as the charterer had not then broken the contract the master was not bound to accept this offer, but if the charterer had failed to perform the contract by putting cargo on board within the six days, it would have been the master's duty to have taken a cargo at the most he could get, so that the damages to be paid by the charterer should be reduced as much as possible.1

Until the days mentioned for loading have expired the breach of charter in not loading is not complete. But if before the time for performing the contract arrives, the party who has made the promise not merely asserts that he will not perform it, but expressly renounces the contract, the party to whom the promise is made may treat his renunciation as a breach of such a contract at his option; at all events in cases where the latter party has properly acted in such a way as to interfere with the performance of the contract on his part according to its original terms.

In Danube & Black Sea Railway Company v. Xenos, the action was on a contract for not receiving goods on board the defendants' ship, the shipment of which was to commence on the 1st August, and the question was whether the defendant had been guilty of a breach of contract. Before 1st August came, the defendant denied that he was bound by the contract, denied its existence and

1 Harries v. Edmonds, 1 C. & K. 686.

2 Avery v. Bowden, 26 L. J. Q. B. 3; Reid v. Hoskins, 26 L. J. Q. B. 5. 35 L. T. N. S. 527.

gave notice that he would not allow his Captain to receive the goods on board under that contract, (it was stated that that alone would not constitute a breach of the contract before the day on which it was to be performed,) but after he had sent that letter, the legal advisers of the Company wrote and gave him formal notice that if he persisted in that refusal to perform his contract, that they would treat the contract as broken by him, and hold him responsible for the consequences. His answer to that was, that he denied the existence of the contract, and tendered another contract for their acceptance. The railway company again wrote that they relied upon the original contract, and again gave notice that they would hold him responsible for the original contract, which they alleged he had thus broken. All this happened before 24th July, and between that date and 1st August the railway company had entered into a treaty with S. & Co. to take out their rolling stock from London to the Black Sca, it being deliverable under their contract at a time which made it very material that it should go, and upon 1st August the defendant sent word to the railway company that he was ready to receive their stock on board his ship. Erle, C. J. said: "I am of opinion that the law was well laid down, that where a contract has been entered into for acts to be performed on a given day, and where the party who is bound by that contract declares that it is as between him and the other contracting party broken, and that he insists

upon

It

it that there is a breach of that contract, the other party has the option to accept that as a breach, and to take that contract to be broken. was decided in the case of Cort v. The Ambergate Railway Company,' that Cort, on their refusing to receive his manufactured goods, might cease to manufacture and sue them, though he did not manufacture the goods and tender them. In the case of the courier, engaged to depart some time in August, the defendant sent word to him long before the time that he did not want his services, and that he might hire himself to some one else. It was held in each case that a declaration on the one side that the contract was broken, if accepted on the other, constituted a breach of that contract, which would be a good cause of action. That is the boundary on the one side. The boundary on the other side was well laid down in Avery v. Bowden, where the party, instead of saying:-'The contract is broken, and I will not find you a cargo, said to the Captain, I think there will be so much difficulty about this cargo, as the war has broken out, that really there is no hope. I wish you would go away, some where else.' The Captain did not go away, and that was held not to fall within the principle I have spoken of, and in the Exchequer Chamber the C. J. said :-where there is an explicit declaration intended to be this contract as between you and me is broken,' and that declaration

3

1 17 Q. B. 146.

2 Hochster v. De la Tour, 2 E. & B. 678.

35 E. & B. 728.

is accepted by the other side as a breach of contract, that beyond any doubt, I take it, gives a cause of action. That is affirmed by those different cases, and so, I think, the railway company are entitled to sue Xenos. If any ground could be relied on for saying that before the day came, the party could retract the declaration of the breach (and I do not think he could do it,) I am of opinion that the facts here do not raise the point for Xenos, because his mode of declaring that he would not perform the contract was by denying that the contract ever had been made, or that it ever did bind him, and by offering that another contract should be substituted which he in his correspondence, contended was the real contract he intended to act on, and his letter of the 1st August is, I am ready to receive your goods'-that is, that he is ready to receive them under some contract. Under which contract? If the goods had been sent, I think it would have been good evidence against the railway company that they had assented to Xenos' proposal of the second contract, which was on different terms, more onerous than the other. I think that there was a clear declaration that the contract was broken, and that that declaration was accepted by the railway company; and if need be that they should have acted upon it in any way, they had abundantly acted upon it by entering into a treaty for another ship, and had brought that treaty almost to a contract on the 1st August; and it became a contract immediately after."

If on arrival at the port of loading the charterer has not got cargo ready to be loaded and the vessel is detained in consequence, the charterer will be liable to the shipowner for demurrage for the time which the vessel is delayed owing to the fact of the cargo not being ready. Thus, where by a charterparty it was agreed that the plaintiff's ship should go to a port, and there load in regular turn a cargo from the defendants. On her arrival the defendants made default in supplying cargo, whereby she lost one turn. Wind afterwards came on to brow, and the harbour master therefore would not allow the ship to take up her loading berth for three days more:-Held, that the default of the defendants was the proximate cause of the detention during those three days, and that the plaintiff was entitled to danages as demurrage in respect of them.'

In order to make the breach complete it may be advisable that the ship should stay during the agreed days on demurrage, if any, unless the charterer has refused to load. At any rate she ought to stay if required to do so by the charterer.

If the shipowner covenant to take a cargo at O., and therewith proceed with the first convoy that should sail for England fourteen working days after the vessel was ready to load, and the freighter covenants to load and despatch her within fourteen days after notice that she is ready to load; but it is declared that the ship may be detained

1 Jones v. Adamson, L. R. 1 Ex. D. 60; 45 L. J. Ex. 64.