McCarthy, Rinn gan

Judgment Date21 November 1925
Date21 November 1925
CourtSupreme Court (Irish Free State)
Macauley v. Horgan
HENRY JAMES MACAULEY and CECIL JAMES CULLEN,Trading as the Smithfield Wool Company
T. J. HORGAN, Defendant (1)

Sale of Good - Contract contained in telegrams - No time fixed for delivery - Delivery and payment concurrent conditions - Seller wrongfully refusing to deliver goods - Measure of damages - Difference between contract price and market price at time of refusal to deliver - Absence of available market at place of delivery - Sale of Goods Act, 1893 (56 & 57 Vict c. 71), sects. 28, 51.

Trial of Action.

The plaintiffs, who were wool merchants of Smithfield, in the City of Dublin, claimed damages for non-delivery of wool by the defendant, who was a merchant carrying on business at West Main Street, Cahirciveen, in the County of Kerry. Plaintiffs' statement of claim set out that it was agreed by and between the plaintiffs and defendant that the defendant should sell to the plaintiffs five tons of greasy wool at the rate of 71/2d. per lb. and five tons of washed wool at the rate of 9d. per lb., to be delivered by the defendant to the plaintiffs, and to be paid for on delivery; and that the defendant did not deliver the wool to the plaintiffs, whereby the plaintiffs had been deprived of the profits which would have accrued to them from the delivery of the same. And they claimed £500 damages. The defendant in his defence denied the making of any agreement, but, admitting for the purposes of this portion of his defence that he agreed to sell and deliver wool to the plaintiffs, he said it was a term of the agreement that the plaintiffs should send down a man to his premises at Cahirciveen to sort, weigh, and pack the wool, and pay for the same before delivery. That the plaintiffs neglected and refused to send down a man to sort and pack the wool, or to pay for the same in pursuance of the said agreement. That by reason of the plaintiffs so neglecting and refusing he (the defendant) said that the plaintiffs put an end to the agreement, and that he was accordingly absolved from all liabilities. Alternatively, the defendant said that by reason of the plaintiffs' neglect and refusal to send down a man to his premises to sort and pack the wool the plaintiffs treated the contract as rescinded, and, therefore, led the defendant to believe that the contract was rescinded. He denied that the plaintiffs had suffered any damage.

The contract, the plaintiffs contended, was contained in certain telegrams which passed between the plaintiffs and defendant. On the 25th October, 1923, the defendant telegraphed to the plaintiffs offering them five tons each of greasy wool at 71/2d. per lb. and five tons of washed wool at 9d. per lb., F.O.R. at Cahirciveen, County Kerry. On the same day the plaintiffs telegraphed to the defendant to post samples of the wool and to hold bulk for their approval. Defendant telegraphed in reply the next day stating that the quality was the same as last year, that others were offering, and the matter was urgent, and that samples had been posted. On the same day the plaintiffs telegraphed in reply: "Wire received. We accept five tons each greasy, washed, 71/2 and 9. Wire confirmation." And on the same day the defendant replied: "Will accept. Writing. Post confirmation." On the same day also the defendant wrote to the plaintiffs enclosing samples of the wool, and stating that, if the plaintiffs purchased, the defendant thought it would be more satisfactory for each party if the plaintiffs sent down a man and had the wool sorted at his premises at Cahirciveen, as he had had a large store built, and there was plenty of room to work. He then quoted the prices of the wool, and asked the plaintiffs to wire confirmation. These telegrams and this letter together with the other material letters are fully set out in the judgment of Sullivan P.

In October, 1923, defendant wired to plaintiffs, who were wool merchants in Dublin, offering them wool, and plaintiffs...

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