Anglo-African Shipping Company v J. Mortner Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SELLERS,LORD JUSTICE DANCKWERTS,LORD JUSTICE DIPLOCK |
| Judgment Date | 07 June 1962 |
| Judgment citation (vLex) | [1962] EWCA Civ J0607-1 |
| Date | 07 June 1962 |
| Court | Court of Appeal |
[1962] EWCA Civ J0607-1
In The Supreme Court of Judicature
Court of Appeal
(From: Mr. Justice Megaw – Middlesex)
Lord Justice Sellers
Lord Justice Danckwerts and
Lord Justice Diplock
Mr. M. A. B. KING-HAMILTON. Q. C. and Mr. ARON OWEN (instructed by Messrs. H. Fishman & Co) appeared on behalf of the Appellants (Defendants).
Mr. JOHN DONALDSON, Q. C. and Mr. FREDERICK HALLIS (instructed by Messrs. Barnett, Janner, Davis & Janner) appeared on behalf of the Respondents (Plaintiffs).
This is an appeal by the defendants from a judgment of Mr. Justice Megaw in favour of the plaintiffs for £4,414. 14s. lOd. and costs. The defendants are woollen merchants in London. The plaintiffs carry on business as a confirming house in New York and have an associated company in London who act as their agents. In the autumn of 1960, through an intermediary, a Mr. Lee, the defendants became interested in the purchase of some clothing material, plastic vinyl sheeting, manufactured by the Republic Polytex Company Incorporated of New York, and when in the negotiations it became known to the defendants that the plaintiffs would confirm an order with the suppliers and pay for the goods and give some extended credit to the defendants and also act as shipping and forwarding agents in respect of the transaction the defendants decided to place an order. The facts are clearly and fully found in the judgment and I only refer to such as seem necessary to explain my views on the appeal.
By an order in writing No. 2266 dated the 24th November, 1960, addressed to Republic Polytex Co. Inc. of New York but handed to the plaintiffs' London agents, the defendants ordered 5,000 yards of vinyl ("your quality No.", referring to the Polytex Company) at 2.03 dollars less 1 per cent. F. A. S. New York. Five colours were required of 1,000 yards each in accordance with patterns attached. Delivery requested was 2/3 weeks ordinary freight through to Nine Elms c/o Anglo-Overseas. At the foot of the order, before the printed "conditions of purchase order", there was inserted "To be confirmed by Anglo-African Shipping Company".
On the 29th November, 1960, in pursuance of the defendants' request, the plaintiffs ordered in writing in their own name from Republic Polytex Company New York 5,000 yards 54-inch plastic vinyl sheeting, being 1,000 yards in five different colours at 2.03 dollars per yard. A standard F. O. B. contract form was used and adapted to the sale Opposite the printedheading "SHIP to" was inserted "Bill and hold for shipping instructions". It was agreed that "Bill" meant invoice. Under "TERMS", "1 per cent. 10 days against commercial invoices and packing list. F. A. S. point New York". Under "Delivery required'; "Within 2/3 weeks. IN ONE LOT". Clients' Order Number was given as 2266 dated 24th November, 1960, and the clients' name J. Mortner Limited., London, 5648.
A copy of the plaintiffs' order to the Polytex Company was sent to the defendants in these terms: "This is a copy of a firm order sent to suppliers for your account and can only be modified or cancelled with supplier's consent".
On the 30th November, 1960, the Polytex Company accepted the order. No comment on the terms was made to the plaintiffs by the defendants.
Whether the printed terms of the defendants' order, including "Time shall be the essence of the contract", were intended to apply to a delivery of 2/3 weeks, which in form might be said to be somewhat unspecific, they were not incorporated in the order to the suppliers, but nothing turns on that as the parties agreed at the trial that the goods had to be delivered by the suppliers by the 21st December. The place of delivery, "F. A. S. New York", in association with the time of delivery, has given rise to controversy.
The judgment finds that the goods were ready in the hands of the suppliers for delivery F. A. S. New York not later than the 21st December, that an invoice dated the 20th December specifying the goods in their packages in detail was received by the plaintiffs on the 21st December, but that no shipping space had been reserved and notified to the suppliers to have enabled them to deliver the goods F. A. S. New York by that date. The goods were so delivered about a week later and arrived in England very little, if any, later than they would have done if they had been shipped by one of two possibly available ships towards the end of the contract period, neither of which was voyaging direct to Southampton, the port stipulated by the defendants in their orderby "through to Nine Elms".
In the meantime on the 19th December the plaintiffs received from the defendants a telegram dated the 18th December seeking to cancel the order on the ground that the goods were too late for their requirements.
If the defendants had been right in so cancelling all would have been well for them but it was found by the learned judge, if not conceded in the course of the trial, and accepted before us that the defendants were mistaken in taking the period for delivery from the 24th November and that the suppliers had until the 21st December to deliver, that is three weeks from the date of the suppliers' acceptance on 30th November.
The defendants' purported cancellation of the contract could not be passed on by the plaintiffs because they had made themselves liable to the suppliers for the purchase of the goods, the time for delivery had not expired, the plaintiffs knew of no ground to justify cancellation and the suppliers were unwilling to agree to cancel.
The claim for which judgment was given was made up the loss on the sale of the goods elsewhere and the plaintiffs' expenses in connection with their services and their overall agreed commission of 3 per cent.
On appeal to this court it was submitted that: (1) Contrary to the learned judge's finding, the suppliers had not had the goods ready within the contract period and therefore could not have delivered in time and the plaintiffs should not or need not have accepted them later. (2) The plaintiffs failed in their duty to the defendants in their capacity as a confirming house or as shipping and forwarding agents in that they did not reserve shipping space so that the suppliers could have delivered alongside a ship bound for Southampton before the 21 days had expired.
The invoice dated the 20th December gave details of the packing, weight, yardage and contents, which could only arise on the goods being packed. It was not contended at the trial or here that this detailed invoice was not the one on which the goodswere eventually sold and shipped and in itself it refutes the appellants' submission that the suppliers had not the goods ready and available. The argument was based mainly on the fact that some further samples which the defendants requested were not forwarded by the suppliers until the 29th December and on the absence of any witness from the suppliers to explain the delay or to say affirmatively that the goods were ready. The samples which were sent would normally be taken before the goods were packed and that would be before the invoice was made out. What-ever the explanation for the delay was, the fact of the delay is too slender evidence to justify a finding that the goods were not ready and that the invoice was not genuine, and the learned judge's rejection of this submission and his affirmative finding that the goods were available in time must be upheld.
The more difficult point arises under the second ground of appeal. The plaintiffs had agreed to confirm the order as requested by the defendants on Order 2266 and also to act as shipping and forwarding agents. In these circumstances there was nothing for the defendants to do to enable the suppliers to fulfil their contract. Whatever had to be done had to be done by the plaintiffs either as principals in relation to the suppliers or as agents for the defendants as buyers.
The relevant duty of the suppliers was to deliver the goods at New York, alongside a vessel named by the buyer within the period agreed upon. I see no good reason under the transaction in this case for requiring the suppliers to deliver earlier than the last day. One of the colours ordered, green, was a special order not in the range of colours submitted for choice and there is nothing expressly to indicate that the suppliers were obliged to bring the goods alongside a ship at the end of two weeks or earlier than the end of three weeks and the inference would be to the contrary. The buyers' duty was to reserve appropriate space on board a ship and give the suppliers adequate notice of the ship, its loading berth and time of delivery alongside and date of sailing.
In the circumstances of this case the mutual obligations to fulfil the bargain required careful adjustment and close cooperation and depended on the availability of shipping space. Even in a large port like New York it did not necessarily follow, I should have thought, that the shipping space could be available within such a limited period of time, but there were, as I have said, possibly two vessels which might have served though neither was directly bound for Southampton. The plaintiffs however made no arrangements within the period and the suppliers delivered as soon as shipping space was notified. They had "billed", that is invoiced, the goods in time and held for shipping instructions. If the suppliers wished to deliver, therefore, the plaintiffs as buyers were obliged to take the goods or pay damages for non-acceptance, which is the basis of the present claim against the defendants, the plaintiffs having paid as they had agreed to do the purchase price to the suppliers.
Although an argument was founded on the provision "Bill and hold for shipping instructions" I do...
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