McCrea v Knight

JurisdictionIreland
CourtQueen's Bench Division (Ireland)
Judgment Date26 Feb 1896

Appeal.

Before FITZ GIBBON, BARRY, and WALKER, L.JJ.

M'CREA
and

KNIGHT

Attorney-General v. Irish SocietyDLTR 26 Ir. L. T. R. 56.

Curley v. GreganUNK [1895] 2 Ir. R. 320.

Hamilton v. BarrUNK 18 L. R. Ir. 297.

Republic of Peru v. DreyfusUNK 55 L. T. (N. S.) 802.

Reynolds v. ColemanELR 36 Ch. D. 464.

Strauss v. GoldschmidtUNK 8 Ir. L. R. 512.

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.

Von. II.] Q. B. & EX. DIVISIONS. 619 M'OREA. v. KNIGHT (1). Appeal. 1896. Practice—Service of writ out of the jurisdiction—R. S. C. I., Order XI., Feb. 25, 26. 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 corÂrespondence 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 ont 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 disÂcretion 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 (1) Before FITZGIBBON, BARRY, and WALKER, LH, 1896—Von. II. 3 B Appeal. aside an order for service of the writ out of the jurisdic 1896. tion. IMRE/. The plaintiffs, M'Crea and M‘Farland, were contractors, v. KBIGHT. residing in Belfast, who, in 1888, had contracted to execute por tion 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 MNaughton, 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 SeptemÂber 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 ls. ld. each, allowing is. each when reÂturned with fair promptitude and in fair order to our works, payÂment, 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 AcqueÂduct, 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 2f 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...

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    ...that the case is a fit, proper and suitable one for determination in this jurisdiction. (Per Fitzgibbon LJ. in McCrea v. Knight [1896] 2 I.R. 619 at 625; Intermetal Group Ltd. v. Worsale Trading Ltd. [1998] 2 I.R. 1 per Murphy J.; Analog Devices B.V. v. Zurich Insurance Co. [2012] 1 I.R. 27......
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    ...that the case is a fit, proper and suitable one for determination in this jurisdiction. (Per Fitzgibbon LJ. in McCrea v. Knight [1896] 2 I.R. 619 at 625; Intermetal Group Ltd. v. Worsale Trading Ltd. [1998] 2 I.R. 1 per Murphy J.; Analog Devices B.V. v. Zurich Insurance Co. [2002] 1 I.R. 27......
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