said first count mentioned, it was immaterial for the purposes of this action whether the vessel called the B. F. Shaw in the said first count mentioned was first-class vessel or not, and because the alleged breach did not go to the whole consideration for the defendant's promise and undertaking, and was, if anything, a cause of action for the defendant against the plaintiffs, and not an answer to the cause of action in the said first count. To the fourth defence to the first count the plaintiffs demurred, on the ground that it was not shown by the said defence that any substantial difficulty, or any expense, trouble, or risk was or would have been imposed on the defendant by the alleged circumstance that the quantity of sugars purchased and shipped by the plaintiffs exceeded the quantity alleged to have been specified by the defendant, and because the said alleged excess did not authorise the defendant to refuse the whole of the cargo, and refuse to make any payment to the plaintiffs, and because it was consistent with the said defence that the plaintiffs were ready and willing, and offered to deliver to the defendant the actual quantity alleged to have been specified by him, and that the defendants could have accepted that quantity without difficulty, expense, trouble or risk. The plaintiffs demurred to the other defences on similar grounds respectively, alleging in their demurrer to the second defence to the second count that the agreement in the said second count mentioned contained no condition precedent that the vessel in which the said sugars were to be so shipped should be a first-class vessel. in the said count to the defendant in a first-class shipment between the plaintiffs and the defendant in the or vessel, but shipped the same in a vessel called the B. F. Shaw, which said B. F. Shaw was not then a first-class vessel, by reason whereof the defendant within a reasonable time in that behalf refused to accept the said Muscovado sugars so shipped in the B. F. Shaw as aforesaid, or pay for the same, or for commission or expenses connected therewith, as he lawfully might, which are the non-acceptances and non-payment in the said count complained of. 5. And by way of a fifth defence to the said second count the defendant, by the like leave, says that after the retainer and employment of the plaintiffs by the defendant as in the said count mentioned, and before any breach thereof, it was mutually agreed by and between the plaintiff and the defendant in manner and form as in the last preceding defence is averred, and the defendant says that although he had retained and employed the plaintiffs to purchase and ship a certain small quantity, to wit, 200 to 250 tons, and no more, of Muscovado sugar, as in the said count mentioned, yet the plaintiffs, in breach of their said retainer and employment, purchased and shipped to the defendant, to wit, in a vessel called the B. F. Shaw, a certain large and excessive quantity of the said Muscovado sugars, much exceeding 250 tons, to wit, 310 tons thereof, by reason whereof the defendant refused to accept the said Muscovado sugars so shipped as aforesaid, or to make any payments in respect thereof, which are the non-acceptance and non-payment in the said count complained of. 6. And by way of a sixth defence to the said second count the defendant, by the like leave, says that the sugars which the defendant refused to accept or make any payment in respect thereof were certain Muscovado sugars which purported to be shipped by the plaintiffs in compliance with the defendant's order to the plaintiff's in said second count mentioned to ship from 200 to 250 tons good refining Muscovado sugars at 27s. per cwt., and the defendant says that the sugars which were accepted by the defendant as in said second count mentioned were certain clayed sugars which were shipped by the plaintiffs in compliance with the defendant's order to the plaintiffs to ship from 200 to 250 tons clayed sugars, and which clayed sugars were all shipped on board the vessel called the Hebe in said second count mentioned; and the defendant says the said Muscovado sugars were all shipped on board the said vessel called the B. F. Shaw in said second count mentioned, and no portion thereof was shipped on board the Hebe; and the defendant says that the said vessel called the B. F. Shaw in said count mentioned was not a first-class vessel as therein alleged, and the defendant for the said reason, within a reasonable time in that behalf, refused to accept the said sugars shipped therein by the plaintiffs or make any payments on account thereof, which are the non acceptance and non-payment in the said count complained of. The plaintiffs obtained leave to reply and demur. The re-received no benefit whatever.] There is a detriment plications severally denied that the pleas demurred to were true in substance and fact. The plaintiffs demurred to the third defence to the first count on the ground that what in the said defence was alleged to be an express proviso and condition was not a condition precedent, and because, having regard to the agree Andrews (with him Law, Q.C.), in support of the demurrer. 1. That these sugars should be shipped in a first class vessel was not a condition precedent. 2. The difference in the quantity does not excuse the defendant from accepting. 3. The plaintiffs did tender the defendant the very quantity of sugar contracted for. It is a long-established rule that where the non-performance of an agreement on one side does not go to the whole of the other, then the remedy must be by cross-action in the nature of an action for damages.-Franklin v. Miller (4 A. & E. 599). It has been held that the Court will look at a question of this kind in a common sense view. A first class vessel either means a vessel rated A 1 at Lloyd's, or it means a first-rate vessel in the sense in which we should speak of a first-rate horse. If the latter, a merchant in Havannah might think a vessel first-class which a merchant at home might not consider to be such. If it means a vessel classed as A 1 at Lloyd's, it might be that one morning, and the next morning it might be unclassed.-Stavers v. Curling (3 Bing. N. C. 355). It is not alleged here that any damage or what must occasion damage occurred. [Monahan, C.J.-Those are cases in which the party had received certain advantages which he could keep. Here the defendant, by repudiating the contract, has to the one party here while the other goes entirely free. In the event of the market falling the defendant does get a benefit by having repudiated the contract. As to the defence of a different quantity of sugar, it amounts to this: that because the sugar came in company with sixty other tons of sugar therefore the defendant refuses it. It is consistent with that defence that we offered the defendant the 250 tons. The defendant might as well say the sugar came along with rice or coffee. He should go on to show that some expense, some risk, or trouble was occasioned. [Monahan, C.J.-Where the party has accepted and retains the goods, he must show some damage or loss.] Rylands v. Whitney (19 C.B. N.S., 351) Levy v. Green (8 Ell. & Bl. 575, & 1 El. & E. 969,) is distinguishable from the present case. It is a different thing if less than the quantity contracted for be sent.-Shannon v. Barlow (15 Ir. C. L. R. 478). An agent is not to act for his principal as a machine bút as a man having discretion.-Story on Agency. Macdonogh, Q.C., and Porter, for the defendant, cited Behn v. Burness (3 B. & Smith, 755); Ollive v. Booker (1 Ex. 424.) The warranty is a warranty that the vessel be A 1 at the time, not that she should continue to be so; and the meaning lies in this, that the rates of insurance are in the inverse ratio. The present case is stronger as being not one of vendor and vendee, but one of principal and agent. Law, Q.C., in reply cited Hoad v. Grace (5 Law Times, 360). The dictum in Behn v. Burress is confined to a particular class of cases. | The Right Hon. George Frederick Samuel Earl De Grey and Ripon, the defendant, is summoned to answer the complaint of Lawrence Ryan, who complains that defendant is Her Majesty's Secretary of State for the War Department, and as such is indebted to him in the sum of £48 Os. 10d. money payable by defendant as such Secretary of State to plaintiff, for that one Christopher O'Beirne being scised in fee of a certain piece of ground called All That and Those the lot or piece or parcel of ground, No. 93 being 2 roods 34 perches of land on Gallows Hill, near the town of Athlone, in the County Roscommon, demised the same by deed to Brigadier-General Benjamin Fisher, to hold the same as more particularly described in the said deed to the said Brigadier-General Benjamin Fisher, his executors, administrators and assigns, in trust, for and to the use of His Majesty the then King and his successors, and to and for no other use, intent or purpose whatsoever, for and during such time as the exigency of the public service should require it, provided the lessor, the said Christopher O'Beirne, should so long continue to have an interest therein, the said demise or term to commence from November 1, 1809, he, the said Brigadier-General Benjamin Fisher, his executors, administrators, and assigns, yielding and paying therefor and thereout yearly and every year during the continuance of the said demise unto the said Christopher O'Beirne, his The case was adjourned in order to admit of certain suggested amendments of the pleadings being made. The parties having failed to agree as to the amendments, the Court gave judgment on the de-executors, administrators or assigns, the yearly rent murrer. May 28. MONAHAN, C.J. said that both himself and Keogh, J. were clearly of opinion that this was a condition precedent, and that the other defences were good, and therefore there must be judgment for the defendant. Judgment for the defendant. Court of Exchequer. Reported by William A. Sargent, Esq., Barrister-at-Law. [BEFORE FITZGERALD, Hughes, and DEAST, BB.] RYAN v. EARL DE Grey and RipON.-May 23. Demurrer-Action against the Crown. THE summons and plaint was as follows:-" Victoria, or sum of £7 sterling of the then currency of Ireland, On the 1st May, 1860 1st Nov. 1863 ... 3 4 7 1st Nov. 1864 But the said gales are still due and unpaid to plaintiff. The second count was similar, save that it averred that the lessor's (O'Beirne's) reversion was a chattel interest. The third count was similar to the first, save that it referred to another lot, the yearly rent of which was £3-3s. British, of which the same number of gales (10) were due to the plaintiff. The fourth count was similar to the third, save that it averred that the lessor's reversion was a chattel interest. The fifth count was one for use and occupation. The sixth count was one upon accounts stated. Defence: "The said George Frederick Samuel Earl De Grey and Ripon, Her Majesty's principal Secretary of State for the War Department, appears and takes defence to the action of the said Lawrence Ryan, and says that heretofore, to wit, on the 20th day of December, in the year of our Lord 1809, the several lots, pieces, and parcels of ground in the 1st, 2nd, 3rd and 4th counts of the summous and plaint respectively mentioned were, and each and every of them was taken by a certain person, to wit, Brigadier-General Benjamin Fisher, in the said counts respectively mentioned, in trust for his late Majesty King George III. for the defence and security of the realm, to wit, the realm of Ireland, for the estate in the said counts respectively mentioned in that behalf, and the said several demises in the said 1st, 2nd, 3rd and fourth counts respectively mentioned were and each of them was made in respect of and for such taking, so as to demise the said several lots, pieces, or parcels of ground for the same terms mentioned in the said several counts in that behalf respectively, and not otherwise, and that before and at the time of the making and passing a certain statute in a session of Parliament held in the 5th and 6th years of the reign of her present Majesty, intituled "An Act to consolidate and amend the Laws relating to the Services of the Ordnance Department, and the vesting and pur. chase of Lands and Hereditaments for those Services, and for the Defence and Security of the Realm," the said several lots, pieces, and parcels of ground were and each of them was placed under the charge of her Majesty's then ordnance department. And the said defendant further says that the estate and interest of the said Brigadier-General Benjamin Fisher in the said several lots, pieces, and parcels of ground, and in each of them, became and were and was severally vested in defendant solely in his capacity of and by virtue of his office as Her Majesty's principal Secretary of State for the War Department under and according to the statutes in such case made and provided, and not otherwise. And defendant says that he has not at any time claimed, nor does he claim, any individual or beneficial estate or interest in the said several lots, pieces, or parcels of ground, or in any of them or in any part of the same. And as to the 5th count of the said summons and plaint the defendant says that the sum of money therein mentioned is claimed in respect of the alleged arrears of rent of the said several lots, pieces and parcels of land in the said first, 2nd, 3rd and 4th counts mentioned, and not otherwise, or for any other account. And as to the 6th count the said defendant says that the money thereby alleged to be found due from defendant to plaintiff was on an account alleged to be stated between them on account of the said arrears of rent last above-mentioned, and not otherwise, or on ary other account; and therefore he defends the action. Demurrer to defence:-Lawrence Ryan, the plaintiff, demurs to the said first defence as insufficient in law, and says that the same discloses no ground of defence good in substance; and plaintiff also demurs to the said second defence as insufficient in law, and says that the same discloses no ground of defence good in substance. And plaintiff also demurs to the said third defence as insufficient in law, and says that the same discloses no ground of defence good in substance. Points of Demurrer. 1. That plaintiff's claim is a proper subject-matter for an action at law, and not for a petition of right. 2. As to each of the defences, that it is bad and insufficient in law as an answer to the action. Byrne (with him Ball, Q.C.) for plaintiff, opened the demurrer.-5 & 6 Vict. c. 94, ss. 5, 39, referred to in defence. As to when petition of right is applicable-Chitty's Prerog. of Crown, 341, 342, 343; Banker's case (14 Howell's State Trials, 77); Sadleir's case (4 Co. 54, b.) In the Green Book, 191, several authorit.es are cited. It may be said that as we could not directly reap the fruits of our judgment against the Secretary-at-War that the action will not lie; but for this see Kendall v. King (17 C. B. 483). It may also be contended that as the demise is to a trustee of the Crown, the action will not lie; but see Willett v. Sandford (1 Ves. Sen. 186); Doe d. Legh v. Roe (8 M. & W. 579). Griffith (with him Heron, Q. C., contra, in support of the defences. 5 & 6 Vict., c. 94, ss. 34, 37; 18 & 19 Vict. c. 117; Macbeath v. Haldimand (1 Term. R. 172); Unwin v. Wolseley (1 Term. R. 674); Lord-Advocate v. Lord Dunglas (9 Cl. & F. 212); Gidley v. Lord Palmerston (3 Br. & Bing. 275); Priddy v. Rose (3 Mer. 86). demurrer is not properly taken, as it does not state the grounds for demurring. The Heron, Q.C., on same side.-Myrtle v. Beaver (1 FITZGERALD, B.-I think we are bound to take no- [BEFORE FITZGERALD, HUGHES, AND DEASY, BB.] EARL OF COURTOWN v. BUTLER. New trial motion-Ejectment on title-Condition precedent. A., the tenant, made the following agreement with B., the landlord: "I agree to be bound by the follow additional lands (which was produced by the witness) was then given by defendant to witness. That witness afterwards made an arrangement to let the millsite mentioned in this agreement; and on December 7th wrote the following letter to defendant: "I have set the mill of Coolnahinch and the farm of Carrigoneagh to the Messrs. Bates; whom will you name to value your crops growing on same? "Yours truly, ing conditions, viz., to give up the land when you "JAMES S. SCOTT." "They require immediate possession of the farm." To which on the same day defendant returned the following answer:— "Banogue, Dec. 7th, 1865. "Sir, I received your letter informing me that you had let Coolnahinch, mill and Carrigoneagh farm to the Messrs. Bates; and as they require immediate possession, in order to simplify and expedite matters I have made out an account of the drainage, and also of the manure crops, &c., which I enclose; and on receipt of the amount I will hand over possession of Should any objection be the farm to your order. The case was tried at THIS was an ejectment to recover the lands of Car. rigoneagh, in the County Wexford. Plaintiff claimed title from January 1st, 1866. the last Wexford Spring Assizes before Deasy, B. Plaintiff's counsel put in evidence the following proposal, which had been accepted on the part of Lord Courtown: 66 Banogue, Oct. 17th, 1865. "James S. Scott, Esq. "Sir,-In conformity with your suggestions relative to my continued occupancy of Carrigoneagh farm with that part of Carrigoneagh lately held by the representatives of the late Thomas Butler, containing 73a. 2r. Irish measure, or thereabouts, I beg leave to state that I agree to pay the rent fixed by you for the entire holding, viz. £87 per annum, and to be bound by the following conditions, viz. to give up the farm when you require it for the purpose of letting it, with Ballycale mill site. And should you so require these lands or part of them for that purpose, the incoming tenant to pay me for such crops as shall not at that time have come to maturity; also for manure unused, and land manured by me, gates, &c., the amount to be decided by two arbitrators-one to be appointed by such incoming tenant, and the other by me; and if the land be disposed of in this way, the Earl of Courtown to pay me for the drainage. Should my tenancy for Carrigoneagh continue, or that you give me the Banogue portion of Henry Furney's farm, containing about 25 acres, Irish, at 28s. per acre, with the usual lease in lieu of it, I give up my claim for drainage done by me on Carrigoneagh. "I am, sir, your obedient servant, "H. BUTLER." The first witness examined was Mr. Scott, plaintiff's agent. He stated that he had let Carrigoneagh to the defendant; that defendant called at his office on September 29th, and witness arranged with him that he should remain in possession of a portion of the lands of which he had previously been tenant, and should get possession of another portion which had beon previously held by Thomas Butler; that the above mentioned proposal had been then sent in and accepted, and a written order to get possession of the made to my charge for manure, seed, labour, &c., I As you beg to name Mr. Thomas Barker, of the Yew Tree, time. of the items in it was £207 17s. 5d. 1 sation relied on amounted to a demand; but his Lordship held that the demand off the lands was sufficient, and declined to leave that question to the jury. (2) Because defendant was a yearly tenant under the agreement, and entitled to a notice to quit; and even if he was not a yearly tenant of the whole of the lands, the yearly tenancy which prior to October, 1865, subsisted in the portion he then held, had never been determined; and plaintiff, as to this portion at least, had made no title. (3.) Because payment for the crops and other matters mentioned in the agreement of October 17th was a condition precedent to the determination of the estate created by it; and no sum having been ever paid or tendered, or even ascertained, as provided in the agreement, plaintiff could not recover. His Lordship not having taken this view of the case, defendant's counsel addressed the jury; and defendant deposed to the amount of the drainage expenditure in 1859, and that the expenditure, of which the items were furnished as above mentioned, was bona fide made by him on the lands on the faith of the agreement of October 17th, and that the crops, manure, and improvements were now on the lands. He also proved a payment on account of rent in November, 1865; but there was then a dispute as to a few pounds of an old arrear. He stated that he went to Scott's office on December 11th in consequence of receiving the following note: "Courtown, Dec. 9, '65. "Henry Butler,-I shall feel obliged by your being at my office on Monday next, the 11th day of De'cember, at one o'clock in the afternoon, to meet Lord Courtown, and have your drainage claim settled as he may then decide. "Yours truly, "JAS. S. SCOTT." J. E. Walshe, Q.C. (with him Hemphill, Q.C., and Lover) contra, in support of the order.-The question to be argued is-Do the words in the agreement amount to a condition for re-entry by the landlord? and if so, is it not part of the agreement that there should be a valuation and payment to the te nant for the drainage, &c.?-Doe d. Wilson v. Phillips (9 Moo. 46); Croker v. Orpen (6 Ir. L. R. 351); Doe d. Gardiner v. Kennard (12 Q. B. 244) will be relied on by the other side; but the terms were different there. Pordage v. Cole (1 Saund., 320); Roberts v. Brett (17 C. B. 534; s.c. 18 C. B. 561; s.c. in Cam. Scao. 6 C. B. N. s. 611; s. c. in Dom Proc. 11 H. L. C. 327); Grey v. Friar (4 H. L. C. 565). Even the grammar of the agreement would show that Butler was not to give up possession till paid; for all three conditions are in the same mocd→→→ To give up possession ""incoming tenant to pay " "Lord Courtown to pay." Could it be contended that Lord Courtown might come down whenever he wished, and say to defendant," You must go out”. the argument of plaintiff's counsel comes to this, [Fitzgerald, B.-He is not in a worse position than any other tenant at will.] This is not a tenancy at will. [Fitzgerald, B.-It is.] Porter v. Porter v. Sheppard (6 Term. R. 665). This is a contract which requires that a demand be made, and the demand must be on the ground. The Hemphill, Q.C. on same side. In contracts be tween landlord and tenant the law must be construed most strictly against the landlord.-Dann v. Spurrier (3 Bos. & Pul. 399) If the Court allows the cause shown, they will defeat the provisions of 23 & 24 Vict. c. 154, s. 34. The tenant surely would not be so blind as to contract to give up his tenancy without That the interview was taken up in trying to adjust any compensation for emblements, &c. Scott put the witness's claim; that when they could not agree as to the same construction on the agreement that we contend sum to be paid, Lord Courtown said, "Then you for when he wrote on Dec. 7 to Butler, "Whom will won't give up possession?" To which witness re- you get to value your crops?" Again, in his letter plied that he would do everything he agreed to do. of December 9 he tells Butler to come to his office, That he afterwards met Scott at the poor-house, and that his claim for drainage may be settled. Scott said to him "If I send the bailiff to you on Wed- "incoming tenant "’ means the tenant who is about to nesday, will you give up possession ?" In reply to come in, who is in the act of coming in, not the new which witness stated he would require a receipt for the tenant, who would be in already. As to conditions rent, and £100. At the close of defendant's case defen- precedent, Morton v. Lamb (7 Term R. 125). With dant's counsel again called on Baron Deasy to non-reference to demand of possession, John v. Jenking suit plaintiff, or direct a verdict for defendant on the (1 Cr. & M. 227). There was no absolute and unsame grounds as he did at the close of plaintiff's case. conditional demand of possession. His Lordship declined so to do, but directed a verdict for plaintiff, reserving leave to defendant to move to have the verdict entered for him as to the entire or part of the lands in case the Court should think that upon any of the grounds relied on by defendant's counsel the learned Baron should have directed a verdict for defendant. J. E. Walshe, Q.C. for defendant, having obtained a rule nisi accordingly, Harris, Q.C., (with him Purcell, Q.C., and Ryan) showed cause against the conditional order.-The demand of possession need not be on the demised premises.-1 Furlong, 581; Doe d. Price v. Price (9 Bing. 357); 1 Co. Lit. Tenant at Will, 55, b. Doe d. Davies v. Thomas (16 Exch. 854). The payment Purcell, Q.C. was not called on to reply. FITZGERALD, B.-We have only to consider the construction of the instrument. It was an agreement for a yearly tenancy, with an express proviso that the tenancy should determine by demand of possession by the landlord. This was demanded and refused by the tenant. The only other question we have to consider is, whether the payment for the crops, &c, to defendant by the incoming tenant was a condition precedent to the determination of the tenancy or not; and we are of opinion that there was nothing in the agreement to make it so. The tenancy was made determinable expressly on demand of possession. We must allow the cause shown. Rule discharged. |