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declared that he would not hold himself bound by it, and that his renunciation of the contract was adopted, and, if that were necessary, *747977 abundantly acted on by *the Company when they entered into
" ] a treaty with Messrs. Smith & Co. for the forwarding of their goods by another vessel. A great deal has been said about the inconvenience of the rule we are now acting on: but it seems to me that there would be intense inconvenience in holding that the parties to a contract of this nature may be left in doubt down to the very last moment as to whether it is to be performed or not. In this case, which is that of a railway company, to whom it must be of the utmost importance that a contract for the conveyance of their rolling stock should be duly performed, how unreasonable it would be to hold, that, having received an intimation from the defendant that he repudiates the contract made by his clerk, they must still wait until the day named for its performance is past before they can make arrangements for forwarding their goods by another ship. Mercantile convenience is entirely on the side of the rule which has been adopted by the Courts in the cases referred to. That disposes of the first case, and also of the substance of the claim urged by Xenos in his action against the Company for not sending the goods. Having broken the contract on his part by refusing to accept the goods under it, he can of course have no claim upon them for not sending them. A difficulty has been suggested as to the form of the plea: but, the Company having a substantial defence, if need were we would make the form yield to the substance. That which Xenos in terms complains of, is, that the Company did not forward their goods for shipment on board his vessel by the 1st of August. The Company in answer to that complaint say, that, before any breach of the contract by them, viz., on the 21st of July, the plaintiff discharged them from the performance of it. It is said there can be no discharge without the mutual consent *1707 of the two contracting parties. In *one sense, there was a
4°) discharge by mutual consent: for, if one of the contracting parties says to the other, “I do not hold myself bound by the supposed contract, and will not perform it," and the other party intimates that he will act upon that refusal,—what is that, in substance, but a discharge from the performance of the contract by mutual consent? For these reasons, I am of opinion that the Company are entitled to our judgment in both actions.
WILLIAMS, J.-I am entirely of the same opinion. With respect to the first action, I think that the cases cited on the part of the plaintiffs have fully established, that, if before the time for the performance of a contract arrives, one of the parties thereto not merely asserts that he cannot or will not perform it, but expressly repudiates and renounces it, the party to whom the promise is made may treat that as a breach of the contract, at his option; at all events, where he has in consequence thereof acted so as to interfere with the performance of the contract on his part according to its original terms. The question is whether the present case is within the rule of law so established. I am of opinion that it is. What was said by Xenos in his letter of the 21st of July, was an express renunciation of the contract, upon which the Company were entitled to act as they did. In consequence of that letter, it became necessary for the Company to enter into a negotiation
with somebody else to carry for them to Kustendjie the goods which Xenos through his agent had contracted to carry for them. They did so. The rule above mentioned has been qualified to this extent, that the party, having the option of treating the renunciation as a breach of the contract, is bound to exercise his option, if he means to rely on the breach. Here the Company did exercise their option : *and, r*100 although they did not before the 1st of August enter into a 1"} binding contract with Smith & Co., I think they did quite enough to satisfy this qualification of the rule.
Then, as to the cross-action brought by Xenos against the Company. If what was done here amounted to a rescinding of the contract, cer. tainly that would be inconsistent with the Company suing for a breach of it. But the true effect of Xenos's conduct was, to discharge the Company from the performance of the contract on their part. I have certainly felt some difficulty in dealing with the plea: but I think it is a necessary consequence of the decision in Hochster v. De la Tour, and that class of cases, that, where there is by the party making the promise a renunciation which amounts to a breach, it must operate as a discharge of the other party froin the performance of the contract on his part. I therefore think it is a good plea in such a case as this to say, that before breach the plaintiff discharged and exonerated the defendant from the performance of the agreement: and I think that the evidence of the renunciation which took place here may well sup. port such a plea.
BYLES, J.-I also am of opinion that the Company are entitled to judgment in both actions. I give no opinion upon the form of the pleadings. The facts are referred to us; and if upon those facts we see that the Company are entitled to succeed, we may and indeed are bound to reform the pleadings so as to do justice between the parties. The declaration in the first action charges a refusal on the part of the defendant to perform the contract before the time for its performance had arrived: but the facts set out in the case are strong to show a refusal at the time fixed for *the performance; because, taking r*180 Xenos's letter of the 1st of August in conjunction with his l 10 letters of the 23d of July, I can only construe it to mean “I am ready to receive your goods per Mavrocordatos upon the terms mentioned in my letter," --not upon the terms of the original contract made with Fitze. If that be the true construction, all difficulty would be got rid of by an amendment of the first breach. Assuming, however, that the first letter amounts to no more than an intimation on the part of Xenos that he does not mean to perform the contract,-or, as my Bro. ther Williams puts it, a renunciation of the contract before the day fixed for its performance had arrived,—there may be a difficulty, as would appear from the notes by the learned editors of Smith's Leading Cases to Cutter v. Powell, Vol. 2, p. 37, 5th edit., in reconciling the doctrine in Phillpotts v. Evans, 5 M. & W. 475,7 and Leigh v. Paterson, 2 J. B. Moore 588, with the judgment of Lord Campbell in Avery v. Bowden, 5 Ellis & B. 714 (E. C. L. R. vol. 85). But it is unnecessary to go into that upon the present occasion, because here are at least two statements in writing by the Company before the 1st of August, that they will treat Xenos's renunciation as a breach of the contract, and hold him responsible for the consequences. Now, it is plain, that, if, in consequence of that renunciation of the contract by Xenos, the Company were induced to incur liability and expense, and, still more, to make another contract for the transport of their goods by another vessel, the defendant must be held bound by it. There is strong evidence on the face of the case to show that another contract was entered into by the Company before the 1st of August. But, without going so far, the negotiations with Messrs. Smith & Co. for that purpose abundantly satisfy all that the law requires, if indeed *181] 1917 the law does require that there shall be some act done by *the
3 other party to intimate his assent to the renunciation of the contract, beyond his saying so. For these reasons, it seems to me that the Company are entitled to succeed in both actions.
KEATING, J.-I entirely agree with the rest of the Court. It is unnecessary for us upon this occasion in any way to interfere with the cases of Phillpotts v. Evans and Ripley v. M'Clure, 4 Exch. 345,+ because here was the strongest possible evidence of an entire repudiation of the contract on the part of Xenos. Indeed, so far does he carry his refusal to perform the contract entered into by his agent, that he on the 3d of August intimates that unless his demand,-a demand which he had no right to make,-is at once complied with, he will despatch his ship to another destination. But, what distinguishes this case from Phillpotts v. Evans, is, that here there is the strongest evidence of the Company having acted upon the refusal of Xenos to perform his contract. They begin by countermanding the orders they had given to the several railway companies to forward the goods to the Victoria Docks for shipment on board the Mavrocordatos: and, further, they enter into negotiations with Messrs. Smith & Co. for sending the goods by another vessel, which negotiations, if not amounting to actual binding contracts by the 1st of August, were in such a state of forwardness that they could not withdraw from them without placing themselves in a situation which they had no right to be placed in. I therefore agree with my Lord and my learned Bro.
thers in thinking that the Company are entitled to judgment in both · actions.
Judgment for the plaintiffs in the first action.
Crist v. Armour, 34 Barb. (N. Y.) 378.
*182] *WALLINGER v. GURNEY. Nov. 13.
An interim order of protection under the 5 & 6 Vict. c. 116, and 7 & 8 Vict. c. 96, protects the insolvent from arrest on a ca. sa. upon a judgment against him for a debt contracted since the filing of his petition, although the final order does not.
Quære, as to what is put in issue under "not guilty" in an action against the sheriff for the wrongful discharge of a defendant arrested on a ca. sa. ?
This was an action against the sheriff of Surrey for an alleged wrongful discharge from custody of one George Bygrave Knights, and for a false return of non est inventus. Plea, not guilty.
The cause was tried before Erle, C. J., at the sittings in Middlesex after last Easter Term, when the following facts appeared in evidence:-In February, 1861, the plaintiff recovered a judgment against Knights in an action for money lent, upon which judgment a ca. sa, was issued and delivered to the defendant as sheriff to be executed, and Knights was arrested under it on the 21st of February: but, upon the production of an interim order of protection from the Court of Bankruptcy, the officer discharged him; and, the sheriff being afterwards ruled to return the writ, returned non est inventus.
It appeared that the debtor Knights had filed his petition in the Court of Bankruptcy under the 5 & 6 Vict. c. 116 and 7 & 8 Vict. c. 96, and on the 17th of July, 1860, received an interim order of protection which contained the following words,—"A protection is hereby given to the said George Byyrave Knights from all process whatever (except as hereinafter mentioned) either against his person or his property of every description, which protection shall continue in force, and all process (except process for arresting or holding him to trial under the authority of a Judge's order for that purpose) is stayed until the 5th of November next, at eleven in the forenoon, being the time appointed for his first examination.” The protection granted by this order was from time to time renewed until the 10th of May, 1861, the insolvent's *examination having been delayed in consequence r*409 of his serious illness.
On the part of the plaintiff, it was insisted that the order of protection was no answer to the action, inasmuch as it could only operate to protect the insolvent against process in respect of debts due at the time of filing his petition; and that, at all events, the defence was not available under the plea of not guilty.
Under the direction of the learned Judge, the jury (who, upon the question being put to them, found that the plaintiff had sustained no loss through Knights's discharge) returned a verdict for the defend. ant,- leave being reserved to the plaintiff to move to enter a verdict for him with 1s. damages, if the Court should be of opinion that either of his objections was well founded,—and power being also reserved to the Court to amend if they should think fit.
Archibald, accordingly, in Trinity Term, obtained a rule nisi to enter a verdict for the plaintiff with 1s. damages, on the grounds, first, that the protection order was not available against the plaintiff's judgment,-secondly, that the evidence of the protection order was not admissible under not guilty. He referred to Rideal v. Fort, 11 Exch. 847,Hodges v. Paterson, 26 Law J., Exch. 223, Beavan v. Walker, 12 C. B. 480 (E. C. L. R. vol. 74), and Wright v. Lainson, 2 M. & W. 734.7
J. Powell and Howard, on a former day in this term, showed cause. The main question is whether the interim order of protection granted to Knights by the Court of Bankruptcy was a sufficient justification to the sheriff for discharging him from custody. It is submitted that it was. It will be contended on the other side that the order could have no application to the plaintiff's debt, because it was not in the schedule, and *in fact had not been contracted at the time of r*19 filing the insolvent's petition. The true question, however, is,
[*184 whether the order is, as its words import, an absolute protection from
all process. The order is granted under the 5 & 6 Vict. c. 116, s. 1, which, after providing that any person not being a trader, or, being a trader, owing less than 3001., on giving and publishing the required notice, may present a petition to the Court of Bankruptcy, stating the debts owing by and to him, proceeds to enact that "it shall thereupon be lawful for the Judge or Commissioner of the Court of Bankruptcy to whom by any order of the Court as hereinafter provided the same shall be referred, or for the Commissioner in the country to whom the petition shall be presented, to give, upon the filing of such petition, a protection to the petitioner from all process whatever either against his person or his property of every description, which protection shall continue in force, and all process be stayed, until the appearance of the petitioner in Court as hereinafter provided.” And by the 6th section of the 7 & 8 Vict. c. 96, it is declared and enacted “that any prisoner in execution upon any judgment obtained in any action for the recovery of any debt, either not being a trader within the meaning of the statutes relating to bankrupts, or, being a trader within the meaning of the said statutes, owing debts amounting in the whole to less than 3001., may be a petitioner for protection from process; and every such petitioner to whom an interim order for protection shall have been given shall not only be protected from process as provided by the recited act (5 & 6 Vict. c. 116), but also from being detained in prison in execution upon any judgment obtained in any action for the reco. very of any debt mentioned in his schedule; and if any such petitioner, being a prisoner in execution, shall be detained in prison in execution
*upon any such judgment, it shall be lawful for the Commis10] sioner to order any officer who shall have such petitioner in custody by virtue of such execution to discharge such petitioner out of custody as to such execution, without exacting any fee, and such officer shall hereby be indemnified for so doing; and no sheriff, gaoler, or other person whatsoever shall be liable to any action as for the escape of any such prisoner hy reason of such his discharge; and such petitioner so discharged shall be protected by his interim order from all process for such time as the Commissioner shall by such interim order or any renewal thereof think fit to appoint, until the making of the final order for protection, in the same manner as if such petitioner had not been a prisoner in execution," &c. Thomas v. Hudson, 1+ M. & W. 353,+ which was decided upon this statute, was a much stronger case than this. There, the plaintiff, having obtained judgment against one F. in an action of assault and false imprisonment, sued out a ca. sa., whereon F. was taken and committed to the Queen's Prison, of which the defendant was the keeper. F. afterwards petitioned the Court of Bankruptcy for his discharge under the 5 & 6 Vict. c. 116, and 7 & 8 Vict. c. 96, and, having obtained from the Commissioner an order for his discharge, was, in obedience thereto, discharged by the defendant accordingly. The plaintiff having brought an action against the defendant for an escape, it was held by the Court of Exchequer (whose judgment was affirmed on error, 16 M. & W. 885t), that, whether this was or was not a debt from which the Commissioner had power to discharge the prisoner, the defendant was protected, being bound to obey the order of the Commissioner, who was acting judi.