G. Green, M. Wigram, H. L. Wigram, and R Green, against Bickness and Ward
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1838 |
| Date | 01 January 1838 |
| Court | Court of the Queen's Bench |
English Reports Citation: 112 E.R. 1004
IN THE COURT OF QUEEN'S BENCH
S. C. 3 N. & P. 634; 1 W. W. & H. 504; 7 L. J. Q. B. 271. Distinguished, Ex parte Moffatt, 1841, 2 Mont. D. & D. 176; Ex parte Sheppard, 1841, 2 Mont. D. & D. 434. Referred to, Johnson v. Skafte, 1869, L. R. 4 Q. B. 705.
G. green, M. wigram, H. L. wigram, and E. green, against bicknell and ward. 1838. In a special case it was stated that, by contract between B. and G., G. had agreed to sell to B. all the oil which should arrive by a certain ship, which B. was to receive within fourteen days after the landing of the cargo, and pay for, at the expiration of that time, by bills or money, at a specified price per tun, with customary allowances: that the ship arrived, and the cargo was landed, and G. tendered the oil to B. at the end of the fourteen days : that the quantity of oil, after allowances, &c., was a certain number of tuns stated in the case; that, at the time of the tender, the market price of oil was lower than the contract price by an amount stated : that B., on the tender being made, refused to accept; and that the difference of prices was within the knowledge of the parties. Held that, B. having become bankrupt after the refusal, G. could not prove for this breach of contract under the commission : for that, although G.'s claim would be measured by the difference between the contract and market prices at the time when B. should have fulfilled his contract, yet the case did not shew that the data on which the calculation must proceed were so settled as to admit of no dispute, and render the intervention of a jury unnecessary; and consequently the claim of G. was not for a debt but for damages. [S. C. 3 N. & P. 634; 1 W. W. & H. 504; 7 L. J. Q. B. 271. Distinguished, Ex parte Moffatt, 1841, 2 Mont. D. & D. 176; Ex parte Sheppard, 1841, 2 Moot. D. & D. 434. Eeferred to, Johnson v. Skafle, 1869, L. R. 4 Q. B. 705.] Assumpsit on a special contract. Issue being joined, a case was stated by consent, according to stat. 3 & 4 W. 4, c. 42, s. 25, substantially as follows. On 4th November 1831, Messrs. John Field, Charles Field, John Field the Younger, and John Thompson, then carrying on the business of oil merchants in London, under the firm of Fields and Thompson, entered into the following contract with the plaintiffs under the firm of Wigram and Green. [702] "Bought for Messrs. Fields and Thompson, of Messrs. Wigram and Green, one half quantity of all the sperm oil and head matter of merchantable quality that may arrive by the 'Harponeer,' Captain Clark, now on her voyage, at 681. per tun, to be received by the buyers within fourteen days after the ship has landed her cargo on a wharf in London, and paid for, at the expiration of that period, by approved bills at six months, or in money, deducting 2|- per cent, discount, at the buyers' option l customary allowance for dirt and water. "London, 4th November 1831. Signed, William and John Beale, Brokers." IAD. & E. 70S. GREEN V. BICKNELL 1005 The "Harponeer" was, at the time of the contract, engaged on a fishing voyage, on account of the plaintiffs, to the South Seas, and back to the port of London. On 5th April 1832, and before the arrival of the ship, Messrs. Fields and Thompson entered into the following contract with the plaintiffs for the purchase of the residua of the sperm oil and head matter which might arrive in the said ship. The case then set out a second contract for half the oil, &c., which was in the same terms as the former, except that the price specified per tun was 631., that the bills were to be at four months, and that the following clause was added. " A fair allowance in price for unmerchantable oil and head matter (if any) to be made by the brokers." The "Harponeer" arrived at the port of London, thereby completing her said voyage, on 8th April 1833, having on board a cargo of sperm oil and head matter of a merchantable quality. The cargo was thereupon lauded by the plaintiffs on a wharf in London, and notice thereof was given to Fields and Thompson ; the [703] quantity was, within fourteen days after landing, ascertained to be 254 tuns and 93 gallons; and the price of the whole, taking half at 681. per tun and the residue at 631. per tun, was ascertained to be 16,6611. Is. 10d., after making the allowances contracted for. On the expiration of the prompt, that is to say on the fourteenth day after the ship had landed her cargo (3d May 1833), the plaintiffs tendered to Fields and Thompson the said several quantities of sperm oil and head matter purchased by them, and required F. and T. to accept and pay for the same, respectively, by approved bills, or in money, according to the contracts. At the time of such tender nothing remained to be done by the plaintiffs to complete the contracts, except the actual delivery of the oil and head matter to Fields and Thompson : nor did any thing remain to be done by F. and T. except the payment of the stipulated prices. Fields and Thompson refused to accept or pay for the oil and head matter, or any part thereof; and never have accepted or paid for it. When the " Harponeer" arrived and the cargo was landed, and when the same was tendered to and refused by Fields and Thompson, the market price of oil and head matter, of the quality of the oil and head mutter contracted to be purchased, was, within the knowledge of all the parties, only 511. 10s. per tun, which price, and no more, the said oil and head matter would have produced, had it...
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