1872 Larivière v. Morgan, L.C. December had been written it was to be the option of the French government to retire from that agreement, and that Messrs. Morgan & Gooch could, upon an order from the French government, transfer that sum of money to some other account. It appears to me that, in other words, there was a plain and clear trust impressed on this fund, under which those who had the benefit of the trust would be entitled, if they performed their contract, to receive the money. Of course the goods were to be delivered according to the contract, and in accordance with all the conditions of the contract, including the condition of time, unless that condition had been waived. But the evidence of the fulfilment of those conditions which would justify Messrs. Morgan & Gooch in making payment was to be the certificate of the French embassador or of M. Joulin, who had been the agent of the French government, and under whose control the general funds of the French government stood with Messrs. Morgan & Gooch. And though Messrs. Morgan & Gooch would be perfectly justified in declining to make any payment except upon the evidence which they were told to accept. that does not affect the question whether the absence of the certificate of reception can have such an effect as, at the option of the French embassador or M. Joulin, to deprive the contractors of the benefit of the engagement which had been entered into with them. This is not like one of those cases in which goods are to be 559] *tested by an engineer and paid for upon his certificate, which certificate he refuses to sign. In those cases the parties have chosen their own judge as to the proper fulfilment of the contract, and if the engineer declines to certify, the Courts have held that, in the absence of all fraud on his part, the certificate is a sine qua non, and that accordingly the contractor, having submitted to that condition, must abide by it if the goods are not such as the engineer will certify for. But here neither the ambassador nor M. Joulin are to try the cartridges, about which they would know nothing; although they would know whether the cartridges, when tried and approved, had or had not been received by the French government. If, therefore, the French government receive the cartridges, it is then to be taken that the proper certificate has been given. It is not required that this certificate shall be a condition preliminary to payment. The condition for payment is, that the goods shall be delivered and received. Supposing that the ambassador were changed, or that some one was appointed in the place of M. Joulin, then I apprehend that the Court would say that payment cannot depend upon any special quality in the ambassador or in M. Joulin, the real argreement being that, upon L.C. Larivière v. Morgan. 1872. the goods being delivered according to the contract, the payment shall be made out of that specific fund. The main argument in the case has, however, been that the French government, though it has an undoubted interest in the fund, is not before the Court; and that even that the whole contract had been fulfiled to the day, the French government is still entitled to the balance which will remain, and is therefore entitled to see that the payments have been properly made. But it is clear, upon the authorities, that the plaintiff cannot compel them to come here and submit to the jurisdiction of this country. They may appear as has been done in other cases. The United States have filed bills in this country and have submitted to the jurisdiction, and thereupon have had their rights ascertained. But the question now raised is, whether, in the absence of the French government, it is possible to ascertain the rights to this particular fund, the French government declining to appear a very proper course to take if they think fit. Is there, then, to be a total failure of justice because the French government declines to assert any right to the [565 fund? Messrs. Morgan & Gooch say reasonably enough that they knew nothing about the rights, and cannot undertake to determine them. They also say - not so reasonably-"let the fund remain until the French government comes in, or allow us to retransfer it, because the rights between these parties cannot be determined." In answer to this, I will put the case of a foreign government having placed in this country a sum of money, and having charged it with certain trusts to be performed, subject to which the balance is to be paid back to the foreign government-Is it possible to say that in such a case the trustee is not liable to perform the trust because the foreign government, one of the cestuis que trust, cannot be made to appear? There is great analogy between this case and the case of an interpleader suit. In Stevenson v. Anderson, (1), a banker having a fund claimed by several persons, all but one of whom were out of the jurisdiction, paid it into Court by way of interpleader, and then served all the parties out of the jurisdiction. In that case Lord Eldon said the fund could not remain here for ever. and that it would be paid out to the only person who did appear and submitted his claim. In any such case we must ascertain as we best can, in the absence of the other parties, what are the rights of the parties who do appear. In the case of Wyle v. Wylie (2), in which a large sum of money was left by will to the Russian government, administration was taken out on behalf of the Russian govern(1) 2 V. & B., 407. (†) (2) 6 Jur. (N.S.), 259; 29 L, J. (Ch.), 341. 1872 Lariviere v. Morgan. L.C. ment, and litigation ensued; but there the Russian government appeared, and the difficulty did not arise. There may be many cases in which a foreign government has some interest, but the other parties interested must not suffer because it is impossible to compel the attendance of one of those who might claim the fund. Messrs. Morgan & Gooch, however, say that they will be liable. to the consequences of any proceeding that may be instituted in France by the French government, who might say that the fund was not to be handed over except upon the certificate of the ambassador. But I apprehend that the comity of nations would extend to such a case, and that the decision of this Court will be respected, as we should respect a decision of a Court in France 561] with reference to *any fund which was clearly within the jurisdiction of that Court, and which had to be dealt with upon facts which had taken place in that country. Moreover I apprehend that neither in that Court nor in any Court in any civilized country would it be held that where the certificate of a French ambassador is required a person would lose his money because, for instance, there happened to be no ambassador. I stand, however, upon higher ground, for I assume that the Courts of all countries would recognize the decision of a Court of competent jurisdiction in a country where the property was situated, and where the rights were properly to be tried. It appears to me, therefore, that there is no difficulty in the way of the plaintiff if the contract has been performed. As regards that part of the case, and as to the inquiry, I am very much of the same opinion as the Vice-Chancellor. I feel my self, however, bound to differ from him as to the effect of the evidence, as showing that the condition of time being of the essence of the contract has been altogether waived, and in that respect the decree must be varied. MINUTES. Declare that under the contract and letter, &c., the plaintiff became entitled to be paid rateably for all cartridges supplied to and received by the French government under the contract, &c., out of the sum of £40,000, &c. Declare that the first limit of time, namely the 5th of December, 1870, was waived. Inquire whether the second limit of time, namely, the 10th of January, 1871. was waived or extended, &c. Inquire what number of cartridges were delivered or tendered by the plaintiff to the French government and at what dates, and whether any and which of them were received by the French government, and whether any and which were rejected, and whether or not having been tested by agents of the French govern ment. Costs to be costs in the cause. Adjourn further consideration. Liberty to apply. Solicitors for the plaintiff': Messrs. Innes & Son. Solicitors for Messrs. Morgan & Gooch: Mr. Clements. The agent of a railway company made a verbal agreement with the contractor for the line, that if he would build on land of the company certain cottages more substantially than would be required for his own purposes, and would leave them for the use of the company, then the company would pay him £5000. The cottages were accordingly built, and when the railway was completed the contractor left them on the land, and the agent of the company made an agreement with the contractor that he should be paid £500 a year for the cottages by way of rent with an option to the company to purchase them for £5000. This agreement was confirmed by a resolution of the board of directors. The company paid the £500 a year for some years, and then refused to pay : Held, that the claim of the contractor being simply for payment of money could not be enforced in the Court of Chancery; and that though the contractor was unable to sue at law because the agreement was not under seal, he did not thereby obtain an equity to enforce a claim for money: Held, also, that inasmuch as the contractor did not act in ignorance of the rights of the company, he could not claim compensation for having been induced to build on the land of the company. Order of the master of the rolls affirmed. THE bill in this case was filed by T. H. Crampton, claiming under Messrs. Peto, Belts & Crampton, against the Varna Railway Company, and stated as follows: That the company was formed in the year 1863 for the purpose of making a railway in Turkey. That the company had always been a company carrying on business in England, and was a body corporate having a common seal. That the company was governed by certain statutes, which provided (amongst other things) that the seat of the company should be at Varna: that the affairs of the company should be managed by a council of administration in London: that the council should be invested with the fullest powers for the administration of the affairs of the company, and should enter into all agreements as to the purchase, sale, taking on lease, or letting any railway, lands, warehouses, or other building coming within the objects of the company, and should make agreements relating to the interests or affairs of the company gene- [563 rally that the company should have a common seal, and that all contracts and agreements purporting to be made by the company involving sums of more than £500 should have the common seal affixed thereto, together with the signatures of at least two members of the council and the secretary. That Messrs. Peto & Co. contracted for the construction of the railway by contracts under the seal of the company, one of the terms of which was that the company would at their own cost acquire all the land necessary for the railway and works, but that the contractors would at their own expense provide huts and dwellings for the 1872 Crampton v. Varna Railway Co. workmen. That Mr. McCandlish (as engineer for the company) arranged with Mr. Barkley (as agent for the contractors) that, inasmuch as cottages were indispensable for the company for working the railway when opened, instead of the contractors setting up mere temporary huts for the use of their workmen during the construction of the works, they should build permament and substantial cottages, which might, upon the completion of the railway, be retained and used as dwellings for the company's servants and officials. That Me Candlish had full authority on the part of the company to enter into such arrangement, and that such arrangement was communicated to the directors, and they were fully aware thereof, and acquiesced in and approved of the same as being an arrangement very beneficial for the company. That, acccordingly, substantial cottages and a house and stable were built by the contractors, under the superintendence and to the satisfaction of McCandlish, and with the acquiescence and approval of the directors, on land which had been acquired by the company for the purposes of the undertaking. That no definite sum was fixed as the price for such cottages, house, and stable, but there was an understanding during the time that the works were progressing that such price was to be £5000, which was, in fact, a fair price for the same. That Barkley wrote to Me Candlish a letter stating that the cottages would not be handed over to the directors as part of the works, and that £550 would be a fair rent for them. That when the railway was nearly completed, some correspondence took place respecting the cottages, and on the 27th of October, 1866, McCandlish wrote to the directors a letter stating that he con564] sidered the rents at which the cottages *might be rented from the contractors to amount to £500. That at a meeting of the directors on the 1st of November a resolution was passed that the recommendation contained in McCandlish's letter should be accepted, subject however to the company having the option of purchasing the cottages for the sum of £5000 on the general settlement with the contractors; and a copy of this resolution was sent by the secretary of the company to the agent of Messrs. Peto & Co. That the company agreed, instead of paying the £5000 for the cottages, to pay £500 a year, and the contractors agreed to this arrangement. That a letter was, on the 9th of May, 1867, written by the secretary of the company, under the order of the directors, to Messrs. Pelo & Co., stating that it had been arranged at Varna that the cottages should be rented by the company at £500 per annum. That in pursuance of this arrangement the cottages were not removed by the contractors, Messrs. Peto & Co., and were left in possession of the company. That but for this arrangement they would have been |