Taylor v. Caldwell

The defendants agreed to let the plaintiffs use a music hall and gardens on four named days for concerts. Before the first day, the hall burned down without anyone's fault. The Court held that both sides were excused, because the contract rested on the hall continuing to exist.

Quick Revision

Parties

Taylor and the other plaintiffs — the hirers; they agreed to take the Surrey Gardens and Music Hall for concerts and fetes. The judgment names them only as TAYLOR and speaks of the plaintiffs in the plural.

Caldwell and the other defendants — the owners who agreed to let the Hall; they agreed to let the Gardens and Hall. The judgment names them only as CALDWELL and speaks of the defendants in the plural.

Procedural History

1. The case was in the Queen's Bench before Blackburn J. The judgment is dated 6 May 1863.
2. The judgment recites a declaration (a written statement of claim) alleging breach of the agreement of 27 May 1861. It does not say how the case reached the Court.
3. The Court took it on the evidence that the Hall was destroyed without fault of either party.
4. Blackburn J. delivered the judgment of the Court. The rule was made absolute to enter the verdict for the defendants.
5. The judgment does not name the other judges of the Court. It does not record any earlier decision or later appeal.

Facts

1. On 27 May 1861 the parties made an agreement (a promise or set of promises both sides accept). The defendants agreed to let, and the plaintiffs agreed to take, the Surrey Gardens and Music Hall, Newington, Surrey.
2. The days were Monday 17 June, Monday 15 July, Monday 5 August and Monday 19 August 1861.
3. The purpose was a series of four grand concerts and day and night fetes at the Gardens and Hall on those days.
4. The rent was 100l. for each day.
5. The agreement set out many stipulations about what each party was to supply and how the entertainments were to be run.
6. As a whole, the agreement shows that the Music Hall in a state fit for a concert was essential. The entertainments the parties planned could not be given without it.
7. The parties did not think of the possibility of such a disaster. They made no express stipulation about it.
8. After the agreement and before the first concert day, the Hall was destroyed by fire.
9. The Court took it on the evidence that the destruction was without fault of either party. It was so complete that the concerts could not be given as intended.
10. The declaration alleges that the defendants did not and would not allow the plaintiffs the use of the Hall and Gardens. It alleges the plaintiffs lost money paid for printing and advertising the concerts.
11. It also alleges they lost sums spent in preparing for the concerts, on the faith that the defendants would perform, and were otherwise injured.

Issues Raised

The judgment states the question the Court had to decide in one sentence. It is split here into the points it covers.

1. Where the Hall was destroyed without fault of either party and the concerts could not be given, does the plaintiffs' loss fall on the defendants?
2. Does the general rule that a contractor must perform a positive contract, or pay damages, apply even when performance has become impossible?
3. Where the contract needs a particular thing to continue to exist, is it subject to an implied condition that excuses performance if the thing perishes?

Arguments Contended

The reported judgment does not set out the arguments of counsel on either side. It records only the declaration (the plaintiffs' claim) and the Court's own reasoning.

For the plaintiffs: no arguments recorded. The declaration alleges that the defendants broke the agreement by not allowing use of the Hall and Gardens, and that the plaintiffs lost advertising money and preparation expenses.

For the defendants: no arguments recorded. The judgment gives no defence pleaded.

Court's Reasoning

The judgment is a single opinion, delivered by Blackburn J. as the judgment of the Court. It has no numbered paragraphs, so no paragraph numbers are cited. The steps follow the order of the opinion.

Blackburn J. (for the Court)

1. Noted: the parties had a contract for use of the Gardens and Hall on four days for concerts and fetes, at 100l. a day. The agreement set out what each was to supply.
2. Noted: the effect of the whole agreement is that the Music Hall in a fit state was essential. The entertainments could not be given without it.
3. Noted: the Hall was destroyed by fire after the agreement and before the first concert day. The Court took it on the evidence that this was without fault of either party and made the concerts impossible.
4. Noted: the question is whether the plaintiffs' loss falls on the defendants.
5. Noted: the parties did not think of such a disaster and made no express stipulation. So the answer depends on the general rules of law applicable to such a contract.
6. Noted: the general rule is that where there is a positive contract to do a thing, not in itself unlawful, the contractor must perform it or pay damages. This holds even if unforeseen accidents have made performance unexpectedly burdensome or even impossible. The Court cites 1 Roll. Abr. 450, the note to Walton v. Waterhouse, and Hall v. Wright, where all the Judges recognised it as the general rule.
7. Held: that rule applies only when the contract is positive and absolute, and not subject to any condition, express or implied.
8. Held: sometimes the parties must from the beginning have known that the contract could not be fulfilled unless a particular specified thing continued to exist. They must have contemplated that continued existence as the foundation of what was to be done. Then the contract is not a positive contract. Without any express or implied warranty (guarantee) that the thing shall exist, it is subject to an implied condition. The parties are excused if, before breach, performance becomes impossible from the perishing of the thing without default of the contractor.
9. Why: this implication helps to give the contract the construction that fulfils the intention of the parties. Men making such contracts would, if it were put to them, say that there should be such a condition.
10. Noted: the Civil law (Roman-based law) implies the same exception in every obligation of the class called obligatio de certo corpore (an obligation about a specific thing). The examples given are contracts about a slave. Roman lawyers used a slave as the usual example, as English lawyers tend to take a horse.
11. Noted: the need for the implied condition is more obvious when the contract is about a living animal, man or brute. It is less obvious for an inanimate thing such as a theatre, whose existence is not so obviously precarious. Yet the Civil law adopts the principle for every obligation whose subject is a certain thing.
12. Noted: Pothier (Traité des Obligations, partie 3, chap. 6, art. 3, § 668) states the result. The debtor corporis certi is freed from his obligation when the thing has perished, neither by his act nor his neglect, and before he is in default. The exception is where, by some stipulation, he took on himself the risk of the particular misfortune.
13. Noted: the Civil law is not itself authority in an English Court. It gives great help in investigating the principles on which the law is grounded.
14. Held: the common law authorities establish that, in such a contract, English law implies the same condition of the continued existence of the thing.
15. Noted: some contracts require the promisor to perform in person, such as promises to marry or to serve for a time. Such promises are never in practice qualified by an express exception for the promisor's death. So the contract is in terms broken if the promisor dies before fulfilment.
16. Noted: yet it was determined very early that, if the performance is personal, the executors (persons who carry out a dead person's will) are not liable. The Court cites Hyde v. The Dean of Windsor.
17. Noted: Williams on Executors (2 Wms. Exors. 1560) gives an apt illustration. If an author undertakes to compose a work and dies before finishing it, his executors are discharged, because the undertaking is personal and the death has made it impossible. The Court cites a dictum (passing remark) of Lord Lyndhurst in Marshall v. Broadhurst and a case mentioned by Patteson J. in Wentworth v. Cock.
18. Noted: in Hall v. Wright, Crompton J. gave another case. Where a contract depends on personal skill and the act of God makes it impossible, such as a painter employed to paint a picture who is struck blind, "it may be that the performance might be excused."
19. Held: in those cases the only ground on which the parties or their executors can be excused from the breach is an implied condition. The condition is the continued existence of the contractor's life and, perhaps for the painter, of his eyesight.
20. Noted: in those instances the person whose life is needed is himself the contractor. That is not necessary for the principle to apply.
21. Noted: the apprentice deed shows this. The apprentice binds himself in unqualified terms to serve for seven years, and his father binds himself in equally unqualified terms for the apprentice's performance. The Court refers to the form in 2 Chitty on Pleading, 370.
22. Held: if the apprentice dies within the seven years, no action can lie against the father. The only reason is that the father is excused by the apprentice's death.
23. Noted: those are instances where the implied condition concerns a human life. The same implication is made for the continued existence of a thing.
24. Noted: take a contract of sale that is a bargain and sale, transferring the property in specific chattels (movable goods) at once, with delivery at a future day. If the chattels perish without the vendor's fault, the purchaser must pay the price. The vendor is excused from delivering, which has become impossible.
25. Noted: Rugg v. Minett establishes this as English law. The turpentine perished before delivery. The vendor had to refund the price of lots where the property had not passed. He could keep, without deduction, the price of lots where it had passed, though not delivered. The conditions of sale had no express qualification of the promise to deliver on payment.
26. Noted: in that case it was rather taken for granted than decided that destruction of the thing sold before delivery excused the vendor.
27. Noted: this is also the rule in the Civil law. Pothier, in his Traité du Contrat de Vente (Part 4, § 307; Part 2, ch. 1, sect. 1, art. 4, § 1), treats it as an example of the more general rule. Every obligation de certo corpore is extinguished when the thing ceases to exist. The Court also refers to Blackburn on the Contract of Sale, p. 173.
28. Noted: the same principle seems to be involved in Sparrow v. Sowyate. There, the bail bond was conditioned for payment of the debt or the render of the debtor. It was held a good plea that the principal debtor died before any default in rendering him.
29. Noted: that was a bond with a condition, and a distinction is sometimes made between a condition and a contract. But the observation does not apply to Williams v. Lloyd.
30. Noted: in Williams v. Lloyd the count was in assumpsit (an action on an express or implied agreement to perform a contract). It alleged that the plaintiff delivered a horse to the defendant, who promised to redeliver it on request. The defendant refused. The plea was that the horse was sick and died, and the request was made after its death.
31. Noted: on demurrer (a legal objection that the claim fails even on the facts stated), the plea was held good. The bailee was discharged by the death of the horse without default or negligence. The Court there said that if the horse died before, the promise became impossible by the act of God. The party is discharged as if an obligation were conditioned to deliver the horse on request.
32. Noted: Jones, adds the report, cited 22 Ass. 41. A ferryman promised to carry a horse safely across. He was held liable for its drowning only because he had overloaded the boat. It was agreed that no action would have lain if there had been no neglect or default on his part.
33. Held: it may safely be asserted to be English law that this applies to all contracts of loan of chattels or bailments. Impossibility of redelivery because the thing has perished excuses the borrower or bailee (a person who holds goods for another). This applies if the impossibility does not arise from the borrower's or bailee's fault, or from some risk he has taken on himself.
34. Noted: Coggs v. Bernard is now the leading case on bailments. Lord Holt referred so much to the Civil law there that it might be thought the principle was taken directly from the civilians and applied only to bailments.
35. Held: Williams v. Lloyd shows that English law had already adopted the same law as early as the Book of Assizes.
36. Held: the principle is that, in contracts where performance depends on the continued existence of a given person or thing, a condition is implied. Impossibility of performance from the perishing of the person or thing excuses performance.
37. Why: in none of these cases is the promise in words other than positive, and there is no express stipulation that destruction excuses performance. The excuse is implied by law because, from the nature of the contract, the parties contracted on the basis of the continued existence of the particular person or chattel.
38. Held: looking at the whole contract, the parties here contracted on the basis of the continued existence of the Music Hall at the time of the concerts. That was essential to performance.
39. Held: the Music Hall having ceased to exist without fault of either party, both parties are excused. The plaintiffs are excused from taking the Gardens and paying the money. The defendants are excused from performing their promise to give the use of the Hall and Gardens and other things.
40. Held: so the rule must be absolute to enter the verdict for the defendants.

Authorities

• 1 Roll. Abr. 450, Condition (G) (Rolle's Abridgment): cited with the note to Walton v. Waterhouse as laying down the general rule that a positive contract must be performed or damages paid.
• Walton v. Waterhouse (note 2, 2 Wms. Saund. 421 a, 6th ed.): cited for the same general rule.
• Hall v. Wright (E. B. & E. 746): all the Judges recognised the general rule. At p. 749, Crompton J. put the example of the painter struck blind, where performance "might be excused".
• Hyde v. The Dean of Windsor (Cro. Eliz. 552, 553): cited for the early decision that, if performance is personal, the executors are not liable.
• 2 Wms. Exors. 1560, 5th ed. (Williams on Executors): cited for the illustration of the author who dies before completing his work.
• Marshall v. Broadhurst (1 Tyr. 348, 349): dictum of Lord Lyndhurst cited for that illustration.
• Wentworth v. Cock (10 A. & E. 42, 45-46): case mentioned by Patteson J., cited for that illustration.
• 2 Chitty on Pleading, 370, 7th ed. by Greening: cited for the form of the apprentice deed.
• Rugg v. Minett (11 East, 210): cited as establishing that perishing of specific goods before delivery excuses the vendor.
• Pothier, Traité des Obligations (partie 3, chap. 6, art. 3, § 668): cited for the rule that the debtor corporis certi is freed when the thing perishes without his act or neglect.
• Pothier, Traité du Contrat de Vente (Part 4, § 307; Part 2, ch. 1, sect. 1, art. 4, § 1): cited for the same rule applied to sale. The Court also refers to Blackburn on the Contract of Sale, p. 173.
• Sparrow v. Sowyate (W. Jones, 29): cited as involving the same principle, in an action of debt on a bail bond.
• Williams v. Lloyd (W. Jones, 179): cited as an assumpsit case on a promise to redeliver a horse that died. It shows the principle was English law as early as the Book of Assizes.
• 22 Ass. 41 (Book of Assizes): cited through Jones in Williams v. Lloyd, for the ferryman who was liable only because of his default.
• Coggs v. Bernard (1 Smith's L. C. 171, 5th ed.; 2 L. Raym. 909): called the leading case on bailments. The Court notes Lord Holt's heavy reference to the Civil law there.

Provisions mentioned

• The judgment mentions no Act, section or article. It refers only to the Civil law and to the common law authorities above.

Judgement

1. The Court held that, the Music Hall having ceased to exist without fault of either party, both parties were excused.
2. The plaintiffs were excused from taking the Gardens and paying the money.
3. The defendants were excused from performing their promise to give the use of the Hall and Gardens and other things.
4. "Rule absolute" was ordered, to enter the verdict for the defendants.
5. The judgment records no order on costs and no other direction.

Legal Principle / Ratio

Where performance of a contract depends on the continued existence of a given person or thing, the law implies a condition. Performance is excused if that person or thing perishes without the contractor's fault. This applies even though the promise is worded positively. The key holding is that "a condition is implied that the impossibility of performance arising from the perishing of the person or thing shall excuse the performance."

The judgment does not label any passage obiter. The general rule and the examples of the author, the painter, the apprentice, the sale of specific chattels and bailments are the background the Court uses to reach its holding.

Critical Analysis

Analysis based on the judgment text.

• The reported judgment gives no account of the arguments of either side.
• The implied condition is justified by what the parties "would" have said if the matter had been brought to their minds. The judgment relies on the nature of the contract rather than on any word in it.
• The Court admits that Rugg v. Minett took the excuse "rather ... for granted than decided". The principle is built from several partly related authorities.
• The Court treats Civil law as help but not authority. It rests the English rule on common law cases.
• The judgment does not say how the plaintiffs' advertising and preparation expenses are to be treated. It only says both parties are excused.

Significance

• Commentary: it shows the Court moving away from an absolute reading of positive promises by reading in an implied condition.
• Commentary: the notes page on discharge by impossibility links this case to the doctrine of frustration.

Exam-Important Points

• Rule: where performance depends on the continued existence of a specific thing or person, an implied condition excuses performance if it perishes without fault.
• Facts in one line: the Surrey Music Hall, hired for four concert days, burned down before the first. Held: both parties excused.
• Background rule: a positive and absolute contract must be performed or damages paid, even if performance becomes impossible. This rule does not apply to contracts subject to an implied condition.
• Trap: the contract had no express clause about fire. The excuse comes from implication, not from the words of the agreement.
• Examples the Court gave: death of an author, a painter struck blind, an apprentice who dies, specific goods that perish, a horse that dies while bailed.
• Bench: Blackburn J. Date: 6 May 1863. Citation: 122 ER 309; 3 B. & S. 826.

Prepared from the full text of the judgment. The judgment has no numbered paragraphs.