1805. MARTIN against SMITA. [ 564 ] Monday, July 1st. In declaring upon a con tract, not under of several dis tinct parts and collateral pro visions, it is sufficient to state so much of it as contains the entire con sideration for the act, and the entire act or duty which is to be done (including the any thing beyond this is merely evidence of title; which cannot be necessary to be stated. Lord ELLEN BOROUGH, C. J. then said, that the Court would give judgment nisi, &c. for the plaintiffs; and if any doubt occurred to them during the term, they would mention it; if not, the judgment would stand. Aud no further mention of the case being made, there was Judgment for the Plaintiffs. CLARKE against GRAY and Others. THESE were actions of assumpsit, in the common form, against common carriers, which were tried so long ago seal, consisting as the sittings after Easter term, 1802, when a verdict for 51. was taken in each, subject to be set aside and nonsuits entered, if the Court should be of opinion that the plaintiffs had not declared properly; and rules nisi were obtained for that purpose in Trinity term, 1802; and the cases were then shortly argued; the plaintiffs' counsel endeavouring to distinguish them from Yate v. Willan, 2 East, 128, or otherwise questioning the general opinion there delivered. The cases stood over for the opinion of the Court till the beginning of this term, when Lord Ellenborough, C. J. said, that as Mr. Justice Grose was not in court at the former argument, and as the Court entertained some doubt upon the of such consi- question, they wished to have it argued again; which was accordingly done on a former day in the course of the term by Marryat for the plaintiffs, and Holroyd for the defendants; but as the principal arguments and authorities cited were fully stated by the Court in the judgment afterwards delivered, they are omitted here, to avoid repetition. The only other cases not again noticed, which were mentioned at the conclusion of the argument, touching covenants time, manner, and other cir cumstances of its performance) in virtue deration, the breach of which act or duty is complained of; but such part of the contract which respects only the liquidation of damages after a right to them has accrued by a breach of the contract, is not necessary to be set forth in the declaration, but is only matter of evidence to be given to the jury in reduction of damages. Therefore assumpsit may be maintained in the common form of declaring against a carrier for the loss of geods, which were of above 51. value, and were not in fact paid for accordingly, although it were part of the contract proved hy general notice fixed up in the carrier's office, and presumed to be known and assented to by the plaintiff, that the carrier would not be accountable for more than 51. for goods, unless eutered as such, and paid for accordingly. secured pe 1805. CLARKE against GRAY and Others. secured by penalties, where the party had his option either to declare for the penalty, and forego the general covenant, or to forego the penalty and declare generally for the breach of covenant, and thereon recover more or less than the nalty according to the damage sustained, where Lowe V. [565] Peers, 4 Burr. 2228. White v. Sealy, Dougl. 49. Kerwin v. Blake, 14 Fin. Abr. 460, tit. Interest (E. 4), and in Dom. Proc. 2 Bro. P. C. 333. Lord Lonsdale v. Church, 2 Term Rep. 388. Tew v. The Earl of Winterton, 3 Bro. Ch. Cas. 489. Knight v. Maclean, ib. 496, and Wilde v. Clarkson, 6 Term Rep. 303: and a distinction was taken between simple bonds for the payment of money, where no more than the penalty could be recovered in damages; and collateral covenants for performance or payment generally, upon which the damages were only limited by the loss or injury sustained. Lord ELLENBOROUGH, C. J. On this day delivered the judgment of the Court. This was an action of assumpsit, brought against the defendants as proprietors of the True Briton stage coach, from London to Market-Harborough, to recover the value of goods belonging to the plaintiff, and sent with the plaintiff's wife as a passenger in that coach, and lost in the course of their conveyance. The declaration was in the usual form, against carriers for losses by. negligence. The loss was admitted. On the part of the defendants it was given in evidence, that they had for 12 or 14 years past given notice by a board on their coachoffice, hanging up over the place where the book-keeper sat, and where places for the coach were taken, parcels received, &c. as follows: "Take notice, that no more than 57. will be accounted for, for any goods or parcels delivered at this office, unless entered as such, and paid for accordingly." The goods lost were admitted to be above the value of 51.; and a verdict was taken for the plaintiff, subject to the question, Whether the special contract created by the terms of this notice, and by which the responsibility of the carriers was limited, so as not to exceed the sum of 5 l. unless where goods were entered and paid for as of an higher value, should have been stated in the declaration. It was contended on the authority of Yate v. Willan, 2 East, 128, that it should have been so stated. In that case there had existed in point of fact a similar notice [566] 1805. CLARKE against GRAY and Others. notice with the present, but it had not been stated in the declaration; which was framed as for a loss by negligence in the conveyance of the goods generally, in a manner similar to the present declaration; but the 57. having been in that case paid into court, the defendant was holden to have thereby admitted the contract to be as there laid; and the plaintiff's right therefore to recover the full value of the goods (not restrained by the notice which was holden to be excluded from the contract by the effect of paying money into court, which admitted the contract to be as stated in the declaration) was sustained. The present case having been argued some time ago, when my Brother Grose was absent, and the rest of the Court upon that argument, and a subsequent consideration of the subject, entertaining considerable doubts, directed it to be argued again this term, when the Court was full; and it bas accordingly been again argued. On the part of the plaintiff it is insisted that the provision "That no more than 57. should be accounted for, unless the goods were entered and paid for accordingly," amounts only to a limitation of the damages to be recovered in the event of a breach of the contract of carriage, and not to a qualification of the contract itself. On the part of the defendants it is insisted, that the provision in question is a limitation of the promise itself, and varies that responsibility for the entire value of the goods which the custom of the [567] realm, or the general undertaking to carry safely, stated in the declaration, would otherwise cast upon the carriers. That it is not to be considered as a distinct independent proviso, but as a term and qualification annexed to and making a part of the original contract of carriage itself. But if the obligation to carry safely do not depend on the question of compensation to be paid in case of loss, but be wholly collateral thereto; and if the contract for safe carriage be equally broken by the loss of the goods, whether the sum stipulated to be paid on that account be much or little, it cannot be said that such stipulation necessarily makes a part of the contract for safe carriage. Indeed, its operation and effect may be considered as only attaching and beginning after the question of safe carriage is at an end, by the breach of the contract made for that purpose. Its proper office is to limit the province of the jury in the assessment of damages 1805. CLARKE against GRAY and Others. damages for a contract broken, and of course has no con. cern with it as long as it is executory and in the course of its performance. It resembles, in some degree, the case of a covenant in a lease, not to plough ancient meadow or the like, followed by a proviso, that in case the same should be ploughed by the tenant thereof, he should pay a certain increased rent for the same. In such case it would certainly be in the option of the lessor to declare as for a breach of covenant not to plough, or the lessor may declare at once for a breach of covenant for not paying the stipulated satisfaction for such ploughing. Both the covenant and the proviso in that case form distinct substantive parts of the same lease, as the contract of carriage, and the limitation of the amount of damages to be paid, in case no entry of and payment for the goods have been made, do in this. It is no more necessary to state every part of an agreement not under seal, each part making a distinct contract, than it is of [568] an agreement under seal: it is sufficient in either case to state so much of each as constitutes that contract, the breach of which complained of prescribes the duty to be performed, and the time, manner, and other circumstances of its performance: with this difference only, that in the case of an agreement not under seal, the consideration must be stated, and no part of the entire consideration for any promise contained in the agreement can be omitted. In the present case, the entire consideration for the promise to carry safely, viz. the delivery of the goods to be carried for a reasonable reward to be therefore paid to the carriers, is stated. This is not like the cases in Godbolt, 154, and Aleyn, 5, to which we have been referred by the defendant's counsel, Those were cases where the defendant, in consideration of marriage, promised to do several things; for the nonperformance of one of which the plaintiff brought his action, and declared as for a promise to do one thing only, without mentioning the other things. In each case the Court was of opinion in favour of the defendant: in the case in Aleyn judgment was for the defendant, after a verdict for the plaintiff, "because the plaintiff ought to have set forth the whole promise which is entire:" and in the case in Godbolt the question seems to have arisen on the plea of non assumpsit, which the Court considered as a good bar; " for (as is there 1805. CLARKE against GRAY [569] there said) the contract being entire, if it be not a good plea, the defendant might be charged for the several things," &c. i. e. in several actions. In that case the and Others, marriage, and the several things agreed to be performed on account thereof, were respectively considerations for each other: the several things formed but one entire consideration in the whole for the marriage; and if all of them were not stated, the consideration on the one side would have been untruly, and therefore defectively stated. But here the li mitation of the carriers' responsibility is no part of the con sideration for their promise to carry safely; the reward agreed to be paid them being the sole consideration for such promise on their part. If the entry of the goods and the payment of a price for the carriage proportioned to their value were a part of the consideration for carriage, the nonentry- and non-payment might be pleaded in bar of the action to recover any damages for the loss of the goods: but if this proviso in favour of the carriers, instead of being given in evidence by them on the general issue, had been specially pleaded, it could not have been pleaded as a bar to the action generally, but only as against the plaintiff's recovering more than the sum of 57. on account of the goods being not specially entered and paid for according to their actual value. There are a great variety of agreements not under seal, containing detailed provisions, regulating prices of labour, rates of hire, times, and manner of performance, adjustment of differences, &c. which are every day declared upon in the general form of a count for work and labour: and yet, upon the principle contended for, every provision contained in such agreements, regulating the duties and limiting the responsibility of the parties in. particular events, ought to be stated. To what extent this would go, in declaring upon contracts of affreightment in the nature of charter-parties, but not being under seal, builders' contracts, and the like, will readily occur to all persons conversant in the drawing of pleadings at common law. It seems to us, therefore, that it is sufficient to state in the declaration so much of any contract, consisting of several distinct parts, and collateral provisions, as contains "the entire consideration for the act, and the entire act which is to be done in [ 570 ] |