Two contracts sold 2500 cases of ‘British Columbia Fraser river salmon’. The first said: ‘The salmon to be the first 2500 cases of half lb flat pinks packed by the St Mungo Cannery during the season of 1917’. The second provided: ‘The salmon to be the first 2500 cases of .5 lb flat pinks packed by the Acme Cannery.’ To cover themselves on the contracts the sellers made contracts with a third party who in turn made contracts with the St Mungo and the Acme Canneries. The St Mungo Cannery found that a quantity of their tins was defective and by the time they had replaced them the run of salmon in 1917 had ceased. The Acme Cannery filled their 1 lb tins first and when they came to use their .5lb tins the run of fish had ceased. By reason of these events the sellers were unable to fulfil the two contracts, and when faced with a claim for non-delivery pleaded, inter alia, that both contracts had been frustrated. The umpire found in favour of the buyers.
Held: The award was upheld. McCardie J said: ‘In my opinion the decision in Howell v Coupland does not cover the present case. The vendors here must, I think, be treated, for the purposes of the present contracts, as occupying the position of the St Mungo Cannery Co. and the Acme Cannery Co. They cannot rely on any defence or failure of subject-matter which those companies (if they were defendants in the present proceedings) would be disabled from relying upon. This being so, I point out that it is clear that there was no failure of the fish crop at all. It was indeed larger than usual. The reason for the default was in the one case the omission of St Mungo Co to provide good tins, and was in the other case the deliberate choice of Acme Co to pack 1 lb tins in priority to .5 lb tins . . . There is no scope here for an application of the Howell v Coupland principle. If it were to be applied to such a case as the present, the result would be greatly to impair the obligation of vendors.’
Citations:
[1920] 2 KB 714
Jurisdiction:
England and Wales
Cited by:
Cited – CTI Group Inc v Transclear Sa Comc 14-Sep-2007
The parties had contracted for the sale of concrete. The buyers appealed findings by an arbitrator that the contracts were both frustrated for the inability of the seller to complete after the intervention of a company with an effective monopoly, . .
Lists of cited by and citing cases may be incomplete.
Contract
Updated: 06 December 2022; Ref: scu.259381