Nathan Clifford

“ Some stress is laid, in the opinion of the court, upon the words, 'with all possible despatch,' and the argument is, that they must have the same effect as a stipulation for a day certain. Covenant that the ship shall be at or sail from a certain place on a certain day, and there to receive cargo, says Mr. Parsons, is a condition precedent, and if she is not there on that day the freighter is discharged from all obligation to load her, as the condition, in that state of the case, is not fulfilled. ”

“ Fielden et al., that the stipulation as to sailing on the day named was a condition precedent, but the court expressly say, 'We entirely agree with the judgment of the Lord Chief Baron, in Terrabochia v. Hickie, who clearly points out the distinction between a stipulation to sail on a particular day and any general stipulation as to sailing 'in a convenient time,' or other words of the same description.' [27] Some answer ought to be given to this long and unbroken course of judicial decisions almost unparalleled for their ability and consistency in any other branch of commercial law. ”

“ Reason for the rule, as suggested by the same commentator, is that the construction which disconnects the promises and obliges each party to satisfy the other for so much of his promises as he has kept, saving his right to indemnity for any promises which are broken, will, in the vast majority of cases, do justice, complete justice, to both parties. ”

“ The purpose of the contract was to let and hire the ship for a voyage from Calcutta to a port in the United States. Defendants had no merchandise on hand, and they had not sent out any agent to make the purchases. Time, frequently a long time, is required to purchase large cargoes in that market. Adventure was to be undertaken in a distant port which would involve great expense, and that expense would be greatly increased if the vessel or vessels were sent from the ports of the United States without a profitable outward cargo. ”

“ Opinion of the Chief Baron is a very able one, going over the whole ground and reviewing the principles involved in all the preceding cases. All of the cases decided prior to 1857, when the judgment was given for the plaintiff, were cited at the argument, and it does not appear to have even occurred to the learned Baron that he was guilty of any inconsistency in pronouncing the judgment. ”

“ But where the stipulation as to time is not of a day certain, or where the statement relied on is not of an existing fact, or is expressed in indefinite terms, the rule is otherwise by all the authorities. Take, for example, the case of Constable v. Cloberie, [11] which is an early case upon the subject. Covenant was to sail with the first wind, and the covenant was not performed; but the court held that the covenant was not a condition precedent. a remedy on the contract, and shall not plead it as a condition precedent. ”