Behnke v Bede Shipping Company

JurisdictionEngland & Wales
CourtKing's Bench Division
Judgment Date18 January 1927

King's Bench Division

Wright, J.

Behnke v. Bede Shipping Company

Re Blyth Shipbuilding CompanyELR 134 L. T. Rep. 643 (1926) 1 Ch. 494

Laing and Sons Limited v. Barclay, Curle, and Co. Limited 97 L. T. Rep. 816 (1908) App. Cas. 35

Davis v. Phillips 24 Times L. Rep. 4

Parker v. CrispELR 121 L. T. Rep. 598 (1919) 1 K. B. 481

Scheider v. NorrisENR 2 M. & S. 286

Evans v. HoareELR 66 L. T. Rep. 345 (1892) 1 Q. B. 593

Claringbould v. Curtis 1852, 21 L. J. Ch. 541

Hart v. HerwigELR 29 L. T. Rep. 47 L. R. 8 Ch. App. 860

Sale of Goods Act 1893 (56 & 57 Vict. c. 71), ss. 4, 52, and 62.

Sale of ship — Ship a specific chattel within the meaning of the Sale of Goods Act 1893 — Note or memorandum in writing

222 ASPINALL'S MARITIME LAW CASES. K.B. Div.] BEHNKE V. BEDE SHIPPING COMPANY. [K.B. DIV. Jan. 12, 13, 14, and 18, 1927. (Before WRIGHT, J.) BEHNKE V. BEDE SHIPPING COMPANY. (a) Sale of ship-Ship a specific chattel within the meaning of the Sale of Goods Act 1893-Note or memorandum in writing-Specific performance-Sale of Goods Act 1893 (56 & 57 Vict. c. 71), ss. 4, 52, and 62. A ship comes within the definition of "goods " in the Sale of Goods Act 1893 being a " chattel personal" within the meaning of sect. 62, and therefore sect. 4 must be complied with on a contract for its sale. A ship is a specific chattel within sect. 52 of the Act and specific performance is the proper remedy. The defendant company were the owners of the steamship City which they were desirous of selling. Messrs. J. and S. were ship-broken; and brought the vessel to the notice of the plaintiff, a German subject, who, on the 17th Nov. 1926, made a firm offer for the vessel provided the boilers would satisfy the requirements of German law. All negotiations Mere conducted through the medium of the brokers. On the 27th Nov.1926 (a Saturday) the plaintiff wired " City confirmed send contracts." In the meantime the defendants had sent, on the 24th (a) Reported by It. A. YULE, Esq., Barrister-at-Law. ASPINALL'S MARITIME LAW CASES. 223 K.B. Div.] Behnke v. Bede Shipping Company. [K.B. Div. Nov., a pro forma contract to the brokers which was sent to the plaintiff by air-mail and did not reach him till the morning of Sunday, the 28th Nov. On the morning of the 25th Nov. the defendants telegraphed to the brokers expressing a doubt whether the boilers would satisfy the requirements of German law and added " we cannot allow later than Saturday for definite acceptance of steamer on terms of contract posted yesterday." The brokers obtained an extension of time till the afternoon of Monday, the 29th Nov., and on that day telegraphed to the plaintiff: " Owners must have your telegraphic acceptance of contract sent our letter 25th before four o'clock to-day otherwise will accept an offer by others who are waiting your reply telegraph instantly whether you agree contract which please sign and post to-day sure to us along with deposit." The plaintiff received this telegram at 1.40 p.m. German time and in reply at once sent the following telegram: " City accept contract deposit posted," and sent by post the same day the contract duly signed together with a cheque for the deposit. The brokers communicated the contents of plaintiff's reply by telephone to the defendant company about 2.50 p.m. The defendant company, however, had accepted a firm offer elsewhere though in law there was no contract between them and the other buyers. They therefore refused to give any instructions regarding the deposit and repudiated the contract with the plaintiff. The plaintiff issued the writ in the action on the 24?? Dec. 1926 and claimed specific performance of the contract by delivery of the ship to him. The defendants pleaded that no binding contract had been reached and alternatively that if there were a binding contract it was not enforceable by reason of sect. 4 of the Sale of Goods Act 1893, inasmuch as there was no sufficient memorandum, that a ship was not " goods " and even it were so held there could be no specific performance on the sale of a ship under sect. 52. In reply it was contended on behalf of the plaintiff that the deposit was a part payment within sect. 4 of the Act and also that the correspondence formed a sufficient note or memorandum for the purposes of the section. The facts and arguments appear sufficiently from the headnote and judgment. Langton, K.C. and Carpmael for the plaintiff. Miller, K.C. and Sir Robert Aske for the defendants. Cur adv. vult. Jan. 18, 1927.-The following written judgment was delivered by Wright, J.-This is an action tried before me on the 12th Jan. 1927 without pleading under an order of the vacation judge, dated the 5th Jan. last. The plaintiff, a German shipowner...

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