1868.

HART

V.

SMITH,

Lords Justices in In re Cowen, ex parte Foster (a); it can only be reviewed in a Court of error. I have not examined all the reasons given for that decision so carefully as to express my assent to them; but I do not think that the Legislature intended to exclude motives of benevolence and kindness to the debtor operating in the minds of those who were empowered to make a binding deed under sect. 192; it was not necessary to guard against the existence of such motives, but against actual fraud in persons representing themselves as creditors who are not. If benevolence and kindness are not proper motives to induce a creditor to execute or assent to a deed, it might follow that if one creditor was influenced by such motives there would not be a sufficient number to make up the requisite majority, and the deed would be invalid. I think that on examination it would be found that the decision of the Lords Justices does not involve that consequence.

HAYES J. The case of In re Cowen, ex parte Foster (a), was considered by Judges of great authority, and therefore we are bound by it.

Judgment for the defendant on the demurrers to

the pleas, and to the 3rd, 4th and 5th replications; for the plaintiffs on the demurrers to the 6th, 7th and 8th replications (6).

(a) 36 L. J. Bank. 41; S. C. Ex parte Cowen. In re Cowen, L. R. 2 Chanc. App. 563.

(b) See the preceding case.

1868.

FORD and others against COTESWORTH and

another.

[Thursday, December 17th.]

Contract.

1. Whenever a party to a contract undertakes to do some particular Time for act the performance of which depends entirely on himself, so that he performance. may choose his own mode of fulfilling his undertaking, and the contract Reasonable is silent as to time, the law implies a contract to do it within a reason- diligence. able time.

2. Where the act to be done is one in which both parties to the contract are to concur, and both bind themselves to the performance of it, the law implies that each contracts that he shall use reasonable diligence in performing his part.

3. The contract implied by the law in the absence of any stipulation in a charterparty is, that each party shall use reasonable diligence in performing his part of the delivery of the cargo at the port of discharge, the merchant being ready to receive in the usual manner and the owner by his captain and crew to deliver in the usual manner.

4. A charterparty for a voyage from Liverpool to Lima or Valparaiso provided that the vessel should proceed to the port of discharge, or as near as she could safely get, and there deliver her cargo in the usual and customary manner. A specified number of days were agreed upon for loading the vessel at Liverpool, but there was no such agreement as to the discharge at her port of destination. The vessel arrived at the port of discharge and remained discharging till, owing to apprehension of a bombardment by a hostile fleet, the authorities suspended all landing of goods for seven days, after which she returned and her discharge was completed. Held, that there was no implied contract that the cargo should be discharged within the number of days usual and customary in the port for such a vessel, and therefore the loss from the delay occasioned by the extraordinary and unforeseen state of things existing at the time of discharge must fall on the shipowner.

THIS was an action to recover compensation in damages for the detention of the plaintiffs' ship by the defendants.

On the trial, before Cockburn C. J., at Guildhall, after Trinity Term, 1867, it appeared that the defendants chartered the plaintiffs' ship from Liverpool to Lima or Valparaiso. By the charterparty a specified number of days were agreed upon for loading the vessel at Liverpool, but there was no such agreement as to the discharge at her port of destination, the charterparty

Charterparty. Time for discharge of cargo.

1868.

FORD

V.

COTESWORTH.

merely providing that the vessel should proceed there or as near as she could safely get, and there deliver the cargo in the usual and customary manner agreeably to bills of lading, and so end the voyage. The contract being thus silent as to the time which was to be occupied in the discharge, the question arose, what was the agreement which the law implied in such a case?

The vessel duly arrived at Callao, the port of Lima, and began to discharge in the manner usual there. The Custom House authorities there will not allow any cargo to be landed except through the customs, and in consequence of their dilatoriness and the general sluggishness of the population the ordinary discharge of a vessel at that place is very slow. The vessel remained discharging till, news having arrived of the approach of the Spanish fleet with a hostile intention, the customs authorities suspended all landing of goods in order that they might remove those already in the Custom House out of the reach of apprehended bombardment. The vessel consequently lay with the cargo partly on board for seven days, when she was ordered away to be out of the danger. She returned, and her discharge was finally completed.

The Lord Chief Justice ruled that during the period when the vessel was not at Callao at all there was no claim for damage. He reserved for the Court the question whether the plaintiff was entitled to recover for the detention during seven days when the vessel was at her discharging berth, but owing to the unusual state of things the customs authorities would not allow the discharge to proceed. The damages for that detention, if the plaintiff was entitled to recover, were agreed to be 1057. As to the rest of the detention, he left the question to the jury whether the detention was occa

sioned by anything beyond the usual and ordinary delays of the port. The jury found on this point for

the defendant.

In Michaelmas Term,

Field obtained a rule nisi to enter the verdict for the plaintiff for 1057. pursuant to the leave reserved, or for a new trial on the ground that the verdict was against the weight of evidence. No complaint was made of the direction in point of law.

The case was argued in Trinity Term, May 22, 23, 25, before BLACKBURN, MELLOR and LUSH JJ.

Milward and Charles Russell, for the defendants, cited Rodgers v. Forresters (a); Burmester v. Hodgson (b); Phillips v. Irving (c); Harris, appt., Dreesman, respt. (d); Goodwyn v. Cheveley (e); Hudson v. Ede (ƒ); affirmed in error (g).

Field and Philbrick, for the plaintiffs, cited Paradine v. Jane (h); Randall v. Lynch (i); and S. C., in banc (j), where the ruling of Lord Ellenborough at Nisi prius was not objected to; Barret v. Dutton (k); Brown v. Johnson (1); Kearon v. Pearson (m); Adams v. The Royal Steam Packet Company (n); Maclachlan on Shipping 445.6. [Lush J. referred to Hill v. Idle (o).]

1868.

FORD

V.

COTESWORTH.

(a) 2 Camp. 483.

(b) 2 Camp. 488.

(c) 7 M. & G. 325.

(d) 23 L. J. Exch. 210; S. C. Dreesman, appt., Harris, respt., but not

S. P., 9 Exch. 485.

(e) 4 H. & N. 631.

(g) 8 B. & S. 639.

(i) 2 Camp. 352. (k) 4 Camp. 333.

(m) 7 H. & N. 386.

(0) 4 Camp. 327.

(f) 8 B. & S. 631.

(h) Al. 26, 27.

(j) 12 East 179.

(2) 10 M. & W. 331. 334.

(n) 5 C. B. N. S. 492.

1868.

FORD

V.

The Court refused to disturb the verdict on the other

points, but as to the leave reserved,

COTESWORTH.

Cur. adv. vult.

LUSH J. now delivered the judgment of the Court. [After stating the facts as in pp. 559-560.] We have come to the conclusion that the plaintiff is not entitled to recover.

The question depends upon what the contract implied by law is where there is a charterparty silent as to the time to be occupied in the discharge. We agree that whenever a party to a contract undertakes to do some particular act the performance of which depends entirely on himself, so that he may choose his own mode of fulfilling his undertaking, and the contract is silent as to time, the law implies a contract to do it within a reasonable time under the circumstances. And if some unforeseen cause over which he has no control prevents him from performing what he has undertaken within that time he is responsible for the damage. But where the act to be done is one in which both parties to the contract are to concur, and both bind themselves to the performance of it, there is no principle on which, in the absence of a stipulation to that effect, either expressed by the parties or to be collected from what they have expressed, the damage arising from an unforeseen impediment is to be cast by law on the one party more than on the other, and consequently we think that what is implied by law in such a case is not that either party contracts that it shall be done within either a fixed or a reasonable time, but that each contracts that he shall use reasonable diligence in performing his part.