Staunton v. Wood.

have never been able to understand how that proposition could be maintained. It seems to me, therefore, that there is no ground on which such a defence as is here suggested can be maintained on behalf of a tenant to a claim for rent in arrear by the person who let him into possession of the land.

COLERIDGE, J., concurred.

ERLE, J. If the plea had shown that the tenant had been compelled to pay the sum in dispute to the mortgagee in an action for mesne profits, I should have been inclined to support the defence; but it seems to me that, consistently with this plea, the defendant might enjoy the land without payment of rent either to the mortgagor or the mortgagee-the claim of the mortgagee might never be insisted on. The plea amounts only to this assertion, "It is true that I owe 100%. to you, the person who let me into possession of this land, but I will not pay you, because there is another person who may also bring an action against me for the same sum." It does not seem to me that such an allegation is a defence in a court of law.

Judgment for plaintiff.

Where an agreement, as described in the declaration, was "to deliver fifty tons of iron for the price of 91. per ton, the said goods to be delivered forthwith, and the said price to be paid in cash in fourteen days from the time of the making of the said contract":· Held, upon demurrer, that it sufficiently appeared upon the face of the contract, as stated, that the delivery was intended to be a condition precedent to the payment.

DECLARATION, for that whereas, on, &c., the defendants agreed with the plaintiffs to buy, &c., and the plaintiffs then agreed with the defendants to sell to the defendants certain goods, to wit, fifty tons of iron, at and for the price of 91. per ton, the said goods to be delivered forthwith by the plaintiffs to the defendants at the works, and the said price to be paid by the defendants to the plaintiffs, in cash, in fourteen days from the time of the making of the said contract: and thereupon, &c., (mutual promises.) Breach, that although the said period of fourteen days had elapsed, &c., and although the plaintiffs have in all things performed and fulfilled the said contract on their part, &c., yet the defendants have not paid, &c. Plea, that although a reasonable, proper, and convenient time, pursuant and according to the tenor and effect, and true intent and meaning of the said contract, for the delivery of the said goods in the declaration mentioned, and within which said reasonable,

115 Jur. 1123.

Staunton v. Wood.

proper, and convenient time the said goods, pursuant and according to the tenor and effect, true intent and meaning of the said contract, might, could, and ought to have been delivered, &c., did, to wit, on, &c., elapse before the expiration of the said fourteen days, of all which the plaintiffs had notice; and although the defendants, at the time of the making of the said contract, to wit, on, &c., and from thence continually during the said space of fourteen days, were always ready and willing in all things to perform and fulfil the said contract on their part, and to accept and receive the said goods, &c., and to pay the said price in cash in fourteen days, &c., of all which the plaintiffs, at the time of making the said contract, to wit, on, &c., and from thence continually hitherto, had due notice; and although the defendants, at the time of making the said contract, to wit, on, &c., and on divers other days and times between that day and the expiration of the said fourteen days, requested the plaintiffs to deliver the said goods according to the terms of the said contract; yet the defendants say, that the plaintiffs did not nor would at any time hitherto deliver the said goods, &c., but have hitherto wholly neglected and refused: without this, that the plaintiffs have in all things performed and fulfilled the said contract on their part, in manner and form, &c. Concluding to the country. General demurrer. The plaintiffs' point for argument being, that the delivery of the goods was not a condition precedent to the defendants' liability to pay the price, but that the agreements were independent.

Phipson, in support of the demurrer. The plea in this case discloses no sufficient answer to the action. It rests upon the assumption, that, within the meaning of the contract described in the declaration, the delivery of the goods was to be a condition precedent to the payment of the money. But that assumption is wrong. The contract is one within the first rule in the note 4 to Pordage v. Cole, 1 Wms. Saund. 320 a-"If a day be appointed for the payment of money, or for doing any other act, and the day is to happen, or may happen, before the thing which is the consideration of the money or other act is to be performed, an action may be brought for the money, or for not doing such other act, before performance; and so it is where no time is fixed for performance of that which is the consideration of the money or other act." The question will turn upon the meaning in the contract of the words "to be delivered forthwith," and upon the manner in which those words are to be treated. If the word "forthwith" is to be taken to be equivalent to the words "within a reasonable time," and if, in a mercantile contract, those words denote no specific time, but are so general that, whenever they are used in a mercantile contract, it must be left to the jury to say what is reasonable time, then it is clear that the time for the delivery in the present case was not fixed, but that it might happen either before or after the time for payment, which was fixed, and that, therefore, the delivery was no condition precedent to the right to sue for

1 Coram PATTESON, COLERIDGE, WIGHTMAN, and ERLE, JJ.

Staunton v. Wood.

.

the payment. But in Tennant v. Bell, 3 Q. B. 684; 10 Jur. 946, it was held, that the meaning of the word "forthwith" was "within a reasonable time," and that the judge properly left it to the jury to say, in effect, what was reasonable time. In Hoadley v. M' Laine, 10 Bing. 482, it was said to be a question for a jury what was a reasonable price. Mattock v. Kinglake, 10 Ad. & El. 50, Dicken v. Jackson, 6 C. B. 103, and Wilks v. Smith, 10 M. & W. 355, are strongly in favor of the demurrer. In Com. Dig. " Pleader," C. 54, "If a man promises to deliver so many tons of iron, and the other promises payment, the plaintiff need not aver the delivery of the iron;" citing Bettisworth v. Campion, Yelv. 133. Nichols v. Raynbred, Hob. 88, b, is to the same effect.

Winston, in support of the plea. Assuming that the time for the delivery is so averred in the declaration as to be left at large, yet the plea shews, and properly shews, that, in the result, according to the contract, the time for the delivery had become certain and passed, before the time for payment had arrived; and if so, the payment could not be enforced without the delivery being previously made. In Kemble v. Mills, 1 Man. & G. 770, per Maule, J. "I think it competent to a defendant to state in his plea, or to shew in evidence, that an act stipulated to be done was a condition precedent."

[PATTESON, J. But Maule, J., goes on to say, that the proper mode of raising the objection would be on non assumpsit. That shews that he was contemplating an agreement which contained clearly on the face of it a condition precedent. If the condition were not on the face of the agreement, the objection could not be raised on non assumpsit.] But here the objection could not be raised on non assumpsit, because it is true that the defendants did promise, in the form set out in the declaration. What the plea undertakes to do here is to aver circumstances, which, if they be true, can leave no doubt as to the meaning of certain terms in the contract; and no doubt, consequently, that the defendants were not liable under the contract.

[COLERIDGE, J. But if the plea shews that the contract has been misconstrued in the declaration, does it not amount to non assumpsit? Be that as it may, however, there is no special demurrer to the plea here on the ground that it amounts to non assumpsit.]

But, secondly, the time for the delivery is not left at large by the terms of the contract, as stated in the declaration. The meaning of the word "forthwith" is "immediately," "as soon as possible." It was so held in Kenney v. Hutchinson, 6 M. & W. 134; in Simpson v. Henderson, Moo. & M. 300; and in Hyde v. Watts, 12 M. & W. 254.

Phipson, in reply. Supposing the argument true, that a plea may aver circumstances which tend to make the meaning of certain words in a contract certain, which would be otherwise uncertain, yet those must be circumstances which were in existence at the time of making the contract; they must not be, as here, subsequent circumstances. Here the plea attempts to ascertain the meaning of the contract by reference to subsequent events. That is illegal. Cur. adv. vult.

Ex parte Hulse.

PATTESON, J., now delivered the judgment of the court. We have considered this case and the authorities referred to on the argument, and are of opinion that, according to the statement of the contract in the declaration itself, the delivery of the goods was a condition precedent.

Every contract must be construed according to the intention of the parties, which, in the present case, the demurrer calls upon the court to ascertain. We think it manifest that, by the use of the word "forthwith," as to the delivery of the goods in connection with the payment in fourteen days, the parties intended that the goods should be delivered at some time within the fourteen days. Now, the declaration alleges a general performance by the plaintiffs; and that is sufficient on general demurrer, and must be taken to mean a delivery, or offer to deliver. It would be bad on special demurrer; but being good on general demurrer, it becomes a material allegation, and is traversable.

The plea has traversed it, and is good in that respect, without its being necessary for us to say how far the introductory matter of the plea could of itself have formed a sufficient answer to the declaration. Judgment for defendants.

Ex parte HULSE.1

Bail Court, June 5, 1851.

Articles of the Peace Reasonable Ground of Alarm- Threat of Violence if Exhibitant writes a Letter.

H. had written a letter to a young lady, a relative of T. T. afterwards, in consequence of his writing the letter, violently assaulted H. and said, "If you write again, I will flog you within an inch of your life." On a subsequent occasion, T. meeting H. said to him, "Remember what I said to you, I am determined to put a stop to your proceedings." The Court permitted H. to exhibit articles of the peace against T.

THIS was an application, on the part of a person named Hulse, to exhibit articles of the peace against W. J. Tollemache, Esq. The articles stated that Tollemache, who was a justice of the peace of the county of Chester, in April last entered a farm-yard where Hulse was, and said to him, "I told you that I would flog you;" and that he then struck Hulse several blows with such effect that he felled him to the ground, and struck him also as he was lying on the ground; that he then called Hulse a liar and a scoundrel, and told him that if he wrote again to Miss T. (a relation of the defendant's) he would flog him within an inch of his life. The exhibitant stated that he believed that the violent conduct of the defendant arose from the exhibitant having written a letter to Miss T., for whom he felt a strong attachment. He added that he had applied to justices of the peace, to bind the defendant over to keep the peace, but that they had refused the application.

121 Law J. Rep. (N. s.) M. C. 21.

Cooke v. Cunliffe.

June 3, 1851. Cleasby, in support of the application. The applicant is entitled to protection. He has reasonable ground to fear violence. [WIGHTMAN, J. A violent assault is committed in April, you do not apply until June.]

The exhibitant gave his instructions in April, but delay arose from his not being aware that it was necessary for him to swear to the articles in court, and thus he was unable to apply last term.

[WIGHTMAN, J. Does he state that since the assault he has written a letter, and therefore apprehends violence?]

No; but he states enough to justify the application. Regina v. Mallinson, 1 L. M. & P. 619; s. c. 20 Law J. Rep. (N. s.) M. C. 33; s. c. 1 Eng. Rep. 289.

[WIGHTMAN, J. You do not shew what has been the conduct of the defendant since the assault.]

It was thought not right to put upon the articles any thing that took place since the application to the justices, but additional misconduct of the defendant can be shewn.

The application was then withdrawn, and was now (June 4) renewed upon amended articles, which stated that, on the 13th of May, Tollemache met the exhibitant on the high road, and shook his whip at him in a threatening way, and said to him "Remember what I have said to you;" that the exhibitant asked him, whether he intended to beat the exhibitant's brains out, and that Tollemache replied that he meant to put a stop to his proceedings.

Cleasby. These amended articles shew clearly that there is reasonable ground for apprehending a breach of the peace if the exhibitant should think proper to write to the young lady. The court will prevent this.

WIGHTMAN, J. I think, under the circumstances, that you may exhibit the articles. I will consider whether I will order an attachment to issue.

On the following day,

WIGHTMAN, J., directed the attachment to issue.

Rule granted.

COOKE v. CUNLIFFE.1

June 3, 1851.

Power-Execution of- General Devise.

M. P., by her will, devised her manor of E. to B. C. for life, with remainder to F. C. (his wife) for life, and from and after the decease of the survivor to all and every the children of the said B. C. and F. C. for such estates and interests, and in such parts, shares and

121 Law J. Rep. (N. s.) Q. B. 30.