Hartley v Hymans
| Jurisdiction | England & Wales |
| Year | 1920 |
| Date | 1920 |
| Court | King's Bench Division |
Sale of Goods - Delivery - Time - Essence of Contract - Waiver - Estoppel - Implied Agreement to extend Time - Reasonable Time to be fixed by Notice from Buyer - Cancellation by Buyer without Notice - Damages -
Under a contract for the sale of goods to be delivered within a certain period of time the buyer's right to require delivery within that period may be waived even after that period has expired; but it would seem that, where the contract is within s. 4 of the Sale of Goods Act, 1893, the waiver must be evidenced by writing.
Where, after the expiration of the period of delivery fixed by a contract for the sale of goods, the buyer by his letters and conduct leads the seller to entertain the belief that the contract still subsists and to act upon that belief at serious expense to himself, a new agreement may be implied that the period for delivery is extended and that delivery may take place within a reasonable time of which notice is to be given by the buyer to the seller.
By a contract coming within s. 4 of the Sale of Goods Act, 1893, and duly made in writing, the plaintiff agreed to sell to the defendant 11,000 lb. of cotton yarn, delivery to begin in September, 1918, and to be at the rate of 1100 lb. per week, failure to deliver within the stipulated time to render the contract liable to cancellation by the defendant, and incomplete deliveries not to be taken into account. Delivery should have been completed by November 15, 1918. The plaintiff delivered no yarn till October 26, 1918, when he delivered 550 lb., and thereafter on various dates from the end of November, 1918, to the end of February, 1919, he delivered seven further quantities averaging upward of 500 lb. each. During all this period and the early part of March, 1919, the defendant by his letters complained of the delay and asked for better deliveries, but thereby led the plaintiff to entertain the belief that the contract still subsisted, and to act upon that belief at expense to himself. On March 13, 1919, the defendant, having given no previous notice requiring delivery in any reasonable time, wrote to the plaintiff cancelling the order, and he thereupon refused to take any further quantity of the yarn. The plaintiff brought an action against the defendant for damages for refusing to take the remainder of the yarn:—
Held, that, although time was of the essence of the contract with respect to delivery which should, prima facie, have been completed by November 15, 1918, yet the defendant by his letters, though written after that date, had waived his right to insist that the period for delivery terminated on that date; that the defendant was also thereby estopped from alleging that that period terminated on that date; that the letters between the parties implied a new agreement that delivery might be made within an extended and reasonable period, of which notice was to be given by the defendant to the plaintiff, and as the defendant had given no such notice, no period had been fixed within which the plaintiff should make delivery; and that in these circumstances the defendant had no right to cancel on March 13, 1919, and the plaintiff was entitled to damages to be assessed as at that date.
ACTION tried by McCardie J. without a jury.
The plaintiff, Noble Hartley, was a cotton yarn merchant carrying on business at Manchester, and the defendant, Stanley William Hymans, was a yarn merchant carrying on business at Bradford in Yorkshire.
The following statement of the facts of the case is taken substantially from the judgment of McCardie J.:—
By a contract contained in a written memorandum (M 1113) signed by the defendant and dated July 29, 1918, he agreed to purchase from the plaintiff 11,000 lb. of cotton yarn of two sizes — namely, 2/82 and 2/88. It was a term of the bargain that delivery should be at the rate of 1100 lb. per week starting in September. Amongst the conditions at the back of the memorandum were the following:—
1. “The goods are to be delivered free to our works or depots as specified, in good order and condition and exactly in accordance with our specification (if any). Quantities must not exceed those specified.”
8. “Failure to deliver the goods within the stipulated time, and in accordance with the above conditions, renders this order liable to cancellation by us, and you will be held responsible for any loss of profit incurred by us through your default.
9. “Incomplete deliveries not taken to account.”
It was agreed between the parties that the date at which the plaintiff should have completed his deliveries under the contract was November 15, 1918.
No delivery at all was made by the plaintiff till October 26, 1918, when he supplied 550 lb. Meanwhile the defendant had made vigorous protests against the plaintiff's delay. From October 26, 1918, the defendant again urged delivery and on November 19, 1918, the plaintiff supplied, and the defendant accepted, another 550 lb. Further deliveries were made by the plaintiff and accepted by the defendant under the contract as follows:—
lb. |
lb. |
||
November 29, 1918 |
550 |
February 5, 1919 |
550 |
December 9, 1918 |
550 |
February 7, 1919 |
484 |
December 12, 1918 |
550 |
February 27, 1919 |
660 |
December 16, 1918 |
363 |
Over the whole of this period the defendant by his letters constantly urged the plaintiff to deliver; he complained of the delay, and he referred to the absolute necessity of having better deliveries.
The defendant apparently treated the contract as being still alive. Thus, on December 3, 1918, his letter to the plaintiff referred to the cotton yarn “which you have on order for me.” So on January 4, 1919, he wrote: “I trust you will make me a very substantial delivery during the early part of next week.” On January 20 he wrote: “My clients are extremely annoyed at this dilatoriness on your part, and are threatening to cancel unless I complete the order within the next 2 or 3 weeks. You have had ample warning and the fault will be entirely yours if my clients cancel. I should think that in your interest, seeing that the market has dropped so considerably, you would have made a special effort to get in high priced orders. I have warned you before of the risk you are taking and the entire responsibility will be yours if I have to cancel.”
The defendant had resold to one of his customers the yarn purchased by him from the plaintiff.
On February 1 he wrote: “I thank you for your invoice for 500 lb. (2/82), and shall be glad if you will push a further 1500 lb. with all possible speed, and also 1100 lb. of the 2/88. My customer is desperately in need of this yarn and I trust you will make no mistake about getting delivery at once.”
On February 7 the plaintiff delivered a further 484 lb. On February 21 the defendant wrote: “Regarding my order for 2/82 and 2/88 I regret that I have not been favoured with your report on this contract as promised by your representative on Tuesday last. As I then informed him I cannot see my way to accept responsibility now, owing to the dilatory methods which you have adopted in executing this contract, should my customer cancel the same.”
On February 27 the plaintiff delivered a further 660 lb.
On March 1 the defendant wrote a letter in which he said: “With reference to my order for 2/82 and 2/88 I shall be glad if you will kindly observe the following instructions which have just been posted to-day by my client.” He then gave precise instructions as to the marking of the goods to be delivered by the plaintiff under the contract of July 29, 1918, and added: “I trust that you will pay particular attention to these instructions …. as I before stated I shall not under any circumstances now accept any responsibility as to what course of action my customer takes with regard to this contract.”
On March 4, 1919, he wrote: “If owing to your late delivery my client cancels on me I shall have no option but to cancel on you.” On March 8 he wrote: “I shall be glad if you will kindly let me have a delivery as soon as possible against contract.”
On March 10 he wrote: “Further to my letter of March 8, please mark outside the packages (bundles) the following quality marks ‘J. C.’ and oblige.”
To this letter the plaintiff replied on March 11: “Your letters of the 8th and 10th inst. duly to hand and I note that you require the mark ‘J. C.’ putting outside the package, and I have given instructions for this to be done. I am glad to be able to send you herewith invoice for 660 lb. of 2/82, and I am pushing the mill as much as I possibly can for further deliveries.”
The defendant's answer was as follows, dated March 13, 1919: “With reference to my order M 1113 this was given to you for delivery 100 bundles per week starting the first week in September. You did not start delivery until October, and you have been consistently late in deliveries ever since as per the various letters I have written you. Owing to your late deliveries I much regret to state that I must cancel this order, and I cannot take to account the 660 lb. that Messrs. Delany & Co. advised me this morning you had delivered to them. I regret that it should be necessary for me to cancel this order but the fault has been entirely your own.” This letter constituted the repudiation relied on by the plaintiff.
To the letter of March 13 the plaintiff replied: “I am in receipt of your favour of the 13th inst. and in reply the yarn is all in work and cannot be stopped. The order will be completed now in a very short time. I cannot agree to accept your attempt of cancellation, the yarn is...
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