Forslind v Bechely-Crundall

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeViscount Haldane,Viscount Finlay,Lord Dunedin,Lord Shaw of Dunfermline,.
Judgment Date14 Jul 1922
Judgment citation (vLex)[1922] UKHL J0714-2
Docket NumberNo. 17.

[1922] UKHL J0714-2

House of Lords

Viscount Haldane.

Viscount Finlay.

Lord Dunedin.

Lord Shaw.

Forslind
and
Bechely-Crundall.

After hearing Counsel, as well on Tuesday the 2d, as Thursday the 4th and Friday the 5th, days of May last, upon the Petition and Appeal of Charles Albert Forslind, residing at Woller Road, West Hartlepool, praying, That the matter of the Interlocutor set forth in the Schedule thereto, namely, an Interlocutor of the Lords of Session in Scotland, of the Second Division, of the 1st of March 1921, might be reviewed before His Majesty the King in His Court of Parliament, and that the said Interlocutor might be reversed, varied, or altered, or that the Petitioner might have such other relief in the premises as to His Majesty the King in His Court of Parliament might seem meet: as also upon the printed Case of Albert Edward Bechely Bechely-Crundall, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Interlocutor of the 1st day of March 1921, complained of in the said Appeal, be, and the same is hereby, Reversed, and that the Interlocutor of the Lord Ordinary in Scotland (Lord Sands), of the 4th day of June 1920, thereby Recalled, be, and the same is hereby, Restored: And it is further Ordered, That the said Cause be, and the same is hereby, remitted back to the Court of Session in Scotland to do therein as shall be just and consistent with this Judgment: And it is further Ordered, That the Respondent do pay, or cause to be paid, to the said Appellant the Costs of the Action in the Inner House of the Court of Session and also the Costs incurred by him in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That unless the Costs, certified as aforesaid, shall be paid to the party entitled to the same within One Calendar Month from the date of the certificate thereof, the Court of Session in Scotland, or the Lord Ordinary officiating on the Bills during the Vacation, shall issue such summary process or diligence for the recovery of such Costs as shall be lawful and necessary.

Viscount Haldane .

My Lords,

1

I do not think that the law applicable to this case presents much difficulty. The real question appears to me to be one really of fact, depending on the view taken of the action of the Respondent in the individual circumstances proved.

2

Shortly stated, what happened was this. In October 1917 Mr. Cobbold, the proprietor of a timber-covered property at Kinloch Rannoch, in Perthshire, entered into an agreement with a firm of Grant Stevenson and Company for the sale to them of eleven lots of timber growing on his property, for £12,500. The lots contained about 68,916 trees in all, and they varied from lots containing about 32,000 trees down to a lot containing about 380. By the terms of the agreement the wood was sold standing, and the purchasers were to fell and remove it all by 1st September 1922. They were to be free to cut and clear the various lots in any order they thought fit, but, having commenced the cutting and removal on any one lot, they were bound to complete this before commencing operations on any other lot, and were not entitled, without the seller's written consent, to carry on cutting or removal operations on more than four lots at one time. The price was to be paid by four equal instalments on 1st January 1918, 1st April 1918, 1st July 1918, and 1st October 1918. Various facilities for their operations were accorded by the agreement to the purchasers. The Respondent's interests appear to have been identical, by virtue of his having been a partner or otherwise, with those of Grant Stevenson and Co., and he proceeded, early in 1918, to offer to sell Lot 6 of those purchased, including upwards of 20,000 trees, to the Appellant. The latter was a timber merchant at West Hartlepool, who, personally and through a company of which he was managing director, was engaged in supplying timber to shipyards, to be used in the construction of ships. On 3rd May of 1918 the negotiation came to fruition, and a contract was entered into contained in two letters dated on that day and the next.

3

The terms of these letters, which contain the contract the subject of this litigation, were as follows:—

The Appellant wrote, "Dear Sir, I hereby offer to purchase delivered on to rail all the timber in Lot 6 of your timber estate at Kinloch Rannoch, Perthshire, the price to be calculated as follows:—the sum of £10,000 as representing the value of the timber in the wood, plus 1 s. per tree for felling and trimming, and 25s. per ton actual felling"

4

(explained subsequently to be a mistake for drawing) "and hauling; where railway returns of actual weight are not available the weight shall be calculated at 30 c.f. to the ton. I will pay forthwith the sum of £5,000 for and on account of the general purchase, and a like sum of £5,000 when timber to the value of £5,000 has been railed. I am to have the option, after the trees are felled, to peel and cross-cut the same. Each month I will pay you at the rate of 1 s. a tree for all trees felled during the month, and 25s. a ton for all timber loaded on to rail during the month, such monthly payments to be for and on account of the general purchase."

"Rannoch Lot 6. Dear Sir, Your letter of 3rd instant duly received offering a price delivered to rail for above lot and which offer I hereby accept. Please send me a cheque for £5,000, and oblige, and I will at once begin to fell the trees, and make arrangements about cartage to rail. Please note your letter of 3rd should have stated 25 s. per ton actual weight 'for drawing and hauling to rail,' and not 'felling and hauling'; no doubt this was an error in drafting the letter on Mr. Whitlock's part."

On the next day the Respondent replied:—
5

This was in reality a contract which the Respondent was not in a position to make. For already more than four timber lots on the landlord's estate were partly cut, but the cutting was not completed. He, however, received the £5,000 and instructed one of his local agents, a Mr. Miller, on 13th May, to go on with the felling of the timber on Lot 6, intimating on the same date to the Appellant that he intended to start the felling at once. On the 20th May the landlord's local agent objected on behalf of the proprietor of the property to the cutting of the timber on Lot 6, and presently his law agents intimated that this would not be allowed to take place, and a few days later the Respondent gave instructions that the cutting must be stopped. It was not, however, until 5th June that the Respondent informed the Appellant that he was unable to cut the timber on Lot 6 because of the landlord's objection. He said that this might delay the cutting for a week or two, but that he would see that the matter was put right and the felling started at the earliest possible moment. The Appellant replied that if the Respondent had given instructions for Lot 6 not to be felled the money paid must be returned. During this month the Appellant continued to press the Respondent to cut the timber on Lot 6, saying that he wished the wood cut while the sap was in the trees, in order to facilitate easier working on the bark. The Respondent was endeavouring, but unsuccessfully, to obtain release from his obligation to the landlord not to cut on Lot 6 until the lots already being dealt with were cleared. On 17th July the Respondent's local agent informed the Appellant that the latter could not get the timber on Lot 6 for a long time, and suggested his accepting that on a different lot. The Appellant pointed out that this indicated a breach of contract, and on 12th August again wrote to the Respondent a peremptory letter insisting on the fact. The Respondent replied on 19th August admitting that the landlord was still refusing release from the terms of the contract with him, but adding that this made little difference, because the road and railway facilities were so bad that they would have caused delay even if Lot 6 had been cut. The Appellant continued to press for the fulfilment of the contract with himself, and threatened to claim damages for breach, and finally instructed his solicitors.

6

On the 16th of October, the Respondent instructed another of his local agents, Mr. Simpson, that he desired to get on with the cutting of Lot 6, but that no timber was to be delivered from that lot to the Appellant until certain accounts due for settlement in respect of some transactions quite independent of the contract in question had been settled. This instruction to withhold delivery was one which was not consistent with the legal duty which the terms of the contract imposed on the Respondent. The latter then wrote again to the Appellant raising various points as to how the contract was to be executed, among which some related to difficulties arising from the state of the roads and railways. The Appellant replied that with these points he had no concern under the terms of the contract, inasmuch as the Respondent had undertaken to deliver free on railway trucks. He also said that the delay in putting the timber on the railway was a source of injury to him, as in the wet season timber lying with the bark on deteriorated, and that it was a great loss to him that the felling had not been done during the summer season. In the end of October the Respondent succeeding in getting his landlord to withdraw the objection to the cutting on Lot 6, and then began to proceed.

7

My Lords, it is clear that the obligation of the Respondent under the contract of 3rd and 4th May 1918 was to deliver the timber cut on...

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