Macintosh v The Midland Counties Railway Company
| Jurisdiction | England & Wales |
| Judgment Date | 09 July 1845 |
| Date | 09 July 1845 |
| Court | Exchequer |
English Reports Citation: 153 E.R. 592
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 3 Railw. Cas. 780; 14 L. J. Ex. 338.
[548J macintosh v. Tint midland countiks railway companv. July 9, {845.-In 4" action of debt to recover a sum of money under two deeds of qovenaut, the declaration alleged, that, by an indenture of the 19th of December, 1837, in consideration of the sum of 258,6291. 10s. 6d., the plaintiff covenanted with the defendants to make and complete a certain portion of a certain railway, and to provide bars or rails and chairs, on or before the 1st of May, 1840; that afterwards, by another indenture of the 23rd of March, 1839, in consideration of the further sum of £15,000, the plaintiff covenanted with the defendants, that he, the plaintiff, being provided by them with railway bars or rails and chairs for temporary and permanent use, would complete the said portion of the said railway, and the line of the permanent railway, on or before the 1st of June, 1840; provided, that, if the said plaintiff should not complete the said railway by the said 1st of June, 1840, he should pay to the said defendants the sum of .£300 for the said 1st of June, and the like sum for every succeeding day, until ,14 M. fcW.549. MACINTOSH ?'. THE MLDLAND COUNTIES RLY. CO. 593 the whole should h;ive been completed, but so that the total amount to become forfeiteible should not exceed the sura of £15,000. I3reiu;h, that the defendants detained from, and did not pay the plaintiff u, large sum, to wit, =£20,000, parcel of the sum due to the plaintiff. Plea, as to £7500, parcel of the said sum of £20,000, that the said sum of .£7500 is parcel of the said sum of £15,000 agreed to be retained by the defendants; that the plaintiff did not complete the said railway on or before the 1st of June, 1840, nor until twenty four days after, whereby the plaintiff then became liable to pay to the said defendants the sum of £300 for the 1st day of June, and the like sum for every such succeeding twenty-four days during which the railway remained incomplete, by reason of which the defendants deducted and retained the said sum of £7500 out of the monies payable by them to the plaintiff.-Replication, that the plaintiff did not become nor was liable to pay the defendants, modo et forma. At the trial, it was proved that the plaintiff did not finish the railway until twenty-four days after the 1st of June, but that the defendants had not provided the plaintiff with the bars, rails, and chairs in sufficient quantity to enable him to complete it by that day. The learned judge told the jury that the defendants were bound, as a condition precedent to their right to deduct the £7500, to furnish the plaintiff with such bars, rails, and chairs :-Held, that that was a misdirection ; that the covenants were independent; and that the furnishing of the bars, rails, and chairs wag not a condition precedent to the right of the defendants to make the deduction ; and that, the only question being whether the railway was completed ou the 1st of June, the plea was established. [S. C. 3 Eailw. Gas. 780; 14 L. J. Ex. 338.] Debt. The declaration stated, that heretofore, to wit, on the 19th of December, 1837, by an indenture then made between the said Company of the one part, and the plaintiff of the other part, after reciting (inter alia) that the said Company had, under the powers of their act of Parliament, determined to make a railway, commencing in Rugby, in the county of Warwick, and terminating in the township of Long Eaton, in the county of Derby ; and that the plaintiff was willing to contract with the Company to execute the works described in certain specifications, &c. of the engineer of the Company, &e.; and that the Company had agreed to advance to the plaintiff, from time to time during the progress of the works so contracted to be executed by him, suma of money by way of instalments upon account of and in part p?,yment for the works, then actually done and executed by him, &c., such execution to [549] be certified by the resident engineer of the Company for the time being ; and that, upon completion by him of the works so to be executed, and upon the maintenance thereof ; by him for one year, such completion and maintenance also to be certified as thereinafter mentioned, he the plaintiff' was to receive the remainder of the monies due to him upon the said contract: It was witnessed, that, in consideration of 258,6291. | 10s. 6d,, agreed to be paid by the said Company in manner thereinafter mentioned, '' he the pUJiritiff coveuanted^with the said Company and their successors to make and ; complete & portion of the said railway, (therein particularly described), and to provide (inter aliaj) all such railway bars or raila and ohairs as might be necessary for temporary use in the construction of the works, except such railway bars or rails and chtirs as were thereinafter...
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Neale against Ratcliff and Another
...upon, among other authorities, in note (4) to Pordage v. Cole (1 Wms. Saund. 320 a.). In Macintosh v. Midland Counties Railway Company (14 M. & W. 548), the plaintiff had covenanted to complete part of a railway within a certain time for a specified sum, he being provided by the defendants ......
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...Co. v. M'George, Cowan, & Galloway, Feb. 25, 1886, 13 R. 609. 3 Cf. Mackintosh v. Midland Counties Railway Co., July 9, 1845, 14 Meeson & Welsby, 548; Dick & Stevenson v. Mackay, May 21, 1880, 7 R. 788, affd.H. L., 8 R. ...
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...see Winstone v Linn (1823) 1 B & C 460; 107 ER 171, 175 (Best J); Macintosh v Midland Counties Railway Co (1845) 14 M & W 548; 153 ER 592, 597 (Alderson B); London Gas-Light Co v Vestry of Chelsea (1860) 8 CB NS 215; 141 ER 1148, 1157 (Erle CJ); Fearon v Earl of Aylesford (1884) 14 ......