Atkinson v Ritchie
| Jurisdiction | England & Wales |
| Judgment Date | 09 February 1809 |
| Date | 09 February 1809 |
| Court | Court of the King's Bench |
English Reports Citation: 103 E.R. 877
IN THE COURT OF KING'S BENCH.
Referred to, The Teutonia, 1871-72, L. R. 3 A. & E. 412; 4 P. C. 171; Jacobs v. Credit Lyonnais, 1884, 12 Q. B. D. 603.
10 EAST, 531. ATKINSON V. RITCHIE 877 atkinson against ritchie. Thursday, Feb. 9th, 1809. The master and the freighter of a vessel of 400 tons having mutually agreed in writing, that the ship, being fitted for the voyage, should proceed to St. Petersburgh, and there load from the freighter's factor a complete cargo of hemp, and iron, and proceed therewith to London, and deliver the same, on being paid freight, &c. Held that the master, after taking in at St. P. about half a cargo, having sailed away upon a general rumour of a hostile embargo being laid on British ships by the Eussian Government, was liable in damages to the freighter for the short delivery .of the cargo ; though the jury found that he acted bong, fide, and under a reasonable and well-grounded apprehension at the time; and a hostile embargo and seizure was in fact laid on six weeks afterwards. [Eeferred to, The Teutonia, 1871-72, L. E. 3 A. & E. 412; 4 P. C. 171; Jacobs v. Credit Lyonnais, 1884, 12 Q. B. D. 603.] , The plaintiff declared specially in assumpsit against the defendant for breach of an agreement, in not loading a complete cargo of hemp, under the same circumstances before set forth in the case of Ritchie v. Atkinson (a); with counts for money paid and on an account stated : to which the defendant pleaded the general issue. And at the trial before Lord Ellenborough C.J. at Guildhall, [531] a verdict was taken for the plaintiff for 20001. damages, subject to an award as to their amount, and to the opinion of the Court upon a special case, stating all the circumstances set forth in the former report. This case was argued in the last time by Taddy for the plaintiff, and by Littledale for the defendant. I was not present when it was argued; but I collected afterwards the substance of the argument to be this. For the plaintiff, the freighter, it was contended, that the contract not having been performed by the defendant, the master of the ship, it lay upon him to shew either a discharge by the plaintiff from performance of it, or a competent excuse for non-performance. A contract is to be enforced according to its terms, where no general principle of law intervenes to prohibit the execution of it. The vis major et casus fortuitus of the civil law are not recognized by our law as...
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...must be performed however impossible and for this proposition quoted the well-known dicta in Paradine v. Jane (1647), Aleyn 26 and in Atkinson v. Ritchie (1809) 10 East 530. I do not think this principle was universally applicable, even when these cases were decided. Moreover, neither Parad......
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... ... accident by inevitable necessity, because he might have provided against it by his contract.” It was emphasized by Lord Ellenborough in Atkinson v. Ritchie F24 , where he said: “No exception (of a private nature at least) which is not contained in the contract itself, can be engrafted upon ... ...
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Frustration
...(1673), 2 Wms Saund 420, 85 ER 1233 (KB); Hadley v Clark (1799), 8 TR 259, 101 ER 1377 (KB); Atkinson v Ritchie (1809), 10 East 530, 103 ER 877 (KB). 10 Above note 8 at 27 (Aleyn). 11 Ibid . 12 Hyde v Dean of Windsor (1597), Cro Eliz 552, 78 ER 798. 13 Abbot of Westminster v Clerke (1536–37......