1831. FREEMAN V. TAYLOR. So in Shadforth v. Higgin (a), where a ship was freighted to go in ballast to Jamaica, and bring home a cargo from thence, and the freighter undertook to provide a full cargo for her in time for the July convoy, provided she arrived out and was ready by the 25th of June; it was held, that as she did not arrive out till after the 25th of June, the freighter was entirely discharged from his contract to furnish a cargo. In the cases relied on for the Plaintiff, either the stipulation was no condition precedent, or it did not appear, as in the present case, that the party had been deprived of the benefit of the contract. Thus, in Bornmann v. Tooke, there was no finding that the object of the defendant had been defeated. In Havelock v. Geddes the defendant made use of the ship, and thereby waved the right of insisting on seaworthiness as a condition precedent. In Davidson v. Gwynne the benefit of the voyage was obtained although the ship did not sail, according to agreement, with the first convoy. Whether or not a stipulation shall operate as a condition precedent, and goes to the entire consideration, depends, says Lord Ellenborough, not on any formal arrangement of the words, but on the sense and reason of the thing, as it is to be collected from the whole contract; Ritchie v. Atkinson (b); and on that principle all the cases may be reconciled; Thomas v. Cadwallader (c), Goodisson v. Nunn (d), Porter v. Shepherd (e), Campbell v. Jones (g), Cook v. Jennings (h), Glazebrooke v. Woodrow (i), Smith v. Wilson (k), Storer v. Gordon (1), Fothergill v. Walton. (m) (a) 3 Campb. 383. (b) 7 T. R. 381. Com. Com. Dig. Condition Precedent, (G 5.) is express that it ought to be performed within a reasonable time. Taddy. The Defendant having had the benefit of the outward voyage, and having adduced no proof of loss occasioned by the late arrival of the ship at Bombay, it was not competent to the jury to find that the whole object of the contract was defeated. In Touteng v. Hubbard, Soames v. Lonergan, and Shadforth v. Higgin, nothing was done for the benefit of the charterer on the outward voyage; the ships went out in ballast. And in Havelock v. Geddes Lord Ellenborough said, "Had the Plaintiff's neglect precluded the Defendants from making any use of the vessel, it would have gone to the whole consideration, and might have been insisted upon as an entire bar; but as the Defendants have had some use of the vessel, notwithstanding the Plaintiff's neglect, the Plaintiff's covenant is to be considered as going to a part only; the consideration has not wholly failed, and the covenant cannot be looked upon as having raised a condition precedent, but merely gives the Defendants a right under a counter-action to such damages as they can prove they have sustained from such neglect." [Tindal C.J. The Plaintiff here has been paid for the outward voyage.] Still Bornmann v. Tooke and Constable v. Cloberie (a) are express authorities to shew that the stipulation here as to proceeding direct to Bombay was not a condition precedent. Goodisson v. Nunn, Glazebrook v. Woodrow, and Kingston v. Preston (b), there cited, were all cases of sale and purchase, involving concurrent conditions, which could not be pleaded one against the other, and inapplicable to the present case; but Campbell v. Jones (c) is in point for the Plaintiff. There A., in (a) Palm. 397. (b) Cited at large in Jones v. Barkley, Dougl. 689. (c) 6 T. R. 570. 1831. FREEMAN v. TAYLOR. 1831. FREEMAN บ. TAYLOR. consideration of 250l. paid by B., and of the further sum of 250l. to be paid, &c., covenanted that he would, with all possible expedition, instruct B. in a certain mode of bleaching linen (for which he had obtained a patent); and B. covenanted that he would, on or before the 25th of February 1794, or sooner, if A. should before that time have instructed him, &c. pay the further sum of 250%.; it was held, that the covenants of A. and B. were independent covenants; and that A. might sue B. for the 250l., without averring that he had taught B. the mode of bleaching linen, &c. Cur. adv. vult. TINDAL C. J. This was an action of assumpsit, upon a charter by the Plaintiff to the Defendant of the ship Edward Lombe, from London to Madeira and the Cape of Good Hope, and thence to Bombay and back; the Plaintiff claiming a compensation in damages against the Defendant for not loading the ship with a cargo of cotton at Bombay. At the trial it appeared in evidence, that, instead of proceeding by the direct and usual course from the Cape of Good Hope to Bombay, the captain made a deviation to the island of Mauritius; and that the Defendant's agents at Bombay, in consequence of such deviation, refused to find a cargo. The point left to the jury at the trial was, whether the deviation was of such a nature and description as to deprive the freighter of the benefit of the contract into which he had entered; the jury being told that if such was their opinion, the Defendant was excused, by the act of the Plaintiff's captain, from furnishing a cargo. The jury having determined that question in the affirmative, and having found a verdict for the Defendant, a motion was made to set the verdict aside, and for a new trial, on the ground of misdirection. But, But, after hearing the arguments against and in support of the rule, we are of opinion, upon the same principle as that which was laid down in the case of Mount v. Larkins (a), and which we therefore think it is unnecessary to repeat, that the direction was right; and we therefore think the rule for a new trial must be discharged. 1831. FREEMAN ข. TAYLOR. (a) Ante, p. 108. Rule discharged. MEMORANDUM. Pursuant to a statute passed in the last session of Parliament, His Majesty issued his letters patent, dated the 5th December, 1831, constituting a Court, to be called "A COURT OF BANKRUPTCY;" and appointed The Honorable Thomas Erskine to be Chief Justice; Albert Pell, John Cross, and George Rose, Esquires, to be Puisne Judges. The Chief Justice to take precedence in rank next to the Puisne Judges of the other Courts, and after him the other Judges. Six Commissioners were also appointed; viz. C. F. Williams, J. H. Merivale, J. Evans, R. G. C. Fane, E. Holroyd, and J. S. M. Fontblanque, Esquires. Mr. Serjt. Ed. Lawes was appointed Chief Registrar. |