England and Wales High Court (Queen's Bench Division) Decisions

QUEEN'S BENCH

		Saturday, 25th June 1853

Declaration: "for that, heretofore, to wit on 12th April 1852, in consideration that plaintiff, at the request of defendant, would agree with the defendant to enter into the service and employ of the defendant in the capacity of a courier, on a certain day-then to come, to wit the 1st day of June 1852, and to serve the defendant in that capacity, and travel with him on the continent of Europe as a courier for three months certain from the day and year last aforesaid, and to be ready to start with the defendant on such travels on the day and year last aforesaid, at and for certain wages or salary, to wit " 10l. per month of such service, "the defendant then agreed with the plaintiff, and then promised him, that he, the defendant, would engage and employ the plaintiff in the capacity of a courier on and from the said 1st day of June 1852 for three months " on these terms; "and to start on such travels with the plaintiff on the day and year last aforesaid, and to pay the plaintiff" on these terms: averment that plaintiff, confiding in the said agreement and promise of the defendant-, "agreed with the defendant" to fulfil these terms on his part, "and to be ready to start with the defendant on such travels on the day and year last aforesaid, at and for the wages and salary aforesaid." That, "from the time of the making of said agreement of the said promise of the defendant until the time when the defendant wrongfully refused to perform and broke his said promise, and absolved, exonerated and discharged the plaintiff from the performance of his agreement as hereinafter mentioned, he the plaintiff was always ready and willing to enter into the service and employ of the defendant, in the capacity aforesaid, on the said 1st June 1852, and to serve the defendant in that capacity, and to travel with him on the continent of Europe as a courier for three months certain from the day and year last aforesaid, and to start with the defendant on such travels on the day and year last aforesaid, at and for the wages and salary aforesaid; and the plaintiff, but for the breach by the defendant of his said promise as hereinafter mentioned, would, on the said 1st June 1852, have entered into the said service and employ of the defendant in the capacity, and upon the terms and for the time aforesaid: of all which several premises the defendant always had notice and knowledge: yet the defendant, not regarding the said agreement, nor his said promise, afterwards and before the said 1st June 1852, wrongfully wholly refused and declined to engage or employ the defendant in the capacity and for the purpose aforesaid, on or from the said 1st June 1852 for three months, or on, from or for, any other time, or to start on 'such travels with the plaintiff on the day and year last aforesaid, or in any manner whatsoever to perform or fulfil his said promise, and then wrongfully wholly absolved, exonerated and discharged the plaintiff from his said agreement, and from the performance of the same agreement on his the plaintiff's part, and from being ready and willing to perform the same on the plaintiff's part; and the defendant then wrongfully wholly broke, put an end to and determined his said promise and engagement:" to the damage of the plaintiff. The writ was dated on the 22d of May 1852.

Pleas: 1. That defendant did not agree or promise in manner and form etc.: conclusion to the country. Issue thereon.

2. That plaintiff did not agree with defendant in manner and form etc.: conclusion to the country. Issue thereon.

3. That plaintiff was not ready and willing, nor did defendant absolve, exonerate or discharge plaintiff from being ready and willing, in manner and form etc.: conclusion to the country. Issue thereon.

4. That defendant did not refuse or decline, nor wrongfully absolve, exonerate or discharge, nor wrongfully break, put an end to or determine, in manner and form &e.: conclusion to the country. Issue thereon.

On the trial, before Erle J., at the London sittings in last Easter Term, it appeared that plaintiff was a courier, who, in April, 1852, was engaged by defendant to accompany him on a tour, to commence on 1st June 1852, on the terms mentioned in the declaration. On the 11th May 1852, defendant wrote to plaintiff that he had changed his mind, and declined his services. He refused to make him any compensation. The action was commenced on 22d May. The plaintiff, between the commencement of the action and the 1st June, obtained an engagement with Lord Ashburton, on equally good terms, but not commencing till 4th July. The defendant's counsel objected that there could be no breach of the contract before the 1st of June. The learned Judge was of a contrary opinion, but reserved leave to enter a nonsuit on this objection. The other questions were left to the jury, who found for plaintiff.

Hugh Hill, in the same Term, obtained a rule Nisi to enter a nonsuit, or arrest the judgment. In last Trinity Term^[1],

Hannen shewed cause. The breach laid is, that defendant, before 1st June, refused to employ plaintiff; and the averments of readiness and willingness are confined to readiness and willingness until the time when defendant refused to perform his contract. It is upon these averments that issues are taken; and, as they are unquestionably proved, there is no ground for the motion to enter a nonsuit. But the question which arises on the record is a serious one; and it is, whether in law it is possible to break a contract before the day for its performance comes. The cases relied on by the defendant's counsel will probably be Leigh v. Paterson (8 Taunt. 540), Phillpotts v. Evans (5 M. & W. 475) and Ripley v. McClure (4 Exch. 345). But no one of these is an authority for the defendant. In Leigh v. Paterson (8 Taunt. 540) there was a contract by the defendants to supply goods to be delivered in all December. The defendants, on 1st October, announced that they would not so deliver: and, on a writ of enquiry to ascertain the amount of damages, the Secondary ruled that the measure of damages was the difference between the contract price and the market price on 1st October, when the plaintiffs first knew that the defendants would not fulfil their contract. This was held wrong; and it is clear on principle that it was wrong; for the defendants could not by their refusal cast upon the plaintiffs a duty to go at once and purchase goods before the time when they wanted them; and, unless such a duty was cast upon them, the measure of damages was the pecuniary difference between the state the plaintiffs were in, having their money and not the goods, and that in which they would have been had the contract been fulfilled, and they had at the time of delivery paid the money and received the goods; the damages therefore clearly depended on the market price at the time when the goods ought to have been delivered. Phillpotts v. Evans (5 M. & W. 475) was, as far as the decision went, a precisely similar case; but it must be owned that there are dicta of Parke B. in that case which are in favour of the defendant: and in Ripley v. McClure (4 Exebh. 359) Parke B., in delivering the considered judgment of the Court of Exchequer, says that it was contended by the defendant's counsel that the refusal, on the part of the defendants in that case, to accept the goods, " which was long before the contract to buy become absolute, was no breach, and nothing more than an expression of an intention to break the contract, not final, and capable of being retracted. And we think, that, if the jury had been told that a refusal before the arrival of the cargo was a breach, that would have been incorrect. We think that point rightly decided in Phillpotts v. Evans" (5 M. & W. 475). It would seem, from the form of the expressions, that the learned Judge did not mean to decide that a refusal not capable of being retracted would not be a breach. If one party to an executory contract gave the other notice that he refused to go on with the bargain, in order that the other side might act upon that refusal in such a manner as to incapacitate himself from fulfilling it, and he did so act, the refusal could never be retracted: and, accordingly, in Cort v. Ambergate etc. Railway Company (17 Q. B. 127), this Court, after considering the cases, decided that in such a case the plaintiff might recover, though he was no longer in a position to fulfil his contract. That was a contract under seal to manufacture and supply iron chairs. The purchasers discharged the vendors from manufacturing the goods; and it was held that an action might be maintained by the vendors. It is true, however, that in that case the writ was issued after the time when the chairs ought to have been received. In the present case, if the writ had been issued on the 2d of June, Cort v. Ambergate etc. Railway Company (17 Q. B. 127) would have been expressly in point. The question, therefore, comes to be: Does it make any difference that the writ was issued before the 1st June? If the dicta of Parke B. in Phillpotts v. Evans (5 M. & W. 475) are to be taken as universally applicable, it does make a difference; but they cannot be so taken. In a contract to marry at a future day, a marriage by the man before that day is a breach; Short v. Stone (8 Q. B. 358). The reason of this is, that the marriage is a final refusal to go on with the contract. It is not on the ground that the defendant has rendered it impossible to fulfil the contract; for, as was urged in vain in Short v. Stone (8 Q. B. 358), the first wife might be dead before the day came. So also, on a contract to assign a term of years on a day future, a previous assignment to a stranger is a breach; Lovelock v. Franklyn (8 Q. B. 371). It was; but the plaintiff, who, so long as the engagement subsisted, was bound to keep himself disengaged and make preparations so as to be ready and willing to travel with the defendant on the 1st June, was informed by the defendant that he would not go on with the contract, in order that the plaintiff might act upon that information; and the plaintiff then was entitled to engage himself to another, as he did. In Planche v. Colburn (8 Bing. 14) the plaintiff had contracted with defendants to write a work for "The Juvenile Library;" and he was held to be entitled to recover on their discontinuing the publication; yet the time for the completion of the contract, that is for the work being published in "The Juvenile Library," had not arrived, for that would not be till a reasonable time after the author had completed the work. Now in that case the author never did complete the work. [Lord Campbell C.J. It certainly would have been cruelly hard if the author had been obliged, as a condition precedent to redress, to compose a work which he knew could never be published. Crompton J. When a party announces his intention not to fulfil the contract, the other side may take him at his word and rescind the contract. That word "rescind" implies that both parties have agreed that the contract shall be at an end as if it had never been. But I am inclined to think that the party may also say: "Since you have announced that you will not go on with the contract, I will consent that it shall be at an end from this time; but I will hold you liable for the damage I have sustained; and I will proceed to make that damage as little as possible by making the best use I can of my liberty." This is the principle of those cases in which there has been a discussion as to the measure of damages to which a servant is entitled on a wrongful dismissal. They were all considered in Elderton v. Emmens^[2].

Hugh Hill and Deighton, contra. In Cort v. Ambergate etc. Railway Company (17 Q. B. 127) the writ was taken out after the time for completing the contract. That case is consistent with the defendant's position, which is, that an act incapacitating the defendant, in law, from completing the contract is a breach, because it is implied that the parties to a contract shall keep themselves legally capable of performing it; but that an announcement of an intention to break the contract when the time comes is no more than an offer to rescind. It is evidence, till retracted, of a dispensation with the necessity of readiness and willingness on the other side; and, if not retracted, it is, when the time for performance comes, evidence of a continued refusal: but till then it may be retracted. Such is the doctrine in Phillpotts v. Evans (5 M. & W. 475) and Ripley v. M'Clure (4 Exch. 345). If he adopts the defendant's notice, which is in legal effect an offer, to rescind, he must adopt it altogether. It would be, in such a case, a question of fact for a jury, whether there had not been an exoneration. In Phillpotts v. Evans (5 M. & W. 475) it was held that the measure of damages was the market price at the time when the contract ought to be completed. If a refusal before that time is a breach, how could these damages be ascertained? [Coleridge J. No doubt it was possible, in this case, that, before the 1st June, the plaintiff might die, in which case the plaintiff would have gained nothing had the contract gone on. Lord Campbell C.J. All contingencies should be taken into account by the jury in assessing the damages. Crompton J. That objection would equally apply to the action by a servant for dismissing him before the end of his term, and so disabling him from earning his wages; yet that action may be brought immediately on the dismissal; note^[3] to Cutter v. Powell (6 T. R. 320).] It is quite possible that the plaintiff himself might have intended not to go on; no one can tell what intention is.

Cur. adv. vult.

Lord Campbell C.J. now delivered the judgment of the Court. On this motion in arrest of judgment, the question arises, whether, if there be an agreement between A. and B., whereby B. engages to employ A. on and from a future day for a given period of time, to travel with him into a foreign country as a courier, and to start with him in that capacity on that day, A. being to receive a monthly salary during the continuance of such service, B. may, before the day, refuse to perform the agreement and break and renounce it, so as to entitle A. before the day to commence an action against B. to recover damages for breach of the agreement; A. having been ready and willing to perform it, till it was broken and renounced by B. The defendant's counsel very powerfully contended that, if the plaintiff was not contented to dissolve the contract, and to abandon all remedy upon it, he was bound to remain ready and willing to perform it till the day when the actual employment as courier in the service of the defendant was to begin; and that there could be no breach of the agreement, before that day, to give a right of action. But it cannot be laid down as a universal rule that, where by agreement an act is to be done on a future day, no action can be brought for a breach of the agreement till the day for doing the act has arrived. If a man promises to marry a woman on a future day, and before that day marries another woman, he is instantly liable to an action for breach of promise of marriage; Short v. Stone (8 Q. B. 358). If a man contracts to execute a lease on and from a future day for a certain term, and, before that day, executes a lease to another for the same term, he may be immediately sued for breaking the contract; Ford v. Tiley (6 B. & C. 325). So, if a man contracts to sell and deliver specific goods on a future day, and before the day he sells and delivers them to another, he is immediately liable to an action at the suit of the person with whom he first contracted to sell and deliver them; Bowdell v. Parsons (10 East, 359). One reason alleged in support of such an action is, that the defendant has, before the day, rendered it impossible for him to perform the contract at the day: but this does not necessarily follow; for, prior to the day fixed for doing the act, the first wife may have died, a surrender of the lease executed might be obtained, and the defendant might have repurchased the goods so as to be in a situation to sell and deliver them to the plaintiff. Another reason may be, that, where there is a contract to do an act on a future day, there is a relation constituted between the parties in the meantime by the contract, and that they impliedly promise that in the meantime neither will do any thing to the prejudice of the other inconsistent with that relation. As an example, a man and woman engaged to marry are affianced to one another during the period between the time of the engagement and the celebration of the marriage. In this very case, of traveller and courier, from the day of the hiring till the day when the employment was to begin, they were engaged to each other; and it seems to be a breach of an implied contract if either of them renounces the engagement. This reasoning seems in accordance with the unanimous decision of the Exchequer Chamber in Elderton v. Emmens ^[4], which we have followed in subsequent cases in this Court. The declaration in the present case, in alleging a breach, states a great deal more than a passing intention on the part of the defendant which he may repent of, and could only be proved by evidence that he had utterly renounced the contract, or done some act which rendered it impossible for him to perform it. If the plaintiff has no remedy for breach of the contract unless he treats the contract as in force, and acts upon it down to the 1st June 1852, it follows that, till then, he must enter into no employment which will interfere with his promise "to start with the defendant on such travels on the day and year," and that he must then be properly equipped in all respects as a courier for a three months' tour on the continent of Europe. But it is surely much more rational, and more for the benefit of both parties, that, after the renunciation of the agreement by the defendant, the plaintiff should be at liberty to consider himself absolved from any future performance of it, retaining his right to sue for any damage he has suffered from the breach of it. Thus, instead of remaining idle and laying out money in preparations which must be useless, he is at liberty to seek service under another employer, which would go in mitigation. of the damages to which he would otherwise be entitled for a breach of the contract. It seems strange that the defendant, after renouncing the contract, and absolutely declaring that he will never act under it, should be permitted to object that faith is given to his assertion, and that an opportunity is not left to him of changing his mind. If the plaintiff is barred of any remedy by entering into an engagement inconsistent with starting as a courier with the defendant on the 1st June, he is prejudiced by putting faith in the defendant's assertion: and it would be more consonant with principle, if the defendant were precluded from saying that he had not broken the contract when he declared that he entirely renounced it. Suppose that the defendant, at the time of his renunciation, had embarked on a voyage for Australia, so as to render it physically impossible for him to employ the plaintiff as a courier on the continent of Europe in the months of June, July and August 1852: according to decided cases, the action might have been brought before the 1st June; but the renunciation may have been founded on other facts, to be given in evidence, which would equally have rendered the defendant's performance of the contract impossible. The man who wrongfully renounces a contract into which he has deliberately entered cannot justly complain if he is immediately sued for a compensation in damages by the man whom he has injured: and it seems reasonable to allow an option to the injured party, either to sue immediately, or to wait till the time when the act was to be done, still holding it as prospectively binding for the exercise of this option, which may be advantageous to the innocent party, and cannot be prejudicial to the wrongdoer. An argument against the action before the 1st of June is urged from the difficulty of calculating the damages: but this argument is equally strong against an action before the 1st of September, when the three months would expire. In either case, the jury in assessing the damages would be justified in looking to all that had happened, or was likely to happen, to increase or mitigate the loss of the plaintiff down to the day of trial. We do not find any decision contrary to the view we are taking of this case. Leigh v. Patterson (8 Taunt. 540) only shews that, upon a sale of goods to be delivered at a certain time, if the vendor before the time gives information to the vendee that he cannot deliver them, having sold them, the vendee may calculate the damages according to the state of the market when they ought to have been delivered. If this was a sale of specific goods, the action, according to Bowdell v. Parsons (10 East, 359), might have been brought before that time, as soon as the vendor had sold and delivered them to another. Phillpotts v. Evans (5 M. & W. 475) was a similar case: and the only question there was as to the mode of calculating the damages on a breach of contract for the sale and delivery of wheat; the Court very properly holding that the plaintiff was entitled to damages according to the state of the market when the wheat was to be delivered; the Court professing to proceed upon the rule laid down in Startup v. Cortazzi (2 C. M. & R. 165), where no question arose as to the right to bring an action before the stipulated day of delivery on a renunciation of the contract. Parke B., whose dicta are entitled to very great weight, certainly does say in Phillpotts v. Evans (5 M. & W. 477), with reference to the notice by the defendants that they would not accept the corn: "I think no action would then have lain for the breach of the contract, but that the plaintiffs were bound to wait until the time arrived for delivery of the wheat, to see whether the defendant would then receive it." But the learned Judge might suppose that the notice did not amount to a renunciation of the contract; and, if he thought that, after such a renunciation, the plaintiffs were bound to proceed with the performance of the contract on their part, and to incur expense and loss in tendering the wheat before they could have any remedy on the contract, we cannot agree with him. In Ripley v. M'Clure (4 Exch. 345) it is said that, under a contract for the sale and delivery of goods, a refusal to receive them at any time before they ought to be delivered was not necessarily a breach of the contract: but the Court intimated no opinion upon the question whether, there being a contract to do an act at a future day, if one party before the day renounces the contract, the other thereupon has a remedy for a breach of the contract. And they held that a refusal by one party before the day when the act is to be done, if unretracted, would be evidence of a continual refusal down to, and inclusive of, the time when the act was to be done. The only other case cited in the argument which we think it necessary to notice is Planche v. Colburn (8 Bing. 14), which appears to be an authority for the plaintiff. There the defendants had engaged the plaintiff to write a treatise for a periodical publication. The plaintiff commenced the composition of the treatise; but, before he had completed it, and before the time when in the course of conducting the publication it would have appeared in print, the publication was abandoned. The plaintiff thereupon, without completing the treatise, brought an action for breach of contract. Objection was made that the plaintiff could not recover on the special contract for want of having completed, tendered and delivered the treatise, according to the contract. Tindal C.J. said: "The fact was, that the defendants not only suspended, but actually put an end to, 'The Juvenile Library;' they had broken their contract with the plaintiff." The declaration contained counts for work and labour: but the plaintiff appears to have retained his verdict on the count framed on the special contract, thus shewing that, in the opinion of the Court, the plaintiff might treat the renunciation of the contract by the defendants as a breach, and maintain an action for that breach, without considering that it remained in force so as to bind him to perform his part of it before bringing an action for the breach of it. If it should be held that, upon a contract to do an act on a future day, a renunciation of the contract

by one party dispenses with a condition to be performed in the meantime by the other, there seems no reason for requiring that other to wait till the day arrives before seeking his remedy by action: and the only ground on which the condition can be dispensed with seems to be, that the renunciation may be treated as a breach of the contract.

Upon the whole, we think that the declaration in this case is sufficient. It gives us great satisfaction to reflect that, the question being on the record, our opinion may be reviewed in a Court of Error. In the meantime we must give judgment for the plaintiff.

Judgment for plaintiff.

Note 1   June 10th. Before Lord Campbell C.J., Coleridge, Erle and Crompton Js.    [Back]

Note 2   In the Exchequer Chamber, 6 Com. B. 160, reversing the decision of the Common Pleas inElderton v. Emmens, 4 Com. B. 479. Judgment of Exch. Ch. affirmed in Dom. Proc.;Emmens v. Elderton, 4 H. L. Cs.    [Back]

Note 3   Smith's Leading Cases, 8, 20. See alsoGoodman v. Pocock, 15 Q. B. 576.    [Back]

Note 4   6 Cornm. B. 160, Affirmed in Dom. Proc.; Emmens v. Elderton, 4 I. L. Ca.    [Back]