Turnbull v McLean & Co (1874) 1R 729
Citation: Turnbull v McLean & Co (1874) 1R 729
Rule of thumb: If you have a contract with a supplier for a material to be supplied periodically, and the material is not delivered by the supplier so you stop paying, can you still get a Court order for the supplier to provide the material? No, once you stop paying the contract is deemed to be over and you cannot get a Court order for the supplier to provide the material – if you want the Court order you have to keep making the payments.
Judgment:
The basic facts of this case were that Turnbull was a wholesaler who purchased coal for export. Turnbull had agreed to pay a monthly fee in return for a stipulated amount of coal. Turnbull refused to pay the money McLean after a dispute over various matters – delay, quality, quantity - and McLean stopped the delivery of coal. Turnbull tried to seek specific implement to keep McLean providing the coal. The Court held that Turnbull could not do this as he was refusing to pay the money for the coal, which was his material mutual obligation under the contract, meaning that he could not continue to enforce it. This Court established the underlying mutuality of obligations principle in many cases. The Court held that where one side of the contract is not performing their central obligations, the other side does not need to perform theirs, ‘I understand the law of Scotland, in regard to mutual contracts, to be quite clear:- First, that the stipulations on either side are the counterparts and the consideration given for each other. Second, that a failure to perform any material or substantial part of the contract on the part of one will prevent him from suing the other for performance...', Lord Justice-Clerk Moncrieff
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