Hardwick Game Farm v Suffolk Agricultural Poultry Producers Association

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeLORD JUSTICE DAVIES,LORD JUSTICE DIPLOCK
Judgment Date20 Dec 1965
Judgment citation (vLex)[1965] EWCA Civ J1220-4

[1965] EWCA Civ J1220-4

In The Supreme Court of Judicature

Court of Appeal

(From: Mr. Justice Havers - Middlesex)

Before:

Lord Justice Sellers

Lord Justice Davies and

Lord Justice Diplock

Hardwick Game Farm (a partnership firm)
Plaintiffs
and
Suffolk Agricultural And Poultry Producers Assosiation Limited
Defendants
and
William Lillico & Son Limited and Grimsdale & Sons Limited
Third Parties
and
Henry Kendall & Sons (a firm) and Holland Colombo Trading Society Limited
Fourth Parties
and
Exportadora Importadora Leusin Limitada (Appeal of 1st Fourth Party)

Mr. R. J. PARKER, Q. C. and Mr. ANTHONY EVANS (instructed by Messrs. Sydney Morse & Co.) appeared on behalf of the Appellant the 1st Fourth Party (Respondent to appeals by 1st and 2nd Third Parties).

Mr G. R. F. MORRIS, Q. C. and Mr. LEO CLARK (instructed by Messrs. Blount Petre & Co.) appeared on behalf of the Respondent the 1st Third Party (Appellant as against 1st Fourth Party).

Mr. R. A. MacCRINDLE, Q. O. and Mr. MARK SAVILLE (instructed by Messrs. Barlow, Lyae & Gilbert) appeared on behalf of the Respondent the 2nd Third Party (Appellant as against the Defendants and the 1st and 2nd Fourth Parties).

Mr. ADRIAN HAMILTON (instructed by Messrs. Parker, Garrett & Co.) appeared on behalf of the Respondent the 2nd Fourth Party (Respondent to appeals by 2nd Third Party).

Mr. D. P. CROOM-JOHNSON, Q. C. and Mr. PAUL SIEGHART (instructed by Messrs. Metson, Cross & Co.) appeared on behalf of the Respondents the Defendants (Respondents to appeal by 2nd Third Party).

1

LORD JUSTICK SELLERS: The plaintiffs are not parties to this appeal. They have recovered, by the defendants' admission of liability and by an agreement on the financial loss incurred, the sum of £3,000 as damages for breach of contract with costs. It was unchallenged in the action before Mr. Justice Havers, from whose judgment this appeal comes, that the defendants (frequently referred to as "SAPPA") were legally liable to the plaintiffs and that the amount agreed for the plaintiffs' loss was a reasonable assessment which it would be fair to pass on (together with the costs) to the two third parties in an appropriate proportion if liability were to be established against them.

2

Mr. Justice Havers investigated fully and carefully the many and varied issues of fact which have arisen in this case and his findings of fact need only be briefly summarised. The plaintiffs carry on the business of game-farming in Suffolk. They breed pheasants and partridges for stock and sale. They have been customers of the defendants for feeding stuffs for their stock for many years. The defendants have carried on business in the same locality and have included in their trade the sale of compounded meals for feeding to pheasants and partridges, their chicks and poults.

3

There is no doubt that in the summer of 1960 quantities of compounded meal supplied by the defendants were fed to the plaintiffs' pheasants and partridges and that as a result many of the chicks and poults died and others grew up stunted and unsuitable for breeding or sale. The reason for this was baffling for a tine but it became established that it was due to the presence in the compounded meal of a proportion of Brazilian ground nut meal extractions which contained poison. The extraction is the product after the oil has been extracted from ground nuts. In order to establish ultimate liability for this loss - and there were considerable similar losses and also losses of turkeys elsewhere - it became necessary to trace the sources from which the ground nut extractions had come and how and at what stage the toxic conditionarose. It will however be unnecessary, I think, at this appellate stage to trace in detail the various consignments and parcels. The evidence and the learned judge's findings thereon brought home to each of the several parties concerned the supply of some of the offending Brazilian ground nut extractions.

4

The defendants bought the relevant supplier from one or the other of the two third parties, William Lillico & Sons Limited ("Lillico") and Grimsdale & Sons Limited. ("Grimsdale"). Both Lillico and Grimsdale and Henry Kendall & Sons ("Kendall") end Holland Colombo Trading Society Limited ("Colombo"), who both became fourth parties in this action, were wholesale dealers and members of the London Cattle Food Trade Association and were accustomed when dealing with imported feeding cakes and meals to trade on Contract Form No. 6 (c.i.f.) of that Association.

5

On the 4th April, 1960. Kendall sold to Lillico 300 metric tons Brazilian ground nut extractions - Acco manufacture. These goods arrived in London in three parcels of 100 tons each in three vessels - s.s. "Nordvest", s.s. "Helga Schroeder" and b.s. "Cabo de Sao Roque". On the 28th March, 1960, Kendall sold to Grimsdale 500 metric tons of Brazilian ground nut extractions eventually shipped in the s.s. "Loide Nicaragua", and on, he 4th April. 1960, a further 250 metric tons later shipped in the s.s. "Rossetti".

6

On the 26th April, 1960, Colombo bought 500 tons Brazilian ground nut extraction meal 50 per cent, from Exportadora e Importadora Leusin Limitada Rio de Janeiro. These sellers were brought into this action as fifth parties by Colombo but at the time of the trial the fifth party proceedings were still incomplete and they formed no part of the action which was tried.

7

On the 26th April, 1960, Grimsdale bought from Colombo 500 tons Brazilian ground nut extractions for shipment April and/or May, 1960. Judgment was given in favour of Colombo. Their contract goods were carried in the s.s. "Delius", and Colombo succeeded in the action on the fortuitous circumstance that the "Delius" was outside United Kingdom territorial waters whenGrimsdale became owners of the goods in question. Grimsdale have appealed against the judgment in favour of Colombo and seek in this Court to make them liable along with Recall if they, Grimsdale are to be held liable to the defendants in accordance with Mr. Justice Havers' decision.

8

These transactions were all on Contract No. 6 of the London Cattle Food Trade Association. They were c.i.f. contracts with shipment from Brazilian port or ports (in some Santos was specifically stated) and with varying dates of shipment to London during April, May and June, 1960. Of these substantial parcels imported by Lillico and Grimsdale only relatively small quantities were passed on to the defendants.

9

On the 8th April, 1960, Lillico orally sold to the defendants 36 tons of Brazilian ground nut meal ex quay London to be delivered 12 tons in April, May and June. Grimsdale made an oral sale of 30 tons to the defendants on the 27th April for June shipment on terms "3 day rate London". As the defendants were short of ground nut meal 6 tons were delivered from the s.s. "Delius" (which Colombo had sold) and the balance of 24 tons later from the s.s. "Rossetti" (which Kendall had sold). Some slight argument was based on this circumstance but it has little effect on the case. The identity of the offending meal was sufficiently traced to deliveries under all the contracts set out above and no consignment has been held to escape because it was free from the toxic condition.

10

The various purchases were therefore delivered in London from six different ships in which the goods had been shipped some time during April, May or June and the consignments were all to some extent affected by a condition which had arisen before shipment.

11

Apparently in the hot and wet climatic conditions which had prevailed in Brazil during the relevant season the ground nut extractions had developed in storage a mould, aspergillus flavus, which was poisonous, and the toxic factor has been named "aflatoxin". The judgment finds the evidence overwhelming in reaching the conclusion that aflatoxin in theBrazilian ground nut meal was responsible for the death or deterioration of the birds the subject-matter of the present claim and in wider areas also. In the court below an effort was made to blame nitrofurazone or embazin as being substances in whole or in part responsible for the killing of the birds, lo reliance was placed on such a submission before us.

12

As no issues were fought in the court below between the plaintiffs and the defendants no decisions were reached on the various grounds of liability which the plaintiffs had alleged. As the defendants were supplying compounded meal specially made up for food for pheasants and as they knew the plaintiffs were buying it for the purpose of feeding to pheasants and in all the circumstances of the relationship of those parties there can be no doubt that liability arose under section 14 (1) of the Sale of Goods Act, 1893, and the defendants admitted liability under both sub-sections 1 and 2 of section 14 of the Act. But additional grounds of liability were alleged and the defendants raised against the third parties and the third parties against the fourth parties all the grounds pleaded by the plaintiffs originally.

13

Under the judgment SAPPA have recovered damages against Lillico and Grimsdale (i) for breach of the statutory warranty which the judgment holds arose under section 2 (2) of the Fertilisers and Feeding Stuffs Act, 1926, and also (ii) under the implied condition as to fitness for purpose under section 14 (1) of the Sale of Goods Act, 1893. The judgment finds that the ground nut extractions were merchantable and that there was no breach of the statutory condition imposed by section 14 (2) of the Sale of Goods Act, 1893. In the claims over by Lillico and Grimsdale the judgment hold Kendall liable to them under the 1926 Act on the same statutory warranty in respect of goods which were within the United Kingdom when the property in the goods passed from Kendall to them respectively but not where the property passed before the goods came within territorial waters.

14

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