United Kingdom House of Lords Decisions

Lord Collins—I am of opinion that the unanimous decision of the Court of Appeal in this case should be affirmed. The rule pressed upon us by Mr Russell from the notes to Pordage v. Cole ( 1 Wms. Saund. 548) cannot be intended to apply to every case in which a covenant by the plaintiff forms only a part of the consideration and the residue of the consideration has been had by the defendant. That residue must be the substantial part of the contract; and if in the case of Boone v. Eyre ( 1H. Bl. 273, n) two or three negroes had been accepted and the equity of redemption not conveyed, I do not apprehend that the plaintiff could have recovered the whole stipulated price and left the defendant to recover damage for the non-conveyance. See per Pollock, C.B., delivering the judgment of the Court in Ellen v. Topp ( 6 Ex. 424). Further, in White v. Beton ( 7 H. & N. 42) Bramwell, B., quotes with approval the remark of Lord Kenyon, C. J., in Campbell v. Jones ( 6 T.R. 570)—“Whether these kinds of covenants be or be not independent of each other, must certainly depend on the good sense of the case.” The reason for the rule itself is said by Serjeant Williams to be that “where a person has received a part of the consideration for which he entered into the agreement it would be unjust that because he has not had the whole he should be permitted to enjoy that part without either paying or doing anything for it.” But in this case, as pointed out by Mr Manisty, the defendant has given an equivalent in service for the remuneration he has received in salary. He stands, therefore, outside the reason of the rule. But I think that this case may be, and in fact has been, decided on broader lines than those laid down in the notes to Pordage v. Cole as to mutual and independent covenants. I think that the true test applicable to the facts of this case is that which was laid down by Lord Coleridge, C.J., in Freeth v. Burr ( L.R., 9 C.P. 208), and approved in Mersey Steel Company v. Naylor ( 9 A.C. 434): “That the true question is whether the acts and conduct of the party evince an intention no longer to be bound by the contract.” I think that the Court of Appeal had ample ground for drawing this inference from the conduct of the employers here in dismissing the defendant in deliberate disregard of the terms of the contract, and that the latter was thereupon justified in rescinding the contract and treating himself as absolved from the further performance of it on his part. I think that the appeal should be dismissed.

Lord Chancellor (Loreburn) concurred.