1859.

HCARE

v.

RENNIE.

have agreed to pay for certain goods to be shipped in June:
the plaintiffs contend that the defendants must accept
goods not shipped in June. The argument for the plain-
tiffs must go this length, that if they shipped no iron in
June, July or August, and but ten tons in September, the
defendants would be bound to accept those ten tons.
Surely that would not be in any sense a performance of
the contract on the part of the plaintiffs. [Pollock, C. B.
-If the first parcel sent might have been according to the
contract, can it be contended that the defendants could
refuse to accept it on account of any subsequent default,
as, for instance, if they afterwards discovered that the
plaintiffs were not going to complete the June shipment?]
In the present case the defendants did not refuse to accept
the shipment in question until after notice that the plain-
tiffs had broken their contract by not shipping the right
quantities in June; in other words, "until after the de-
fendants had notice that the plaintiffs were not ready and
willing, and were unable, to fulfil their part of the agree-
ment." The option being to accelerate the deliveries, any
presumption that the plaintiffs were at liberty to retard
the shipments is excluded. Under an ordinary mercantile
contract for goods to be supplied in June, the buyer would
not be bound to accept them if tendered in July. In
Ritchie v. Atkinson (a) the cargo had been accepted by the
defendants. In Stavers v. Curling (b) the agreed voyage
had been performed, and the owners had had the benefit of
the cargo. The breach of the agreement to be frugal of stores
was a small part only of the consideration. Here there
had been no tender before the plaintiffs had entirely failed
to perform their part of the agreement. The quantity to
be shipped, and the time in which it was to be shipped,
were of the essence of the contract. That brings the case
(a) 10 East, 295.
(b) 3 Bing. N. C. 355.

MICHAELMAS TERM, 23 VICT.

within the authority of Freeman v. Taylor (a), and distin-
guishes it from Tarrabochia v. Hickie (b). The cases on
charter-parties are uniform that where a time is mentioned
for the being ready to load or the like, it is of the essence
of the contract: Glaholm v. Hayes (c), Ollive v. Booker (d),
Oliver v. Fielden (e). The principle which governed Ellen
v. Topp (f) and Graves v. Legg (g) applies, because the
tender was not a partial performance of the contract, but
an offer or readiness to do something, which was no per-
formance of the contract at all. [Pollock, C. B.-The
principle of Boone v. Eyre (h) applies to the partial breach
of a single contract, but surely not to a breach of a conti-
nuing contract, as to supply goods from day to day or from
week to week, where during the contract one party becomes
wholly incapable of performing his part. Suppose in June
the plaintiff had shipped nothing, could he say, I will pay
damages for that, and insist on going on with the contract
and supplying the rest of the iron in July, August and
September? In such a case, if one fails on his part, the
other cannot insist that the contract shall go on.
It may
be different if a partial performance has been accepted.]

Wilde replied (Nov. 15).-The doctrine of conditions precedent never has been applied where continuous acts are to be performed. In Withers v. Reynolds (i), where the defendant had agreed to supply straw at a certain price per load, and the plaintiff always insisted on keeping one payment in arrear, it was held that, on the plaintiff's refusal to pay, the defendant was not bound to send any more; but Patteson, J., said: "If the plaintiff had merely failed

(a)

Bing. 124.

(b) 1 H. & N. 183.
(c) 2 Man. & G. 257.

(d) 1 Exch. 416.
(e) 4 Exch. 135.

(f) 6 Exch. 424.

(g) 9 Exch. 909.
(h) 1 H. Black. 273 n.
(i) 2 B. & Ad. 882.

1859.

HOARE

v.

RENNIE.

1859.

HOARE

v.

RENNIE.

to pay for any particular load, that of itself might not have been an excuse to the defendant for delivering no more straw; but the plaintiff expressly refuses to pay for the loads as delivered." In the present case the defendants cannot avoid the contract altogether because the shipments in some one month are not in all respects according to the contract. The quantity shipped in June is not said to have been an unreasonable quantity for shipment in that month. [Pollock, C. R.—The expressions in the contract are loose and allow some latitude to the plaintiffs, but not so as to permit them to ship twenty tons in the month instead of 160. Watson, B.-The pleas aver that the shipment was not according to the contract.]

POLLOCK, C. B.-We are all agreed that the defendants are entitled to judgment upon the pleas. The foundation of my opinion is shortly this, that a man has no right to say that that which is a breach of an agreement is a performance of it. On that ground this case is distinguishable from almost every other which has been cited. It does not turn upon any question of condition precedent. The only question is whether, if a man who is bound to perform his part of a contract does not do so, he can enforce the contract against another party. The plaintiffs contracted with the defendants to ship a large quantity of iron in June, July, August and September, about one fourth part in each month; but instead of shipping about 160 tons in June, as they should have done, they shipped little more than twenty tons as a performance of the contract. The first count states that the plaintiffs performed all things necessary on their part to be performed, that they were ready and willing to do all things which according to agreement it was necessary they should be willing to do, and that all things happened to entitle the plaintiffs to a per

formance of the agreement on the part of the defendants. This is denied by the plea. The second count states that the plaintiffs, in part performance of the contract, shipped a certain portion of the iron, and, in further performance of the agreement, tendered and offered to deliver the said portion so shipped, yet defendants refused to accept the same. The pleas raise the question whether the defendants were bound to accept and pay for what was sent and tendered; the plaintiffs having in June shipped from Sweden a quantity much less than they were bound to have shipped, and the defendants having insisted that this was a breach of the contract and given notice that they refused to accept the residue. The pleas expressly state that the plaintiffs were not ready to deliver such a quantity of iron shipped from Sweden in June as is specified in the contract, and were not ready and willing to deliver the small quantities shipped until after the month of June had elapsed, and until after the defendants had notice that the plaintiffs were not ready and willing to perform their part of the agreement. The only question we have to deal with is whether, on a contract like this, if the sellers at the outset send a less quantity than they are bound to send, so as to begin with a breach, they can compel the purchasers to accept and pay for that the sending of which was a breach and not a performance of the agreement. The argument on the part of the plaintiffs is that this was not a condition precedent. I do not think that is the test. It was said that if the plaintiffs had sent the one hundredth part instead of one fourth part in June, the defendants' remedy would have been by a cross action. The case was put of the plaintiffs sending a short quantity after one shipment had been accepted. Possibly that might have made a difference. Where a person has derived a benefit from a contract, he cannot rescind it because the parties cannot be put in statu quo. Probably, therefore, in such case, the defendants could not

1859.

HOARE

v.

RENNIE.

1859.

HOARE

v.

RENNIE.

have repudiated the contract and must have been left to their cross action. Here, however, the defendants refused to accept the first shipment, because, as they say, it was not a performance but a breach of the contract. Where parties have made an agreement for themselves, the Courts ought not to make another for them. Here they say that, in the events that have happened, one fourth shall be shipped in each month, and we cannot say that they meant to accept any other quantity. At the outset the plaintiffs failed to tender the quantity according to the contract: they tendered a much less quantity. The defendants had a right to say that this was no performance of the contract, and they were no more bound to accept the short quantity than if a single delivery had been contracted for. Therefore the pleas are an answer to the action.

WATSON, B.-I am of the same opinion. (His lordship read the contract stated in the declaration.) The contract is for the shipment of a quantity of iron in certain proportions to be paid for on delivery. On performance of the contract the defendants agree to pay for the iron. The breach charged here is that the defendants shipped a small quantity in June, and declared that they would not ship more. The pleas aver that the shipment was not according to the contract. The obligation on the part of the defendants is merely to receive and pay for the goods according to the contract. Looking at the contract, the options given are all for the purpose of accelerating the shipments. Instead of shipping in June, the defendants may ship a portion in May. The plaintiffs might have accelerated, but had no right to delay the delivering of the iron. Having done so, they have not performed their contract. The substance of the agreement in Ritchie v. Atkinson (a) was that

(a) 10 East, 295.