Ross, Bros.Ltd, Plaintifts, v Edward Shaw & Company, Defendants
| Jurisdiction | Ireland |
| Judgment Date | 15 January 1917 |
| Date | 15 January 1917 |
| Court | King's Bench Division (Ireland) |
K. B. Div.
CASES
DETERMINED BY
THE KING'S BENCH DIVISION
OF
THE HIGH COURT OF JUSTICE IN IRELAND,
AND ON APPEAL THEREFROM IN
THE COURT OF APPEAL,
AND BY
THE COURT FOR CROWN CASES RESERVED.
1917.
Contract — Delivery as required — Reasonable time for Delivery — Custom — Foreign Goods — Option to purchaser to select Grades — Contract dependent on Vendor's contract with foreign producer — Country of origin of goods becoming Enemy Territory — Trading with Enemy — Vendor's contract with producers made illegal — Illegality of performance of Contract sued on — Reasonable time for completion — Repudiation by Vendor.
In a contract in writing for the sale and delivery “as required” of goods, of which the vendor is not producer, and which are known to both parties to be the spin of particular mills, where the purchaser has the choice of numerous varieties of the contract goods, a trade custom that delivery need not be made until a reasonable time to enable the vendor to obtain the goods from the particular mills has elapsed from the receipt of the purchaser's specification, is not an unreasonable custom; nor is such a custom repugnant to or inconsistent with the written terms of such a contract, being explanatory of what is the reasonable time for delivery.
Such a contract must be read as incorporating the custom, and as made expressly in relation to the place of origin of the goods, and therefore as implying that the vendor can legally obtain the goods from the particular mill when the purchaser delivers to him his specification therefor. In this respect, where the vendor is not the manufacturer, the contract for sale and delivery is related to and dependent upon the vendor's contracts with the producers, and the legal possibility of the performance of such latter contracts.
Where a contract for the sale and delivery of foreign goods is made between a British vendor and a British purchaser, and, during its continuance, the country where the goods are manufactured becomes enemy territory by hostile occupation, trading with persons in which is forbidden to British subjects by the laws of the realm, the vendor (if he has not the goods in his possession) may legally refuse to deliver on the ground that to obtain the specified goods is not then legally possible.
Where a contract for sale and delivery “as required” of goods is silent as to time, the law will imply that the specification requiring delivery must be made within a reasonable time after the contract; also, that the contract must be completed within a reasonable time after specification, and such reasonable time for delivery may be explained and controlled by a trade custom or usage.
Where a reasonable time for the completion of the contract has elapsed, and the country where the goods are produced is enemy territory trading with persons in which is illegal, the vendor may repudiate the contract without being obliged to offer delivery of the goods to the purchaser.
Jones v. Gibbons, 10 Ex. 920, considered and distinguished.
Motion for Judgment.
Motions by the defendants and plaintiffs, dated respectively the 13th of September, 1916, and 9th of October, 1916, for judgment.
The plaintiffs, a firm of weavers in Belfast, brought an action against the defendants, yarn merchants in Belfast, for damages for breach of two contracts, dated 4th of March, 1914, and 10th of April, 1914, for the sale and delivery by the defendants to the plaintiffs of certain specified yarns.
The contracts on which the action was brought were called in the trade “open” contracts. Each contract was in writing and in identical terms, and each was for the sale and delivery “as required” of 5004 bundles of yarn, 32, 35, and 40 leas, marked “L. S.” or “17,” at the price of 6s. 101/2d., 6s. 6d., and 6s. per bundle respectively. The numbers 32, 35, and 40 represented different qualities, from any one or more of which the purchaser was entitled to choose. The marks “L. S.” and “17” represented respectively the “spin” or produce of particular mills, both of which mills were Belgian. “L. S.” represented the “spin” of the “Société Anonyme de La Lys,” of Ghent, and “17” the “spin” of the “Société Anonyme Linière La Liève,” of Ghent. The defendants, as yarn merchants, bought yarns from various mills, and sold them to weavers. The breach alleged was failure to deliver on the 8th and 11th of October, 1915.
The main defence relied on was that, by the general and notorious custom of the yarn trade in Belfast, in accordance with which the contracts were made, it was a term of the contracts that the defendants had not to order forward from the manufacturers in Belgium the yarns required to be delivered under the contracts to the plaintiffs, unless and until the plaintiffs had sent or given to the defendants a specification stating of what number of bundles of each kind of the contract yarn the plaintiffs required delivery, and during the continuance of the contracts, and before any breach by the defendants, and before the plaintiffs had sent any such specification, the King's enemies took and had retained possession of all the factories of the producers of the contract yarn, and had prevented the yarns from being manufactured or conveyed to Ireland, and that the performance of the contracts by the defendants had been rendered impossible. The plaintiffs contended that such custom did not in fact, and could not legally, exist.
The action was tried before Lord Justice Molony and a special jury of the county of the city of Belfast on the 3rd, 4th, and 5th of August, 1916. The writ in the action was issued on 31st of January, 1916. Mr. Frederick Shaw, the sole representative of the defendant firm, gave evidence to show that prior to the occupation of Ghent by the Germans on 13th of October, 1914, he had fulfilled all orders, the supply of substitutes “D. D. X.” and “S. W.,” on September 16th and 23rd, 1914, being accepted by the plaintiffs; that the last specification received in 1914 was on 5th of October; that in October, 1914, either on the 20th or 27th, he had told the plaintiffs' manager that it was impossible to get “L. S.” or “17,” and that in June, 1915, he had repudiated the contract. The plaintiffs' manager, Mr. Watson, in his evidence stated that Mr. Shaw had from time to time stated that he could not get the yarns, and when he could get it he would supply the plaintiffs; that there was no repudiation of the contract in October, 1914, and that in June, 1915, Mr. Shaw had refused to supply either the contract yarns or substitutes. He admitted he contracted for the supply of Continental yarn. Evidence was given by the defendants' witnesses with relation to the custom alleged in the defence, and also as to the reasonable time for the completion of such open contracts, which was stated to be twelve months. The plaintiffs' counsel objected to the admission of the evidence as to the custom, on the ground that the custom alleged was inconsistent with and repugnant to the contracts, and was unreasonable; they also objected to the admission of the evidence as to the reasonable time for completion. The learned judge admitted the evidence as to the custom, holding that the question of its reasonableness was for the jury, and that the question of repugnancy was open for further discussion: he also admitted the evidence as to reasonable time for completion, subject to the consideration of Jones v. Gibbons (1), with which he was inclined to agree. At the close of the defendants' case, the plaintiffs' manager and other witnesses
were called to rebut the evidence of the alleged custom. The defendants entered a memorandum from the Secretary of State, stating that Ghent was occupied by the Germans on 13th of October, 1914.The following were the questions submitted to the jury, with their answers thereto:—
“1. Did the defendants on 27th of October, 1914, repudiate and refuse to carry out the contracts?” Answer— “No.”
“2. Did the defendants in June, 1915, repudiate and refuse to carry out the contracts?” Answer— “Yes.”
“3. Did the defendants on 11th of October, 1915, repudiate and refuse to carry out the contracts?” Answer— “Yes.”
“4. Had a reasonable time for the performance of the contracts expired before (a) 27th of October, 1914?” Answer-“No” “(b) June, 1915?” Answer— “Yes.” “(c) 11th of October, 1915?” Answer— “Yes.”
“5. Is there accustom in the yarn trade in Belfast that in an open contract for the sale of yarn (such as in the present case) the merchant is not bound to get the goods into his possession until he receives a notice from his customer of the quantity, mark, and number he requires, and a reasonable time has elapsed to enable the merchant to get the goods forward from the mill?” Answer— “Yes.”
“6. Was it possible for the defendants on 27th of October, 1914, or within a reasonable time afterwards, to procure yarn to comply with the contract (a) from Belgium?” Answer— “No.” “(b) In the open market?” Answer— “No.”
“7. If the contracts were broken on 27th October, 1914, and the plaintiffs are entitled to recover, assess damages.” “£640 15s. 7d.”
“8. If the contracts were broken in June,1915, and the plaintiffs are entitled to recover, assess damages.” “£1039 2s. 2d.”
“9. If the contracts were broken on 11th October, 1915, and the plaintiffs are entitled to recover, assess damages.” “£1420 2s. 2d.”
The learned judge's note concluded as follows:—
“Henry K.C.: ‘I ask for a direction that the evidence of the alleged custom is not admissible to contradict a written document, and that the alleged custom as proved has none of the requisites of a valid custom. The defences as to the impossibility of delivery are no answers to a pre-war contract of this description.’ Bates K.C. adds, that assuming the custom to be proved, it does not afford a legal defence to the action. I refused to direct. I state the questions I intend to leave to the jury...
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