Cort v Ambergate Railway

JurisdictionEngland & Wales
Judgment Date27 May 1851
Date27 May 1851
CourtCourt of the Queen's Bench

English Reports Citation: 117 E.R. 1229


Cort and Gee against The Ambergate, Nottingham and Boston and Eastern Junction Railway Company

S. C. 20 L. J. Q. B. 460; 15 Jur. 877. Applied, Byrne v. Van Tienhoven, 1880, 5 C. P. D. 350.

cort and gee against the amberoate, nottingham and boston and eastern junction eailway company. Tuesday, May 27th, 1851. On a contract for the manufacturing and supply of goods from time to time, to be paid for after delivery, if the purchaser, having accepted and paid for a portion of the goods, (a) Reported by C. Blackburn, Esq. See, as to inspection of the broker's, book, Browning v. 4ylwin, 7 B. & 0. 204, 1230 CORT V. THE AMBERGATE, ETC., RAILWAY COMPANY 17 Q. B. 128. gives notica to the vendor not to manufacture any more as the purchaser has no occasion for them and will not accept or pay for them, the vendor having been desirous and able to complete the supply, such vendor may, without manufacturing and tendering the rest of the gooda, maintain an action against the purchaser for breach of the contract. And proof of such notice by the purchaser will entitle the plaintiff to recover, on a count alleging that he was ready and willing to perform the contract, and that defendant refused to accept the residue of the goods, and prevented and discharged plaintiff from supplying them, and from further executing the contract. Such notice is a prevention, though there be no other act of obstruction. And it is a discharge, though given by a corporation without writing under seal, if it be given by their agent, appearing by the evidence to have acted with their authority, and to have represented them, in the transactions with the vendor. Where, by the terms of such a contract, the gooda were to be delivered at stated periods, but they were not all delivered at the respective times, the purchasers not countermanding them, but requesting, irom time to time, that the supply might be delayed, and finally the purchasers refused to accept any more : Held that damages might be given for the whole quantity remaining on hand, though consisting in part of quantities which, without being actually countermanded, had, by desire of the purchasers, been kept back at the times appointed for delivery. And that the jury were properly directed to give such damages as would leave the plaintiffs in the same situation as if the defendants had fulfilled their contract. [S. C. 20 L. J. Q. B. 460; 15 Jur. 877. Applied, Byrne v. Van Tienhoven, 1880, 5 C. P. D. 350.] Case. The declaration stated that, on 14th December, 1846, defendants, then being about constructing the above-named railway, required in that behalf, and advertised for, certain railway chairs to be supplied to them according to a certain specification then made and published by defendants, and containing and stating therein, &c. : the specification was then set [128] forth, describing the required make, weight and composition of the chairs, and that " the quantity of chairs required was to be 900 tons of joint and 3000 tons of intermediate chairs, and which were to be delivered at such placet and in such proportions as hereinafter described ; to wit to be delivered out of barges and placed upon a wharf at Kadcliffe upon Trent," &c. (other places of delivery for various quantities were then stated); in the month of February, A.D. 1847, 60 tons at the G-rantham Canal Wharf," &c. (naming quantities and places (a)), " in the month of March in the year aforesaid," &e. : the specification, as recited, then went on to require further deliveries at places and in quantities named, in April, and from thence monthly till November, 1847, inclusive, and again from January to May, 1848, inclusive. The tender was to state a price per ton ; payments to be made by the directors of the Company one month after delivery, on production of a certificate from the person appointed by the company to receive and inspect the chairs that the contract (for the portion) had been duly performed : the engineer to " have full power to alter the deliveries in any way or proportion to the different places before specified, by sending information to the contractor from time to time of the manner in whicb such deliveries were to be made" (b): the contractor to be paid according to the prices set forth in hia tender. The declaration then averred that plaintiffs, having notice of the premises, did thereupon afterwards, viz. on, [129] &c,, propose to defendants to supply them with 3900 tons of cast iron chairs manufactured from strong mixed iron, subject to the conditions and stipulations set forth in the said specification, and in such proportion of joint chairs to intermediate or single chairs as described therein as aforesaid, and also to deliver the same in such places and in such quantities as stated and described as aforesaid, free from every other charge, and at the rate, &c. (specifying the rates): and thereupon afterwards, viz. an 28th December, 1846, by a certain contract or memorandum of agreement then (a) The quantities were to be from 100 to 356 tons in the whole, per month : places of delivery, G-rantham Canal Wharf, Bottesford Wharf, RadclifFe Wharf, High Bridge Wharf, and Boston. (b) These words were taken nearly verbatim from the specification. 17 Q. B.130. COET V. THE AMBERGATE, ETC., RAILWAY COMPANY 1231 made between plaintiffs of the one part and defendants of the other part, and then sealed with the common seal of the defendants and delivered so sealed as aforesaid to the plaintiffs, and which, &c. (profert), it was agreed by and between plaintiffs and defendants that plaintiffs should and would execute and perform the said proposal according to the conditions and stipulations therein set forth and referred to as aforesaid, and subject to the said specification. And defendants did thereby agree to pay plaintiffs for the said chairs after the rate and in manner above mentioned. Averment that plaintiffs afterwards, viz. on, &c., and on divers other days, &c., did, in pursuance and part performance of the said contract on their part, deliver to defendants, and defendants did accept and receive of and from plaintiffs, 1787 tons of such chairs as aforesaid : and, although one month from the said respective deliveries of the said chairs had respectively elapsed before the commencement of this suit, and plaintiffs afterwards, and after the expiration of one month as aforesaid, and before the commencement of this suit, viz., &c. pro-[130]-duced such written certificates as aforesaid to the defendants in respect of the quantities of chairs so delivered as aforesaid, nevertheless defendants have not paid, &c., and a large sum, viz. 12,1001., is due and unpaid from them to plaintiffs for and in respect of the said chairs so delivered, &c. And plaintiffs further say that, although they were always, from the time of the making of the said contract until such refusal and wrongful discharge by defendants as hereinafter mentioned, and thence hitherto, ready and willing to execute and perform the said proposal according to the conditions and stipulations in that behalf aforesaid, and subject to the said specification, and to perform and fulfil the said contract in all things on their part and behalf to be performed and fulfilled, whereof, &c. (notice to defendants), and although defendants, in pursuance and part performance of the said contract on their part, have accepted and received of and from plaintiffs a certain quantity of the said chairs, to wit 1787 tons thereof, and although the time so limited and appointed for the execution and performance of the said contract by plaintiffs as aforesaid hath long since elapsed, nevertheless defendants afterwards, to wit during the time so limited and appointed for the execution and performance of the said contract by plaintiffs as aforesaid, to wit the 31st January 1848, wrongfully and injuriously and wholly refused, and have thence hitherto wholly refused, to accept or receive of or from plaintiffs the residue of the said cbairs so agreed to be supplied to and received by defendants as aforesaid, or any part thereof, according to the form and effect of the said contract or otherwise howsoever, and then and have thenee hitherto wholly and wrongfully prevented [131] and discharged...

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1 books & journal articles
    • Canada
    • University of Toronto Faculty of Law Review Vol. 77 No. 2, March 2019
    • 22 March 2019
    ...LTR 267, 38 TLR 349 (UK CA). (37) Jones v Barkley (1781), 99 ER 434, 2 Doug 684 (KBD). (38) Ibid at 694. (39) Cort v Ambergate Railway, [1851] 17 QB 127, 117 ER 1229 (40) Ibid at 144. (41) Dawson, supra note 34 at 243. (42) Swan, Adamski & Na, supra note 18. (43) Withers, supra note 8 a......

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