The General Steam-Navigation Company v Rolt
| Jurisdiction | England & Wales |
| Judgment Date | 01 February 1858 |
| Date | 01 February 1858 |
| Court | Court of Common Pleas |
English Reports Citation: 141 E.R. 572
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
S. C. 6 Jur. N. S. 801; 8 W. R. 223. Referred to, Watts v. Shuttleworth, 1861, 7 H. & N. 355.
the general steam-navigation company v. rolt. Feb. 1st, 1858. [S. C. 6 Jur. N. S. 801 ; 8 W. R. "223. Referred to, Watts v. ShuUl&warth, 1861, 7 H. & N. 355.] A material variation of the terms of the contract with the principal discharges the sureiy-A. contracted with B. to build for him a ship for a given sum, to be paid by instalments as the work reached certain stages; and C. became surety for the due performance of the contract on the part of B., the builder. A. allowed B. to anticipate the greater portion of the last two instalments; and B., becoming bankrupt before the ship was finished, A. waa compelled to expend a larger sum of money than the unpaid portion of the purchase-money in completing her.-In an action by A. against C. (the surety) to recover the excess and also a stipulated sum by way of damages for the delay in the completion of the ship, C. pleaded that the prepayments were made to B. without the knowledge or consent of C., and that, by making such payments without his consent, A. materially and prejudicially altered his position as surety. To this A. replied that the advances so made by him to B. were made with the knowledge, authority, and consent of C., and at his request, or for his use and benefit, and on his account:-Held, that the plea afforded a prima facie answer to the action, and that the onus lay upon A. to prove that the advances were made with the knowledge and assent and at the request of the surety. This was an action brought by the General Steam-Navigation Company against the defendant as surety for the due performance of an agreement by one Mare. The first count of the declaration stated, that, by a certain deed or articles of agreement,, dated the 26th [551] of April, 1855, made between Charles John Mare of the first part, the defendant of the second part, and the plaintiffs of the third part,-after reciting that th$ said Charles John Mare had agreed to build for the plaintiff's an iron paddle-wheel steam-ship or vessel of the dimensions thereinafter mentioned, and to launch and deliver tbe same to the plaintiff's at the time and for the price or sum thereinafter expressed, and that the defendant had agreed to become the surety for the due performance of the said agreement by and on the part of the said Charles John Mare, and to execute the said agreement as such surety in manner thereinafter mentioned,-it was witnessed, that, in pursuance of the said agreement, and in consideration of the covenants thereinafter contained by and on the part of the plaintiffs, he the said Charles John Mare did thereby covenant with the plaintiffs that he the said Charles John Mare should and would, at his own proper costs and charges, in the best and most substantial and workman-like manner, construct and build for the plaintiffs an iron paddle-wheel steam-ship or vessel, of best Staffordshire iron, or iron of eqiial quality,1 and the decks and such other parts thereof as were to be constructed oi wood of good sound and well-seasoned timber and plank, and the whole of the materials of every kind to be used by the said Charles John Mare in the construction oi such ship or vessel to be the best of their respective kinds; and the said ship or vessel and fittings up to be built and constructed conformably to and of the description and dimensions and in the manner particularly mentioned and set forth in the specification thereunder written or thereunto annexed, and the drawing or plan prepared and signed by or on behalf of the said parties thereto of the first part and third part; and that the said Charles John Mare should and would complete the said vessel, including the fit-[552]-tings, and all carpenters' and joiners' and painters' work, and in every respect fit for sea, and launch and deliver her safe afloat into the charge SO. B. (N.I.)MS. THE GENERAL STEAM NAVIGATION CO. V. BOLT 573 of some person or persons appointed to receive her in the river Thames by or on behalf af the plaintiff's on or before the 13th of September then next ensuing; and, in case the said vessel should not be so finished, launched, and delivered fit for sea on the arid 13 A of September then next ensuing, the said Charles John Mare did thereby agree to pay to the plaintiffs as and for liquidated damages to be incurred by such default die sum of 101. per day for every subsequent day until the said vessel should fee so finished, launched, and delivered as aforesaid : And it was declared and agreed by and between the said parties thereto of the first and third parts, that the said company should and might deduct and retain to themselves, their successors and assigns, all and every such sum and sums of money as should or might become payable for or in respect of such liquidated damages aforesaid, from and out of any consideration or other moneys or instalments of moneys as should or might from time to Mme become due of payable by them to the said Charles John Mare, his executors, administrators, or assigns, under or by virtue of the covenants in that behalf on the part of the- said company thereinafter contained : And for the due and punctual performance of the covenants thereinbefore contained on the part of the said Charles John Mare,-be the defendant did by the said deed or articles, in pursuance of the thereinbefore recited agreement on his. part, bind and oblige himself to and with the plaintiffs, in the penal sum of 20,0001. : Averment, that the plaintiffs have always been ready and willing to do, perform, and observe, and have done, performed, and observed all things on their part, and all things have happened and exist to entitle them to i performance [553] of the said covenants of the said Charles John Mare and the defendant respectively, and to maintain this action : nevertheless the said Charles John Mare did not nor would complete the said vessel, including the fitting and all carpenter*' and joiners' and painters' work, and in every respect tit for sea, and launch and deliver the same safe afloat or otherwise into the charge of the plaintiffs, or any person or persons appointed to receive the same in the river Thames by or on behalf of the plaintiffs, or in any other manner, on or before the said 13th of September, 1855, but had wholly neglected so to do, and the said veasel was not so finished, launched, and delivered according to the said covenant, and the said Charles John Mare macje default and default was made in that behalf for and during divers, to wit, seventy d^iys after that day; whereby the plaintiffs became and were entitled' to be paid, smd'jthe said Charles John Mare became and was liable to pay them, a large sum of money), to wit, 7001., being at and after the rate of 101. for each and every of those days, and: neither the said Charles John Mare nor the defendant hath paid the same, nor bath the defendant paid the plaintiffs the said 20,0001. : That the said Charles John Mare became and was declared a bankrupt without having completed or finished the said vessel as aforesaid, and the plaintiffs, in order to obtain the construction, completion, and delivery thereof, were forced and obliged to pay large sums of money to the assignees of the estate and effects of the said Charles John Mare under his said bankruptcy, for work done and materials provided by them in the construction and completion of the said vessel, and which sums, together with divers sums amounting, to wit, to 20001., which the plaintiffs paid to said Charles John Mare before hi^ bankruptcy for and on account of the moneys to be paid to him for work to-be done [554] and materials provided by him under the said deed, greatly exceeded the-sum strucied, )f money for which the said vessel was by the said deed to be built, con-completed, and delivered to the plaintiffs according to the said;deed; and a large sum of money over and above the moneys to be paid by the plaintiffs under ard by virtue of the said deed for the price of the building, constructing, and completing of the said vessel, had thereby become and was lost to the plaintiffs. To this count the defendant pleaded, inter alia, as follows :- First,-to the first count, that the said deed in that count mentioned is not his deed Sfeoondly,-to so much of the said first count as alleges that the said Charles Jobn Mare did not nor would complete the said vessel, including the fitting and all carpenters' and joiners' and painters' work, and in every respect fit for sea, and launch and deliver the same safe afloat or otherwise into the charge of the plaintiffs, or any person or persons appointed to receive the same in the river Thames by or on: behalf of the plaintiffs, or in any other manner, on or before the day and year in that behalf in the declaration mentioned,-the defendant denies the same allegation and every part thereof. '574 THE GENERAL STEAM NAVIGATION CO. V. BOLT 6 C. B. (N. S.) B5J. Thirdly,-to so much of the first count as alleges that the said vessel was not finished, kLunehed, and delivered according to the said covenant, that the said Charles Johu Mare made default, and that default was made in that behalf, for and during the said tima ijL that behalf in the declaration mentioned,-the defendant denies the same allegation and every part thereof. Fourtbly,^to the first count, that, in and by the said deed in the declaration mentioned, the piaintifl's covenanted and agreed that they would well and truly pay or cause to be paid to the said Charles John [555] Mare the sum of 14,1201. as the purchase or consideration-money for the said vessel and fittings, by four even and equal instalments or payments, at the times and in the manner following, that is to say, one equal fourth part thereof when the surveyor employed to superintend...
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