Shubrick v Salmond
| Jurisdiction | England & Wales |
| Judgment Date | 05 February 1765 |
| Date | 05 February 1765 |
| Court | Court of the King's Bench |
English Reports Citation: 97 E.R. 1022
IN THE COURT OF KING'S BENCH
[1637] shubeick versus salmond. Tuesday, 5th Feb. 1765. An express covenant shall bind to performance. (Mr. Justice Denison and Mr. Justice Yates, were absent.) This was an action of covenant upon a charter-party of affreightment, by the merchant who hired the ship, against the master of the ship, for a breach of contract in not going to the port of Winyaw in South Carolina, as he had covenanted to do. The declaration set forth, that the defendant, being shortly after bound on a voyage to the island of Madeira, by charter-party under hand and seal dated 22d October 1762, covenanted that he would, directly as wind and weather would permit, after the discharge of that outward bound cargo at the island of Madeira, sail and proceed to Winyaw in South Carolina, or as near thereto as he could safely get; and there stay forty running days from the time of such arrival, if not sooner dispatched ; and load his ship with such rice and other goods as the plaintiff's agents, &c. should tender to be laden : in consideration whereof, the plaintiff agreed to pay him freight at the rate of 41. 10s. per ton for every ton delivered at the port of London, and also two third parts of port charges and pilotage, &c. In this charter-party is the following proviso-"That if the said ship should not be arrived at Winyaw aforesaid by the first day of March next ensuing the date of the said charter-party, that then and in such case it should be in the option of the said Eichard Shubrick his factors or assigns on the said ship's arrival at Winyaw, either to load the aaid ship on the terms aforesaid, or not; or at the then current freight given to ships loading at Winyaw for the voyage aforesaid ; or to refuse the said ship entirely: ao always that such the intention of the said Eichard Shubrick his factors or assigns was declared to the master of the said ship within forty-eight hours after his application to the factors or assigns of the said Eichard Shubrick at Winyaw." And lor the performance of the covenants, they bind themselves, each to the other, in the penalty of 12001. The declaration assigned two breaches-1st. That the said ship did not sail and proceed to Winyaw or as near thereto as she could safely get, in order to load, &c.; but on the contrary, the defendant did wilfully absent himself therefrom. 2d. That the defendant did not, on the said 1st of March or at any time since...
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