C. A. 1903 KRELL บ. HENRY. non-happening of the procession, to use the words of Sir James Hannen in Baily v. De Crespigny (1), was an event " of such a character that it cannot reasonably be supposed to have been in the contemplation of the contracting parties when the contract was made, and that they are not to be held bound by Williams L.J. general words which, though large enough to include, were not used with reference to the possibility of the particular contingency which afterwards happened." The test seems to be whether the event which causes the impossibility was or might have been anticipated and guarded against. It seems difficult to say, in a case where both parties anticipate the happening of an event, which anticipation is the foundation of the contract, that either party must be taken to have anticipated, and ought to have guarded against, the event which prevented the performance of the contract. In both Jackson v. Union Marine Insurance Co. (2) and Nickoll v. Ashton (3) the parties might have anticipated as a possibility that perils of the sea might delay the ship and frustrate the commercial venture in the former case the carriage of the goods to effect which the charterparty was entered into; in the latter case the sale of the goods which were to be shipped on the steamship which was delayed. But the Court held in the former case that the basis of the contract was that the ship would arrive in time to carry out the contemplated commercial venture, and in the latter that the steamship would arrive in time for the loading of the goods the subject of the sale. I wish to observe that cases of this sort are very different from cases where a contract or warranty or representation is implied, such as was implied in The Moorcock (4), and refused to be implied in Hamlyn v. Wood. (5) But The Moorcock (4) is of importance in the present case as shewing that whatever is the suggested implication—be it condition, as in this case, or warranty or representation-one must, in judging whether the implication ought to be made, look not only at the words of the contract, but also at the surrounding facts and the knowledge of the parties of those facts. There seems to me to be ample (1) L. R. 4 Q. B. 185. (2) (1873) L. R. 8 C. P. 572. (3) [1901] 2 K. B. 126. (5) [1891] 2 Q. B. 488. C. A. 1903 KRELL v. HENRY. Vaughan authority for this proposition. Thus in Jackson v. Union Marine Insurance Co. (1), in the Common Pleas, the question whether the object of the voyage had been frustrated by the delay of the ship was left as a question of fact to the jury, although there was nothing in the charterparty defining the time within which the charterers were to supply the cargo of Williams L.J.. iron rails for San Francisco, and nothing on the face of the charterparty to indicate the importance of time in the venture; and that was a case in which, as Bramwell B. points out in his judgment at p. 148, Taylor v. Caldwell (2) was a strong authority to support the conclusion arrived at in the judgment-that the ship not arriving in time for the voyage contemplated, but at such time as to frustrate the commercial venture, was not only a breach of the contract but discharged the charterer, though he had such an excuse that no action would lie. And, again, in Harris v. Dreesman (3) the vessel had to be loaded, as no particular time was mentioned, within a reasonable time; and, in judging of a reasonable time, the Court approved of evidence. being given that the defendants, the charterers, to the knowledge of the plaintiffs, had no control over the colliery from which both parties knew that the coal was to come; and that, although all that was said in the charterparty was that the vessel should proceed to Spital Tongue's Spout (the spout of the Spital Tongue's Colliery), and there take on board from the freighters. a full and complete cargo of coals, and five tons of coke, and although there was no evidence to prove any custom in the port as to loading vessels in turn. Again it was held in Mumford v. Gething (4) that, in construing a written contract of service under which A. was to enter the employ of B., oral evidence is admissible to shew in what capacity A. was to serve B. See also Price v. Mouat. (5) The rule seems to be that which is laid down in Taylor on Evidence, vol. ii. s. 1082: "It may be laid down as a broad and distinct rule of law that extrinsic evidence of every material fact which will enable the Court to ascertain the nature and qualities of the subjectmatter of the instrument, or, in other words, to identify the (1) L. R. 8 C. P. 572; (1874) 10 C. P. 125; 42 L. J. (C.P.) 284. (2) 3 B. & S. 826. (3) (1854) 23 L. J. (Ex.) 210. C. A. 1903 KRELL v. HENRY. Vaughan Williams L.J. persons and things to which the instrument refers, must of (1) (1859) 1 E. & E. 977, at p. 983. (3) 3 B. & S. 826. (4) (1867) L. R. 2 Ex. 311. In Taylor v. Caldwell (1) the subsequent impossibility does not affect rights already acquired, because the defendant had the whole of June 24 to pay the balance, and the public announcement that the coronation and processions would not take place on the proclaimed days was made early on the morning of the 24th, and no cause of action could accrue till the end of that day. I think this appeal ought to be dismissed. ROMER L.J. With some doubt I have also come to the conclusion that this case is governed by the principle on which Taylor v. Caldwell (1) was decided, and accordingly that the appeal must be dismissed. The doubt I have felt was whether the parties to the contract now before us could be said, under the circumstances, not to have had at all in their contemplation the risk that for some reason or other the coronation processions might not take place on the days fixed, or, if the processions took place, might not pass so as to be capable of being viewed from the rooms mentioned in the contract; and whether, under this contract, that risk was not undertaken by the defendant. But on the question of fact as to what was in the contemplation of the parties at the time, I do not think it right to differ from the conclusion arrived at by Vaughan Williams L.J., and (as I gather) also arrived at by my brother Stirling. This being so, I concur in the conclusions arrived at by Vaughan Williams L.J. in his judgment, and I do not desire to add anything to what he has said so fully and completely. STIRLING L.J. said he had had an opportunity of reading the judgment delivered by Vaughan Williams L.J., with which he entirely agreed. Though the case was one of very great difficulty, he thought it came within the principle of Taylor v. Caldwell. (1) Appeal dismissed. Solicitors: Cecil Bisgood; M. Grunebaum. NOTE. For other cases arising out of the postponement of the coronation, see the next following case; Elliott v. Crutchley, ante, p. 476, and Herne Bay Steam Boat Co. v. Hutton, ante, p. 683. C. A. 1903 KRELL V. HENRY. (1) 3 B. & S. 826. W. C. D. C. A. 1903 Oct. 29. [IN THE COURT OF APPEAL.] THE CIVIL SERVICE CO-OPERATIVE SOCIETY, LIMITED v. THE GENERAL STEAM NAVIGA- Costs-Discretion-Appeal-Trial by Judge without Jury-Order LXV., r. 1— By a charterparty dated March 22, 1902, the defendants agreed to let, and the plaintiffs agreed to hire, the defendants' steamer for the term of three days from the hour she was placed at the plaintiffs' disposal in London on the day preceding that of the naval review to be held at Spithead on the occasion of the King's coronation in June or July, 1902; the steamer was to take up passengers at London and Southampton, and proceed to Spithead, arriving in time for the review, and returning to London on the third day of the hiring; and the amount to be paid by the plaintiffs for the hire was a lump sum of 15007., payable “2507. on signing the charter, and the balance ten days before the date of the review." The usual exceptions from owners' liability in respect of perils of the seas, &c., were contained in the charterparty. The plaintiffs paid to the defendants 2507. on signing the charterparty, and the balance, 12507., on June 18, the review having in the meantime been fixed to take place on June 28. The review was, in consequence of the King's illness, postponed on June 25, and thereupon notice that the plaintiffs would not require the steamer was given by them to the defendants, and accordingly she was not placed at the plaintiffs' disposal. The defendants, before the postponement of the review, had incurred expenses amounting to 5007. in fitting out the steamer and in doing other things by way of part performance of the contract, or in order to enable them to perform it. The review was not held until the month of August, 1902, and the plaintiffs sued the defendants to recover the 1500l. as money paid on a consideration which had failed. At the trial before a judge alone, it appeared that there had been some negotiations for a settlement of the dispute, and the judge expressed his desire that the matter should be left to him to say what, under the circumstances and apart from the strict legal rights of the parties, should be done. The defendants would not agree to that course being taken, and they also declined to accept the judge's suggestion that they should be content to retain the amount of the expenses they had incurred and have their costs. In the result the judge gave judgment for the defendants, but ordered that each of the parties should bear their own. costs : Held, on an appeal by the plaintiffs from the judgment for the |