Page images
PDF
EPUB

Bills and

Notes may be dis

Bills of exchange, which are necessarily made in writing, by the law merchant may be discharged by the holder, becharged by fore or after the instrument becomes payable, by express parol waiver.

Discharge

of con

tract

renunciation or waiver, without writing and without any consideration (a); and by the effect of the statute 3 & 4 Anne, c. 9, promissory notes are placed on the same footing as bills of exchange in this as well as other respects (b).

A contract under seal cannot be altered or discharged by an agreement not under seal; a deed under seal is necessary under seal for that purpose, according to the maxim, unumquodque dissolvi eo ligamine quo ligatum est (c).

by agree

ment.

at

In an action for a breach of covenant in a lease whereby the defendant covenanted that he would erect a thrashing mill during the term, the defendant pleaded that during the term and before commencing to build the mill the plaintiff desired him not to build it until he should be requested to do so by the plaintiff, and he also pleaded that he committed the breach of covenant by the leave and license of the plaintiff; both pleas were held bad on the ground that a covenant under seal could not be discharged by parol (d). So, in an action upon a covenant in a lease to yield up the expiration of the term all erections and improvements upon the premises erected or made during the term, charging as a breach the removal of a greenhouse erected during the term, the defendant pleaded an agreement by which the lessor promised him that, if he should erect the greenhouse during the term, he should be at liberty to remove it at the expiration of the term; the plea was held bad for the same reason (e). The defendant by deed assigned his business of a surgeon to the plaintiff, and covenanted with the plaintiff not to carry on or exercise the profession of a

(a) Dingwall v. Dunster, Doug. 247; Chitty on Bills, 10th ed. 207; Byles on Bills, 8th ed. 182; Foster v. Dawber, 6 Ex. 839, 851; per Willes, J., Cook v. Lister, 13 C. B. N. S. 543, 593; 32 L. J. C. P. 121, 126.

(b) Foster v. Dawber, 6 Ex. 839, 853.

(c) Blake's case, 6 Rep. 43 b;

Snow v. Franklyn, 1 Lutw. 358;
Kaye v. Waghorn, 1 Taunt. 428;
Littler v. Holland, 3 T. R. 590; West
v. Blakeway, 2 M. & G. 729, 751; see
Smith v. Trowsdale, 3 E. & B. 83.

(d) Cordwent v. Hunt, 8 Taunt.

596.

(e) West v. Blakeway, 2 M. & G. 729.

surgeon within certain specified limits; on several occasions he visited sick persons within the limits at the request of the plaintiff, and it was contended that these visits were a breach of the covenant, which could not be discharged by a parol license or request; but it was held that they did not constitute a breach of the covenant, because they were not an exercise of the profession by him, but by the plaintiff through his means (a).

Upon the same ground, in an action on a covenant by the defendant to pay the plaintiff a sum of money six months after notice in writing given to the defendant, a plea that, before breach, the defendant satisfied the plaintiff's claim by delivering to him goods was held a bad plea (b). So, a plea to an action on a covenant under seal that, before breach, the defendant delivered to the plaintiff, and the plaintiff accepted, a bond or deed in satisfaction and discharge of the covenant is a bad plea, as amounting to a discharge of the covenant by parol agreement (c).

tions prece

covenant.

So, a condition precedent to a covenant in a deed cannot Discharge be altered or discharged by a parol agreement; though it of condi may be excused on the ground of the performance being re- dent to a fused, or prevented, or rendered impossible by the covenantee (d). The defendant covenanted to pay a sum of money for the building of certain houses by the plaintiff by a certain day, which the plaintiff failed to do within the time; it was held that the plaintiff could not recover on the covenant of the defendant, although it had been verbally agreed between them that the time for building the houses should be enlarged, and the houses had been built within the enlarged time (e). By a charterparty made under seal the shipowner covenanted to carry a cargo to London and there deliver it, and the freighter covenanted to pay freight upon delivery of the cargo in London; before sailing;

(a) Rawlinson v. Clarke, 14 M. & W. 187.

(b) Healey v. Spence, 8 Ex. 668; 22 L. J. Ex. 249.

(c) Kay v. Waghorn, 1 Taunt. 428; Mayor of Berwick v. Oswald,

1 E. & B. 295.

(d) Heard v. Wadham, 1 East, 619; West v. Blakeway, 2 M. & G. 729,

751.

(e) Littler v. Holland, 3 T. R. 590; see Terry v. Duntze, 2 H. Bl. 389.

Effect of parol

by verbal directions, Liverpool was substituted for London as the port of delivery, and the shipowner performed the voyage and delivered the cargo at Liverpool; it was held that he was not entitled to sue on the covenant to pay freight on delivery in London (a). By indentures of apprenticeship the defendant placed his son as an apprentice to the plaintiff as an auctioneer and cornfactor, to learn his trade and serve him as an apprentice, and the defendant covenanted that his son should not absent himself from the service; the plaintiff, with the consent of the defendant, ceased to carry on the trade of a cornfactor; it was held that the carrying on and teaching all the trades was a condition precedent to the covenant of the defendant, and could not be affected by a parol consent, and that the plaintiff could not recover on the covenant for the desertion of the apprentice (b). By an agreement under seal the plaintiff agreed to build a ship for the defendants according to specification for a fixed price, and it was stipulated that any alterations to be required by the defendants during the building should not be made by the plaintiff's unless on the authority in writing of the defendants directing the alterations, and specifying the amount to be allowed for the same; the plaintiffs having made such alterations at the request of the defendants, but without written orders, it was held that the plaintiff's could not recover the costs of the alterations under the contract, because there could be no dispensation of the stipulation requiring written authority by mere verbal agreement (c).

A parol agreement varying the terms of a deed, though agreement it has no legal effect upon the deed, may create a valid varying the simple contract, for a breach of which an action may be brought (d). An agreement was made between the plaintiff and the defendant that the plaintiff should not enforce

terms of a

deed.

(a) Thompson v. Brown, 7 Taunt. 656.

(b) Ellen v. Topp, 6 Ex. 424.

(c) Thames Ironworks Co. v. Royal Mail Steampacket Co., 13 C. B. N. S. 358; 31 L. J. C. P. 169; and see

Russell v. Viscount Sa Da Bandiera, 13 C. B. N. S. 149; 32 L. J. C. P. 68; See ante, p. 337, n. (c).

(d) Nash v. Armstrong, 10 C. B. N. S. 259; 30 L. J. C. P. 286; Gwynne v. Davy, 1 M. & G, 857.

the covenants in a deed, previously executed between the parties, in consideration of which the defendant promised to pay a sum of money; it was held that the promise was made upon a good consideration and was binding (a). A parol agreement altering or discharging a contract under seal might, under certain circumstances, afford equitable grounds for an injunction against an action upon the contract so altered or discharged, and, if it afforded grounds for an absolute and perpetual injunction, might be pleaded as a defence upon equitable grounds to an action at law; thus, in the case of a promise being made in consideration of the promisee not enforcing a covenant in a deed against the promiser, a complete performance of the promise would seem to afford a good defence upon equitable grounds to an action on the covenant (b).

reserving an

in certain

An agreement may in its terms provide for its becoming Contracts void in a certain event, or it may reserve to one or other of option to the parties an option to rescind it in a certain event, in rescind which cases the contract may become void, or be rescinded, events: according to its terms, without any further agreement between the parties. Thus, in a contract for the sale of a chattel with a warranty, if it be stipulated that upon a breach of the warranty the purchaser may rescind the contract, he may then, upon such breach, return the chattel and recover the price, which he could not do in the absence of such express stipulation (c).

Contracts for the tenancy of land are commonly made determinable by a notice to quit to be given by one, or either, of the parties; thus, a tenancy from year to year, in the absence of any agreement to the contrary, is determinable by either party giving to the other notice to quit half a year before the expiration of the current year of the tenancy (d). Contracts of service are commonly made determinable by

(a) Nash v. Armstrong, supra. (b) Per Willes, J., Nash v. Armstrong, 10 C. B. N. S. 259.

(c) Gompertz v. Denton, 1 C. & M. 207; Street v. Blay, 2 B. & Ad. 456; Dawson v. Collis, 10 C. B. 523; see ante, p. 198.

(d) Right v. Darby, 1 T. R. 159; Johnstone v. Hudlestone, 4 B. & C. 922; Roe d. Durant v. Doe, 6 Bing. 574; Doe d. Williams v. Smith, 5 A. & E. 350; and see Doe d. Robinson v. Dobell, 1 Q. B. 806; Bridges v. Potts, 33 L. J. C. P. 338.

Contracts notice to be given by either party to put an end to the enreserving gagement. In the hiring of menial or domestic servants rescind in the contract is by custom determinable by a month's notice

option to

certain

events.

on the part of the servant, and by a month's notice or payment of a month's wages on the part of the master (a). In the absence of express stipulation to the contrary, this custom applies to the engagement of a head-gardener (b); of a person hired to assist in garden and stables (c); of a huntsman (d); not to the engagement of a governess (e).' So, in engagements of service in particular trades and businesses, the custom in the trade or business to determine the contract by notice is incorporated into the contract, unless the express terms of the contract exclude the custom (f).

Agreements for the sale of land are often made determinable in the case of difficulties arising as to their completion. A proviso in a contract of sale of land, that if the vendor cannot deduce a good title, or the purchaser shall not pay the money on a certain day, the contract shall be void, in general, gives an option to either party to rescind the contract upon the specified default of the other, but does not enable either to take advantage of his own wrong by avoiding the contract upon his own default (g).

Under a condition of sale that, if the purchaser should raise objections to the title which the vendor should not be able or willing to remove, the vendor should be at liberty to rescind the contract, the vendor has an option to rescind the contract, upon such objections being insisted on; but he must exercise such option bona fide and upon reasonable grounds. He is bound to answer the requisitions of the purchaser in order to give him an opportunity of accepting the title (h); and the purchaser is entitled to waive the objection

(a) Nowlan v. Ablett, 2 C. M. & R.
54.

(b) Nowlan v. Ablett, supra.
(c) Johnson v. Blenkensopp, 5 Jur.
870.

(d) Nicoll v. Greaves, 17 C. B. N.
S. 27; 33 L. J. C. P. 259.

(e) Todd v. Kerrich, 8 Ex. 151.
(f) Parker v. Ibbetson, 4 C. B. N.

S. 346; 27 L. J. C. P. 236; ante, p. 114.

(g) Roberts v. Wyatt, 2 Taunt. 268; Rippinghall v. Lloyd, 5 B. & Ad. 742, 749.

(h) Greaves v. Wilson, 25 Beavan, 290; 27 L.J. C. 546 ; Turpin v. Chambers, 29 Beav. 104; 30 L. J. C. 470; and see Tanner v. Smith, 10 Sim. 410;

« EelmineJätka »