Adamson v. Newcastle Steamship Freight Insurance Association. 1879 both parties, and amounts to an agreement that, in certain events the charter may be cancelled. It cannot mean that if both concur they may cancel it. That they can do at any time without any previous agreement. The words read in that sense would have no effect. They must, as it seems to me, to give them any operation at all, mean that either may cancel. Express words are found in another part of the charter, but that is where an option is given to one party only. Nor do I think that writing or any other manual act is necessary in order to cancel. It is sufficient that the party elects to exercise his option, and notifies his election to the other party. A further objection is that this construction makes the memorandum useless. But its purpose will appear if we consider what the rights and obligations of the parties would have been without it. Supposing, for example, the master had reached the loading port, and had there received information that it was likely to be soon opened, he would have to stay there a reasonable time to see if that event happened. If he went away, and the prohibition were taken off a few days afterwards, the charterer might say he *had not waited long enough. The charterer might [469 be in the same dilemma if the shipowner wished to stay, and he wanted to dispose of his goods on shore. The object of the memorandum was to avoid these harassing questions, and to enable each party as soon as the event happened, which might defeat the voyage, to put an end to it and to all possible litigation upon such a question. For these reasons I am of opinion that the charter continued in force up to the time when the loading became impracticable, and consequently that the assured had an interest in the chartered freight which he lost by the "restraint of princes." Judgment for the defendants. Solicitor for plaintiffs: H. C. Coote, for H. Adamson, North Shields. Solicitors for defendants: Williamson, Hill & Co., for Ingledew & Daggett, Newcastle-upon-Tyne. 1879 De Oleaga v. West Cumberland Iron and Steel Co. [4 Queen's Bench Division, 472.] 472] *DE OLEAGA & Co. v. WEST CUMBERLAND IRON AND STEEL COMPANY. Sale of Goods-Delivery by Monthly Instalments-Clauses entitling Seller to Suspend, or excusing him from making Deliveries—Right to Rescind―Duration of Contract. By agreement between the plaintiffs and the defendants, the plaintiffs, who were merchants at Bilbao, undertook to supply the defendants at Workington, Cumberland, with about 30,000 tons of Sommorostro ore at the price of 25s. 6d. per ton, cost freight and insurance, payment to be made by cash on delivery of each shipment, "Deliveries to be made at the rate of from 800 to 1,300 tons per month, provided we (plaintiffs) are able to procure tonnage at or under the rate of 168. 6d. per ton. No responsibility to attach to us should we be prevented from delivering all or any portion of the ore, through any dangers and accidents of the mines, railway shoots, rivers, seas, and navigation of whatever nature or kind, or through any circumstances beyond our own control:" Held, first, that the plaintiffs were entitled to deliver quantities of the ore which they had previously withheld while freights were above the limit, provided such deliveries were made within a reasonable time, having regard to the contemplated 473] duration of the contract, the means which they had to make up *arrears, &c.; secondly, that they were not entitled to deliver quantities which they had previously been prevented from delivering from dangers and accidents of the mines, &c., such quantities being as much struck out of the contract as if they had been actually delivered. The facts and arguments sufficiently ap SPECIAL CASE. pear in the judgment. June 20 and 24. C. Russell, Q.C., and Warr, for the plaintiffs. Herschell, Q.C., Bompas, Q.C., and Crompton, for the defendants. Cur. adv. vult. July 3. The judgment of the Court (Cockburn, C.J., Lush, and Manisty, JJ.,) was delivered by LUSH, J.: This is an action on a contract contained in an offer of the 12th of February, and an acceptance of the 15th of February, 1872, by which the plaintiffs, who are merchants at Bilbao, and also at Liverpool, undertook to supply the defendants at Workington, Cumberland, with about 30,000 tons of Sommorostro ore, at the price of 25s. 6d. per ton of 20 cwt., cost, freight, and insurance. Payment to be made by cash on delivery of each ship ment. The portions of the contract material to the case are the following: "Deliveries to be made at the rate of from 800 to 1,300 De Oleaga v. West Cumberland Iron and Steel Co. 1879 tons per month, provided we are able to procure tonnsge at or under the rate of 16s. 6d. per ton. "No responsibility to attach to us should we be prevented from delivering all or any portion of the ore through any dangers and accidents of the mines, railway shoots, rivers, seas, and navigation of whatever nature or kind, or through any circumstances beyond our own control." The mines from which the ore is obtained are near Bilbao, which was the port of shipment contemplated by the parties. If the 30,000 tons had been delivered regularly at the minimum rate of 800 tons a month, the contract would have been completed in December, 1874; if at the rate of 1,050 tons a month (the *mean between 800 and 1,300), the [474 contract would have run out in July, 1874. For the first ten months after the contract, the plaintiffs had the opportunity of procuring freight under 16s. 6d. per ton for the minimum quantity, but they failed to do so. In the summer of 1872, freights rose above the limit. In October, 1872, and again in April, 1873, a cargo of other ore was delivered and accepted in substitution of Sommorostro ore. With these exceptions, nothing had been done in performance of the contract up to April, 1873. At that time, in consequence of the continued high freights, an agreement was come to at the instance of the plaintiffs by which the contract price was raised to 28s. ex sailing vessels, and 29s. 6d. ex steamers, provided freight could be obtained at certain other specified rates. In May, 1873, 390 tons were delivered under the modified contract; in June, 3033 tons, and 501 tons 15 cwt. of other ore, which was accepted as delivered under the contract; and in July, 1873, 269 tons 14 cwt. more, making altogether 1,946 tons. Between May and July, 1873, inclusive, there was nothing in the rate of freight to excuse the regular delivery. From July, 1873, down to February, 1876, the plaintiffs were prevented by warlike operations around Bilbao and the mines from making delivery of any part of the ore. On the 29th of February, 1876, by which time these troubles had ceased, the plaintiffs gave notice that the mineral trade at Bilbao had re-opened and they should proceed to deliver the ore according to the contract. The defendants refused to accept, on the ground that the contract no longer existed. Upon these facts the following questions are submitted to us: 1. Are the monthly quantities, the delivery of which, at 1879 De Oleaga v. West Cumberland Iron and Steel Co. the time they would in ordinary course have been due, was prevented or excused by the provisions of the contract, to be treated as quantities expunged from the contract, or as quantities the delivery of which was postponed? 2. Was the contract in force in February, 1876, or had it run out in July, 1874, or December, 1874? There is we think a material distinction between the delivery clause and the clause by which the seller exempts 475] himself from *responsibility. The object of the one is simply to regulate the mode of performance, which is to be by monthly instalments, subject, however to interruptions contingent on the rate of freight. So long as freight ranged above the limit the seller was entitled to withhold delivery, but the contract for the quantity undelivered remained in force. The delivery was merely suspended until freights came down. If no other stipulations had been found in the contract the seller would in that event have been both entitled and bound to resume the monthly deliveries, and if he failed to do so the buyer would have been entitled to buy in against him and sue for the difference between the contract price and the then market price. And it would have been no answer to such an action to say that he was prevented from making delivery by accident to the mines, or railway shoots, river, or navigation, or any other circumstances beyond his control. It is clear that in such a case the seller could not afterwards claim to deliver, nor the buyer claim to have, the quantities in respect of which the one had made default, and the other had had, or was entitled to have a substitute in damages. Those portions could be as much struck out of the contract as if they had been actually delivered. The object of the clause secondly before quoted is to protect the seller from such liability, and nothing more, leaving the rights of the parties in other respects as they would have been if no such clause existed. The non-delivery, under such circumstances, is not a suspension of performance; it is a breach, but one for which the buyer agrees he will not hold the seller responsible. The result is that the seller was entitled to deliver the quantities which he withheld while freights were above the limit, but not those which he was prevented from delivering by vis major. But then arises the question, within what time must he. deliver the quantities so withheld? Some limit must necessarily be put, and the only limit which occurs to us is a reasonable time, having regard to the contemplated duration of the contract, &c. It cannot be contended that such a contract remains open as long as the seller finds it to his interest to remain passive, with power to enforce it at any distance of time. The reasonable limit is to be determined as a question of fact, in view of the contemplated *duration of the contract, the means which the seller [476 had to make up the arrears, and possibly other circumstances. If that period expired during the time the shipments were prevented by the civil war, the arrears must be treated like the accruing monthly deliveries, as struck out of the contract. We cannot say, as a matter of law, that the contract was out in July, 1874, or in December, 1874. All that we can answer is, that it ran out at the expiration of what would have been a reasonable time if the seller had not been prevented from shipping by vis major. The case of King v. Parker (') we cannot regard as a satisfactory decision upon this point. The main point raised and argued was whether the strike itself put an end to the contract. The court held that it did not; and from that opinion, looking to the terms of the contract, we see no reason to dissent. The question whether it was too late, having regard to all the circumstances, for the seller to insist on delivery, was certainly raised, but does not appear to have been pressed, and the Lord Chief Baron gives no opinion upon the point. A third question is submitted to us, to which we answer that in our opinion the plaintiffs were not bound, under the circumstances stated, to ship at any other port than Bilbao. Solicitors for plaintiffs: Field, Roscoe & Co. Solicitors for defendants: Bischoff, Bompas, Bischoff & Co., for E. & E. L. Waugh, Cockermouth. (1) 34 L. T., 887. [4 Queen's Bench Division, 480.] March 5, 1879. [IN THE COURT OF APPEAL.] *ADAMS V. HAGGER. [480 Building Contract-Landlord and Tenant-Agreement to grant Lease-Collateral Contract-Contract to pay Rent for Land intended to be demised until Execution of Lease -8 & 9 Vict. c. 106, s. 3. By articles of agreement not under seal the plaintiff agreed to grant to the defendant a lease at a certain rent for ninety-nine years of a piece of land so soon as the latter should have erected upon it a niessuage, and the defendant undertook until the |