C. A. 1903 STEAM BOAT V. HUTTON. The true effect and meaning of the contract and the sole object of it was that the ship should be a review-visiting ship; but as the object of the contract became impossible, so that the ship HERNE BAY never did in fact exist as a review-visiting ship, the contract was really one impossible of performance: Nickoll v. Ashton. (1) The principle of Taylor v. Caldwell (2)—that where the existence of a particular person, or thing, or state of things, can be regarded as the very foundation of the transaction, it may be implied that if the foundation fails, the transaction based on it ceases to be effectual-applies equally to the non-happening of a particular event. In short, the eventual non-existence of the subject-matter of a contract excuses the parties from performance: Hobson v. Pattenden. (3) [VAUGHAN WILLIAMS L.J. In Jackson v. Union Marine Insurance Co. (4) the rule in Taylor v. Caldwell (2) was held to apply although there was no certum corpus.] The rule in Taylor v. Caldwell (2) is not limited to a case in which the certum corpus has been destroyed: it has been extended to a case where the certum corpus is not capable of being used; and it has been further extended to a case in which the event specified in the contract does not happen. This contract should be regarded as having been made conditional upon the happening of the particular event, just as much as upon the continuation at a future date of a thing at present existing. The review was abandoned before there was any breach of contract, and that excused both parties. As to the contract operating as a demise of the ship, it has been held that a charter is not a demise: Scrutton on Charterparties and Bills of Lading, p. 6, citing Dean v. Hogg (5) and Lucas v. Nockells. (6) This was merely a conditional licence to the defendant to put a certain number of people on board this steamer. Moreover, this is not an ordinary case of hiring a ship for one person's own purposes, for the contract stipulated that ten (5) (1834) 10 Bing. 345; 38 R. R 443. (1) [1901] 2 K. B. 126, 133. (2) 3 B. & S. 826. (3) (1903) 88 L. T. 90; 19 Times L. R. 186. (4) (1874) L. R. 10 C. P. 125. (6) (1828) 4 Bing. 729; 29 R. R. 721. C. A. 1903 nominees of the plaintiffs should be taken on board: so that it was in reality a joint speculation, and in point of fact the HERNE BAY plaintiffs were themselves instrumental in selling tickets and STEAM BOAT in issuing notices of the intended trips. Again, the plaintiffs have themselves virtually repudiated the contract, for they chose to use the ship for their own purposes on the days in question. (1) COMPANY HUTTON. VAUGHAN WILLIAMS L.J. In my opinion this appeal must be allowed. I wish first to call attention to this, that what the plaintiffs originally claimed in this action was the sum of 2001., being the balance of the price of 250l. which was agreed to be paid. That actual sum, in my judgment, the plaintiffs are not entitled to recover: I do not think Mr. Lush could have borne in mind that that was the original claim, and, therefore, he regarded some of the observations of Grantham J., dealing with the original claim, as if they were applicable to the subsequent claim. In my judgment there was, in this case, before the time came for the performance of the contract, a plain repudiation by the defendant of his obligations under it; and this is in fact admitted. He refused to carry out the contract on his part, and the plaintiffs, acting very properly in the circumstances, employed the steamer on her usual daily services, and made what profit they could out of her during the two days they intended by the contract that the defendant should have the use of the vessel. Under these circumstances the plaintiffs' claim is really for damages for the defendant's refusal to carry out the contract, and it is agreed that these damages are not 2007., but that sum less the profit made by the plaintiffs from having the use of the ship after the repudiation of the contract by the defendant. These damages, I think, the plaintiffs are entitled to recover. In my opinion, this contract really placed the vessel at the disposal of the defendant for these particular days. The contract, which was signed by Mr. Jones, acting for the owners of the ship, runs thus: [The Lord Justice read it, and continued:-] According to my understanding of this con(1) See Elliott v. Crutchley, ante, p. 476, and Krell v. Henry, post, p. 740. C. A. 1903 HERNE BAY STEAM BOAT COMPANY ข. tract, this ship was placed at the disposal of Mr. Hutton really for those two days. Mr. Hansell says this does not constitute a demise of the ship, and with that I agree. It is very rarely that a charterparty does contain a demise of a ship. Generally speaking, the ship is not demised at all, but remains under the management and control of her owner. But at the same time this contract does, in my opinion, place the ship at the disposal Williams L.J. of Mr. Hutton, just as a charterparty places the vessel, the subject of it, at the disposal of the charterers. That being so, what is there besides in the present case? Only this, that Mr. Hutton, in hiring this vessel, had two objects in view: first, of taking people to see the naval review, and, secondly, of taking them round the fleet. Those, no doubt, were the purposes of Mr. Hutton, but it does not seem to me that because, as it is said, those purposes became impossible, it would be a very legitimate inference that the happening of the naval review was contemplated by both parties as the basis and foundation of this contract, so as to bring the case within the doctrine of Taylor v. Caldwell. (1) On the contrary, when the contract is properly regarded, I think the purpose of Mr. Hutton, whether of seeing the naval review or of going round the fleet with a party of paying guests, does not lay the foundation of the contract within the authorities. Having expressed that view, I do not know that there is any advantage to be gained by going on in any way to define what are the circumstances which might or might not constitute the happening of a particular contingency as the foundation of a contract. I will content myself with saying this, that I see nothing that makes this contract differ from a case where, for instance, a person has engaged a brake to take himself and a party to Epsom to see the races there, but for some reason or other, such as the spread of an infectious disease, the races are postponed. In such a case it could not be said that he could be relieved of his bargain. So in the present case it is sufficient to say that the happening of the naval review was not the foundation of the contract. (1) 3 B. & S. 826. HUTTON. Vaughan C. A. 1903 STEAM BOAT COMPANY HUTTON. ROMER L.J. I am of the same opinion. I may point out that this case is not one in which the HERNE BAY Subject-matter of the contract is a mere licence to the defendant to use a ship for the purpose of seeing the naval review and going round the fleet. In my opinion, as my Lord has said, it is a contract for the hiring of a ship by the defendant for a certain voyage, though having, no doubt, a special object, namely, to see the naval review and the fleet; but it appears to me that the object was a matter with which the defendant, as hirer of the ship, was alone concerned, and not the plaintiffs, the owners of the ship. The case cannot, in my opinion, be distinguished in principle from many common cases in which, on the hiring of a ship, you find the objects of the hiring stated. Very often you find the details of the voyage stated with particularity, and also the nature and details of the cargo to be carried. If the voyage is intended to be one of pleasure, the object in view may also be stated, which is a matter that concerns the passengers. But this statement of the objects of the hirer of the ship would not, in my opinion, justify him in saying that the owner of the ship had those objects just as much in view as the hirer himself. The owner would say, "I have an interest in the ship as a passenger or cargo carrying machine, and I enter into the contract simply in that capacity; it is for the hirer to concern himself about the objects." In the present case, with regard to the suggestion that there was something in the stipulation that the plaintiffs were to have the right on their part of placing ten persons on board, which would change the nature of the hiring, I need only say that there is nothing in that provision to lead the Court to treat the transaction otherwise than as an ordinary case of hiring a vessel: it does not make it in any sense a joint speculation or anything of that sort. The stipulation that the owners are "to have the right of ten persons above crew, &c., on board" only amounts to this, that in the eye of the law the defendant as the hirer of the ship licenses the owner to send ten persons on board. The view I have expressed with regard to the general C. A. 1903 COMPANY V. HUTTON. Romer L.J. effect of the contract before us is borne out by the following considerations. The ship (as a ship) had nothing particular to do with the review or the fleet except as a convenient HERNE BAY carrier of passengers to see it: any other ship suitable for STEAM BOAT carrying passengers would have done equally as well. Just as in the case of the hire of a cab or other vehicle, although the object of the hirer might be stated, that statement would not make the object any the less a matter for the hirer alone, and would not directly affect the person who was letting out the vehicle for hire. In the present case I may point out that it cannot be said that by reason of the failure to hold the naval review there was a total failure of consideration. That cannot be so. Nor is there anything like a total destruction of the subject-matter of the contract. Nor can we, in my opinion, imply in this contract any condition in favour of the defendant which would enable him to escape liability. A condition ought only to be implied in order to carry out the presumed intention of the parties, and I cannot ascertain any such presumed intention here. It follows that, in my opinion, so far as the plaintiffs are concerned, the objects of the passengers on this voyage with regard to sight-seeing do not form the subject-matter or essence of this contract. With regard to the one contention of fact on which the defendant relied, namely, that the plaintiffs, the owners of the ship, had on their part put themselves in the position of not having been able to carry out the contract, and so repudiated it, I can only say that the defendant has not proved his case. STIRLING L.J. I am of the same opinion. The plaintiffs are owners of a steam vessel for carrying passengers from Herne Bay to Gravesend and other places on the Thames. The defendant is a gentleman who seems to have formed the idea of making a profit by the conveyance of passengers on June 28 and 29 from Southampton to see the naval review, and afterwards for a cruise round the fleet. From the correspondence it appears to me to be clear that this venture was the venture of the defendant alone, and that although the plaintiffs assisted him by selling tickets and |