Bannerman v White and Others
| Jurisdiction | England & Wales |
| Judgment Date | 12 June 1861 |
| Date | 12 June 1861 |
| Court | Court of Common Pleas |
English Reports Citation: 142 E.R. 685
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
S. C. 31 L. J. C. P. 28; 4 L. T. 740; 8 Jur. N. S. 282; 9 W. R. 784. See Wallis v. Pratt, [1910] 2 K. B. 1009; [1911] A. C. 394.
[844] bannerma.n v. white and others. June 12th, 1861. [S. C. 31 L. J. C. P. 28; 4 L. T. 740; H JUr. N. S. 282; 9 W. R. 784. See Wattix v. Pratt, [1910] 2 K. B. 1009; [1911] A. C. 394.] Upon a treaty for the sale of hops (by sample), the proposed buyer asked the seller if any sulphur had been used in the growth or treatment of them, adding that he would not ask the price if sulphur had been used. The seller thereupon asserted that no sulphur had been used.-After the hops had been inspected, weighed, and delivered, the buyer discovered that sulphur had been used in the cultivation of a portion of the hops,-5 acres out of 300.-The whole growth, however, was so mixed up together that it was impossible to separate the sulphured from the unsulptwred hops.-The jury having found that the representation had been made, and was false (but without fraud), and that the buyer had entered into the contract entirely on the faith of that representation:-Held, that the representation amounted to a condition, and therefore that the buyer was entitled to repudiate the contract. This was an action brought to recover the sum of 813501. 16s., being a moiety of the price of certain hops sold and delivered by the plaintiff to the defendants. The defendants pleaded,-first, that the defendants were induced to buy by the false and fraudulent representation of the plaintiff at the time of the sale that no sulphur had been used in the growth of the hops,-secondly, that they did not pro mise as alleged. The cause was tried before Erie, C. J., at the last Spring Assizes at Maidstone, (a) See May v. Hawkins, 11 Exch. 510, and the cases collected in Day's Common Law Procedure Acts, pp. 226 et se j. 086 BA.NNERMAN 7?. WHtTE 10 C. B. (N. S.)8. when the following facts appeared in evidence :-The plaintiff is a well-known hop-grower in the county of Kent; the defendants are hop-merchants in London. A few years ago, sulphur had been used to a great extent in the cultivation of hops; and in 1854 the Burton brewers, becoming impressed with a notion that the quality of their beer had become thereby deteriorated, refused to buy any more hops which had been so'treated. The hop-merchants thereupon sent a circular round to the growers, giving thfem notice of this objection, and stating that they would not in future purchase any hops without a guarantee that no sulphur had been applied to them. With a knowledge of this fact, the plaintiff, in October, LiS( 0, offered the defendants his growth of that year,-the defendants having been the purchasers of that of the preceding year. Samples were produced in the usual way at the factor's in London, and, before the price was mentioned, the defendants inquired of the plaintiff if any sulphur had [845] been used in the treatment of the hops that year. To this the plaintiff, according to the evidence of the defendants' witnesses, answered " No;" and the defendant White added that he would not even ask the price if any sulphur had been used. The evidence of the plaintiff's witnesses upon this point was, that the plaintiff, when asked if any sulphur had been used, said that " there was no mould thia year, and therefore no occasion to use any sulphur : " hut they did not recollect hearing the defendant White say that he would not ask the price if any sulphur had been used. The parties then proceeded to discuss the price; and ultimately the defendants agreed to put the hops, the price to he paid, one half on the first of February, the other on the I st of March following. At the time of the purchase, the plaintiff gave the defendants the following guarantee :-." I hereby guarantee Messrs. Wigan, White, & Wigans against any Loss by my 1860 hops through the mode of treatment on the poles or curing, and hold myself liable to pay them any damage caused them thereby." The hops, which corresponded with the samples, were accordingly sent to the defendants' warehouse on the 24th of October, and were weighed on the 26th in the presence of the seller and of the buyers, -the amount agreed to between them being 19,7011. 12s. The defendants, having subsequently discovered that sulphur had been applied to a portion of the hops, wrote to the plaintiff on the 4th of December repudiating the contract. It was proved that sulphur had been used to about five acres of the hops, the whole growth being three hundred acres, and that the whole of the hops, both sulphured and unsulphured, had been mixed together. Et appeared that the plaintiff, having purchased a new machine called a sulphurater, had been desirous of trying it, and so had used a small [846] portion of sulphur to the five acres whilst the hops were under cultivation. Thia circumstance he had forgotten or had thought unimportant when discussing the terms of the contract with the defendants. ; On the piirt of the defendants, it was submitted that the absence of the use of sulphur was expressly made by them a condition of their entering into the contract. For the plaintiff, it was insisted that the affirmation that no sulphur hod been used wfes no parti Of the contract, but a mere representation, not wilfully false, and not ajbouriting txi a warranty; and that, the contract being for the purchase of a specific article, in thb absence of a warranty or fraud, the buyers were bound. Two questions were left to the jury,-first, whether the plaintiff' had wilfully made a false representation at the time of the contract, that no sulphur had been used,-secondly, whether the affirmation that no sulphur had been used in the growth at the hops was understood and intended by the parties to be a part of the contract, and a warranty to that effect. The jury answered the first question in the negative, and the second in the affirmative : and theyjassessed the deterioration in market value of the hops by reason of the use 0! the sulphur at 40001. ' The learaed judge thereupon directed a verdict to be entered for the defendants, reserving leave to the plaintiff' to move to enter it for him for (i3501. IGs. if the c mrt should be of opinion that the representation above mentioned was no part of; the c6ntract. j I Luah, Q.JC., in Easter Term last, obtained a rule nisi accordingly, on the ground tjiat the stipulation that no sulphur had been used in the growth of the hops did not atnount to a condition that the hops [847] might be rejected if sulphur had beien used. He referred to Street v. Blay, 2 B. & Ad. 45G, and the notes to Cutter v. Pmvell, 10=0. B. (N. S.)848. BANNERMAN V. WHITE 087 '2 Smith's Leading Cases, 4th edit,, 23. He also submitted, that it was too late to...
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