Cur, adv. vult.

The judgment of the Court (2), was (on Feb. 8) delivered by

COCKBURN, C.J. (after recapitulating the facts and proceedings.)-The question for us is whether the judgment of the majority of the Court of Exchequer was right.

The cases of Lovelock v. Franklyn (3) and Short v. Stone (4), which latter case was an action for breach of promise of marriage, having established that where a party bound to the performance of a contract at a future time puts it out of his own power to fulfil the contract, an action will at once lie, the case of Hochster v. De la Tour (5) (upheld in this Court in The Danube and Black Sea Company v. Xenos) (6) went further, and established that notice of an intended breach of a contract to be performed in futuro had a like effect.

The law with reference to a contract to be performed at a future time, where the party bound to performance announces, prior to the time, his intention not to perform it, as established by Hochster v. De la Tour (5) and The Danube and Black Sea Company v. Xenos (6) on the one hand, and Avery v. Bowden (7), Reid v. Hoskins (8), and Barwick v. Buba (9) on the other, may be thus stated: The promisee, if he pleases, may treat the notice of intention as inoperative, and await the time when the contract is to be executed, and then hold the other party responsible for all the consequences of non-performance; but in that case he

(2) Cockburn, C.J., Byles, J., Keating, J., and Lush, J. Montague Smith, J., was present during the argument, but was promoted to the Privy Council in November, 1871.

(3) 8 Q.B. Rep. 371; s. c. 15 Law J. Rep. (N.S.) Q.B. 146.

(4) 8 Q.B. Rep. 358; s. c. 15 Law J. Rep. (N.S.) Q.B. 143.

(5) 2 E. & B. 678; s. c. 22 Law J. Rep. (N.s.) Q.B. 455.

(6) 13 Com. B. Rep. N.S. 825; s. c. 3 Law J. Rep. (N.s.) C.P. 284.

(7) 6 E. & B. 953; s. c. 26 Law J. Rep. (N.s.) Q.B. 3.

(8) 6 E. & B. 953; s. c. 26 Law J. Rep. (N.s.) Q.B. 5.

(9) 2 Com. B. Rep. N.S. 563; s. c. 26 Law J. Rep. (N.9.) C.P. 280.

the other party as well as for his own; he remains subject to all his own obligations and liabilities under it, and enables the other party not only to complete the contract (if so advised), notwithstanding his previous denunciations of it, but also to take advantage of any supervening circumstance which would justify him in declining to complete it.

On the other hand, the promisce may, if he thinks proper, treat the repudiation of the other party as a wrongful putting an end to the contract, and may at once bring his action as on a breach of it; and in such action he will be entitled to such damages as would have arisen from the non-performance of the contract at the prescribed time, subject however to abatement in respect of any circumstances which may have afforded him the means of mitigating his loss.

Considering this to be now settled law, notwithstanding anything that may have. been held or said in Phillpotts v. Evans (10) and Ripley v. McClure (11), we should have had no difficulty in applying the principle of the decision in Hochster v. De la Tour (5) to the present case, were it not for the difference which undoubtedly exists between that case and the present, namely, that whereas there the performance of the contract was to take place at a fixed time, here no time is fixed, but the performance is made to depend on a contingency, namely, the death of the defendant's father during the lifetime of both the contracting parties. It is true that in every case of a personal obligation to be fulfilled at a future time, there is involved the possible contingency of the death of the party binding himself before the time of performance arrives; but here we have a further contingency depending on the life of a third person, during which neither party can claim performance of the promise. This being so, we thought it right to take time to consider whether an action Iwould lie before the death of the defendant's father had placed the plaintiff in a

(10) 5 Mee. & W. 475; s. c. 9 Law J. Rep. (N.S.) Exch. 33.

(11) 4 Exch. Rep. 345, 357; s. c. 18 Law J. Rep. (N.s.) Exch. 419.

position to claim the fulfilment of the defendant's promise.

After full consideration we are of opinion that, notwithstanding the distinguishing circumstance to which I have referred, this case falls within the principle of Hochster v. De la Tour (5), and that consequently the present action is well brought.

The considerations on which the decision in Hochster v. De la Tour (5) is founded are that, by the announcement of the contracting party of his intention not to fulfil it, the contract is broken, and that it is for the common benefit of both parties that the contract shall be taken to be broken as to all its incidents, including non-performance at the appointed time; and that an action may be at once brought, and the damages consequent on non-performance be assessed at the earliest moment, as thereby many of the injurious effects of such non-performance may possibly be averted or mitigated.

It is true, as is pointed out by the Lord Chief Baron in his judgment in this case, that there can be no actual breach of a contract by reason of non-performance so long as the time for performance has not yet arrived. But on the other hand, there is-and the decision in Hochster v. De la Tour (5) proceeds on that assumption-a breach of a contract when the promiser repudiates it, and declares he will no longer be bound by it. The promisee has an inchoate right to the performance of the bargain, which becomes complete when the time for performance has arrived. In the meantime he has a right to have the contract kept open as a subsisting and effective contract. Its unimpaired and unimpeached efficacy may be essential to his interest. His rights acquired under it may be dealt with by him in various ways for his benefit and advantage. Of all such advantage, the repudiation of the contract by the other party, and the announcement that it never will be fulfilled, must of course deprive him. It is therefore quite right to hold that such an announcement amounts to a violation of the contract in omnibus, and that upon it the promisee, if so minded, may at once treat it as a breach of the entire contract, and bring his action accordingly.

The contract having been thus broken by the promiser, and treated as broken by the promisee, performance at the appointed time becomes excluded, and the breach by reason of future non-performance becomes virtually involved in the action as one of the consequences of the repudiation of the contract; and the eventual non-performance may therefore by anticipation be treated as a cause of action, and damages be assessed and recovered in respect of it, though the time for performance may yet be remote.

It is obvious that such a course must tend to the convenience of both parties. And though we should be unwilling to found our opinion on grounds of convenience alone, yet the latter tends strongly to support the view that such an action ought to be admitted and upheld. By acting on such a notice of the intention of the promiser, and taking timely measures in consequence, the promisee may in many cases avert or, at all events, materially mitigate the injurious effects which would otherwise flow from the non-fulfilment of the contract; and in assessing the damages for breach of performance a jury will of course take into account whatever the plaintiff has done or has had the means of doing (and as a prudent man ought in reason to have done), whereby his loss has been or should have been diminished.

It appears to us that the foregoing considerations apply to a case of a contract, the performance of which is made to depend on a contingency, as much as to one in which the performance is to take place at a future time; and we are therefore of opinion that the principle of the decision in Hochster v. De la Tour (5) is equally applicable to such a case as the present. It is next to be observed that the law, as settled by Hochster v. De la Tour (5) and The Danube and Black Sea Railway Company v. Xenos (6), is obviously quite as applicable to a contract in which personal status or personal rights are involved as to one relating to commercial or pecuniary interests. Indeed the contract of marriage appears to afford a striking illustration of the expediency of holding that an action may be maintained on the repudiation of a contract to

be performed in futuro. On such a contract being entered into, not only does a right to its completion arise with reference to domestic relations and possibly pecuniary advantages, as also to the social status accruing on marriage, but a new status, that of betrothment, at once arises between the parties. This relation, it is true, has not by the law of England the same important consequences which attached to it by the canon law and the law of many other countries. Nevertheless, it carries with it consequences of the utmost importance to the parties. Each becomes bound to the other; neither can, consistently with such a relation, enter into a similar engagement with another person; each has an implied right to have this relation continued till the contract is finally accomplished by marriage. To the woman more especially, it is all important that the relation shall not be put an end to. Independently of the mental pain occasioned by the abrupt termination of such an engagement, the fact of its existence, if followed by such a termination, must necessarily operate to her serious disadvantage. During its continuance others will naturally be deterred from approaching her with matrimonial intentions; nor could she admit of such approaches, if made; while the breaking off of the engagement is too apt to cast a slur upon one who has been thus treated. We see, therefore, every reason for applying the principle of Hochster v. De la Tour (5) to such a case, and for holding that the contract is broken on repudiation, not only in its present but in its ultimate obligations and consequences.

To hold that the aggrieved party must wait till the time fixed for marrying shall have arrived, or the event on which it is to depend shall have happened, would have the effect of aggravating the injury, by preventing the party from forming any other union, and by reason of advancing age rendering the probability of such a union constantly less. It has been suggested that the desire of marrying, and the happiness to be expected from marriage, diminish with advancing years, and therefore that, when by the terms of the contract marriage is only to take place at a remote time, the value of the marriage NEW SERIES, 41.-EXCHEQ.

and the damages to be recovered for a breach of the promise would be less if the refusal was made when the time for marrying was accomplished; and that consequently an action ought not to be allowed till the time when the fulfilment of the contract could have been claimed.

We cannot concur in this view. We think that in estimating the amount of injury done, and of the compensation to be made for it, if the contract were broken when the time for marrying had arrived, the wasted years and the impossibility of forming any other engagement during the intermediate time, should be taken into account, and not merely the age of the parties, and the then existing value of the marriage. It is therefore manifest that it is better for both parties -for the party intending to break the contract, as well as for the party wronged by the breach of it-that an express repudiation of the contract should be treated as a violation of it in all its incidents, and should give the right to the party wronged to bring the action at once, and have the damages assessed at the earliest moment. No one can doubt that, morally speaking, a party who intends to break off a matrimonial engagement acts far less culpably in at once giving notice of the intention, than by keeping the intention secret until the time for fulfilling the promise has come. The reason is, that the giving such notice at the earliest moment tends to mitigate, while the delay in giving it necessarily aggravates the injury to the party wronged.

It has been urged that there must be great difficulty in thus assessing damages prospectively, but this must always be more or less the case, wherever the principle of Hochster v. De la Tour (5) comes to be applied. It would equally exist where one of the parties, by marrying another person, gave rise, as in Short v. Stone (4), to an immediate right of action. It cannot be said that the difficulty is by any means insuperable; and the advantages resulting from the application of the principle of Hochster v. De la Tour (5) are quite sufficient to outweigh any inconvenience arising from the difficulty of assessing the damages.

We are struck by the fact that the Lord

M

Chief Baron, while holding that the present action would not lie, expressed an opinion that the wrong done by the repudiation of a contract of marriage, might be made the foundation of an action on the case, in which the facts should be set forth. But as the rights and obligations of the parties arise here entirely out of the contract, we have a difficulty in seeing how such an action could be maintained. But be that as it may, seeing that in such an action as is thus suggested, the damages would have to be ascertained with reference to the same facts and the same considerations as in an action brought on the contract, it seems to us by far the simpler course-the case being clearly within the decision of Hochster v. De la Tour (5)—to hold that the present action for breach of the contract may be maintained, and that in it the plaintiff is entitled to recover damages in respect of the non-fulfilment of the promise, as though the death of the defendant's father -the event on which the fulfilment was to depend-had actually occurred.

We are therefore of opinion that the judgment of the Court of Exchequer should be reversed.

KEATING, J., and LUSH, J., concurred in the above judgment.

BYLES, J.-I also think the plaintiff entitled to recover both on principle and on authority; but as my judgment was prepared before I saw the judgment of my Lord, I ought perhaps looking to the importance of the case-to deliver it.

An express pre-contract of marriage, as my Lord has suggested, places the man and woman in the condition or status of betrothment, in which condition or status there are certain mutual duties. The woman, for example, may not, without a breach, marry another man, although it is possible that he might die before the future day appointed for the first intended marriage, whether already fixed, whether contingent on a future event. So I conceive the man cannot, during the stipulated period of betrothment, without a breach of contract, marry another woman, though she might die in the mean time. So for one of the parties to break off the mutual engagement by an express refusal to perform it, though

or

before the day fixed for performance, seems to me to be equally a breach of the contract, for it puts an end to the condition of betrothment, which according to the contract was to continue. In each of these three cases there is a repudiation of the duties springing from the new relation involved in the contract.

But independently of the peculiarities attending a pre-contract of marriage, the decision in Hochster v. De la Tour (5) shews that in the analogous case of a precontract for future service, the refusal of one of the parties to perform the contract, though before the time appointed for its fulfilment, is a breach. And the decision in that case goes further than is necessary for our decision in this case, for there no status had been established like that involved in a pre-contract of marriage. And the Court of Common Pleas in Wilkinson v. Verity (12), and the Court of Error in Xenos v. The Danube and Black Sea Company (6), have laid it down that an absolute unconditional renunciation of a contract before the time of performance amounts to a breach, at the election of the promisee.

Judgment reversed.

Prohibition to Admiralty Court - Merchant Shipping Act, 1854 (17 & 18 Vict. c. 104), s. 514-Admiralty Court Act, 1861 (24 Vict. c. 10), s. 13-"Ship or Proceeds thereof, under Arrest Merchant Shipping Act Amendment Act, 1862 (25 § 26 Vict. c. 63), s. 54.

A steam-vessel having, through the negli gence of those navigating it, come into collision with another ship, and having been sunk and totally lost in consequence, the owners, with a view to obtaining a decree limiting their liability under the 54th sec

(12) 40 Law J. Rep. (N.s.) C.P. 141.

tion of the Merchant Shipping Act Amendment Act, 1862, instituted a suit in the Court of Admiralty. They had previously, as defendants in a cause of damage instituted against them in that Court by the owners of the other ship and her cargo, paid into Court 5,000l., being an amount less than 151. per ton on each ton of the vessel's registered tonnage. A passenger who had sustained personal injury from the collision having sued the owners of the steam vessel for damages in the Court of Exchequer, the Judge of the Court of Admiralty made an order in the limitation suit that all actions and suits pending in any other Court in relation to the same subject matter should be stopped; and he afterwards decreed that the owners were entitled to limited liability, and were only answerable to the extent of 6,3761., being the full amount of 151. per ton, which he directed them to pay into Court:Held, that under these circumstances, neither "the ship nor the proceeds thereof," nor an equivalent thereof, were "under arrest of the Court of Admiralty" within the meaning of the 13th section of the Admiralty Court -Act, 1861, and that the Court of Admiralty had no jurisdiction under the 514th section of the Merchant Shipping Act, 1854, or otherwise, to entertain the suit, or to stop any action pending in any other Court in relation to the same subjectmatter; and that a prohibition might issue from this Court accordingly.

Declaration in prohibition, stating that the defendants were common carriers of passengers, with their luggage, from London to Guernsey, and that the plaintiff was received by them as a passenger with his luggage, to be safely and securely carried from London to Guernsey, and the defendants, in consideration of reward in that behalf, promised to carry the plaintiff safely and securely as aforesaid; and while he was being carried by the defendants upon a vessel called the Normandy, the said vessel, through the negligence, &c., of the defendants, their officers and servants, came into collision with another vesel called the Mary, and sank, and the plaintiff was cast into the water and injured, and lost his luggage, &c.; and that the plaintiff afterwards brought an action in this Court to

recover damages in respect of the premises. (The pleadings in the said action were set out, shewing that the declaration was therein dated the 21st of May, and that the defendants by their pleas, dated the 31st of May, 1871, denied their liability). The declaration then averred that on the 9th of June, 1870, after delivery of the pleas in the said action, the defendants commenced a suit of limitation of liability in the High Court of Admiralty of England, which suit was named "The Normandy, No. 5,366," against the owners of the Mary and the owners of the cargo of the Mary, and all other persons interested in the Mary and the Normandy, or having any right, claim or interest whatsoever arising out of the collision aforesaid; that the defendants afterwards presented and filed a petition in the said suit, alleging as follows

First, that before and on the 17th of March, 1870, the London and South Western Railway Company were the owners of the Normandy steam vessel, of the gross registered tonnage of 425.05 tons, without deduction being made on account of engine room; second, that at midnight of the 16th of March, 1870, the Normandy, laden with a cargo of general merchandize, and having also on board about thirty passengers, left Southampton for Jersey and Guernsey; third, that on the morning of the 17th of March, 1870, whilst prosecuting the said voyage, the Normandy came into collision with the steam vessel the Mary and sank; fourth, that in consequence of the collision the master, and many of the passengers and crew on board the Normandy, and their luggage and effects, and the whole of her cargo, were lost; fifth, that the Mary was damaged, and the cargo with which she was laden was in part damaged and in part lost; sixth, that the collision occured without the actual fault or privity of the company; seventh, that on the 13th of April, 1870, a caveat warrant against the arrest of the Mary was filed in the Court of Admiralty by the solicitor for the owners of the Mary, the solicitor undertaking to give bail in a sum not exceeding her value, within three days after he should have been served with notice of the institution of any suit against the