Macpherson Train & Company Ltd v J. Milhem & Sons
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SINGLETON,LORD JUSTICE,LORD JUSTICE MORRIS |
| Judgment Date | 28 June 1955 |
| Judgment citation (vLex) | [1955] EWCA Civ J0628-2 |
| Court | Court of Appeal |
| Date | 28 June 1955 |
[1955] EWCA Civ J0628-2
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Singleton
Lord Justice Hobson
Lord Justice Morris
In the Matter of the Arbitration Act, 1950. - and In the Matter of an Arbitration Between
This is an appeal from an order of Mr Justice McNair made on the 25th May of this year, when he had before him a Motion on behalf of the sellers to set aside the Award of an expire. Mr Justice McNair declined to do so. The Motion which was before the learned Judge asked that the award, in the form of a Special Case, made by the Empire Mr John Benneth Fey, should be "set aside or alternatively remitted for reconsideration by the said Mr John Benneth Fey" on the grounds stated in the Notice.
The arbitration arose out of a contract for the sale of goods between the sellers in Freetown, Sierrn Leone, and the buyers in this country. It is dated 4th February, 1954, and is in the form of a letter from the layers to the sellers. The letter reads: "We have this day bought from you upon the terms and conditions of the General Produce Brokers' Association of London, Form No. 1, about 20 (twenty) tons African Gisger 1953 crop at 97/- (Nincty-seven shillings) per cwt., less 3 per cent CANDY . Delivered weights. Insurance to be covered by buyers. per s.s. 'Income' scheduled to 15th March, 1954, from Origin to in transit schedule Territorial Port. Guarantee of quality: Fair average quality: 1953 crop". Then there are some further provisions which I need not read.
I said a moment ago that the arbitration arose out of contract. I should state that the question as to whether or not there was a contract between the parties remains for the decision of another tribunal, for if the Appeal of the sellers fails, they still have the right to set down for argument the Special case for the determination of the rights of the parties there under.
Most of the argument before this Court has arisen upon the words in the document which I shall speak of as The contract" per s.s. 'Income' scheduled to will 15th March, 1954, from origin to Causes", that is, from to . Mr Justice McNair held that the Motion failed, and the seller appeal to this court. Three points were raised. It is desirable that I should first say something as to the hearing of the arbitration, for upon it one question has been raised by Mr Haskin on behalf of the sellers. There were two hearings before the Aspire, and they are both referred to in the Special Case, stated by the Empire. I read from it: 'At the hearing before me during the course of the Arbitration the believe denied the assitance of a concluded contract on the ground that the Sellers and the Buyers were not ad idem on two points, namely. (1) the date of shipment, and (2) the price. The sellers Loser agreed that there was agreement as to price, but not as to date. The Buyers contended that there was a concluded contract, or, alternatively, that, in the circumstances, the Sellers were estopped from denying the existence of such a contract. It was agreed by both parties that for the purposes of this arbitration only, and without prejudice to the rights of the Buyers in any other proceedings, the question as to the existence or otherwise of a concluded contract, and as to the right of the Sellers to deny the existence of any such contract, should be decided by me in this Arbitration". Is his Award the Umpire refers to the documents which passed between the parties, which, in his view, amounted to a contract, and he set out the terms of the contract which he found. In paragraph 4 of his Award he said: "The contract terms, including the above term as to shipment, asset out in the above-mentioned assessment of the 4th February, 1954, were not from by the Sellers". In paragraph 5 he not cut various letters and one cable passing from the sellers to the Buyers is which there was reference to the contract between the parties. The term for shipment. "Shipment by s.s. 'Income' to sail 15th March, 1954", gave rise to much discussionbetween the parties before the umpire. In paragraph 6 the umpire fired that the s.s. "Isonse" did not call at Freetown until the 23rd April, 1954. In paragraph 7 be finds that the Sellers on the 3rd April, 1954, gave notice to the buyers that after the 7th April, 1954, they would consider the contract at an end and failed to ship the contract goods on the s.s. "Isonze" or at all.
The dispute between the parties ranged over considerable ground. It was the fact that the Sellers had not shipped the goods which it was said they were under a duty to supply. In paragraph 8 of his Award the Umpire sets out some facts of importance: "At the first hearing the Sellers' representative did not deny or put in issue the existence of a concluded contract, including the above-mentioned shipment terms, or the fact that on the 4th February, 1954, the s.s. 'Isonze' was 'scheduled to sail from Freetown on the 15th March'. The only question that was then argued before me was whether or not the contract became impossible of performance by reason of the failure of the said vessel to sail from Frestown on the 15th March, or alternatively, by her failure to load the contract goods on or before the extended date mentioned in the Sellers' letter of the 3rd April, 1954, namely, the 7th April, 1954. At that hearing the Sellers' representative contended that the contract in the circumstances had become impossible of performance; the Buyer's representative maintained that the Sellers by their letter of the 3rd April, above referred to, wrongfully gave notice of their intention not to ship the goods after the 7th April and so to repudiate their contractual obligations, and that the Sellers failure to ship the goods on the s.s. 'Isonzo' on the 23rd April was in breach of their contractual obligations. After both parties had close their respective cases the Sellers' representative requested me to state my Award in the form of a Special case solely upon theconstruction of the contract, including the effect in law of the terms of shipment therein act out as above stated". The Umpire continued by drawing attention to the fact that "on the 9th December, 1954, before I had issued my award, I received a letter from Messrs Layton & Co" - (the Sollers' Solicitors) - "raising for the first time two further questions upon which they then asked me to state a case, namely, (1) whether or not the parties had eve agreed upon terms of shipment for the said goods, and (2) whether upon the evidence (which they asked me to set out in my Award) I could in law find that the s. s. 'Isonzo' was on the 4th day of February, 1954, 'scheduled to from Freetown on the 15th March'". On the 13the December, 1954, the Buyer's Arbitrator sent to the Umpire a copy of the letter which the Seller's solicitors had written to him and also a letter of their own. Those two letters re annexed to the Award and form part of the case. They are both letters of considerable length, setting out the contentions of the parties as they were, or were though to be, at their respective dates. After the Umpire had considered those letters, and a further letter of the 17th December, 1954, he invited the parties to attend before him on the 20th January, 1955, and they did so. The Award continues: "At this further hearing the Sellers raised as a preliminary point (1) that the document of the 4th February, 1954, constituted not more than an offer; (2) that this offer contained an additional term as to shipment namely, 'shipment per s.s. 'Isonzo' scheduled to sail 15the March: (3) that this offer was not accepted by the Sellers". Those points are not points for the consideration on the appeal before us, which is concerned only with a Motion to set aside the Award. The Umpire held that the Sellers were estopped from raising some of these issued. The Award proceeds: "If the Court should hold that the sellers are not so estopped, then, subject to the decision of the Court, I find and hold (1) there was a concluded agreement between the parties that the shipment of the contractGootds was to be ' s.s. 'Isonzo" scheduled to sail 15th March, 1954, (2) that the beginning of February, 1954, the s.s. 'Isonzo' as scheduled to sail from Feetown on the 15th March, 1954". Then the Umpire says: 'The Sellers' solicitors have, by their said letter of the 8th December, 1954, requested me to set out in my Award the evidence upon which I have reached me to set out in my Award the evidence upon which I have reached this latter finding. No direct evidence was submitted to me by either party that the said vessel was or was not so scheduled. I myself took steps to obtain from the owners of the vessel, who are in Italy, evidence upon the point, but without success. The only evidence submitted was contained in a letter, put in by the Buyers, written to them by Messrs Gill Brothers & Partners, Ltd. on the 2nd December, 1954. Messrs Gill Brothers & Partners, Ltd., were the sub-buyers of the goods in question. In this letter (which is attached hereto and forms part of this Special Case) Messrs Gill Brothers & Partners, Ltd., state that they were informed by the Shipping Company concerned that 'originally the s.s. 'Isonze' was scheduled to sail from Freetown early March', but that later they were informed that the date had been altered to the 15th March. The submission of this latter and the statement therein contained were not challenged by the Sellers". The Umpire...
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