McCrea v Knight

• Jurisdiction: Ireland
• Judgment Date: 26 February 1896
• Court: Queen's Bench Division (Ireland)
• Date: 26 February 1896

M'Crea

and

Knight (1).

Appeal.

CASES

DETERMINED BY

THE QUEEN'S BENCH AND EXCHEQUER DIVISIONS

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1896.

Practice — Service of writ out of the jurisdiction — R. S. C. I., Order XI., Rule 1 (f) — Contract made within the jurisdiction — Discretion of the Court of first instance.

The plaintiffs were contractors in Belfast, and the defendants were cement merchants in London. In September, 1888, M., a broker, who had an office in Belfast, called on the defendants in London to negotiate for a supply of cement, to be delivered to the plaintiffs in the north of England, for some works, to be executed in England, upon which they were engaged. Some correspondence between plaintiffs and defendants ensued, in which some minor details of the proposed contract were discussed. M. (who, as the Court held, had the plaintiffs' authority to do so), on the 10th September, had an interview with the defendants in London, when he announced that the plaintiffs would agree to the defendants' terms, and orally accepted, on the plaintiffs' behalf, the offer made by the defendants; but it was contemplated by both parties and by M. that there should be a written contract, either of a formal character, as suggested by the plaintiffs and M., or an acceptance in writing of a letter addressed by the defendants to the plaintiffs, which the defendants considered would be sufficient. In the result the plaintiffs wrote from Belfast on the 15th September to the defendants, accepting their offer (setting out specifically the terms agreed to by M. on the 10th). The defendants supplied cement to the plaintiffs until 1890, when they suspended the delivery, alleging that they were entitled, under the contract, to spread the delivery over a period of three years. The defendants alleged that this was a breach of the contract, and obtained leave from the Queen's Bench Division in Ireland to issue and serve a writ on the defendants out of the jurisdiction:—

Held, by the Court of Appeal, (1) affirming the Queen's Bench Division, that the contract was made in Ireland, within the meaning of R. S. C. I., Order XI., Rule 1 (f); (2) that the Court of Appeal ought not to interfere with the discretion of the Court of first instance in allowing service out of the jurisdiction, unless it was manifest that the discretion had been wrongly exercised.

Semble, however, per FitzGibbon, L.J., that the balance of convenience in the present case was in favour of a trial in England.

Appeal from an order of the Queen's Bench Division, dated the 28th January, 1896, refusing the defendants' motion to set

aside an order for service of the writ out of the jurisdiction.

The plaintiffs, M'Crea and M'Farland, were contractors, residing in Belfast, who, in 1888, had contracted to execute portion of the waterworks at Thirlmere, for supplying Manchester with water. The defendants, Knight, Bevan, and Sturge, were cement manufacturers in London. On the 30th August, 1888, one M'Naughton, a broker, wrote from Belfast to the defendants, offering to act as agent for the defendants in the sale of cement, and stating that a friend of his was about to contract for 12,000 tons for delivery at an English port, and if they would be willing to quote through him, and allow the usual commission, he thought he could get them the order. In consequence of this the plaintiffs and defendants entered into correspondence. On the 6th September the defendants wrote to the plaintiffs—“We are prepared to offer 8000 tons of our Portland cement, spread over three years, deliverable into your vessels at our works at in sacks, at 26s. per ton, sacks in addition 1s. 1d. each, allowing 1s. each when returned with fair promptitude and in fair order to our works, payment, cash without discount.” On the 8th September the plaintiffs replied:—“We accept your offer to supply us all the Portland cement we may require in the construction of Thirlmere Acqueduct, Contract No. 5, … on the following conditions, … sacks shall be charged for at 6d. until they are returned.… The price f. o. b. at London shall be 26s. per ton. Settlements to be made monthly. In monthly settlements it is the custom of the trade to allow 2¹/₂ per cent. off, and we think you should concede this. The cement to be loaded at such times, and in such quantities, as we may require to.”

On the 10th September the defendants wrote, declining to modify their original tender. After the letter was written, and before it was posted, M'Naughton called on the defendants, with a telegram, stating that he was authorised to close the contract. M'Naughton had telegraphed to the plaintiffs:—“Have seen Bevan. No chance of them conceding either bag or discount question. Think you should authorise me to close at price quoted, they guaranteeing specification, you option, supplying own bags. Wire M'Crea's reply.” To which an answer was received from

M'Clean, a clerk in M'Naughton's office in Belfast, to M'Naughton in London:—“Close on best terms. Still think should concede bags. M'Crea authorise you.”

In consequence of these telegrams the defendants added a postscript to their letter:—“Since writing the above Mr. M'Naughton has called upon us, and informs us that he has exchanged a telegram with your...