Scottish Court of Session Decisions

Subject_1 MUTUAL CONTRACT.
Subject_2 SECT. II.

Contract performable at different periods. - Effect of non-performance, and of over-performance. - If the one party repudiate, is the other free? - Whether irritancy implied by failing to perform at the day. - Effect of improper performance. - Contract for mariners wages. - Contract between master and servant. - Contract of affreightment. - Contract not signed by all parties. - Obligation ad factum præstandum.

Hog and Others
v.
Trustees of Inglis

Date: 20 February 1777
Case No. No 37.

Freight had been paid before hand, by some emigrants to America. The veffel not having proceeded on the voyage, not totally disabled, but only put back to repair; - the freight was ordered to be returned.

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Inglis entered into a contract, binding himself to carry Hog, and his family and servants, together with about 200 em grants, on board his ship Bachelor, to North Carolina; Hog, on the other hand, becoming bound to pay him a certain sum in name of freight, of which one half was paid before the ship left Leith Roads, and the other half on taking the passengers on board in Thurso Bay. The reason of this per advance payment of the freight was the peculiar nature of the outfits, and the large quanity of provisions necessary to be laid in. After sailing from Thurso Bay, the ship was forced into Stromness by stress of weather; and on sailing thence, she was driven by a storm into Voila Sound in Shetland, in the utmost distress. Inglis, on intelligence of what had happened, sent out a sloop from Leith, with materials for refitting the vessel; but these being insufficient, it was necessary to bring her back to Leith for a thorough repair. Several of the emigrants now quitted the ship, and returned home. Hog with his family, in the mean time wintering in Shetland, and having remained there near a twelvemonth, wrote to Inglis to know his purpose as to proceeding; and having received from him an answer which he considered as a refusal, he and the remaining emigrants brought action against Inglis, before the Judge-Admiral, for restitution of the freight, and damages. The Judge-Admiral decerned for the freight, with interest; and for damages, which he modified to L. 10 Sterling.—Pleaded for the defender in a suspension, That although in ordinary cases no freight is due when the ship is disabled from performing her voyage, the present case was totally different, the first being paid before hand for necessary outfits, and being all bona fide expended and consumed for the benefit of the parties who paid it.—It was urged moreover for the defender, That the pursuer had misinterpreted his letter; that he never refused to accomplish the voyage, but had, on the contrary, got the vessel at last (though after a long time) completely refitted, and had intimated to the pursuer his readiness to proceed; and lastly, That the greatest part of the emigrants having changed their resolution of going abroad, no freight could be re-demanded for them.——The Court, at first, found, That in respect the vessel was not totally disabled, and that Inglis had declined to perform the his contract after his return from Shetland to Leith, his representatives (he being dead) are bound to repeat the whole freight, without deduction of any of the price of the provisions consumed.——The Court thereafter ordered a condescendence of the alleged facts relative to the requisitions made by Hog on Inglis to proceed, and relative to the disposition of the emigrants and their families before Mr Inglis's offer; and on advising this condescendence, they adhered to their former judgment. See Appendix.

Fol. Dic. v. 4. p. 14.