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Cases.

Remunera

company shall not be liable for negligence in the carriage of goods Ch. XXI. 8. 6. or animals, may, by sect. 7 of the Railway and Canal Traffic Act, Miscellaneous 1854, 17 & 18 Vict. c. 34, be adjudged void if unreasonable (o); and so may contracts by a client with his solicitor for a lump sum tion of in lieu of costs under the Attorneys and Solicitors Act, 1870, solicitor by

lump sum. 33 & 34 Vict. c. 28, by sect. 9 of that Act, “ if the terms of it shall not be deemed by the Court or judge to be fair and reasonable" (P); and contracts between “money-lenders ” within the meaning of the Money-lenders Act, 1900, and borrowers from them, a Court being empowered to reopen transactions of this kind, and to give the borrowers relief against such contracts, as has already Borrowing

from “money• been pointed out in sect. 2 of this chapter, at p. 553.

lender."

(0) Ante, p. 512.
(P) And see Solicitors' Remuneration

Act, 1881, 44 & 45 Vict. c. 44, s. 8
(4).

CHAPTER XXII.

PERFORMANCE OF A CONTRACT, EXCUSES FOR NON-PERFORMANCE,

AND RESCISSION.

PAGE 1. By whom to be Performed

600 2. Mode of Performance

600
3. Time of Performance

602
4. Of Notice as Condition Prece-
dent.........

606
5. Request to Perform

607 6. Excuses for Non-performance 608 (a) Impossibility

608 Postponed Show (Krell v. Plenry)

610 (b) Act of the Law

611

PAGE (c) Act of God.

611 (d) Failure of the other Party .. 612 e) Performance of Part

612 (f) Renunciation

613 (g) No Apportionment

613 (h) Conditions Precedent and

Concurrent Considera-
tions ......

614 (i) Prevention of Performance

by the other Party.. 617 7. Rescission of the Contract 618

SECT. 1.--By whom Contract to be Performed. By whom the

The rule of law is, that the person who is to be discharged contract is to from his liability upon a contract, by the performance of a certain be performed.

act, is impliedly bound to do, or cause to be done, the act which Payor must is to discharge him (a). Thus, if a party has to pay a sum of go to payee.

money, a mere readiness to pay is insufficient; but in order to exonerate himself from liability, he is bound to go to the party who is entitled to receive the money, and to pay or tender the same to him (b).

Mode of performance of contract.

SECT. 2.-Mode of Performance. With regard to the mode of performing a contract, the rule is, that it must always be performed according to its legal effect. Thus, a party is equally guilty of a breach of his contract, whether he directly refuses to perform it, or voluntarily does an act which puts it out of his power to perform it (c), or which prevents the other party from having the benefit of it (d). So, if one party agree to deliver up a written instrument to another, he is bound

(a) See per Lord Ellenborough, C.J., 277, 279 ; and see Haldane v, Johnson Cranley v. Hillary (1813), 2 M. & S. 120, (1853), 8 Exch. 689. 122. As to the party who may perform (c) See Stirling v. Maitland (1864), 5 a condition, see Co. Litt. 210 b, 211 a, B. & S. 840; M*Intyre v. Belcher (1863), 220 ; Bac. Abr. Conditions ; Bro. Abr. 14 C. B., N. S. 654 ; Charnley v. WinConditions, 174 ; and see Cheney's case stanley (1804), 5 East, 266. (1590), 3 Leon. 260.

(d) Inchbald v. We ern, &c., Coffee Co. (6) Co. Litt. sect. 340 ; per Gibbs, (1864), 17 C. B., N. S. 733. C.J., Soward v. Palmer (1818), 8 Taunt.

to deliver up such instrument in the same condition in which it

CH. XXII.

s. 2. was at the time he contracted to deliver it (e). So, where there

Performance was an agreement to deliver up certain bills of exchange, which (Mode). were foreign bills, drawn in sets of three; it was held that this Bills and agreement was not performed by the delivery up of one part of notes. each of the bills in question (f). So, an agreement to pay a sum of money by promissory notes is not performed by merely giving the notes, if they be not paid when due (g). A contract by lessee to insure in the names of the lessors is not Insurance by

lessee. performed by insuring in their names and his own jointly (h); nor a contract by a lessee, to insure in the joint names of the lessor and himself, by the lessee insuring in his own name only (i); but a contract by a lessee, to insure in the joint names of the lessor and himself, is well performed by his insuring in the name of the lessor only (k).

Among many ways in which a contract may be performed, that Where conone is generally adopted which is least profitable to the plaintiff, performed in and least burthensome to the defendant (1).

many ways. When a contract is in the alternative, as that the promisor Contract in shall do a certain act on the 1st of January, or the 1st of the alterna

tive. February;" or shall "pay a sum of money, or deliver a horse to the promisee;" the right to elect the mode of performance is impliedly vested in the promisor (m)—the rule being, that "in case an election be given of two several things, always he that is the first agent, and which ought to do the first act, shall have the election” (n). Thus, if A. agree to reinvest a sum in Consols, in the name of B., charging the stock at a certain price; or to pay the sum in bank notes, on B. giving A. six months' notice ; it is in the election of B., whether he will have the money reinvested, or paid in bank notes (o).

And if one branch of the alternative cannot be performed, the promisor is bound to perform the other (p).

(e) Richardson v. Barnes (1849), 4 10 Q. B. 264 ; South Eastern Rail. Co. v. Exch. 128, 132.

The Queen (1851), 17 Q. B. 485, Ex. Ch. (f) Kearney v. West Canada, Gold, By the French law, "the election belongs &c., Co. (1856), 1 H. & N. 412.

to the debtor, if it have not been ex(9) Dixson v. Holroyd (1857), 7 E. & pressly accorded to the creditor. A B. 903.

debtor may discharge himself by deliver(h) Penniall v. Harborne (1848), 11 ing one of two thing; promised; but he Q. B. 368.

cannot compel the creditor to receive one (1) Doe d. Muston v. Gladwin (1845), part of one, and one part of the other. 6 Q. B. 953.

An obligation is pure and simple, although (k) Per Wood, V.-C., Havens v. Mid- contracted in an alternative manner, if dleton (1853), 22 L. J., Ch. 746.

the one of two things promised could not (1) Per Maule, J., Cockburn v. Alex. be the subject of obligation.”—Code ander (1848), 6 C. B. 791, 814.

Civil, bk. 3, tit. 3, art. 1190. (m) Per Lord Mansfield, C.J., Layton (o) Chippendale v. Thurston (1829), 4 v. Pearce (1778), 1 Dougl. 15, 16.

C. & P. 98. (n) Co. Litt. 145 a ; and see Recd v. (P) See per Parke, B., Stevens v. Webb Kilburn Co-operative Society (1875), L. R., (1835), 7 C. & P. 60, 62.

CH. XXII.

8. 2. Performance

(Mode).

Election.

But if the promisor once make his election, he is absolutely bound thereby (9).

And where rent was reserved by agreement,“to be paid quarterly, or half-quarterly if required;" and the landlord received such rent quarterly for a twelvemonth ; the Court seemed to incline to the opinion that he had made his election as to the period of payment, and that, therefore, he could not, without notice, distrain for a half-quarter's rent (1).

SECT. 3.-Time of Performance of Contract When it is to Where a party to a contract undertakes to do some particular be performed. act, the performance of which depends entirely on himself, and

the contract is silent as to the time of performance; the law implies an engagement that it shall be executed within a reasonable time, looking at all the circumstances of the case (s). Thus, where, by the terms of a charter-party, the cargo was “to be discharged with all dispatch according to the custom of the port” of discharge ; it was held by the House of Lords that this bound the charterer to discharge the cargo within a reasonable time, regard being had to every impediment arising out of the custom or practice of the particular port, which the charterer could not have overcome by the use of reasonable diligence (t); and the principle of this case, in which the impediment arose from insufficiency of lighters, was afterwards applied by the Court of Appeal to a case where it arose from a strike of dock labourers (u).

But where the act to be done is one in which both parties to the contract are to concur, the implied engagement is, not that the act shall be done within either a fixed or a reasonable time, but

that each shall use due diligence in performing his part (x). Duration of And an agreement on the face of it indefinite in time is primi contract.

facie perpetual (y). Directly." And where a contract is to be performed " directly,” this does

not mean “within a reasonable time,” but “speedily,” or “as

(9) Brown v. Royal Insurance Society (1859), 1 E. & E. 853 ; 28 L. J., Q. B. 275 ; Gath v. Lees (1865), 3 H. & C. 558; Co. Litt. 146 a.

(v) Mallam v. Arden (1833), 10 Bing. 299.

(8) Per Lord Blackburn, in Postlethwaite v. Freeland, infra; Hick v. Raymond, [1893] A. C. 22.

(1) Postlethwaite v. and (1880), 5 App. ('as. 599; 49 L. J., Ex. D. 630; affirming both the judgnients below;

and (per Lord Herschellin Hick v. Raymond) not really conflicting with Wright v. New Zealand Shipping Co. (1879), 4 Ex. D. 165, C. A.

(u) Castleyate Steamship Co. v. Dempsey, [1892) 1 Q. B. 854, C. A., reversing the judgment of Wright, J.

(2) Ford v. Cotesworth (1868), L. R., 4 Q. B. 127.

(y) Llanelly Rail, Co. v. London & North Western Rail. Co. (1875), L. R., 7 H. L. 550.

s. 3.

soon as possible” (z). And so, a contract by a manufacturer to CH. XXII. furnish certain specified goods " as soon as possible," means that

Performance he is to furnish them within a reasonable time—that is, within (Time). such a time as would be sufficient to enable a person who had all " As soon as the necessary appliances, to execute the contract, regard being

possible." had to the other contracts he may already have in hand (a).

So, where the contract was, to sell certain goods to the defendants, “ Forth with.” “the said goods to be delivered forthwith, and the price to be paid by the defendants, in cash, in fourteen days from the time of the making of the said contract; it was held that, by the use of the word “forthwith," in connection with the payment in fourteen days, it was manifest that the parties intended the goods to be delivered at some time within the fourteen days (l).

Where a contract is to be performed within or at the expiration Month.” of a month, the general presumption of law is, that the parties meant a lunar, not a calendar month (c). But if the context shows that a calendar month was intended, the Court may adopt that construction (d). And, in like manner, the circumstances in which the contract was made, or proof of some custom in the place where, or in the trade with reference to which it was made, may rebut the presumption, and show that a calendar month was intended (e). In the case of bills of exchange, cheques on bankers, and promissory notes, however, the word “month” is understood to mean calendar month” (), as it is in statutes passed after 1850 by virtue of sect. 3 of the Interpretation Act, 1889, 52 & 53 Vict. c. 63, “ unless a contrary intention appears."

Where, by the contract, a party is to have so many days for Days. doing an act- e.g., where the charterer of a ship is allowed by the charter-party so many “running days” for loading the ship —the days mean consecutive days, including Sundays, unless there be a custom to the contrary (g). But where the context shows that working days were intended, Sundays will be excluded (h). Delivery of goods must be made at a reasonable hour, and what Hour for

goods. is a reasonable hour is a question of fact (i).

(z) Duncan v. Topham (1849), 8 C. B. v. Margilson (1847), 11 Q. B. 23, 32. 225, and see ante, p. 89.

(f) Bills of Exchange Act, 1882, s. 14, (a) See Hydraulic Engineering Co. v. sub-s. 4. And a “calendar month" is McHafie (1879), 4 Q. B. D. 670, C. A. ; to be calculated from the particular day Attwood v. Emery (1856), 1 C. B., N. S. in one month “to the day numerically 110, 115.

corresponding to that day, in the follow(6) Staunton v. Woo:1 (1851), 16 Q. B. ing month, less one." Per Brett, L.J.,

Migotti v. Colvill (1879), 4 C. P. D. 233, (c) Per Cur., Simpson v. Margitson

C. A. (1847), 11 Q. B. 23, 31 ; Bruner v. (9) Brown v. Johnson (1842), 10 M. & Moore, (1904) 1 Ch. 305, per Farwell, J. W. 331, 334,

(d) Simpson v. Margitson (1847), 11 (h) Commercial Steam-Ship Co. Q. B. 23 ; Lang v. Gale (1813), 1 M. & S. Boulton (1875), L. R., 10 Q. B. 346. 111.

(1) Sale of Goods Act, 1893, s. 29 (4), e) Per Lord Denman, C.J., Simpson ante, p. 351.

638.

V.

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