Bills and to deliver up a written instrument to another, he is bound to deliver CH.XXII. s. 2. up such instrument, in the same condition in which it was at the Performance (Mode). time he contracted to deliver it (e). So, where there was an agreement to deliver up certain bills of exchange,-which were foreign notes. bills, drawn in sets of three; it was held that this agreement was not performed, by the delivery up of one part of each of the bills in question (f). So, an agreement to pay a sum of money by promissory notes, is not performed by merely giving the notes, if they be not paid when due (g). A contract by lessee to insure in the names of the lessors is not performed by insuring in their names and his own jointly (h); nor a contract by a lessee, to insure in the joint names of the lessor and himself, by the lessee insuring in his own name only (i); but a contract by a lessee, to insure in the joint names of the lessor and himself, is well performed by his insuring in the name of the lessor only (k). When there are several ways in which the contract may be Where conperformed, that one is generally adopted which is the least tract may be performed in profitable to the plaintiff, and the least burthensome to the several ways. defendant (1). 66 the alternative. When a contract is in the alternative,—as that the promiser Contract in shall do a certain act on the 1st of January, or the 1st of February; or shall "pay a sum of money, or deliver a horse to the promisee;" the right to elect the mode of performance is impliedly vested in the promiser (m),—the rule being, that "in case an election be given of two several things, always he that is the first agent, and which ought to do the first act, shall have the election" (n). Thus, if A. agree to re-invest a sum in Consols, in the name of B., charging the Stock at a certain price; or to pay the sum in bank notes, on B. giving A. six months' notice; it is in the election of B., whether he will have the money re-invested, or paid in bank notes (o). (e) Richardson v. Barnes (1849), 4 Exch. 128, 132. (f) Kearney v. West Canada, Gold, dc., Co. (1856), 1 H. & N. 412. (g) Dixson v. Holroyd (1857), 7 E. & B. 903. (h) Penniall v. Harborne (1848), 11 Q. B. 368. (i) Doe d. Muston v. Gladwin (1845), 6 Q. B. 953. (k) Per Wood, V.-C., Havens v. Middleton (1853), 22 L. J., Ch. 746. (2) Per Maule, J., Cockburn v. Alexander (1848), 6 C. B. 791, 814. (m) Per Lord Mansfield, C. J., Layton v. Pearce (1778), 1 Dougl. 15, 16. (n) Co. Litt. 145 a; and see Reed v. A Kilburn Co-operative Society (1875), L. R., (0) Chippendale v. Thurston (1829), 4 C. & P. 98. CH. XXII.S. 2. And if one branch of the alternative cannot be performed, the Performance promiser is bound to perform the other (p). (Mode). Election. But if the promiser once make his election, he is absolutely bound thereby (q). And where rent was reserved by agreement, "to be paid quarterly, or half-quarterly if required;" and the landlord received such rent quarterly for a twelvemonth; the Court seemed to incline to the opinion, that he had made his election as to the period of payment, and that, therefore, he could not, without notice, distrain for a half-quarter's rent (r). When it is to SECT. 3.-Time of Performance of Contract. Where a party to a contract undertakes to do some particular be performed. act, the performance of which depends entirely on himself, and the contract is silent as to the time of performance; the law implies an engagement that it shall be executed within a reasonable time, looking at all the circumstances of the case (s). Thus, where, by the terms of a charter-party, the cargo was "to be discharged with all dispatch according to the custom of the port" of discharge; it was held by the House of Lords that this bound the charterer, to discharge the cargo within a reasonable time, regard being had to every impediment arising out of the custom or practice of the particular port, which the charterer could not have overcome by the use of reasonable diligence (t); and the principle of this case, in which the impediment arose from insufficiency of lighters, was afterwards applied by the Court of Appeal to a case where it arose from a strike of dock labourers (u). Duration of contract. But where the act to be done is one in which both parties to the contract are to concur, the implied engagement is, not that the act shall be done within either a fixed or a reasonable time, but that each shall use due diligence in performing his part (x). And an agreement on the face of it indefinite in time is primâ facie perpetual (y). (p) See per Parke, B., Stevens v. Webb (1835), 7 C. & P. 60, 62. (q) Brown v. Royal Insurance Society (1859), 1 E. & E. 853; 28 L. J., Q. B. 275; Gath v. Lees (1865), 3 H. & C. 558; Co. Litt. 146 a. (r) Mallam v. Arden (1833), 10 Bing. 299. (8) Per Lord Blackburn, in Postlethwaite v. Freeland, infra; Hick v. Raymond, [1893] A. C. 22. (t) Postlethwaite v. Freeland (1880), 5 App. Cas. 599; 49 L. J., Ex. D. 630; affirming both the judgments below; and (per Lord Herschell in Hick v. Raymond) not really conflicting with Wright v. New Zealand Shipping Co. (1879), 4 Ex. D. 165, C. A. (u) Castlegate Steamship Co. v. Demp sey, [1892] 1 Q. B. 854, C. A., reversing the judgment of Wright, J. (x) Ford v. Cotesworth (1868), L. R., 4 Q. B. 127. (y) Llanelly Rail. Co. v. London & North Western Rail. Co. (1875), L. R., 7 H. L. 550. Performance (Time). "Directly." And where a contract is to be performed "directly," this does CH.XXII. §. 3. not mean "within a reasonable time," but " speedily," or "as soon as possible" (z). And so, a contract by a manufacturer to furnish certain specified goods "as soon as possible," means that 66 As soon as he is to furnish them within a reasonable time, that is, within possible." such a time as would be sufficient to enable a person who had all the necessary appliances, to execute the contract, regard being had to the other contracts he may already have in hand (a). So, where the contract was, to sell certain goods to the defen- "Forthwith." dants, "the said goods to be delivered forthwith, and the price to be paid by the defendants, in cash, in fourteen days from the time of the making of the said contract; it was held that, by the use of the word "forthwith," in connection with the payment in fourteen days, it was manifest that the parties intended the goods to be delivered at some time within the fourteen days (b). Where a contract is to be performed within or at the expiration "Month." of a month, the general presumption of law is, that the parties meant a lunar, not a calendar month (c). But if the context shows that a calendar month was intended, the Court may adopt that construction (d). And, in like manner, the circumstances in which the contract was made, or proof of some custom in the place where, or in the trade with reference to which it was made, may rebut the presumption, and show that a calendar month was intended (e). In the case of bills of exchange, cheques on bankers, and promissory notes, however, the word "month" is understood to mean calendar month " (ƒ), as it is in statutes. 66 Where, by the contract, a party is to have so many days for Days. doing an act,-e.g., where the charterer of a ship is allowed by the charter-party, so many "running days" for loading the ship,-the days mean consecutive days, including Sundays, unless there be a custom to the contrary (g). But where the context shows that working days were intended, Sundays will be excluded (h). Delivery of goods must be made at a reasonable hour, and what Hour for is a reasonable hour is a question of fact (i). goods. (z) Duncan v. Topham (1849), 8 C. B. 225, and see ante, p. 115. (a) See Hydraulic Engineering Co. v. McHaffie (1879), 4 Q. B. D. 670, C. A.; Attwood v. Emery (1856), 1 C. B., N. S. 110, 115. (b) Staunton v. Wood (1851), 16 Q. B. 638. (c) Per Cur., Simpson v. Margitson (1847), 11 Q. B. 23, 31. (d) Simpson v. Margitson (1847), 11 Q. B. 23; Lang v. Gale (1813), 1 M. & S. 111. (e) Per Lord Denman, C. J., Simpson v. Margitson (1847), 11 Q. B. 23, 32. C.C. R R CH. XXII. s. 3. (Time). Expressions relating to time, in instruments relating to contracts Performance which are to be performed in Great Britain, are to be taken, by the Statutes Definition of Time Act, 1880, 43 & 44 Vict. c. 9, to refer to Greenwich mean time, and in the case of contracts to be performed in Ireland, to Dublin mean time; but this provision applies to written contracts only. "Greenwich mean time." Calculation of time. Hour for delivery of goods. Exclusion of day of date. Performance on the day. Right to per be waived. Where the time is to be computed from an act to be done, the mode of calculating the time must depend on the circumstances of the particular contract (j). But unless the act to be done is one to which the party to be affected by the computation is party or privy, the day of doing the act is to be excluded (k). So, where a contract is to be performed within a certain time after the date, or day of the date, it seems that the day of the date is to be excluded (1). And where goods were sold "to be paid for in two months; it was held that the vendee was to have two entire months in which to make the payment exclusive of the day of sale (m). Where the performance is to take place at a certain time,-e.g., one month, from the date of the agreement, and there is a possible date, it must be executed accordingly; and the month shall not be computed from the making of the contract, although part of the month had elapsed at the time the agreement was entered into. But if, in such a case, the whole of the month had elapsed when the agreement was made, it shall be intended that the parties meant the act to be done within a month from the actual making of the agreement. And so, the word "one month from the making hereof," or "from henceforth," in a contract, impliedly signify one month from the actual execution, and not one month from the date of the contract (n). An agreement to pay a sum of money "on the 29th day of February now next ensuing," has been held to create an obligation to pay, on the 29th of February in the leap-year next after the date of the agreement (o). But still, the right to insist upon such strict performance may formance may be waived, if the party, on being informed that the contract cannot conveniently be performed until a future day, do not object to that day being substituted as the time for its completion (p); though it (j) Per Grant, M. R., Lester v. Garland (1808), 15 Ves. 248; 10 R. R. 68; Wilkinson v. Gaston (1846), 9 Q. B. 137, 144. (k) Lester v. Garland (1808), 15 Ves. 248; per Parke, B., Webb v. Fairmaner (1838), 3 M. & W. 473, 476; per Lord Tenterden, C. J., Pellew v. The Inhabi tants of Wonford (1829), 9 B. & C. 134. (1) Id.; Pugh v. Duke of Leeds (1777), 2 Cowp. 714; Watson v. Pears (1809), 2 Camp. 294; 11 R. R. 712. (m) Webb v. Fairmaner (1838), 3 M. & W. 473. (n) See per Bayley, J., Styles v. Wardle (1825), 4 B. & C. 908. (0) Chapman v. Beecham (1842), 3 Q. B. 723, 733. (p) Carpenter v. Blandford (1828), 8 B. & C. 575; and see Albert v. Grosvenor Investment Co. (1867), L. R., 3 Q. B. 123. (Time). must be borne in mind that as regards contracts required by law to CH. XXII. s. 3. be in writing, any alteration in the time of performing the contract, Performance which is made at the instance of the seller, must likewise be in writing (q). which a sued before And there are cases in which, although the contract appoints a Cases in future time for doing an act, the party who is to perform it may, party may be even before the arrival of that time, subject himself to an action, by the day. disabling himself from fulfilling his contract. Thus, where a party Ford v. who has agreed to convey an estate at a future day, disables himself Tiley. from making that estate, by executing, before the day, a conveyance inconsistent therewith; he commits a breach of his agreement, for which the other contracting party may at once bring his action (r). And so, where the plaintiff declared on a contract by the defendant, to assign to the plaintiff all his interest in a term of years then held by him, on payment by the plaintiff, within seven years from a day named, of 140l.; and the breach was, that before the seven years had expired, the defendant assigned all his interest to a stranger it was held, on demurrer, that-the effect of the contract being, to bind the defendant to assign to the plaintiff at any time within the seven years, if called upon so to do, the breach, as laid, showed a good cause of action, the defendant having incapacitated himself from performing his contract (s). before the So if, before the time for performing the contract arrives, the Renunciation promiser expressly renounce the contract, the promisee may treat day; and see this as a breach of such contract, and may at once maintain an post, p. 618. action in respect thereof (t). But where the promisee has this Hochster v. option, he is bound to exercise it; and he cannot treat the renunciation as a breach if, after such renunciation, he insist upon holding the promiser to the prospective performance of his contract (u). (q) See Noble v. Ward (1867), L. R., 2 Ex. 135, Ex. Ch. (r) 1 Roll. Abr. 248, pl. 1; 8 Vin. Abr. 225; Ford v. Tiley (1827), 6 B. & C. 325, 327; and see Co. Litt. 221 b. (s) Lovelock v. Franklyn (1846), 8 Q. B. 371. In that case, p. 378, Lord Denman, C. J., said that the result of the authorities on this point was, that if an act is to be performed at a future specified time, the contract is not broken by the doing of something, which may merely prevent the performance thereof in the meantime. But in Roll. Abr. 248, pl. 1, it is said, that if "a day be limited to perform a condition, if the obligor once disables himself to perform it, though he be enabled again before the day, yet the condition is broken;" and this opinion (t) Hochster v. De la Tour (1853), 2 As to what repudiation amounts to a breach of the contract allowing the other party to sue, see Johnstone v. Milling (1886), 16 Q. B. D. 460, C. A., and p. 618, post. (u) Avery v. Bowden (1855), 5 E. & B. 714. De la Tour. |