Lovegrove v Nelson and Cox
| Jurisdiction | England & Wales |
| Judgment Date | 07 August 1834 |
| Date | 07 August 1834 |
| Court | High Court of Chancery |
English Reports Citation: 40 E.R. 1
HIGH COURT OF CHANCERY
S. C. 3 L. J. Ch. (N. S.), 108. Considered, Byrne v. Reid [1902], 2 Ch. 735.
Reports of CASES ARGUED and DETERMINED in the HIGH COURT OF CHANCERY, during the Time of LORD CHANCELLOR BROUGHAM and Sir JOHN LEACH, Master of the Rolls. 1834-35. By JAMES WM. MYLNE and BENJAMIN KEEN, Esqrs., BarrLsters-at-Law. 1837. Vol. III. [1] loveghove v. nelson and Cox. llolls. Jan. 23 ; L. C. June- 17, August 7, 1834. [S. C. 3 L. J. Ch. (N. S.), 108. Considered, Byrne, v. Rmd [1902], 2 Ch. 735.] By the terms of the articles of agreement usually entered into between the Postmaster-General and the persons supplying horses for the mail coaches, the Postmaster-General cannot exercise the power of nominating a new party to perform neglected duty, for which provision is made in the articles, without notice to all the parties to the agreement, who have the option of performing the neglected duty themselves. A bill for an account by a substituted party, of whose nomination the Postmaster-General had given no notice to one of the Defendants, an original contracting party, who was entitled to the option of performing the neglected duty himself, was therefore dismissed at the original hearing; but the decision was reversed upon appeal, upon the ground that, although no notice had been given by the Postmaster-General, the Defendant knew of the nomination of the Plaintiff, and that his conduct was. equivalent to a waiver of the option. By articles of agreement made the 5th day of July 1828, between the Defendant Kobert Nelson, coach proprietor, and the several other persons whose names were subscribed and seals affixed thereunto, of the one part, and William, Duke of Manchester, His Majesty's Postmaster-General, of the other part, Robert Nelson and the several other persons, subscribers thereto, did, for the considerations therein mentioned, severally and respectively, and for their several and respective heirs, executors, and administrators, covenant, contract, [2] and agree with the said William, Duke of Manchester, and with the Postmaster-General for the time being, and with each other, and with the executors and administrators of each other, that Robert Nelson, and the several other persons subscribers thereto, should and would, from the date thereof, daily in every week, convey from the General Post Office, London, to the post office at Stroud, and back, with the addition of twelve miles to and from Chalford and Wotton-under-Edge at the same mileage, viz., twopence halfpenny, His Majesty's mail of letters by the patent coaches then in use, and by such other carriages as the Postmaster-General should approve or direct to be made and built by such persons aa he should approve; and that they, the said Robert Nelson, and the several other persons subscribers thereto, should and would pay, or cause to be paid, by quarterly payments, unto such person or persons as the Postmaster-General should direct or approve to build and furnish such coaches or carriages, one penny halfpenny per mile C. xx.-1 2 LOVEGROVE V. NELSON S MY. & K. 3. for every mile both to and from the place and places before named; and that Robert Nelson, and the several other subscribers thereto should conform to and perform the several directions and agreements therein particularly mentioned. And in case any of the subscribing parties should die, become bankrupt, or insolvent, or by any breach of contract or neglect of duty induce the Postmaster-General to require his or her dismission (to do which, power was thereby given), that then the other parties, or one or more of them, should either work their, his, or her ground or admit some other person, to be approved by the Postmaster-General, to perform the work of the party dismissed or removed. But, in case any of the parties should neglect to comply therewith, and the Postmaster-General should be obliged to convey the mails at the public expense, that then he should and might retain, out of the payment thereinafter agreed to [3] be made, all such sums of money as he should so pay. And in consideration of the due performance of the premises by the said contracting parties, the said William, Duke of Manchester, did thereby covenant and agree to and with the said Robert Nelson and the other subscribers thereto, that he, tie said William, Duke of Manchester, or the Postmaster-General for the time being, should and would, out of the revenue of the post office, pay unto one of the said contracting parties, for the use of himself and the several other parties, by quarterly payments, twopence halfpenny per mile for every mile, both to and from which the said mails should be conveyed each journey ; and it was further agreed that the contract should remain in force until the 5th of July 1829, and from thence until three months' notice of quitting should be given in writing by either party to the other parties. This agreement was executed by the Defendants, Nelson and Cox, the words " to Benson," and " to Chalford," being added to their respective signatures ; it having been agreed between these parties that Nelson was to horse the mail from London to Benson, and Cox from Benson to Chalford. The Defendants continued to supply horses for the mail coach, for their respective destinations, according to the articles of agreement, until the month of June 1831; when Nelson, finding the portion of road between Maidenhead and Benson unprofitable, declined to supply horses farther than from London to Maidenhead ; and gave notice to the Postmaster-General for the time being of his intention to determine the agreement as to that portion of the road. The Postmaster-General thereupon entered into an agreement with the Plaintiff Richard Lovegrove, dated [4] the 8th day of June 1831, whereby, after reciting the articles of agreement of the 5th of July 1828, and that Robert Nelson had ceased to perform the work upon that part of the ground between Maidenhead and Benson, being a distance of twenty-one miles, and that the Postmaster-General had, pursuant to the power given by the said recited articles, approved of Richard Lovegrove as a proper person to perform such part of the duty ; and that the said Richard Lovegrove had thereupon consented to enter into this present contract with the Postmaster-General, it was witnessed that the said Richard Lovegrove, in consideration of the premises, did, for himself, his heirs, executors, and administrators, covenant and agree with the then Postmaster-General, and with the Postmaster-General for the time being, so long as the said recited contract should continue in force, that he, the said Richard Lovegrove, should and would well and truly observe, perform, accomplish, fulfil, and keep all and every the clauses, provisoes, articles, matters, and things contained in the said recited articles which, on the part of the said Robert Nelson, his heirs, executors, or administrators, so far as respected the portion of ground between Maidenhead and Benson, were or ought to be observed, performed, fulfilled, and kept, according to the true intent and meaning of the said articles, as fully arid effectually in every respect as if the said Richard Lovegrove had been a party to, and executed the said recited articles; and in consideration of the premises, the then Postmaster-General did thereby covenant and agree with the said Richard Lovegrove that he, or the Postmaster-General for the time being, should and would observe, perform, accomplish, fulfil, and keep all and every the clauses, provisoes, articles, matters, and things contained in the said recited articles. The Plaintiff, in pursuance of this agreement, horsed the mail for the portion of road between Maidenhead [5] and Benson from the date of the agreement until the 4th of April 1832, when the contract between the Postmaster-General and the Defendants was terminated. Nelson received from the Postmaster-General the allow- -3 MY. & K. 6. LOVEGROVE V. NELSON 3 auce for the conveyance of the mail from London to Stroud, and he kept the accounts of the receipts and disbursements, and the Plaintiff received his proportion of the profits of the concern, calculated according to the number of miles performed by him, from the date of his contract with the Postmaster-General to the 19th of November 1831. Upon the balance and settlement of the accounts on the termination of the contract, it appeared that a sum of 175 was due to the Plaintiff for his share of the profits. The Plaintiff being unable to obtain the payment of that sum from either of the Defendants, the bill was filed against them for an account of the concern from the time of the Plaintiffs agreement with the Postmaster-General, the Plaintiff insisting that by such agreement he became a partner in the concern, with the same rights as if he had been originally a party to the articles of agreement of July 182S. The Defendant Nelson admitted that, by the contract of July 1828, he had engaged to horse the mail from London to Benson, and he stated that the mode in which mail-coach contractors conducted their business was that different individuals engaged to horse the coach a certain number of miles, and that when the accounts of the earnings of...
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