should be dissatisfied with the decision of the | a dispute arising as to which horse was entitled to directors he should take certain specified steps to obtain a revision thereof, in the first instance by a board of directors or ultimately by a special general meeting, the decision of which last was to be final-Held, that an action could be maintained on a policy for a total loss though no final decision by a special general meeting had been obtained in accordance with these rules. Edwards v. Aberayron Mutual Ship Insurance Society, 1 Q. B. D. 563; 34 L. T. 457. Reversing 44 L. J., Q. B. 67; 23 W. R. 304.

the stakes of a race, gave his opinion, in writing, that the plaintiff was entitled to them :-Held, that he could not recover the stakes on the award of that steward alone, although it appeared that the other steward had stated that he would acquiesce in whatever his colleague did. To make the sole award of the latter available, it must be clearly shown that both the disputing parties, and the stakeholder also, submitted to his sole authority. Marryatt v. Broderick, 2 M. & W. 369; M. & H. 96; 6 L. J., Ex. 113; 1 Jur. 242. The rules of a marine insurance association A declaration for the price of goods bought, provided that disputes should be referred to subject to the valuation of A. and B., stated that arbitration - Held, that the assurer was not A. refused to value, but did not state that the bound to submit a legal point to the decision defendant prevented him from valuing. It then of arbitration before suing in equity. Alex- averred that a valuation was made by B. alone: ander v. Campbell, 41 L. J., Ch. 478; 27 L. T.-Held, that the defendant was not liable for the

25.

Lessor and Lessee-Compensation for Excessive Amount of Game.]-A lessee covenanted with the lessor that he would keep such a number only of hares and rabbits as would do no injury to the crops, and that in case he kept such a number as should injure the crops he would pay a fair and reasonable compensation, the amount of such compensation, in case of difference, to be referred to two arbitrators, or an umpire. The lessor having brought an action for breach of covenant, alleging that the lessee had not kept such a number only of hares and rabbits as would do no injury, but had kept such a number as did injury, and had neglected to pay any compensation :-Held, that upon the true construction of the lease the covenant to refer the amount of compensation was a collateral and distinct covenant, and that the action was maintainable, although there had been no arbitration. Dawson v. Fitzgerald (Lord Otho), 45 L. J., Ex. 893; 1 Ex. D. 257; 35 L. T. 220; 24 W. R. 773C. A.

Delay by Appraiser-Estoppel.]—A. agreed to sell to B. his interest in a public-house, and his furniture at an appraisement, to be made by two appraisers, the same to be paid for on B.'s taking possession, which was to be on or before the 25th of March next; and the sum of 301. was paid by B. as a deposit; and he agreed that if he should not complete his part of the agreement, the sum so paid should be forfeited. The buyer and seller appointed appraisers. On the 25th of March the two appraisers met, and the seller's appraiser was informed that the appraiser of the buyer could not conveniently on that day complete the valuation, but would finish the business the next day; no objection was made to the proposed delay. The appraiser of the buyer went to the seller's premises the following day to make the valuation, but the seller refused to allow him so to do, and said he would not complete the contract :Held, that it was incumbent on the seller, if he intended to insist that the contract should be completed on the day mentioned in the agreement, to have notified such intention to the buyer, and not having so done, that the latter was entitled to recover back the deposit. Carpenter v. Blandford, 8 B. & C. 575; 3 Man. & Ry. 93; 7 L. J. (0.s.) K. B. 58.

Award of One of Two Arbitrators.]-Where the rules of certain races provided that all disputes should be settled by the stewards, and two stewards had been named, one of whom, on

price of the goods at the valuation of B. alone. Thurnell v. Balbirnie, 2 M. & W. 786; M. & H. 235; 6 L. J., Ex. 255; 1 Jur. 847.

Award by Arbitrator's Deputy.]-In an action on an agreement for the sale of goods at a valuation to be made by A., the issue was, whether a valuation was made by A. The goods were in fact valued by B., A.'s clerk :-Held, that the defendant was not bound by it, unless it was shown that it was agreed between the parties that B.'s valuation should be taken as A.'s; and that the fact of the defendant's seeing B. valuing, and making no objection until B. told him the amount, was not evidence of such agreement. Ess v. Truscott, 2 M. & W. 385; M. & H. 75; 6 L. J., Ex. 144; 1 Jur. 358.

Duty as to Valuer.]-An agreement to settle disputes between two parties as to the amount to be paid by one of them in respect of the value of the goods belonging to or work done by the other of them, by a reference to two valuers, one to be appointed by each party, does not import any undertaking by the former that the valuer whom he may appoint shall act in the valuation, nor any liability for his not acting. Cooper v. Shuttleworth, 25 L. J., Ex. 114.

The party is only bound to appoint a valuer on his part, and if the person appointed does not act, the other party is remitted to his original cause of action, and may revoke his submission, or he may possibly, if the valuer has undertaken to act and failed in his duty, have a right of action against him, but has no right of action against the party who appointed him. Ib.

Evidence as to Fact of Valuation.]-It was agreed between A. and B., that B. should buy of A. certain plant, materials, and tools, at a valuation to be made by A. and a person to be appointed by B., and that B. should pay for the same by a bill for 150l. at two months from the valuation, and by another bill for the balance of the valuation at three months after date. Under this agreement B. was let into possession, and A. and one C. (who represented B.), met and proceeded to value, having a list of the articles to be valued, as to all of which, except certain timber, the prices were finally agreed upon; but, as to the timber, the price per foot and the superficial measurement only were agceed upon, the calculating the cubical contents and the carrying out the amount being left to be filled in by B.'s foreman. A. and C. never met again, and did not agree upon the sum total, but B. (after action brought for it) paid the 1507. :-Held, sufficient

evidence to warrant the jury in finding that a valuation had been made by A. and C. Gordon v. Whitehouse, 18 C. B. 747; 25 L. J., C. P. 300. Failure of Arbitration.]-The defendant, as incoming tenant, agreed in writing with the plaintiff, as outgoing tenant, to purchase straw upon the farm at a valuation to be made by two persons, or their umpire. Valuers were appointed by the parties, who did not agree upon the valuation or appoint an umpire, and in the meanwhile the defendant consumed the straw:-Held, that the plaintiff was entitled to recover for the straw as upon a quantum meruit, the arbitration agreed to by the parties having become impracticable. Clarke v. Westrope, 18 C. B. 765; 25 L. J., C. P. 287.

named by the plaintiff and the defendant. It appeared that L. was agreed upon by the plaintiff and the defendant to value the drugs, stock in trade, utensils, and shop-fixtures, and that, after the valuation was complete, except as to the drugs, the sum of 701. was agreed on by the parties as the value of the drugs, and 507. as the value of a horse and gig belonging to the plaintiff, which sum, with the rest of the valuation, amounted to 1907. -Held, that the jury was rightly directed, that if the horse and gig were part of the stock in trade, or were treated as such by the parties, the plaintiff was entitled to a verdict. Rawlinson v. Clarke, 15 L. J., Ex. 171-Ex. Ch.

What included in Agricultural Valuation.]— B. sold a farm to R., and by agreement between Appointment and Notice thereof.]-Agreement them, E. was to estimate and certify the sum to for the sale of crops, the price to be paid on the be paid to B. for the labour of ploughing and 5th June, the valuation to be made by two sowing parts of the farm. E. certified that a persons, one named by each party, and, if they sum was to be allowed for three ploughings of disagreed, by a third person, to be named by the same land, and a further sum for working them before entering upon the valuation; the and burning stroyle :-Held, that all expenses valuation to be made by the 3rd June, and each incidental to the preparation of the land for party to appoint a referee by the 31st May; and sowing were included in the terms of the agreein case either party neglected or refused to nomi- ment. Branscombe v. Rowcliffe, 6 C. B. 528; nate a referee within the time appointed, the | 18 L. J., C. P. 38. referee of the other party alone to make a final decision:-Held, that the nomination of a referee included notice of it to the other party; and therefore, that a nomination on the 31st May, and notice of it to the other party on the 1st June, did not satisfy the agreement. Tew v. Harris, 11 Q. B. 7; 17 L. J., Q. B. 1; 11 Jur. 947.

Neglect to Appoint.]-Declaration on a written agreement, by the plaintiff, to let land to the defendant, with the right of sporting, the defendant to make satisfaction to the plaintiff's tenants for damage done by game on their farms; the amount to be ascertained by a valuer, to be chosen by each party, and an umpire; that the defendant entered, and preserved the game, which did damage to the tenants; that he was requested by the plaintiff to appoint a valuer. Breach, that, although, within a reasonable time, a valuer was appointed by the plaintiff, and notice given to the defendant, and the plaintiff requested him to give the name of a referee on his part, and fix a time for meeting, to ascertain the damage, in default of which the plaintiff's valuer would alone ascertain the damage done; yet the defendant did not give notice to the plaintiff of any valuer chosen by him, nor has he ever made satisfaction: -Held, that after verdict it must be taken that the declaration alleged a refusal by the defendant to appoint a valuer. Thomas v. Fredericks, 10

Q. B. 775; 16 L. J., Q. B. 393; 11 Jur. 942.

Accord without Valuation.]--A., being possessed of plant and other materials for the construction of a canal and other engineering works in Holland, agreed by parol to sell the same to B., and two persons were sent to the spot to value them. An inventory was accordingly made, and on the 31st of March, A. and B. signed the following memorandum at the foot thereof;

Agreed between B. and myself, 4,5097. 128." On the 8th of May, a written contract for the sale of the plant and materials was executed by A. and B., by which it was agreed that A. should sell and B. should purchase all such parts of the plant, materials, and things then on or about and that the price to be paid for the same should the works of the canal which belonged to A.. be the fair amount of the value thereof, such differ as to the same, by arbitration, " in manner amount to be settled, in case the parties should therein provided." And that B. should pay to A. the amount of such price or value within two calendar months after such price or value should have been fixed and determined. B. was let into possession immediately after the 31st of March, and remained in possession. No arbitration was ever demanded, and no dissatisfaction expressed by B. at the price fixed by the valuers:

-Held, that the event upon which the arbitration clause of the contract of the 8th of May was to take effect, viz. the parties to differ as to the value, never having arisen, A. was entitled, at the expiration of two months from that date, to recover the value agreed on by the memorandum of the 31st March, on a count for goods sold and delivered. Cannan v. Fowler, 14 C. B. 181; 2 C. L. R. 43; 23 L. J., C. P. 48 ; 2 W. R.

101.

See further, ARBITRATION AND AWARD.

Partial Valuation.] A declaration stated, that the defendant covenanted to pay the plaintiff 4007. in moieties on the 11th November and 11th May and that the drugs, stock in trade, utensils, and shop fixtures in certain premises, should be valued by a person to be named by the plaintiff and the defendant, and a moiety paid immediately upon such valuation, and the residue at the expiration of a year. That the drugs. &c., were valued by L., named by the plaintiff and the defendant, at 1907. Breach, that the. defendant refused to pay the second moiety of Possession.]-Where a building is to be erected, the 4007. on the 11th May, and the residue of the 1907. at the expiration of the year. Flea, that the drugs, &c., were not valued by a person

d. Waiver.

Contract to Erect Buildings - Owner taking

or repairs done upon, or alterations made to, a building on a man's own land, under a special contract containing a condition precedent, which

is unperformed by the contractor, the mere fact | and absolute, and not subject to any condition, of the owner taking possession does not raise any either express or implied. Taylor v. Caldwell, inference of waiver of the condition precedent or 3 B. & S. 826; 32 L. J., Q. B. 164; 8 L. T. 356; of the entering into a new contract, and there- 11 W. R. 726. fore an action will not lie either upon the special contract, or upon an implied contract to pay for the work done according to its value. Munro v. Butt, 8 El. & Bl. 738; 4 Jur. (N.S.) 1231. And see Mackay v. Dick, 6 App. Cas. 251-H. L. (Sc.), post, col. 147.

Where, from the nature of the contract, it appears that the parties must from the beginning have known that it could not have been fulfilled unless, when the time for the fulfilment of the contract arrived, some particular specified thing continued to exist, so that, when entering into the contract, they must have contemplated such continuing existence as the foundation of what was to be done; there, in the absence of any express or implied warranty that the thing shall positive contract, but as subject to an implied condition that the parties shall be excused in case, before breach, performance becomes impossible from the perishing of the thing, without default of the contractor. A. agreed with B. to give him the use of a music hall on certain speciContract of Exchange-Repudiation of Agree-fied days, for the purpose of holding concerts, ment to Finance.]—Where a company contracted with a bank that the bank should, within certain limits of time, pay to the company sterling money or an equivalent in exchange for the company's silver at a specified rate, and that the company should finance goods with the bank :Held, that compliance with their agreement to finance was a condition precedent of the company's right to demand fulfilment of the exchange contracts, but that as both parties were under an obligation to settle reasonable terms of financing, and as the conduct of the bank amounted to a complete repudiation of the contracts, the company were absolved from making further offers to settle terms of finance in order to preserve their claim for damages for breach of the contracts of exchange. Bank of China, Japan, and the Straits v. American Trading Co., 63 L. J., P. C. 92; [1894] A. C. 266; 6 R. 494; 70 L. T. 849-P. C.

Contract to Purchase Mail-coach BusinessConsent of Postmaster.]-A party agreed in writing to purchase the mail-coach concern between Derby and Leicester, provided the post-exist, the contract is not to be construed as a master consented. The party afterwards took possession of it with the risk of obtaining that consent :-Held, that the proviso had been waived. Mansfield v. Cheslyn, 2 L. J. (0.s.) K. B. 85.

:

Conditional Acceptance by Government Board -Waiver by Committee.]-The captain of an Indiaman, on arriving at Madras, reported his arrival to the government board there, and was directed by them to place himself under the orders of the commercial committee at that place. After which he made an offer to the government board, through the commercial committee, to purchase some cotton belonging to the India Company at a certain price. The government board accepted the offer conditionally, and wrote a letter to that effect to the commercial committee. The plaintiff, on being shown the letter, objected to the condition, in consequence of which the commercial committee took upon themselves to dispense with it :-Held, that the India Company could not enforce the condition against the plaintiff. Smith v. East India Co., 16 Sim. 76; 17 L. J., Ch. 178; 12 Jur. 367.

4. IMPOSSIBLE CONTRACTS.

a. Generally.

Necessity of Performance.]-Where there is a positive contract to do a thing, not in itself unlawful, the contractor must perform it or pay damages for not doing it, although in consequence of unforeseen accidents, the performance of his contract has become unexpectedly burthensome or even impossible; but this rule is only applicable when the contract is positive

with no express stipulation for the event of the destruction of the music hall by fire :-Held, that both parties were excused from performance of the contract. Ib.

Where the law casts a duty on a man which, without fault on his part, he is unable to perform, the law will excuse him for non-performance. Clark v. Glasgow Assurance Co., 1 Macq. H. L. 668.

But where a man by his own contract binds himself to do a thing, he is bound to do it, if he can, notwithstanding any accident, because he ought to have guarded by his contract against it. Ib.

On the question of executing an agreement, hardship cannot be regarded, unless it amounts to a degree of inconvenience and absurdity so great as to afford judicial proof that such could not be the meaning of the parties. Prebble v. Boghurst, 1 Swanst. 329.

Corn becoming Heated.]-A contract for the sale of a cargo of corn, by a factor, on a del credere commission, described the corn as of average quality when shipped, and was made for a certain price "free on board and including freight and insurance to a safe port in the United Kingdom." &c. In fact the corn had, a short time before the date of the contract, been sold at Tunis in consequence of getting so heated in the early part of the voyage as to render its being brought to England impossible. The contract in England was entered into in ignorance of this fact. When the English purchaser discovered it, he repudiated the contract, and it was held that the contract contemplated that there was an existing something to be sold and bought, and capable of transfer, which was not the case at the time of the sale, and that the factor was not liable. Couturier v. Hastie, 5 H. L. Cas. 673; 25 L. J., Ex. 253; 2 Jur. (N.S.) 1241.

excused from the further performance of the contract; but that the plaintiffs were not entitled to sue in respect of those portions of the work which had been completed, whether the materials used had become the property of the defendant or not. Appleby v. Meyers, 36 L. J., C. P. 331; L. R. 2 C. P. 651; 16 L. T. 669Ex. Ch. Reversing, 14 W. R. 835.

Performance Prevented by Strikes.]-The plaintifs on the 13th September, 1873, contracted in writing with the defendant to sell 4,000 parcels of Kibbles coal at 158. 6d. per parcel of 2,240 lbs., loaded into the defendant's trucks at the average rate of two trucks per day, a truck consisting of eight tons; in the event of a colliers' strike or accident the vendors not binding themselves to keep up the daily supply. Coal was delivered under this contract up to the 28th March, 1874, but on that day, in consequence of the plaintiffs' men refusing to accept a lower rate of wages proposed by the plaintiffs, in pursuance of a combination entered into by the plaintiffs with other masters in the district, the pits were closed by the plaintiffs, and remained closed until the 28th July, other pits in the neighbourhood being also closed by their owners for a like reason. During that time no coal was in consequence delivered; but at the end of the strike the plaintiffs called upon the defendant to take the amount of coal which still remained undelivered under the contract. In an action for not accepting this coal :-Held, that the strike was equally a strike within the meaning of the contract, though brought about by the plaintiffs lowering the wages of their men; that the effect of the strike was merely to postpone the daily deliveries, and that the defendant was bound to accept the coal remaining undelivered. King v. Parker, 34 L. T. 887.

Held, also, that under the circumstances the delay was not of such a nature as to entitle the defendant to consider the contract at an end in a commercial sense, and so repudiate the performance of it. Ib.

Inability to Supply Goods.]-A. contracted to sell B. 100 hogsheads of Gingelly oil, "expected to arrive by the ship Resolute,' from Madras." The ship arrived with 100 hogsheads of the oil on board, but it turned out that thirtyfour hogsheads only were consigned to or under the power or control of A. Semble, that this did not excuse A. for the non-performance of his contract, and that it would not be performed by a delivery or tender of the thirty-four casks over which he had control. Fischel v. Scott, 15

C. B. 69.

In an action for breach of the charterparty :Held, that there was no excuse for non-performance, nor a dissolution of the contract by any of the excepted clauses. Shilizzi v. Derry, 4 El. & Bl. 873; 24 L. J., Q. B. 193; 1 Jur. (N.s.) 795 ; 3 W. R. 374.

If performance of a contract becomes, from unforeseen circumstances, perilous to the party entitled to demand performance, the party upon whom lies the burden of performance may be justified in pausing for a reasonable time, in order to consider the danger, and, if possible, communicate with the other party. Pole v. Cetovich, 2 F. & F. 104; 9 C. B. (N.s.) 430; 30 L. J., C. P. 102; 3 L. T. 438; 9 W. R. 279.

State Interference-Hiring.]-A declaration alleged that, by agreement between the plaintiff and the defendant, in consideration of 7,8007.,. the plaintiff sold and transferred all title and interest in and to the services and labour of 153: apprenticed labourers, formerly slaves, belonging to him, for the term of their apprenticeship, to the defendant, with a warranty of the quiet possession of their services according to law; and the defendant promised to pay the plaintiff the money in six instalments of 1,3007., at annual periods, and in case of failure in the payment of any instalment, the plaintiff should' be entitled to reclaim the services of such labourers during the remaining term of apprenticeship, and the services should revert to the plaintiff, the defendant remaining liable for such sums as should be then due for the valueor hire of the labour, during such period as the defendant should have received the services, at the rate of 1,3007. per annum. Plea, that the agreement was made at Berbice, in British Guiana, between British subjects, and was madefor the purpose of transferring, and purported to transfer, the services of the 153 labourers, during their term of apprenticeship, according to the statute. That the defendant had the services till the 1st of August, 1838; that in July, 1838, the governor and council of Berbice, according to the statute and the usages of the colony, made an ordinance that all persons who, on the 1st of August, 1838, were apprenticed labourers should from that day be discharged from such apprenticeship, and that, before the breach of the agreement, the labourers were discharged, and the parties to the agreement were prohibited by authority from performing the same :-) -Held, that the agreement was not a contract of hiring and letting, but an absolute contract for a sale and transfer of the plaintiff's right to the services for a gross sum of money, due in præsenti, though payable by instalments; and that the plaintiff was entitled to the last two instalments, though the legislature had determined the apprenticeship before they became due. Mitelholzer v. Fullarton, 6 Q. B. 989; 9 Jur. 334.

Natural Obstructions.]-Under the terms of a charterparty, the defendant's ship was to proceed to Galatz, or as near thereto as she might safely get, and there load a cargo from the factors of the freighters; the danger and acci- A. signed ship's articles for a voyage from dents of the seas, rivers, and navigation during Liverpool to ports in America. The ship sailed the voyage always excepted. On the 5th Novem- on the 5th November, 1853. During the voyage ber, the ship arrived off the entrance of the the captain shot one of the crew, and the ship Danube. From that time until the 7th January was taken into Monte Video, and on the 5th of following the water was so low on the bar at May, 1854, the British consul there, in pursuance the mouth of the river that she could not cross. of the 7 & 8 Vict. c. 112, ss. 59, 60, sent the On the 11th December she sailed for Odessa, and captain to England for trial, with the witnesses, took in a cargo and sailed for England. On and A. being one. In an action for his wages :after the 7th of January there was sufficient Held, that he having been separated from the water on the bar to have enabled the ship to ship at a foreign port by authority of the British enter the river, and to take in a cargo at Galatz. | legislature, and sent to England without any