Bolckow and another v Seymour and Others
| Jurisdiction | England & Wales |
| Judgment Date | 20 April 1864 |
| Date | 20 April 1864 |
| Court | Court of Common Pleas |
English Reports Citation: 144 E.R. 43
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
[107] bolckow and another v. seymour and otherw. April 20th, 1864. Where a contract is to be made out partly by written documents and partly by parol evidence, the whole becomes a question for the jury.-A. having entered into a contract for the supply of iron rails for Vera Cruz, applied to B. & Co., ship-owners and brokers, to procure vessels to carry it thither; whereupon B. & Co. on the 19th of November wrote to A.,-" We hereby engage to find tonnage for about 5000 tons of rails to load at M. for Vera Cruz, subject to the following conditions, viz. 1000 tons to be delivered at Vera Cruz in three months from this time, and 1000 tons per month afterwards," &c. After a long correspondence and several interviews as to the class of vessels to be chartered, and the flag, B. & Co. on the llth of December wrote to A. as follows,-"Our engagement to procure tonnage for Vera Cruz is the letter addressed to your Mr. B. on the 19th November; and, in accordance therewith, we are arranging to take up vessels for the first shipment of 1000 tons. We cannot restrict ourselves to vessels of any particular flag or class, but will of course give a preference to neutral ships of high class." On the 15th of December B. & Co. wrote to A. saying that they would prefer abandoning the contract altogether. And afterwards on the same day A. wrote,-" We accept your offer of the 12th November last, coupled with the. initialled offer of the l&th. Messrs. E. hold us to our contract, and therefore we must hold you to yours, and cwmot consent to your adandonintf it an intimated :"-Held, that these letters did not constitute a complete contract, but that recourse must be had to parol evidence; and, consequently, that it was properly left to the jury to say whether or not a binding contract as alleged in the declaration was to be inferred from to the whole. This was an action for the alleged breach of a contract to find tonnage for th$ conveyance of a quantity of iron-rails from Middlesborough to Vera Cruz. The declaration stated that, before the making of the agreement thereinafter mentioned, the plaintiffs were iron-masters at Middlesborough, and had obtained and entered into and were under a certain contract with certain persons to supply and 44 BOLOKOW D. SEVMOtm 17 C. B. (N. S.) 108. deliver at Vera. Cruz, on behalf and for the use of the French government, 5000 tons of icon-rails, on the terms, amongst others, following, that is to say, 1000 tons of the said rails to be delivered at the latest within three mouths from the :Hst of October, 1862, 1000 tons in the course of the following month, and so on at the rate of 1000 tons a month until complete delivery ; and, if the deliveries of the rails should not be effected at the times fixed as before mentioned, there would be withheld by the said French government from the contractor, as an indemnity simply for the sole act of delay, and without prejudice for damage and claims, 5 per cent, per month upon the valfte of the rails delayed, for the delay,-of all which premises the defendants were informed and had due notice before and at the time of the making of the agreement by them with the plaintiffs as therein-[108] after mentioned : and thereupon, in order to enable the plaintiffs to complete their said contract and deliver the said rails at Vera Craz aforesaid, and on the terms and at the times aforesaid, it was agreed between the plaintiffs and the defendants that the defendants would find tonnage for about 5000 tons of rails to load at Middlesborough aforesaid for Vera Cruz aforesaid, and would deliver 1000 tons of the said rails at Vera Cruz within the three months aforesaid, and 1000 tons of the said rails per month afterwards till the delivery be completed ; the rails to be brought free alongside and taken free from ships; half the freight to be payable on shipment at Middlesborough-on-Tees, and the other half in London, on production of the certificate of proper delivery of the cargo at Vera Cruz : the freight to be 32s. 6d. per ton : Averment, that all things happened and all conditions were fulfilled, and all times elapsed, necessary to entitle the plaintiffs to a delivery of the said rails according to and at the place and at the times mentioned in the said agreement: Breach, that the defendants did not deliver 1000 tons of the said rails or any part thereof within the three months aforesaid, or within a reasonable time thereafter, and did not deliver 1000 tons of the said rails or any part thereof per month afterwards, nor within reasonable times thereafter ; whereby the plaintiffs had lost and been deprived of the sum of 10441. withheld by the French government, according to the terms thereinbefore mentioned, as an indemnity simply for the sole aot of delay, and without prejudice for damage and claims, and which said sum of 10441. does not exceed 5 per cent, per month on the value of the rails delayed: and that the defendants did not h'nrl tonnage for the whole of the said rails at Middles-borough, but at Sunderland ; whereby the plaintiffs incurred and became liable to pay, and were [109] obliged to pay, a larger sum of money for extra insurance, and in the conveyance of the said rails from Middlesborough aforesaid to Sunderland aforesaid : and that the defendants did not deliver 1000 tons per month of the said rails, but delivered in a period much less than a month, and in much shorter intervals than a month, much larger quantities of the said rails than 1000 tons, whereby the difficulties of unloading the same at Vera Cruz were greatly increased and heightened, and great extra expenses were necessarily incurred in obtaining extra labour in and about the said unloading, and also in the payment of demurrage, which the plaintiffs became liable to an4 had been obliged to pay : Claim, 20001. The defendants pleaded,-first, a denial of the...
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