234
1886


Contract

1 Citers


 
Ex parte Parsons, In re: Townsend (1886) 16 QBD 532
1886
CA
Lord Esher MR
Contract
Parsons was to advance money to Townsend. As security he was to have the right to take immediate possession of the goods and sell them. Held. As a licence to take possession of goods as between two private individuals, it fell within sections 3 and 4 of the 1878 Act. As whether it was a bill of sale within the 1882 Act Lord Esher MR said: "Section 3 says that the two Acts are to be construed as one, and that the expression "bill of sale" is to have the same meaning in the Act of 1882 as in the Act of 1878, except as to bills of sale given otherwise and by way of security for the payment of money, to which the Act is not to apply. This document, therefore, is a bill of sale within the Act of 1882 because it is a bill of sale within the Act of 1878." It was not made in the form required and it was, therefore, void.
Bills of Sale Act 1878 6 8
1 Citers


 
Lound v Grimwade [1886] 39 ChD 605
1886
ChD
Stirling J
Contract
The plaintiff tried to set aside a bond, saying that he had executed it under duress in the form of the threat of criminal proceedings. Held: The bond had not been executed under pressure at law. However the consideration for it included a stipulation that certain criminal proceedings against a third party should be conducted in such a way that the plaintiff's name should not be mentioned and, accordingly, the consideration was partly illegal.
Stirling J referred to Egerton v Bownlow and said: "Upon this principle it has been repeatedly held that agreements tending to affect the course of legal proceedings are illegal, even although those proceedings may not be strictly criminal in their nature."
1 Cites

1 Citers


 
Newbigging v Adam (1886) 34 Ch D 582
1886
CA
Bowen LJ
Company, Contract, Contract
A party seeking rescission of a contract must give back all that he received. The purpose of rescission is still to restore the parties as nearly as possible to the position in which they were before the contract was made. Bowen LJ said: "when you come to consider what is the exact relief to which a person is entitled in a case of misrepresentation it seems to me to be this, and nothing more, that he is entitled to have the contract rescinded, and is entitled accordingly to all the incidents and consequences of such rescission. It is said that the injured party is entitled to be replaced in statu quo. It seems to me that when you are dealing with innocent misrepresentation you must understand that proposition that he is to be replaced in statu quo with this limitation - that he is not to be replaced in exactly the same position in all respects, otherwise he would be entitled to recover damages, but is to be replaced in his position so far as regards the rights and obligations which have been created by the contract into which he has been induced to enter. That seems to me to be the true doctrine, and I think it is put in the neatest way in Redgrave v Hurd ."
1 Citers



 
 Fairbanks v Snow; 1887 - (1887) 13 NE 596

 
 Mogul Steamship Company Limited v McGregor Gow and Co; 1888 - (1888) 20 QBD 544
 
Arinson v Smith (1888) 41 Ch 348
1888
CA
Lord Halsbury LC
Contract
The court asked whether a misrepresentation in a prospectus was corrected by a circular issued after shares had been allotted to investors who had relied on the prospectus. Held: It was not, and that what would have been required was a clear statement in the circular calling attention to the fact that there was a serious error in the prospectus.
1 Citers



 
 Fry v Lane; QBD 1888 - [1888] 15 Ch D 679
 
Birmingham, Dudley and District Banking Co v Ross (1888) 38 Ch D 295
1888
CA
Cotton, Lindley, Bowen LJJ
Land, Contract
Birmingham Corporation secured development of a large area by building agreements which granted leases on completion of the buildings to their builders. One builder, Daniell, erected a building to a height of 48 feet, and assigned his interest under his lease to the claimants. At the time of the lease there was only a low building on the land the other side of the road, but the land was part of the area the subject of the building scheme. Another builder, the defendant Ross, subsequently commenced erecting a building 80 feet high on the other side of the road to the claimants' buildings. The claimants sought an injunction to restrain interference with their right to light. Kekewich J. dismissed the action. Held: The court dismissed the appeal. (Cotton LJ) Referring to the Act said that the light claimed could not be said to be a light, within the meaning of the section, enjoyed with the house. When the lease was granted it was obvious to both parties that this was a large tract of land bought by the corporation for effecting an improvement and to be built on. The light then enjoyed could not be considered as enjoyed within the meaning of the section because both parties had no expectation of the continuance of that light. A light enjoyed by a person under the statute must be "that which he has enjoyed under circumstances which would lead to an expectation that the enjoyment of that light would be continued, and that it would not be simply precarious" . referred to the implied obligation of a grantor not to interfere with his grant and said "But when the question is as to an implied obligation we must have regard to all the circumstances which existed at the time when the conveyance was executed which brought the parties into that relation from which the implied obligation results; I quite agree that we ought not to have regard to any agreement during the negotiations entered into between the Plaintiffs and the corporation; except in this way; if we find that any particular space in fact was left open at the time when the lease was granted, and that that open space was contracted to be left open during the negotiation which took place, and is not referred to in the lease, we must have regard to the fact of that open space being left, and we must have regard to the fact that by agreement between the parties the lessor had bound himself not to build upon that space; and also we must, in my opinion, in determining what obligation results from the position in which the parties have put themselves, have regard to all the other facts which existed at the time when the conveyance was made, or when the lease was granted, and which were known to both parties." On the facts Cotton L.J. found that Daniell knew of the building scheme and so he found no interference with the claimants' rights. (Lindley L.J) Considered it as at the time of the grant "I think [counsel for the claimants] was quite right in saying that we are not to go into the preliminary negotiations which resulted in the final lease. They might be important, and perhaps would be necessarily important, if we were considering whether the lease should be rectified or not, but for the purpose of construing the lease all such considerations as those ought to be disregarded. But the state of the property is all important; and what was being done with it is all important." He referred to the building scheme and concluded that the easement of light impliedly granted by the lease was of such amount as would come over the corporation's land to Daniell's house after the corporation had built what it liked on the other side of the street. (Bowen L.J) Daniell's knew that houses were to be built on the other side of the street and that once they were built above the level of the house in existence there must be some interference with his lights and that there was no stipulation as to the height of the house to be built there, the only protection to his light being the width of the road.
Conveyancing Act 1881 6
1 Citers


 
Leduc v Ward [1888] 20 QBD 475
1888


Contract
A transferee of a bill of lading is subject only to the obligations which appear in the bill of lading itself but not to any merely collateral terms.
1 Citers


 
Pollard v Photographic Co (1888) 40 Ch Div 345
1888

North J
Intellectual Property, Contract
Mrs Pollard had contracted with the defendant for photographs to be taken of herself for her own purposes. She found that the defendant was using the photograph for quite different purposes. She argued that, she having contracted for the photograph to be taken for one purpose, there was an implied term that it should not be used for any other. Held: Such an implied term did exist.
1 Citers


 
Government of Newfoundland v Newfoundland Railway (1888) 13 App Cas 199; [1888] UKPC 7
7 Feb 1888
PC
Lord Hobhouse
Equity, Contract
A railway company and its assignees brought action the Government. Under the contract the company was to build a railway subsidised by the government. The railway was not completed. The parties disputed whether the contract was "entire" and no part of the subsidy was payable unless the railway as a whole was completed. The company succeeded on that. The government counterclaimed for the non-completion, and sought a set off from the subsidies. Held. The Board emphasised the intertwined nature of the obligations, and said that it "had no hesitation in saying that in this contract the claims for subsidy and for non-construction ought to be set against one another." The set-off could not be made as against the assignees: that once notice of the assignment of the debt had been given, "the debt or claim is so severed from the rest of the contract that the assignee may hold it free from any counter-claim in respect of other terms of the same contract." However it distinguished between a set-off properly allowable under the contract itself, which bound an assignee of a debt due under that contract, and a cross-claim which might "arise from any fresh transaction freely entered into by [the government] after notice of assignment by the company." In the first case, "It would be a lamentable thing if it were found to be the law that a party to a contract may assign a portion of it, perhaps a beneficial portion, so that the assignee shall take the benefit, wholly discharged of any counter-claim by the other party in respect of the rest of the contract, which may be burdensome. There is no universal rule that claims arising out of the same contract may be set against one another in all circumstances . . Unliquidated damages may be set off as between the original parties, and also against an assignee if flowing out of and inseparably connected with dealings and transactions which also give rise to the subject of the assignment."
1 Citers

[ Bailii ]
 
Day v McLea (1889) 22 QBD 610
1889
CA
Bowen LJ, Lord Esher MR
Contract
The fact alone that a person receives and accepts a cheque offered in full and final settlement of the person's claim for a higher sum does not create an accord and satisfaction. There is only an accord if there is an agreement whereby the person was prepared to accept the sum sent in full satisfaction of all claims, or if the person acts in such a way as to induce the payer to think that the money is taken in satisfaction of the claim and to cause the person to act upon that view.
Bowen LJ said: "If a person sends a sum of money on the terms that it is to be taken if at all, in satisfaction of a larger claim; if the money is kept, it is a question of fact as to the terms upon which it is so kept. The accord and satisfaction imply an agreement to take the money in satisfaction of the claim in respect of which it is sent. If accord is a question of agreement, there must be either two minds agreeing or one of the two persons acting in such a way as to induce the other to think that the money is taken satisfaction of the claim, and according to act upon that view".
Lord Esher MR said: 'The question whether there has been an accord and satisfaction is one of fact'
1 Citers


 
In re Detmold, Detmold v Detmold (1889) 40 Ch D 585
1889


Insolvency, Contract
A provision stated that the property in a marriage settlement (originating from the husband) should pass to the wife for life in the event of an alienation by, or the bankruptcy of, the husband. Held: It was valid against the husband's trustee in bankruptcy, on the ground that it had been triggered, prior to the commencement of the bankruptcy, by the alienation effected as the result of the appointment of a receiver of the property in the settlement.
1 Citers


 
Inland Revenue Commissioners v G Angus and Co (1889) 23 QBD 579
1889
CA
Lindley LJ, Lord Esher MR
Land, Contract, Stamp Duty
Lord Esher MR rejected an argument that a specifically enforceable contract or agreement for the sale of land is in truth a conveyance: "And it is said that, when an agreement is such that equity will grant specific performance of it, it is to be considered as a conveyance in equity, or an 'equitable conveyance.' If that were true, it would be an equitable conveyance of a legal property or a legal right. But let us consider what the doctrine of specific performance is. If the instrument is a 'conveyance' in itself, why do you want a decree for specific performance? If the instrument has conveyed the property to the purchaser, he does not require specific performance of an agreement with reference to his own property which has been already conveyed to him. The fact that the instrument is one of which equity will decree specific performance, fixes it at once as an 'agreement,' and not as a 'conveyance.' It would be a contradiction of terms to say that that which requires a decree for specific performance is in itself a 'conveyance' which has conveyed the property to the purchaser. If there has been a 'conveyance' of the property, you do not require specific performance. If property sold is conveyed by an instrument to the purchaser, and after that conveyance the vendor keeps it, the purchaser's remedy would not be by way of specific performance, but, if the property be personal property, by an action of trover; or, if it be real property, by an action of ejectment. In my opinion, therefore, however clear it may be that an instrument is an agreement of which a Court of Equity would instantly decree specific performance, if it were not performed by the vendor, such an instrument is not a 'conveyance on sale' within the meaning of the Act, but is only an 'agreement'."
Stamp Act 1870 70
1 Cites

1 Citers


 
The Stettin (1889) 14 PD 142
1889


Transport, Contract
A bill of lading was issued by the owners of a German flag vessel and covered carriage from London to Stettin. It was made out to a named consignee "or to his or their assigns" who was the agent for Julius Manasse in Breslau, and was instructed by the shipper on arrival in Stettin to arrange for the goods to be sent on by lighter to Manasse. No bill of lading was produced by him for delivery, however, and the shipper was not paid. The shipper sued the carrier for misdelivery of the goods. The defendant shipowner’s said that where there was a named consignee "or order" but the consignee did not endorse the bill (as in that case), the effect was the same as a straight bill of lading. The shipowner could deliver to the consignee without production of a bill of lading unless told by the shipper not to do so, taking the risk, presumably as against an endorsee, of whether there had been an endorsement or not. Held: German law does not essentially differ from English law, according to which a shipowner may not deliver goods to the consignee without production of the bill of lading. The shipowner must take the consequences.
1 Citers


 
Fry v Lane, re Fry, Whittet v Bush (1889) 40 Ch D 312; [1886-90] All ER Rep 1084
1889
CA
Kay J
Contract
Sales of reversionary interests at considerable undervalues by poor and ignorant persons were set aside. "The result of the decisions is that where a purchase is made from a poor and ignorant man at a considerable undervalue, the vendor having no independent advice, a Court of Equity will set aside the transaction. This will be done even in the case of property in possession, and a fortiori if the interest be reversionary. The circumstances of poverty and ignorance of the vendor, and absence of independent advice, throw upon the purchaser, when the transaction is impeached, the onus of proving, in Lord Selborne's words, that the purchase was `fair, just, and reasonable'."
1 Cites

1 Citers



 
 The Moorcock; CA 1889 - (1889) 14 PD 64; [1886-90] All ER 530; (1889) 5 TLR 316; (1870) LR 5
 
Re Fawcett and Holmes' contract (1889) 42 ChD 150
1889
CA
Lord Esher MR
Land, Contract
It was not a sufficient misdescription of land under a contract to allow rescission, that the vendor had no title to 339 square yards out of the 1372 square yards at which it had been estimated. A clause in the contract allowed for a possibility of compensation for any error pointed out before completion. The buyer was restricted to that compensation, and had to proceed to complete.
Only covenants relating to benefitted land, and not covenants personal to a vendor, will run with the burdened land.

 
Antony Gibbs and Sons v La Societe Industrielle et Commerciale des Metaux (1890) 25 QBD 399
1890
CA
Lord Esher MR, Lindley and Lopes LJJ
Contract, International
The defendant had agreed to buy copper to be delivered in England by the plaintiff. The defendant refused to accept the copper and so was liable in damages to the plaintiff. The defendant, a French company, was placed in judicial liquidation in France and it was assumed that as a matter of French law, the defendant was discharged from its liability in damages. Held: Lord Esher MR held (at p.406) that French law was irrelevant because it was "not a law of the country to which the contract belongs, or one by which the contracting parties can be taken to have agreed to be bound; it is the law of another country by which they have not agreed to be bound."
1 Citers



 
 Kearley v Thompson; 1890 - (1890) 24 QBD 742
 
Read v Joannon (1890) 25 QBD 300
1890

Wills J, Lord Coleridge CJ
Contract, Company
The court considered the application of the 1878 Act. Held: Where there are a series of Acts dealing with a topic and with similar names, the words "this Act" in expressions such as "in this Act" or "under this Act" must be construed to mean the combined Acts.
Wills J said: "I am of the same opinion; and I agree with my Lord, on consideration, that debentures of an incorporated company are not, and were never intended to be within the operation of the Act of 1878."
Lord Coleridge CJ said: "The question is, whether a debenture of an incorporated company requires registration as a bill of sale. I am of the opinion – and I think it right to say that my opinion does not stand alone, but is supported by that of a judge of much greater authority than myself, whom I have had the opportunity of consulting – that such debentures are not bills of sale, and are not struck at by either of these Acts of Parliament – that they were never within the Act of 1878 and are expressly exempted from the operation of the Act of 1882."
Bills of Sale Act 1878 4 - Bills of Sale Act 1882
1 Citers


 
In Re New Eberhardt Company, Ex parte Menzies (1890) 43 ChD 118
1890

Bowen, Fry LJJ
Contract, Company
The 1677 Statute is complied with if, per Fry LJ: "First, there must be at or before the date of the issue of these shares, a contract; secondly, that contract must be duly made in writing; and thirdly, that contract must be filed with the Registrar. Now, all these things must be done or must be in existence at or before the date of the issue. You cannot have a contract filed before the issue of the shares if it is not a contract till after the issue of the shares." However, the use of a written offer as a note or memorandum of the contract entered into upon its oral acceptance "pushed the literal construction of the Statue of Frauds to a limit beyond which it would perhaps be not easy to go"
Statute of Frauds 1677 4
1 Citers


 
Tancred, Arrol, and Co v The Steel Co of Scotland [1890] UKHL 463; 27 SLR 463
7 Mar 1890
HL
Lord Chancellor (Halsbury), and Lords Watson, Bramwell, Herschell and Morris
Arbitration, Contract
Arbitration - Reference to Arbiter Unnamed - Reference to Person Holding Office for Time Being - Delectus Personae
Custom - Usage of Trade - Contract - Proof Inadmissible where Language not Technical
The arbitration clause in a contract for the construction of a bridge provided that any question that might arise as to the meaning and intent of the contract should be settled, in the case of difference, by the engineer for the time being of one of the parties.
Held ( aff. the judgment of the First Division) that the reference was invalid, there being no appointment of a referee inferring a delectus personae on the part of the contracting parties.
A contract was entered into by which manufacturers of steel offered to supply the contractors, who were constructing a bridge, with "the whole of the steel required by" them for the bridge at prices which were stated and subject to certain terms and conditions, inter alia, "The estimated quantity of the steel we understand to be 30,000 tons more or less." The offer was accepted by the contractors, who repeated this estimate in their letter of acceptance. In an action at the instance of the manufacturers to compel the contractors to take from the pursuers the whole of the steel required for the construction of the bridge, the defenders averred that by the custom and practice of the iron and steel trade the contract was to be regarded only as a contract for the estimated quantity with a certain margin for variation.
Held ( aff. the judgment of the First Division) that evidence of the alleged custom or usage of trade was inadmissible, as the words of the contract were unambiguous.
[ Bailii ]
 
Stewart v Kennedy [1890] UKHL 1; (1890) 17 R (HL) 25; (1890) LR 15 App Cas 108
10 Mar 1890
HL
Lord Watson
Contract
As a general rule of Scottish law, extrinsic evidence of the parties' intention as to whether or not they intended to be bound by obligations which they have entered into in writing is inadmissible. There may however be exceptional cases.
For a plea of error to succeed, it had to be shown that there was uninduced unilateral error going to the "substantials" of the contract.
A party must take his contract as bearing whatever meaning the court will assign to it when it is called upon to interpret it. He is bound 'by the interpretation which a court of law may put upon the language of the instrument.'
1 Citers

[ Bailii ]
 
Sir A D Stewart v Kennedy and Another [1890] UKHL 469; 27 SLR 469
10 Mar 1890
HL
Lords Herschell, Watson, and Macnaghten
Contract
Contract - Sale of Entailed Estate - Essentials of Sale - Reduction - Alleged Misunderstanding by Vendor - Trial - Issues - Essential Error - Misrepresentation.
An heir of entail in possession having entered into a contract for the sale of the entailed estate, the Court construed the contract to mean that the seller was under a legal obligation to apply to the Court for approval of the sale under the 5th section of the Entail Amendment Act 1853, as amended by the 13th section of the Entail Act 1882.
The seller, proceeding on the construction that the sale was absolute, raised an action for the reduction of the contract on these grounds, (1) that the offer was obtained by fraud and circumvention; (2) that he was under essential error, in respect that in entering into the contract he believed he would be bound by it to apply to the Court for an order of sale under the Entail Act 1882 whereby an entailed estate might be converted into money, and would not be bound to sell at the price proposed if the Court should hold it to be inadequate; (3) error induced by the purchaser's agent; (4) false and fraudulent representations by the said agent. The Lord Ordinary appointed the issue of facility and circumvention to be the issue for the trial of the cause. On a reclaiming-note the First Division adhered, and so far the parties acquiesced. Their Lordships refused an issue of essential error, on the ground that the error alleged was not in essentialibus, but concerned only the import and effect of the contract, Lord Shand dissenting, on the ground that the pursuer was entitled to both issues.
The pursuer appealed to the House of Lords, and asked an additional issue-the second or else the third, and if neither was granted, then the fourth.
Held ( aff. the judgment of the Court of Session) that the alleged error of the pursuer was by itself insufficient to invalidate his consent; and ( rev. the judgment of the Court of Session) that in view of the pursuer's averments an issue of essential error induced by the purchaser's agent must be allowed.
[ Bailii ]
 
Sutton and Co v Ciceri Co [1890] UKHL 1018; 27 SLR 1018
25 Mar 1890
HL
Lords Herschell, Watson, and Morris
Contract
Contract - Implement - Carrier - Goods Injured - Statuary, Meaning of - Onus
Ciceri and Company, Edinburgh, informed Sutton and Company, London, that they had at Venice and Leghorn a large quantity of goods for shipment "consisting of wooden figures, old cases, marble and terra-cotta busts, marble columns, wood frames," andc., and requested a quotation of rates for such goods from both these ports to Glasgow by steamer. Sutton and Company, who contracted with steamship and railway companies for the carriage of goods, and charged through rates to the owners, in reply quoted "for alabaster goods, furniture, andc., but not for goods described as statuary, the rate of 1s. per cubic foot." Ciceri and Company wrote, "you seem to make a difference between marble busts and columns and alabaster. Please let us know about this." Sutton and Company stated that the quoted rates only applied to freight and did not cover insurance risks, but did not reply to the question as to the supposed difference between the classes of goods. On these terms various large terra-cotta figures, and small figures of men and animals were carried for Ciceri and Company through the agency of Sutton and Company from Leghorn to Edinburgh. The goods arrived injured, and Ciceri and Company sued Sutton and Company for damages in respect of failure to implement their contract of carriage, The defenders maintained (1) that they had acted not as carriers for the pursuers but as their agents in contracting with the actual carriers of the goods, and that their contract of agency had been fully implemented; (2) that the damaged goods were "statuary," and thus excepted from the contract.
Held ( affirming the judgment of the Second Division) (1) that the defenders were liable as carriers for the injury suffered by the goods, and (2) that the terra-cotta busts not being "statuary" were not excepted from the contract.
Opinion ( per Lord Watson) that general evidence ought not to be led as to the meaning of words of contract without a distinct averment on record as to the particular words to which the proof is to be directed, and the precise technical or trade meaning which the person making the averment desires to attribute to them.
[ Bailii ]
 
In re Standard Manufacturing Co [1891] 1 Ch 627
1891
CA

Company, Contract
Company debentures were expressly excepted from the operation of the Bills of Sales Act (1878) Amendment Act 1882 by section 17 of that Act because they were debentures "issued by any mortgage, loan, or other incorporated company". Nor were debentures bills of sale to which the Act of 1878 applied and company debentures themselves were not within the 1878 Act. The avowed design of the legislature had been to strike at frauds perpetrated upon creditors by secret bills of sale as the preamble to the Bills of Sale Act 1854 made plain: "Whereas frauds are frequently committed upon creditors by secret bills of sale of personal chattels, whereby persons are enabled to keep up the appearance of being in good circumstances and possessed of property, and the grantees or holders of such bills of sale have the power of taking possession of the property of such persons, to the exclusion of the rest of their creditors."
The 1862 Act provided for the registration by companies of the mortgages and charges specifically affecting their property and accordingly company debentures could hardly be described as "secret documents".
The court concluded: "mortgages or charges of any incorporated company for the registration of which a statutory provision had already been made by the Companies Clauses Act 1845 or the Companies Act 1862 are not bills of sale within the Bills of Sale Act 1878."
Bills of Sales Act (1878) Amendment Act 1882 - Bills of Sales Act 1878 - Bills of Sale Act 1854 - Companies Act 1862 - Companies Clauses Act 1845
1 Cites

1 Citers


 
Longman v Hill (1891) 7 Times Law Reports 639
1891


Contract
The question whether an election to rescind a contract has been validly exercised is always one of fact.
1 Citers


 
North British Railway Co v Wood [1891] UKHL 921
2 Jul 1891
HL
Earl of Selborne and Lords Watson, Bramwell, Macnaghten, and Morris
Damages, Contract
Reparation - Railway Accident - Nervous Shock - Document Discharging All Claims - Consideration Inadequate.
A person was injured in a railway accident. Nine days after he accepted pounds 27 from the railway company, and granted a discharge "in full of all claims competent to him in respect of injury and loss sustained." Eighteen months afterwards he brought an action for damages against the railway company, who pleaded that the action was barred by the discharge. After a proof, the Lord Ordinary awarded the pursuer pounds 500 as damages. This award was affirmed by the Second Division, on the ground that it was a reasonable sum.
Held that the document was in terms a final discharge, and that there was no evidence to support the contention of the pursuer that he did not understand the document as a final discharge, or that he had told the representative of the railway company that if he did not recover he would still hold them liable.
[ Bailii ]

 
 Henthorn v Fraser; 1892 - [1892] 2 Ch 27
 
In Re Cassey's Patents, Stewart v Casey [1892] 1 Ch 104
1892

Bowen LJ
Contract
Bowen LJ said: "Even if it were true, as some scientific students of law believe, that a past service cannot support a future promise, you must look at the document and see if the promise cannot receive a proper effect in some other way. Now, the fact of a past service raises an implication that at the time it was rendered it was to be paid for, and, if it was a service which was to be paid for, when you get in the subsequent document a promise to pay, that promise may be treated either as an admission which evidences or as a positive bargain which fixes the amount of that reasonable remuneration on the faith of which the service was originally rendered. So that here for past services there is ample justification for the promise to give the third share ".


 
 Imperial Loan Co v Stone; CA 1892 - [1892] 1 QB 599
 
Scott v Brown, Doering, McNab and Co [1892] 2 QB 724
1892


Contract
The plaintiff sought rescission of a contract for the purchase of shares, but failed because the contract had been entered into with the sole object of rigging the market by inducing the public to believe that there was a real market for the shares and that they were at a premium. The intention was not to make use of the shares in an unlawful way but to make use of the share contract to defraud the public. Held: The plaintiff was found to have created a false market in shares by his false and fictitious acts.
1 Citers


 
Knight and Co v Stott (1892) 19 R 959
1892


Contract
The Court will hear an action which is connected with a gambling transaction if the connection is merely collateral or incidental.
1 Citers


 
Caledonian Insurance Company v Gilmour 1892 20 R (HL) 13
1892
HL

Scotland, Contract
If parties had agreed as to the way in which a liability to pay was to be determined, that was binding, and if the contractual method of determining liability was not followed the pursuers would be trying to enforce a contract of a different nature.
1 Citers


 
Tremills v Benton (1892) 18 VLR 607
1892

Holroyd J, Hodges J
Commonwealth, Contract
A lunatic who appeared to be sane, entered into a contract. His representatives sought to set aside deeds of gift by the lunatic to the defendants. The administrator sought to set aside the deeds on the ground that their execution was obtained by undue influence, and secondly on the ground that Tremills was, to the knowledge of the Bentons, of unsound mind. The trial judge found that although Tremills was in full possession of his faculties, he suffered from delusions; he was not however acting in subjection to any undue influence.
The Chief Justice said: "Was the contract itself, which was entered into by the parties, a fair and bona fide contract? If it was, this case is clearly within the legal and the equitable rule by which such a contract, if executed and completed, is to be upheld, although it has been made by a person of unsound mind with another person who has no knowledge that he is contracting with a lunatic. In determining whether a contract is or is not unfair, the adequacy of the consideration is, as the learned primary judge observed, one of the elements to be regarded; but it should be added that it is only one element, and that in order to justify the avoidance of a contract on this ground, the inadequacy of the consideration must be so great as to be unconscionable, and to amount in itself to conclusive and decisive evidence of over-reaching or fraud." and "Holding, as we are bound to do, that proof of undue influence on the part of the defendants has failed, and that the deceased had full possession of his faculties, and perfectly comprehended what he was doing, I cannot find any evidence whatever that the transaction between these parties was in itself wanting in fairness and bona fides. The deceased, who was advised by his solicitor, had a single, definite object in view. Under the influence of an insane delusion, he wished to deprive his son of his property after his own death, while at the same time he sanely and prudently desired ,to retain full possession of it during the remainder of his life, and also to secure for himself the benefits and comforts of a home.
He bargained for this as a condition of his gift, and the defendants complied with his wish, and covenanted to carry it into effect. The burden of the covenant was in the event small in proportion to the money value of the gift, but the disparity was not caused by the act or demand or undue influence of the defendants. They gave the consideration they were asked to give, and that was all that the deceased in his insane delusion, and in his prudent regard for himself, thought of requiring. The bargain was made a legal and binding bargain by the act of the deceased, and apart from the suspicion, which we must hold to be unfounded, of undue influence having been employed to bring it about, presents no trace of fraud or over-reaching on the part of the defendants, although they undoubtedly reaped the larger share of the benefit of the bargain. I think that we should be departing from the principles on which courts of equity have acted in similar cases if these deeds should now be set aside at the instance of the administrator."
Holroyd J said: "After much hesitation, and examining carefully all the authorities that were cited, I have come to the conclusion that a contract entered into with a lunatic by a person who does not know him to be, or suspect him to be, a lunatic, cannot be avoided by the lunatic or by his representatives after his death on the ground merely of the insufficiency of the consideration; but that some fraud or imposition must have been practised by the party who desires to uphold the contract, or something done by him which would render it unconscientious on his part to take advantage of the bargain, to afford a ground for setting it aside. For that reason only I differ from the learned primary judge."
Hodges J said: "The learned judge has found, and in my opinion has so found on sufficient evidence, that there was not undue influence, that there was bona fides on the part of the defendants, and that the defendants did not know that H. Tremills was insane; but he has declared the deeds void on the ground that H. Tremills was insane at the time that he executed them, and that they were not 'fair' within the meaning of that word as used in the judgment In Hassard v. Smith, Ir. Rep. 6 Eq. 433 and it is against this decision that the defendants have appealed. The learned judge appears to have acted on the following passage, which he quoted from the case of Hassard v, Smith:- "The rule which now prevails, both at law and in equity, in reference to contracts entered Into by a person of apparently sound mind, and not known by the other contracting party to be insane, is, that such contracts, If executed and completed, and if fair and bona fide, will not be held void or set aside" . This, I think, correctly states the law if the word 'fair' be understood in the sense in which the Vice-Chancellor must be taken from the context to have intended that it should be understood. And by 'fair' I understand him to mean not unfair, not unconscientious, not over-reaching. I think it refers to a contract not obtained by imposition, but I do not think that it would correctly give the Vice-Chancellor's meaning to substitute for the word 'fair' the words 'for full consideration'." and
"There the word 'fairly' could not, I think, be referring to a perfect equality of the consideration given by each party to the contract. Again, a little further on, the Vice-Chancellor quotes with approval the following passage from Story:- 'The ground upon which courts of equity now interfere to set aside the contracts and other acts, however solemn, of persons who are Idiots, lunatics, and otherwise non compotes mentis, is fraud'. The Vice-Chancellor could not quote, with approval, Story's opinion that the ground on which courts of equity set aside these contracts is fraud, if he was deciding that inequality of consideration was a sufficient ground for setting aside such contracts. Again, The Vice-Chancellor a little further on again quotes with approval Story's view that ' If a purchase is made without any knowledge of the incapacity, and no advantage has been taken, courts of equity will not interfere to set aside the contract etc' Here again the Vice-chancellor shows that what invalidates these contracts is not mere inequality of consideration, but the taking of an advantage. If an advantage is taken, the contract is not 'fair'."
1 Citers


 
Evans v Hoare [1892] 1 QB 593
1892

Cave J
Contract
A defendant sought to deny liability under a document relying on the 1677 Statute. the relevant document had been drawn up by a duly authorised agent of the Defendants. The document was a letter from the Plaintiff and the words "Messrs Hoare, Marr and Co, 26,29 Budge Row, London EC" appeared after the Plaintiff's address at the head of the letter. The question was whether these words constituted a signature of "some person . . thereunto lawfully authorised" by the Defendants. The plaintiff argued that the the appearance of the Defendant's name in the letter tendered to the Plaintiff for signature on behalf of the Defendant was sufficiently signed on behalf of the Defendant because the Defendant's name had been "written . . with the defendant's authority, with the intention of designating the party to be charged, and for the purpose of making a contract which should be binding on the Plaintiff". Held: The effect of the words in the statute is that "there must be a memorandum of a contract, not merely a memorandum of a proposal" and "I am of opinion that the principle to be derived from the decisions is this. In the first place, there must be a memorandum of a contract, not merely a memorandum of a proposal; and secondly, there must be in the memorandum, somewhere or other, the name of the party to be charged, signed by him or by his authorized agent. Whether the name occurs in the body of the memorandum, or at the beginning, or at the end, if it is intended for a signature there is a memorandum of the agreement within the meaning of the statute." .
Statute of Frauds 1677 4
1 Citers


 
Mullens v Miller [1892] 22 Ch D 194
1892


Contract, Agency
Where an agent enters into a contract on behalf of a principal and the opposite party has been induced to enter into it by an innocent misrepresentation by the agent, the opposite party is entitled to rescission provided that the making of a representation of that kind was within the actual or apparent authority of the agent.
1 Citers


 
Mann and Beattie v Edinburgh Northern Tramways Co [1892] UKHL 140; 30 SLR 140
29 Nov 1892
HL
Lord Chancellor (Lord Herschell), and Lords Watson, Ashbourne, and Morris
Contract
M, the agent, and B, the engineer, of a newly incorporated cable tramways company, of which they had been the chief promoters, arranged on behalf of the company the contract for the construction of its works. By this contract the contractors undertook, besides constructing the works, to pay the expenses incurred by the company in obtaining their Act. M and B at the same time entered into an agreement with the contractors on their own behalf, whereby they bound themselves to relieve the contractors of their liability for the expenses of the Act in consideration of the payment of a sum of pounds 17,000, the balance of which they were to retain for their own behoof.
Five years afterwards the company called on M and B to account for the sum they had received under their agreement with the contractors. In answer the defenders maintained that the company were barred from challenging the agreement, in respect that everyone interested in the shares of the company knew of and had assented to the agreement, and the company's shares had never been issued to the public.
Held (aff. the decision of the First Division) that the alleged knowledge and assent of those who represented the company had not been proved; but even assuming such knowledge and assent, the agreement was illegal, as it was ultra vires of promoters or directors or shareholders to apply the moneys of the company, which were devoted by statute to special purposes, to any purpose which was not sanctioned by the provisions of the Act of incorporation.
[ Bailii ]

 
 Carlill v Carbolic Smoke Ball Co; CA 7-Dec-1892 - [1893] 1 QB 256; [1892] 4 All ER Rep 127; [1892] 62 LJ QB 257; [1892] 67 LT 837; [1892] 57 JP 325; [1892] 41 WR 210; [1892] 9 TLR 124; [1892] 4 R 176; [1892] EWCA Civ 1

 
 Knight v Lee; 1893 - [1893] 1 QB 41
 
Bentsen v Taylor Sons and Co [1893] 2 QB 281
1893

Bowen LJ
Contract
The court was asked as to the test of the difference between a contractual condition and a warranty. Bowen LJ said: "There is no way of deciding that question except by looking at the contract in the light of the surrounding circumstances and then making up one's mind whether the intention of the parties, as gathered from the instrument itself, will best be carried out by treating the promise as a warranty sounding only in damages or as a condition precedent by the failure to perform which the other party is relieved of his liability".
1 Citers



 
 Maxim Nordenfelt Guns and Ammunition Co v Nordenfelt; CA 1893 - [1893] 1 Ch 630
 
In re Hoyle [1893] 1 Ch 84
1893
CA
AL Smith LJ
Contract
ALSmith LJ discussed the 1677 Act: "The object of the Statute was to prevent fraud and perjury by taking away the right to sue on certain agreements if only established by verbal evidence . . The object of the statute being merely to exclude parol evidence, any writing embodying the terms of the agreement and signed by the person to be charged is sufficient" and "the court is not in quest of the intention of the parties, but only of evidence under the hand of one of the parties to the contract that he has entered into it" and "The question is not what is the intention of the person signing the memorandum but is one of fact, vis is there a note or memorandum of the promise signed by the party to be charged?".
Statute of Frauds 1677 4
1 Citers


 
Wolmershausen v Gullick [1893] 2 Ch 514
1893

Wright J
Limitation, Damages, Contract
Claim for contribution between co-securities. Wright J reviewed the development of the entitlement to contribution from Justinian's statement of it, through its application by the custom of the City of London in the time of Queen Elizabeth to the time of his judgment.
1 Citers



 
 In re J Brown's Estate; 1893 - [1893] 2 Ch 300
 
Glynn v Margetson and Co [1893] AC 351
1893
HL
Lord Halsbury, Lord Herschell LC
Contract
A printed form of bill of lading contained general words of obligation referring to the goods being shipped “in and upon the .. Zena, now lying in the port of Malaga, and bound for Liverpool”. Those words were followed by printed words intended “to be used in a variety of contracts of affreightment”. Construed literally the words would allow deviation to any port even if far off the voyage from Malaga to Liverpool. Held: Words which the parties have themselves chosen and written into the contract should have greater effect than printed standard terms.
Lord Herschell LC: “Where general words are used in a printed form which are obviously intended to apply, so far as they are applicable, to the circumstances of a particular contract, which particular contract is to be embodied in or introduced into a that printed form, I think you are justified in looking at the main object and intent of the contract and in limiting the general words used, having in view that object and intent.” A business sense will be given to business documents.
1 Citers


 
Carswell v Collard (1893) 20 R (HL) 47
1893
HL
Lord Herschell
Contract
Lord Herschell discussed the test for whether a contract had been renounced, and said: "Of course the question was not what actually influenced [the innocent party], but what effect the conduct of the [other party] would be reasonably calculated to have upon a reasonable person."
1 Citers



 
 Driver v Broad; 1893 - [1893] 1 QB 744
 
Edwards v Carter [1893] AC 361
1893
HL

Children, Contract
If an infant choses to repudiate a disposition, he must do so within a reasonable time after coming of age.
1 Citers



 
 Hick v Raymond and Reid; HL 1893 - [1893] AC 22
 
Ellis v Goulton [1893] 1 QB 350
1893


Land, Contract
Under an open contract for the sale of land, the deposit paid by the purchaser to the vendor's solicitor is received as agent for the vendor.

 
Rixon v Edinburgh Northern Tramways Co and Others [1893] UKHL 944
22 Jun 1893
HL
Lord Chancellor (Herschell) and Lords Watson, Ashbourne, Morris, and Shand
Contract, Company
A company incorporated by a private Act for the construction of a tramway, with a nominal capital, which was never offered to the public, but which was taken up partly by the promoters of the company, and to the extent of the remainder of the shares was acquired by the contractor in payment of the price of the work performed, entered into a contract for the remainder of the work with the same contractor.
A shareholder sought to reduce this contract (1) on the ground of fraud, alleging that the majority of the shareholders who voted in favour thereof were nominees of the contractor, and had obtained their shares gratuitously and for the purpose of voting in his favour; (2) on the ground of ultra vires, as the contract had not been offered to competition as required by a clause in a contract which was scheduled to the company's Act.
Held (aff. judgment of the First Division) (1) that the contractor's influence in the company had been legitimately acquired; and (2) that the pursuer not being a party to the contract, which provided for competition, he had no title to insist in the plea of ultra vires.
[ Bailii ]
 
Harvey and Another v Facey and others [1893] UKPC 1; [1893] UKPC 46
29 Jul 1893
PC

Commonwealth, Contract, Land
(Jamaica)
[ Bailii ] - [ Bailii ]
 
Musurus Bey v Gadban [1894] 2 QB 352
1894
CA
AL Smith and Davey LJJ
Contract, Limitation
Musurus Bey had been the accredited Ambassador of the Sultan of Turkey in London for some thirty years prior to his recall in December 1885. He wound up his official and personal business and in February 1886 he returned to Turkey where he lived until his death in 1890. In 1892 his executors brought proceedings against the defendants who sought to counterclaim in debt for money lent by them to Musurus Bey in 1873 while he was Ambassador in London and which, it was alleged, had never been repaid. Held: The counterclaim was not statute barred. The wrongdoer may be entitled to diplomatic immunity at the time of the tort. No cause of action could accrue against a debtor during such period as he enjoyed diplomatic immunity, though an envoy's immunity from suit and legal process in respect of acts done in his private capacity endures only so long as he is 'en poste' and for a sufficient time thereafter to enable him to wind up his affairs

 
Guild and Co v Conrad [1894] 2 QB 885
1894
CA
Davey LJ
Contract
Davey LJ said: "In my opinion, there is a plain distinction between a promise to pay the creditor if the principal debtor makes default in payment, and a promise to keep a person who has entered, or is about to enter, into a contract of liability indemnified against that liability, independently of the question whether a third person makes default or not."
1 Citers


 
Fortescue v Lostwithiel and Fowey Railway Coy [1894] 3 Ch 621
1894


Contract
The fact that there is a small element of personal service in a contract does not destroy the quality of mutuality want of which may in general terms properly be a ground for refusing a decree of specific performance.
1 Citers


 
Jacobsen, Sons and Co v Underwood (1894) 21 R 654
1894


Scotland, Contract

1 Citers



 
 Nordenfelt v Maxim Nordenfelt Guns and Ammunition Company; HL 1894 - [1894] AC 535; [1893] 1 Ch 630
 
The Glendarroch [1894] P 226
1894

Lord Esher MR
Contract, Transport
The burden of proof is on the party to the contract who seeks to rely upon it, to show that the claims come within the exclusion of liability condition on its true construction.
1 Citers


 
Sutton v Gray [1894] 1 QB 285
1894
CA
Lord Esher MR
Contract
The plaintiff stockbrokers agreed with the defendant that he would introduce business to them which they would conduct on the stock exchange. If any profit were made it would be shared equally; if losses resulted, the defendant would be liable to the plaintiff for half. The agreement was oral. Held: the agreement was not a guarantee caught by section 4. Lord Esher MR explained the difference between a contract of guarantee and of indemnity: "There the test given is, whether the defendant is interested in the transaction, either by being the person who is to negotiate it or in some other way, or whether he is totally unconnected with it. If he is totally unconnected with it, except by means of his promise to pay the loss, the contract is a guarantee; if he is not totally unconnected with the transaction, but is to derive some benefit from it, the contract is one of indemnity, not a guarantee, and section 4 does not apply."
Statute of Frauds 1677 4
1 Citers


 
Hamlyn and Co v Talisker Distillery and Others [1894] UKHL 642
10 May 1894
HL

Contract
When two parties, living under different systems of law, enter into a personal contract, which of these systems must be applied to its construction depends upon their mutual intention, either expressed or implied.
By contract executed in London, an English firm agreed to buy from distillers in Skye all grains made by them at a specified price, and to erect a grain-drying machine at the distillery. The distillers agreed to maintain the machine and to bag up their grains in the sacks of the English firm, and deliver them free at a port in Skye. The contract further provided-"Should any dispute arise out of this contract, the same to be settled by arbitration by two members of the London Corn Exchange or their umpire in the usual way."
Held (rev. the decision of the First Division) that the language of the reference clause indicated that the parties intended it to be interpreted and governed by English law, and being valid by that law the Scottish Court must give effect to it.
[ Bailii ]
 
North-Western Bank Ltd v John Poynter Son and Macdonalds [1894] UKHL 245; 32 SLR 245
16 Nov 1894
HL
Lord Chancellor (Herschell) and Lords Watson and Macnaghten
Banking, Contract
On 1st April 1892, Page and Company, merchants in Liverpool, obtained an advance of pounds 5000 from a bank in Liverpool upon the security by way of pledge of a cargo of phosphate rock, then afloat, and handed the bill of lading to the bank. It was agreed that the bank should have immediate and absolute power of sale over the cargo, and under this power the bank authorised Page and Company to enter into contracts for sale of the phosphate rock on their behalf. pounds 3826 of the loan was paid off.
On 12th April the bank, in consideration of Page and Company undertaking to sell the cargo on their behalf, returned the bill of lading to Page and Company "as trustees," requesting them to obtain delivery of the merchandise, and sell it on account of the bank, and pay the proceeds towards retirement of the advance.
Some months previously Page and Company had sold a similar quantity of phosphate rock through their agents, Poynter, Son, and Macdonalds, to Cross and Sons, merchants in Glasgow, and when they received the bill of lading they forwarded it to Poynter, Son, and Macdonalds, to hand to Cross and Sons in implement of their contract with them. This was done, and Cross and Sons took delivery of the cargo, and in part payment of the price sent a cheque for pounds 1900 to Page and Company, who paid it to the bank to the credit, not of the advance of pounds 5000, but of another advance which they had received from the bank, the bankers not being aware at the time that this cheque was part of the price of the cargo of phosphate. Thereafter, Poynter, Son, and Macdonalds, who were creditors of Page and Company for pounds 2011, arrested the balance of the price (pounds 1039, 7s. 6d.) in the hands of Cross and Sons. The bank also claimed this balance, and Cross and Sons raised an action of multiple-poinding to have these competing claims determined.
Held (rev. the decision of the Second Division) (1) that the bank had not lost their real security over the merchandise by returning the bill of lading to Page and Company, but that Page and Company sold as their agents and on their behalf; (2) that the bank were not bound to attribute the cheque for pounds 1900 to account of the advance of pounds 5000; (3) that in this action Poynter, Son, and Macdonalds were not entitled to claim the amount of their commission and charges in connection with the sale; and therefore (4) that the bank must be preferred to the whole fund in medio.
[ Bailii ]

 
 Huddersfield Banking Co Ltd v Henry Lister and Son Ltd; CA 1895 - [1895] 2 Ch 273
 
Smith v Wallace [1895] 1 Ch 385
1895

Romer J
Land, Contract
Romer J said that a vendor of land wanting to exercise the right of rescission given him by the relevant contract term must do so "fairly, and to determine promptly whether he [will] exercise the power or not. He [is] not entitled to take advantage of his position, and to leave the purchaser in ignorance whether the contract [is] to be treated as rescinded or not."
1 Citers



 
 Re Scott and Alvarez's Contract No 2; CA 1895 - [1895] 2 Ch 603
 
Helby v Matthews [1895] AC 471
1895
HL
Lord Herschell, Lord Macnaghten, Lord Watson, Lord Shand
Contract
A piano owner hired it out to Brewster for monthly payments with a provision that the piano would become Brewster's on payment of the required number of monthly payments. Brewster pledged it and the owner sought its recovery. Held: The basic principle of 'nemo dat quod non habet' (one cannot give what one does not have) applies also to a sale by a hire-purchaser. The hirer was under no obligation to make all the payments and purchase the piano. The hire-purchaser has no title to the goods and no power to convey any title to a third party.
Lord Herschell said: "it is said that the substance of the transaction evidenced by the agreement must be looked at, and not its mere words. I quite agree. But the substance must, of course, be ascertained by a consideration of the rights and obligations of the parties, to be derived from a consideration of the whole of the agreement. If Brewster agreed to buy the piano, the parties cannot, by calling it a hiring, or by any mere juggling with words, escape from the consequences of the contract into which they entered. What, then, was the real nature of the transaction? The answer to this question is not, I think, involved in any difficulty. Brewster was to obtain possession of the piano, and to be entitled to its use so long as he paid the plaintiff the stipulated sum of 10s. 6d. a month, and he was bound to make these monthly payments so long as he retained possession of the piano. If he continued to make them at the appointed times for the period of three years, the piano was to become his property, but he might at any time return it, and, upon doing so, would no longer be liable to make any further payment beyond the monthly sum then due . . My Lords, I cannot, with all respect, concur in the view of the Court of Appeal, that upon the true construction of the agreement Brewster had 'agreed to buy' the piano. An agreement to buy imports a legal obligation to buy. If there was no such legal obligation, there cannot, in my opinion, properly be said to have been an agreement to buy. Where is any such legal obligation to be found? Brewster might buy or not just as he pleased. He did not agree to make thirty-six or any number of monthly payments. All that he undertook was to make the monthly payment of 10s. 6d. so long as he kept the piano. He had an option no doubt to buy it by continuing the stipulated payments for a sufficient length of time. If he had exercised that option he would have become the purchaser. I cannot see under these circumstances how he can be said either to have bought or agreed to buy the piano. The terms of the contract did not upon its execution bind him to buy, but left him free to do so or not as he pleased, and nothing happened after the contract was made to impose the obligation." and "when a person has, for valuable consideration, bound himself to sell to another on certain terms, if the other chooses to avail himself of the binding offer, he may, in popular language, be said to have agreed to sell, though an agreement to sell in this sense, which is in truth merely an offer which cannot be withdrawn, certainly does not connote an agreement to buy, and it is only in this sense that there can be said to have been an agreement to sell in the present case."
Lord Macnaghten said: "The customer was under no obligation to fulfill the conditions on which and on which alone the dealer undertook to sell. He was not bound to keep the piano for a single day or a single hour."
Lord Shand said: "An agreement to purchase would infer an obligation to pay a price, the payment of which could be enforced by action, while here it is plain that no action for any balance of the alleged price could be maintained if Brewster thought fit at any time to return the instrument to its owner."
1 Citers


 
McIntyre v Crossley Brothers Limited [1895] AC 457
1895
HL
Lord Herschell
Contract
Lord Herschell spoke of what was to be looked for when a contract was to be construed: "But there is no such thing, as seems to have been argued here, as looking at the substance, apart from looking at the language which the parties have used. It is only by a study of the whole of the language that the substance can be ascertained."

 
Ross v Ross (1895) 22 R 461
1895
SCS
Lord M'Laren
Contract, Scotland
The pursuer was the widow of Sir Charles Ross who died in 1883 and was succeeded by his pupil son. From then until 1893, when her son attained majority, the pursuer had acted as his sole tutor and curator. She was entitled to an annuity of £2,000 under her marriage contract and certain bonds of provision. In 1894 she raised an action against her son for payment of two instalments of the annuity. Her son admitted that the pursuer was entitled to the instalments, but denied that the sums were due, under reference to an action of count, reckoning and payment which he had brought against her, concluding for payment of £70,000 as the balance of her intromissions as his sole tutor and curator and as an individual. He had also raised an action against her, as executrix of the deceased's moveable estate, for payment of legitim. The son pleaded compensation and also that he was entitled to withhold payment of the annuity because of the pursuer's failure to pay him legitim or to account for her intromissions with the estate. The Lord Ordinary repelled the son's defences and granted decree for payment of the annuity. He reclaimed. Held: The First Division decided to supersede consideration of the reclaiming motion until there should be some change of circumstances. They did so by sisting the action and leaving it open to either party to move therein.
Lord M'Laren said: "In disposing of the pleas in this case I think that the Lord Ordinary has rightly dealt with the plea of compensation, because that is a matter of statutory regulation, and the plea is confined to cases where both debts are liquid or capable of immediate ascertainment; but then there is another principle under which one obligation may be suspended until the performance of a counter obligation – the principle of retention, and that, not being subject to the conditions of any statute, must be regarded as an equitable right to be applied by the Court according to the circumstances of each case as it shall arise. The doctrine has received much extension in cases of bankruptcy and insolvency… But the principle is not limited to bankruptcy cases, and it seems to me that the circumstances of the present case constitute a very clear ground for its application, because Lady Ross while in the management of her son's estates appears to have wholly neglected the duty of keeping strict accounts, which is incumbent upon every administrator of the property of others, and when she is called upon to account she states that the whole of the money has been expended, and that of a very large sum, amounting to nearly £4,000 a-year, she is unable to give any particulars. Now, that is a position which no guardian or administrator is entitled to assume, and upon the statement of these accounts, and also the claim of legitim, I cannot doubt that, if it appears to the Court that there is a probability that Lady Ross has already in her hands as much of her son's money as would satisfy this jointure, she would not be entitled to immediate decree. The judgment which I understand your Lordship will pronounce will be one merely suspending the procedure in this case, and if it turns out, contrary to all the probabilities, that the whole of the son's income has been legitimately and properly expended by his mother, and also that there is no legitim due to him, then of course Lady Ross will be entitled to decree for her jointure."
Lord Adam did not think: "it would be consonant with justice to give this lady immediate decree for the sum she claims."
1 Citers


 
Alston's Trustees v Gibson [1895] UKHL 724; 32 SLR 724
19 Mar 1895
HL
Lord Chancellor (Herschell), and Lords Watson, Macnaghten, Morris, and Shand
Agency, Contract
C. R. and Co. wrote to G. offering him an investment upon the security of an estate in Ceylon, for which they acte as agents, and saying, "it is an excellent security, apart from our guarantee of principal and interest." G. replied, accepting the investment, "with C. R. and Co.'s guarantee of principal and interest."
Held that C. R. and Co.'s letter amounted to a distinct offer of a guarantee, which became operative as soon as it was accepted, and the loan which was to be the consideration for it was made
[ Bailii ]

 
 Pittman v Prudential Deposit Bank Ltd; CA 1896 - (1896) 13 TLR 110; (1896) 41 Sol Jo 129
 
Edwards v Walters [1896] 2 Ch 157; 65 LJ Ch 557; 74 LT 396; 44 WR 547; 12 TLR 359; 40 Sol Jo 477
1896
CA
Lindley LJ
Equity, Contract
The holder of the promissory note gave a parol renunciation of all his rights. Further he delivered the promissory note back to a devisee of its maker, on whose real estate the obligations under the note were charged, and who had kept up the payments of interest. Held: This did not work to discharge the promissory note. Section 62(1) of the 1882 Act would probably operate to include the 'maker' and his executors and or dministrators, but could not be extended to include a devisee of his estate. At law, an exoneration before any breach need not be made under seal, but a release of the note has to be under seal to be effective unless it could be brought within one of the exceptions provided by the 1882 Act.
Lindley LJ said, "A release in equity is often spoken of as something easy to establish. But I am not aware of any circumstances which amount to a release in equity and not at law except an agreement for valuable consideration to give a release or not to sue. Such an agreement, unless there is some reason for not enforcing it, has in equity the effect of a release."
Bills of Exchange Act 1882 62(1)


 
 Dibbins v Dibbins; 1896 - [1896] 2 Ch 348; [1896] 65 LJ Ch 724; 75 LT 137; 44 WR 595; 40 Sol Jo 599
 
Willson v Love [1896] 1 QB 626
1896

Lord Esher
Contract
The lessees of a farm covenanted not to sell hay or straw off the premises during the last twelve months of the term, and a provision that an additional rent of 3 l. per ton should be payable by way of penalty for every ton of hay or straw so sold. The manurial value of straw and of hay were known ascertainable quantities as at the time of the bargain, and radically different, so that the damage resulting from the want of one could never be the same as the damage resulting from the want of the other. Held: The sum so made payable was a penalty and not liquidated damages.
1 Citers


 
Veit and Others v Ireland and Son [1896] UKHL 526; 33 SLR 526
8 May 1896
HL
Lord Chancellor (Halsbury), Lord Watson, Lord Herschell, Lord Shand, and Lord Davey
Contract
By sale-note addressed by an exporter in Scotland to a foreign buyer it was provided "We confirm having sold 3/3750 tons of Muiredge and 1/1250 tons of Lochgelly best steam coals, shipment by steamers and sailers, expected sailing about March to December, at the price of . .
Held (1) that it was at the buyer's option to require delivery of the larger quantities, (2) that the buyer was not bound to take delivery in equal monthly quantities, and (3) that the seller's obligation under the contract was not limited to loading vessels berthed in time to have the loading completed before the end of December, but that he was bound to complete delivery of the contract quantity on board any vessel arriving at the port of shipment before the expiry of the month.
Circumstances in which held ( rev. judgment of the Second Division) that there had been a repudiation of the contract on the part of the seller entitling the buyer to damages as for breach of contract.
[ Bailii ]
 
Assets Co Ltd v Blair and Others [1896] UKHL 539; 33 SLR 539
15 May 1896
HL
Lord Chancellor (Halsbury), Lord Watson, Lord Herschell, Lord Shand, and Lord Davey
Contract
Stipulations in the testing clause of a deed are ineffectual to contradict or modify the agreement executed by the parties in the previous part of the deed.
Smith v. Chambers' Trustees, 5 R. 97, approved; Johnstone v. Coldstream, 5 D. 1297, and Dunlop v. Greenlees' Trustees, 2 Macph. 1, 3 Macph. (H. of L.) 46, distinguished.
In an action of damages against a firm of law agents on the ground of negligence and want of professional skill, the pursuer founded upon the alleged failure of the defenders to read the testing clause of a deed, or to advise that such a stipulation contained in it was effectual.
Held (in conformity with the above rule, and restoring the judgment of the Lord Ordinary) that the action was irrelevant.
[ Bailii ]

 
 Clarke v Earl Dunraven; 1897 - [1897] AC 59
 
Tonnelier and Bolckow, Vaughan and Co v Smith and Weatherill and Co (1897) 2 Com Cas 2
1897
CA
Rigby LJ and Lord Esher MR
Contract
The charterparty required the charterers to pay hire monthly in advance at the rate of £709 per calendar month and at the same rate for any part of a month until her redelivery. Held: The charterers were liable to pay a full month's hire at the beginning of each month, even if it was clear that the ship would be re-delivered to the owners before the month had expired.
Rigby LJ said: "Even when it appears probable that only a few days' freight will be earned, some circumstances – as, for instance, a strike – may intervene to delay the date of discharge and delivery up, and in the result a whole month's freight may, after all, be earned. The greater or less degree of probability of the happening of the events which will determine how much freight is to be earned is nowhere referred to in the contract and can scarcely afford a rule for construing it . . No doubt it would have been a reasonable contract that an estimated payment on account should be sufficient if the parties had thought fit to make such an agreement, but nothing about an estimated amount is said in the charterparty. On the other hand, the charterer, if he had to pay a whole month's freight instead of a third, would only have paid more than actually turned out to be earned – a state of things contemplated by the contract, and provided for by giving him a lien on the ship for over-payment. On the construction acted upon by the learned Judge the parties would be uncertain, until the discharge of the cargo was completed and delivery of the ship made, when the actual payment was to be, and the owners might be driven to an action – a necessity against which the charterparty plainly intended to protect them."
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 Bensaude v Thames and Mersey Marine Insurance Co Ltd; HL 1897 - [1897] AC 609
 
Plant v Bourne [1897] 2 Ch 281
1897
CA
Lindley LJ
Land, Contract
Parol evidence was admitted to identify the 24 acres of land that had been agreed to be sold. It was clear that there was a contract. Its object were the 24 freehold acres of land which the parties had discussed. All evidence to identify the land was receivable. Once that is admitted there is no room for dispute.
The general rule applicable was "Id certum est quod certum reddi potest" - "That is certain which can be rendered certain"
1 Cites

1 Citers


 
Raffety v Schofield [1897] 1 Ch 937
1897


Contract
Duty of vendor of land between exchange and completion to keep property in reasonable state of repair and as it was when contract was made.
1 Citers


 
London Freehold and Leasehold Property Company v Suffield [1897] 2Ch 608
1897


Contract
Where an instrument is delivered to the party who is to benefit under the instrument, any oral statement that the delivery is not an absolute delivery of the deed is of no effect. Where several persons are parties to a deed as grantees and one of them is also the solicitor of the other grantees and of the grantor, and the deed is delivered to him, evidence is admissible to prove that the instrument was delivered to him not as a grantee but in his capacity of solicitor to the grantor and as an escrow.
1 Citers


 
Re Consort Deep Level Gold Mines ex parte Stark [1897] 1 Ch 575
1897


Contract

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Levy v Stogdon (1898) 1 Ch.478
1898

Stirling J
Land, Contract
Specific performance of a contract by an assignees of the purchaser was dismissed on the grounds of delay, but his claim for a lien was upheld.
1 Citers


 
Biggs v Hoddinott [1898] 2 Ch 307
1898


Contract, Land
The owner of a freehouse had agreed to a tie in favour of a brewer who had lent him money.
1 Citers



 
 Badische Anilin und Soda Fabrik v Johnson; HL 1898 - [1898] AC 200
 
Stolley v Maskelyne [1898] 15 TLR 79
1898


Contract

1 Cites


 
Teacher v Calder [1898] SLR 35 - 517
25 Feb 1898
SCS
Lord Low
Contract, Damages
An agreement was entered into between T and C, whereby, as interest for an advance made by T for the purpose of carrying on and extending the business of C's firm, he was to receive a certain percentage of the profits of the business. It was provided that the books of the firm should be audited annually by a particular firm of accountants, whose certificates "shall be binding on both parties as finally fixing the amount of the profits in each year." Notice of this agreement and of its terms was given by T to one of the partners of the firm of auditors, but they were not communicated by him to the partner who actually conducted the audit. While aware that T had an interest in the profits, the latter did not know the terms of the agreement, and in particular did not know that his audit was finally binding on the parties. T had access to the books of the firm, and had frequent meetings with the auditor.
In an action for a judicial accounting raised by T at the termination of the agreement, he maintained that the auditor's certificates were not binding on him, because the audits made were not such as were contemplated under the agreement.
Held, on a proof ( diss. Lord Adam), that the certificates of the auditor were certificates under the agreement, and that accordingly the pursuer was not entitled to an accounting.
1 Citers

[ Bailii ]
 
Molson's Bank v Cooper and Smith [1898] UKPC 9
9 Mar 1898
PC

Commonwealth, Contract
(Canada)
[ Bailii ]
 
Shoolbred v Roberts [1899] 2 QB 560
1899

Phillimore J
Contract
A bankrupt won £100 in a billiards game. The stake was given to stakeholders. Held: The bankrupt's trustee could recover the bankrupt's own stake from the stakeholder but not the stake of the loser. Phillimore J said that: "I am bound now to hold . . that where people embark in a perfectly lawful game and contest of skill, not trusting to fortune but to skill, to ascertain the comparative eminence of the two persons, the sums which they deposit to make a joint award are to be considered by the law as sums deposited by way of wagering, the contract is null and void, and the winner cannot recover the fund." The £100 staked by the bankrupt was his money and was part of his property which his trustee in bankruptcy had a right to recover from the stakeholder. If the bankrupt at any time received from the stakeholder the stake of £100 which had been deposited by the loser, that receipt "must be in the eye of the law a voluntary gift by the stakeholders" or by the loser or possibly by both to the bankrupt; and if the loser should receive it of the bounty of the winner or of the bounty of the stakeholders or at the bounty of both, so far it would not go to the trustee in bankruptcy.
1 Citers


 
Drimmie v Davies [1899] IR 176
1899


Contract

1 Citers


 
Waunton v Coppard [1899] 1 Ch 92
1899

Romer J
Contract, Torts - Other
A statement was made by the vendor's agent as to the effect of a restrictive covenant to a lay person who, as a prospective purchaser, did not (to the knowledge of the vendor's agent) have a copy of the covenant. Held: Running a boys' school was capable of amounting to nuisance. A statement as to the meaning or effect of a document can amount to an actionable misrepresentation
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 Johnston v Boyes; 1899 - [1899] 2 Ch 73; [1899] 68 LJ Ch 425; [1989] 80 LT 488; [1899] 47 WR 517; [1899] 43 Sol Jo 457
 
John Griffiths Cycle Corporation, Limited v Humber and Co, Limited [1899] 2 QB 414
1899


Contract
Smith v Webster was not to be taken as meaning that the agent must have had authority to sign the document as a record of the contract. All that Smith v Webster decided was that, in order to satisfy the Statute, it must be shown that the agent signing was an agent "thereunto lawfully authorised" ie that he was authorised to sign the document which referred to and recognised an agreement in the terms relied on. A signature to a document containing the terms of a contract could satisfy the Statute, although put alio intuitu and not in order to attest or verify the contract.
Statute of Frauds 1677 4
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Jacobs v James Scott and Co [1899] UKHL 611; 36 SLR 611
4 May 1899
HL
Lord Chancellor (Halsbury) and Lords Watson, Shand, and Davey
Contract
A, a dealer in Canada, agreed by contract in writing to supply the Glasgow Tramway Company with 2100 tons of hay. The hay was described in the contract as "best Canadian Timothy hay," subject to the qualification that "small quantities of clover mixed in hay not to be objected to."

To carry out part of this contract A contracted with B, also a dealer in Canada, for the supply of 900 tons of hay. In terms of this latter contract, which was in writing, the hay was to be delivered in Glasgow, and was described as "good sound Canadian hay," with the addition of this explanation, "good sound Canadian hay is understood to mean No. 1 export hay of fair average quality."
In an action between A and B arising out of the rejection of part of the hay tendered as disconform to contract, it was held to be proved (1) that B knew that the hay contracted for was required by A in order to carry out his contract with the Glasgow Tramway Company, (2) that "No. 1 export hay" in the Glasgow Market meant hay not in any case containing more than 20 per cent. of clover, all the rest being pure "Timothy" hay (i.e., hay not containing clover or natural grasses); and (3) that the hay tendered and rejected was not of this quality.
Held (reversing the judgment of the Second Division) that it was an implied condition of the contract between A and B that the "No. 1 export hay" to be supplied should be of the standard required to answer that description in the Glasgow market, and that the hay tendered not being of that standard, A was entitled to reject it as not conform to contract.
[ Bailii ]
 
Teacher v Calder [1899] AC 451; [1899] UKHL 1; (1899) 7 SLT 153; (1899) 1 F (HL) 39; [1899] UKHL 949; 36 SLR 949
24 Jul 1899
HL
Lord Watson (in the Chair) and Lords Shand and Davey
Damages, Contract
The mere fact that the defendant's breach of his contract with the plaintiff has enabled him to enter into a more profitable contract with someone else should also not be sufficient to justify departing from the normal rules for calculation of damages.
A advanced pounds 15,000 to B, to be used in B's business for a period of five years, receiving in return, besides interest, three-eighths of the profits. It was agreed that B's books should be audited annually by a particular firm of accountants, whose certificates as to the amount of profits were to be binding on both parties. Notice of this agreement and of its terms was given by A to one of the partners of the firm of auditors, but they were not communicated by him to the partner who actually conducted the audit. While aware that A had an interest in the profits, the latter did not know the terms of the agreement, and in particular did not know that his audit was intended to bind the parties.
In an action for a judicial accounting at A's instance, the Court of Session ( aff. the judgment of Lord Low- diss. Lord Adam) held, as the result of a proof, that it would have made no substantial difference in the result of the audit had the auditor been aware of the agreement, and refused the accounting. Judgment reversed in the House of Lords on the ground (1) that there had been mutual error as regards the auditor's knowledge of the agreement, and that in the absence of such knowledge the audit could not he regarded as binding; and (2) that it was not substantiated by the evidence that the want of this knowledge did not affect the audit.
A advanced to B pounds 15,000, to be used in B's business of timber merchant for a period of five years, receiving in return 5 per cent. interest and three-eighths of the annual profits. The agreement did not provide that A should become a partner of the business, but it was agreed that B should always keep a like sum of pounds 15,000 of his own in the business. In breach of the latter engagement B withdrew from time to time from the business part of this sum of pounds 15,000, and used it in a distillery business where large profits were earned.
In an action of damages for breach of contract, at A's instance, he maintained that the damages ought to be assessed at the amount made by the diverted capital in the distillery, on the ground that the defender must be treated as a trustee for or a partner of the pursuer.
Held that this method of assessment was inapplicable, and that the appropriate method was to assess the damages by ascertaining the extra profit which might have been made in the timber business with the aid of the diverted capital.
Judgment affirmed in the House of Lords.
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