Charles Rickards Ltd v Oppenhaim
| Jurisdiction | England & Wales |
| Date | 1950 |
| Year | 1950 |
| Court | Court of Appeal |
Contract - Sale of goods or work and labour done - Time of essence - Expiry of time - Waiver by purchaser - Subsequent notice requiring completion in reasonable time - Time again of the essence.
Where, as a condition of its performance, time is of the essence of a contract for the sale of goods and, on the lapse of the stipulated time, the buyer continues to press for delivery, thus waiving his right to cancel the contract, he has a right to give notice fixing a reasonable time for delivery, thus making time again of the essence of the contract, which, if not fulfilled by the new time stipulated, he will then have the right to cancel. The reasonableness of the time fixed by the notice must be judged as at the date when it is given.
In similar circumstances, in the case of a contract for work and labour done, the person who has ordered the work can give a valid notice to the contractor making, time again of the essence of the contract.
Per Denning L.J. Where, in such cases, the buyer or the person who has ordered the work continues, when the time originally fixed, being of the essence of the contract, has elapsed, to press for delivery or completion, thus leading the obligee to believe that he will not insist on the stipulation as to the time of performence and that if delivery is made or the work completed he will accept it, he cannot afterwards set up the original condition as to time. But whether it be called waiver or forbearance on his part, or an agreed variation, or substituted performance, matters not. It is a kind of estoppel, since by his conduct the purchaser or person ordering has evinced an intention to affect their legal relations. He has made, in effect, a promise not to insist on his strict legal rights. The promise in such a case binding, since it is intended to be, and is in fact, acted upon.
APPEAL from Finnemore J.
Early in 1947, the defendant Oppenheim ordered from the plaintiffs, Charles Rickards Ld., motor-ear traders, a Rolls Royce Silver Wraith chassis which was delivered on July 30, 1947. The defendant wanted a body built on the chassis. On inquiry by the plaintiffs, at the instance of the defendant, one company estimated the time for this work at 21 months, and another company at 15 months. A third company of coach-builders called Jones Brothers (Coach Builders) Ld., said that they could do the work; “within six or, at the most, seven months.” The defendant gave the order for the work to the plaintiffs on July 11, 1947, on that footing, and they sub-contracted with those coach-builders to do the work. On August 7, 1947, the plaintiffs wrote to the coach-builders that it was in order for them to accept any instructions with regard to the body that were given by the defendant, and asking that company to keep them, the plaintiffs, au fait with the situation. The specification for the body-work was not finally agreed until August 20, 1947. If time were taken as running from that date, the time for delivery was, at latest, March 20, 1948.
On that date the work was not completed. The defendant did not cancel the contract, but continued to press for delivery of the finished car, and so waived the provision as to time, “delivery within six or at most seven months.” The defendant asked for delivery of the car in time for Ascot, 1948, but he did not get it. Wishing to take the car abroad at the beginning of August, the defendant on June 28, 1948, saw the manager of the coach-builders, who told him that the car would be ready in two weeks' time. On June 29, 1948, the defendant wrote to the coach-builders, “for the attention of the managing director.” He referred to his conversation with the manager and continued: “I regret that I shall be unable, unless my plans change, to accept delivery of the Rolls you are making for me after July 25. For six months I have had a reservation to take a car abroad on August 3 for my holiday and it would appear to me to be impossible to alter this date. I shall, therefore, have to buy another car.”
The coach-builders did not send that letter on to the plaintiffs for eight or nine days. On July 8, 1948, their manager informed the defendant that the car would not be ready by July 25, 1948. Thereupon the defendant bought another car and claimed from the plaintiffs 2,041l., the sum which he had paid to them for the chassis, leaving them to sell the car, when completed, for their own account. On July 10 there was a meeting between the defendant and a director and the sales manager, representing the plaintiff company, at which it was subsequently suggested that the defendant had waived his cancellation of the contract. On July 16, the plaintiffs wrote to the defendant: “In view of your comments during our conversation on this subject last week, we assume that you are prepared to leave the order with [the coach-builders] until your return from holiday, by which time the car should be ready for delivery. Every effort will be made on our part to expedite delivery and we feel sure you appreciate our desire to settle this matter amicably.” The defendant did not reply to this letter. The car was completed on October 18, 1948, but the defendant refused to accept delivery of it.
The plaintiffs claimed from the defendant 4,530l., the balance of the price of the car bargained and sold to the defendant, or, alternatively, the like sum for work and labour done and materials supplied to the defendant in connexion with the body-work for the defendant's chassis. The defendant counterclaimed for the chassis or its value. The coach-builders' manager said in his evidence that they were constantly making promises to the defendant about the completion of the work, which they were unable to keep because of the difficulties met with in regard to labour and materials.
Finnemore J., to whom Anglo-Egyptian Navigation Co. v. RennieF1„ and Benjamin on Sale (7th ed.) at p. 178 were cited, held (a) that the contract between the defendant and the plaintiffs was for the sale of goods and not one for work and labour done and materials supplied; (b) that time was of the essence of the contract, which provided that the car should be delivered completed at the latest in seven months; (c) that that condition was waived by the defendant; (d) that by his letter of June 29, 1948, the defendant again made time of the essence of the contract, specifying a time for its completion which was reasonable (see Hartley v. HymansF2, the judgment of Bailhache J. in Dudley, Clarke & Hall v. Cooper, Ewing & Co.F3, Jones v. GibbonsF4 and Leake on Contracts (8th ed.) at p. 652); (e) that the defendant at the interview on July 10, 1948, did not waive the condition that the car must be delivered completed by July 25, 1948; and (f) that, as the work on the car had not been completed by July 25, the defendant was entitled to cancel the contracts. Accordingly he gave judgment for the defendant on both the claim and the counterclaim.
The plaintiffs appealed.
Eric Sachs K.C. and Elliot Gorst for the plaintiffs (who did not contest (b) and (c), but contested the other conclusions of the trial judge). The stipulated time of seven months for the completion of this contract was exceeded by the plaintiffs, but the stipulation was waived by the conduct of the defendant who did not take advantage of his right then to cancel the contract, but merely continued to press for the completion...
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