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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> James Robertson - Campbell v. Harford, Brothers, and Company - Archbold [1832] UKHL 6_WS_1 (6 March 1832) URL: http://www.bailii.org/uk/cases/UKHL/1832/6_WS_1.html Cite as: [1832] UKHL 6_WS_1 |
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(1832) 6 W&S 1
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND, 1832.
2 d Division.
No. 1.
[
Subject_Sale — Acquiescence.
In defence to an action by a seller, raised in the Burgh Court of Glasgow, for payment of a balance of an account for iron purchased from him, the purchaser pleaded, 1st, that the iron was not sent within the time ordered; 2dly, that it was deficient in weight; 3dly, that it was of different sizes from those specified in the order. The seller maintained that he had fulfilled the terms of the bargain, and that the purchaser was at any rate barred by his silence and acquiescence. The Burgh Court sustained the defences; but the Court of Session, on advocation by the pursuer, adhered to the Lord Ordinary's judgment, altering and decerning in terms of the libel, and found the advocator entitled to expences in the inferior court and in the Court of Session. The House of Lords reversed the judgment of the Court of Session, and found the defender properly assoilzied by the Burgh Court, and remitted to the Court of Session to proceed as might be necessary to give effect to this judgment.
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Subject_Expences. —
The Court of Session having, in the advocation, found the advocator entitled to the expences of the whole suit, including those incurred in the original action as well as in the advocation, the House of Lords altered, and found the appellant (the original defender) entitled to all the expences in the advocation, up to the date of and including the Lord Ordinary's judgment; but that the appellant and respondent ought respectively to bear their own expences in the advocation in the Inner House, and of the appeal.
On the 7th February 1827, James Robertson, iron-monger in Glasgow, wrote to Harford, Brothers, and Company, iron-masters in Bristol, as follows:—
“Subjoined is a specification for seventy-three tons and sixty bars iron, which please order to be shipped in the course of two or three weeks at most, of a good quality, and charged at or under the prices I have within these few weeks been quoted by two different Welsh houses, viz.: —bars at 8 l. 10 s. and rods at 9 l. 10 s. I intend to pay you with a banker's draft at par, from the date of the iron arriving here, and will expect the discount I am quoted for prompt payment, viz. five per cent. Please give instructions the rods are all sent the exact sizes ordered. I hope you will be able to get a vessel to bring the iron for about 12 s. per ton, as the days are now getting longer, and the weather better. Please write me as early as convenient when I may expect the present order shipped, being out of all the sizes of rods and part of the bars. If you cannot ship my order immediately, I will require to send it to another house. Expecting to hear from you in a few posts,” &c.
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On the 10th February, Harford, Brothers, and Company answered,—“We have duly received your favour of the 7th, annexing order for bar iron and rods, which you offer us at the price of 8 l. 10 s. for the former, and 9 l. 10 s. for the latter, delivered at Newport, less discount five per cent, for banker's draft at par, from the arrival of the iron with you. On these terms we must decline the order, but shall be happy to execute it at the prices quoted, allowing you five per cent, for banker's draft at par, to be remitted us on receipt of invoice. We wait your reply, and remain, &c.”
On the 12th February, Robertson replied,—“In reply to yours of the 10th instant, I will take the iron at the prices and discount mentioned, viz. bars at 8 l. 10 s. and rods at 9 l. 10 s., five per cent, off for a banker's draft at par, from receipt of invoice, which I engage to send you, provided you send it off before any general reduction, and warrant the iron all the sizes ordered. Please ship the annexed jobbing iron along with the last order.
When your Mr. Davies was lately here, I mentioned to him I intended to visit the works before I bought much iron. I find I require what I have ordered from you in the meantime, to assort my stock. My reasons for intending visiting the different works in Wales is, to endeavour to buy iron as cheap as the Liverpool iron dealers, for they come here and sell iron delivered in Glasgow to consumers, &c. as cheap as it can be brought from Wales at the common list prices. I am certain that they buy iron at least 10 s. per ton lower than the regular list prices. In case you agree to supply me at 10 s. per ton under
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Robertson again wrote on the 8th March, —“Since I handed you an order, 7th ultimo, for iron, I am offered bars at 8 l., and nail-rod iron at 9 l., six months, or three per cent, off for prompt payment. As I expect you will supply me at such prices, as I will have iron as low from you for prompt payment as from the house above alluded to (which I am not at liberty at present to name), I herewith hand you a small addition to my last order, and request you will ship the whole at two or three weeks at most. In case any reduction takes place at quarter-day next month, the house alluded to agrees to give me the advantage of it, as an inducement to hand them an order; but this I do not at present intend to do, provided you supply me on as reasonable terms as I have been quoted. In these very unpropitious times, people run enough of risk in selling their goods on credit, without losing on the stock in hand.
It would be very discouraging for me to have iron shipped by you so near quarter-day, and the invoice price reduced between the time shipped, and the time of its arrival here. No doubt Messrs. W. D. and W. E. Acraman, Bristol, must buy iron as low or lower than I have been quoted within these few days, otherwise they could not have afforded it to me at the prices they have recently done, viz. bars at 8 l. 10 s., and rods, 9 l. 10 s., six months, or five per cent off for prompt payment.
Please acknowledge receipt of this in course, and say when you have prospects of shipping all the iron I have ordered. In case you guarantee no reduction
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Harford, Brothers, and Company replied, by letter without date, but having the Glasgow post-mark, 15th March,—“We have duly received your favour of 8th instant, and note the price at which you have been offered iron. We do not accept orders on these terms. Previous to receipt of your favour, a vessel (the Pembroke) was engaged to take your iron at 12 s. per ton. Our agent at Newport writes us under date of the 13th instant,—‘The Pembroke is engaged for Glasgow at 12 s. per ton, and is this morning only come into berth.’”
Robertson replied, on the 16th March,—“Yours of the 13th instant is in my possession. In reply, as you did not ship the iron in two or three weeks after ordered, I was obliged to buy as much otherwise as serve my customers for six or eight weeks to come. Therefore, I trust you will guarantee no general reduction in price next month in Wales. You will, I hope, be as liberal as another house that offers me iron at 10 s. per ton under the prices you last quoted, guaranteeing that in case a reduction takes place in Wales next month I will have the benefit of it. Provided you agree to this, I will remit you a banker's draft on receiving invoice and bill of lading. If any reduction takes place, I will not ask the money from you, but take iron for the difference. Because you have not shipped my order in the time I mentioned when I sent it (viz. in two or three weeks at
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On the 24th March, Harford, Brothers, and Company wrote,—“Annexed we have the pleasure of handing you invoice of iron shipped to your address, per Pembroke:
|
Amount |
£709 |
14 |
7 |
|
From which deduct five per cent. |
35 |
9 |
7 |
|
£674 |
5 |
0 |
for which be pleased to hand us banker's draft, in course of post, agreeably to letter of 12th ultimo, extract from which we hand you above. We think you must admit that we cannot, with propriety, be called upon to make the abatement required, when we assure you that we would not now take an order on the terms you quote. With regard to the time of shipping the order, we cannot command vessels at the
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Robertson, in answer, wrote on the 27th March,—“You have herewith enclosed two drafts on London, viz. one for 200 l. at sixty days from 1st ultimo, and another for 435 l. 18 s. 4 d.at thirty-five days from this date—amount of both, 635 l. 18 s. 4 d., which, with 10 s. per ton off your invoice, and five per cent, off the gross amount, is the amount of same. This is a mistake, for the five per cent, should have been off the net amount, after the 10 s. per ton was taken off, but this I did not observe till the banks were shut to-day. However, when you agree to let me have the iron at the prices I have been offered, ‘viz. bars at 8 l. and rods at 9 l., five per cent, off for bankers' drafts,’ I will immediately thereafter remit you the 1 l. 18 s. 3 d. of difference, overlooked this forenoon. If you had shipped the iron in two or three weeks at most after ordered, I would not have expected it under the prices iron was generally selling at, at the date ordered, for the reasons mentioned in my letters to you of the 8th and 16th current. I trust you will not hesitate to allow me the 10 s. per ton off your invoice prices, and in case you act liberally to me, I will get my father-in-law, Mr. James Henderson, Stirling, soon to send you an order for iron, and will engage to take 100 tons from you, first I require, if you supply as cheap for prompt payment as I can buy otherways.”
In reply, Harford, Brothers, and Company wrote, on the 31st March,—“We duly received your favour of 27th, enclosing bills, value 635 l. 18 s. 4 d. to your
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And on the 30th April, Harford, Brothers, and Company wrote,—“Annexed we have the pleasure of handing you our prices of bars. We are surprised we have not received a remittance for balance due on our last transaction, 38 l. 6 s. 8 d. If it is your intention to resist the payment of it, be good enough to inform us, as we cannot abandon the claim.”
In answer, Robertson wrote to Harford, Brothers, and Company, on the 4th May, —“Your letter of the 31st March and 30th ultimo is in my possession. In reply, you know I ordered, on the 7th February, seventy-three tons and sixty bars iron, to be shipped in two or three weeks at most from that date, and it was not shipped till the 21st March, being six weeks from the date ordered. On the 10th February you advised me it would be shipped, without craving longer time than mentioned in my order. In consequence of you not shipping it within the time I
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“We, the subscribers, have examined all the rod-iron, &c. invoiced by Messrs. Harford, Brothers, and Company, 21st March last, and find none of the nail-rods smaller than No. 7, by thirteen wire-gage, although there is five tons invoiced No. 8. by fourteen. On account of the smallest size not being sent, it renders most of the sizes sent unsaleable till the smallest size is got to sell along with them, as the consumers will not generally buy the thickest sizes sent without a proportion of the smallest size (No. 8. by fourteen wire-gage) along with them at the same price. We have farther to mention, not one bundle of the nail-rods in forty will stand the weight (60lb.) An allowance will have to be made for the short weight when sold. —(Signed) John Craw, Robt. Gardner.”
And the same warehousemen afterwards reported,—“We, the subscribers, have examined the nail-rod iron invoiced by Harford, Brothers, and Company, 21st March last, and find, on an average, each of the 1,220 bundles nail-rods, one and one-half pound short of sixty pounds, some of them more, and some of them a few ounces less.”
The deficiency in weight of nail-rod iron was stated at 15 cwt. 1 qr., which at 9 s. 6 d. amounted to 7 l. 4 s. 10 d.
Harford, Brothers, and Company raised an action, before the Bailies of the burgh of Glasgow, against
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Nov. 20, 1829.
After various steps of procedure the Bailies found, “That the terms of the original purchase, and sale of the quantities of iron in question, were fixed by the defender's letters of the 7th and 12th February 1827 and the pursuers' letter of the 10th February 1827: Finds, that from their failure to object, and tacit acquiescence, the pursuers must be presumed to have consented to the limitation, with regard to the time of shipment, expressed in the said letters, viz. immediately, or in the course of two or three weeks at most from the date of the pursuers' first letter, or before any general reduction of price, and in the course of ten or fourteen days at most from the date of the defender's said second letter : Finds it not proved that the pursuers gave the defender any intimation of their not being able to furnish the quantities and descriptions of iron ordered by him until they were manufactured: And finds the delay on the part of the pursuers, in not completing the shipment of the said iron till the 19th
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10th July 1830.
The pursuers brought this interlocutor, by advocation, under the consideration of the Court of Session, and the record having been there closed, the Lord Ordinary found, “That, by the correspondence terminating in the respondent's letter of the 12th February 1827, the respondent ordered from the advocators a quantity of iron, mentioned in that letter: Finds, that although the respondent subsequently complained of the delay of executing the order, and did, in his letters of the 8th, 16th, and 27th March 1827, found upon that circumstance a demand of some abatement of price, such demand was not complied with on the part of the advocators: Finds, that the advocators, in their letter of the 24th March 1827, inclosing the invoice of the iron, and in their letter of 31st March 1827, explicitly intimated to the respondent that no abatement was to be allowed, and that the iron was sent in terms of and at the prices specified in the respondent's letter of the 12th February: Finds, therefore, that there was no new agreement between the parties, altering the prices of the iron originally fixed, and that the respondent was bound, either to take the iron at those prices, or to reject it, if he considered himself set free from the contract in consequence of the alleged delay in its execution on the part of the advocators: Finds, that he did not so reject the iron; but, on the contrary, having, some time before the arrival, received the advocators' letter of 31st March, stating that it was sent at the prices originally fixed, and no other, he took possession of the iron, without making any answer, or stating any
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Note.—The Lord Ordinary has not found it necessary to determine the question, whether or not, according to the terms of the original contract, there was any undue delay in its execution by the advocators. That circumstance, though it might warrant the rejection of the iron by the respondent, evidently did not authorize him to take it at a lower price. The question merely at issue, then, between the parties, is, whether, at the time when the iron was sent by the advocators, and received by the respondent, the terms of the original contract had, in that
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Jan. 29, 1831.
Against this judgment both parties reclaimed to the Inner House, the defender on the merits of the cause, and the pursuers on certain points of expences, when their Lordships adhered “to the interlocutor submitted to review on the merits : Find expences of this note, discussion in the inferior Court as well as in the Outer House due; remit to the Lord Ordinary to ascertain the amount, and proceed as to him shall seem fit, and decern.” And of same date, found the advocators (pursuers) entitled to their expences in the inferior Court, and in so far alter the interlocutor submitted to review; remit to the Lord
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Against these judgments the defender appealed.
Oct. 14, 1831.
Appellant.—As the respondents, before completing the shipping of the iron, were in possession of the appellant's letters of the 8th and 16th March, distinctly informing them that he would become a purchaser only if they sold to him at the rate of 8 l. and 9 l. per ton, and as, when, notwithstanding these letters, they dispatched an invoice of that iron at the higher rate of 8 l. 10 s. and 9 l. 10 s. per ton, the appellant adhered to his former terms, by remitting to them, not the amount of the higher rate which they demanded, but of the lower rate which he had offered, they have no title to demand the higher rate, unless they can show that he was already bound to pay it by some previous existing contract, or agreed to pay it by some subsequent engagement, express or implied.
If there was such a previous binding contract, it must be sought only in the letters of 7th, 10th, and 12th February. But it is a general rule, that where there is a proposal as to matters of contract, the party making the proposal has a right to withdraw his offer, or to vary the terms, any time between the making of the proposal and the absolute unqualified acceptance of it by the other party. Now, the respondents, instead of accepting by their letter of the 10th the appellant's original offer of the 7th, expressly declined it, and stated new terms of their own. The appellant's letter of the 12th, again, was not an acceptance of the
_________________ Footnote _________________ * 9 Shaw and Dunlop, 352.
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The same consequence would have followed even if the letter of the 8th March had not been written, because the original proposals had ceased to be binding by the long silence of the respondents concerning them. On the 8th of March the respondents could not have compelled the appellant to receive the iron: by that time all former proposals were at an end, and his letter of that date was the commencement of a new series of negotiations, by which alone his obligations are to be ascertained; and the result is the same, whether the original letters did or did not constitute in themselves a concluded bargain, as he was freed by the respondents' culpable delay in shipping the iron.
The appellant being thus entitled to make the new proposals contained in his letter of 8th March, it was no longer in the power of the respondents to insist upon the terms of the 12th February; and their letter of the 15th March being merely a rejection of the new terms of the 8th of March, the matter remained open on both sides. Then came the appellant's letter of 16th March, presenting to the respondents a distinct proposal. This proposal it was incumbent on the respondents to accept or reject. The iron was still under their control, as no part of it had been shipped when they received the letter of 8th March, and the shipping
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After the iron had been thus dispatched the appellant did no act imputing acquiescence in the terms on which the respondents pretended to have shipped it. His first information was derived from the invoice, and he immediately rejected it by his letter of 27th March, and by remitting the amount of the iron at the lower price which he had tendered. Neither was his receiving and retaining the iron an act of acquiescence. As the respondents, instead of returning his drafts, had retained them, and afterwards completed the delivery of the goods by transmitting the bill of lading, they thereby accepted his terms; and at all events the relation into which the parties were brought was merely this, that the respondents, by qualifying that retention of the drafts by their letter of 31st March, reserved to themselves the right of still insisting for the balance, as under a former contract, if they could establish that contract, a right which, without such a qualification, they would have lost. The utmost effect of that letter, coupled with the retention of the money, is, that they were to be bound to acquiesce in the terms of the appellant, and not attempt to void the sale, if they failed in making out the other contract, in which they have failed.
At all events, the appellant was entitled to deduction on account of the deficiency in quantity. He stated this deficiency timeously; but, even if he had not, the principle, that a purchaser must notice defects immediately, applies only where he makes these defects a ground
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Respondents.—The early correspondence between the parties constituted a concluded contract of sale with the appellant; and of this contract the respondents duly fulfilled all the conditions.
The appellant was not entitled to resile from his contract, completed by his letter of 12th February 1827, so long as no general reduction took place in the price of iron. As to shipping, there was no delay of which the appellant has any reasonable cause of complaint.
Although the respondents had not duly fulfilled the conditions of the contract, closed by the letter of 12th February, the appellant is barred from objecting to pay the invoice-price, in respect of his taciturnity and acquiescence, and of his taking possession and disposing of the iron. The objection as to want of quantity is manifestly untenable. The objection, if any did exist, which is denied, should have been made tempestive.—Whitsun and Trustees, 22 Feb. 1828, (6 S. & D. 579
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The question, my Lords, which has led to this expence and litigation is not a very complicated one in itself. It is, first, at what rate these gentlemen are to be allowed to charge, —whether at 8 l. 10 s. and 9 l. 10 s. or 8 l. and 9 l.; and this is the chief question, setting out of view that respecting the quantity. I have no doubt there is an error in the judgment of the Lord Ordinary, which finds that Robertson's objections, in regard to the alleged deficiency of weight of the iron furnished, were neither made at the time nor in the terms requisite (but we do not know what they are, and there is no form of taking objections), to enable him to state them as a competent defence in the present action. Is it no defence to the action, that there was a
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“As I expect you will supply me at such prices —as I will have iron as low from you, for prompt payment, as from the house above alluded to, which I am not at liberty at present to name — I herewith hand you a small addition to my last order, and request you will ship the whole in the course of two or three weeks at most. In case any reduction take place at quarter day next month,” &c.
That looks like saying, I have ordered, but I have not got your answer; I do not know whether it is a concluded bargain; therefore, I now tell you, that it is with express condition of that bargain as to a fall, which had actually taken place. He says, “I expect you will supply me at such prices;” for why should I pay more to you than to others? and upon that understanding I hand you another order, “and request you will ship the
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The House of Lords ordered and adjudged, “That the several interlocutors complained of in the said appeal be, and the same are hereby reversed: And it is declared, That the appellant was properly assoilzied by the interlocutor of the Burgh Court, and was entitled to the expences of process there: And it is further declared, That the said appellant is entitled to have the expences of all proceedings upon the advocation up to and including the said interlocutor of the Lord Ordinary dated the 10th of July 1830; but that the appellant and respondent ought respectively to bear their own expences of the proceedings upon the said advocation in the Inner House, and also the expences of this appeal: And it is further ordered, That the cause be remitted back to the Lords of Session in Scotland, of the Second Division, to give such directions, and to proceed in the said matter as may be necessary to give effect to this judgment.”
Solicitors: Macqueen— Evans, Stevens, and Flower,—Solicitors.
