Scottish Court of Session Decisions

This was an action at the instance of William Leitch, carting contractor and cab proprietor, Edinburgh, against the Edinburgh Ice and Cold Storage Company, Limited, Edinburgh, in which the pursuer concluded for payment of the sum of £40 as damages for breach of contract.

By a memorandum of conditions of let dated 13th February 1899, and entered into between the defenders as landlords and the pursuer as tenant, it was agreed that the pursuer should remove from certain ground which he then occupied and should enter upon the occupation of certain adjoining unoccupied ground equal in extent. Upon the ground which the pursuer was to vacate there were certain wooden buildings which he had occupied as stables in connection with his business. By article 4 of the memorandum of conditions of let it was agreed that the pursuer should “receive from the company the old material of the said buildings on the said ground tenanted by him” (being the ground from which he was to remove), “without paying any price therefor, so soon as the buildings are demolished by the company, provided said material is handed over within forty-eight hours of the said William Leitch being requested by the company to quit the premises and his so doing,” and that the pursuer should “erect at his own expense such buildings as he may require on the ground now agreed to be let to him in lieu of the ground” from which he was to remove.

The pursuer averred that the old material referred to in the above article meant all the wood which had been used in the construction of said buildings; that the result of the lease was that the pursuer had “to leave the ground presently occupied by him and enter upon adjoining ground of practically the same area, upon which he” would “require to build stables similar to and in lieu of those referred to in article 4 of said memorandum”; that on 14th February 1899 the defenders' agents notified the pursuer that he would require to vacate the subjects occupied by him on the 16th February in order that the demolition of the buildings might commence on that day; that while the defenders were on said last—mentioned day in the course of demolishing part of the said buildings they took fire, and the material of which they were composed was completely destroyed as building material; that the defenders were thus unable to hand over said material to the pursuer, who was thus being compelled to build his stables with other material which he had to purchase.

The defenders pleaded—“(1) The pursuer's averments are irrelevant and insufficient in law to support the conclusions of the summons. (4) The defenders, in consequence of said fire, were unable and were not bound to deliver to the pursuer the material consumed by fire, or any equivalent therefor.”

On 23rd December 1899 the Lord Ordinary ( Pearson), after having heard counsel in the procedure roll, dismissed the action as irrelevant, and decerned, finding the defender entitled to expenses.

Opinion.—…. “In my opinion the action is irrelevant. The pursuer's case is, that owing to the fire, which is not alleged to have occurred through the fault of the defenders, they became ‘unable to fulfil their obligation to hand over said material to the pursuer, who is thus being compelled to build his stables with other material.’ It was explained that this does not refer to any compulsion exercised by the defenders, but merely means that he has had to provide himself otherwise with the building material.

The question whether the pursuer's averments disclose a breach of contract depends on the precise nature of the contract entered into. The defenders were to hand over, and the pursuer was to receive free of charge, ‘the old material of the said buildings.’ This was a part, and apparently not the most important part, of the complex contract disclosed in the conditions of let, and the parties are holding to all the rest of the contract. But assuming that pursuer is entitled to isolate this portion of the contract, and to make it the ground of a separate claim, his case discloses an obligation on the defenders to deliver a specific article which perishes before delivery without fault on either side.

In such a case the contract is subject to the implied condition, that if performance becomes impossible through the perishing of the article without fault on the part of either contractor, the parties are excused from performance. The doctrine is thus expressed by Professor Bell in his Principles (s. 29)—‘If the obligation be general, not confined to a specific thing, the engagement is absolute, provided the object of it be intelligible. If the object be some specific thing, the obligation is so far conditional that it may be defeated by the extinction of the thing.’ The principle was illustrated in the cases of Taylor v. Caldwell ( 3 Best & Smith, 826); and Appleby v. Myres, L.R., 2 C.P. 651.

The present case presents this peculiarity, that the pursuer was to obtain delivery of the materials ‘without paying any price therefor.’ Accordingly, the pursuer loses his timber while the defenders lose nothing, the contract otherwise being performed, although theoretically the delivery of the timber without price must have had its counterpart in the stipulations undertaken by the pursuer. But it is impossible to state the value of the timber in terms of the contract. And whatever other remedy the pursuer might have, e.g.,

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to declare the contract off for failure of a material part of it, as to which I express no opinion, I think it clear that there is no ground for an action of damages as for breach of contract.”

The pursuer reclaimed, and argued—Impossibility of performance was, as a general rule, no answer to an action for damages for non-performance (Addison on Contracts (9th ed.) 132); and this was especially the case when the impossibility did not arise until after the date of the contract. This case fell under the general rule and not under the exceptions to it. The intention of the parties to this contract was, that the pursuer, who was removing for the convenience of the defenders, should be saved the expense of providing material for the new stables which he had to build in consequence of the removal. The defenders contracted to provide him with building material. Although part of the building material on the ground was destroyed, it could have been easily replaced, and the contract would have been completely carried out by replacing it with other material of the same kind. The exception in the case of a contract to deliver a specific thing only applied when the thing in question was something which it was not reasonably possible to replace, or when the contract between the parties could not be fulfilled by replacing it. All that Professor Bell said (Prin. 29) was, that when the object of the contract was some specific thing the obligation “ may be defeated by extinction of the thing.” That meant that it may or may not according to whether it was reasonably possible to replace the thing or not. In the case of Taylor v. Caldwell (1836), 3 B. & S. 826, the thing destroyed was a music-hall, which could not be readily replaced, or indeed replaced at all in time for the execution of the contract.

Counsel for the defenders was not called upon.