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These cases are from the lawindexpro database. They are now being transferred to the swarb.co.uk website in a better form. As a case is published there, an entry here will link to it. The swarb.co.uk site includes many later cases.  














Contract - From: 1900 To: 1929

This page lists 326 cases, and was prepared on 20 May 2019.

 
Townsend v Jarman [1900] 2 Ch 698
1900

Farwell J
Company, Contract
A partner gave a covenant not to carry on the business of a corn, seed or manure merchant or nurseryman within a distance of 40 miles from Chard. The partners sold the business to a company, of which they remained directors. It was wound up, and the goodwill sold to Mr Townsend. Held. The benefit of the restrictive covenant passed as incident to the goodwill. Where there is a sale of the goodwill of a business, an assignment of a restrictive covenant will be implied, if it is not expressly excluded.
1 Citers


 
Ruabon Steamship Co v The London Assurance Co [1900] AC 61
1900

Lord Halisbury
Contract, Damages
Lord Halisbury said: "I cannot understand how it can be asserted that it is part of the common law that where one person gets some advantage from the act of another, a right of contribution towards the expense from that act arises." Rejecting the argument, he continued: "But this is the first time in which it has sought to advance that principle where there is nothing in common between the two persons, except that one person has taken advantage of something that another person has done, there being no contract between them, there being no obligation by which each of them is bound, and the duty to contribute is alleged to arise only on some general principle of justice, that a man ought not to get an advantage unless he pays for it. So that if a man were to cut down a wood which obscured his neighbour's prospect and gave him a better view, he ought in principle to be compelled to contribute to cutting down the wood."
1 Citers


 
Varley v Whipp [1900] 1 QB 513
1900
QBD
Channell, Bucknill JJ
Contract
The defendant agreed to buy from the plaintiff a self binder reaping machine, which the defendant had not seen, but which the plaintiff told him had been new the previous year and was represented to have only been used to cut 50 or 60 acres. On delivery the machine was rejected by the defendant, who complained that it was very old and had been mended. He returned the machine and the plaintiff sued to recover the price. Held: There had been a contract for the sale of goods by description and, there having been no acceptance of the machine by the defendant, that the property had not passed to him, so that the plaintiff could not recover the price.
Specific or ascertained goods may be "bought by description" within the meaning of this provision; it is not limited to unascertained goods.
Channell J said: "The term 'sale of goods by description' must apply to all cases where the purchaser has not seen the goods, but is relying on the description alone. It applies in a case like the present, where the buyer has never seen the article sold, but has bought by the description. In that case, by the Sale of Goods Act, 1893, s.13, there is an implied condition that the goods shall correspond with the description, which is a different thing from a warranty. The most usual application of that section no doubt is to the case of unascertained goods, but I think it must also be applied to cases such as this where there is no identification otherwise than by description."
Sale of Goods Act 1893 13
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British Workman's and General Assurance Co Ltd v Wilkinson (1900) 8 SLT 67
1900

Lord Kyllachy
Contract
The company sought interdict against an insurance agent who had left their service, to prevent him from trying to induce their other agents to leave and their customers to transfer their insurances. The agent's written contract of employment did not contain any prohibition of this type of conduct but the contract had followed on a letter of application by the agent in which he had expressly agreed that, on the termination of the engagement, he would "not interfere with the Company's agents, assurants, or business in any way whatever". Held: This was part of the contract: "It may not have been incorporated in the document which announced the respondent's appointment, and in doing so professed to set out the terms of employment. But it was included in his application, and was at least a collateral undertaking on the faith of which he must be held to have been employed."

 
Burrell and Son v Russell and Co [1900] UKHL 641; Lord Chancellor (Halsbury), and Lords Macnaghten, Morris, and Davey
26 Mar 1900
HL
Lord Chancellor (Halsbury), and Lords Macnaghten, Morris, and Davey
Contract
By a written contract for the construction of certain ships the plans were expressly incorporated with the contract. These plans showed the vessels with straight keels, but as actually constructed the keels were cambered or arched so as to have a curve inwards. The effect of the camber was to increase the carrying capacity of the vessel, but it gave rise at the same time to inconvenience and expense when the vessel required to be docked, and was generally regarded as a serious defect unless it was of such slight amount that the keel would become straight when the vessel was loaded with cargo owing to the extra weight amidships.
A claim of damages by the shipowners on account of the camber, which had not disappeared in the manner indicated, was met by the defence that it had been resorted to in compliance with oral instructions given by the pursuers subsequent to the date of the written contract, and a proof in regard to this averment was, without objection, led before the Lord Ordinary. Evidence upon which held ( rev. the judgment of the Lord Ordinary and of the First Division) that the defenders had failed to prove the alleged verbal modification of the contract.
[ Bailii ]
 
De Lassalle v Guildford [1901] 2 KB 215
1901
CA
AL Smith MR
Contract
The court was asked whether a representation amounts to a warranty or not. Held: AL Smith MR said: "In determining whether it was so intended, a decisive test is whether the vendor assumes to assert a fact of which the buyer is ignorant, or merely states an opinion or judgment upon a matter of which the vendor has no special knowledge, and on which the buyer may be expected also to have an opinion and to exercise his judgment."
1 Citers


 
Turner v Reeve (1901) TLR 592
1901


Contract
Save in exceptional circumstances, the provider of a service is entitled to be paid.
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Taylor v Great Eastern Railway Company [1901] 1 KB 774
1901

Bigham J
Contract, Consumer
The section provided that: "A contract for the sale of any goods of the value of ten pounds or upwards shall not be enforceable by action unless the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the contract be made and signed by the party to be charged or his agent in that behalf." Held: Bigham J said of a contract which failed to meet the requirement: "The contract is good. The only effect of the non-fulfilment of the statutory conditions is that it is unenforceable. And, the contract being good, all the legal consequences of a contract follow; so that, if the contract is for the sale of specific goods, the property in the goods passes to the buyer."
Sale of Goods Act 1893 4(1)
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 De Lasalle v Guildford; CA 1901 - [1900-3] All ER 495; [1901] 2 KB 215
 
Graham v Belfast and Northern Counties Railway Co [1901] 2 IR 13
1901

Johnson J
Contract
The court had to construe the phrase 'wilful misconduct'. Held: “Wilful misconduct in such a special condition means misconduct to which the will is party as contradistinguished from accident, and is far beyond any negligence, even gross or culpable negligence, and involves that a person wilfully misconducts himself who knows and appreciates that it is wrong conduct on his part in the existing circumstances to do, or to fail or omit to do (as the case may be), a particular thing and yet intentionally does or fails or omits to do it, or persists in the act, failure or omission regardless of the consequences.”
1 Citers


 
Whitbread and Co Ltd v Watt [1901 1 Ch 911
1901
ChD
Farwell J
Contract, Land
The purchaser contracted to purchase a plot on a building estate belonging to the vendor. The contract provided that "the purchase is to be completed as soon as 300 houses shall have been erected on the said estate". Thus the contract was one under which completion was conditional. It also contained a provision entitling the purchaser to rescind the contract by giving notice to that effect "if 300 houses shall not be erected on the said estate within two years from the date of this agreement". The purchaser rescinded the contract and claimed a lien to secure repayment to him of the deposit paid by him on signing the contract. The vendor contended that there was no lien as the contract had not gone off due to any default of his. Held: It was not necessary for the purchaser to show any fault on the part of the seller. Farwell J said: "The lien is created by the contract under which the money is paid as part of the purchase-money, and on the faith that the contract will be carried out, and not by default of the vendor. The default gives rise to the necessity for enforcing the lien, but the lien arises from the contract. I see no reason why a condition that, if 300 houses are not built, the purchaser may rescind should be held to differ in any way from the ordinary condition in a contract that, if the purchaser makes or insists upon any requisition or objection to the title which the vendor is unable or unwilling to comply with, the vendor may rescind."
1 Citers


 
Lever v Koffler [1901] Ch 543
1901


Contract
An offer was made in writing by the Defendant to sell two parcels of real property on alternative bases, where one of the alternatives was accepted both orally and by letter by the Plaintiff. He suggested two bases upon which the 1677 Act operated to make the Plaintiff's apparent acceptance of the offer not binding: the reply letter did not define which alternative was being accepted and secondly that the letter from the Defendant did not sufficiently set out the terms of the agreement. Held: The first point failed under construction of the letters, and the second was rejected in applying Hussey.
Statute of Frauds 1677 4
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Handel v The City of London Brewery [1901] Ch D 496
1901


Contract, Landlord and Tenant

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International Fibre Syndicate Ltd v Dawson [1901] UKHL 578; 38 SLR 578
9 May 1901
HL
Lord Chancellor (Halsbury), and Lords Ashbourne, Shand, Davey, Brampton, and Robertson
Contract
A, the owner of a patent for a fibre decorticating machine, entered into an agreement with B, the owner of an estate in Borneo, whereby it was stipulated that A should supply and erect one of the machines on B's estate, and if it proved satisfactory that B should pay for it a sum to cover cost, freight, and cost of erection, that terms should be arranged for the use of the decorticators on the estate, and that the area under fibre cultivation should be increased by 25 acres per three months up to 1000 acres. A decorticating machine was supplied and erected by A. Within a year after the date of this contract, and after the supply and delivery of the machine, he assigned his patent to a limited liability company, together with "licences, concessions, and the like," receiving certain shares in the company, inter alia, for the patent, and for "contracts and concessions." Thereafter the company with consent of A brought an action against B, in which they sued as assignees of the contract between A and B. They ultimately restricted their claim to the sum due for the machine supplied and erected by A. In defence B pleaded "No title to sue." Held (affirming the judgment of the Second Division) that this plea must be sustained, in respect (1) that the contract between A and B as a whole involved delectus personae, and was consequently not assignable; and (2) that any jus crediti for a money payment arising out of the contract, if there was any assignable claim of that kind which had become a complete debt before the date of the assignation, had not in fact been assigned.
[ Bailii ]
 
Kirkcaldy and District Railway Co v Caledonian Railway Co [1901] UKHL 579; 38 SLR 579
10 May 1901
HL
Lord Chancellor (Halsbury), and Lords Ashbourne, Shand, Davey, Brampton
Contract
The Caledonian Railway Company, being anxious to obtain direct access into the county of Fife, agreed with the Kirkcaldy and District Railway Company that the latter should promote a bill for the construction of four railways. it was agreed between the parties that, in the event of the bill authorising the construction of the railways not receiving the Royal Assent from any cause other than the withdrawal therefrom of the support of the Caledonian Railway Company, that company should "contribute towards the expense of the said bill (1) two-thirds of all outlays incurred in connection with the promotion of the bill; (2) one-third of the professional charges . . in connection with such promotion." the House of Lords held the preamble not to be proved so far as it related to the three railways Nos. one, two, and four included in the bill. These three were the only ones in which the Caledonian Railway Company was interested. The preamble was held to be proved as regards railway No. 3.
In an action at the instance of the Kirkcaldy Railway Company against the Caledonian Railway Company for payment of the proportionate amount of expenses connected with the bill, in accordance with the agreement between the parties, the defenders maintained-(1st) that the bill had in fact received the Royal Assent, and that on a sound construction of the agreement they were not liable for any portion of the sum claimed, and (2nd) that their obligation was one of relief only, and that as the whole expenses bad been paid by the North British Railway Company and not by the pursuers the claim of relief must fail.
Held (aff. judgment of the First Division) that under the agreement the defenders were liable in the sum sued for.
[ Bailii ]
 
John Paterson and Son Ltd v Corporation of Glasgow [1901] UKHL 855; 38 SLR 855
29 Jul 1901
HL
Lord Chancellor (Halsbury), Lord Macnaghten, Lord James of Hereford, Lord Brampton, Lord Robertson, and Lord Lindley
Arbitration, Contract
A firm of contractors undertook a contract to construct a sewer for the Corporation of Glasgow at certain scheduled rates. During the progress of the work it was found impossible owing to the nature of the soil to drive a tunnel by the ordinary method. The contractors were then instructed to continue the work by means of the air pressure system, which was more costly, and the Corporation agreed to refer the question of the amount to be paid to them "in respect of the extra cost incurred by the necessary adoption of the said system of air-pressure" to a certain arbiter who was a civil engineer in Glasgow. No formal submission was entered into. The parties subsequently agreed to submit to the arbiter certain items of the contractors' account, other than those relating to the use of air-pressure, which they were unable to adjust. After hearing parties and examining the accounts and making certain measurements, the arbiter issued a note of proposed findings at which he had arrived without hearing evidence, but intimated that, although he did not consider it essential he was prepared to hear proof if desired. Thereafter he made an order for proof, and in a note appended thereto he added-"Both parties having distinctly agreed that they were not to be represented by law-agents, the arbiter cannot now see his way to allow this arrangement to be broken unless mutually agreed upon." In the proceedings up to this time the parties had not been represented by law-agents. The contractors refused to accept a proof upon these conditions, and denied that they had entered into such an arrangement. The arbiter thereupon cancelled the order for proof, and issued a note of proposed findings, in which he awarded a gross sum "as the total amount due in respect of the work done by the claimants in connection with this contract." After allowing time for representations the arbiter issued a formal decree-arbitral. The findings and the decree-arbitral did not show what sums were respectively awarded in respect of the use of air-pressure and in respect of the disputed items of the account.
In an action by the contractors for reduction of the decree-arbitral upon the ground (1) that the arbiter had refused to hear evidence as to the actual cost of using air-pressure; (2) that he had proceeded ultra fines compromises by finding what was a reasonable sum to be allowed for the use of air-pressure instead of determining the actual extra cost of using it; (3) that the decree-arbitral did not distinguish between the amount allowed for the use of air-pressure and for the other disputed items; and (4) that he had acted illegally in refusing to hear proof except on condition that parties should not be represented by law-agents- held ( rev. judgment of the Second Division, and restoring judgment of the Lord Ordinary, Kyllachy) that the defenders were entitled to absolvitor, in. respect that this was an informal arbitration in which the matter in dispute was referred to the personal skill and local knowledge of the arbiter, and in which proof was not essential; that in the circumstances the arbiter was entitled to refuse to allow parties to be represented by law-agents-the understanding between parties acted on up to that time being that law-agents were not to be employed, and the question of whether law-agents should be allowed in an arbitration being one of procedure for the consideration of the arbiter; and that although he gave an opportunity of making representations against his proposed findings, no request was made to him by the contractors to divide the amount of the award into separate items.
[ Bailii ]
 
Quinn v Leathem [1901] AC 495; [1901] UKHL 2
5 Aug 1901
HL
Lord Shand, Lord Macnaghten, Lord Lindley, Earl of Halsbury LC
Torts - Other, Contract, Constitutional
Quinn was treasurer of a Belfast butchers' association. Leathem, who traded as a butcher, employed some non-union men, although when the union made difficulties he asked for them to be admitted to the union, and offered to pay their dues. The union put pressure on Munce, a wholesale customer of Leathem, to stop buying his meat. It also called out Dickie, one of Leathem's employees. The jury found for Leathem, holding that there had been a malicious conspiracy between Quinn and other officers of the union. The Irish Court of Appeal affirmed this. Held: The appeal failed. A conspiracy 'wrongfully and maliciously' to induce customers and servants of the plaintiff not to deal with him was actionable on proof of damage. Though the coming together of a group of people is lawful, even though it results in injury to the interests of others, such an agreement for no purpose other than the pursuit of a malicious purpose to injure another would be unlawful. Any violation of legal rights, including rights under contract, committed knowingly and without justification, is a tortious act.
Lord MacNaghten said of Lumley v Gye: "I have no hesitation in saying that I think the decision was right, not on the ground of malicious intention - that was not, I think, the gist of the action - but on the ground that a violation of a legal right committed knowingly is a cause of action, and that it is a violation of legal right to interfere with contractual relations recognised by law if there be no sufficient justification for the interference."
He explained the rationale of the tort as follows: "a person's liberty or right to deal with others is nugatory, unless they are at liberty to deal with him if they choose to do so. Any interference with their liberty to deal with him affects him. If such interference is justifiable in point of law, he has no redress. Again, if such interference is wrongful, the only person who can sue in respect of it is, as a rule, the person immediately affected by it; another who suffers by it has usually no redress; the damage to him is too remote, and it would be obviously practically impossible and highly inconvenient to give legal redress to all who suffer from such wrongs. But if the interference is wrongful and is intended to damage a third person, and he is damaged in fact-in other words, if he is wrongfully and intentionally struck at through others, and is thereby damnified the whole aspect of the case is changed: the wrong done to others reaches him, his rights are infringed although indirectly, and damage to him is not remote or unforeseen, but is the direct consequence of what has been done."
Lord Lindley said that Lumley v Gye tort was an example of causing loss by unlawful means: "If the above reasoning is correct, Lumley v. Gye was rightly decided, as I am of opinion it clearly was. Further, the principle involved in it cannot be confined to inducements to break contracts of service, or indeed to inducements to break any contracts. The principle which underlies the decision reaches all wrongful acts done intentionally to damage a particular individual and actually damaging him." and
"a person's liberty or right to deal with others is nugatory, unless they are at liberty to deal with him if they choose to do so. Any interference with their liberty to deal with him affects him. If such interference is justifiable in point of law, he has no redress. Again, if such interference is wrongful, the only person who can sue in respect of it is, as a rule, the person immediately affected by it; another who suffers by it has usually no redress; the damage to him is too remote, and it would be obviously practically impossible and highly inconvenient to give legal redress to all who suffer from such wrongs. But if the interference is wrongful and is intended to damage a third person, and he is damaged in fact - in other words, if he is wrongfully and intentionally struck at through others, and is thereby damnified - the whole aspect of the case is changed: the wrong done to others reaches him, his rights are infringed although indirectly, and damage to him is not remote or unforeseen, but is the direct consequence of what has been done."
Lord Shand distinguished Allen v Flood: "As to the vital distinction between Allen v Flood and the present case, it may be stated in a single sentence. In Allen v Flood the purpose of the defendant was by the acts complained of to promote his own trade interest, which it was held he was entitled to do, although injurious to his competitors, whereas in the present case, while it is clear there was combination, the purpose of the defendants was 'to injure the plaintiff in his trade as distinguish from the intention of legitimately advancing their own interest.'"
Earl of Halsbury LC said: ". . a case is only an authority for what it actually decides."
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[ Bailii ]
 
Tolhurst v Associated Portland Cement Manufacturers Ltd [1902] 2 KB 660
1902


Contract

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Economic Life Assurance Society v Usborne [1902] AC 147
1902
HL
Lord Halsbury
Contract, Land
If the loan agreement provides that the contract term for payment of interest survives judgment, then the contract term remains enforceable after judgment. Lord Halsbury said: "My Lords, it seems to me that Fry LJ in the case of Ex parte Fewings . . which has been so often referred to, has with great precision and accuracy put the whole point . . My Lords, if that is accurate, and I believe it to be absolutely accurate and precise, it seems to me that the question is a simple one: it is a question of the construction of this particular deed and the remedy that is now being enforced."
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Whitbread and Co Ltd v Watt [1902] 1 Ch 835
1902
CA
Williams LJ, Stirling LJ
Contract, Land
The buyer agreed to buy a house when the developer had finished 300 houses on the site, but now sought return of his deposit. Held: The developer's appeal against an order for the return of the deposit failed.
Williams LJ said: "The lien which a purchaser has for his deposit is not the result of any express contract: it is a right which may be said to have been invented for the purpose of doing justice. It is fiction of a kind which is sometimes resorted to at law as well as in equity. For instance, when an action is brought for money had and received to the use of the plaintiff, it is not true that the money has been so received, but that is the way in which the law states the case in order to do justice. When Lord Westbury in Rose v. Watson speaks of a "transfer to the purchaser of the ownership of a part of the estate corresponding to the purchase-money paid," and Lord Cranworth speaks of the purchaser being exactly in the same position of a mortgagee of the estate to the extent of the purchase-money which he has paid, those expressions are merely verbal vehicles to carry the right which justice demands that the purchaser should have. Having read the report of Rose v. Watson, I must say that, speaking for myself, I agree with Mr. Brinton to this extent, that the decision does not expressly carry the purchaser's lien beyond a case in which the contract has gone off through the default of the vendor."
Stirling LJ said: "It is, I think, quite true, as Mr. Brinton has contended, that the question of the existence of the purchaser's lien for his deposit arises in the present case in circumstances which differ from those of all previous reported cases. The contract has here been brought to an end, not by any act or default of the vendor, but by reason of the purchaser's exercising a power of rescinding it which is reserved to him by the contract itself. This does not seem to have occurred in any previous case. Nevertheless, in the judgments in the two leading cases on the subject, Wythes v. Lee and Rose v. Watson, the rule is stated in terms which cover the present case. And, if we look at that which is really the foundation of the doctrine, namely the desire to do justice as between vendor and purchaser, it appears to me that reason applies no less forcibly in the present case than in the ordinary case in which the rescission of the contract takes place by reason of some default on the part of the vendor. In a case in which the vendor had rescinded under a power reserved to him, it would, I think, be absolute injustice if the purchaser were not allowed to have a lien for the purchase-money which he had paid, and by which was the security on his part for the performance by him of the contract. I think also the justice of the case requires that the purchaser should have a lien when the contract reserves to him a power to rescind."
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Reeve v Lisle and others [1902] 1 Ch 53
1902
CA
Vaughan Williams LJ
Equity, Contract
The parties had entered into a series of agreements for loans, and partnerships. The defendants resisted a request by the plaintiff to be allowed, under the agreement, into partnership on a failure to repay the loan. Held: The appeal succeeded. The agreements were separate, and there could be no objection that one constituted a clog on the equity of redemption.
Vaughan Williams explained: "I do not understand the defendant's counsel to dispute that it is competent for a mortgagee to enter into an agreement to purchase from the mortgagor his equity of redemption. The only objection to such an agreement is, that it must not be part and parcel of the original loan or mortgage bargain. The mortgagee cannot, at the moment when he is lending his money and taking his security, enter into an agreement the effect of which would be that the mortgagor would have no equity of redemption. But there is nothing to prevent that being done which in substance and fact is subsequent to and independent of the original bargain."
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Herne Bay Steam Boat Company v Hutton [1902] 2 KB 683
1902
CA
Vaughan Williams, Stirling, Romer LJJ
Contract
A contract to hire a steam boat to view the royal review of the naval fleet at Spithead as part of the celebrations for the coronation of Edward VII was not frustrated by cancellation of the review on the King's illness because the fleet was still at Spithead to be viewed.
Vaughan Williams LJ said that because the purposes (of seeing the review and being taken around the fleet) became impossible that did not mean the contract was frustrated. The happening of the naval review was not the foundation of the contract: " . . 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 . . 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."
Romer LJ 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" . . And: "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."
Stirling LJ referring directly to the fact that part of the stated purpose, the "day's cruise round the fleet", had remained possible, saying: "It seems to me that the reference in the contract to the naval review is easily explained; it was inserted in order to define more exactly the nature of the voyage, and I am unable to treat it as being such a reference as to constitute the naval review the foundation of the contract so as to entitle either party to the benefit of the doctrine in Taylor v Caldwell. I come to this conclusion the more readily because the object of the voyage is not limited to the naval review, but also extends to a cruise round the fleet. The fleet was there, and passengers might have been found willing to go round it. It is true that in the event which happened the object of the voyage became limited, but, in my opinion, that was the risk of the defendant whose venture the taking the passengers was."
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 Torkington v Magee; 1902 - [1902] 2 KB 427
 
Oliver v The Governor and Company of the Bank of England [1902] 1 Ch 610
1902
CA
Sterling LJ
Contract
Sterling LJ said: "It has often been held in actions for misrepresentation that where a misrepresentation is proved and is shown to have been relied upon, that is enough, although the person who enters into the transaction on the faith of the misrepresentation may have also had other inducements to enter into the transaction. There is an instance of that in the case of Edgington v Fitzmaurice."
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Harburg India Rubber Comb Co v Martin [1902] 1 KB 778
1902
CA
Vaughan Williams LJ
Contract
The defendant had been a member of a syndicate which owed money to the plaintiff. The plaintiff obtained judgment against the syndicate and tried (unsuccessfully) to execute a writ of fi fa. The defendant then gave an oral promise that, if the plaintiff would desist in execution, he would issue bills of exchange to satisfy the syndicate's liability. Held: The Court considered whether a promise given orally by the defendant was a guarantee (unenforceable on account of the Statute of Frauds) or a contract of indemnity, as contended by the plaintiff.
Vaughan Williams LJ said: "I think, the form of the promise given by the promisor has never been held to be conclusive of the matter. He may, or he may not, promise in terms to answer for the debt of another; but, whether he does so or not, it is the substance, not the form which is regarded. . I wish to mention one other class (of case), which. . I think does not come within the section (that is section 4) at all. I mean the cases which have been spoken of as "indemnity cases". Of course in one sense all guarantees, whether they come within s.4 or not, are contracts of indemnity. But the difference between those indemnities which come within the section and those which do not is very shortly thus expressed in the notes to Forth v Stanton: 'These cases establish that the statute applies only to promises made to the person to whom another is already or is to become answerable'.
That, to my mind, is an accurate definition of a guarantee or indemnity which comes within section 4 of the statute as distinguished from an original liability which is not within the section, and which has no reference to the debt of another, but creates a new liability which is undertaken by the promisor, and has been called in the course of the argument a contract of indemnity."
Statute of Frauds 1677 4
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Turnbull and Co v Duval [1902] AC 429
1902
PC
Lord Lindley
Contract, Undue Influence
Mr Duval owed three separate sums to a firm Turnbull & Co including £1,000 owed to the Jamaican branch for beer. Turnbulls' manager and agent in Jamaica was a Mr Campbell. Mr Campbell was also an executor and trustee of a will under which Mrs Duval had a beneficial interest. Mr Campbell threatened to stop supplying beer to Mr Duval unless security was given for the debts owed and, with Mr Campbell's knowledge, a document was prepared under which Mrs Duval charged her beneficial interest under the will to secure the payment of all debts owed by Mr Duval to Turnbull i.e. not only the money owed for beer but all the debts. Mr Duval put pressure on Mrs Duval to sign the document. She was under the impression that the document was to secure the beer debt only. Held: A transaction may be set aside for misrepresentation or undue influence whether it was procured by the misrepresentation or undue influence of the party seeking to uphold the transaction or that of a third party.
Lord Lindley: "In the face of such evidence, their Lordships are of opinion that it is quite impossible to uphold the security given by Mrs. Duval. It is open to the double objection of having been obtained by a trustee from his cestui que trust by pressure through her husband and without independent advice, and of having been obtained by a husband from his wife by pressure and concealment of material facts. Whether the security could be upheld if the only ground for impeaching it was that Mrs. Duval had no independent advice has not really to be determined. Their Lordships are not prepared to say it could not. But there is an additional and even stronger ground for impeaching it. It is, in their Lordships' opinion, quite clear that Mrs. Duval was pressed by her husband to sign, and did sign, the document, which was very different from what she supposed it to be, and a document of the true nature of which she had no conception. It is impossible to hold that Campbell or Turnbull & Co. are unaffected by such pressure and ignorance. They left everything to Duval, and must abide the consequences."
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Castaneda v Clydebank Engineering and Shipbuilding Co Ltd [1902] UKHL 855; 39 SLR 855
28 Jul 1902
HL
Lord Chancellor (Halsbury) and Lords Macnaghten, Brampton, Robertson, and Lindley
Contract
In 1896 a contract to build four torpedo boat destroyers for the Spanish navy was entered into between A, Chief, and B, Commissary of the Spanish Royal Naval Commission, London, "both in the name and representation of his Excellency the Spanish Minister of Marine in Madrid, hereinafter called the Spanish Government," and a Scottish shipbuilding company. The contract provided that it was to have no legal power until ratified by the Spanish Government. The contract was duly ratified by the Spanish Government. In 1900, D, then Spanish Minister of Marine at Madrid, but who was not Minister of Marine at the date of the contract; E, then chief of the said Spanish Royal Naval Commission, London; F, the Commissary of the same; and the said Spanish Royal Naval Commission, raised an action against the shipbuilding company for breach of the contract of 1896, upon the ground that the torpedo boat destroyers had not been delivered within the time specified in the contract, and that loss and damage had been sustained by the Spanish Government owing to the delay. The pursuers averred that both in making and enforcing contracts relating to war vessels the Government of Spain was by the law of Spain represented by the Minister of Marine.
Held ( rev. judgment of the Second Division, and restoring judgment of Lord Low, Ordinary) that the Minister of Marine for the time being had a good title to sue the action.
[ Bailii ]

 
 Tolhurst v Associated Portland Cement Manufacturers (1900) Ltd; HL 1903 - [1903] AC 414

 
 Krell v Henry; CA 1903 - [1903] 2 KB 740; [1900-3] All ER 20
 
Millar Son and Co v Radford (1903) 19 TLR 575
1903
CA
Sir Richard Henn Collins MR
Agency, Contract
For an estate agent to recover his commission, it was "necessary" to show that the agent's introduction was an "efficient" (namely effective) cause in bringing about the transaction.
1 Citers


 
Gordon v M'Hardy (1903) 6 F 210
1903

Lord Justice-Clerk
Negligence, Contract, Scotland
The pursuer sought to recover damages from a retail grocer on account of the death of his son by ptomaine poisoning, caused by eating tinned salmon purchased from the defender. The pursuer averred that the tin, when sold, was dented, but he did not suggest that the grocer had cut through the metal and allowed air to get in, or had otherwise caused injury to the contents. Held: The action was irrelevant: "I do not see how the defender could have examined the tin of salmon which he is alleged to have sold without destroying the very condition which the manufacturer had established in order to preserve the contents, the tin not being intended to be opened until immediately before use."
1 Citers


 
Krell v Henry (1903) 2 KB 740
1903
CA
Williams LJ, Romer, Stirling J
Contract
Mr Henry contracted to rent a flat located on Pall Mall from the plaintiff, Paul Krell for the daytime and on the days of the forthcoming cornation procession.. He was told that he would have an excellent view of, but this was not written down. He paid a deposit of £25 but when the procession did not take place refused to pay the balance. Krell claimed the balance, and Henry sought repayment of his deposit. Held: The court asked whether there was an implied condition that the contract was void if the procession did not take place. Such a condition could be inferred from the surounding circumstances. The parol evidence rule was inapplicable. He examined the substance of the contract, and then determined whether the contract was founded on the assumption of the existence of a particular state of affairs. Krell had only granted Henry a license to use the rooms for a particular purpose (watching the coronation). The court compared the contract to the hire of a cab to get to a race. If the race did not occur on the particular day the passenger had thought, he would not be discharged from paying the driver; but in this case the room here had a special quality. Cancellation of the coronation could not reasonably have been anticipated by the parties at the time the contract was made.
Williams LJ said: "I do not think that the principle of the civil law as introduced into the English law is limited to cases in which the event causing the impossibility of performance is the destruction or non-existence of some thing which is the subject matter of the contract or of some condition or state of things expressly specified as a condition of it. I think that you first have to ascertain, not necessarily from the terms of the contract, but, if required, from necessary inferences, drawn from surrounding circumstances recognised by both contracting parties, what is the substance of the contract, and then to ask the question whether that substantial contract needs for its foundation the assumption of the existence of a particular state of things. If it does, this will limit the operation of the general words, and in such a case, if the contract becomes impossible of performance by reason of the non-existence of the state of things assumed by both contracting parties as the foundation of the contract, there will be no breach of the contract thus limited."
1 Cites

1 Citers


 
Mercer v Liverpool St Helens and South Lancashire Railway [1903] 1 KB 652
1903

Stirling J
Land, Contract
Stirling J: "Now at law a contract for the sale of land creates merely a personal obligation between the vendor and purchaser and does not bind the land; in equity such a contract binds the land and that not only as against the vendor, but also as against all persons claiming under him with notice of the existence of the contract. On the other hand legal rights and interests in and to land bind all persons, whether with notice or not; and I apprehend that rights and interests arising under a notice to treat fall within this rule. It is for this reason, as it seems to me, that it has been held that an interest in land which has been created by the owner after service of a notice to treat is not a subject for compensation under the Lands Clauses Consolidation Act, 1845: see, for example, Ex parte Edwards; Wilkins v Mayor of Birmingham. In accordance with the same principle, it was laid down by Lord Romilly in Carnochan v Norwich and Spalding Ry Co. that the purchase of land in respect of which a railway company has served a proper notice to treat, and in respect of which the company has entered into possession, is 'in truth but the purchase of an interest in the purchase-money'."
1 Citers



 
 Bradley v Carritt; HL 11-May-1903 - [1903] UKHL 1; [1903] AC 253
 
Van Praagh v Everidge [1903] 1 Ch. 434
1904
CA

Contract, Agency

1 Cites


 
Servais Bouchard v Princes Hall Restaurant [1904] 20 TLR 574
1904
CA

Contract
A contract by which defendant Restaurant agreed to take all burgundy sold there from the plaintiffs was held not to be void for being in restraint of trade.
1 Citers


 
Mercer v Liverpool, St Helen's and South Lancashire Railway [1904] AC 461
1904
HL

Contract, Land

1 Cites

1 Citers


 
Chandler v Webster [1904] 1 KB 493
1904


Contract
When a contract is frustrated, "the loss lies where it falls."
1 Citers


 
Bruner v Moore [1904] 1 Ch 305
1904

Farwell J
Contract
The seller had granted to the buyer a option in return for the payment of a sum of money. The option contract gave the grantee the right to require the grantor to sell if the grantee exercised the option within the stipulated period. The court considered the application of the rule as to actual acceptance in the postal rule in contract law in an option context. Held: The parties must have contemplated that the post might be used as a means of communicating the exercise of the option and that therefore the option was exercised when the grantee sent a telegram to that effect addressed to the grantor.
Despite the option not being formally exercised, there was nothing to prevent the parties from coming to a subsequent agreement extending the period of the option.
1 Citers


 
Kaufman v Gerson [1904] 1 KB 591
1904


Contract
The existence of an illegal agreement introduces a quality of impropriety into a transaction induced thereby so as to render it voidable for duress.

 
Fenwick v MacDonald Fraser and Co [1904] 6F (Ct of Sess) 850; [1904] SLR 41 - 688
29 Jun 1904
SCS
Lord Young, Lord Traynor
Agency, Contract
A sale of farm animals by auction was not made without reserve because the condition of sale reserved to the owner the right to make one offer for each animal. The Lord Ordinary Lord Kyllachy had decided the case both on the grounds that there was a disclosed principal, following Mainprice's case, and also that it was not a sale without reserve. Held: The Lord Justice - Clerk agreed with the Lord Ordinary.
Lord Young held that because the purchaser could withdraw his bid until the hammer fell, so could the seller. He also considered that the sale was not `without reserve'.
Lord Traynor considered that the law of Scotland had been changed by the Sale of Goods Act 1893 which enabled a bid to be withdrawn until the hammer had fallen.
Sale of Goods Act 1893
1 Citers

[ Bailii ]
 
McLaughlin v Daily Telegraph Newspaper Co. Ltd [1904] 1 CLR 243; [1904] UKPC 46
15 Jul 1904

Griffith CJ
Commonwealth, Contract, Commonwealth
(High Court of Australia) The court considered the law on the effect of mental incapacity on a contract in the two cases Imperial Loan, and Molton v Camroux: "The principle of the decision seems, however, to be the same in both cases, which, in our judgment, establish that a contract made by a person actually of unsound, but apparently of sound mind with another who deals with him directly, and who has no knowledge of the unsoundness of mind, is as valid as if the unsoundness of mind had not existed. If the man dealing with the person of unsound mind is aware of his insanity, the contract is voidable at the option of the latter, but the party who takes advantage of the other cannot himself set up the incapacity. In this respect the matter is treated on the same footing as cases of fraud inducing a contract. There is, indeed, authority for saying that the equitable doctrines governing the validity or invalidity of a contract made with an insane person are only a particular instance of the general doctrines relating to fraudulent contracts. In the cases last mentioned no unfairness of dealing could be imputed to the persons who sought to take advantage of the contract, which was, in fact, made, In each case, with an apparently sane person. The principle appears to be that the validity of a contract made with an apparently sane person is to be determined - by the application of the same rules as are applied in ordinary cases."
1 Cites

1 Citers

[ Bailii ]

 
 Clydebank Engineering Co v Castaneda; HL 19-Nov-1904 - [1904] UKHL 3; (1904) 12 SLT 498; (1904) 7 F (HL) 77; [1905] AC 6
 
Law v Law [1905] 1 Ch 140
1905

Cozens-Hardy LJ
Contract, Company
A person with a right to rescind a contract may be held to have affirmed the contract even if there are some material facts which he did not know at the time of the affirmation. However: " . . there is a duty resting upon the purchaser who knows, and is aware that he knows, more about the partnership accounts than the vendor, to put the vendor on possession of all material facts with reference to the partnership assets, and not to conceal what he alone knows; and that, unless such information has been furnished, the sale is voidable and may be set aside."
1 Citers


 
Forder v Great Western Railway Company [1905] 2 KB 532
1905

Lord Alverstone CJ
Contract
The court construed the phrase 'wilful misconduct'. Held: The court adopted the definition given in Graham, Lord Alverstone CJ adding: "The addition which I would suggest is, "or acts with reckless carelessness, not caring what the results of his carelessness may be."
1 Cites

1 Citers


 
In re Nisbet and Potts' Contract [1905] 1 Ch 391
1905

Farwell J
Litigation Practice, Contract, Land
Where a party asserted he was a purchaser in good faith without notice and for value, the burden of proving all the elements of the defence is upon the purchaser. A title acquired by adverse possession was not paramount to, and did not destroy the equitable right of persons entitled to the benefit of prior restrictive covenants to enforce them against the land.
Farwell J said: "Covenants restricting the enjoyment of land, except of course as between the contracting parties and those privy to the contract, are not enforceable by anything in the nature of action or suit founded on contract. Such actions and suits alike depend on privity of contract, and no possession of the land coupled with notice of the covenants can avail to create such privity: Cox v. Bishop (1857) 8 De G.M. & G. 815. But if the covenant be negative, so as to restrict the mode of use and enjoyment of the land, then there is called into existence an equity attached to the property of such a nature that it is annexed to and runs with it in equity: Tulk v. Moxhay, 2 Ph. 774. This equity, although created by covenant or contract, cannot be sued on as such, but stands on the same footing with and is completely analogous to an equitable charge on real estate created by some predecessor in title of the present owner of the land charged. . . . effect is given to the negative covenant by means of the land itself. But the land cannot spend money on improving itself, and there is no personal liability on the owner of the land for the time being, because there is no contract on which he can be sued in contract."
1 Citers


 
Scott and Co Ltd v W Solomon [1905] 1 KB 577; [1905] 69 JP 137
1905

Lord Alverstone CJ
Contract
The defendants sold tea packets, giving away at the same time coupons entitling the purchaser to claim different articles from the vendor including silver plate. It was argued that there had been an unlicensed sale of the silver plate. Held: "[This evidence] seems to me to point to one view of the facts, namely, that it was all one transaction. In respect of the payment for the tea, the various purchasers each of them got what has been called this 'coupon'. Mr Danckwerts does not dispute, and I do not think he could dispute, that that was a sale of coupons. The suggestion that there is full value given for the tea, meaing that there is nothing charged for these coupons is simply absurd. This very large business, to the extent of thousands of pounds, of Scott and Company, the appellants, could not possibly be carried on if there were no charge for the coupons. The coupons having been purchased them themselves, or having obtained them from other purchasers, on presenting them become entitled to receive certain articles, and, amongst others, became entitled in certain events, according to the number of coupons they presented, to receive a very considerable number of articles of plate, watches and other things of th ekind. It seems to me that, looked at in its real essence, this transaction is a trading in watches by means of receiving payment for them by instalments when the money is paid for the tea, and by afterwards recognising the value of those various instalments as evidenced by the coupons by giving back various articles- inthis particular case, watches."
1 Citers


 
Wehner v Dene Steam Shipping Co [1905] 2 KB 92
1905

Channell LJ
Contract, Transport
Channell LJ said: "Now, although the owner has the right to demand the bill of lading freight from the holder of the bill of lading because the contract is the owner's contract, yet the owner has also, of course contracted by the charterparty that for the use of his ship he will be satisfied with a different sum, which will also in the great majority of cases be less than the total amount of the bills of lading freights; and, therefore, if the owner were himself to demand and receive the bills of lading freight as he might do if he chose, he would still have to account to the charterer or the sub-charterer, as the case may be, for the surplus remaining in his hands after deducting the amount due for hire of the ship under the charterparty. Of course, in practice an agent is usually appointed to receive the bill of lading freight, though not necessarily, because the captain may receive it himself; and under this charterparty the captain has to appoint as agent any person whom the charterers may select, which is a very reasonable arrangement, because if the business goes smoothly and the charterparty hire is duly paid, the charterers are the persons really interested in receiving the bill of lading freight. But, if I am right as to the bill of lading contract being with the owner, then it seems to me to follow that the agent appointed to receive the bill of lading freight becomes by the very act of appointment the agent of the shipowner to receive the freight for him, and the agent's receipt binds the shipowner."

 
Hyslop v Shirlaw (1905) 7 F 875
1905

Lord Kyllachy
Contract

1 Citers


 
Ogdens Ltd v Nelson Ogdens Ltd v Telford [1905] UKHL 857; 42 SLR 857
24 Mar 1905
HL
Lord Chancellor (Halsbury), Lords Macnaghten, James of Hereford, and Lindley
Contract
A, a company of wholesale tobacco manufacturers, issued a circular to retail dealers offering them a share in a bonus on condition of their signing an agreement, inter alia, not to deal with B Limited. B Limited, in response, issued a circular offering to customers buying direct from them a share in a bonus distribution of "our entire net profits and two hundred thousand pounds per year for the next four years." The offer was accepted by C and D in a letter recapitulating the terms of the offer and stating that in consideration of it they agreed not to sign any agreement with A or any agreement with any company which might prevent them dealing with B Limited. Before the four years expired B Limited sold their business to A.
Held that B Limited, having put an end to an agreement which was to continue for four years, were liable in damages to C and D for breach of contract to the extent of the bonus which the latter would have received had B Limited continued their business.
[ Bailii ]
 
South Wales Miners' Federation and Others v Glamorgan Goal Co and Others [1905] UKHL 877; 42 SLR 877
14 Apr 1905
HL
Lord Chancellor (Halsbury), Lords Macnaghten, James of Hereford, and Lindley
Contract, Employment
Held that the fact that a federation of miners in inducing its members to break their contracts of service with their employers acted without malice and in the bona fide belief that the breach of contract would benefit both the miners and their employers, formed no defence to an action brought by the latter against the federation for damages for wrongfully procuring and inducing their workmen to break their contracts of service.
[ Bailii ]
 
Assets Co Ltd v Bain and Others (Bain's Trustees) Assets Co Ltd v Watt and Others (Phillips' Trustees) [1905] UKHL 835
5 Jun 1905
HL
Lord Chancellor (Halsbury), and Lords Macnaghten, Davey, James of Hereford, and Robertson
Contract
At a distance of time "every intendment should be made in favour of what has been done as being lawfully and properly done."
A compromise was made with, and a discharge from liability granted to, a contributory to a bank in liquidation "on the basis and on the condition of the truth, accuracy, and completeness" of a written state of the contributory's property and its value made in answer to printed questions. The state was declared to be true and correct to the best of his knowledge and belief. Twenty years later a reduction of the discharge was brought on the ground that the state was inaccurate, it having been discovered that the contributory had been possessed of property, at that time of doubtful value, which did not appear in the state.
Held (rev the judgment of the Court of Session) that reduction should not be granted (1) because the declaration being only to the best knowledge and belief of the declarant, it was not sufficient to prove inaccuracy, but fraudulent concealment must be established; and (2) because, as it was not a special condition of the compromise that the disclosure of the contributory's property should be of all his effects in writing, a verbal disclosure of the property in question would have been sufficient, and it was not proved that such verbal disclosure had not been made.
[ Bailii ]
 
Stroms Bruks Aktie Bolag and Others v J and P Hutchison [1905] UKHL 844; 42 SLR 844
4 Aug 1905
HL

Contract, Damages
A charter-party contained a clause, "penalty for non-performance of this agreement, estimated amount of freight on quantity not shipped in accordance herewith." The shipowner failed to send a ship for one of the shipments stipulated for. Held (aff judgment of the First Division) that the shipowner was not deprived of his right to have an award of damages commensurate with the loss sustained.
Manufacturers of wood pulp in Sweden contracted by charter-party with shipowners for the carriage of a quantity of wood pulp "in August-September" (owners' option), the vessel being entitled after loading to call at other ports, to Cardiff. They also sold the same quantity of wood pulp to vendees, manufacturers at Cardiff, "mode and place of delivery," "c.i.f. Penarth Dock, Cardiff," "time of delivery" "August-September." The shipowners having failed to supply a ship, the vendees purchased at home the quantity of wood pulp and received from the charterers, as damages for breach of the contract of sale, the difference between the cost of so doing and the contract price. The charterers then sought to recover from the shipowners, who admitted the breach of their contract, but defended on the ground that the charterers were suing for special damages to which they were not entitled, inasmuch as the two contracts did not coincide, and had not in their summons sued for general damages.
Held (rev. the judgment of the First Division) that the charterers were entitled to recover, inasmuch as the "proper measure of the damages was the cost of replacing the goods at their place of destination at the time when they ought to have arrived, less the value of the goods in Sweden and the amount of the freight and insurance," and the purchases by the vendees was proof of such cost.
Opinion per curiam that there is no difference between the law of Scotland and the law of England as to the measure of damages in such circumstances. Dunlop v. Higgins (1848), 1 H.L.C. 381, adversely commented on.
[ Bailii ]

 
 Litchfield v Dreyfus; 1906 - [1906] 1 KB 584
 
Quinion v Horne [1906] 1 Ch 596
1906


Land, Contract
The vendor's right to elect to unwind the contract on receiving requisitions on title must not be exercised unreasonably.


 
 Badische Anilin und Soda Fabrik v Hickson; HL 1906 - [1906] AC 419
 
Denaby and Cadeby Main Collieries, Ltd v Yorkshire Miners' Association and Others [1906] UKHL 596
14 May 1906
HL
Lord Chancellor (Loreburn), Lords Macnaghten, James of Hereford, Davey, Robertson, and Atkinson
Contract, Employment
Where, in breach of existing contracts between employers and employees, the officials of a branch of a trade union brought about a strike contrary to the rules and regulations of the trade union as a whole, held that the latter was not liable in damages to the employers for the wrongful actings of the officials of the branch.
The central council of a trade union, in contravention of the rules and regulations of the union, granted strike pay to miners out on strike.
Held that the employers of the miners had no title to sue the trade union for damages, the wrong committed by the central council being one committed against its own members in dissipating their funds, and not against the employer, who had no interest in the funds
[ Bailii ]
 
Commissioner of Public Works v Hills , (1906) 22 TLR 589; [1906] UKPC 35; [1906] AC 368
24 May 1906
PC
Lord Dunedin
Contract
(Cape of Good Hope) A railway construction contract provided that in the event of a breach by the contractor he should forfeit "as and for liquidated damages" certain percentages retained by the Government of the Cape of Good Hope of money payable for work done as a guarantee fund to answer for defective work and also certain security money deposited with the Government. The amount of that retained money depended on the progress of contracts other than the one in suit. Held: The clause was a penalty. The principle to be deduced from the Clydebank case was that the criterion of whether a sum was a penalty or damages was to be found in whether the sum in question "can or cannot be regarded as a "genuine pre-estimate of the creditor's probable or possible interest in the due performance of the principal obligation." The question of whether a sum stipulated is penalty or liquidated damages is a question of construction to be decided upon the terms and inherent circumstances of each particular contract, judged of as at the time of the making of the contract, not as at the time of breach.
The Clydebank case was decided according to "the rules of a system of law where contract law was based directly on the civil law and no complications in the matter of pleading had ever been introduced by the separation of common law and equity."
Lord Dunedin formulated the test: "The general principle to be deduced from that judgment seems to be this, that the criterion of whether a sum - be it called penalty or damages - is truly liquidated damages, and as such not to be interfered with by the Court, or is truly a penalty which covers the damage if proved, but does not assess it, is to be found in whether the sum stipulated for can or can not be regarded as a 'genuine pre-estimate of the creditor's probable or possible interest in the due performance of the principal obligation'. The indicia of this question will vary according to circumstances. Enormous disparity of the sum to any conceivable loss will point one way, while the fact of the payment being in terms proportionate to the loss will point the other. But the circumstances must be taken as a whole, and must be viewed as at the time the bargain was made."
1 Cites

1 Citers

[ Bailii ]
 
Ogdens Ltd v Weinberg [1906] UKHL 618; 44 SLR 618
26 Jul 1906
HL
Lord Chancellor (Loreburn), Lords Davey, James of Hereford, and Robertson
Insolvency, Contract
The trustee of a bankrupt trader assigned to a third party the goodwill of a bankrupt's business, "and also all the book and other debts, securities, credits, effects, contracts, and engagements belonging or appertaining to the said business to which the vendor as such trustee is entitled." At the time of his bankruptcy the trader was in a position to bring an action of damages for breach of contract against a wholesale firm which had undertaken to divide a certain bonus and profits among its customers for a number of years, but had put it out of its power to fulfil its contract by going into voluntary liquidation and selling its business.
Held that the contract and right to sue upon it were conveyed by the assignation.
[ Bailii ]
 
Howatson v Webb [1907] 1 Ch 537
1907
ChD
Warrington J
Contract
The defendant, a solicitor's clerk, pleaded non est factum to an action on a mortgage deed he had signed. He said that he had thought it to be a deed transferring property held as nominee for the solicitor. Held: The court should make distinction between a failure by the signatory to appreciate the character of the deed signed and its contents. After citing passages from Foster v MacKinnon, Warrington J said: "I pause there for a moment to remark that it seems to me to be essential to the proposition which is there stated that the contract which the signer means to execute should be of a nature entirely different from the contract in dispute." and "It will not be contended that if, in reading over a contract to a blind or illiterate person, the reader merely omits or misstates some material clause, the contract is altogether void." Afer further citations, he said: "Reading that with reference to the first passage I have quoted I think he means ' deceived as to the actual contents' as expressing the nature and character of the document." The defendant had been told that they were deeds relating to the property to which they did in fact relate. "His mind was therefore applied to the question of dealing with that property. The deeds did deal with that property. The misrepresentation was as to the contents of the deed, and not as to the character and class of the deed. He knew that he was dealing with the class of deed with which in fact he was dealing, but did not ascertain its contents. The deed contained a covenant to pay. Under those circumstances I cannot say that the deed is absolutely void."
1 Cites

1 Citers


 
William Morton and Co v Muir Brothers and Co 1907 SC 1211
1907

Lord McLaren
Scotland, Contract
Lord McLaren said: "The conception of an implied condition is one with which we are familiar in relation to contracts of every description, and if we seek to trace any such implied conditions to their source, it will be found that in almost every instance they are founded either on universal custom or in the nature of the contract itself. If the condition is such that every reasonable man on the one part would desire for his own protection to stipulate for the condition, and that no reasonable man on the other part would refuse to accede to it, then it is not unnatural that the condition should be taken for granted in all contracts of the class without the necessity of giving it formal expression."
1 Citers


 
William Martin and Co v Mills Brothers and Co 1907 SC 1211
1907


Scotland, Contract

1 Citers


 
S Pearson and Son Ltd v Dublin Corporation [1907] AC 351
1907
HL
Lord Loreburn LC, Lord Ashbourne, Lord Atkinson, Lord Halsbury
Torts - Other, Contract
A clause in a building contract provided that the contractor should satisfy himself as to the dimensions, levels and nature of all existing works. Did this exclude an action based on alleged fraudulent misrepresentations by the council's engineers as to the position of an existing wall. Held: Lord Halsbury "The action is based on the allegation of fraud, and no subtilty of language, no craft or machinery in the form of contract, can estop a person who complains that he has been defrauded from having that question of fact submitted to a jury."
Lord Loreburn said: "I will not say that a man himself innocent may not under any circumstances, however peculiar, guard himself by apt and express clauses from liability for the fraud of his own agents." but the clause as a matter of construction did not cover cases of fraudulent misrepresentation. General language will not be construed to relieve a principal of liability for the fraud of an agent. Of the exemption clauses "They contemplate honesty on both sides and protect only against honest mistakes."
1 Citers



 
 Steel v Young; SCS 11-Jan-1907 - [1907] ScotCS CSIH - 4; 1907 SC 360; [1907] SLR 44 - 291

 
 Krupp v John Menzies Ltd; SCS 16-May-1907 - [1907] ScotCS CSIH - 7; (1907) 15 SLT 36; 1907 SC 903
 
S Pearson and Son Ltd v Dublin Corporation 45 SLR 960
30 May 1907
HL
Lord Chancellor (Loreburn), The Earl of Halsbury, Lords Ashbourne, Macnaghten, James of Hereford, Robertson, Atkinson, and Collins
Contract
P. and Son, Limited, entered into a contract with a corporation to construct certain sewage works at a certain price. The engineer of the Corporation prepared plans, which were shown by the Corporation to P. and Son, Limited. These plans misrepresented the state of the locus in an important matter, which materially affected the price agreed upon by P. and Son. The Corporation were not actually aware of the fact that the plans were inaccurate. The contract contained a clause that the contractor was to satisfy himself as to dimensions, levels, and co., and "was to obtain his own information on all matters which can in any way influence his tender." P. and Son alleged that the misrepresentations in the plans were false and fraudulent, and brought an action against the Corporation for damages for fraudulent misrepresentation.
Held (1) that the clause which provided that the contractors were to satisfy themselves applied only to inaccuracies and errors, and not to fraud, (2) that accordingly P. and Son were entitled to have an opportunity of proving fraud on the part of the engineers, and (3) that if they were successful the Corporation would be liable.
"It matters not in respect of principal and agent (who represents but one person) which of them possess the guilty knowledge, or which of them makes the incriminating statement. If between them the misrepresentation is made so as to induce the wrong, and thereby damages are caused, it matters not which is the person who makes the representation, or which is the person who has the guilty knowledge."
[ Bailii ]
 
Kleinwort, Sons, and Co v Dunlop Rubber Co [1907] UKHL 633
16 Jul 1907
HL
Lord Chancellor (Loreburn), Lords James of Hereford, Robertson, and Atkinson
Contract, Banking
A. was financed by B. and Co. and C. and Co., both firms of bankers, who advanced him money on the security of goods. A. sold goods to D. and Co., and instructed them to remit the price direct to B. and Co., who had a right of security over the particular goods sold. D. and Co. by mistake remitted the price to C. and Co., who received it in good faith believing that it represented a sum due to them of a similar amount. In a previous action, reported (1905) A.C. 454), the House of Lords found D. and Co. liable to pay the sum again to B. and Co. In the present action (a jury having found in fact that what had occurred had not altered C. and Co.'s position as regarded A. for the worse), held that D. and Co. were entitled to recover the money from C. and Co. as being money paid under a mistake of fact.
[ Bailii ]
 
Barclay, Curle and Co Ltd v Sir James Laing and Sons Ltd [1907] UKHL 87
25 Nov 1907
HL
Lord Chancellor (Loreburn), Earl of Halsbury, Lord Macnaghten, Lord James Of Hereford, Lord Robertson, and Lord Atkinson
Transport, Contract
A contracted to build and sell, and B to purchase, two ships, which were to be paid for by instalments and built under the supervision of B's inspector. C arrested the ships when approaching completion for an alleged debt of B's to him. A petitioned for recal of the arrestments.
Held that under the Sale of Goods Act 1893 the property in the ships depended upon the intention of the parties as expressed in the contract, and as there was nothing in the contract to show that the parties intended to transfer the property in the ships while in course of building, the property remained in A, the builder, who was therefore entitled to recal of the arrestments.
[ Bailii ]
 
Markham v Paget [1908] 98 LT 605; [1908] 24 LTR 426; [1908] 1 Ch 697; [1908] 77 LJ Ch 451
1908


Landlord and Tenant, Contract
Parties had entered an agreement, with a draft lease attached to lease a coal seam. If the company anticipated damage, the lease allowed the company to leave sections unmined as support. The final lease allowed the miners to let down the surface, but now asked the miners to request obtain consent before leaving any coal un-mined. The surface was then also let to the plaintiff on a yearly tenancy. The miners sought consent as agreed, but the consent was withheld, and they proceeded. The surface property was damaged, and the tenant sought damages. Held: There was an implied covenant for quiet enjoyment in the lease of the house, but the owner of the land who was liable under that covenant could not seek an indemnity from the miner without joining in the trustees who had actually executed the lease.

 
Yangtze Insurance Association v Indemnity Mutual Marine Assurance Co [1908] 2 KB 504
1908
CA
Farwell LJ
Contract
The court considered the significance of a trade custom in interpreting a contract: "The general rule of construction is that words used in documents must receive their primary signification, unless the context of the instrument read as a whole, or surrounding contemporaneous circumstances, shew that the secondary meaning expresses the real intention of the parties, or unless the words are used in connection with some place, trade or the like, in which they have acquired the secondary meaning as their customary meaning quoad hoc".
1 Citers



 
 General Billposting Company Limited v Atkinson; HL 1908 - [1909] AC 118; (1908) 1 Ch 537; [1908-1910] All ER 619; (1908) 25 TLR 178
 
Tom Shaw and Co v Moss Empires Ltd (1908) 25 TLR 190
1908

Darling J
Contract
An actor, was engaged by Moss Empires under a contract which prohibited the assignment of his salary. He assigned 10 per cent of the salary to his agent, Tom Shaw. Tom Shaw sued Moss Empires for 10 per cent of the salary joining the actor as second defendant. Moss Empires agreed to pay the 10 per cent of the salary to Tom Shaw or B. as the court might decide i.e. in effect it interpleaded. Held: The prohibition on assignment was ineffective: it could "no more operate to invalidate the assignment than it could interfere with the laws of gravitation." The plaintiffs succeeded against both the actor and Moss Empires, ordering the actor to pay the costs but making no order for costs against Moss Empires.
1 Citers


 
Nelson Line (Liverpool) Ltd v James Nelson and Sons Ltd [1908] AC 16
1908
HL
Lord Loreburn LC
Contract
Where there is in a contract an absolute promise with an exception engrafted upon it, the exception is to be construed strictly, and extends only so far as it is expressed with clearness and certainty. The parties to an agreement may contract themselves out of their duties, but, unless they prove such a contract, the duties remain; and such a contract is not proved by producing language which may mean that and may mean something different.
Lord Loreburn LC said that there is "only one standard of construction, except where words have acquired a special conventional meaning, namely, what do the words mean on a fair reading, having regard to the whole document?"
1 Citers


 
Spiers v Hunt [1908] 1 KB 720
1908


Family, Contract
The marriage tie and the married state was held to be so fundamental that it was morally wrong and against public policy to become engaged whilst still married.
1 Citers


 
Howatson v Webb [1908] 1 Ch 1
1908
CA
Cozens-Hardy MR
Contract
The court accepted a plea of non est factum, approving the distinction made by the trial judge between the approval of the contents and the character of the deed executed. Cozens-Hardy MR said that he approved every word of Warrington J's judgment.
1 Cites

1 Citers


 
Chaplin and Co Ltd v Brammall [1908] 1 KB 233; 97 LT 860
1908
CA
Vaughan Williams LJ
Torts - Other, Contract
The plaintiffs, having agreed to supply goods to the defendant's husband on credit if his wife would guarantee payment by him of their price, sent to the husband a form of guarantee, in order that he might obtain his wife's signature to it, leaving the matter entirely to him. The husband obtained his wife's signature to the guarantee, without sufficiently explaining to her the nature of the document, which she did not understand when she signed it. Held: The instrument of suretyship for his obligations was set aside when the wife's evidence was that she did not know that the document that she signed was a guarantee or of any importance. The case came squarely within the principle explained in Duval where the document the wife signed "was very different from what she supposed it to be"
1 Citers



 
 Larsen v Sylvester; HL 1908 - [1908] AC 295; (1908) 96 LT 94
 
Owners of SS 'Knutsford' v E Tillmans and Co [1908] UKHL 691; 46 SLR 691
3 Jul 1908
HL
Lord Chancellor (Loreburn), Lords Macnagliten, James of Hereford, and Dunedin
Transport, Contract
The plaintiffs (respondents) were the holders and indorsees of bills of lading in respect of goods carried on the s.s. "Knutsford" belonging to the appellants. They asked for damages for breach of contract in failure to carry the goods to Vladivostock. The bills of lading contained the following exceptions-"(2) . . error in judgment, negligence, or default of . . master . . whether in navigating the ship or otherwise . . ; (4) should a port be inaccessible on account of ice, . . or should entry and discharge at a port be deemed by the master unsafe in consequence of war, disturbance, or any other cause, it shall be competent for the masters to discharge goods intended for such port on the ice or at some other safe port or place at the risk and expense of the shippers, consignees, or owners of the goods. . . " The appellants relied upon the portions italicised.
The master of the "Knutsford" tried for three days to enter Vladivostock, but at that time it was impossible because of ice. He considered it unsafe to persist in the attempt owing to the ice and severe weather. He therefore left and discharged the goods at Nagasaki. The day after leaving the approach to Vladivostock the ice dispersed and entry became easy.
Judgment in favour of the plaintiffs was pronounced by Channell, J., and affirmed by the Court of Appeal ( Vaughan Williams, Farwell, and Kennedy, L. JJ.). The defendants appealed.
held (1) that "error of judgment in navigating the ship or otherwise" does not cover the master's erroneous view of the ship's contractual duties; (2) that "inaccessible on account of ice" means inaccessible without inordinate delay, not merely three days; (3) that "unsafe in consequence of war disturbance or any other cause" does not include danger by perils of the sea.
[ Bailii ]
 
Smithies v National Association of Operative Plasterers [1909] 1 KB 310
1909
CA
Vaughan Williams LJ, Kennedy LJ
Contract, Torts - Other
It was no defence to a claim for inducing breach of contract brought by employers against a trade union for sanctioning a strike that the defendant trade union had acted in the honest belief that the employers against whom action was taken were not intending to comply with a collective agreement. Their good faith was no defence.
1 Citers


 
Great Eastern Railway Company v Lord's Trustee [1909] AC 109
1909
HL

Company, Contract, Agency
The House was asked whether the appellant railway company had delivered the goods unconditionally to the goods owner so as to lose its lien for the price of coal carriage, or was there an agreement conferring "a right in equity to any personal chattels or to any charge or security thereon" under the 1878 Act. Held. (Majority) It had not done so. The lien which it exercised, therefore, was based upon its actual possession as carrier of the goods, which was not destroyed by its contractual arrangements with the receiver or by delivery up of the goods. A lien is a mere personal right of detention and therefore requires actual possession.
The word "charge" does not in its ordinary and accepted legal sense embrace a legal possessory lien even, so it would seem, if the contract gives the right of sale.
Bills of Sale Act 1878
1 Citers


 
United Shoe Machinery Company of Canada v Brunet [1909] AC 330; [1909] UKPC 10
23 Mar 1909
PC

Contract, Commonwealth
(Quebec) The defendant Company leased machinery under a condition that it should not be used in conjunction with machinery made by any other manufacturer. Held: The condition was not in restraint of trade.
1 Citers

[ Bailii ]
 
Barry Ostlere and Shepherd Ltd v Edinburgh Cork Importing Co 1909 1 SLT 540; 1909 SC 1113; [1909] ScotCS CSIH - 2
5 Jun 1909
SCS
Lord Pearson
Contract
The pursuers ordered large quantities of cork shavings. They were not delivered and claimed in damages after the prices in the open market rose. The defenders said that no contract had been concluded, that the negotiations between the parties resulted in nothing more than an offer on the part of the pursuers to purchase the goods; that this offer required acceptance on the part of the defenders, and that they did not accept it. Held: The pursuers' appeal succeeded. A contract had been concluded. They party negotiating for the defenders had apparent authority to make the contract and it was not for the pursuers to question his status.
[ Bailii ]
 
Greenock Harbour Trustees v Glasgow and South-Western Railway Co [1909] UKHL 1014; 46 SLR 1014
28 Jun 1909
HL
Lord Chancellor (Loreburn), Lord Ashbourne, Lord James of Hereford, Lord Gorell, and Lord Shaw of Dunfermline
Land, Contract
In 1881 Harbour Trustees made an agreement with a railway company whereby each was to convey to the other for their respective undertakings certain lands which were to be acquired or had already been acquired. The agreement provided the mode in which, calculated according to the cost of acquisition of the lands to be acquired, the price chargeable to the parties for the lands to be conveyed to them respectively was to be fixed. By 1885 the parties were in possession of the respective lands, but owing to disagreement arising out of the terms of the agreement and from the fact that difficulties unforeseen at its date had had to be surmounted, no conveyanoes had been executed and no adjustment of accounts had been made. In 1906 the Harbour Trustees brought an action to have the agreement finally implemented and to recover a sum alleged to be due to them on a balancing of accounts. They claimed interest.
Held (dub. the Lord Chancellor and Lord James) that the circumstances of the case disclosed no specialties sufficient to take it out of the established rule that where a purchaser of heritage entered into possession before the purchase price was paid, interest on the price from the date at which he had obtained full possession ran in favour of the vendor, and that the rate of interest to be charged in the particular case should be 31/2 per centum.
[ Bailii ]
 
Hunter v General Accident [1909] AC 404; 1909 SC (HL) 30; [1909] UKHL 2; 1909 2 SLT 99
29 Jun 1909
HL

Scotland, Insurance, Contract

[ Bailii ]
 
Johannesburg Municipal Council v D Stewart and Co (1902) Ltd and Others 47 SLR 20; [1909] UKHL 20
6 Jul 1909
HL
The Lord Chancellor (Loreburn), Lord James of Hereford, Lord Atkinson, Lord Gorell, and Lord Shaw of Dunfermline
Contract
A contract, declared to be an English contract enforceable in and subject to the jurisdiction of the English Courts, whereby a Scottish company undertook to supply engineering plant to the Johannesburg Municipal Council, contained this clause of reference-"In case any dispute or difference shall arise between the purchasers and the contractors . . it shall, after the complete delivery of the material, be referred to the arbitration of a single umpire or referee to be mutually agreed upon between the parties, or failing agreement, to be nominated by the president for the time being of the Institution of Civil Engineers of London, or in the case of disputes with local contractors in Johannesburg to be nominated by the Lieutenant-Governor of the Transvaal . . . and the arbitration shall be an arbitration within the meaning of the Arbitration Act of 1889 (England) and shall be conducted in all respects as therein provided."
A supplementary contract called "The Running Contract" contained this clause of reference - "In the event of any dispute between the contractors and the Council under this contract, the matter shall in the first place be referred to the engineers, but if either party refuses to accept the engineers' decision the matter in dispute shall be referred to a single arbiter or umpire to be mutually agreed upon, or failing agreement to be nominated by the Lieutenant-Governor of the Transvaal, and to hold the said arbitration in Johannesburg . . . and the arbitration shall be deemed to be an arbitration within the meaning of the Transvaal Ordinance of 1904, and shall be conducted in all respects as therein provided."
The contractors having refused to continue the tests under the "Running Contract," the Council rejected the whole material as unsatisfactory and brought an action in the Scottish Courts in which they sought to recover the payment made to account and also two separate sums as damages under the "Main" and "Running" contracts respectively. The Court of Session directed the parties to prepare a stated case for the opinion of the English Courts on the ground that the scope and validity of the arbitration clauses fell to be decided by these Courts, and it was necessary for the proper disposal of the case to ascertain whether the arbitration clauses covered the dispute between the parties.
Held (1) that the question whether the dispute between the parties fell within the arbitration clauses was as much a question of fact as of law; (2) that the action should therefore have gone to proof in the ordinary way in the Scottish Courts; and (3) that these Courts would, under the law of England, have the power, but would not be under necessity, should they find the dispute to be within the contract, to refer any part thereof to arbitration if that course were convenient and in accordance with Scottish practice.
Per the Lord Chancellor-"If the cause of action which is really established be that there has been complete repudiation and breaking of this contract, then it would not be within the arbitration clauses in either of these contracts."
> Opinion, per Lord Shaw, that the clauses of arbitration were executorial only and could not include a reference to an arbiter of the question whether a repudiation of the contract was justifiable, and further that the two contracts were so intermixed that procedure by arbitration was unworkable.
A Scottish company, by a contract which was declared to be deemed an English contract, contracted to supply certain engineering plant to a colonial municipal council. A bond, in English form, guaranteeing the fulfilment of the contract, was granted by an individual. The municipal council brought an action of damages for breach or non-fulfilment against the company and also against the guarantor, and used arrestments on the dependence against the latter.
Held: (rev. First Division) that the action as against the guarantor was not premature, and that the arrestments should not be recalled. Question whether if the law of Scotland alone had been in question the decision would have been otherwise.
[ Bailii ]

 
 Addis v Gramophone Company Limited; HL 26-Jul-1909 - [1909] AC 488; [1909] UKHL 1; [1909] UKHL 564
 
Robertson v The Balmain New Ferry Company Ltd [1909] UKPC 1; [1910] AC 295
10 Dec 1909
PC

Commonwealth, Transport, Contract, Torts - Other
High Court of Australia - The Plaintiff paid a penny on entering the wharf to stay there till the boat should start and then be taken by the boat to the other side. The Defendants were admittedly always ready and willing to carry out their part of this contract. Then the Plaintiff changed his mind, and wished to go back. The rules as to the exit from the wharf by the turnstile required a penny for any person who went though. This the Plaintiff refused to pay, and he was by force prevented from going through the turnstile. He then claimed damages for assault and false imprisonment,
[ Bailii ]
 
Bristol Tramways and Carriage Co Ltd v Fiat Motors Ltd [1910] 2 KB 831
1910
CA
Cozens-Hardy, LJ MR, Farwell LJ
Consumer, Contract
The plaintiff complained after the purchase of a Fiat Omnibus chassis "for the road", to be used for the conveyance of passengers around Bristol, in heavy and hilly traffic conditions. The chassis proved unfit for this purpose on account of breaking-down too often. Held: There was an implied condition that the omnibus should be reasonably fit for the declared purpose. Nevertheless, goods may be reasonably fit for a purpose despite minor defects.
Farwell LJ said: "The phrase in s.14, sub-s.(2), is, in my opinion, used as meaning that the article is of such quality and in such condition that a reasonable man acting reasonably would after a full examination accept it under the circumstances of the case in performance of his offer to buy that article whether he buys for his own use or to sell it again."
Cozens-Hardy, LJ MR considered the proper approach for a court interpreting a codifying statute: "I rather deprecate the citation of earlier decisions . . The object and intent of the statute . . was, no doubt, simply to codify the unwritten law applicable to the sale of goods, but in so far as there is an express statutory enactment, that alone must be looked at and must govern the rights of the parties, even though the section may to some extent have altered the prior common law"
Sale of Goods Act 1897 14(a)
1 Citers



 
 Humphries v Humphries; CA 1910 - [1910] 2 KB 531; [1908-10] All ER rep 733; [1910] 79 LJKB 919; [1910] 103 LT 14

 
 Wallis v Pratt; CA 1910 - [1910] 2 KB 1003

 
 Black v S Freeman and Co; 1910 - (1910) 12 CLR 105
 
Sharpe v Carswell [1910] ScotCS CSIH - 2
8 Feb 1910
Scs
Lord Ardwall
Contract

[ Bailii ]
 
Houldsworth v Gordon Cumming [1910] UKHL 761; 47 SLR 761
21 Jul 1910
HL
Lord Chancellor (Loreburn), Earl of Halsbury, Lord Kinnear, and Lord Shaw
Contract
All that passed, either oral or in writing, in the negotiations leading up to a completed contract of sale of heritable property is admissible in evidence to prove what was the subject of the sale, not to alter the contract, but to identify the subject.
> Per Lord Kinnear-"The meaning of a descriptive name in a particular contract cannot be determined by a fixed rule of law without regard to the facts of the case. . . I agree that a contract to sell the lands contained in a certain title is perfectly possible, and would give the purchaser right to everything which the seller and his predecessors had in fact possessed under that title. I would be disposed to concede further that if an estate is sold under a general name, without reservation or restriction expressed in the contract, or capable of being proved by competent evidence, the reasonable inference is that what is intended is the estate so named which the seller holds under a valid title. And if it be assumed that the contract covers the whole estate, the buyer would be entitled to a disposition according to the description contained in the existing titles, because ex hypothesi the intention of the contract is to transfer to the disponee everything to which the disponer had right. But if there be any question whether the subject sold is less or more than the whole estate possessed, that cannot be solved by the title unless the contract has been made with express reference to the title. The mere coincidence of names proves nothing, because names are not used in the ordinary transactions of business with exact reference to title-deeds, and the local use of estate names may vary indefinitely as boundaries may shift from time to time."
[ Bailii ]
 
Carlisle and Cumberland Banking Company v Bragg [1911] 1 KB 489; 80 LJKB 472
1911


Contract
A party wishing to establish a plea of non est factum in order to avoid liability under a deed, must show that he had taken care in signing the document. Held: There could not be negligence in the execution of a document unless a duty was owed to the person who acted upon it.
1 Citers



 
 Chaplin v Hicks; CA 1911 - (1911) 27 TLR 244; [1911] 2 KB 786; [1911-13] All ER 224; 80 LJKB 1292
 
Newman v Oughton [1911] 1 KB 792
1911

Ridley J, Avory J
Contract
The plaintiff sought to execute a judgment against goods in the possession of a judgment debtor. The goods were claimed by a firm of pawnbrokers who said that they were included in a bill of sale granted to them. At the trial of the resulting interpleader the bill of sale was said to have been given as security for an advance of £50. The plaintiff argued that an advance on a bill of sale did not constitute business conducted in accordance with the provisions of the 1872 Act, that the claimant was an unregistered moneylender and that the transaction was therefore void. Held: The claimant had not acted in breach of the Pawnbrokers Act and was therefore entitled to the protection of section 6(a) of the Moneylenders Act. Also, since there was evidence of only one loan it could not be said that the claimants had been proved to be persons whose business was that of moneylending within the meaning of the Act (Ridley J). Avory J agreed, holding that one isolated transaction was not enough to bring the claimants within the definition of a moneylender.
Pawnbrokers Act 1872 - Moneylenders Acts 1900 6
1 Citers


 
Lovell and Christmas Ltd v Wall (1911) 104 LT 85
1911
CA
Sir Herbert Cozens-Hardy MR, Buckley LJ
Contract, Equity
Sir Herbert Cozens-Hardy MR said that rectification “may be regarded as a branch of the doctrine of specific performance".
Buckley LJ said: "For rectification it is not enough to set about to find what one or even both of the parties to the contract intended. What you have to find out is what intention was communicated by one side to the other, and with what common intention and common agreement they made their bargain."
1 Citers



 
 Hirachand Punamchand v Temple; CA 1911 - [1911] 2 KB 11; [1911] 2 KB 330
 
Foundling Hospital Governors v Crane [1911] 2 KB 367
1911

Farwell LJ
Contract
Farwell LJ approved the description of the operation of the doctrine of escrow as follows: "The rules respecting escrows are, 1st, The writing will not operate as a deed till the second delivery. 2ndly, The party deputed to make the second delivery, cannot give effect to the writing by delivering the same before the conditions are performed. 3rdly, On the second delivery of the writing, it will have relation, for the purposes of title, and not for the purpose of giving a right to the immediate rent, etc from the delivery. 4thly, So as the conditions be performed, and the deed delivered a second time, the deed will be good, not withstanding the death of either or both of the parties before the second delivery."
1 Citers



 
 Sheffield District Railway co v Great Central Railway Co; 1911 - (1911) 27 TLR 451; (1911) Ty and Can Tr Cas 299

 
 Whitehorn Brothers v Davison; CA 1911 - [1911] 1 KB 463
 
International Sponge Importers Ltd v Watt and Son [1911] UKHL 515; 48 SLR 515
31 Mar 1911
HL
Lord Chancellor (Loreburn), Lord Atkinson, and Lord Shaw
Agency, Contract
Circumstances in which held that the purchaser was not bound to pay over again for goods for which he had already paid, though such prior payment had been made, out of the usual course of business, in cash to the seller's commercial traveller, who had embezzled the money.
[ Bailii ]
 
International Sponge Importers Ltd v Andrew Watt and Sons [1911] UKHL 1; [1911] AC 279; 1911 1 SLT 414; 1911 SC (HL) 57
31 Mar 1911
HL

Scotland, Contract, Agency, Torts - Other

[ Bailii ]
 
John D Hope and Co v Glendinning [1911] UKHL 2; 1911 2 SLT 161; 1911 SC (HL) 73; [1911] AC 419
26 Jun 1911
HL
Lord Atkinson
Contract

[ Bailii ]
 
Brown v Turner Brightman and Co [1911] UKHL 679
30 Oct 1911
HL
Lord Chancellor (Loreburn), Lords Atkinson, Shaw, and Mersey
Contract
A time-charter of a ship contained the following exceptions -"The owners and charterers shall be mutually absolved from liability in carrying out this contract in so far as they may be hindered or prevented by . . strikes." The charterers ordered the ship to the port of N. at a time when to their knowledge a strike was there in operation. Owing to the strike the ship could not obtain a cargo at N. Under the charter-party the charterers could have withdrawn the vessel from the area of the strike and traded with it elsewhere. The charterers refused to pay hire for the period of the ship's stay at N.
Held that the charterers were not protected by the exception, and were bound to pay the hire.
[ Bailii ]
 
E Clemens Horst Co v Biddell Brothers [1911] UKHL 680; 49 SLR 680
3 Nov 1911
HL
Lord Chancellor (Loreburn), Lords Atkinson, Gorell, and Shaw of Dunfermline
Contract
A contract for the sale of hops of specified quality provided that they should be shipped by the sellers from San Francisco to Sunderland, and paid for by the purchasers by weight c.i.f. "terms net cash." The purchasers declined to pay the price until after arrival at the port of destination and opportunity for examining the goods.
Held that the sellers in a c.i.f. contract were entitled to payment of the price upon tender of the bill of lading and insurance policy.
[ Bailii ]
 
Laird and Son v Bank of Scotland and Others [1911] UKHL 95
1 Dec 1911
HL
Lord Chancellor (Loreburn), Lord Alverstone, Lord Atkinson, and Lord Shaw
Contract
Circumstances in which their Lordships held, following the judgment of the Lord Ordinary who had taken a proof, that certain logs of timber lying in a store had been sufficiently identified and appropriated as belonging to a transferee so as to transfer the property to him.
[ Bailii ]
 
Crawford and Law v Allan Line Steamship Co Ltd [1911] UKHL 117; 49 SLR 117
19 Dec 1911
HL
Lord Chancellor (Loreburn), Earl of Halsbury, Lord Atkinson, Lord Gorell, and Lord Shaw
Contract, Transport
Where a through bill of lading has been signed, inter alios, on behalf of the last carriers, the shipowners, providing that each carrier is only to be liable for damage occurring on his portion of the route, and acknowledging that the goods have been received in good order at the beginning of the transit, and the last carriers have taken no exception to the condition of the goods when handed over to them, they are liable for any damage discovered unless they prove it occurred previously.
[ Bailii ]

 
 Webster v Bosanquet; PC 1912 - [1912] AC 394

 
 Reid-Newfoundland Co v Anglo-American Telegraph Co Ltd; PC 1912 - [1912] AC 555

 
 Kish v Taylor; 1912 - [1912] AC 604

 
 London General Omnibus Co Ltd v Holloway; 1912 - [1912] 2 KB 72
 
Von Hatzfeldt-Wildenburg v Alexander [1912] 1 Ch 284
1912

Parker J
Contract
Parker J said: "It appears to be well settled by the authorities that if the documents or letters relied on as constituting a contract contemplate the execution of a further contract between the parties, it is a question of construction whether the execution of the further contract is a condition or term of the bargain or whether it is a mere expression of the desire of the parties as to the manner in which the transaction already agreed to will in fact go through. In the former case there is no enforceable contract either because the condition is unfulfilled or because the law does not recognize a contract to enter into a contract. In the latter case there is a binding contract and the reference to the more formal contract can be ignored."

 
Steggall v Lymburner (1912) 14 WALR 201
1912

McMillan J
Employment, Contract
The defendant deducted from the wages of an employee, either at his request or by his consent, the amount of a debt due by the employee to the plaintiffs, and promised the plaintiffs to pay the amount to them. Held: "The contention on the part of the defendant before the magistrate was that his promise to pay was a promise to pay a debt of another person and, therefore, was not actionable, as there was no evidence in writing. In answer to that it is said that the Statute of Frauds has nothing to do with the case, and that the promise of the defendant is not to discharge the debt of another person, but a promise to pay his own debt. In Leake on Contracts, 5th edition, p.839, it is stated 'the contract or promise of the debtor to pay according to the order or assignment of his creditor is a promise to pay his own debt, although it operates in discharge of the debt of his creditor. It is, therefore, not a promise to pay the debt of another within the Statute of Frauds, and does not require written evidence.'" Burnside J agreed, describing it as "a very simple case".

 
Blacker v Lake and Elliot Ld (1912) 106 LT 533
1912
HL
Lord Sumner
Contract, Negligence
A brazing lamp which, by exploding owing to a latent defect, injured a person other than the purchaser of it, and the vendor was held not liable to the party injured. The House considered earlier cases on liability for defectively manufactured goods: "The breach of the defendant's contract with A. to use care and skill in and about the manufacture or repair of an article does not of itself give any cause of action to B. when he is injured by reason of the article proving to be defective."
1 Cites

1 Citers


 
T W Thomas and Co Ltd v Portsea Steamship Co Ltd [1912] AC 1
1912
PC

Contract, Arbitration
The board discussed the approach to the incorporation of arbitration clauses and jurisdiction clauses from one contract into another such as a bill of lading.
1 Citers



 
 Von Hatzfeldt-Wildensburg v Alexander; ChD 1912 - [1912] 1 Ch 284; [1911-13] All ER Rep 148; 81 LJ Ch 184
 
British Westinghouse Electric and Manufacturing Co v Underground Electric Railways Co (London) Limited [1912] AC 673; [1911-13] All ER Rep 63; 81 LJKB 1132; [1912] UKHL 617
1912
HL
Viscount Haldane LC
Damages, Contract
The plaintiffs purchased turbines from the defendants. They proved defective, and the plaintiffs sought damages. In the meantime they purchased replacements, more effective than the original specifications. In the result the railway company obtained benefits over and above their contractual entitlement. Additional benefits obtained as a result of taking reasonable steps to mitigate loss were to be brought into account in the calculation of damages. It was necessary to balance loss against gain when the amount of the damages was being calculated. The House distinguished cases in which the plaintiff had received benefits which "did not arise out of the transactions the subject-matter of the contract." These were res inter alios acta. But where -"the person whose contract was broken took a reasonable and prudent course quite naturally arising out of the circumstances in which he was placed by the breach" it was necessary to look at any additional benefits which he thereby acquired and to "balance loss and gain."
Viscount Haldane LC said: "i) The fundamental basis of damages is compensation for the pecuniary loss to a party naturally flowing from the breach.
ii) This principle is qualified by the duty of a plaintiff to take all reasonable steps to mitigate the loss consequent on the breach.
iii) Where in the course of business a party has taken action arising out of the transaction which has mitigated his loss, the effect in actual diminution of the loss he has suffered may be taken into account even if he had no duty to act.
iv) Where the subsequent arrangement was not between those parties, but between a claimant and a third party, the court should look at what actually happened and balance loss and gain."
and "The quantum of damage is a question of fact, and the only guidance the law can give is to lay down general principles which afford at times but scanty assistance in dealing with particular cases . . Subject to these observations I think that there are certain broad principles which are quite well settled. The first is that, as far as possible, he who has proved a breach of a bargain to supply what he contracted to get is to be placed, as far as money can do it, in as good a situation as if the contract had been performed. The fundamental basis is thus compensation for pecuniary loss naturally flowing from the breach; but this first principle is qualified by a second, which imposes on a plaintiff the duty of taking all reasonable steps to mitigate the loss consequent on the breach . ."
1 Cites

1 Citers

[ Bailii ]
 
British Glanzstoff Manufacturing Co, Ltd v General Accident, Fire, and Life Assubrance Corporation, Ltd [1912] SLR 477
22 Feb 1912
SCS

Contract
Court of Session Inner House First Division
1 Citers

[ Bailii ]

 
 Boyd and Forrest v GWSR Co; HL 16-May-1912 - [1912] UKHL 5; 1912 SC (HL) 93; 1912 1 SLT 476
 
Boyd and Forrest v The Glasgow and South-Western Railway Co [1912] UKHL 735; 49 SLR 735
16 May 1912
HL

Contract
A railway company entered into a written contract with a firm of contractors for the construction of a railway for a lump sum. The specification attached to the contract and forming its basis stated that bores had been put down at various parts of the line, and that a copy of the journal of these bores might be seen at the engineer's office, but that the company did not guarantee their accuracy, and would not hold themselves liable for any claim on account of any inaccuracy in the journal. According to the specification, only three descriptions of material were to be excavated, viz., solid rock, broken or loose rock, and soft. In the course of the work the contractors found that much of the material classified as "soft" contained rock, and it turned out that the bores had not been made by professional borers, but by employees of the railway who had been engaged in similar work before, and that the journal of bores had not been prepared by them but was compiled in the engineer's office from letters written by them. It appeared further that it did not accurately record the contents of these letters, but was the engineer's interpretation of the information these letters purported to convey, and that in particular a substance reported in three instances as "black ban" or "hard black ban," and in five instances as "rock," was changed into "black blaes" and classified as "soft." In a petitory action at the instance of the contractors against the railway company for the amount of their loss under the contract, held ( rev. judgment of the Second Division) that the contract had not been induced by the fraud of the defenders in respect that the engineer honestly believed that the journal of bores correctly set forth the substance found, and corrected a misdescription of the borers as to the nature of that substance.
[ Bailii ]
 
Ferrier v Stewart [1912] 15 CLR 32; [1912] HCA 47
24 Jun 1912

Isaacs J
Commonwealth, Estoppel, Contract
High Court of Australia - The plaintiffs were the surviving members of a firm, owed money by the defendant's husband confirmed promissory notes. The firm extend his credit against new promissory notes, provided that they were indorsed by the defendant also so as to make her liable on the notes. This she agreed to do. In order to effect a contract between herself and the firm, the notes had formally to be indorsed by the firm to her before she put her indorsement on them. In fact, the notes were given to her, for her indorsement, before the firm's indorsement appeared on them and she placed her indorsement on them as if they had already been indorsed to her. The notes were thereafter indorsed by the firm, so that on their face they appeared to have been indorsed in the correct chronological sequence, contrary to the facts as both parties knew them to be. The defendant subsequently refused to pay the bills on the ground that they had not been indorsed to her at the time of her signature. Held: This defence failed. The parties had adopted a conventional basis for the transaction. They impliedly agreed that, when the promissory note should be completed by other indorsements, it should be assumed to have been issued and indorsed by the parties in due order. From this assumption the indorsee was not permitted to depart, although all parties had been aware of the actual state of affairs.
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[ Austlii ]
 
Heilbut Symons and Co v Buckleton [1911-13] All ER 83; [1913] 82 LJKB 245; [1913] 107 LT 769; [1912] UKHL 2; [1913] AC 30; (1912) 107 LT 769; [1912] UKHL 642
11 Nov 1912
HL
Viscount Haldane LC, Lord Moulton
Contract, Torts - Other
In an action of damages for fraudulent misrepresentation and breach of warranty, the plaintiff founded on a conversation between himself and the defendants' representative. In this conversation the plaintiff said-"I understand that you are bringing out a rubber company." The reply was-"We are." The plaintiff then asked "if it was all right," and received the answer-"We are bringing it out," to which he replied-"That is good enough for me." He thereupon applied for and received an allotment of 5000 shares in the company at a premium, which subsequently fell in value. A jury having negatived fraudulent misrepresentation, but found that the company could not properly be described as a rubber company, and that the defendants had given a warranty to that effect, held that the intention to constitute a representation of the seller a warranty must be clearly proved, that the evidence put before the jury was insufficient to prove such intention, and should therefore not have been submitted by the judge to the jury as material on which to base a finding. The House considered the genesis of collateral contracts: "there may be a contract the consideration for which is the making of some other contract, 'If you will make such and such a contract I will give you one hundred pounds', is in every sense of the word a complete legal contract. It is collateral to the main contract." and
"such collateral contracts must from their very nature be rare . . the more natural and usual way of carrying this out would be by so modifying the main contract and not by executing a concurrent and collateral contract. Such collateral contracts . . are therefore viewed with suspicion by the law. They must be proved strictly. Not only the terms of such contract but the existence of an animus contrahendi on the part of all the parties to them must be clearly shown." An innocent misrepresentation gives no right to damages.
Speaking as to De Lasalle v. Guildford: "With all deference to the authority of the Court that decided that case, the proposition which it thus formulates cannot be supported. It is clear that the Court did not intend to depart from the law laid down by Holt CJ. And cited above, for in the same judgment that dictum is referred to and accepted as a correct statement of the law. It is, therefore, evidence that the use of the phrase 'decisive test' cannot be defended. Otherwise it would be the duty of a judge to direct a jury that if a vendor states a fact of which the buyer is ignorant, they must, as a matter of law, find the existence of a warranty, whether or not the totality of the evidence shows that the parties intended the affirmation to form part of the contract; and this would be inconsistent with the law as laid down by Holt CJ. It may well be that the features thus referred to in the judgment of the Court of Appeal in that case may be criteria of value in guiding a jury in coming to a decision whether or not a warranty was intended; but they cannot be said to furnish decisive tests, because it cannot be said as a matter of law that the presence or absence of those features is conclusive of the intention of the parties. The intention of the parties can only be deduced from the totality of the evidence, and no secondary principles of such a kind can be universally true." It is of the greatest importance to 'maintain in its full integrity the principle that a person is not liable in damages for an innocent misrepresentation, no matter in what way or under what form the attack is made.'
Investors in a new company claimed to have done so only on the basis of an alleged representation in the company's name and by an intermediary that it was a rubber company. They sought damages when the company failed, saying that the representatin was a warranty. Held: The appeal succeeded. The plaintiff had not shown that he had relied on any such representation, but rather on the general reputation of the appellants. Lord Moulton set out how to decide whether a clause was a warranty "The intention of the parties can only be deduced from the totality of the evidence". The question whether a warranty was intended depends on the conduct of the parties, on their words and behaviour, rather than on their thoughts. If an intelligent bystander would reasonably infer that a warranty was intended, that will suffice. And this, when the facts are not in dispute, is a question of law.
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[ Bailii ] - [ Bailii ]

 
 Morrell v Studd and Millington; 1913 - [1913] 2 Ch 648
 
Mason v Provident Clothing and Supply Co Ltd [1913] AC 724
1913

Lord Moulton
Employment, Contract
To uphold restrictions which a covenant imposes upon the freedom of action of the servant after he has left the service of the master, the master must satisfy the Court that the restrictions are no greater than are reasonably necessary for the protection of the master in his business.
Courts should be reluctant to read down a potentially excessively wide covenant to make it enforceable. If severance is sought, the court should ask whether that which is unenforceable ‘part of the main purport and substance’ of the clause in which it appears?
Lord Moulton said: "It would in my opinion be pessimi exempli if, when an employer had exacted a covenant deliberately framed in unreasonably wide terms, the Courts were to come to his assistance and, by applying their ingenuity and knowledge of the law, carve out of this void covenant the maximum of what he might validly have required. It must be remembered that the real sanction at the back of these covenants is the terror and expense of litigation, in which the servant is usually at a great disadvantage, in view of the longer purse of his master."
1 Citers


 
North Western Salt Co Ltd v Electrolytic Alkali Co Ltd [1913] 3 KB 422
1913
CA

Contract
A restrictive agreement was challenged. Held (majority): the agreement was in restraint of trade, and so unenforceable, despite the defendants' failure to plead this defence. Farwell LJ said: "In the present case, no circumstances in my opinion could justify such a contract made for the mere purpose of raising prices, with the inseparable incident of depriving the members of the public of the choice of manufacturers, while hoodwinking them into the belief that such choice is open to them."
1 Citers



 
 Meyer v Sanderson; 1913 - [1913] 108 LT 428

 
 The Okehampton; CA 1913 - [1913] P 173
 
Kilmer v The British Columbia Orchard Lands Limited [1913] UKPC 10
26 Feb 1913
PC
Lord Moulton
Contract, Equity
British Columbia
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1 Citers

[ Bailii ]
 
Lord Mayor and Corporation of Bristol v John Aird and Co [1913] UKHL 959; 50 SLR 959
13 Mar 1913
HL
Lords Atkinson, Shaw, Moulton, and Parker
Contract
In an application to stay an action on a contract brought by the respondents on the ground that the contract contained a clause of reference, held that though an arbiter need not be independent of the parties, the fact that questions of moment were involved in the case to which he must be a principal witness warranted the Court in refusing to stay proceedings in an action regarding matters falling under the reference.
[ Bailii ]
 
Hepburn v Law [1913] ScotCS CSIH - 4; [1913] SLR 342
12 Jul 1913
SCS

Contract

Sale of Goods Act 1893
[ Bailii ] - [ Bailii ]
 
Tyzack and Branfoot Steamship Co Ltd v Sandeman and Sons [1913] UKHL 869
18 Jul 1913
HL
Lord Chancellor (Haldane), Earl Loreburn, Lord Shaw, and Lord Moulton, Lord Parker being present at delivering judgment
Transport, Contract
A ship's cargo consisted of a number of consignments of bales of jute, and at the port of delivery it was found that the number of bales was short by 14, while, further, 11 bales were unidentifiable with any particular consignment and contained a different quality of jute. In an action by the shipowners for freight against a firm of consignees who had received short delivery, held that the consignees were not bound to accept pro tanto a proportion of the unidentifiable bales.
[ Bailii ]
 
Mason v Provident Clothing and Supply Co [1913] UKHL 558; 51 SLR 558
28 Jul 1913
HL
Lord Chancellor (Haldane) and Lords Dunedin, Shaw, and Moulton
Contract
Appellant had been engaged by the respondents under an agreement seriously curtailing his opportunities of earning his living. Held that inasmuch as the agreement embodied restrictions which were not reasonable or necessary for the protection of the respondents' business it was void.
[ Bailii ]
 
G and C Kreglinger v The New Patagonian Meat and Cold Storage Company [1914] AC 25; [1913] UKHL 1
20 Nov 1913
HL
Viscount Haldane, Lord Parker
Constitutional, Contract, Equity
The appellant woolbrokers had lent the respondent £10,000 with a floating charge over its undertaking. The loan agreement provided that, for five years, the appellants would have first refusal over all sheepskins sold by the company. The company paid off the loan, but the appellants claimed that they were entitled to continue to exercise their right of first refusal. Held: The right of first refusal not part of the mortgage transaction; but was a collateral contract entered into as a condition of the company obtaining the loan. The appellants could therefore entitled to enforce it. Whilst courts are loathe to interfere with freedom of contract, they will intervene where evidence showed that terms imposed by a mortgagee are unconscientious. To do so, the courts will consider both the form and substance of the transaction.
Lord Parker of Waddington discussed the survival of the rule against a clog on an equity of redemption, saying that it was not objectionable for a mortgage to confer a collateral advantage upon a mortgagee: "The last of the usury laws was repealed in 1854, and thenceforward there was, in my opinion, no intelligent reason why mortgages to secure loans should be on any different footing from other mortgages. In particular, there was no reason why the old rule against a mortgagee being able to stipulate for a collateral advantage should be maintained in any form or with any modification. Borrowers of money were fully protected from oppression by the pains always taken by the Court of Chancery to see that the bargain between borrower and lender was not unconscionable. Unfortunately, at the time when the last of the usury laws was repealed, the origin of the rule appears to have been more or less forgotten, and the cases decided since such repeal exhibit an extraordinary diversity of judicial opinion on the subject. It is little wonder that, with the existence in the authorities of so many contradictory theories, persons desiring to repudiate a fair and reasonable bargain have attempted to obtain the assistance of the Court in that behalf. My Lords, to one who, like myself, has always admired the way in which the Court of Chancery succeeded in supplementing our common law system in accordance with the exigencies of a growing civilization, it is satisfactory to find, as I have found on analysing the cases in question, that no such attempt has yet been successful. In every case in which a stipulation by a mortgagee for a collateral advantage has, since the repeal of the usury laws, been held invalid, the stipulation has been open to objection, either (1) because it was unconscionable, or (2) because it was in the nature of a penal clause clogging the equity arising on failure to exercise a contractual right to redeem, or (3) because it was in the nature of a condition repugnant as well to the contractual as to the equitable right." and
"The nature of the equitable right [to redeem] is so well known that, upon a mortgage in the usual form to secure a money payment on a certain day, it must be taken to be a term of the real bargain between the parties that the property shall remain redeemable in equity after failure to exercise the contractual right. Any fetter or clog imposed by the instrument of mortgage on this equitable right may properly be regarded as a repugnant condition and as such invalid. There are, however, repugnant conditions which cannot be regarded as mere penalties intended to deter the exercise of the equitable right which arises when the time for the exercise of the contractual right has gone by, but which are repugnant to the contractual right itself. A condition to the effect that if the contractual right is not exercised by the time specified the mortgagee shall have the option of purchasing the mortgaged property may properly be regarded as a penal clause. It is repugnant only to the equity and not to the contractual right itself. But a condition that the mortgagee is to have such an option for a period which begins before the time for the exercise of the equitable right has arrived, or which reserves to the mortgagee any interest in the property after the exercise of the contractual right, is inconsistent not only with the equity but with the contractual right itself, and might, I think, be held invalid for repugnancy even in a Court of Law."
As to the doctrine of precedent: "To follow previous authorities, so far as they lay down principles, is essential if the law is to be preserved from becoming unsettled and vague. In this respect previous decisions of a court of co-ordinate jurisdiction are more binding in a system of jurisprudence such as ours than in systems where the paramount authority is that of a code. When a previous case has not laid down any principle, but has merely decided that a particular set of facts illustrates an existing rule, there are few more fertile sources of fallacy than to search in it for what is simply resemblances in circumstances, and to erect a previous decision into a governing precedent merely on this account. To look for anything except the principle established or recognized by previous decisions is really to weaken and not to strengthen the importance of precedent. The consideration of cases which turn on particular facts may often be useful for edification, but it can rarely yield authoritative guidance." The evolving nature of the equitable jurisdiction is 'to mould the rules which they apply in accordance with the exigencies at the time'.
Lord Parker explained the decision in Bradley v Carritt: "The real question, in my opinion, was whether it [the clause in question] was inconsistent with or repugnant to the contractual right of the mortgagee [quaere, mortgagor] to have his property restored unfettered if he paid the money secured with interest as provided in the agreement, and the consequential equitable right to have the property so restored if he paid his money with interest and costs at any time. On this point there was room for a difference of opinion . . There is really no difficulty in the decision itself. It is merely to the effect that the case was within the principles of Noakes v Rice. Lords Macnaghten, Davey, and Robertson all thought that if the stipulations in question were binding after redemption the mortgagor would not get back his property intact; in other words, that the stipulation was repugnant both to the contractual right and the equity."
Lord Mersey agreeing, said that the equitable doctrine prohibiting the imposition of a clog on the mortgagor's right to redeem is "like an unruly dog, which, if not securely chained to its own kennel, is prone to wander into places where it ought not to be".
Viscount Haldane, Lord Chancellor, said: "the other and wider principle remains unshaken, that it is the essence of a mortgage that in the eye of a Court of Equity it should be a mere security for money, and that no bargain can be validly made which will prevent the mortgagor from redeeming on payment of what is due, including principal, interest and costs. He may stipulate that he will not pay off his debt, and so redeem the mortgage, for a fixed period. But whenever the right to redeem arises out of the doctrine of equity, he is precluded from fettering it. This principle has become an integral part of our system of jurisprudence and must be faithfully adhered to."
The issue for decision was: "What was the true character of the transaction? Did the appellants make a bargain such that the right to redeem was cut down, or did they simply stipulate for a collateral undertaking, outside and clear of the mortgage, which would give them an exclusive option of purchase of the sheepskins of the respondents. The question is in my opinion not whether the two contracts were made at the same moment and evidenced by the same instrument, but whether they were in substance a single and undivided contract or two distinct contracts." The agreement for a right to purchase the respondent's sheepskins was a collateral bargain "the entering into which was a preliminary and separable condition of the loan".
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[ Bailii ]
 
Kreglinger v New Patagonia Meat and Cold Storage Co Ltd [1913] UKHL 843; 51 SLR 843
20 Nov 1913
HL
Lord Chancellor (Viscount Haldane), Earl of Halsbury, Lords Atkinson, Mersey, and Parker
Contract, Land
The appellants sought to enforce an option granted them under an agreement by the respondents in consideration for a loan on the security of a mortgage. The loan having been repaid prior to the expiry of the option, the respondents declined to further implement the agreement, on the ground that the option granted to the appellants was of the nature of a collateral advantage limiting the debtor's right of redemption.
Held that the stipulation in the agreement did not limit the right of redemption, and was therefore valid.
Observed per Lord Parker-There is now no rule in equity which precludes a mortgagee from stipulating for any collateral advantage, provided it is not either (1) unfair and unconscionable, or (2) in the nature of a penalty clogging the equity of redemption, or (3) inconsistent with the contractual and equitable right to redeem.
Observed per Lord Chancellor-The same general principles apply to a floating charge (vide De Beers, Limited v. British South Africa Company, 1912 A.C. 52, where there are dicta to the contrary).
Observations per Lord Chancellor on "the true limits of the use of authority."
[ Bailii ]
 
Charrington and Co Ltd v Wooder [1913] UKHL 863; 51 SLR 863
10 Dec 1913
HL
Lord Chancellor (Viscount Haldane), Lords Kinnear, Dunedin, and Atkinson
Landlord and Tenant, Contract
The lessors of a "tied house" agreed to supply their tenants with malt liquors at "the fair market price." The respondent claimed to be supplied at such price as he could have bought in the open market, the appellants to charge the ordinary rates applicable to tied houses. Held that the "market price" was the ordinary price charged to tied houses.
[ Bailii ]
 
Daniels v Trefusis [1914] 1 Ch 788
1914


Contract
Mr Trefusis agreed with an agent called Mr Girdlestone to buy a house for £700. Girdlestone was in fact acting for a Mr Daniels but later claimed to be a principal who had bought from Mr Daniels for £600 and was sub-selling to Mr Trefusis at an increased price. Girdlestone commenced an action against Mr Daniels for specific performance of the agreement said to have been made between them. In the latter action (later dismissed) Mr Daniels' solicitors wrote to Mr Trefusis' solicitors asking for a short statement from Mr Trefusis as to what had occurred between him and Mr Girdlestone. The solicitors sent an unsigned statement by Mr Trefusis as to the verbal agreement he had made with Mr Girdlestone, and, later, replies to certain questions which Mr Daniels' solicitors had posed. The accompanying letter said that they enclosed the questions with what were, and were said by them to be, Mr Trefusis' answers. These answers were not, however, signed by him. It was common ground that the statement, answers and accompanying letter were sufficient to constitute a note or memorandum for the purposes of the Statute. When Daniels as vendor began an action against Trefusis as buyer Trefusis alleged, inter alia, that there was no memorandum satisfying the Statute.
Mr Trefusis contended that the solicitors were not in fact acting as his agents in providing the statements or proof from him, but were acting on behalf of the plaintiff, and that in any case their authority did not extend to signing a note or memorandum of the contract on the defendant's behalf. Sargant J held that the first objection was untenable and that the second also failed. The solicitors had authority to forward to the plaintiff's solicitors the documents which they sent. It did not matter that they may not have been contemplating that those documents would form a memorandum for the purposes of the Statute.
"The unintentional by-product of satisfying the Statute may be produced as completely by a note or memorandum signed by an agent of the party as by a note or memorandum signed by the party himself, provided, of course, that the agent had authority to sign the particular note or memorandum".
Statutre of Frauds 1677 4
1 Citers



 
 North Western Salt Co Ltd v Electrolytic Alkali Co Ltd; HL 1914 - [1914] AC 461

 
 Nocton v Lord Ashburton; HL 1914 - [1914] AC 932

 
 Charrington and Co Ltd v Wooler; HL 1914 - [1914] AC 71
 
British Motor Body Co Ltd v Thomas Shaw (Dundee) Ltd 1914 SC 922
1914

Lord President Strathclyde
Contract

1 Citers


 
North-Western Salt Co Ltd v Electrolytio Alkali Company [1914] AC 461
1914


Contract

1 Citers


 
Nightingale and others v Parsons [1914] 2 KB 621
1914


Contract

1 Citers


 
Embiricos v Sydney Reid and Co [1914] 3 KB 45
1914

Scrutton J
Contract
What constitutes a frustrating event something to be ascertained only at the time when the parties to the contract are called on to make up their minds.
1 Citers


 
Boyd and Forrest v GWSR Co [1914] ScotCS CSIH - 2
7 Mar 1914
SCS

Scotland, Contract, Torts - Other
The pursuers' case is that they were led to enter into a contract with the defenders to execute certain works of construction of a railway for a lump sum, and that they were led to tender to do the work for a certain price, by the other party, the defenders, having, through their responsible officials, supplied them with information which was in essential particulars misleading information; and that thus they, the pursuers, were induced to enter into the contract by fraud, or otherwise that they were misinformed by an incorrect representation of facts, and were thus under essential error. They claim that the sum to which they were entitled for the work done is much larger than what they have received, and they sue for the excess. TThe pursuers' case is that they were led to enter into a contract with the defenders to execute certain works of construction of a railway for a lump sum, and that they were led to tender to do the work for a certain price, by the other party, the defenders, having, through their responsible officials, supplied them with information which was in essential particulars misleading information; and that thus they, the pursuers, were induced to enter into the contract by fraud, or otherwise that they were misinformed by an incorrect representation of facts, and were thus under essential error. They claim that the sum to which they were entitled for the work done is much larger than what they have received, and they sue for the excess. T
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[ Bailii ]
 
Williams Brothers v E T Agius Ltd [1914] UKHL 604; 52 SLR 604
27 Mar 1914
HL
Lord Chancellor (Viscount Haldane), Lords Dunedin, Atkinson, Moulton and Parker
Contract
A sold a shipload of coal to B for delivery in November at 16s. 3d. per ton. In October B sold to C, in Italy, a corresponding shipload of coals at 19s. per ton. In November C sold to A for 20s. per ton the coal he had bought from B, and "ceded the original usual contract of the sellers." A failed to give delivery of the coal in November, but in virtue of the contract with C tendered the difference between 16s. 3d. and 19s. per ton as damages to B. B claimed the difference between 16s. 3d. and 23s. 6d. per ton-the market price at the time of the breach. The arbiter, appointed under a clause in the original contract found that as B was bound to appropriate the shipment if delivered to the satisfaction of the contract with C, the amount of the damages was the difference between 16s. 3d. and 19s.
Held that the arbiter had no jurisdiction to consider a counter-claim under a foreign law, and that under the contract that he was interpreting the measure of damages was the difference between the contract and market prices at the date of breach.
Observed that the law as laid down in Rodocanachi v. Milburn, 18 Q.B.D. 67, is unaffected by the Sale of Goods Act 1893, section 51, sub-section 2. Wertheim v. Chicoutimi Pulp Company, 1911 AC 301, 48 S.L.R. 1090, distinguished.
Decision of the Court of Appeal reversed.
[ Bailii ]
 
Hadsley v Dayer-Smith [1914] UKHL 647; 52 SLR 647
5 May 1914
HL
Lords Dunedin, Atkinson, Shaw, Sumner, and Parmoor
Contract, Company
Where there was a clause in a contract of partnership between house agents prohibiting an outgoing partner from carrying on or engaging or being interested in a similar business within a given area, held that an outgoing partner could be restrained from advertising houses to be let within the area although his place of business was outside.
[ Bailii ]

 
 Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd; HL 1-Jul-1914 - [1915] AC 67; [1914] UKHL 1; (1904) 12 SLT 498; (1904) 7 F (HL) 77; [1914] UKHL 861
 
The Farmers' Mart Ltd v Milne [1914] UKHL 729; 51 SLR 729
16 Jul 1914
HL
Lord Dunedin, Lord Atkinson, and Lord Shaw
Contract
A firm of live-stock salesmen, agents, auctioneers, appraisers, and land-surveyors, agreed with their manager that he should be entitled, with their consent, to accept any appointment as factor, or trustee on, or other office involving the management of any estate, the fees so earned by him to be pooled with any fees or commissions earned by them for any sales or valuations in connection with such estates and the proceeds divided, one-half to him and one-half to them, "provided always that before any such division shall take place there shall, out of said proceeds, be paid to" the firm "the balance of any debt remaining due to them from such estate, after giving credit for all sums received or falling to be received on account of such debt. . . "
In an action by the firm against the manager, who had left their service, calling for an accounting of the fees earned by him as factor or trustee, in particular as trustee under a certain trust-deed for behoof of creditors, held that the agreement was a pactum illicitum, as impinging on the equal distribution of assets amongst creditors in bankruptcy, and action dismissed.
[ Bailii ]
 
Dame Alma De St Aubin and Another v George Azarie Binet [1914] UKPC 73
27 Jul 1914
PC

Contract
Quebec
[ Bailii ]
 
Roberts and Co v Marsh [1915] 1 KB 42
1915


Contract
The defendant's cheque had not been met. The debt it cleared was void. He issued a substitue cheque. Held: The substitute cheque was a valid and unconditional order to pay, and therefore valid as a cheque, which the bank was bound to pay on presentation, subject to the prior countermand.
1 Citers


 
Maskell v Horner [1915] 3 KB 106; (1915) 84 LJKB 1752
1915
CA

Contract
Money paid as a result of actual or threatened seizure of a person's goods, is recoverable where there has been an error, even if it was one of law.
1 Citers



 
 Jureidini v National British and Irish Millers Insurance Company Limited; HL 1915 - [1915] AC 499
 
Williams v Moss Empires Ltd [1915] 3 KB 242
1915
ChD
Shearman J
Contract
The court considered what was necessary to achieve a variation of a contract. Shearman J: "The principle . . is that where there is alleged to have been a variation of a written contract by a new parol contract, which incorporates some of the terms in the old contract, the new contract must be looked at in its entirety, and if the terms of the new contract when thus considered are such that by reason of the Statute of Frauds it cannot be given in evidence unless in writing, then being an unenforceable contract it cannot operate to effect a variation of the original contract, whenever parties vary a material term of an existing contract they are in effect entering into a new contract, the terms of which must be looked at in their entirety, and if the new contract is one which is required to be in writing but is not in writing, then it must be wholly disregarded and the parties are relegated to their rights under the original contract."
1 Citers



 
 Eastwood v Ashton; HL 1915 - [1915] AC 900

 
 Hurst v Picture Theatres Ltd; CA 1915 - [1915] 1 KB 1
 
London and Northern Estates Company v Schlesinger [1916] 1 KB 20; [1914-15] All ER 593
1915

Lush J
Contract, Landlord and Tenant
By a war-time order in council, an Austrian subject, who was an "alien enemy", was prohibited from residing within certain specified areas, including the area where the leased premises were situated. He claimed that the tenancy contract was frustrated. Held: Although he could not personally exercise a right of personal occupation, he could sub-let the premises and therefore there was no frustration. His personal occupation of the premises was not at the root of the contract.
Lush J said: " As the contract could be performed without his personal residence, the fact that his personal residence was prohibited by the Order did not make the performance of the contract impossible. But there is, I think, a further answer to the contention. It is not correct to speak of this tenancy agreement as a contract and nothing more. A term of years was created by it and vested in the appellant, and I can see no reason for saying that because this Order disqualified him from personally residing in the flat it affected the chattel interest which was vested in him by virtue of the agreement."
1 Citers


 
Hatton v Car Maintenance Co Ltd [1915] 1 Ch 621
1915

Sargant J
Contract
In order to exercise a lien over a car taken in for repair, the fact that labour had been expended in maintaining the article was not enough to give rise to a lien for charges. What was required was improvement in the condition of the article.
Sargant J said: that there could be no lien over a motor car "by virtue of the arrangement under which the owner was to be at liberty to take the car away, and did take the car away, as and when she pleased. The existence of a lien seems to me to be inconsistent with an arrangement under which the article is from time to time entirely out of the possession and control of the contractor".
1 Citers


 
Boyd and Forrest v Glasgow and South-Western Railway Co [1915] UKHL 205; 52 SLR 205
25 Jan 1915
HL
Earl Loreburn, Lord Atkinson, Lord Shaw, and Lord Parmoor
Contract
In 1900 a railway company issued tenders for the formation of a railway line, and in September a contract was arranged with a firm of contractors, the payment to be a stipulated lump sum. The specification included this stipulation-" Cuttings and Embankments.-Bores have been put down at various parts of the line, the positions of which are shown on the small scale plan, and a copy of the journals of these bores may be seen at the engineer's office, but the company does not in any way guarantee their accuracy, or that they will be a guide to the nature of the surrounding strata. Contractors must therefore satisfy themselves as to the nature of the strata, as the company will not hold themselves liable for any claim that may be made against them on account of any inaccuracy in the journals of the bores. . . Of the probability of rock existing in any of the cuttings or other excavations to a greater extent than the quantity given in the detailed schedule, the contractor must judge, and also form his own opinion as to the nature of the strata, of the material in the various cuttings or excavations and in the base of the embankments, and price the quantities in the detailed schedule accordingly, as no allowance whatever will be made over the lump sum in the detailed schedule for these, although the material may turn out to be different from what is calculated and given in the detailed schedule." By the end of 1902 the contractors were aware that the material they had to deal with was very different from and more costly to treat than what they had expected and they complained-the company in fact paid them pounds 10,000 over the stipulated amount, half then and half later. The contractors continued the work, however, and completed it by May 1905. In November 1907 they proceeded to bring an action against the company, and in preparation therefor became aware that of sixty-five bores eighteen had not been made by professional borers but by employees of the company, and that in the journals four of these were not, as returned, by such employees but as edited by the company's engineer, he having entered what he honestly believed must be meant. The engineer had also omitted four check bores which had also been put down by such employees.
Held ( rev. judgment of the Second Division) (1) that the contractors were not in a position to demand rescission of the contract, restitutio in integrum being a condition of such a remedy and being here impossible; (2) that there was no misrepresentation in the journals of the bores shown being as edited by the engineer and not the actual returns made by the men boring, what the specification contemplated being the product of the responsible officer of the company, the engineer, and he having acted honestly; (3) that even if there had been shown to have been innocent misrepresentation it was not proved to be in essentialibus inducing to the contract; (4) that the contractors could not now be heard, in the absence of fraud, on the disconformity of the material they had had to treat with what they had expected, they having after acquiring full knowledge thereof elected to proceed with the work and completed the contract.
[ Bailii ]
 
Anderson v Dickie 1915 SC (HL) 79; [1915] UKHL 5; [1914] SLR 614; [1915] UKHL 563; 52 SLR 563
22 Apr 1915
HL
Earl Loreburn, Lord Kinnear, Lord Dunedin, Lord Atkinson, Lord Parker, Lord Sumner, and Lord Parmoor
Land, Contract
S. feued a piece of his ground to M., the feucontract containing this clause-"Declaring . . that it shall not be lawful to the said S. or his aforesaids or the other disponees to sell or feu any part of the said ground now occupied as the lawn between the ground hereby feued and the said present mansion-house of E. P., and as marked numbers . . on the said sketch or plan endorsed hereon, excepting under the express conditions and declarations that there shall be no more than one dwelling-house, with suitable offices, on any two acres of the ground so sold or feued, and that each of the said dwelling-houses attached thereto shall be of the value of at least nine hundred pounds sterling, and be maintained in good condition and of such value in all time coming, which restriction shall also be a real burden affecting the said lands and shall operate as a servitude in favour of the said M. and his foresaids in all time coming."
S. subsequently disponed part of his remaining land, including the parcels of the numbers mentioned in M.'s feucontract, to W., and the disposition contained this clause-"Under the declaration that it shall not be lawful to the said W. or his foresaids to sell or feu any part of the ground occupied as the lawn between the ground feued by me to M. and the present mansion-house of E. P., excepting under the express conditions and declarations that there shall be no more than one dwelling-house, with suitable offices, on any two acres of the ground so sold or feued, and that each of the said dwelling-houses attached thereto shall be of the value of at least nine hundred pounds sterling, and be maintained in good condition and of such value in all time coming, which restriction shall be a real burden affecting the said lands, and shall operate as a servitude in favour of the said M. and his foresaids in all time coming."
In an action by a singular successor of M. against a singular successor of W. to interdict the erection of tenement houses, held (1) that the words "which restriction" in W.'s disposition must refer to the whole clause beginning "it shall not be lawful," and not to the limitation of houses to acreage, and co.; (2) that there was consequently no restriction against the building of tenements by W. or his successors on their land; and further (3) that the intended real burden was bad owing to the insufficient identification of the land to be affected.
1 Cites

1 Citers

[ Bailii ] - [ Bailii ] - [ Bailii ]

 
 Dunlop Pneumatic Tyre Co Ltd v Selfridge and Co Ltd; HL 26-Apr-1915 - [1915] UKHL 1; [1915] AC 847
 
Forrest v The Scottish County Investment Co Ltd [1915] UKHL 7; 53 SLR 7
18 Oct 1915
HL
The Lord Chancellor (Buckmaster), Lord Atkinson, Lord Parmoor, and Lord Wrenbury
Contract
Under a building contract based upon plans and a detailed schedule or estimate, a builder completed certain tenements, handed them over to the proprietors, and received from the measurers and architect the final certificates for payment. On the builder suing upon the certificates the proprietors pleaded that, the work done being disconform to contract, they could not be sued upon the contract. The tenements were proved to be substantial, of good workmanship and good material, and similar in appearance to others previously erected for the same proprietors. The plea depended upon the fact that certain rybats were not of the size specified. The size was given in the schedule, but the plans did not in any way show it. The architect had instructed the builder to carry out the work as in the previously erected tenements, and had from time to time passed it.
The schedule contained this condition-"The whole materials and workmanship to be of the best description and completed in accordance with the drawings, in an expeditious and tradesman-like manner, to the entire satisfaction of the proprietors and architect, or any person appointed to inspect the work; and power is reserved to increase, lessen, or omit any part of the work. The work will be measured when finished by J. H. Bradshaw and Craig, I.M., measurers, 122 Wellington Street, Glasgow, and charged at the rates contained in this schedule or others in proportion thereto, and in proportion to slump sum in letter of offer. Any extra prices to be revised and adjusted by the measurers to correspond with the foresaid rates."
Held (dub. Lord Atkinson) that the architect had not exceeded his powers, that the builder was not in breach, and so was entitled to recover the sum sued for.
[ Bailii ]
 
Jamal v Moolla Dawood, Sons and Co [1916] 1 AC 175; [1915] UKPC 51
3 Nov 1915
PC
Lord Wrenbury
Contract
The plaintiff claimed damages from the buyer for his failure to accept shares contracted to be taken on a particular date. Two months after that date the sellers began to re-sell the shares on a rising market. Held: Damages for breach of contract such as a contract of sale are normally to be assessed as at the date of the breach. The profit accruing should not be deducted from the damages for non-acceptance.
Lord Wrenbury said: "The seller's loss at the date of the breach was and remained the difference between contract price and market price at that date. When the buyer committed this breach the seller remained entitled to the shares, and became entitled to damages such as the law allows. The first of these two properties, namely, the shares, he kept for a time and subsequently sold them in a rising market. His pocket received benefit, but his loss at the date of the breach remained unaffected."
1 Citers

[ Bailii ]
 
Produce Brokers Co Ltd v Olympia Oil and Cake Co Ltd [1915] UKHL 787; 53 SLR 787
15 Nov 1915
HL
Earl Loreburn, Lords Atkinson, Parker, Sumner, and Parmoor
Contract
In connection with a contract for the sale of goods a dispute had arisen between the parties as to whether a certain appropriation was good or not. The question was referred to arbitration under the clause in the contract, and a special case was stated for the opinion of the Court, in which certain questions were put to the Court, including one whether under the terms of a certain contract there could be appropriation of a cargo shipped on board the "C." to the buyers at a time when the vessel was wrecked and the cargo had become a total loss. The Court answered those questions in the negative. Thereupon the matter went back, and the arbitrators made an award in which they stated that while they "unreservedly accepted the said answers upon the construction of the contract as a matter of law, apart from the custom of the trade," they nevertheless found that there was a long-established and well-recognised custom of the trade by which in the circumstances of this contract there was an appropriation of the cargo to the buyers.
Held ( rev. decision of the Court of Appeal) that under a submission to decide disputes arising out of the contract it was competent for the arbitrators to determine the existence of a custom attaching to the particular trade, inasmuch as it was impossible without introducing the custom to decide what were the rights and liabilities under the contract of the respective parties.
[ Bailii ]
 
Clydebank and District Water Trustees v Fidelity and Deposit Co of Maryland [1915] UKHL 106; 53 SLR 106
26 Nov 1915
HL
The Lord Chancellor (Buckmaster), Lord Atkinson, Lord Shaw, Lord Parker, and Lord Sumner
Contract
An insurance company granted a policy insuring water trustees against loss arising from failure on the part of a contractor duly to complete the laying of certain water-pipes. The policy contained conditions declared to be conditions-precedent to the right of the water trustees to recover thereunder, and, inter alia, this - "The surety shall be notified in writing of any non-performance or non-observance on the part of the contractors of any of the stipulations or provisions contained in the said contract, and on their part to be performed and observed, which may involve a loss for which the surety is responsible hereunder."
The contract for laying the water pipes provided for the work being begun on a particular date, that so much should be done each week, and that the whole should be completed within a defined time. The contractor had not begun by the date specified, nor for some months after, and after beginning continued to fall more and more into arrear. No notice of this was sent to the insurance company. When about half the work was done and sometime after the time for completion was passed the contractor became bankrupt. The water trustees took over the work and gave notice of his failure to the insurance company. In an action by the water trustees to recover the amount contained in the policy of insurance, held ( aff. judgment of the First Division) that the contractor's delays were non-observances of the contract of which the insurance company was entitled to notice, that the giving notice was a condition-precedent to the right to recover, and therefore that the insurance company was freed
[ Bailii ]
 
Tamplin Steamship Co Ltd v Anglo Mexican Petroleum Co [1916] 2 AC 397
1916

Lord Loreburn
Contract
Lord Loreburn formulated the doctrine of frustration as based on the answer to the question: "What in fact is the true meaning of the contract?"
1 Citers


 
Stein Forbes and Co v County Tailoring Co (1916) 115 LT 215; (1917) 86 LJKB 448
1916

Atkin J
Contract
Atkin J said: "I doubt whether goods are appropriated unconditionally if the seller does not mean the buyer to have them unless he pays for them." The overriding question is whether the intention of the parties appears in the course of the making and fulfilment of the contract.
1 Citers



 
 British Union and National Insurance Co v Rawson; CA 1916 - [1916] 2 Ch 476

 
 Distington Hematite Iron Co. v Possehl and Co; 1916 - [1916] 1 KB 811

 
 Herbert Morris Ltd v Saxelby; HL 1916 - [1916] 1 AC 688; [1916-17] All ER 305

 
 Lovesy v Palmer; 1916 - [1916] 2 Ch 233; [1916-1917] All ER 1034

 
 Perry v Suffields Ltd; CA 1916 - [1916] 2 Ch 187
 
Johnson v Tillie, Whyte, and Co [1916] SLR 181
12 Jan 1916
SCS

Contract
The defenders in an action for payment of an account pleaded compensation, and founded on a debt which came admittedly under the provisions of the Act 1579, c. 83. The defenders were therefore limited to writ or oath on reference in proving the constitution and resting-owing of this debt, and in proof they founded upon letters of the pursuer, the last of which was dated within the period when prescription was running. The writs established the constitution of a debt. The pursuer averred that they instructed an agreement whereby the defenders agreed to accept goods of the pursuer in full settlement of their counter-claim. The defenders averred that the agreement was to accept merely the amount the goods realised in reduction pro tanto of their counter-claim. Held ( dis. Lord Johnston; sus. Lord Ordinary Hunter) that the writs though dated within the triennium were competent to prove the resting-owing of the debt, that they proved resting-owing, and that, the plea of prescription being elided by the writs produced, the parties should be allowed a proof habili modo of their respective averments,
[ Bailii ]
 
King v David Allen and Sons Billposting Ltd [1916] UKHL 1; [1916] 2 AC 54; (1915) 2 IR 213
14 Feb 1916
HL

Contract, Landlord and Tenant
Termination of a periodical tenancy by either the landlord or the tenant will bring to an end the possession of a licensee from the tenant, since the licensee's rights are only contractual rights against the tenant. Termination by the tenant will expose the tenant to a claim for damages from the licensee. A licence creates personal rights which are binding solely upon the parties to the contract and do not run with the land
[ Bailii ]
 
Strathlorne Steamship Co v Baird and Sons [1916] UKHL 3; (1916) 1 SLT 221; 1916 SC (HL) 134
1 Mar 1916
HL

Contract, Transport

[ Bailii ]
 
Daimler Co Ltd v Continental Tyre and Rubber Co (Great Britain) Ltd and Another [1916] UKHL 845; 53 SLR 845
30 Jun 1916
HL
Earl of Halsbury, Viscount Mersey, and Lords Kinnear, Atkinson, Shaw, Parker, Sumner, and Parmoor
Contract, Company
By writ specially indorsed under Order XIV the solicitors of the respondent company on the authority of its secretary commenced an action in October 1914 to recover certain debts.
The respondent company was registered in London with a capital of pounds 25,000 in pounds 1 shares, only one of which was held by a naturalised British subject, the remainder by Germans. All the directors were Germans and resided in Germany.
The appellants contended (1) that it was illegal to trade with or pay money to or for the benefit of alien enemies during the war, and that in substance and in fact the respondent company was an alien enemy; (2) that the solicitors for the respondent company had no authority to issue the writ in the action.
Held that as the secretary was not ex officio authorised to commence actions on the company's behalf, and the directors were precluded by their character of alien enemies from instructing him to do so, the action was irregular and unauthorised.
Observations as to the enemy character of companies registered in the United Kingdom and of their directors and shareholders.
[ Bailii ]
 
F A Tamplin Steamship Co Ltd, and Anglo-Mexican Petroleum Products Co Ltd (Re Arbitration) [1916] UKHL 433; 54 SLR 433
24 Jul 1916
HL
Lord Chancellor (Buckmaster), Earl Loreburn, Viscount Haldane, Lords Atkinson and Parker
Arbitration, Contract
The charterers hired for a period of five years an oil tank steamship. Two and a quarter years of the contract had expired when the ship was requisitioned by the British Government, who made structural alterations upon it. The shipowners claimed that this determined the contract.
Held (dis. Viscount Haldane and Lord Atkinson) that the contract continued to subsist, and the requisition did not suspend it or affect the rights of the owners or charterers under it.
[ Bailii ]
 
Hampton v Glamorgan County Council [1916] UKHL 430; 54 SLR 430
9 Nov 1916
HL
Earl Loreburn, Viscount Haldane, and Lords Shaw and Parmoor
Contract
Contract - Building Contract - Principal and Agent - Effect of Sub-Contract.
[ Bailii ]
 
Moore and Weinberg v Ernsthausen Ltd [1916] UKHL 78; 54 SLR 78
28 Nov 1916
HL
Earl Loreburn, Lord Atkinson, Lord Shaw, and Lord Sumner
Contract
The pursuers had purchased from the defenders certain goods in bales, and had intimated a claim of damages for the goods being disconform to contract. The claim went to arbitration, and for that purpose the pursuers recovered, with the approval of the defenders, five unopened bales, the defenders intimating that they wished two of these left unopened so that in the event of the claim being sustained they might be available for a claim by them against their sellers. The arbiter having sustained the claim, including in the award the price of the five bales, the pursuers instructed the warehouseman that the two bales were held for the defenders. He accepted this notice. They also informed the defenders that the bales were there at their disposal. Subsequently the pursuers arrested the bales jurisdictionis Fundandae causa, and sued for the amount of the award.
Held that the arrestment was good.
[ Bailii ]
 
Re Daniel, Daniel v Vassall [1917] 2 Ch 405; 87 LJ Ch 69; 117 LT 472; 33 TLR 503; 61 Sol Jo 646
1917


Land, Contract
The vendor of land who, whether through innocent or wiful default, or with or without bad faith, fails to do everything possible to make good title, makes himself liable in damages for the general losses of the purchaser, including any loss of bargain.
1 Cites


 
Armstrong v Jackson [1917] 2 KB 822
1917


Contract
Rescission was available to a defrauded principal even where the contract had been fully performed.
1 Citers


 
Alderdale Estate Company v McGrary [1917] 1 Ch 414
1917
CA
Lord Cozens-Hardy MR, Warrington LJ. and Lawrence J
Land, Contract

1 Citers


 
Hulton v Hulton [1917] 1 KB 813
1917
CA
Scrutton LJ
Contract, Family
A wife sought to rescind a separation deed for fraudulent misrepresentation. As part of the terms of the deed the litigation documents had been destroyed. Held: This was not a bar to rescission, because: "it was the defendant who was anxious that those letters should be destroyed. I cannot in those circumstances treat the letters as so important to him that there can be no rescission because they cannot be brought back into existence."
1 Citers


 
Love and Stewart Ltd v S Instone and Co Ltd (1917) 33 TLR 475
1917
HL
Lord Sumner
Contract
A statement by one party in negotiation for a contract to the other party to the negotiation that there was now a contract was not of any real assistance in answering the question whether there was in fact a contract, for the statement could simply be wrong as a matter of law.
1 Citers


 
Stickney v Keeble [1915] AC 387
1917
HL
Lord Parker of Waddington
Land, Contract
The purchaser had made repeated complaints about the seller's delay in completing construction. Held: The repeated complaints formed a principal ground for justification of the short specified notice period.
Lord Parker of Waddington set out the principles by which to assess the reasonableness of a time specified in a notice for the completion of the construction of a property: "The time limited by such a notice is sometimes referred to as having become, by virtue of the notice, of the essence of the contract. In considering whether the time so limited is a reasonable time the Court will consider all the circumstances of the case. No doubt what remains to be done at the date of the notice is of importance, but it is by no means the only relevant fact. The fact that the purchaser has continually been pressing for completion, or has before given similar notices which he has waived, or that it is specially important to him to obtain early completion, are equally relevant facts: Macbryde v Weekes (1856) 22 Beav 533. Indeed, the dominant principle has always been that equity will only grant specific performance if, under all the circumstances, it is just and equitable to do so. It would be unjust and inequitable to allow the vendor to put forward his own unnecessary delay in the face of the purchaser's frequent requests for expedition as a ground for allowing him further time or as rendering the time limited by such a notice as that to which I have referred an unreasonable time."
1 Citers


 
Great Western Railway Co v Wills [1917] UKHL 638; 54 SLR 638
13 Mar 1917
HL
Earl Loreburn, Viscount Haldane, Lords Kinnear, Shaw, and Parmoor
Transport, Contract
Carrier - Railway - Contract - Goods Carried at Owner's Risk - Short Delivery - Question whether a Consignment has been Delivered when Part of it is Missing.
An owner's risk contract excluded from the exemption from liability conferred on the railway company "the non-delivery of any package or consignment fully and properly addressed.'
Of 750 carcases carried by the appellant company fourteen were lost in transit. The respondent claimed the value of the missing carcases. The appellant claimed to have delivered the consignment, and to be exempt under the contract from damages for short delivery.
Held ( dis. Lord Shaw) that short delivery was not equivalent to failure to deliver the consignment under the contract note.
Decision of the Court of Appeal, [1915] 1 K.B. 199, reversed.
[ Bailii ]
 
Watts Watts and Co Ltd v Mitsui and Co Ltd [1917] UKHL 650; 54 SLR 650
16 Mar 1917
HL
Lord Chancellor (Lord Finlay), Earl Loreburn, Lords Dunedin, Parker, and Sumner
Transport, Contract
War - Ship - Charter-Party - Breach by Ship - Measure of Damages - Exception of Restraints of Princes
The respondents chartered a ship from the appellants to proceed to M. before a certain date and to load and carry to Japan a cargo which the respondents had bought. The charter-party excepted "restraints of princes." The appellants failed to provide a ship, pleading as excuse a reasonable apprehension that the ship might be seized by the King's enemies. The respondents were unable to obtain another ship and had to repudiate their contract with the sellers of the cargo, paying them (after arbitration proceeding) pounds 4500. The respondents claimed as damages pounds 4500 together with such a sum as represented their loss of profit on the venture.
Held ( a) that restraint of princes must be actual not prospective, ( b) that the measure of damages was the difference between the contract price of the cargo at M. and that which it would have fetched in Japan had the voyage been prosecuted, subject to deduction of the amount of the insurance premium the respondents would have required to pay.
[ Bailii ]
 
Ebbw Vale Steel Iron and Coal Co Ltd v Macleod and Co [1917] UKHL 636; 54 SLR 636
19 Mar 1917
HL

Contract
Contract - War - Mines and Minerals - Suspensory Condition - Applicability of the Condition.
The respondents were entitled, under a contract with the appellants for a supply of ore, to determine the contract in the event of war affecting the mine. Owing to loss of business with Germany caused by the war the mine was closed. The respondents claimed to determine the contract, although it was still possible for them to supply the appellants with ore from previous accumulations. The appellants claimed that the effect of the war upon the mine was not sufficiently direct to make the condition operative. Held that the mine was affected by the war, although its closing was not directly caused by the operations of war.
[ Bailii ]
 
Tennants (Lancashire) Ltd v C S Wilson and Co Ltd [1917] UKHL 523; 55 SLR 523
21 Jun 1917
HL
Lord Chancellor (Finlay), Earl Loreburn, Viscount Haldane, Lords Dunedin, Atkinson, Shaw, and Wrenbury
Contract
Contract - War - Conditions - Delivery of Goods open to being Suspended - "Contingencies Preventing or Hindering Delivery" - "Short Supply."
Contracts for delivery of chemicals by monthly instalments during 1914 contained the condition "delivery may be suspended pending any contingencies beyond the control of the sellers or buyers (such as . . war . . ) causing a short supply of labour, fuel, raw material, or manufactured produce, or otherwise preventing or hindering the manufacture or delivery of the article."
As a result of the outbreak of war in August 1914 the sources of supply of the chemical were greatly reduced, and the appellants claimed that the above quoted condition had become operative, and intimated to the parties in the different contracts that the contracts were suspended. The parties to the contracts all acquiesced save the respondent. The appellants did obtain subsequently, and at a considerably increased price, small supplies of the chemicals which would have been sufficient to complete the amount in the respondent's contract, leaving all the others unsupplied. The respondent claimed damages.
Held that while the rise in price was not a hindrance to delivery, in fact there was an actual shortage sufficient to hinder delivery ( dis. Lord Finlay, L.C.) and to justify suspension of the contract.
[ Bailii ]
 
Metropolitan Water Board v Dick Kerr and Co Ltd [1917] UKHL 2; [1918] AC 119; [1917] UKHL 537; 55 SLR 537
26 Nov 1917
HL
Lord Finlay LC, Lord Dunedin
Contract, Construction
In July 1914 the appellants contracted with the respondents, a firm of contractors, for the construction of a reservoir which was to take six years to build. The work was started, but in February 1916 the Minister of Munitions ordered it to cease and requisitioned part of the plant. Work was accordingly stopped, but the appellants claimed that the contract subsisted, and this action was brought to determine the question. Held that the interruption was of such a character and duration as fundamentally to change the conditions of the contract, and could not have been in the contemplation of the parties to the contract when it was made. Accordingly the contract had ceased to be operative.
Upheld
1 Cites

1 Citers

[ Bailii ] - [ Bailii ]
 
Cornelius v Phillips [1917] UKHL 545; 55 SLR 545
29 Nov 1917
HL
Lord Chancellor (Finlay), Viscount Haldane, Lords Dunedin, Atkinson, and Parmoor
Contract
Contract - Validity - Moneylender - Transaction of Business Elsewhere than his Registered Address - Moneylenders Act 1900 (63 and 64 Vict. cap. 51), sec. 2 - Moneylenders Act 1911 (1 and 2 Geo. V, cap. 38), sec. 1 (1).
The respondent was a registered moneylender in Liverpool. The appellant was introduced to him at an hotel in Formby as a friend of S. who wished to borrow pounds 200. The respondent produced a promissory-note for pounds 300, which the appellant signed in return for a cheque for pounds 200, which the appellant indorsed and handed to S. Held that the Moneylenders Act 1900, section 2 1 ( b), struck at the transaction as business carried on at other than the moneylender's registered address and rendered it void. The appellant was therefore entitled to indemnification against his liability under an action brought against him by the bona fide holder for value of the bill.
Kirkwood v. Gadd, [1910] A.C. 422, explained. Whiteman v. Sadler, [1910] A.C. 514, distinguished.
Decision of the Court of Appeal ( dis. Phillimore, L.J.), sub. nom. Finegold v. Cornelius, [1916] 2 K.B. 719, reversed.
[ Bailii ]
 
Glasgow and South-Western Railway Co v Boyd and Forrest [1917] UKHL 117; 55 SLR 117
14 Dec 1917
HL
Lord Chancellor (Finlay), Lord Dunedin, Lord Atkinson, Lord Shaw, and Lord Parmoor
Contract
Res judicata - Process - Decree of Absolvitor - Petitory Action - Medium concludendi - Parties Seeking to Recover before Arbiter under a Contract Sums Previously Sought to be Recovered in Petitory Action in which they Tabled no Claim on Basis of Contract Applying.
A firm of contractors brought a petitory action to recover from a railway company a sum of money as restingowing for work done. The railway company defended on the ground that the work was done under a contract and that the sum due under the contract had been paid. The contractors sought to set the contract aside on the grounds of fraud and of essential error, but in this they failed, and the railway company obtained a decree of absolvitor. The contractors then presented to the arbiter named in the contract, a claim for the same sum, made up in the same way, and maintained that the decree in the preceding action did not constitute res judicata as that action only settled that the contract applied.
Held that the matter was res judicata.
[ Bailii ]

 
 Morris v Baron and Co; HL 1918 - [1918] AC 1
 
Reigate v Union Manufacturing Co (Ramsbottom) Ltd [1918] 1 KB 592
1918
CA

Contract
Scrutton LJ said that "[a] term can only be implied if it is necessary in the business sense to give efficacy to the contract". He added that a term would only be implied if "it is such a term that it can confidently be said that if at the time the contract was being negotiated" the parties had been asked what would happen in a certain event, they would both have replied "'Of course, so and so will happen; we did not trouble to say that; it is too clear'".
1 Citers



 
 McGrory v Alderdale Estate Co; HL 1918 - [1918] AC 503

 
 Hood v Anchor Line (Henderson Brothers) Limited; HL 1918 - [1918] AC 837

 
 Bradford Old Bank Ltd v Sutcliffe; CA 1918 - [1918] 2 KB 833

 
 Cornelius v Phillips; HL 1918 - [1918] AC 199

 
 British Actors Film Company Limited and co v Glover; 1918 - [1918] 1 KB 299
 
Oakbank Oil Co Ltd v Love and Stewart Ltd [1918] UKHL 179; 55 SLR 179
22 Jan 1918
HL
Lord Chancellor (Finlay), Lord Dunedin, Lord Atkinson, Lord Shaw, and Lord Buckmaster
Contract
A firm of timber merchants had printed in red ink at the head of their notepaper-"All offers over a period are subject to stoppages through strikes, lock-outs, and co., and the right to cancel is reserved in the event of any of the countries from which our supplies are drawn becoming engaged in war." In reply to a specification of the requirements of a shale oil company for a year they tendered and adjusted the contract by correspondence on this notepaper. The red ink note was quite clear and distinct, but was not referred to. Held ( sustained. judgment of the First Division) that it was a condition of the contract.
Per the Lord Chancellor-"It appears to me that the cases with regard to tickets on railways, which are merely vouchers for payment of a fare, have no application, and it is impossible to read the contract here apart from the red ink note."
[ Bailii ]
 
Dynamit Actien - Gesellschaft (Vormals Alfred Nobel and Co) v Rio Tinto Co Ltd [1918] UKHL 784; 55 SLR 784
25 Jan 1918
HL
Lords Dunedin, Atkinson, Parker, and Sumner
Contract
In the first appeal the respondents, an English company, brought an action under the Legal Proceedings against Enemies Act 1915 to have it declared that contracts entered into by them with the appellants, a German firm, were avoided by the outbreak of war with Germany. The contracts contained a clause providing that if owing to war the respondents were prevented from delivering the ore which was the subject of the contracts the obligation to ship and/or deliver should be suspended during the continuance of the impediment and for a reasonable time afterwards. The Court of Appeal decided in favour of the respondents on the ground that the contracts involved intercourse with the enemy ( 116 L.T.R. 810). Held that this view was correct, and that in any view the contracts were void as being contrary to public policy.
In the other two appeals there were contracts in somewhat similar terms, but executed in Germany in the German language. It was contended that the rights of the parties fell to be determined by German law. Held that even if this were so the onus of proving the German law different from the English had not been discharged by the appellants. Further, that even had they proved that German law regarded such a contract as enforceable, that fact would not weigh with the English courts if they considered the contract contrary to public policy. The ruling in the first appeal therefore applied.
Legal Proceedings against Enemies Act 1915
[ Bailii ]
 
Gordon's Executors v Gordon [1918] UKHL 497 - 1; 55 SLR 497 1
3 May 1918
HL

Contract
Where there are communings with a view to an agreement, it is a question of the intention of parties whether a valid and effectual agreement has been made requiring no formal instrument though such formal instrument is being prepared, or whether there is to be no valid and effectual agreement until the formal instrument is completed. Circumstances in which held a formal completed instrument was required.
[ Bailii ]
 
N G Fergusson and Co Ltd v Brown and Tawse [1918] UKHL 437; 55 SLR 437
9 May 1918
HL
Lord Chancellor (Finlay), Viscount Haldane, Lord Dunedin, Lord Shaw, and Lord Parmoor
Contract
A British firm having arrested in the hands of another British firm a debt due by the latter to an alien enemy, which was not payable until twelve days after the outbreak of war, and an action of furthcoming having been brought against the arrestees, the House of Lords, on the ground that a question of importance was raised on which it was not desirable to express an opinion, continued a sist till the end of the war, and dismissed without expenses an appeal against an interlocutor sisting the action.
[ Bailii ]
 
Jayawickreme and Another v Amarasuriya Since Deceased [1918] UKPC 51; [1918] AC 869
4 Jun 1918
PC

Contract
(Ceylon)
1 Cites

[ Bailii ]
 
Hood v Anchor Line (Henderson Brothers) Ltd [1918] UKHL 605; 55 SLR 605
1 Jul 1918
HL
Lord Chancellor (Finlay), Viscount Haldane, Lord Dunedin, and Lord Parmoor
Contract
The prospective passenger on a steamer to cross the Atlantic, in exchange for his cheque, received an envelope containing a ticket. On the envelope, with a hand pointing to them, were these words printed in capitals - "Please read conditions of the enclosed contract." On the ticket itself was printed: "Notice. This ticket is issued to and accepted by the passenger subject to the following conditions," and, after the conditions, at the foot of the document, in capital letters: "Passengers are particularly requested to carefully read the above contract." Held (aff. judgment of the Second Division) that the steamship owners had done all that could reasonably be required of them to bring the conditions of the contract under the notice of the prospective passenger, who consequently was bound by them.
[ Bailii ]
 
Bank Line Ltd v Arthur Capel and Co [1918] UKHL 1; [1919] AC 435; 35 TLR 150
12 Dec 1918
HL
Lord Sumner, Lord Finlay LC, Haldane V, Shaw of Dunfermline L, Wrenbury L
Contract, Transport
The defendant ship-owners contracted to lease the ship on charter to the plaintiffs. Before the term, the ship was requisitioned for the war effort. The plaintiffs did not exercise the contractual right given to them to cancel the charterparty. The defendants then contracted to sell the ship conditionally upon it being released by the government. That happened and the ship was sold, and the plaintiffs sold. Held: The application of the doctrine of frustration was not excluded by the contractual term. The requisition and taking of the possession of the steamer was sufficient to destroy Even though an express term may deal with the cancellation of the contract for non-delivery, and also for a cancellation for requisition, such a term here did not prevent the owners from arguing that the contract had been frustrated.
Lord Sumner discussed the doctrine of frustration: "One matter I mention only to get rid of it. When the shipowners were first applied to by the Admiralty for a ship they named three, of which the Quito was one, and intimated that she was the one they preferred to give up. I think it is now well settled that the principle of frustration of an adventure assumes that the frustration arises without blame or fault on either side. Reliance cannot be placed on a -self-induced frustration; indeed, such conduct might give the other party the option to treat the contract as repudiated. Nothing, however, was made of this in the courts below, and I will not now pursue it."
and that a contract: "ought not to be left in suspense or to hang on the chances of subsequent events."
1 Citers

[ Bailii ]
 
McEllistrim v Ballymacelligott Co-operative Society [1919] AC 548
1919
HL
Lord Birkenhead LC, Lord Atkinson, Lord Shaw, Lord Finlay
Contract
The Co-operative had changed its rules to prevent any member from selling (except under heavy penalty) any milk produced by him in a large area of County Kerry to anyone except the Society, and a member could not terminate his membership without the Society's permission. The plaintiff, who was a member, sought a declaration that the new rules were in unreasonable restraint of trade. Held: There comes a point at which such a contract can come within the doctrine of restraint of trade. Lord Birkenhead LC found them unreasonable and void as being in restraint of trade.
Lord Finlay referred to Morris -v- Saxelby and said: "The present case is really governed by the principle there enunciated that ' public policy requires that every man shall be at liberty to work for himself and shall not be at liberty to deprive himself or the State of his labour, skill or talent, by any contract that he enters' into'. This is equally applicable to the right to sell his goods."
1 Cites

1 Citers


 
Spettabile Consorzio Veneziano di Armamento e Navigazione v Northumberland Shipping Co Ltd (1919) 121 LT 628
1919
CA
Atkin LJ
Contract
Purchasers had claimed rescission of contracts for the construction of ships and “alternatively, a declaration that the contract was null and void, or had been frustrated, or was at an end”. Held: What the purchaser wanted, in substance, was to have the Court determine the parties’ rights. There had been no repudiation.
Atkin LJ said: "A repudiation has been defined in different terms – by Lord Selborne as an absolute refusal to perform a contract; by Lord Esher as a total refusal to perform it; by Bowen, L.J. in Johnstone v Milling as a declaration of an intention not to carry out a contract when the time arrives, and by Lord Haldane in Bradley v H. Newsom, Sons, & Co. Limited as an intention to treat the obligation as altogether at an end. They all come to the same thing, and they all amount, at any rate to this, that it must be shown that the party to the contract made quite plain his own intention not to perform the contract."
1 Citers


 
North -v Loomes [1919] 1 Ch 378
1919

Younger J
Contract
N agreed to sell to L certain premises in Chinnor for £ 590 and gave him a receipt for a £ 50 deposit. The receipt, which was regarded by both parties as their contract, was in the following terms: "Received of [L] the sum of £ 50 on the purchase price £ 590 for the house and premises and land…The balance of the purchase price to be paid on or before March 25th 1918. Purchase price £ 590. Deposit £ 50. Balance £ 540." N signed the receipt. L sent the receipt to his solicitor with instructions to carry out (i.e. complete) the agreement which L had made. N's solicitor sent to L's solicitor a draft contract. L's solicitor wrote back on 8th February: "I need not trouble you to send me another contract as the one which your client has signed is, I think quite sufficient". The "one which your client has signed" was a reference to the signed receipt. Held: The letter of 8th February was authorised by L because instructions to complete impliedly authorised, when necessary, the affirmation on behalf of the client, of the contract made by him and, because the solicitors were so authorised, the receipt was a sufficient memorandum for the purposes of the Statute.
Statute of Frauds 1677 4
1 Citers


 
Les Affreteurs Reunis SA v Leopold Walford (London) Ltd [1919] AC 801
1919
HL
Lord Birkenhead LC, Viscount Finlay and Lords Atkinson Wrenbury
Agency, Transport, Contract
With regard to Robertson -v- Wait: "My Lords, so far as I am aware, that case has not before engaged the attention of this House, and I think it right to say plainly that I agree with that decision and I agree with the reasoning, shortly as it is expressed, upon which the decision was founded. In this connection I would refer to the well-known case of In re Empress Engineering Company. In the judgment of Sir George Jessel MR the principle is examined which, in my view, underlies and is the explanation of the decision in Robertson v. Wait. The Master of the Rolls uses this language: ‘So, again, it is quite possible that one of the parties to the agreement may be the nominee or trustee of the third person. As Lord Justice James suggested to me in the course of the argument, a married woman may nominate somebody to contract on her behalf, but then the person makes the contract really as trustee for somebody else, and it is because he contracts in that character that the cestui que trust can take the benefit of the contract.’ It appears to me plain that for convenience, and under long established practice, the broker in such cases, in effect, nominates the charterer to contract on his behalf, influenced probably by the circumstance that there is always a contract between charterer and owner in which this stipulation, which is to enure to the benefit of the broker, may very conveniently be inserted. In these cases the broker, on ultimate analysis, appoints the charterer to contract on his behalf. I agree therefore with the conclusion arrived at by all the learned judges in Robertson v. Wait, that in such cases charterers can sue as trustees on behalf of the broker."
1 Cites

1 Citers


 
Omnium d'Enterprises v Sutherland [1919] 2 KB 618
1919
CA

Contract
The defendant had chartered a steam ship to the plaintiff which it then sold free from the charter engagements before the date for performance. He had, on the face of it, put it out of his power to perform the charter that he had made. It was argued that this was not so, since the ex-owners might be able to get the new owners to agree to let them have the vessel back to perform the charter. Held: This was a a clear case of repudiation. This chance was not sufficient to displace the conclusion that in truth the owners simply did not have the means of performing their bargain, as they no longer had the right to the vessel they had agreed to charter.

 
Phillips v Brooks Ltd [1919] 2 KB 243
1919

Horridge J
Contract
A jeweller had a ring for sale. The buyer pretended to be somebody else: "I am Sir George Bullough of 11 St. James's Square." The jeweller had heard of Sir George Bullough and checked he lived at the address given. He released the jewellry against his cheque. The cheque was dishonoured, but the jewelry had been sold on. The jeweller sought its return. Held: The jeweller failed in his action, and title had passed. Horridge adapted the the judgment of Morton CJ in the Massachusetts case of Edmunds v Merchants' Despatch Transportation Co 135 Mass 283: 'The fact that the seller was induced to sell by fraud of the buyer made the sale voidable, not void. He could not have supposed that he was selling to any other person; his intention was to sell to the person present, and identified by sight and hearing; it does not defeat the sale because the buyer assumed a false name, or practised any other deceit to induce the vendor to sell.'
1 Citers



 
 Balfour v Balfour; CA 1919 - [1919] 2 KB 571; [1918-19] All ER Rep 860; (1919) 88 LJKB 1054; (1919) 121 LT 346; (1919) 35 TLR 609
 
New Zealand Shipping Co Ltd v Societe des Ateliers et Chantiers de France [1919] AC 718
1919


Contract

1 Citers


 
Claddagh Steamship Co Ltd v Steven and Co 1919 SC (HL) 132
1919
HL
Viscount Findlay
Scotland, Contract
There were two contracts for the sale of ships. The question was whether, when one ship was requisitioned by the Government, the purchasers were obliged to accept and pay for the other. Their case was that they were not obliged to do so, as the vendors were not able to perform their side of the bargain. Held. The evidence showed that the object of the two contracts was to give effect to an agreement for the sale of the two ships together. The purchasers were entitled to refuse to accept delivery of one ship without the other. It is always open to inquiry whether the existence of two separate documents represented the real bargain between the parties.
1 Citers


 
Sellar v Highland Railway Co [1919] UKHL 216; 56 SLR 216
24 Jan 1919
HL
Lord Buckmaster, Lord Finlay, Lord Dunedin, and Lord Atkinson
Contract, Arbitration
Arbiters having disagreed devolved the reference upon the oversman, who issued proposed findings. One of the parties then discovered that the arbiter nominated by the other party, a railway company, held pounds 3700 ordinary stock therein, and intimated that in consequence he considered that the arbiter was disqualified from acting and that he would not hold himself bound by the award. In an action of reduction of the decreet-arbitral held that the "arbiter in question was disqualified, and that the decreet-arbitral was in consequence reducible at the instance of the other party to the reference.
Dimes v. Proprietors of the Grand Junction Canal, 1852, 3 C1. H.L. 759, followed.
In an arbitration the arbiter appointed by one of the parties, a railway company, held stock in that company; the other party reduced the decreet-arbitral by the oversman on the ground that the arbiter referred to was disqualified, and claimed the expenses incurred by him in the abortive reference. Held ( rev. judgment of the First Division) that he was not entitled to recover his expenses in respect that there was no contract between the parties from which it could be inferred that the other party was bound to appoint an arbiter against whom no objection could be taken; that there was no statutory duty imposed on the railway company to examine their registers to see that the arbiter appointed was not a shareholder; and that, even assuming there had been a breach of duty, the damages claimed were too remote.
[ Bailii ]
 
Fried Krupp Aktiengessellschaft v Orconera Iron Ore Co Ltd [1919] UKHL 638; 56 SLR 638
31 Jan 1919
HL
Lord Chancellor (Smith), Lords Buckmaster, Finlay, Dunedin, Atkinson, and Shaw
Contract
The respondent company was incorporated in England in 1873, the entire share capital being contributed by four ironmasters, one of them now represented by the appellant company. As part of the arrangement made at that time, contracts were entered into by the respondent to supply for a term of ninety-nine years specified amounts of ore at a specified rate to the promoters. The contract provided for its suspension during any period "in which an unavoidable cause shall exist preventing the company from delivering." The appellant claimed that by this clause the contract though suspended was preserved. Held that on the outbreak of war the contract was dissolved, not suspended.
Eitel, Bieber, and Company v. Rio Tinto Company, [1918] A.C. 260, 50 S.L.R. 784, applied.
Decision of the Court of Appeal, 118 L.T.R. 237, affirmed.
[ Bailii ]
 
M'Ellistram v Ballymaceltigott Co-Operative Agricultural and Dairy Society Ltd [1919] UKHL 644; 56 SLR 644
24 Mar 1919
HL
Lord Chancellor (Birkenhead), Lords Finlay, Atkinson, Shaw, and Parmoor
Contract
In 1916 the respondent society which the appellant had joined in 1903 altered its rules. By the new rules, to which the appellant objected as in unreasonable restraint of trade, members became bound under penalty to sell their whole output of milk to the respondents at their price, whilst they were prohibited from withdrawing from membership of the society except with the consent of a committee of the members. The rules referred all disputes between the society and its members to the decision of the Irish Agricultural Organisation Society.
Held that a dispute as to validity of the rules of the society was not a dispute between the society and its members in terms of section 49 of the Industrial and Provident Societies Act 1893. The action was therefore competent- Heard v. Pickthorne, 1913, 3 K.B. 299.
Held further (dis. Lord Parmoor on the ground that membership of a cooperative society is analogous to a partnership), that as the combined effect of the new rules was to impose restrictions more onerous than reasonably necessary for the protection of the respondents' business, they were ultra vires of the society.
[ Bailii ]
 
Cameron-Head v Cameron and Co [1919] ScotCS CSIH - 1
10 Jul 1919
SCS

Scotland, Contract
Action by the proprietrix of Inverailort against a firm of timber merchants carrying on business in Govan. The pursuer sold a certain amount of timber growing upon her estate to the defenders for a certain price. It was a condition of the contract that the timber should be removed by the defenders within a specified period of time. The defenders have not in fact removed the timber within that period of time. Under the contract it is provided that there shall be payable to the pursuer a penalty of ten shillings a day for every day's delay beyond the specified period.
[ Bailii ]
 
Carmichael v Carmichael's Exx [1919] ScotCS CSIH - 2
15 Jul 1919
SCS

Scotland, Contract

1 Citers

[ Bailii ]
 
Marshall and Co v Nicoll and Son [1919] UKHL 615; 56 SLR 615
31 Jul 1919
HL
Viscounts Finlay and Cave, and Lords Dunedin, Shaw, and Wrenbury
Contract
Circumstances in which held that a contract for the sale of goods had been established, and damages for the non-delivery thereof assessed where there was little or no market for such goods.
[ Bailii ]
 
Claddagh Steamship Co Ltd v Thomas C Steven and Co [1919] UKHL 619; 56 SLR 619
1 Aug 1919
HL
Viscount Finlay, Viscount Cave, and Lords Dunedin, Shaw, and Wrenbury
Contract
A trading company were anxious to purchase a ship for their business, and got in touch with a ship company which owned two ships, one free, one under requisition, and was willing to sell. The ship company, however, refused to sell the free ship alone, and after negotiations the trading company agreed to purchase both ships at pounds 100,000. The brokers made out a separate written contract for each ship, dividing the pounds 100,000 without consulting the sellers, which contracts were duly executed. Before the ships were delivered the Government put the free ship under requisition. The trading company refused to go further, and the ship company took action against them. Held (1) that it was competent for the trading company to prove by extrinsic evidence that the written contracts were not the real contracts of parties, but were merely the machinery for carrying out the real contract, which was for the sale of both the ships together; (2) that the purchase by the trading company of the one ship was of a free ship for their own trade, and the ship company could not insist on the purchase when the ship was no longer free; and (3) that the ship company being thus unable to fulfil the contract so far as the one ship was concerned could not insist on fulfilment in the case of the other.
[ Bailii ]
 
Re Lyne-Stephens and Scott-Miller's Contract [1920] 1 Ch 472
1920
CA

Contract, Land, Landlord and Tenant
A vendor of a house was entitled to retain the benefits of payments from a tenant made between contract and completion, because the vendor had sold the house but not yet also the benefit of the lease.
1 Citers



 
 Burchell v Thompson; CA 1920 - [1920] 2 KB 80; (1920) LJKB 533; (1920) 122 LT 758; (1920) 38 TLR 257; (1920) 64 Sol Jo 68; [1920] BandCR 7
 
Hopkins -v Baird 1920 2 SLT 94
1920


Contract, Scotland
An action for recovery of money lent for gambling is maintainable, save only for the statutory prohibitions.
1 Citers



 
 Re Hooley Hill Rubber and Royal Insurance Co; CA 1920 - [1920] 1 KB 257
 
Said v Butt [1920] 3 KB 497; [1920] All ER 232; 11 BRC 317
1920

McCardie J
Contract, Agency
The plaintiff wanted to go to a play's first night. He had fallen out with the management of the theatre, and knew that he would not get a ticket in his own name. He got a friend to go to the theatre and buy a ticket for him without disclosing the fact. When he turned up for the performance he was refused admission. He brought a claim against Sir Alfred Butt the managing director of the theatre. Held: His claim was dismissed. Said had not established that a contract existed between himself and the company, and that he had consequently failed to prove that Sir Alfred had caused any breach of the alleged contract in refusing Mr Said admission to the theatre.
A first night is a special event with characteristics of its own, and tickets are only given or sold to persons whom the management selects and wishes to favour. The purchaser's identity was a material element in the formation of the contract and that the failure to disclose the fact that the ticket was bought on his behalf prevented the plaintiff from asserting that he was the undisclosed principal.
Where a company breaches a contract the company employee whose conduct within the scope of employment is ascribed to the company is not usually personally liable for inducing breach of that contract.
McCardie J said: "But the servant who causes a breach of his master's contract with a third person seems to stand in a wholly different position. He is not a stranger. He is the alter ego of his employer. In such a case it is the master himself, by his agent, breaking the contract he has made, and in my view an action against the agent under the Lumley v Gye principle must therefore fail, just as it would fail if brought against the master himself for wrongly procuring a breach of his own contract.
1 Citers


 
Slater v Hoyle and Smith Ltd [1920] 2 KB 11
1920


Contract, Damages
Cotton cloth was sold. The buyer was to use it to fulfil his own contract with a sub-buyer. The cloth was not of the contractual quality but the buyer was able to perform the sub-contract by delivering the same cloth. The sub-buyers paid the full price. Held: The normal measure of damages applied namely the difference between the market price at the time and place of delivery of cloth of the contractual quality and the market price at the time and place of delivery of the cloth actually delivered.
1 Citers


 
Lebeaupin v Richard Crispin and Company [1920] 2 KB 714
1920


Contract
Two contracts sold 2500 cases of "British Columbia Fraser river salmon". The first said: "The salmon to be the first 2500 cases of ½ 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 ½ 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 ½ 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."
1 Citers


 
Canadian Dyers Ass Ltd v Burton (1920) 47 OLR 259
1920
HL

Contract
There can be no contract of sale without an offer to sell and an acceptance of the offer. A quotation of price on its own does not constitute an offer to sell; it is no more than an invitation to treat. The courts will look at the language used in the light of the circumstances in which it is used and into the subsequent actions of both parties to determine if what is said by the seller is a mere quotation of price or an offer to sell

 
Matthey v Curling [1920] 3 KB 608
1920
CA

Contract, Landlord and Tenant

1 Citers


 
Carmichael v Carmichael's Executrix 1920 SC (HL) 195
1920


Scotland, Contract



 
 Stokes v Whicher; 1920 - [1920] 1 Ch 411
 
Hohler v Aston [1920] 2 Ch 420
1920

Sargant J
Wills and probate, Litigation Practice, Contract
A Mrs. Aston agreed with her nephew Mr. Hohler to make provision for her niece and her husband, Mr. and Mrs. Rollo. Mrs. Aston died before doing so. Mr. Hohler and Mr. And Mrs. Rollo sued the executors of Mrs. Aston for specific performance Held: The action succeeded. Sargant J: "the third parties, of course, cannot themselves enforce a contract made for their benefit but the person with whom the contract is made is entitled to enforce the contract." Mr. Hohler took no benefit under the contract but was allowed to recover.
1 Citers


 
Brys and Gylsen v J and J Drysdale and Co (1920) 4 Ll L Rep 24
1920

Greer J
Transport, Contract
A literal interpretation of the Rules indicates that, where shippers and consignees select and pay for stevedoring, cargo claimants may recover compensation from owners for the negligence of cargo owners or the negligence of their stevedores, but "It would be an odd state of things if one were to hold that a shipowner who has no contract whatever with the stevedore, and who cannot say to the stevedore: You have broken your contract with me, and therefore I will not have you any longer in my vessel; and who has no control over what is to be paid to the stevedore, should be responsible for the failure of the stevedore to do his duty."
Hague-Visby Rules
1 Citers



 
 Rawlings v General Trading Co; 1920 - [1920] 3 KB 30
 
London and North-Western Railway Co v Richard Hudson and Sons Ltd [1920] UKHL 452; 57 SLR 452
30 Jan 1920
HL
Lords Haldane, Dunedin, Atkinson, Buckmaster, and Phillimore
Contract
The respondents purchased from the Ministry of Munitions twenty-seven bales of calico then lying at the works of Kynochs Limited, Birmingham, and requested Kynochs to forward the bales to them at Manchester, carriage forward. Kynochs consigned the goods already loaded and sheeted by them for carriage by the appellants' railway, and the appellants signed an acknowledgment on the consignment-note that the goods were received in good condition. The appellants delivered the goods, and by an invoice sent to the respondents charged for them at a rate which included the loading and sheeting of the goods. Upon delivery the goods were found to have been damaged during transit by water owing to defective sheeting. The respondents sued in the County Court for pounds 42, the agreed amount of the damage. Under agreement between the appellants and Kynochs the latter undertook the sheeting and loading of goods consigned from their sidings, receiving a rebate of 2s. 3d. per ton. The sheets and trucks were provided by the Railway Company. The respondents were unaware of this agreement. Held (Lord Haldane and Lord Phillimore dis.) that the appellants were liable to the respondents either as common carriers or under the contract in the consignment-note, and this apart from the agreement between the appellants and Kynochs as to terminal services.
[ Bailii ]
 
Penney v Clyde Shipbuilding and Engineering Co Ltd [1920] UKHL 342
15 Mar 1920
HL
Lord Chancellor (Birkenhead), Viscount Haldane, Viscount Finlay, Viscount Cave, Lord Dunedin
Contract
On the outbreak of war, a ship, being built to the order of an enemy firm, was in the builders' yard nearing completion. The contract provided that "the steamer as she is constructed . . shall immediately as the work proceeds become the property of the purchasers," and the price was payable by instalments. On the ship being requisitioned and paid for by the Admiralty, held that the builders were bound to account to the Custodian of Enemy Property for Scotland under the Trading with the Enemy Amendment Acts 1914 and 1916 for the instalments paid, subject to any counter-claims arising out of the occupation of the berth beyond the period required for building.
[ Bailii ]

 
 Shankland and Co v John Robinson and Co; HL 7-May-1920 - [1920] UKHL 3; 1920 SC (HL) 103; 1920 2 SLT 96
 
Shankland and Co v Robinson and Co [1920] UKHL 400; , 57 SLR 400
7 May 1920
HL

Contract
A prospective bidder for articles about to be sold at an auction sale saw the sellers as to whether there might be difficulty in obtaining possession of the articles owing to Government impressment, and he was informed that the Government had been satisfied and the sale was to be allowed. Subsequently a subordinate Government official intimated that he wanted the articles for the Government, but his action was repudiated on application to his superior officer. This incident was not disclosed to the prospective bidder, who attended the sale, when the articles were knocked down to him. After the sale the Government intervened to prevent removal, and shortly after impressed. Held ( rev. judgment of the Second Division) that the purchaser was not entitled to rescind the contract on the ground of essential error induced by the seller, and was liable for the price, the property in the articles having passed to him on the fall of the hammer.
[ Bailii ]
 
Eisen v M'Cabe Ltd [1920] UKHL 534; 57 SLR 534
18 Jun 1920
HL
Viscount Haldane, Viscount Finlay, Viscount Cave, Lord Dunedin, and Lord Shaw
Contract
The Timber Control Order 1918, Part I, section 2, provides-" . . No person shall . . ( b) sell or enter into any contract for the sale of any such timber" [ i.e., imported] "except to the holder of a permit granted by or on behalf of the Controller. . . " Held ( aff. judgment of the First Division) that an agreement to sell on the condition that the buyers should obtain a permit was void.
[ Bailii ]
 
Munro and Others v Rothfield [1920] UKHL 501; 57 SLR 501
28 Jun 1920
HL
Viscount Haldane, Viscount Finlay, Viscount Cave, Lord Dunedin and Lord Shaw
Contract, Insolvency
A debtor arranged with a particular creditor for payment of his debt in certain instalments if a general scheme to which the particular creditor would be a party were carried through; that arrangement conferred a privilege on the particular creditor over the other creditors to the proposed general scheme; the general scheme was agreed to; the particular creditor obtained in absence a decree on his debt acting on his particular agreement; the creditors of the general scheme suspended. Held ( aff. judgment of First Division) that the general scheme was only voidable not void, the arrangement with the particular creditor void as fraudulent, or superseded.
[ Bailii ]

 
 Carmichael v Carmichael's Exx; HL 30-Jul-1920 - [1920] UKHL 5; 1920 2 SLT 285; 1920 SC (HL) 195
 
Gatty v Maclaine and Others [1920] UKHL 63; 58 SLR 63
30 Nov 1920
HL
Lord Chancellor, Viscount Finlay, Lord Dunedin, Lord Atkinson, and Lord Shaw
Contract
A proprietor borrowed on the security of his estates certain sums. The conditions on which the loan was made were expressed in a minute of agreement. One of the conditions was, that provided the interest on the loan "be punctually paid in terms of the bond," the lenders agreed (1) not to call in the loan for a period of fourteen years, and (2) to modify the rate of interest to 4 per cent. A quarterly payment of interest in terms of the bond became payable on 1st August 1918. It was not paid till 8th August 1918. Held ( aff. judgment of the First Division) that there had not been punctual payment in terms of the bond, and that in the circumstances the lenders had not barred themselves by their actings from insisting upon payment on the exact date.
[ Bailii ]
 
M'Master and Co v Cox M'Euen and Co [1920] UKHL 70; 58 SLR 70
3 Dec 1920
HL

Contract
By contracts dated 1st and 2nd November 1917 a firm of jute manufacturers contracted to sell to a firm of merchants certain quantities of jute goods, one-half to be delivered in January and the remainder in February 1918, delivery to be f.o.b. Dundee. On the passing of the Jute (Export) Order, dated 27th November 1917, the sellers wrote the buyers asking for a guarantee that the goods would not be exported from the United Kingdom, or if the goods were for export for the necessary permit from the War Office. Application was made for a permit but it was refused. The buyers then cancelled the contracts.
In an action of damages at the instance of the sellers for breach of contract, held (reversing the judgment of the Second Division, diss. Lord Dundas) that the Jute (Export) Order and the refusal of the permit had not the effect of voiding the contract, there being no contractual terms, express or implied, as to the market in which the goods were to be disposed of, and that accordingly the buyers were in breach of contract in refusing to take delivery.
[ Bailii ]
 
In Re Macartney [1921] 1 Ch 522
1921

Astbury J
Contract
The principle that an English court will not enforce a contract against the public policy of this country wherever it was made, applied as “directly to the enforceability of foreign judgments founded on contracts contrary to public policy or rights of that character.”
1 Citers


 
In re Mahmoud and Ispahani [1921] 2 KB 716
1921
CA
Scrutton LJ
Contract
Scrutton LJ said: "In my view the court is bound, once it knows that the contract is illegal, to take the objection and to refuse to enforce the contract, whether its knowledge comes from the statement of the party who was guilty of the illegality, or whether its knowledge comes from outside sources. The court does not sit to enforce illegal contracts. There is no question of estoppel; it is for the protection of the public that the court refuses to enforce such a contract".

 
Muller, Maclean and Co v Leslie and Anderson (1921) 8 Lloyd's List Law Rep 328
1921


Contract

1 Citers


 
The Ship "Marlborough Hill" v Alex Cowan and Sons Limited [1921] AC 444
1921
PC
Lord Phillimore
Contract, Commercial, Transport
The question was whether a document, describing itself as a bill of lading but written in the form of a receipt of goods for (rather than of) shipment, was a bill of lading for the purposes of the Act, which set out the jurisdiction of the admiralty court for an action in rem. The claim had been brought by consignees which provided for delivery to the shipper's order. Held: It was a bill of lading within the Act. The court noted that it purported to be negotiable. If this document is a bill of lading, it is a negotiable instrument. Other incidents of the document were standard for a bill of lading, such as detailed terms and conditions in familiar form; the fact that the document was called a bill of lading many times in the course of such provisions and that it was made subject to the US Charter Act; the fact that it provides that "If required by the shipowner, one signed bill of lading, duly endorsed, must be surrendered on delivery of the goods"; and that it "ends in the time honoured form", viz "In witness whereof the master or agent of said vessel has signed three bills of lading, all of this tenor and date, of which if one is accomplished, the others shall be void" The court emphasised that the document would work as merchants would expect a bill of lading to work. It accorded wit hstandard commercial practiceand the parties agreed to call it a bill of lading, and entered into obligations and acquired rights proper to a bill of lading. All the other incidents in its very detailed language are such as are proper to such a document.
Admiralty Court Act 1861
1 Citers


 
Gibaud v Great Eastern Railway Co [1921] 2 KB 426
1921
CA
Scrutton LJ
Contract
Scrutton LJ said: "If you undertake to do a thing in a certain way, or to keep a thing in a certain place, with certain conditions protecting it, and have broken the contract by not doing the thing contracted for in the way contracted for, or not keeping the article in the place in which you have contracted to keep it, you cannot rely on the conditions which were only intended to protect you if you carried out the contract in the way which you had contracted to do it."
1 Citers


 
Colley v Overseas Exporters [1921] 3 KB 302; [1921] All ER 596
1921

McCardie J
Contract, Transport
Sellers brought an action for the price of goods sold on terms fob Liverpool. The buyers made five successive nominations of vessels to take delivery of the cargo but in each case the vessel was eventually unable to take the goods. No effective nomination was made, the goods remained at the dock awaiting shipment, and the sellers brought an action for the price. The argument advanced on behalf of the sellers was that because it was the buyers' own fault which had prevented the goods being put on board, the buyers were disabled from saying that the price, which would have been payable if and when the goods had actually been put on board, was not now due to the sellers. Held: The argument was rejected. Judgment was given for the buyers, there being no alternative claim for damages. Having found that s. 49(1) did not apply because property would not pass until the goods were loaded on board under standard fob terms, and that s. 49(2) did not apply because there was no agreement as to payment of the price on a day certain, he held at p. 310 that those findings were fatal to an action on the price because s. 49 was exclusive: "The existing condition of the law is put in Benjamin on Sale, 6th ed., p. 946, where it is rightly stated that the old principles "are by implication preserved by s. 49 of the code". And the learned editor adds: "Where property has not passed, the seller's claim must, as a general rule, be damages for non-acceptance." An exception to the general rule is to be found in the cases provided for by s. 49, sub-s. 2, of the code. In my opinion (subject to what I say hereafter as to estoppel), no action will lie for the price of goods until the property has passed, save only in the special cases provided for by s. 49, sub-s. 2. This seems plain both on the code and on common law principle. I have searched in vain for authority to the contrary."
1 Citers


 
Adams v London Motor Builders [1921] 1 KB 495
1921


Legal Professions, Contract
A plaintiff whose claim was being supported and paid for by a trade union was nevertheless liable to the solicitor instructed by the Union for that solicitor's costs.
1 Citers


 
Reynolds v Atherton (1921) 125 LT 690
1921


Contract

1 Cites


 
Rossdale v Denny [1921] 90 LJ Ch 204; [1921] 1 Ch 57; [1921] 124 LTR 294; [1921] 37 TLR 45; [1921] 65 Sol Jo 59
1921
CA
LJ Sterndale, Sargant LJ
Contract, Landlord and Tenant
The plaintiff offered in writing to purchase a leasehold house, but the letter was to take effect 'on signing of a formal contract' and 'This offer is subject to a formal contract to embody such reasonable provisions as my solicitors may approve'. The offer was accepted, but the defendant backed out. Held: No formal contract was created.
L Sterndale said: "I am far from saying that there may not be an unconditional offer and acceptance of a binding contract although the letters may contain the words 'subject to a formal contract', but certainly those words do point in the direction of the offer or acceptance being conditional. I do not think it can be put higher than that; I think he is well founded in saying that the general trend of the decisions has been, where those words occurred, to hold that the offer or acceptance was conditional."
1 Cites

1 Citers


 
In re Thornett and Fehr and Yuills [1921] 1 KB 219
1921
KBD
Lord Reading CJ and Darling and Acton JJ
Contract
The parties agreed to sell a quantity of two brands of beef tallow, 1919 make. The manufacturers of the stipulated brands chose not to manufacture any tallow at one of their works and at the other they were prevented from manufacturing the required quantity by a strike. No delivery was made under the contract and the buyers were awarded damages in arbitration proceedings. Held: The umpire's finding that the contract had not been frustrated was upheld on the ground that the contract was not for specific goods but for unascertained goods; accordingly no term could be implied into the contract that the sellers undertook no liability if the manufacturer did not in fact manufacture the goods whatever the reason might be for that failure.
1 Citers


 
French Marine v Compagnie Napolitaine d'Eclairage et de Chauffage par le Gaz [1921] 2 AC 494
1921
HL
Lord Dunedin, Lord Sumner
Contract, Damages
A ship had been requisitioned after an instalment of advance hire had become due, leading to the frustration of the charterparty. The parties disputed whether the charterers were still liable to pay the hire in full. Held: They were. The Tonnelier case had been so long acted upon in the time-chartering business and had been followed in such a multitude of settlements of ships' accounts, that, unless it was manifestly wrong, it ought not to be overruled.
Lord Dunedin described the principle 'frustra petis quod mox es restiturus' as a 'brocard' of the civil law and held that judgment for the full charter hire should not be given where, although the hire had been due, it could be shown that it would be repayable in part, because, as Lord Dunedin put it, "it would be useless to give judgment for the respondents" for more than the sum which was not repayable. Lord Dunedin said: "The question must therefore, in my opinion, be thus approached: On August 10 the respondents were bound to pay a month's hire, on August 16 the further performance of the contract became impossible. Was there or was there not an accrued right on the appellants' part to get repayment of such portion of the hire paid on August 10 as did not, as we conveniently term it in Scotland by a word which is wanting in English, "effeir" to the period from August 10 to 16. The sheet anchor of the appellants' argument is the expression used by Rigby L.J. and the Master of the Rolls in Tonnelier's Case , that the payment in advance is "provisional"; coupled with the admission which had to be given by the respondents' counsel that had there been a delivery at a coal port in the United Kingdom in the ordinary course on the 16th that sum would have been recoverable. I confess I was much moved by that argument, but on further consideration it appeared to me that the word "provisional" might be too hard pressed. I do not think that by terming the payment "provisional" the learned judges meant to say that the payment in advance was not really a payment, but only a deposit, leaving the question of payment over. The payment in advance is truly payment, but it can only be a payment of what the contract says is earned."
1 Cites

1 Citers



 
 Rawlings v General Trading Co; CA 1921 - [1921] 1 KB 635
 
Fitch v Dewes 59 SLR 582; [1921] UKHL 582
2 Jun 1921
HL
Lord Chancellor (Birkenhead), Lords Cave, Sumner, Parmoor, and Carson
Contract
The respondent sought to enforce against the appellant an agreement whereby the latter was prevented from practising as a solicitor within a certain area. Held that the reasonableness of the restriction was the test, and that the fact that the restriction was life long did not render it unreasonable.
Decision of the Court of Appeal (1920, 2 Ch. 159) affirmed.
[ Bailii ]
 
Sutters v Briggs [1921] UKHL 588; 59 SLR 588
25 Oct 1921
HL
Lord Chancellor (Birkenhead), Lords Buckmaster, Sumner, Wrenbury, and Carson
Contract
The Gaming Act 1835 by section 1 enacted that bills, and co., given in respect of gaming transactions should be deemed to have been given for illegal consideration; by section 2 that "in case any person shall . . execute any note, bill, or mortgage for any consideration on account of which the same is" (by the Gaming Acts) "declared to be void, and such person shall actually pay to any indorsee, holder, or assignee of such note" (and co.) "the amount of the debt thereby secured or any part thereof, such money so paid shall be deemed to have been taken to have been paid for and on account of the person to whom such note" (and co.) "was originally given upon such illegal consideration as aforesaid . . and shall accordingly be recoverable by action at law." B sued S to recover pounds 50 paid by cheque in settlement of a bet. The cheque was crossed "not negotiable" and "account payee only" and was paid by S to his account with his bankers, who as agents for collection presented it to B's bankers and received payment. Held that B was entitled to judgment on the grounds (1) that "holder" in section 2 should be given its natural meaning, and (2) that bankers are "holders or indorsees" even when they are mere agents for collection.
[ Bailii ]
 
Forslind v Bechely-Crundall 1922 SC (HL) 173
1922
HL
Lord Shaw of Dunfermline, Lord Dunedin, Viscount Finlay
Contract
A "shilly-shallying attitude in regard to the contract" (Lord Dunedin) may discharge a party to a contract otherwise in breach. Procrastination may be so gross and protracted as to amount to repudiation.
Lord Shaw of Dunfermline said: "If, in short, A, a party to a contract, acts in such a fashion of ignoring or not complying with his obligations under it, B, the other party, is entitled to say: 'My rights under this contract are being completely ignored and my interests may suffer by non-performance by A of his obligations, and that to such a fundamental and essential extent that I declare he is treating me as if no contract existed which bound him.' . . In business over and over again it occurs - as, in my opinion, it occurred in the present case - that procrastination is so persistently practised as to make a most serious inroad into the rights of the other party to a contract. There must be a stage when the person suffering from that is entitled to say: 'This must be brought to an end. My efforts have been unavailing, and I declare that you have broken your contract relations with me.'"
"the question whether the stage has been reached when procrastination or non-performance" constitutes repudiation is essentially one of fact.
Viscount Finlay (dissenting on the facts) said: "If one of the parties to a contract, either in express terms or by conduct, leads the other party to the reasonable conclusion that he does not mean to carry out the contract, this amounts to a repudiation which will justify the other in treating the contract as at an end."
1 Citers


 
Galbraith and Grant Ltd v Block [1922] 2 KB 155
1922
KBD
Lush J
Contract
Where under a contract the seller of goods is required to deliver them at the buyer's premises he fulfils his obligation if he delivers them there to a person who apparently has authority to receive them, taking care to see that no unauthorized person receives them. If therefore the goods are received by an apparently respectable person, who has obtained access to the buyer's premises, and who signs for the goods in the buyer's absence and misappropriates them, the loss must fall on the buyer and not on the carrier or seller: "A vendor who is told to deliver goods at the purchaser's premises discharges his obligations if he delivers them there without negligence to a person apparently having authority to receive them. He cannot know what authority the actual recipient has. His duty is to deliver the goods at the proper place, and, of course, to take all proper care to see that no unauthorized person receives them. He is under no obligation to do more. If the purchaser has been unfortunate enough to have had access to his premises obtained by some apparently respectable person who takes his goods and signs for them in his absence, the loss must fall on him, and not on the innocent carrier or vendor."
1 Citers



 
 Forbes v Git; HL 1922 - [1922] 1 AC 256
 
Abrahams v Herbert Reiach Limited [1922] 1 KB 477
1922
CA
Scrutton LJ, Banks LJ, Atkin LJ
Contract, Damages
Scrutton LJ said: "A defendant is not liable in damages for not doing what he is not bound to do."
Atkin LJ said: "The proper method of assessment is . . to make a reasonable computation of the amount the respondents would have received had the contract been fulfilled." and . .
"[i]f a merchant makes a contract to deliver goods to a shipowner to be carried by him for reward, and the merchant fails to provide the goods, the Court must first find what is the contract which has been broken; and if it was to carry the goods to one of two alternative ports at different distances from the port of loading at rates of freight differing according to the distance, the only contract on which the shipowner can sue is a contract for carriage to the nearer port. The plaintiff cannot prove a contract for performance of the more onerous obligation. This explains why in cases of this kind the Court regards only the lesser of two alternative obligations."
1 Citers


 
Golden Bread Co. v Hemmings [1922] 1 Ch 162
1922


Land, Contract
Where there was a contract for the sale of premises together with the goodwill of the business carried on from the premises, there was a duty on the vendor not to let the business lapse, and to inform the purchaser with reasonable promptitude of what he was doing.
1 Citers



 
 Taylor v Oakes, Roncoroni and Co; 1922 - (1922) 127 LT 267; 27 Com Cas 261
 
Re De Leeuw, Jakens v Central Advance and Discount Corporation [1922] 2 Ch 540
1922
Chd
Peterson J
Contract
A deed which bears a false signature is a forgery and creates no rights whatever.
1 Citers


 
Rutter v Palmer [1922] All ER Rep 367; [1922] 2 KB 87; [1922] 91 LJKB 657; [1922] 127 LT 419
1922

Scrutton LJ
Negligence, Contract
A party is not exempted by his contract from his own negligence 'unless adequate words are used.'
Scrutton LJ said: "For the present purposes a rougher test will serve. In construing an exemption clause certain general rules may be applied: First the defendant is not exempted from liability for the negligence of his servants unless adequate words are used; secondly, the liability of the defendant apart from the exempting words must be ascertained; then the particular clause in question must be considered; and if the only liability of the party pleading the exemption is a liability for negligence, the clause will more readily operate to exempt him.''
1 Citers


 
Matthey v Curling [1922] 2 AC 180; [1922] All ER Rep 1; (1922) 91 LJKB 593; (1922) 127 LT 247; (1922) 38 TLR 475; (1922) 66 Sol Jo 386
1922
HL
Atkin L
Landlord and Tenant, Contract
During the term of the lease, the property had been taken over by the military authorities under wartime powers. Shortly before the term expired the house was destroyed in a fire. The lessor claimed the last quarter's rent and fopr breach of the tenant's covenants to insure and deliver up in good condition. Held: The tenant remained liable. He had not been evicted by title paramount, and the occupation had been temporary, and did not excuse him from performance of his obligations.
1 Cites

1 Citers


 
London and North Western Railway Co v Neilson (1922) 38 TLR 653; [1922] 2 AC 263
1922
HL
Lord Dunedin, Lord Buckmaster, Lord Atkinson, Lord Sumner
Contract, Transport
Lord Buckmaster said: "My Lords, the common law imposes upon the carriers of goods definite and well–known liabilities for the protection of owners. These liabilities are frequently modified by the terms of express contracts, but except to the extent to which plain language effects alteration they still remain and cannot be removed by subtle implications or ambiguous words. No doubt has found place in any of the judgments in this case as to the soundness of this principle and none exists."
1 Citers


 
Dawsons Ltd v Bonnin [1922] SC (HL) 156; [1922] 2 AC 413
1922
HL
Lord Haldane, Lord Cave, Lord Dunedin
Contract, Insurance, Scotland
The House considered whether a provision was a warranty rather than a representation, allowing the contract to be avoided for its breach. It was an inadvertently inaccurate statement by the insured in the proposal form which was expressly incorporated in the policy, as was a clause which expressly rendered the policy void for material misstatement. Held: The inaccuracy was found to be immaterial but a majority of the House decided that there could be no claim under the insurance.
Lord Haldane said: "It is clear that the answer was textually inaccurate. I think that the words employed in the body of the policy can only be properly construed as having made its accuracy a condition. The result may be technical and harsh, but if the parties have so stipulated, we have no alternative, sitting as a Court of justice, but to give effect to the words agreed on. Hard cases must not be allowed to make bad law…It was a specific insurance, based on a statement which is made of foundational if the parties have chosen, however carelessly, to stipulate that it should be so. Both on principle and in the light of authorities such as those I have already cited, it appears to me that when the answers, including that in question, are declared to be the basis of the contract this can only mean that their truth is made a condition exact fulfilment of which is rendered by stipulation foundational to its enforceability."
Lord Cave said: "But it is contended . . that the "basis" clause is limited or qualified by the fourth condition on the back of the policy [relating to material misstatement"].
And it is argued that, having regard to this condition, a misstatement in the proposal does not avoid the policy unless it is a material misstatement. I do not take that view. The "basis" clause and the fourth condition do not cover the same ground. The former includes promissory statements which are apparently not within the condition; and the condition covers misstatements and concealments outside the proposal with which the "basis" clause is not concerned. I think the two clauses are independent and cumulative provisions, each of which must take effect"
Lord Dunedin said: "I think that "basis" cannot be taken as merely pleonastic and exegitical of the following words, "and incorporated therewith". It must mean that the parties held that these statements are fundamental - ie go to the root of the contract - and that consequently if the statements are untrue the contract is not binding"
1 Citers


 
Sanderson and Son v Armour and Co, Ltd [1922] UKHL 268; 59 SLR 268
8 May 1922
HL
Viscount Haldane, Viscount Finlay, Lord Dunedin, Lord Shaw, and Lord Sumner
Contract
A quantity of American storage eggs of a specified brand were bought, c.i.f., to Glasgow and/or Liverpool to be delivered in three equal instalments, payment to be cash against documents on arrival of the goods. The buyers accepted the documents tendered and paid cash for the first instalment on its arrival. On the arrival of the second instalment they refused to take up the documents and pay the price until they had had an opportunity of examining the eggs. They thereafter brought an action of damages for breach of contract against the sellers, in which they averred that the first instalment was not of the brand specified and was largely unmerchantable, that the sellers had refused to allow them to inspect the second instalment before accepting the documents and paying the price, and that that instalment also was unmerchantable. They further averred that no proper policy of insurance had been tendered. Subsequently the pursuers wrote to the defenders stating that they (the pursuers) rescinded the contract in respect that it had been repudiated by the defenders. The defenders denied repudiation, and in defence to the action pleaded, inter alia, that the dispute fell to be referred to arbitration under a clause in the contract which provided-"Any dispute on this contract to be settled by arbitration in the usual way." Held ( affirming the judgment of the First Division) that the pursuers' averments did not disclose that the defenders had repudiated the contract as a whole, to the effect that the contract, including the arbitration clause, was at an end, and accordingly that the action fell to be sisted in order that the dispute might be referred to arbitration.
Examination (per Lord Dunedin) of the law of Scotland with regard to clauses of arbitration in contracts and their effects.
[ Bailii ]
 
James Scott and Sons, Ltd v R and N Del Sel and Another [1922] SLR 446
22 Jun 1922
SCS

Contract
Frustration of Contract - Arbitration - Contract to Ship Jute - Order in Council Prohibiting Export of Jute - Suspension or Termination of Contract - Application of Arbitration Clause.
1 Cites

[ Bailii ]
 
Forslind v Bechely-Crundall [1922] UKHL 17; 60 SLR 17
14 Jul 1922
HL
Viscount Haldane, Viscount Finlay, Lord Dunedin, and Lord Shaw
Contract
A B having entered into a contract with a landed proprietor for the purchase of eleven lots of timber growing on his property, on terms that forbade him cutting or removing more than four lots at one time, on 3rd May 1918 sold one of the lots delivered on rail to C D without disclosing to him the above limitation. At the time that the contract of sale to C D was entered into, cutting operations were going on on four lots. The contract with C D provided that the purchase price of pounds 10,000 should be paid to the extent of pounds 5000 forthwith and pounds 5000 when timber to that value had been railed. The purchaser paid the first instalment of pounds 5000, and the seller was proceeding to fell the trees on the lot sold when he was stopped by the proprietor on the ground that he was thus exceeding the four lots to which simultaneous operations were restricted. The purchaser pressed for fulfilment of his contract or return of the instalment, and the seller while endeavouring to obtain the landlord's consent alleged various reasons for not carrying out the contract, such as the state of the roads and unsettled claims which he had against the purchaser. The seller obtained the proprietor's consent in October 1918, but no deliveries were made before April 1919 under various excuses, when the purchaser commenced an action of damages against him for breach of contract. Held ( rev. judgment of the Second Division, diss. Viscount Finlay) that the purchaser was entitled to treat the seller as having repudiated the contract in respect that he had followed a course of conduct which would as its natural result put it out of his power to fulfil his contract when the time came for doing so.
[ Bailii ]
 
W and S Pollock and Co v Macrae [1922] UKHL 4; (1922) 12 Ll L Rep 299; 1922 SC (HL) 192; 1922 SLT 510
17 Jul 1922
HL
Lord Dunedin
Contract
Lord Dunedin said that to be effective, an exemption clause must be "most clearly and unambiguously expressed."
1 Citers

[ Bailii ]
 
Macrae v W and S Pollock and Co [1922] UKHL 11; 60 SLR 11
17 Jul 1922
HL
Viscount Haldane, Viscount Cave, Lord Dunedin, Lord Parmoor, and Lord Wrenbury
Contract
In a contract between a firm of engineers and the owner of a fishing boat for the supply of a twin-screw set of motor engines, the sellers incorporated certain conditions providing, inter alia, that they should not be liable for "any direct or consequential damage arising from defective material or workmanship." The buyer having brought an action of damages against the sellers on the ground that the engines were disconform to contract, the sellers pleaded the conditions in defence. Held on the facts that there was such a congeries of defects as to destroy the workable character of the machine and amount to a total breach of contract; and on the law, that though the conditions might excuse from damage arising from the insufficiency of a part or parts, they had no application to damage arising from a congeries of defects amounting to a total breach of contract.
In a contract between a firm of engineers and the owner of a fishing boat for the supply of a twin-screw set of motor engines, the buyer retained the engines and claimed damages on the ground that they were disconform to contract. The sellers maintained that the buyer having in the first instance elected to reject the goods, could not now avail himself of the alternative remedy provided by the Sale of Goods Act 1893, sec. 11 (2), viz., of retaining the goods and claiming damages. Opinion that even if the buyer had rejected the engines he was not thereby barred from subsequently retaining them and claiming damages.
[ Bailii ]
 
Cantiere San Rocco Sa v Clyde Shipbuilding and Engineering Co [1922] ScotCS CSIH - 3; 1922 SC 723; 1922 SLT 477
20 Jul 1922
SCS
Lord Dunedin
Scotland, Contract, Equity
The pursuers maintained that, in consequence of the contract having become incapable of fulfilment, they were entitled to recover the money paid by them to the defenders in terms of the contract. The defenders contended that rights acquired under the contract cannot be disturbed by the termination of the contract owing to a cause for which neither is responsible, and that they were therefore entitled to retain the payment made to them. Held: A buyer was entitled to repetition of the instalment of the price that was paid on signature of the contract as, owing to the war, further performance of the contract had become impossible. Lord Dunedin said that the remedy for frustration of the contract was given "not under the contract or because of breach of the contract inferring damages, but in respect of the equitable (of course I am not using the words in the technical English sense) doctrine of condictio causa data causa non secuta."
1 Citers

[ Bailii ]
 
Chillingworth v Esche [1924] 1 Ch 97; [1923] All ER Rep 97; 93 LJ Ch 129; 129 LT 808; 40 TLR 23; 68 Sol Jo 80
1923
CA
Warrington LJ, Sir Ernest Pollock MR
Contract, Land
The purchasers agreed in writing to purchase land 'subject to a proper contract to be prepared by the vendors' solicitors' accepting £240 "as deposit and in part payment of the said purchase money". A contract was prepared by the vendor's solicitors, approved by the purchasers' solicitor, executed by the vendor and tendered to the purchasers for execution. At that point the purchasers declined to proceed with the transaction and claimed the return of the deposit. Held: The signed document was conditional, and the purchasers could have return of their deposit. (per Sterndale) "To my mind the words "subject to contract" or "subject to formal contract" have by this time acquired a definite ascertained legal meaning—not quite so definite a meaning perhaps as such expressions as fob or cif in mercantile transactions, but approaching that degree of definiteness. The phrase is a perfectly familiar one in the mouths of estate agents and other persons accustomed to deal with land; and I can quite understand a solicitor saying to a client about to negotiate for the sale of his land: "Be sure that to protect yourself you introduce into any preliminary contract you may think of making the words 'subject to contract'." I do not say that the phrase makes the contract containing it necessarily and whatever the context a conditional contract. But they are words appropriate for introducing a condition, and it would require a very strong and exceptional case for the clear prima facie meaning to be displaced."
Pollock MR said: "This case . . does not involve a decision of what a deposit may be in all cases, but simply what it is in this particular case.
In Howe v Smith where the nature of a deposit was considered and the right of a purchaser to the return of it, Bowen LJ said: "The question as to the right of the purchaser to the return of the deposit money must, in each case, be a question of the conditions of the contract. In principle it ought to be so, because of course persons may make exactly what bargain they please as to what is to be done with the money deposited. We have to look to the documents to see what bargain was made." And Cotton and Fry LJJ say substantially the same thing. Therefore we have to consider what in fact was the effect of the document of July 10, 1922, not forgetting the contemporaneous documents, and to ask ourselves whether this deposit was by those documents intended to pass irrevocably to the vendor if the purchasers did not carry out the transaction. In all the circumstances of this case, I think the deposit is recoverable by the purchasers. There was no provision made in the documents which would justify the vendor in declining to return it; though if he had, by appropriate words, made provision for that in the document, such a provision could have been upheld."
1 Cites

1 Citers


 
Universal Steam Navigation Company Ltd v James McKelvie and Company [1923] AC 492
1923
HL

Contract
If there was inconsistency between a term added to a pre-printed form and general descriptions elsewhere in the text, the former should be regarded as the "dominating factor" and as of "preponderant importance".
1 Citers



 
 British and Beningtons Ltd v North Western Cachar Tea Co Ltd; HL 1923 - [1923] AC 48; [1922] All ER 224
 
Koenigsblatt v Sweet [1923] 2 Ch 314
1923
CA
Lord Sterndale MR, Younger LJ
Contract
The copy of a contract signed by a vendor was altered after his signature by his solicitor to correspond to the copy signed by the purchaser, but before it became binding. Held: The vendor's subsequent ratification of the altered document related back, so that the position was as if the alterations had been in the document when he signed it. Lord Sterndale MR said: "the defendant wishes to get out of a contract which he undoubtedly made and approved, because he could make more money by repudiating it than by fulfilling it." Effective ratification is "equivalent to an antecedent authority", and will have retrospective effect.
Younger LJ said: "the defendant must be taken to have ratified and acknowledged his signature to the memorandum in its then state".

 
Abram Steamship Company v Westville Shipping Company [1923] AC 773
1923
HL
Lord Atkinson
Contract
The defendant argued for rescission of a shipbuilding contract for misrepresentation. Held: Rescission in the general law of contract is by act of the innocent party operating independently of the court. When a contract is avoided the remedies are restitutionary.
1 Citers


 
Rose and Frank Co v J R Crompton and Bros Ltd [1923] 2 KB 261; [1924] All ER Rep 245
1923
CA
Scrutton LJ
Contract
The court considered whether a contract had been brought into existence. Held: Scrutton LJ said: 'Now it is quite possible for parties to come to an agreement by accepting a proposal with the result that the agreement does not give rise to legal relations. The reason for this is that the parties do not intend that their agreement shall give rise to legal relations. This intention may be implied from the subject matter of the agreement, but it may also be expressed by the parties. In social and family relations such an intention is readily implied, while in business matters the opposite result would ordinarily follow.'
Atkin LJ said: "To create a contract there must be a comon intention of the parties to enter into legal obligations, mutually communicated expressly or impliedly. Such an intention ordinarily will be inferred when parties enter into an agreement which in other respects conforms to the rules of law as to the formation of contracts. It may be negatived impliedly by te nature of the agreed promise or promises, as in the case of offer and acceptance of hospitality, or some agreements made in the course of family life between members of a family."
1 Citers


 
Craddock v Hunt (1923) Ch 136
1923


Contract, Land
When negotiating for the purchase of property the parties agreed orally that an adjoining yard was to be excluded. The written contract as exchanged included the yard. Held: Recitification was ordered.

 
Rowland v Divall [1923] 2 KB 500
1923
CA
Atkin LJ
Torts - Other, Contract
A car dealer had bought a car to which the seller had no title. Held: The dealer succeeded in his claim to recover the purchase price on the ground of total failure of consideration. The vendor had gone through the motions of performance of his contract by handing over a car, but in the eyes of the law that was no performance because the car was stolen. In the case of a theft the title acquired by the thief or later possessor is frail, and of likely limited value, but nonetheless remains a title to which the law can afford protection.
Atkin LJ said: "It seems to me that in this case there has been a total failure of consideration, that is to say that the buyer has not got any part of that for which he paid the purchase money. He paid the money in order that he might get the property, and he has not got it. It is true that the seller delivered to him the de facto possession, but the seller had not got the right to possession and consequently could not give it to the buyer. . There can be no sale at all of goods which the seller has no right to sell. The whole object of a sale is to transfer property from one person to another … can it make any difference that the buyer had used the car before he found out that there was a breach of the condition? To my mind it makes no difference at all. The buyer accepted the car in the representation of the seller that he had a right to sell it, and in as much as the seller had no such right he is not entitled to say that the buyer has enjoyed a benefit under the contract. In fact the buyer has not received any part of that which he contracted to receive, namely the property and right to possession – and that being so there has been a total failure of consideration."
1 Citers


 
James Scott and Sons Ltd v R and N Del Sel and Another [1923] UKHL 437; 60 SLR 437
25 Jan 1923
HL
Lord Chancellor, Lord Dunedin, Lord Shaw, Lord Buckmaster, and Lord Carson
Arbitration, Contract
A firm of jute merchants contracted to ship a specified number of bales of jute from Calcutta to Buenos Ayres. The contract contained, inter alia, the following provisions:-"Any delay in shipment caused by fire, strike, breakages, and accidents . . and for any other unforeseen circumstances, to be excepted, and the quantity short produced in consequence thereof to be deducted from the quantity named in this contract, or delivered soon as possible thereafter, buyers having the option of refusing it after time. . . Should the vessel by which freight has been engaged be commandeered or delayed by the Government, sellers shall not be responsible for any late shipment or other consequences arising therefrom, and the goods shall be sent forward as early as possible. . . " It also contained an arbitration clause in the following terms:-"Any dispute that may arise under this contract to be settled by arbitration in Dundee." Before all the bales of jute had been shipped, further export of jute from India to the Argentine was prohibited by an Order in Council of the Governor-General of India. A dispute having arisen between the parties as to whether the contract was rendered void and unenforceable quoad the balance of the bales of jute, the sellers maintained that the arbitration clause was inapplicable on the ground that the dispute as to whether the contract had been ended was not a dispute arising under the contract. Held ( aff. the judgment of the Second Division) that as the dispute which had arisen was a dispute as to the meaning of the contract, viz., whether the contract had specifically provided for the events which had happened, it was a dispute under the contract, and that accordingly it fell to be determined by arbitration.
[ Bailii ]
 
Westville Shipping Co Ltd v Abram Steamship Co Ltd [1923] UKHL 625; 60 SLR 625
6 Jul 1923
HL
Earl of Birkenhead, Viscount Finlay, Lord Dunedin, Lord Atkinson, and Lord Shaw
Contract
A assigned his rights under a shipbuilding contract to B on certain representations as to the stage of construction reached by the vessel which were in fact false. B thereafter subassigned his rights to C, making practically the same representations to C as had been made to him by A. On C discovering that the representations were false, and intimating that he repudiated the contract, B was advised that he had no defence, and it was arranged that judgment should be allowed to go against him in the English Courts. B then brought an action against A for reduction of his contract with A and for damages, but at the time of raising his action judgment had not been pronounced by the Court in England annulling the sub-assignation, though such judgment was obtained before the record was closed. In the action by B against A objection was taken that B had no title to sue in respect that at the date of raising the action he had not been reinvested in his right to the contract, and therefore was not in a position to make restitutio in integrum. Held ( aff. the judgment of the First Division) that B had a good title to sue.
The sub-assignees of a shipbuilding contract, after discovering the falsity of the representations on which they had bought, requested the shipbuilders to make a slight alteration in the design of the ship. Thereafter in an action at their instance the sub-assignation was annulled. The assignees having thereafter sued the original cedents for rescission of their contract with them on the ground of misrepresentation and for damages, held ( aff. the judgment of the First Division) that the act of the subassignees in agreeing to the suggested alteration on the design of the ship did not bar the assignees from insisting in their action, and that the unimportant character of the alteration did not make restitutio in integrum inequitable.
Circumstances in which held ( aff. the judgment of the First Division) that in an action for the rescission of a shipbuilding contract on the ground of misrepresentation, a fall in the value of the subject of the contract owing to a slump in freights did not render restitutio in integrum inequitable, and appeal dismissed.
[ Bailii ]
 
Cantiere San Rocco, S A (Shipbuilding Co) v Clyde Shipbuilding and Engineering Co Ltd [1923] UKHL 635; 60 SLR 635
25 Jul 1923
HL
Earl of Birkenhead, Viscount Finlay, Lord Dunedin, Lord Atkinson, and Lord Shaw
Contract
Prior to the outbreak of war in 1914 an engineering firm in Scotland entered into a contract with an Austrian shipbuilding company to make and deliver a set of marine engines By the terms of the contract the price was to be paid in instalments, the first instalment being due on the signing of the contract and the remaining ones as the work progressed. All the instalments were to be merely payments on account of the supply of the completed engines, and were not allocated to any particular stage or the completion of any particular part of the work. After the first instalment had been paid war broke out and further performance of the contract became illegal, the foreign company having become an alien enemy. At that date no part of the engines had been constructed. After peace had been declared the shipbuilding company, which had become Italian, brought an action for repetition of the instalment paid. Held ( rev. the judgment of the First Division, diss. Lord Mackenzie) that as delivery of the subject of the contract had become impossible in consequence of the outbreak of war the consideration in respect of which payment was made had failed, and that accordingly the pursuers were entitled to repayment of the instalment in question, and appeal sustained.
[ Bailii ]
 
Cantiere San Rocco Sa v Clyde Shipbuilding and Engineering Co [1923] UKHL 1; 1923 SC (HL) 105; (1923) 16 Ll L Rep 327; [1924] AC 226
25 Jul 1923
HL
Earl of Birkenhead, Lord Dunedin
Scotland, Contract
Whether contract abrogated by the outbreak of war.Held: The buyer was entitled to repetition of the instalment of the price that was paid on signature of the contract as, owing to the war, further performance of the contract had become impossible.
Lord Dunedin explained that the remedy for frustration of the contract was given "not under the contract or because of breach of the contract inferring damages, but in respect of the equitable (of course I am not using the words in the technical English sense) doctrine of condictio causa data causa non secuta."
The Earl of Birkenhead analysed the Roman law which had influenced the Scots law of unjustified enrichment, saying: "The underlying principle of the Condictio was that a person had received from another some property, and that, by reason of circumstances existing at the time or arising afterwards, it was or became contrary to honesty and fair dealing for the recipient to retain it."
[ Bailii ]
 
Black v John Williams and Co (Wishaw) Ltd [1923] UKHL 2; 1924 SLT 58; 1924 SC (HL) 22
26 Nov 1923
HL
Lord Dunedin
Scotland, Contract

[ Bailii ]

 
 York Glass Co Ltd v Jubb; 1924 - [1924] 131 LT Rep 559

 
 Galbraith and Grant Ltd v Block; CA 1924 - [1924] 2 KB 155

 
 Tournier v National Provincial and Union Bank of England; CA 1924 - [1924] 1 KB 461; [1923] All ER Rep 550; 130 LT 682

 
 Performing Right Society Limited v London Theatre of Varieties Limited; HL 1924 - [1924] AC 1; [1923] All ER Rep Ext 794

 
 Thrige v United Shipping Company Ltd; CA 1924 - (1924) 18 Ll L Rep 6

 
 Anderson v Daniel; CA 1924 - [1924] 1 KB 138

 
 Elder, Dempster and Co Ltd v Paterson, Zochonis and Co Ltd; HL 1924 - [1924] AC 522

 
 Hewitt v Rowlands; CA 1924 - [1924] All ER 344
 
The St. Madeleine Sugar Company Limited v Samuel Taylor [1924] UKPC 35
8 May 1924
PC

Contract
(Trinidad and Tobago)
[ Bailii ]
 
Rose and Frank and Co v JR Crompton and Bros Ltd [1924] UKHL 2; [1925] AC 445
5 Dec 1924
HL
Earl of Birkenhead, Lord Atkinson, Lord Sumner, Lord Buckmaster, Lord Phillimore
Contract
For a contract to come into existence there has to be not only an intention to create legal relations but an agreement as to the terms of the contract. In a commercial contect there is a presumption of an intention to create legal relations. However, a clear and unambiguous express term stating that the parties did not intend their agreement to create legal relations was indeed binding upon them. It is the duty of the court to give proper effect to the terms agreed between the parties, whatever the reason for its introduction. The appeal failed. A party breaching a gentlemen's understanding or agreement suffers damages to his honour and standing or reputation whilst the other party who is affected by the breach recovers nothing and cannot turn to the Courts to seek relief
1 Cites

[ Bailii ]

 
 Forsikringsaktieselskabet National (of Copenhagen) v Attorney-General; HL 1925 - [1925] AC 639
 
Parkinson v College of Ambulance Ltd and Harrison [1925] 2 KB 1
1925

Lush J
Torts - Other, Contract
Lush J said of a contract to procure an honour, that "[n]o Court could try such an action and allow such damages to be awarded with any propriety or decency."
1 Citers



 
 The 'Arsa'; 1925 - (1926) 24 Ll L Rep 219; (1925) 23 Ll L Rep 273

 
 York Glass Co Ltd v Jubb; CA 1925 - (1925) 134 LT Rep 36

 
 Lockett v Norman-Wright; 1925 - [1925] Ch 56
 
Hirji Mulji v Cheong Yue Steamship Co [1926J AC 497
1926
PC
Lord Sumner
Contract
Lord Sumner described the doctrine of frustration as "a device by which the rule as to absolute contracts are reconciled with a special exception which justice demands."
1 Citers


 
Turner v Civil Supply Association Ltd [1926] 1 KB 50
1926


Contract
The defendants were furniture removers and warehousemen, and they entered into a contract to remove the plaintiff's furniture from London to Hailsham. The contract was made subject to various conditions. The plaintiff's goods were loaded on to the defendants' motor lorry, and in the course of transfer a fire caused by the negligence of the defendants' servants destroyed the bulk of the goods and damaged the remainder. Held: Clause 11 In the contract did exempt the defendants from liability: "The contractors are not responsible for loss or damage caused by fire, aircraft or bombardment of property in transfer or in storage or in process of being packed." Sankey J said: "But just as a common carrier may exempt himself from liability by using express and unambiguous language, so also a carrier of the class with whom we are now dealing may exempt himself from liability by using proper words . . As far as this part of the discussion is concerned I think the familiar doctrine of law applies-namely, that if a man wishes to exempt himself from liability he must say so in clear and unambiguous terms."
1 Citers


 
Hirji Mulji v Cheong Yue Steamship Co Ltd [1926] AC 497
1926

Lord Sumner
Contract
Lord Sumner considered the doctrine of frustration, formulating it as a "device by which the rules as to absolute contracts are reconciled with a special exception which justice demands."
1 Citers


 
Fagan v Green and Edwards Ltd [1926] 1 KB 102
1926


Contract

1 Cites

1 Citers



 
 Dayal Singh v Indar Singh Since Deceased Now Represented By Kharka Singh Minor Through Musammat Bhagwani; PC 24-Jun-1926 - [1926] UKPC 57

 
 Eugene C Audet and Others v Eugene Trudel and Others; PC 27-Jun-1926 - [1926] UKPC 58
 
Highland Railway Co v A and G Paterson Ltd [1926] UKHL 1; (1926) 26 Ll L Rep 172; 1927 SC (HL) 32
3 Dec 1926
HL
Viscount Dunedin, Lord Sumner
Contract
The pursuer, a firm of timber merchants, sought repayment of sums overpaid for the carriage of timber. Held: The House declined to introduce the English law of consideration into Scottish law.
Viscount Dunedin said: "if I offer my property to a certain person at a certain price, and go on to say: "This offer is to be open up to a certain date," I cannot withdraw that offer before that date, if the person to whom I made the offer chooses to accept it. It would be different in England, for in the case supposed there would be no consideration for the promise to keep the offer open. But what is the reason of this? It is because the offer as made contained two distinct promises: (1) to sell at a certain price, and (2) to keep the offer open. It seems to me that (2) is completely wanting in the present case. It is just as if a tradesman put up a notice: "My price for such-and-such goods during November will be so-and-so." That offer may at any time be converted into a contract by a person tendering the price for the goods, but there is no contract that the tradesman may not change his mind and withdraw his offer. Therefore, upon the simple question of contract, I think the argument for the respondents breaks down, and that in my mind disposes of the case."
[ Bailii ]
 
Lee v Lord Dalmeny [1927] 1 Ch 300
1927
ChD

Contract
The Court will not enforce an agreement which is part of the gaming contract.
1 Citers


 
W. Angliss v Peninsular and Oriental Steam Navigation Co [1927] 1 KB 456
1927

Wright J
Transport, Contract
Wright J held: "The Carriage of Goods by Sea Acts have introduced a new and obligatory code of responsibilities and immunities as affecting carriers under bills of lading in place of the former rule that carriers by sea, while generally under the liability of common carriers, were free by contract to vary and limit their liabilities. In particular, the Acts have expressly abolished the previous absolute obligation to provide a seaworthy ship and have substituted an obligation to use due diligence to that effect. The carrier may not be the owner of the ship, but merely the charterer; he may not have contracted for the building of the ship, but merely have purchased her, possibly years after she has been built. In the two latter cases the builders and their men cannot possibly be deemed to have been the agents or servants of the carrier and it is illogical that there should be such difference in the carrier's obligations merely because he has bought the ship by the method of contracting with the builders to build it for him. In addition, if the carrier were held liable for the bad workmanship of the builders' men, he might equally be held liable for bad workmanship by the men employed by the various sub-contractors who supply material for the builders, such as steel-workers in furnaces and rolling mills, or who supply special articles such as castings, pumps or proprietary machines, which would involve an almost unlimited retrogression."
1 Citers


 
Bow's Emporium v A R Brett and Co Ltd (1927) 44 TLR 194
1927


Contract
The court considered a claim for an estate agent's commission. Held: The claim failed. Lord Shaw of Dunfermline said: "the continuity between the original relation brought about by the agent and the ultimate transaction has not been merely dislocated or postponed but broken."
1 Citers


 
Cunard Steamship Co v Buerger [1927] AC 1; 42 TLR 653
1927
HL
Viscount Dilhorne
Contract
Eight cases of textile goods belonging to the respondents had been lost in the course of a voyage aboard the S.S. Verentia, owned by the appellant company, under circumstances which were found to constitute deviation from the provisions of the Bill of Lading. That contract contained a clause under which the appellants became not accountable for any goods of whatever description above the value of 20 pounds per package unless the value was set out in the Bill of Lading and extra freight agreed on and paid. Held: The clause was insufficient to protect the steamship company from the effects of its acts of deviation. A bailee may be exempted from liability by an exemption clause, but any such must be expressed in clear and unambiguous terms.
1 Citers


 
Lake v Simmons [1927] AC 487
1927
HL
Lord Cairns, Viscount Haldane,
Contract
A jeweller claimed on a policy of insurance. One Ellison had induced him, in face-to-face dealings, to part with possession of two necklaces by pretending she was the wife of a local gentleman called Van der Borgh, with whom she was living, and that he wanted a necklace on approval as he was contemplating giving it to her. She further pretended that a Commander Digby, who was engaged to her sister, wanted the other necklace on approval. There was no such man. Miss Ellison disposed of the necklaces. Were the underwriters were exempted from liability under an exclusion in respect of "loss by theft or dishonesty committed by . . any customer in respect of goods entrusted to" the customer. Held: They were not. When considering whether the goods were 'entrusted' to Miss Ellison, the test was whether the face-to-face dealings between her and the jeweller were capable of giving rise to a contract. They were not because of the mistake as to her identity.
Haldane said: "The latter was entirely deceived as to the identity of the person with whom he was transacting. It was only on the footing and in the belief that she was Mrs.Van der Borgh that he was willing to deal with her at all. In circumstances such as these, I think that there was no such consensus ad idem as, for example, Lord Cairns, in his judgment in Cundy v. Lindsay, declared to be requisite for the constitution of a contract. No doubt physically the woman entered the shop and pretended to bargain in a particular capacity, but only on the footing of being a different person from what she really was. There was never any contract which could afterwards become voidable by reason of a false representation made in obtaining it, because there was no contract at all, nothing excepting the result of a trick practised on the jeweller."
1 Cites

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In re Wait [1927] 1 Ch 606
1927


Transport, Contract
In the case of a Bill of lading issued for quantities out of undivided consignments and where those quantities had been sold to different buyers and the various bills of lading endorsed over to them, those endorsements were ineffective to pass the legal title in the parts of an undivided whole to a purchaser.
Bills of Lading Act 1855
1 Citers


 
In re Johns, Worrell v Johns [1928] Ch 737
1928

Tomlin J
Insolvency, Contract
A mother and son agreed that the sum repayable by the son in respect of periodic loans made by the mother (which could not exceed £650, and might be as little as £10, in all) was to increase from £650 to £1,650 (plus interest) in the event of the son's bankruptcy. Held: The applicable principle was that a "person cannot make it a part of his contract that, in the event of bankruptcy, he is then to get some additional advantage which prevents the property being distributed under the bankruptcy laws". The agreement was "a deliberate device to secure that more money should come to the mother if the son went bankrupt, than would come to her if he did not; and, that being so . . the device is bad".
1 Citers



 
 Conquer v Boot; CA 1928 - [1928] 2 KB 336; [1928] All ER 120

 
 R and H Hall Ltd v WH Pim Junr and Co Ltd; HL 1928 - [1928] 30 LLR 159
 
English Hop Growers v Dering [1928] 2 KB 174
1928
CA
Scrutton LJ
Contract
The defendant farmer had agreed to sell his crop of hops to the Society for five years. He failed to do so and was sued. He replied that the contract was in restraint of trade. Held: The restraint was reasonable. Scrutton LJ allowed that it might have been a contract in restraint of trade, but this was not just an ordinary agreement, it was rather a marketing scheme accepted by the great majority of English hop growers.
1 Citers



 
 May and Butcher Limited v The King; HL 1929 - [1934] 2 KB 17; [1929] UKHL 2; [1929] All ER Rep 679
 
Viscount Tredegar v Harwood [1929] AC 72
1929
HL
Viscount Dunedin, Lord Phillimore
Contract, Landlord and Tenant
A covenant in the lease required the lessee to insure the premises with a nominated insurer or another insurer approved by the lessor. The lessor refused to approve a responsible and reputable insurer because of his wish that all tenants insure with the same insurer (for convenience in the event of a claim by more than one tenant). The House was asked as to the ambit of the rights of the lessor under the covenant. Held: the refusal was reasonable. The lessor had an absolute right to refuse his approval to an alternative office without giving reasons, and thus could take into account the administrative convenience to him as the lessor of a large number of properties of dealing with a single insurance office. One "should read reasonableness in the general sense".
1 Cites

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Kennedy v Thomassen [1929] 1 Ch 426
1929


Contract
No binding contract comes into existence where the acceptance was never communicated or was communicated only to the acceptor's own agent.
1 Cites



 
 Foster v Driscoll, Lindsay v Attfield, Lindsay v Driscoll; 1929 - [1929] KB 287; [1928] All ER Rep 130
 
Smith Hogg Co v Louis Bamberger and Sons [1929] 1 KB 150
1929


Contract
Where it has been demonstrated by satisfactory evidence that an expression is understood to have a special meaning by virtue of a "custom of the trade", then effect will be given to the custom of the trade, unless it is inconsistent with the express terms of the contract.
1 Citers


 
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