Mackay v Dick and Stevenson

JurisdictionEngland & Wales
Judgment Date07 March 1881
Judgment citation (vLex)[1881] UKHL J0307-3
CourtHouse of Lords
Docket NumberNo. 4.,No. 134.
Date07 March 1881

[1881] UKHL J0307-3

House of Lords

Mackay
and
Dick and Stevenson.
1

Whereas Monday the 31st day of January last was appointed for hearing Counsel upon the Petition and Appeal of John Mackay, Railway Contractor, residing at Newmains, near Wishaw, praying, That the matter of the Interlocutors set forth in the Schedule thereto, namely, an Interlocutor of the Lords of Session in Scotland, of the First Division, of the 21st of May 1880, so far as regards the words "Recal the Interlocutor of the Sheriff, of date 2d December 1879," and also the words "Find that it was impossible that the machine should have the stipulated fair trial, unless the defender provided a properly opened-up face at the said Carfin cutting: Find that the defender failed to provide such properly opened-up face, notwithstanding repeated demands on the part of the pursuers, and thus prevented the machine from being tested in the manner provided by the contract: Find that the defender has failed to prove that the pursuers agreed to substitute for the Carfin cutting any other cutting as the place for the trial of the said machine: Therefore repel the defences, and decern against the defender to pay to the pursuers the sum of 1,115 l., with the interest prayed for, in terms of the Petition: Find the pursuers entitled to expenses in both Courts, but subject to deduction of the expense of the conjunct probation, which was incompetent, and ought not to have been admitted; and remit to the Auditor to tax the account, or accounts, of said expenses, and to report," and also an Interlocutor of the said Lords of Session there, of the First Division, of the 17th of July 1880, might be reviewed before Her Majesty the Queen in Her Court of Parliament, and that the said Interlocutors, so far as aforesaid, might be reversed, varied, or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament might seem meet; as also upon the printed Case of Dick and Stevenson, Engineers in Airdrie, lodged in answer to the said Appeal; and whereas, by an Order of this House of the 26th day of August last, the matter of the competency of the said Appeal was, on the Respondents' Petition, reserved to the hearing of the Appeal at the Bar; and whereas Counsel were heard, as well on Monday the 31st day of January last as Tuesday the 1st and Thursday the 3d days of February last, upon the Question of the...

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197 cases
  • Kallang Shipping SA Panama v Axa Assurances Senegal (The Kallang), (Kallang, The)
    • United Kingdom
    • Queen's Bench Division (Commercial Court)
    • 19 November 2008
    ...a term to prevent a contractual party from effectively negating its express bargain. He cited the famous dictum of Lord Blackburn in Mackay v. Dick (1881) 6 App Cas 251, 263: “I think I may safely say, as a general rule, that where in a written contract it appears that both parties have ag......
  • Antclizo Shipping Corporation v Food Corporation of India (No. 2)
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 18 February 1992
    ... ... 53 This case is founded on what is often referred to as the principle in McKay v. Dick [1881] 6 AC 251 ... That principle was recently applied in Alghussein v. Eton College [1988] 1 ... ...
  • Sociedad Financiera de Bienes Raices S.A. v Agrimpex Hungarian Trading Company for Agricultural Products; The Aello
    • United Kingdom
    • House of Lords
    • 2 June 1960
    ...that the breach of the charterer's obligations was a matter of defence as well as of counterclaim on the principle referred to in Mackay v. Dick and Another (1881) 6 A.C. 251, that a party may be precluded from relying on the other party's failure to perform some act, when that failure resu......
  • Ouais Group Engineering & Contracting v Saipem Spa and Others
    • United Kingdom
    • Queen's Bench Division (Commercial Court)
    • 26 March 2013
    ...into the closeout agreement a duty to co-operate of the kind which has been recognised in a number of cases of which the leading case is Mackay v Dick [1881] 6 App Cas 251: an implied term which required Saipem to co-operate in order to enable OGEC to provide the new guarantee without havi......
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1 books & journal articles
  • Franchising and the quest for the holy grail: good faith or good intentions?
    • Australia
    • Melbourne University Law Review Vol. 33 No. 2, August 2009
    • 1 August 2009
    ...and Ipp JJA, 20 February 2004) [191] (Giles JA). (63) See Peden, Good Faith in the Performance of Contracts, above n 61, 139-41. (64) (1881) 6 App Cas 251, (65) (1896) 7 QLJ 68, 70-1. (66) (1888) 38 Ch D 295, 312. (67) (1975) 30 P & CR 182, 186. (68) [1988] 1 EGLR 264, 267, quoted in Se......

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