304 GRAVES V. LEGG 9 EX. 710.

GRAVES V. LEGG AND ANOTHER. May 9, 1854.—By a written agreement, the

plaintiff contracted to sell to the defendant from 300 to 350 bales of white-washed
Donskoy fleece wool, laid down at certain ports in England, "deliverable at
Odessa during August then next, to be shipped with all despatch, warranted fair
average quality; but should they prove otherwise, to be taken with a fair allow-
ance, to be assessed by Messrs. H. & R , subject to the safe arrival of the wool in
good condition at any of the ports stated, and the names of the vessels to be
declared as soon as the wools were shipped," &c.—To an action for the breach of
this contract, by not accepting the wools, the defendant pleaded, that the wools
were bought, with the knowledge of both parties, for the purpose of reselling
in the course of the defendant's business; that wool is an article of fluctuating
value, and not saleable until the names of the vessels in which it was shipped
should have been declared according to the contract; and that the plaintiff had
neglected to declare the names of the vessels in which the wools were shipped
until after an unreasonable time after they had been shipped:—Held, that the
provision in the contract, that the names of the vessels in which the wools were
shipped should be declared as soon as they had been shipped, was a condition
precedent to the defendant's obligation to accept and pay for them; and
consequently, that the plea was good.
[S. C. 2 C. L. R. 1266; 23 L. J. Ex. 228. See further, 11 Ex. 6 4 2 : affirmed,
1857, 2 H. & N. 210.]
The declaration stated, that it was on the 19th of May, 1853, through Messrs.
H. & R., brokers at Liverpool, agreed between the plaintiff and defendants in manner
following, that is to say, the plaintiff then agreed to sell to the defendants, and the
defendants to buy of the plaintiff, about 300 to 350 bales white-washed Donskoy
fleece wool, to arrive, at 10£d. per pound, laid down either at Liverpool, Hull, or
London, deliverable at Odessa during August then next, old style, to be shipped with
all despatch, warranted fair average quality; but should they prove other-[710]-wise,
to be taken with a fair allowance; which it was mutually agreed between buyer and
seller should be assessed by the said Messrs. H. & R., subject to the safe arrival of the
wool in good condition at any of the ports stated, and the names of the vessels to be
declared as soon as the wools were shipped; customary allowances, payment cash in
fourteen days, less \h per cent, discount from the date of finishing loading. Which
agreement being made, afterwards, the said wool, being 333 bales of wool of the
quality and description in the said agreement mentioned, was, during the said month
of August, old style, delivered, to wit, by the growers thereof at Odessa, to wit, to
the agents of the plaintiff in that behalf, and was with all despatch then shipped there
on board a certain vessel called the " Science," which said vessel then sailed from
Odessa with the said wool on board thereof, and afterwards, to wit, on the 22nd of
November, 1853, arrived at Liverpool with the said wool on board safe and in good
condition, and according to the terms of the said contract; and the plaintiff says, that
the defendants have had notice of all the said premises, and that a reasonable time for
the defendants to accept the said wools after the same arrived, and to fulfil their part
of the contract, and pay for the said wools, has long since elapsed; and that he, the
plaintiff, has at all times performed and fulfilled and been ready and willing to perform
and fulfil all conditions precedent to his right to have the said wools accepted and
paid for, and to his right to maintain this action. Yet the defendants would not at
any time accept nor pay for the said wools, or any part thereof.
Plea, that the defendants agreed with the plaintiff to buy the said wool in the
declaration mentioned for the purpose of reselling the same in the way of their, the
defendants', trade and business of wool dealers, and thereby acquiring gains and
profits. And further, that wool is an [711] article that fluctuates greatly in price in
the market; and that the defendants could only resell the said wool as aforesaid
when, and not before, the defendants had notice of the same being shipped, and when,
9 EX. 712. GRAVES V. LEGG 305

and not before, the name of the vessel in which it was so shipped had been declared,
according to the said contract in the declaration mentioned ; of all which premises the
plaintiff, at the time of the making of the said agreement, had notice; and further,
that, although the plaintiff had such notice, yet the plaintiff did not declare to the
defendants, or either of them, the name of the vessel in which the said wool was
shipped, or within the time at or within which he was by the agreement bound to
declare the same, that is to say, as soon as such wool was so shipped, but omitted so
to do, and delayed and omitted so to declare the name of the said vessel in which the
said wool was so shipped as in the said declaration mentioned, or to give the defendants
any notice of the same being so shipped, for a long and unreasonable time after the
same was so shipped; and the defendants had not notice of the shipment of the said
wool, or of the name of the vessel in which the same had been shipped, until after the
expiration of a long and unreasonable time after the same had been so shipped, and
after the plaintiff was bound and ought to have given and declared the same, and might
and could have done so ; and further, that, between the time when the name of the
said vessel ought to have been declared according to the said agreement in the said
declaration mentioned, and the time when it was first declared to the defendants, or
when they first had any notice of the said ship having sailed with the said wool on
board thereof, the price of wool in the market had greatly fallen, and the said wool
thence continually remained so fallen in price,, and the same, when the name of the
said vessel was first declared, and when the defendants first had notice or [712] know-
ledge of the same having been so shipped, would sell or could be sold only for a much
less sum of money than it would have done at the time when the plaintiff ought to and
could have declared the name of the said vessel, or given the defendants such notice
as aforesaid. Wherefore the defendants did not nor would accept or pay for the said
wool, as in the said declaration mentioned.
Demurrer, and joinder.
The case was argued in the present Term (May 3) by
Blackburn in support of the demurrer. The question is, whether, upon the true
construction of the contract set forth in the declaration, the neglect on the part of
the plaintiff to declare the names of the vessels in which the wools were shipped is a
defence to this action; in other words, whether such matter is a condition precedent
to the plaintiff's right of recovery. It is submitted that it is not. The principles upon
which the decision of the question must turn can scarcely be disputed. Those principles
are to be found in the notes to Pordage v. Cole, 1 Wms. Saund. p. 320 a., note (4); and
also in the notes to the case of Cutter v. Powell, 2 Smith's Leading Cases, p. 1. If the
matter goes to the very root of the contract, and is the pith and essence of it, such
matter must be held to be a condition precedent; but if the non-observance by the
plaintiff of that particular element of the contract may be compensated in damages,
it is not a condition precedent. The fact stated in the plea, that the price of wool had
fallen in the market, supports the plaintiffs construction of the contract, by shewing
that the neglect by him to declare the names of the vessels, by which omission the
defendants have sustained an injury, is capable of being compensated in damages.
[Parke, B. Could the plaintiff contend that shipping the wools with all dispatch is
not a condition precedent 1] That may be admitted [713] to be so, but the language
of the contract, in speaking of the matter in question, undergoes a change. The words
being " the names of the vessels to be declared as soon as the wools were shipped."
The shipping and delivery of the cargo is the substance and essence of the contract;
and, by the nature of the transaction, the names could not be declared at once, as the
advice would take time to arrive in this country. The time of the shipping of the
wools, may, therefore, be taken as a condition precedent; and the cases of Glaholm v.
Hays (2 M. & Gr. 257) and Ollive v. Booker (\ Exch. 416)seemto support that position ;
but the matter relied upon by the defendants cannot be so treated. [Parke, B., referred
to Ellen v. Topp (6 Exch. 424) as laying down the rule upon the question of conditions

C. E. Pollock contra. The question turns upon the construction of this particular
contract. The plea merely brings before the Court the materiality of this element of
it, by shewing that the parties to the contract understood the matter to be a condition
precedent, by stating the reason why the names of the vessels in which the wools should
be shipped were required to be declared. In putting an interpretation upon this con-
tract, the Court will no doubt act upon the principle expounded by Lord Kenyon, C. J.,
306 GRAVES V, LEGG 9 EX. 714.

in Porter v. Shepherd (6 T. K. 668), by holding " that conditions are to be construed to

be either precedent or subsequent, according to the fair intention of the parties to be
collected from the instrument; and that technical words, if there be any to encounter
such intention, should give way to that intention." If the shipping of the wools with
all dispatch, and their safe arrival, be conditions precedent, which they clearly are, the
stipulation that the names of the vessels are to be declared is one [714] also, inasmuch
as that stipulation forms part of the same sentence. The word " subject" overrides
the wliole clause. The plaintiff cannot rely upon the performance of any portion of
his part of the contrart to the benefit of the defendants, as was the case of Boone v.
Eyre (2 Bla. 1313), the reason being as stated in 1 Wins. Saund. 320 e., that, " where
a person has received a part of the consideration for which he entered into the agree-
ment, it would be unjust that, because he has not had the whole, he should therefore
be permitted to enjoy that part without either paying or doing anything for it.
Therefore the law obliges him to perform the agreement on his part, and leaves him
to his remedy to recover any damage he may have sustained in not having received
the whole consideration." If any portion of the wools had, on their arrival at the
port of destination, been accepted by the defendants, the case would have fallen under
.the above-mentioned principle. But that was not done. On the other hand, where
certain acts are to be performed on either side, and the contract remains open, and
the defendant has received no benefit under it, the plaintiff must shew that he has
performed all these acts on his part, which he was bound to perform, in order to
sustain the action. The plaintiff may have incurred a disadvantage in having shipped
the wools at Odessa, but the defendants have received no benefit therefrom. The
defendants, therefore, are in a position to insist upon the non-performance of this
condition precedent as an answer to this action.
Blackburn in reply. It is admitted that there has been no waiver on the part of
the defendants. In putting a construction upon the contract, the intention of the
parties at the time of making it ought alone to be con-[715]-sidered ; and consequently,
what takes place ex post facto ought to be rejected, except for the purpose of shewing
that the occurrence of what has happened might have been in the contemplation of
the parties at the time of making the contract. The fact that the wools might be
shipped in several vessels would go to shew that this matter was not a condition
precedent. If such was the intention of the parties, mere words ought not to over-
rule it: Fishmongers' Company v. Robertson (5 M. & Gr. 197), per Tindal, C. J., Kemble
v. Farren (6 Bing. 141), may be cited as one of those cases in which the Courts, in
putting a construction upon a written agreement, have held that mere words cannot
overrule the intention of the parties.
Cur. adv. vult.
The judgment of the Court was now delivered by
PARKE, B. The pleadings in this case are these (his Lordship stated them, and
proceeded):—The question raised by these pleadings is, whether the provision, that
the names of the vessels should be declared as soon as the wools were shipped, was
a condition precedent to the defendants' obligation to accept and pay for the wools
according to the contract stated in the declaration, and under the circumstances stated
in the plea.
This contract, we think, is to be construed with reference to some of those
circumstances. It is stated in the plea, that the wool was bought, with the knowledge
of both parties, for the purpose of re-selling it in the course of the defendants' business;
that it is an article of fluctuating value, and not saleable until the names of the vessels
in which it was shipped should have been declared according to the contract.
The declaration having averred, according to the 57th section of the Common
Law Procedure Act, the perform-[716]-ance of conditions precedent generally, the
defendant proceeds in this plea to specify this condition of declaring the names of the
vessels, as one on the breach of which he insists. The loss, which he avers to have
sustained by that breach is immaterial. The only question is, whether the performance
of the agreement was a condition precedent or not to the defendants' contract to
accept and pay for the goods.
In the numerous cases on the subject, in which it has been laid down that the
general rule is, to construe covenants and agreements to be dependent or independent
according to the intent and meaning of the parties to be collected from the instrument,
and of course to the circumstances legally admissible in evidence with reference to
9 EX. 717. 307

which it is to be construed, one particular rule well acknowledged is, that where a
covenant or agreement goes to part of the consideration on both sides, and may be
compensated in damages, it is an independent covenant or contract, and an action
might be brought for the breach of it without averring performance in the declaration,
under the old system of pleading; and under the new, the denial of such performance
would be bad; and the cases of Campbell v. Jones (6 T. R. 570) and Boone v. Eyre
(2 Black, Rep. 1312 and 1315) are instances of the application of the rule. But then
it appears, as Mr. Serjt. Williams observes in 1 Saund. 320 d. (and the Lord Chief
Baron, in delivering the judgment of this Court in Ellen v. 1'opp (6 Exch. 441), adopts
the observation), the reason of the decision in that and similar cases, besides the
inequality of damages, seems to be, that where a person has received part of the
consideration for which he entered into the agreement, it would be unjust, that,
because he had not the whole, he should therefore be permitted to enjoy that part
without either payment or doing anything for it. Therefore the law obliges him to
perform the agree-[717]-ment on his part, leaving him to his remedy to recover any
damage he may have sustained in not having received the whole consideration.
Mr. Serjt. Williams goes on to observe, that it must appear upon the record that the
consideration was executed in part. This may appear by the instrument declared
on itself, whereby a valuable right, part of the consideration, is conveyed, as in
Campbell v. Jones, or Boone v. Eyre, or by averment in pleading. When that appears, it
is no longer competent for the defendant to insist upon the non-performance of that
which was originally a condition precedent; and this is more correctly expressed, than
to say it was not a condition precedent at all.
In this case, if the stipulation, that the names of the vessels should be stated as
soon as the wools were shipped, was originally a condition precedent, it is so still. No
other benefit was taken under the contract itself, as the consideration for the promise
to pay the money, than the shipment and delivery of the goods by the named vessels ;
nor was any subsequently received by the acceptance of the goods or any part thereof.
After such acceptance, the defendants would have been bound to pay the price, or
the residue of it, and could not have insisted on the neglect to name in due time, but,
if there had been any such neglect, would nevertheless have had their remedy for
the damage by cross action on the contract to declare the names. In the state of
things on this record, the simple question is, whether this contract was originally a
condition precedent or not. Looking at the nature of the contract, and the great
importance of it to the object with which the contract was entered into with the
knowledge of both parties, we think it was a condition precedent, quite as much,
indeed, as the shipping of the goods at Odessa with all dispatch after the end of
August. And with respect to the shipment itself, Mr. Blackburn did not venture to
contend [718] that the performance of the plaintiffs contract in that respect was not
a condition precedent.
The defendants, therefore, have a right to object to fulfil the contract on their part,
as the plaintiff did not fulfil his, though they could no longer object to the plaintiff's
non-performance, had they afterwards taken any benefit under the contract.
Judgment for the defendants.