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to some specific quantity to which the description in the contract directly applies. The words of the contract are:-“We have this day sold to you, on account of Messrs. W. J. Myers, about 600 tons of nitrate of soda.” Now if it had stopped there, it might have meant any 600 tons which might at that time have been, or which might thereafter be purchased. But they go on to give this precise description to the 600 tons the subject of the contract. “ About 600 tons, being the entire parcel of nitrate of soda expected to arrive at the port of call per Precursor.Now, does not this as plainly as words can speak say to the plaintiff, “There is a certain quantity about 600 tons, of nitrate of soda, expected to arrive at the port of call, and it is one entire parcel?”. I think that without any communication of the letter of the 16th of July to the plaintiff, the plaintiff was apprised by the terms of this contract that it related to some one entire parcel of nitrate of soda, which the defendants expected to arrive by the Precursor. There was, therefore, an entire quantity, and a specific quantity which the defendants expected to arrive, and that quantity, it is clear, was described in the contract; and the words in the subsequent condition seem really to place the case beyond all doubt: “Should any circumstance or accident prevent the shipment of the nitrate, this contract to be void.” Has not this provision in the contract attached ? It is very true that an accident had occurred before the date of this contract, although it was unknown to the parties, but whether it was an accident which had already occurred, or which might occur, it was an accident. I say nothing at this moment of the award. There was an accident from an earthquake having destroyed the greater quantity of the nitrate, which de facto prevented the shipment on board the Precursor, and therefore, under the precise terms of this part of the contract, the condition on which the contract was to be void had attached.

Let us suppose that this nitrate of soda had not been destroyed by the earthquake, but had been 'conveyed to a wharf and was about to be shipped on board the Precursor, and an embargo had been laid upon it, which prevented the shipment, and the Precursor had consequently sailed without it, but the Precursor at the time had on board another quantity of 600 tons of other 142] nitrate of *soda consigned by this house at Valparaiso to

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the defendants in Liverpool, could the plaintiff have claimed that quantity? There would have been 600 tons of nitrate of soda which had arrived by the Precursor, just as the soda in question did ultimately arrive by the Precursor, could he have claimed it, and why not? He clearly could not; that might have been contracted to be sold by the defendants to other persons, and he would have no right to it under the contract in question. Why could he not have claimed it? Because the answer of the defendants would have been this : “ We undertook to sell to you a quantity of nitrate of soda .expected to arrive by the Precursor, and we referred to a particular quantity which had been purchased, and that quantity which we thus referred to has been prevented by an accident, an embargo laid upon it, being shipped on board this vessel, therefore we cannot perform the contract, because, by virtue of the condition, the contract is void.”

It appears to me, therefore, whether we look at the language of the earlier part of the contract where they specify the quantity in question by description, which is an entire parcel of nitrate of soda expected to arrive, or whether we look at the subsequent provision, that if any accident should prevent the shipment of the nitrate, the contract is to be void, the contract is intended to refer to a specific quantity which the defendants had notice of in the letter of the 16th of July. That specific quantity was prevented from being shipped in consequence of an accident, whether we take the accident to be the earthquake, or whether we look at the meaning of the award, which had the effect of preventing the shipment of any quantity of nitrate under this contract on board the Precursor : so that the contract under the provision which is contained in it became void, and, consequently, the plaintiff is unable to enforce it.

Upon these grounds, I think that the judgment of the Court of Queen's Bench was right, and must be affirmed.

WILLES, J. I entirely agree, in the main, with my Lord Chief Baron as to the judgment of the Court; but I must reserve my opinion as to the supposed case of 600 tons being put on board and being claimed by several people. I cannot, as at, present *advised, agree with what he has said on that sup- [143 posed case of several people claiming 600 tons put on board

1871

Smith v. Myers. under separate contracts; but it is unnecessary to go that length in the present case. My notion is, that, as the seller stipulated that, if the intended shipment of the whole cargo was prevented by any circumstance or accident, the contract was to be void, the earthquake and award (though that was res inter alios acta), were a circumstance which the parties must be taken to have had in contemplation, and therefore, that that did amount to a circumstance or an accident which avoided the contract.

CHANNELL, B. I am of the same opinion. I think the judgment of the Court below must be affirmed.

KEATING, J. I am of the same opinion.

Pigott, B. I agree with the reasons given.

CLEASBY, B. I have nothing further to add, than that the cargo which arrived in May was not the cargo which in September was expected to arrive.

Judgment affirmed.

Attorneys for plaintiffs : Jones, Blaxland, f Son, for Abbot fi Leonard, Bristol.

Attorneys for defendants : Walker f Sons, for Ellis f Field, Liverpool.

As to the construction of contracts Barb., 515; Reimers v. Redner, 26 How. for the sale of goods to arrive, see Prac. Rep., 385 ; 2 Robertson, 11; Swift Lovatt v. Hamilton, 5 Mees. and Welsb., v. Opdyke, 43 Barb., 274. 639; Havemeyer v. Cunningham, 35

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*[IN THE EXCHEQUER CHAMBER.]

(144 Nov. 27, 1871. COATES and another v. COLLINS.

Law Reports, 7 Queen's Bench, 144. Covenant for Title Assignment of Lease for Lives Covenant that Lease is sub

sisting for the Three Lives. By deed of July, 1853, after reciting a lease of the 10th of March, 1847, from E. F., to defendant, for the lives of A., B., and C., and the survivors or survivor of them, defendant conveyed the premises to plaintiffs, to hold for the lives of A., B., and C., and the survivors or survivor of them, and covenanted “that the said lease of the 10th of March, 1847, is a good, valid, and subsisting lease in tho law, for the lives of the said A., B., and C., and the survivors or survivor of them, and is not forfeited, surrendered, or become void or voidable.” B. having died before July, 1853, plaintiffs sued defendant for a breach of the covenant:

Held, affirming the judgment of the Court of Queen’s Bench, that the mention of the three lives was mere matter of description, and that the covenant only amounted to a covenant that the lease was still subsisting, and not to an implied covenant that the three lives were still in existence.

ERROR from the judgment of the Court of Queen's Bench in favor of the defendant on demurrer to a plea.

The declaration was on an assignment of the 2d of July, 1853, by the defendant to M. G. W. Coates (whose estate had since vested in the plaintiffs) of a lease of the 10th of March, 1847, for three lives, with a covenant by the defendant that the said lease was a good, valid, and subsisting lease for the said three lives. Breach : that one of the lives had dropped before the assignment.

The plea set out the deed of assignment of the 2d of July, 1853, at length. It was an indenture between the defendant of the one part, and M. G. W. Coates of the other part, and recited (inter alia) the lease of the 10th of March, 1847, whereby Lady Emily Foley demised to R. H. Lenthal and G. C. Carden, their heirs and assigns, for the natural lives of W. Walker, W. Jones, and R. Heath, and the natural lives and life of the survivors or survivor of them, at the yearly rent of 5l. and 51. 58., for a heriot on the decease of each of the said lives, and subject to the covenants, provisoes, and agreements therein contained ; and an assignment of the lease by Lenthal (Carden having died) to the defendant; and witnessed that the defendant, in con

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sideration of 12251. granted and conveyed to M. G. W. Coates, his heirs, executors, administrators, and assigns, a certain mes145] suage and premises, to hold “ for *and during the lives. of the said W. Walker, W. Jones, and R. Heath, and the lives and life of the survivors, and survivor of them, subject to the rents, heriots, covenants, provisoes, and agreements in the said recited lease of the 10th of March, 1847.” There was (inter alia) a covenant by the defendant “ that the said recited indenture of lease of the 10th of March, 1847, is a good, valid, and subsisting lease in the law for the lives of the said W. Walker, W. Jones, and R. Heath, and the survivors and survivor of them, and is not forfeited, surrendered, or become void or voidable;” and that the said yearly rents and all covenants, &c., had been paid and observed. There was also a covenant for quiet enjoyment "during the lives of the said W. Walker, W. Jones, and R. Heath, and the survivors or survivor of them," and a covenant, for further assurance, “ from time to time, and at all times hereafter, upon reasonable request by Coates, unto him for the lives of the said W. Walker, W. Jones, and R. Heath, and the survivors or survivor of them."

The plea concluded, and though true it is that the said W. Jones did die before the making of the deed of the 2d of July, 1853, yet the other lives were then living; and, unless the covenants were broken by the fact of Jones having so died, none of the covenants were broken as alleged.

Demurrer and joinder.

In the Court of Queen's Bench (') Blackburn and Mellor, JJ., were of opinion that the covenant relied on in the declaration only amounted to a covenant that the lease was still subsisting, and not to a covenant that the three lives were still in existence; Lush, J., being of a contrary opinion.

J. Brown, Q. C. (A. T. Laurence with him), for the plaintiffs. Taking the whole deed together, it is plain that it purports to assign the whole of the original term, and not merely so much as might remain. The habendum itself amounts to this. If one life might have dropped, so might two; but it is impossible to say

that the habendum would have then been in this form. It is clear, as Blackburn, J., says, that the parties thought all

(1) Law Rep. 6 Q. B., 409.

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