Taylor and Another against Caldwell and Another
| Jurisdiction | England & Wales |
| Judgment Date | 06 May 1863 |
| Date | 06 May 1863 |
| Court | Court of the King's Bench |
English Reports Citation: 122 E.R. 309
IN THE COURT OF QUEEN'S BENCH AND THE EXCHEQUER CHAMBER
S. C. 32 L. J. Q. B. 164; 8 L. T. 356; 11 W. R. 726. Followed, Appleby v. Meyers, 1867, L. R. 2 C. P. 660. Principle applied, Boast v. Firth, 1868, L. R. 4 C. P. 8. Distinguished, Gamble v. Dacison, 1871, L. R. 6 Ex. 275. Referred to, Jackson v. Union Marine Insurance Company, 1874 L. R. 10 C. P. 141. Followed, Howell v. Coupland, 1876, 1 Q. B. D. 258. Applied In re Arthur, 1880, 14 Ch. D. 608. Distinguished, Marshall v. Schlfield, 1882, 52 L. J. Q. B. 60. See Chapman v. Withers, 1888, 20 Q. B. D. 824. Referred to, Grove v. Johnston, 1889, 24, L. R. Ir. 358. Distinguished, Turner v. Goldsmith, (1891) 1 Q. B. 549. Referred to, In re Jamieson and Newcastle Steamship Freight Insurance Association, (1895) 1 Q. B. 515; (1895) 2 Q. B. 90. Followed, Nichoil v. Ashton, (1901) 2 K. B. 126. Referred to, Elliott v.
[826] taylor and another against caldwkll and another. Wednesday May 6th, 1863. - Contract. Accidental destruction of the subject-matter. Demise or agreement for demise. - 1. Where there is a positive contract to do a thing, not in itself unlawful, the contractor must perform it or pay damages for not doing it, although in consequence of unforeseen accidents, the performance of contract has become unexpectedly burthensome or even impossible. - -2. But this rule is only applicable when the contract is positive and absolute, and not subject to any condition either express or implied. - 3. Where, from the nature of contract, it appears that the parties must from the beginning have known that could not be fulfilled unless when the time for the fulfilment of the contract'?"*' arrived some particular specified thing continued to exist, so that, when entering^'A'y'r'j into the contract, they must have contemplated such continuing existence as the^, " " foundation of what was to be done ; there, in the absence of any express or implied * 7 ' ' " warranty that the thing shall exist, the contract is not to be construed as a positive /f^ii//l contract, but as subject to an implied condition that the parties shall be excused '?** f/' in case, before breach, performance becomes impossible from the perishing of thing without default of the contractor. - 4, A. agreed with B. to give him the use of a Music Hall on certain specified days, for the purpose of holding concerts, with no express stipulation for the event of the destruction of the Muaic Hall \J%, fire : held, that both parties were excused from performance of the contract. - 5. An instrument is not a demise; although it contains the usual words of demise, if its contents shew that such was not the intention of the parties. [S. C. 32 L. J. Q. B. 164 ; 8 L. T. 356 ; 11 W. R. 726. Followed, Appleby v. Meyers, 1867, L. R. 2 C. P. 660. Principle applied, Boast v. Firth, 1868, L. R. 4 C. P. 8. Distinguished, Gamble v. Accident Life Insurance Company, 1870, Ir. R. 4 C. L. 204. Followed, Robinson v. Davison, 1871, L. R. 6 Ex. 275. Referred to, Jackson v. Union Marine Insurance Company, 1874, L. R. 10 C. P. 141. Followed, Howell v. Coupland, 1876, 1 Q. B. D. 258. Applied, In re Arthur, 1880, 14 Gh. D. 608. Distinguished, Marshall v. Schofield, 1882, 52 L, J. Q. B. 60. See Chapman v. Withers, 1888, 20 Q. B. D. 824. Referred to, Grove \. Johnston, 1889, 24 L. R. Ir. 358. Distinguished, Turner v. Goldsmith, [1891] 1 Q. B. 549. Referred to, In re Jamieson and Newcastle Steamship Freight Insurance Association, [1895] 1 Q. B. 515; [1895] 2 Q. B. 90. Followed, Nichott v. Ashton, [1901] 2 K. B. 126. Referred to, Elliott v. (6) The learned Judge doubtless refers to Beg. v. Elrington, 1 B. & S. 688. (a) See note (b), p. 824. ^7'W nfi ,-7/e. 810 TAYLOR V. CALDWFT.L 3 B. * S. til, Crutchley, [1903] 2 K. B. 479; [1904] 1 K. B. 565; [1906] A. C. 7. Distinguished, Herne Bay Steamboat Company v. Button, [1903] 2 K. B. 689. Applied, Krell v. Henny, [1903] 2 K. B. 740. Discussed, Blakeley v. Muller, [1903] 2 K. B. 760 (). Applied, Cm? Service Cooperative Society v. General Steam Navigation Company, [1903] 2 K. B. 764; Chandler v. Webster, [1904] 1 K. B. 497. Referred to, In re Hull and Meustts Arbitration, [1905] 1 K. B. 590.] The declaration alleged that by an agreement, bearing date the 27th May, 1861, the defendants agreed to let, and the plaintiffs agreed to take, on the terms therein stated, The Surrey Gardens and Music Hall, Newington, Surrey, for the following days, that is to say, Monday the 17th June, 1861, Monday the 15th July, 1861, Monday the 5th August, 1861, and Monday the 19th August, 1861, for the purpose of giving a series of four grand concerts and day and night fetes, at the Gardens and Hall on those days respectively, at the rent or sum of 1001. for each of those days. It then averred the fulfilment of conditions &c., on the part of the plaintiffs ; [827] and breach by the defendants, that they did not nor would allow the plaintiffs to have the use of The Surrey Music Hall and Gardens according to the agreement, but wholly made default therein, &c.; whereby the plaintiffs lost divers moneys paid by them for printing advertisements of and in advertising the concerts, and also lost divers sums expended and expenses incurred by them in preparing for the concerts and otherwise in relation thereto, and on the faith of the performance by the defendants of the agreement on their part, and had been otherwise injured, &c. Pleas. First. Traverse of the agreement. Second. That the defendants did allow the plaintiffs to have the use of The Surrey Music Hall and Gardens according to the agreement, and did not make any default therein, &c. Third. That the plaintiffs were not ready or willing to take The Surrey Music Hall and Gardens. Fourth. Exoneration before breach. Fifth. That at the time of the agreement there was a general custom of the trade and business of the plaintiffs and the defendants, with respect to which the agreement was made, known to the plaintiffs and the defendants, and with reference to which they agreed, and which was part of the agreement, that in the event of the Gardens and Music Hall being destroyed or so far damaged by accidental fire as to prevent the entertainments being given according to the intent of the agreement, between the time of making the agreement and the time appointed for the performance of the same, the agreement should be rescinded and at an end ; and that the Gardens and Music Hall were destroyed and so far damaged by accidental fire aa to prevent the entertainments, or any [828] of them, being given, according to the intent of the agreement, between the time of making the agreement and the first of the times appointed for the performance of the same, and continued so destroyed and damaged until after the times appointed for the performance of the agreement had elapsed, without the default of the defendants or either of them. Issue on all the pleas. On the trial, before Blackburn J., at the London Sittings after Michaelmas Term, 1861, it appeared that the action was brought on the following agreement:- " Royal Surrey Gardens, "27th May, 1861. " Agreement between Messrs. Caldwell & Bishop, of the one part, and Messrs. Taylor & Lewis of the other part, whereby the said Caldwell & Bishop agree to let, and the said Taylor & Lewis agree to take, on the terms hereinafter stated, The Surrey Gardens and Music Hall, Newington, Surrey, for the following days, viz. :- "Monday, the 17th June, 1861, 15th July, 1861, 5th August, 1861, ,, 19th August, 1861, for the purpose of giving a series of four grand concerts and day and night fetes at the said Gardens and Hall on those days respectively at the rent or sum of 1001. for each of the said days. The said Caldwell & Bishop agree to find and provide at their 3 B. ft 3.829. TAYLOR V. CALDWBLL 311 own sole expense, on each of the aforesaid days, for the amusement of the public and persona then in the said Gardens and Hall, an efficient and organised military and quadrille band, the united bands to consist of from thirty-five to forty members; al fresco entertainments of various descriptions; coloured min-[829]-strels, fireworks and full illuminations; a ballet or divertissement, if permitted; a wizard and Grecian statues; tight rope performances; rifle galleries; air gun shooting; Chinese and Parisian games; boats on the lake, and (weather permitting) aquatic sports, and all and every other entertainment as given nightly during the months and times above mentioned. And the said Caldwell & Bishop also agree that the before mentioned united bands shall be present and assist at each of the said concerts, from its com mencement until 9 o'clock at night; that they will, one week at least previous to the above mentioned dates, underline in bold type in all their bills and advertisements that Mr. Sims Reeves and other artistes will sing at the said gardens on those dates respectively, and that the said Taylor & Lewis shall have the right of placing their boards, bills and placards in such number and manner (but subject to the approval of the said Caldwell & Bishop) in and about the entrance to the said gardens, and in the said grounds, one week at least previous to each of the above mentioned days respec tively, all bills so displayed being affixed on boards. And the said Caldwell & Bishop also agree to allow dancing on the new circular platform after 9 o'clock at night, but not before. And the said Caldwell & Bishop also agree not to allow the firework display to take place till a \ past 11 o'clock at night. And, lastly, the said Caldwell & Bishop agree that the said Taylor & Lewis shall be entitled to and shall be at liberty to take and receive, as and for the sole use and property of them the said Taylor & Lewis, all moneys paid for entrance to the Gardens, Galleries and Music Hall and firework galleries, and that the said Taylor & Lewis may in their own discretion...
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