September 8, 1900.]
SUPREME COURT.
SEPTEMBER 4TH.
IN SUMMARY Jurisdiction.
BEFORE HIS HONOUR T. SERCOMBE SMITH (ACTING Puisne JudGE.)
CAPTAIN RAYMOND AND THE FILIPINOS- JUDGMENT.
· The Acting Puisne Judge gave judgment as follows:-
During December, 1899, one Lichauco and one Raymond negotiated that the latter party should take two launches to Manila for the former party. The results of the negotiations were embodied in a written document dated 4th July, 1800. The launches were not taken to Manila. In pursuance of a term in the document, Lichanco advanced $700 to Raymond and now claims an account of the disbursements of that $700, with a return of any balance that
may
be found to be due to him on the taking of such account. To this claim Raymond has furnished an account of the uses to which he put the $700. Raymond also claims from Lichauco a sum of $500) as damages for breach of contract respecting. (inter alia) the navigation by him (from Hongkong to Manila of the said two launches. Lichauco's suit and Raymond's cross-suit were heard together on the 28th August.
The case for Lichauco is that the document of the 4th January was signed on the terms that it should not be an agreement until Ray ward had obtained certain clearance papers from the U.S. Consul-General in Hongkong to en- able the launches to enter Manila, and that, as Raymond did not procure such papers, the docu- ment had not yet operated as a contract. If Lichauco could convince the Court that the transaction between him and Raymond was of this nature, then there is the authority of the cases of Pym v. Campbell 6 E and B 370 and Wallis v. Littell 11 C.B.N.S. 369 that the ad- mission of evidence to show that there was not an agreement at all is allowable. It becomes then a question of fact whether the alleged suspensory condition precedent existed or not. The evidence is conflicting, but the balance is in favour of Raymond.
clearances for him."
66
CHINA OVERLAND TRADE REPORT.
9th March, 1900, Lichanco's solicitors wrote to Raymond's solicitors that "it appears now to be impossible for either party to carry out the contract for the taking over to Manila by your client of the steam launch Patria." The cause assigned for impossibility of per formance was of course the inability to secure the requisite papers. On behalf of Raymond the contention at the bar was that the impossi- bility if any was caused by the failure of Li- chauco to procure the necessary papers, for Lichauco the contention was that the act of the U.S. Consul-General in Hongkong in refusing to grant cleaarances, was the cause of the im- possibility of performance.
voyage,
In my judgment neither Lichauco's failure to procure the proper papers nor the U. S. Consul-General's refusal to supply such papers rendered the performance of the contract im- possible. The absence of these papers may have rendered it improbable that the whole con- tract could be performed: but such absence did not render it impossible for Lichauco either to require Raymond to go on board or to give Raymond instructions to start on his nor for Raymond to coal, provision and man the launches, and sail them to Manila. The moat that can be said is that the delivery of the launches at Manila seemed to Lichauco to be very improbable. But no degree of improb- ability can amount to an impossibility. The delivery at Manila to the parties named in the contract might have been frustrated by the acts required by the fifth clause of the contract U.S. Authorities at Manila: whereupon the
Nevertheless it is possible, though not probable, would have become impossible of performance.
that had the launches reached Manila, the U.S. officials there would not have interfered so as to render the terms as to delivery inoperative. It cannot be said that impossibility of performance had arisen until the delivery under the contract had proved to be impossible. I hold therefore that no impossibility of performance has been established.
This being so, and both parties having ful- filled some of the promises made by them, the one, Lichauco, by advancing $700 under clause
'
189
against Raymond for an account of the expen- I now pass to consider the claim of Lichanco diture of the $700 advanced to Raymond and the return of the unexpended balance. Buch items of that account are allowed by Lichanoo an account was rendered by Raymond and the with the exception of the item of $265,25 on secount of Raymond's salary at $500 a month. But I shall not decide whether this item is admissible in the account furnished by Raymond because I am of the opinion that there are no circumstances of the case which admit of this suit for an account being maintained. At the common law an action of account lay in two classes of cases, viz: those of privity in deed or in law and those of matters between mer- chants. Neither of these classes embraces the present case. In equity, jurisdiction was a5- sumed in an action for an account where a fiduciary relation, such as that of principal and agent, existed between the parties; or where there were mutual accounts between the plaintiff and the defendant; or where there were circumstances of great complication. Here there are
no circumstances of great com. plication, and the parties are not related to each other as principal and agent. Nor are there mutual accounts between the parties, i.e. each of the parties has not received and also paid on the other's account. The best case, apparently, that Lichanco can make out is that Raymond has received and paid moneys on his account.
I do not say that such a case has been made out. In my judgment, accordingly, Lichauco has no That is a question upon which I give no decision.
and I nonsuit him with costs. Judgment will right to maintain this action against Raymond be for Raymond in his cross suit with costs.
Mr. E. H. Sharp (instructed by Messrs. Dea-
con
and Hastings) appeared for Captain Raymond and Mr. M. W. Slade (instructed by Messrs. Wilkinson and Grist) for the other parties.
THE ENTRY INTO PEKING.
FULL DETAILS OF THE CAPTURE, [FROM OUR SPECIAL CORRESPONDENT.]
PREPARATIONS FOR THE FINAL STROKE,
of the contract, and the other, Raymond, by furnishing coal, provisions and crew under clauses 3 and 4 of the contract, it remains to inquire into the legal relation of the parties to each other. No time is mentioned within which the contract is to be performed. In Hick v. Ray-ternational Commanders on the 12th inst., when
Peking, 16th August. There was a council of war held by the In- mond [1893] Appeal cases at p. 32 Lord Watson says "when the language of a contract does not expressly or by necessary implication, fix any time for the performance of a contractual ob-
formed within a reasonable time. The rule is of general application."
it was determined that the Allied Forces should concentrate within six miles of Peking by the 14th inst. and make a grand assault on the 15th. Everything was prepared for this final stroke, which has so far been very satisfactory, considering the conditions under which such a A reasonable time means a reasonable time where, if success crowns the operations, unstinted large force of mixed troops has to be handled ; under the circumstances, (see Ford v. Cotesworth praise and admiration are held out to the favour- 4th January, 1900. Between that date and the stinted abuse is hurled at almost every individual L.R. 4 Q.B. 127.) The date of the contract was
ed few, yet where non-success is the result, un- issue of the writ on 23rd July, there was ample unit's commanders. Yet it has struck me that time for the performance of the conti et. acts of coaling &c., done by Raymond were ne-
The most of the operations have been brought to a cossary preliminaries to starting on the voyage latter. This conclusion is brought clearly to the success by the skill, energy and pluck of the to Manila within twelve hours of his receiving front to anyone who has followed the conduct instructions so to do. He did all that he could of warfare waged by mixed troops-with mixed do and was prevented from proceeding to fulfil opinions held by their respective leaders. For the rest of his obligations by the omission of it appears that, although certain agreements Lichauco to give the orders contemplated in the first clause of the contract. Lielianco was
were arrived at when the council of war was bound to give those orders within a reason-only the Anglo-Saxon contingents respected them held, I believe that I am correct in saying that able time, but failed to fulfil this obligation. in the spirit as well as in the letter, and that. He is therefore in the position of a party Peking defended by disciplined troops reason- under which both parties have done something, in consequence, as it is now generally asserted who, in the course of performance of a contract,ably armed would not now be in our hands has refused to continue to perform his part: whereupon the other party is exonerated from any further performance of his promises and may immediately bring an action for damages for breach of the special contract, and also sue for a quantum meruit or the value of the ser- vices already rendered by him.
Lichauco says: "Raymond undertook to take out clearances;" and "it was agreed between Raymond and me that he should get clearances: after this I signed the contract." On 'the other hand M. Marti, who acted as interpreter between the parties, says: "Raymond offered to do his best to clear the launch" and "Ray-bligation, the law implies that it shall be per- mond was to do his best to get the clearance papers. Did not say it was his duty. Ray mond promised to do his best to help Lichauco. Raymond was to help Lichauco and try to get Lichanco asked me to go to the Consul to try Then Raymond says: to get papers myself. I went. Consul refused papers. I told Lichauco this. This occurred on 5th or 6th January. Lichauco then said. I'll go: and, I undertook to try to get papers for Li- chauco... It was not in the contract... I said I'd try to get the papers. Did not say I would." Upon this evidence I have arrived at the opinion that there was no oral contract, such as that alleged, suspending the written document from the beginning from operating as a con- tract. Indeed if such a suspensory collateral contract existed, I cannot explain why Ray- mond and Lichance proceeded to part per- formance of the terms of the document, the one by providing coal, other necessaries, a crew and provisions, the other by advancing a sum of $700. Nor, on the supposition that Raymond was to obtain clearances before the document operated as a contract, is it easy to explain why Lichauco's solicitors, on the 2nd February last, wrote of their client that he will despatch the steam launch Patria as soon as he obtains the necessary clearance papers," but made no mention of the alleged collateral contract which bound Raymond to procure the clearances. I am satisfied, therefore, that the written docu- ment of 4th January, 1900 contained the whole of the terms of the agreement between the parties and was a contract binding upon both sides.
..
Next as to the question of the impossi- bility of performing the contract. On the
damages sustained by him for the breach of the In his cross-suit Raymond claims $500 as the special contract. He has lost the profits which would have been the immediate fruits of the contract between him and Lichauco. These profits were stated by him to be about $1,100, The terms of the present contract by which be at variance with this statement. The Court he was to receive $2,200 do not seem to accordingly allows his claim of $500 for damages
that practically independent action was taken by some of the contingente-perhaps, for obvi- stage of the campaign. The British force ous reasons, not necessary to mention at this worked principally in conjunction with the Americans under General 1 ́haffee. The troops marched from Tungchow in a great heat wave on the 14th to the places from which the attack was to be delivered, and were very much done
up.
THE ARRANGEMENT OF FORCES.
follows-The Russians were to proceed by a The disposition of the forces were made road about 2,000 yards distant from the right bank, the Americans on the left bank, the British bank of the river, the Japanese on the right about three-quarters of a mile to the extreme left