possibility of its performance. Taylor v. Caldwell, per Blackburn, J. (1863) 3 Best & S. 826, 122 Eng. Reprint, 309, 32 L. J. Q. B. N. S. 164, 8 L. T. N. S. 356, 11 Week. Rep. 726, 6 Eng. Rul. Cas. 603; Holme v. Guppy (1838) 3 Mees. & W. 387, 150 Eng. Reprint, 1195, 1 Jur. 825; William Morton v. Muir Brothers & Company [1907] S. C. 1211, per Lord M'Laren at 1224, 44 Scot. L. R. 885, at 892; Chandler v. Webster [1904] 1 K. B. 493, per Collins, M. R., at 499, also reported in 73 L. J. K. B. N. S. 401, 52 Week. Rep. 298, 90 L. T. N. S. 217, 20 Times L. R. 222; Krell v. Henry [1903] 2 K. B. 740, per Vaughan Williams, L.J., at 749, also reported in 72 L. J. K. B. N. S. 794, 89 L. T. N. S. 328, 19 Times L. R. 711, 52 Week. Rep. 246; Blakeley v. Muller (1903) 88 L. T. N. S. 90, 67 J. P. 51, 19 Times L. R. 186; Hobson v. Pattenden (1903) 88 L. T. N. S. 91; Nickoll & Knight v. Ashton, Eldridge & Company [1901] 2 K. B. 126, 70 L. J. K. B. N. S. 600, 49 Week. Rep. 513, 84 L. T. N. S. 804, 17 Times L. R. 467, 6 Com. Cas. 151, 9 Asp. Mar. L. Cas. 209; Straker v. Kidd, per Lush, J. (1878) 3 K. B. 223, 47 L. J. Q. B. N. S. 365, 26 Week. Rep. 511, 4 Asp. Mar. L. Cas. 34, note; Porteus v. Watney (1878) 3 Q. B. D. 223, 227 per Thesiger, L. J., at 536; Howell v. Coupland (1876) 1 Q. B. D. 258, per Lord Coleridge, Ch. J., at 261, also reported in 46 L. J. Q. B. N. S. 147, 33 L. T. N. S. 832, 24 Week. Rep. 470; Clifford v. Watts (1870) L. R. 5 C. P. 577, 40 L. J. C. P. N. S. 36, 22 L. T. N. S. 717, 18 Week. Rep. 925; Roberts v. Bury Commissioners (1870) L. R. 5 C. P. 310, 39 L. J. C. P. N. S. 129, 22 L. T. N. S. 132, 18 Week. Rep. 702, per Blackburn and Mellor, J.J., at 325; Leer v. Yates (1811) 3 Taunt. 387, 128 Eng. Reprint, 154, 12 Revised Rep. 671, 9 Eng. Rul. Cas. 219, per Mansfield, Ch. J., at 393; Hudson on Building Contracts (4th ed.), vol. 1, pp. 284, 315, and 319, note (2); Addison on Contracts (11th ed.) p. 53; Pothier's Traites de Droit. Civil, tome ii, partie ii, chap. 1, § 3. Admittedly, in shipping cases, a consignee might be rendered liable in damages through the intervention of a third party, rendering the contract difficult of fulfilment, but that resulted from the special nature of shipping contracts. In cases relating to bills of lading, as distinguished from contracts of location, the shipowner had fulfilled all his

obligations when the ship was ready to discharge, whereas in a case such as the present defenders had not fulfilled their obligations until they had provided a subject in such a state that the pursuers could enter to complete their work. Dampskibsselskabet Danmark v. Poulsen & Company [1913] S. C. 1043, 50 Scot. L. R. 843; Whites v. Steamship "Winchester" Company, February 5, 1886, 13 S. C. Sess. Cas. 4th series (Rettie) 524, per Lord Shand at 537, 23 Scot. L. R. 342, at 348; "The Austin Friars" (1894) 10 Times L. R. 633; Budgett & Company v. Binnington & Company [1891] 1 Q. B. 35, per Lord Esher, M. R., at 37, also reported in 60 L. J. Q. B. N. S. 1, 39 Week. Rep. 131, 6 Asp. Mar. L. Cas. 592; Inman Steamship Company v. Bischoff (1882) 7 App. Cas. 670, per Lord Selborne, L.C., at 676, and Lord Watson at 689, also reported in 52 L. J. Q. B. N. S. 169, 47 L. T. N. S. 581, 31 Week. Rep. 141, 5 Asp. Mar. L. Cas. 6; Dahl v. Nelson, Donkin, & Company (1881) 6 App. Cas. 38, per Lord Blackburn at 53 and Lord Watson at 61, also reported in 50 L. J. Ch. N. S. 411, 44 L. T. N. S. 381, 29 Week. Rep. 543, 4 Asp. Mar. L. Cas. 392, 9 Eng. Rul. Cas. 234, Jackson v. Union Marine Insurance Company (1874) L.R., 10 C. P. 125, per Bramwell B, at 142, also reported in 44 L. J. C. P. N. S. 27, 31 Times L. R. 789, 23 Week. Rep. 169, 2 Asp. Mar. L. Cas. 435, 6 Eng. Rul. Cas. 650; Scrutton on Charter-Parties and Bills of Lading (6th ed), at p. 82.

At advising

Lord Dundas: The pursuers, a firm of wrights and building contractors, sue the defenders for 3131. as the unpaid balance of their account for the carpenter, joiner, and glazier work for four tenements erected by the defenders in Garrioch Crescent. The pursuers' offer, dated 9th September, 1909, and accepted on be half of the defenders on the same day, was in these terms: "We offer to execute the work specified in the foregoing schedule for the sum of 2,1281., and undertake to finish our department of the work by 15th April, next."

The first and most difficult question arises in connection with the concluding words above quoted. It it admitted that the pursuers' work on the tenements was not finished until the early days of June, 1910. The defenders claim damages estimated at

3007. on account of delay in completion from and after 15th April. The question must turn primarily upon the proper construction to be put upon the language of the contract. In construing it I do not doubt that the court must keep in view the surrounding circumstances at its date. The defenders contend that the pursuers entered into an absolute independent and unconditional undertaking to finish their department of the work by 15th April, 1910, apart altogether from any delay on the part of the other contractors (also, with one exception, bound by time limits), which might make the completion of the pursuers' share of the work before 15th April impossible. The pursuers maintain that their undertaking was not absolute and independent, but was subject to the implied condition precedent that the other work on the tenements should be completed at such date or dates as to make it possible for the pursuers to finish their department of the work by 15th April. I think the pursuers' construction of the contract is the right one. I agree with the learned sheriff in thinking that the defenders' construction is not one which would readily be presumed in the absence of clear and specific expression to that effect; and the pursuers' undertaking to "finish our department of the work by 15th April next" seems to me to indicate that their undertaking is to be read with relation to the [794] conditions of other "departments." The case does not appear to me to fall under the rule laid down in well-known shipping cases. e. g. Straker v. Kidd (1877) 3 Q. B. D. 223, 47 L. J. Q. B. N. S. 365, 26 Week. Rep. 511, 4 Asp. Mar. L. Cas. 34, note; Porteus v. Watney (1877) 3 Q. B. D. p. 534, 47 L. J. Q. B. N. S. 643, 39 L. T. N. S. 195, 27 Week. Rep. 30, 4 Asp. Mar. L. Cas. 34, 9 Eng. Rul. Cas. 269; Budgett v. Binnington [1891] 1 Q. B. 35, 60 L. J. Q. B. N. S. 1, 39 Week. Rep. 131, 6 Asp. Mar. L. Cas. 592, where an absolute and independent obligation has been undertaken, e. g., to "discharge the whole cargo" of a ship within a stated number of days after the vessel has arrived and is ready and willing to deliver. If the present pursuers had been rash enough to undertake that "the whole work" should be finished by a fixed date, their position would have been obviously different. It may well be that no contractor in the pursuers' position would have entered into such a bargain, yet

this is what the defenders contend, as a matter of construction, that the pursuers did. The case seems to me more analogous to such cases as Taylor v. Caldwell (1863) 3 Best. & S. 826, 122 Eng. Reprint, 309, 32 L. J. Q. B. N. S. 164, 8 L. T. N. S. 356, 11 Week. Rep. 726, 6 Eng. Rul. Cas. 603; and Howell v. Coupland (1876) 1 Q. B. D. 258, 46 L. J. Q. B. N. S. 147, 33 L. T. N. S. 832, 24 Week. Rep. 470, where parties must be considered to have known from the beginning that performance would be impossible unless, when the time for fulfilment of the contract arrived, a particular specified thing continued to exist or should have come into existence as the foundation of what was to be done. Such contracts have been held to be not positive, but subject to the implied condition that the parties shall be excused in case, before breach, performance becomes impossible by reason of the perishing or the nonexistence of the thing without default of the contractor. I think the pursuers are entitled to appeal to this doctrine, not as justifying them in the circumstances in declaring the contract at an end, but as absolving them from the condition as to completion by 15th April, if and in so far as it became impossible to finish their work by that date through no fault of their own, but because the subject upon which they were to operate was not in existence in a proper state for such work in time to enable the pursuers to finish it by 15th April. I do not think the rigid and absolute construction of this contract for which the defenders contend will do at all. Suppose the erection of the tenements had not been begun by 15th April, it would surely have been out of the question to hold the pursuers liable in damages for failure to finish their department of the work by that date. The matter must, I think, be one of degree; and it seems to me that before the joiners could be held liable for nonimplement of the time clause it would have to be established that the buildings had reached the various stages at which joiner work upon them became possible at such dates as to make it possible for the pursuers to finish their work by the appointed day. Otherwise the subject which was contemplated as the necessary foundation of what was to be done had never, ex hypothesi, come into existence. It is true that the pursuers are unable to say that the defenders were personally the cause of any delay which took

place; and it might be difficult to hold that the other contractors were in the circumstances the agents or the servants of the defenders, so that delay by these contractors should in law be held as delay by the defenders, though some countenance for such a view seems to be found in Holme v. Guppy (1838) 3 Mees. & W. 387, see p. 388, note (a), 150 Eng. Reprint, 1195, 1 Jur. 825, and in a Canadian case cited by Hudson on Building Contracts (4th ed. p. 319)-Yates v. Law (1866) 25 U. C. Q. B. 562. See also Hudson at p. 648. But it is not necessary for the pursuers to peril their case on that ground. It is enough, I think, for them to say that on a sound construction of the contract they are absolved from the time limit if and so far as, from any cause apart from their own default, the subject-matter upon which they were to operate was not in fact available to them at such time or times as to make it possible for them to finish their work by 15th April. If this view be correct, as I think it is, then the pursuers would be entitled to found, as a cause of their delay, not only upon the initial difficulties with the masons, and with the foundations, but also upon the delay of the masons' operations in consequence of frost. I do not suggest that in the ordinary case a contractor will be absolved from his failure to complete before a stipulated day because his work was retarded by unpropitious weather; the contrary has, I think, often been decided. But if my construction of this contract is sound it seems to me that the pursuers were entitled as a condition precedent to obtain timeous access to the physical subject upon which their work was to be performed; and that if this were withheld from them by any cause they would be proportionally freed from the operation of the time limit.

One has next to consider whether the pursuers have succeeded in establishing—the burden of proof being upon them—that their delay in finishing their department of the work was occasioned by their inability to obtain timeous access to the area or subject of their operations. This is a matter of fact. The learned Sheriff-Substitute, who took the proof, and also the sheriff, both of whom evidently treated the case with very great care and attention, give their verdict for the pursuers. I should be slow to disturb their conclusion unless I were satisfied that it was clearly