Miscellaneous Cases. Remunera tion of solicitor by lump sum. company shall not be liable for negligence in the carriage of goods CH. XXI. 8. 5, or animals, may, by sect. 7 of the Railway and Canal Traffic Act, 1854, 17 & 18 Vict. c. 34, be adjudged void if unreasonable (0); and so may contracts by a client with his solicitor for a lump sum in lieu of costs under the Attorneys and Solicitors Act, 1870, 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 been pointed out in sect. 2 of this chapter, at p. 553. (0) Ante, p. 512. (p) And see Solicitors' Remuneration Act, 1881, 44 & 45 Vict. c. 44, s. 8 from "money. lender." CHAPTER XXII. PERFORMANCE OF A CONTRACT, EXCUSES FOR NON-PERFORMANCE, By whom the Payor must go to payee. SECT. 1.-By whom Contract to be Performed. THE rule of law is, that the person who is to be discharged be performed. from his liability upon a contract, by the performance of a certain act, is impliedly bound to do, or cause to be done, the act which is to discharge him (a). Thus, if a party has to pay a sum of 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 122. (a) See per Lord Ellenborough, C.J., Cranley v. Hillary (1813), 2 M. & S. 120, As to the party who may perform a condition, see Co. Litt. 210 b, 211 a, 220; Bac. Abr. Conditions; Bro. Abr. Conditions, 174; and see Cheney's case (1590), 3 Leon. 260. (b) Co. Litt. sect. 340; per Gibbs, C.J., Soward v. Palmer (1818), 8 Taunt. 277, 279; and see Haldane v. Johnson (1853), 8 Exch. 689. (c) See Stirling v. Maitland (1864), 5 B. & S. 840; M'Intyre v. Belcher (1863), 14 C. B., N. S. 654; Charnley v. Winstanley (1804), 5 East, 266. (d) Inchbald v. Western, &c., Coffee Co. (1864), 17 C. B., N. S. 733. CH. XXII. s. 2. Performance (Mode). to deliver up such instrument in the same condition in which it was at the time he contracted to deliver it (e). So, where there was an agreement to deliver up certain bills of exchange, which 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). lessee. A contract by lessee to insure in the names of the lessors is not Insurance by 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 one is generally adopted which is least profitable to the plaintiff, and least burthensome to the defendant (1). Where conperformed in tract may be many ways. tive. 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 alternaFebruary;" 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 Exch. 128, 132. (f) Kearney v. West Canada, Gold, c., Co. (1856), 1 H. & N. 412. (g) Dixson v. Holroyd (1857), 7 E. & B. 903. (h) Penniall v. Harborne (1848), 11 Q. B. 368. (i) Doe d. Muston v. Gladwin (1845), 6 Q. B. 953. (k) Per Wood, V.-C., Havens v. Middleton (1853), 22 L. J., Ch. 746. (7) Per Maule, J., Cockburn v. Alexander (1848), 6 C. B. 791, 814. (m) Per Lord Mansfield, C.J., Layton v. Pearce (1778), 1 Dougl. 15, 16. (n) Co. Litt. 145 a; and see Reed v. Kilburn Co-operative Society (1875), L. R., A 10 Q. B. 264; South Eastern Rail. Co. v. (0) Chippendale v. Thurston (1829), 4 (p) See per Parke, B., Stevens v. Webb (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 (q). 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 (). When it is to SECT. 3.-Time of Performance of Contract. 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). Duration of contract. "Directly." 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). And an agreement on the face of it indefinite in time is primâ facie perpetual (y). And where a contract is to be performed "directly," this does not mean "within a reasonable time," but "speedily," or and (per Lord Herschell in Hick v. Raymond) not really conflicting with Wright v. New Zealand Shipping Co. (1879), 4 Ex. D. 165, C. A. (u) Castlegate Steamship Co. v. Dempsey, [1892] 1 Q. B. 854, C. A., reversing the judgment of Wright, J. (x) 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. CH. XXII. s. 3. Performance (Time). soon as possible" (z). And so, a contract by a manufacturer to furnish certain specified goods "as soon as possible," means that he is to furnish them within a reasonable time-that is, within such a time as would be sufficient to enable a person who had all the necessary appliances, to execute the contract, regard being possible." had to the other contracts he may already have in hand (a). "As soon as So, where the contract was, to sell certain goods to the defendants, "Forthwith." "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 (b). 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 66 calendar month (f), 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 is a reasonable hour is a question of fact (i). (z) Duncan v. Topham (1849), 8 C. B. 225, and see ante, p. 89. (a) See Hydraulic Engineering Co. v. McHaffie (1879), 4 Q. B. D. 670, C. A. ; Attwood v. Emery (1856), 1 C. B., N. S. 110, 115. (b) Staunton v. Wood (1851), 16 Q. B. 638. (c) Per Cur., Simpson v. Margitson (1847), 11 Q. B. 23, 31; Bruner v. Moore, [1904] 1 Ch. 305, per Farwell, J. (d) Simpson v. Margitson (1847), 11 Q. B. 23; Lang v. Gale (1813), 1 M. & S. 111. 'e) Per Lord Denman, C.J., Simpson v. Margitson (1847), 11 Q. B. 23, 32. (f) Bills of Exchange Act, 1882, s. 14, sub-s. 4. And a "calendar month" is to be calculated from the particular day in one month "to the day numerically corresponding to that day, in the following month, less one." Per Brett, L.J., Migotti v. Colvill (1879), 4 C. P. D. 233, C. A. (g) Brown v. Johnson (1842), 10 M. & (h) Commercial Steam-Ship Co. V. Hour for goods. |