Marles v Philip Trant & Sons Ltd (no 2)

JurisdictionEngland & Wales
Judgment Date16 February 1953
Neutral Citation[1953] EWCA Civ J0216-3
Judgment citation (vLex)[1953] EWCA Civ J0216-2
Docket Number1951 M. No. 223,1951 M. 223
CourtCourt of Appeal
Date16 February 1953
Philip Trant & Sons, Ltd. and Alexander Ewen Mackinnon (Third Party)

[1953] EWCA Civ J0216-2


Lord Justice Singleton

Lord Justice Denning and

Lord Justice Hodson

1951 M. 223

In The Supreme Court of Judicature

Court of Appeal

Counsel for the Appellants: MR D. A. SCOTT CAIRNS, Q. C., and MR L. F. LASKEY, instructed by Messrs C. G. Metson & Co.

Counsel for the Respondent (Third Party): MR B. J. M. MacKENNA, Q. C., and MR MALCOLM McGOUGAN, instructed by Messrs Anstey & Thompson, Exeter.


Philip Trant & Sons, Ltd., are seed merchants. Early in the year 1950 the Plaintiff, William Henry Marles, a farmer, bought from them 29 owts. Of dressed spring wheat seed which was described as Fylgia. The greater part of the wheat delivered under the contract was not Flygia, nor was it suitable for spring sowing, and in consequence the crop which Mr Marles expected did not materialise. He brought an action against the seed merchants claiming damages for breach of contract and breach of warranty. He satisfied the Judge that his contract claim was right. The damages were assessed at the sum of £418. 5s. 10d., and judgment was given for him for that amount (less a sum owing by him), and the Defendants were ordered to pay the costs of the action.


The Defendants, the seed merchants, brought in as Third Party one Alexander Ewon Mackinnon, a farmer from whom they had bought the wheat which was wrongly described. They claimed that the sale to them was a sale by description, that Mr Mackinnon prior to, and at the time of, the sale represented and warranted to them that the wheat was a spring wheat and was Flygia, that he knew that they were buying the wheat for resale to farmers for spring sowing and were relying on his representations and on his skill and judgment as a farmer whose business it was to grow and sell wheat. They claimed to be indemnified against the claim of the Plaintiff in the action, and they also asked for damages.


The Defendants had in fact purchased some 10 tons of wheat from Mr Mackinnon which the latter had described as Fylgia, and which he knew the former intended to dress and clean and to sell for the purpose of spring sowing. The wheat delivered by Mr Mackinnon was not Fylgia, but was Vilmoria, a type which is only suitable for winter sowing, and which is properly described as awinter wheat.


The Defendants sold to a number of farmers, who suffered loss and damage through failure of their crops, and who made claims against the Defendants. Mr Mackinnon denied that he had represented or warranted that the seed was Fylgia.


The case was tried before Mr Justice Lynskey at the Winchester Assizes, and his judgment was given on the 31st July, 1952. On this part of the case his finding was in favour of the Defendants. He said: "Having heard and seen the witnesses, I am quite satisfied that I ought to prefer the evidence of the Defendants' witness to the Third Party on this point. I am satisfied that the Third party did sell this seed to the Defendants as 'Fylgia' seed, under the description of 'Fylgia' seed, and that there was an implied condition as it was in the course of his business to sell these seeds and it is shown by the foot that they asked for this variety, that the Defendants were relying on his skill and knowledge. He knew it was require for re-sale, and therefore I am satisfied that as far as the third Party is concerned he did sell this seed and was under a condition or warranty of his contract that the seed should be 'Flygia' which is a spring wheat seed,"


The learned judge was, however, of opinion that the Defendants were not entitled to the relief which they sought against the Third Party because of the terms of the seeds Act, 1920. Section 1, sub-section (1), of the Act provides as follows: "Every person who sells any seeds to which this Act applies or any seed potatoes, shall, on or before the sales, or if the goods are not delivered at the time of sale on or before deliverythereof, deliver to the purchaser a statement in writing containing the prescribed particulars with respect, in the case of seeds, to their variety, purity and germination, and in the case of seed potatoes, to their class, variety, size and dressing, and, in either case, to any other prescribed matters." Section 1, sub-section (3), reads: "The statement required to be delivered under this section to a purchaser shall be contained in a sale note or invoice or be attached to, inserted in, or written on, the package containing the seeds, or seed potatoes, as the case may be." Section 1, sub-section (5),is as follows: "The particulars to be contained in a statement to be delivered under this section to a purchaser of seeds shall, so far as they are particulars relating to the purity and germination of the seeds, be particulars ascertained on a test of those seeds made in accordance with the provisions of this Act." Then Section 2, sub-section (1), reads: "A test of seeds for the purpose of the preceding section shall, in the case of seeds other than garden seeds, be made either at one of the official seed testing stations established under this Act or at some testing station licensed by the Minister, and, in the case of garden seeds, be made either as aforesaid or in any other sufficient manner."; and section 8 provides that if any person fails to comply with, or acts in contravention of, any provision of the Act or makes a statement require to be given under the Act which is false in any material particular he shall, without prejudice to any civil liability, be liable on summary conviction to a fine.


The seed merchants had the wheat tested at an official testing station, and the result of the test showed that it satisfied requirements as to purity and germination. But the seed merchants did not deliverto Mr Marles, the Plaintiff, the statement required by Section (1), of the Act. No complaint on that head was made by Mr Marles. It may well be that he did not realize the necessity for it, as appears to have been the position of the seed merchants. None the less, it is submitted on behalf of the third party that the failure to deliver the statement makes the contract between seed merchants and Mr Marles an illegal contract, from which it follows, it is said, that no part of the damage for breach of warranty awarded to Mr Marles against the seed merchants can be recovered from their suppliers, though it is proved to the satisfaction of the judge that it was their supplier's breach of warranty which led to the damage.


The argument advanced on behalf of the third party gains support from the decision of this court in the case of Anderson, Ltd. V. Daniel, reported in 1924 1 king's Bench Division at page 138, in which the plaintiffs had sold something which fell within the provisions of the Fertilisers and Feeding Stuffs Act, 1906, so that an invoice in prescribed terms had to be delivered to the purchase. No such invoice was given. The vendors sued for the price, and it was held that they were not entitled to recover. Lord Justice Atkin, at page 149, regarded the contract as "unenforceable by the offending party where the illegality arises from fact that the mode of performance adopted by the party performing it is in violation of some statute, even though the contract as agreed between the parities was capable of being performed in a perfectly legal manner"; and that was sufficient for the decision of the Court. Both Lord Justice Bankes and Lord Justice Scrutton went further and a spoke of the contract as illegal. Lord Justice Bankes added: "So here I say that a vendor of fertilizers must comply withthe provision as to invoice in order to take advantage of the contract of sale. From that point of view it is unnecessary to consider whether the contract was illegal ab initio. While I follow the reasoning that the delivery was a bad, or an incomplete, delivery, I cannot see that the contract become an illegal contract, nor was that point necessary for the case under review. Clearly the purchaser could have suod on the contract.


Reliance was also placed on ports of the judgment of sir Vicary Gibbs, chief Justice, in Simpson v. Bloss reported in 7 Taunton's Reports at page 246, in which it was said that the Plaintiff's claim was so mixed with illegal transaction in which he and the Defendant and Brogan were into proof of that transaction, and therefore cannot be enforced in a Court of law", and in which case reference was made to the decision in ex parte Bell "because the claim was bottomed in an illegal contract."


The decision in Anderson, Ltd. V. Daniel was followed in this Court in B. & B. Viennese Fashions v. Losane, reported in 1952 1 All England Law Reports at page 309, where Lord Justice Jenkins said: "It is plain from the case of Anderson, Ltd. V. Daniel that illegality in the performance of a contract may avoid it, although the contract was not illegal ab initio. That being so, one has to consider whether the mode in which the contract was performed, or purported to be performed, in this case sufficed to turn it into an illegal contract. I find myself constructed to hold that this was the result." The principle underlying these decision is really the same as that stated by Lord Ellenborough, Chief Justice, in Langton v. Hughes, reported in 1 Meeson & Welsby's Reports at page 596: "What is done in contravention ofan Act of Parliament cannot be made the subject-matter of an action."


Mr Justice Lynskey having held that Plaintiff, Mr Marles, was entitled to recover damage against the seed merchants, proceeded to deal with the claim of the latter against their supplier. I take this passage from his judgment: "The whole of that claim is based on re-sale of the wheat. Before the Defendants can substantiate their right to claim against the third party they have to set up this contract with the Plaintiff...

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2 books & journal articles
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    • Singapore Academy of Law Journal No. 1999, December 1999
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