Smith v The Mayor, Aldermen, and Burgesses of the Borough of Harwich
| Jurisdiction | England & Wales |
| Judgment Date | 02 June 1857 |
| Date | 02 June 1857 |
| Court | Court of Common Pleas |
English Reports Citation: 140 E.R. 572
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
S. C. 26 L. J. C. P. 257.
smith v. the mayor, aldermen, and burgesses of the borough of harwich. June 2nd, 1857. [S. C. 26 L. J. C, P. 257.] An agreement was entered into between the corporation of Harwich and S., a contractor for works, whereby the corporation agreed to let to S. the making, constructing, and completing certain works which they were impowered by an act of parliament to make, according to a specification and plans annexed, at or for the sum of 12,3051., and "on the conditions and in manner thereinafter mentioned:" and S. agreed to take the said works and complete the same in manner set forth in the specification, and for the sums and subject to the provisions thereinafter mentioned. The agreement then went on to provide that S. should construct certain of the works, described in the specification as the "first portion" thereof, for 73181., to be paid as in the specification mentioned; -and that he should also construct the " second portion," as described, for 49871., subject to the following provisions, that is to say,-" that the assent of the commissioners of woods and forests shall be given to the said mayor, &c., to carry out the said last-mentioned works, so far as the same affect the land or soil, &c. of the crown,-and that the said mayor, &c., are not prevented from carrying out the said last-mentioned works by the Eastern Union Eailway Company, &c.,-and, further, that the approbation of the lords commissioners of the treasury is given to the said mayor, &c., to borrow on bond or on mortgage of the rates and property of the borough, &c., such sum or sums of money as may enable the said mayor, &c., to pay for the same."-In an action by S. against the corporation upon this agreement, the declaration assigned for breach that the defendants had omitted within a reasonable time to procure and obtain the assent of the commissioners of woods and forests, and the approbation of the lords commissioners of the treasury, as in the agreement mentioned, or to permit the plaintiff to commence the second portion of the said works :-Held, that there was nothing in the language of the agreement to warrant the court in implying a covenant on the part of the corporation to obtain the assent and approbation therein mentioned. The declaration stated, that, on the 15th of April, 1852, a certain memorandum of agreement under seal [652] was made and entered into by and between the defendants of the one part, and the plaintiff of the other part, and sealed with the corporate seal of the defendants, which was and is in the words and figures following,-"Memorandum of agreement made and entered into this 15th day of April, 1852, between the Mayor, Aldermen, and Burgesses of the borough of Harwich, in the county of Essex, of the one part, and Edmund Smith, of Woolwich, in the county of Kent, contractor for works, of the other part,-Whereby the said mayor, aldermen, and burgesses agree to let to the said Edmund Smith the making, constructing, and completing of the several works impowered to be made under and by virtue of the act of parliament made and passed in the last session, and intituled 'The Harwich Improvement Quays and Pier Act, 1851' (14 & 15 Viet. c. xlii.), and which works are fully set forth and described or laid down in the specification as altered in ink and plans hereunto annexed, at or for the price or sum of 12,3051., and on the conditions and in manner hereinafter mentioned; And the said Edmund Smith hereby agrees and contracts with the said mayor, aldermen, and burgesses to take the said work and to construct, make, and complete the same in manner set forth in the said specification, and for the several sums, and subject to the provisions hereinafter mentioned and contained, that is to say, That he the said Edmund Smith, his executors and administrators, shall and will well, truly, and faithfully construct, make, and execute the pier and the cant thereof, part of the wharfing, and filling in at the back thereof, and also the dredging and other works mentioned and described in the said specification as the first portion of the said works, and as laid down on the said plans, and comprised within the letters, numbers, and colours mentioned in the same specification, with 2 C. B. (N. S.) 663. SMITH V. THE MAYOR, ETC., OF HARWICH 573 reference to the said plans, at and for the price or sum [653] of 73181., to be paid in manner set forth in the said specification : and that he and they shall and will also well, truly, and faithfully construct, make, and execute the second portion of the said works as set forth and described in the said specification, and laid down on the said plans, at and for the price or sum of 49871., subject to the following provisions, that is to say, that the assent of the commissioners of Her Majesty's woods, forests, land revenues, works, and buildings shall be given to the said mayor, aldermen, and burgesses to carry out the said last-mentioned works, so far as the same affect the land or soil, or any rights in respect thereof, belonging to Her Majesty in right of Her crown ; and that the said mayor, aldermen, and burgesses are not prevented from carrying out the same last-mentioned works by the Eastern Union Eailway Company, or any other company, or by any person or persons under or by virtue of the power given to the said railway company for making part of the said last-mentioned works; and further that the approbation of the lords commissioners of Her Majesty's treasury is given to the said mayor, aldermen, and burgesses to borrow on bond or on mortgage of the rates and property of the borough, and of the rates and tolls to be levied and property to be created by virtue of the said act, such sum or sums of money as may enable the said mayor, aldermen, and burgesses to pay for the same; and which said sum of 49871. is also to be paid in manner set forth in the said specification : And he the said Edmund Smith doth, for himself his executors, and administrators, further agree, that, immediately on the execution of these presents, and from time to time until the completion of the said contract or contracts, he and they shall and will obey, carry out, and perform all and every the provisions and stipulations provided in the said specification to be obeyed, carried out, and performed : And [654] the said mayor, aldermen, and burgesses hereby promise and agree that they and their successors in the said corporation shall and will well and truly pay or cause to be paid to the said Edmund Smith, his executors or administrators, all and every sum and sums of money which may hereafter become due and payable to him by virtue of these presents, and in manner set forth in the said specification, and on their parts shall and will duly carry out and perform all and every the provisions and stipulations provided in the said specification to be obeyed, carried out, and performed : And it is hereby mutually agreed, that, on the request of either party hereto, a further and more formal contract and agreement for the due and faithful carrying out and performance of the several matters and things hereinbefore mentioned and contained, or herein referred to, shall be prepared and executed on their respective parts and as provided by the said specification : Given under the common seal of the borough of Harwich at a meeting of the council of the said borough duly convened, and held on the 26th of April, 1852." Averment, that, by the said specification in the said memorandum of agreement mentioned and referred to, the defendants, amongst other things, engaged and promised that they would make payments of 801. per cent, within fourteen days from the period that their engineer should have certified to them that the plaintiff had completed work and delivered materials to the extent of 10001., and, after...
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