1852. June 17. A contract under seal re- mel timber." This contract was based cation, prepared by the company, in which it was THE GREAT NORTHERN THIS RAILWAY COMPANY V. HAR RISON and Others. was an action of covenant brought by Messrs. Harrison & Co., the plaintiffs below, against The Great Northern Railway Company, upon the following contract, under scal : "This indenture, made the 12th of February, 1847, between The Great Northern Railway Company of the one part, and John Crowther Metcalf Harrison, Charles Harrison, and Stephen West, of the town of Kingstona specifi- upon-Hull, and Richard Harrison and William Singleton, of Leeds, in the county of York, timber-merchants, trading at the borough of Kingston-upon-Hull aforestated, that, "the number of sleepers required under this specification is 350,000; one half will have to be delivered in 1847, and the remainder by Midsummer, 1848;" that "the deliveries are to be made either by stacking the sleepers upon a wharf, or properly loading them into a boat or barge, or other vessel, as may be directed by the resident engineer;" and that the payments were to be made upon the engineer certifying the due delivery of each cargo. By the contract, the plaintiffs covenanted to supply the company with 350,000 sleepers of the quality and description mentioned, and to deliver them within the times mentioned in the specification, "as and when, and in such quantities, and in such manner, as the engineer of the company should, by order or requisition in writing, from time to time, within the period limited by the specification, direct or require." The engineer was to be at liberty, at any time before the complete execution of the contract "by the delivery of the whole number of 350,000 sleepers," to alter their size, form, or construction, or to vary the times of delivery "of any of the said sleepers which should not then have been delivered." And the defendants, in consideration of the premises, covenanted to pay to the plaintiffs, "for or in respect of the said sleepers hereinbefore contracted to be sup plied," a certain price, upon their engineer certifying the due delivery of each cargo. And it was further agreed that 20007. of the price should be retained by the company until two months after their engineer should have certified that "the whole of the said 350,000 sleepers hereinbefore agreed to be supplied by the said contractors, shall have been supplied: " Held, by the Exchequer Chamber,-affirming the judgment of the court below, -that this was a positive contract by the plaintiffs to supply, and by the defendants to take and to pay for, the whole number of 350,000 sleepers; and that the plaintiffs were entitled to notice of the times when the sleepers would be required. The third plea traversed an averment in the declaration that the defendants had notice that the plaintiffs were ready and willing to supply the sleepers, and alleged that the defendants had no notice of any sleepers being ready for them at the port of delivery :-Held, that the allegation of readiness and willingness was unnecessary, for, that the plaintiffs were not bound to deliver until they received the orders or directions of the company's engineer; and, consequently, that,-the jury having found that issue for the defendants, -the plaintiff's wereentitled to judgment non obstante veredicto thereon. said, under the style or firm of Messrs. R. & J. Harrison, and at Leeds aforesaid under the style or firm of Messrs. Harrison & Singleton, who are hereafter called 'the contractors,' of the other part: "Whereas the said company are desirous of being supplied with 350,000 sleepers of Dantzic or Memel timber: And whereas the particular size and description of the said sleepers are set forth in the specification hereunto annexed, or hereunder written, and in certain drawings therein referred to; and in the same specification are also set forth the several times within which, and the port at which, the same sleepers will be required to be delivered: And whereas the said contractors are willing to supply the said company with the said 350,000 sleepers, upon the terms mentioned in the said specification, and in the tender of the said contractors, a copy of which is hereunder written, and to enter into the several covenants and agreements hereinafter contained: Now, this indenture witnesseth, that, in consideration of the covenants and agreements hereinafter contained on the part of the said company to be observed and performed, they the said plaintiffs do hereby, for themselves jointly, and each of them as a separate covenant doth hereby for himself severally, and for his heirs, executors, and administrators, covenant and contract with The Great Northern Railway Company, in manner following, that is to say, that they the said contractors, their executors, administrators, or assigns (such assigns to be approved of by or on behalf of the said company, as hereinafter required), some or one of them, shall and will, within the times and at the place mentioned in the said specification, as and when, and in such quantities, and in such manner, as Joseph Cubitt, Esq., or John Miller, Esq., or other the principal engineer, or one of the principal engineers for the time being of the said company, shall, by order or requisition in writing under his hand, from time to time, or any time within the period limited in 1852. THE GREAT NORTHERN RAILWAY Co. v. HARRISON. 1852. NORTHERN RAILWAY Co. v. HARRISON. and by such specification, direct or require, furnish and THE GREAT supply the said company with 350,000 sleepers of Dantzic or Memel timber; that such sleepers shall be of such description, quality, manufacture, and size, and of such form and construction, as are mentioned in the said specification, and to be equal in all respects to the specimens deposited with the said Joseph Cubitt, and now lying, &c.: That, in case the said Joseph Cubitt, or the said John Miller, or other the principal engineer, or any one of the principal engineers for the time being of the said company, shall, at any time before the complete exccution of this contract by the delivery of the whole number of 350,000 sleepers, be desirous of altering the size, form, or construction of, or of changing or varying the times of delivery of any of the said sleepers which shall not then have been delivered, he shall be at liberty so to do, and then and in such case a proportionate and fair alteration shall be made in the price to be paid for the sleepers, the size or form or construction of which shall be so required to be altered, or the times of the delivery of which shall be so changed or varied, either by increasing or diminishing, as the case may be, the price hereinafter agreed to be paid for each sleeper supplied by the said contractors; and it shall be lawful for the engineer of the said company by whom such alteration or change shall be required to be made, to settle whether any alteration in price shall be made, and, if so, to what extent; provided always, that, in considering the question of such alteration of price, care shall be taken that the contractors shall derive the same proportionate amount of profit as they would have had if no such alteration as aforesaid had been required to be made That, if any of the sleepers delivered by the said contractors in pursuance of their contract, shall, in the opinion of the said Joseph Cubitt, or the said John Miller, or other the principal engineer, or any one of the principal engineers for the time being of the same company, be unsound or of inferior quality, or shall not agree in all respects with the said specification and with the specimens hereinbefore referred to, or, as the case may be, with the order or requisition of any such engineer as aforesaid, under the provisions for that purpose hereinbefore contained, it shall be lawful for the said Joseph Cubitt or the said John Miller, or for other the principal engineer for the time being of the said company, to reject the same, and, by a notice in writing under his hand, to be delivered to the said contractors, or any or either of them, or their or his executors, administrators, or assigns, or left at or sent by post directed to the last known place or places of abode in England of the said contractors, or any or either of them, or his or their executors, administrators, or assigns, to require the said contractors, their executors, administrators, &c., at their own expense, to remove or take away the same, and to supply an equal number of others in their place or stead, of the quality, dimensions, and kind required by the said specification, or by such order or requisition as aforesaid, within such period as shall by such notice be from time to time appointed or limited That, in case the said contractors, their executors, administrators, or assigns, shall refuse or fail or neglect to deliver to the said company, at the place where, and on or before the days or times at which, the said Joseph Cubitt, or John Miller, or other the principal engineer, or any one of the principal engineers for the time being of the company, shall have required the same to be delivered as hereinbefore mentioned, the required number of sleepers, of such size, form, construction, and quality as are herein before stipulated for, or, as the case may be, of such other size, form, construction, and quality as may be required by any of the principal engineers for the time being of the said company, under the power for that purpose herein before contained, or shall refuse or fail or neglect, when required so to do by such notice as aforesaid, to remove and take away any sleepers which 1852. THE GREAT NORTHERN RAILWAY Co. v. HARRISON. 1852. THE GREAT NORTHERN RAILWAY Co. บ. HARRISON. shall have been rejected by any of the principal engineers for the time being of the company, and in their place or stead to substitute a like number of sleepers of proper form, size, construction, and quality, to the satisfaction of the said Joseph Cubitt, or the said John Miller, or other the principal engineer or one of the principal engineers for the time being, of the said company; then, and in every of such cases, it shall be lawful for the said company, or their agents, from time to time, at the costs and expense of the said contractors, their executors, administrators, or assigns, to purchase and provide such number of sleepers of like size, construction, and quality as aforesaid, as will make up the full number hereinbefore agreed to be supplied by the said contractors, their executors, administrators, or assigns, and also from time to time to supply the place of such sleepers as shall have been rejected as aforesaid, and whose place or places shall not have been supplied by the said contractors, their executors, &c., and also after one month's notice to the said contractors, to remove such rejected sleepers as shall not have been taken away by the said contractors, their executors, &c., to such place or places as the said company or their agents may from time to time think proper, without any liability on the part of the said company or their agents for any loss or damage which may thereby happen to such sleepers, either from the manner of removal or the insecurity of the place to which the same shall be removed, or from any other cause whatever: That, when and so often as the said company shall from any such cause as aforesaid, have been compelled to purchase any sleepers, it shall be lawful for any of the principal engineers for the time being of the said company to certify under his hand the amount of such purchase money, and also the amount of the costs and value of the damage which the said company may have been put to or have sustained by such refusal, failure, or delay on the part of the said contractors, their executors, &c., to fulfil this |