Mash & Murrell Ltd v Joseph I. Emanuel Ltd (Ionian.)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HARMAN,LORD JUSTICE PEARSON,LORD JUSTICE ORMEROD |
| Judgment Date | 13 November 1961 |
| Judgment citation (vLex) | [1961] EWCA Civ J1113-1 |
| Date | 13 November 1961 |
| Court | Court of Appeal |
[1961] EWCA Civ J1113-1
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Ormerod
Lord Justice Harman and
Lord Justice Pearson
MR ASHTON ROSKILL, Q.C. and MR MICHAEL KERR, Q.C. (instructed by Messrs. Constant & Constant) appeared as Counsel on behalf of the Appellants (Defendants).
The Hon. T.G. ROCHE, Q.C. and MR JOHN PERRETT (instructed by Messrs Hicks, Arnold & Co.) appeared as Counsel on behalf of the Respondents (Plaintiffs).
LORD JUSTICE ORMEROD: I will ask Lord Justice Harman to deliver the first Judgment.
This was an action for damages for breach by the Defendants of an implied warranty on the sale of a parcel of Cyprus potatoes to the Plaintiffs. The action was successful. The learned Judge held the breach proved, and awarded the Plaintiffs £1,493. 2s. Od. damages.
The Defendants appeal on two grounds: first, that the Judge drew a wrong inference from the facts proved before him, and, secondly, that the warranty on which the Plaintiffs relied, and which the Judge upheld, was not justified by the law. These questions can be easily divided. If the warranty claimed be assumed to be right, the Plaintiffs may still not be entitled to succeed having regard to the true view of the facts. Logically, therefore, the facts must first be found to ascertain whether the Plaintiffs can succeed. If it be found, even on their submission, that they cannot succeed, questions of law do not arise.
I propose, therefore, to confine myself to the facts and the true inferences to be drawn from them. I shall assume, for the present purpose, that, under the contract in question, there was implied this warranty, namely, that the potatoes, when put on board, were in such a state that, assuming a normal voyage, they would on arrival be in such a condition as to be suitable for the purpose for which the Plaintiffs required them, namely, sale to retailers for human consumption.
The Plaintiffs' case can be stated in a few words. The potatoes, though apparently perfect when shipped, were rotten on arrival after a normal voyage. There had been a breach, therefore, of the implied warranty that they were fit to stand the voyage. The Defendants deny that the voyage was normal, and attribute the rottenness of the potatoes to a cause occurring after shipment.
The facts are in a comparatively small compass. The contract was made orally on the telephone between a director of the Plaintiff Company and a representative of a firm of brokers acting as agents for the Defendant Company. This oral contract was on the same day recorded in a Memorandum in writing dated the 8th July, 1957, which has been treated as superseding the oral agreement and being itself the contract. The Memorandum is in these terms. It is addressed from "Constant, Smith & Co., Monument Buildings, Pudding Lane", to "Mash & Murrell Ltd.", the plaintiffs in the action. "Dear Sirs, We have this day sold to you on behalf of our principals:- About 2,000 half-bags Cyprus spring crop potatoes mixed sizes Uptodates and/or Arran Banners, price: 16/- per half-bag, C. & F. Liverpool, plus 3d. per half-bag commission for ourselves. Shipment: Afloat per the s.s. 'Ionian' to Liverpool. Payment: Nett cash against documents on first presentation", and that is signed "for and on behalf of Constant, Smith & Co., D. Constantinides, Partner". The principals referred to are the Defendants.
It will be observed that the potatoes are described as "afloat". It is therefore necessary to trace their history back to the beginning of the voyage, for that is the time to be looked at under a c.i.f. contract when considering the terms of the warranty. This it is possible to do with the aid of evidence taken at the Defendants' request on commission in Cyprus.
The shipper, it appears, was one Spyros Anastassiou, a merchant of Limassol, a port on the south coast of the island. He deposed that he purchased the potatoes in that area on or about 25th June; that he had been in the area for the two days before, and that the potatoes were then being lifted by the growers. He supplied the bags, and the potatoes were conveyed in them by lorry to his packing station about five miles away. Here the bags were emptied and the potatoes sorted under the inspection of another witness, one Jacovides, a produce inspector under the Cyprus Government. They were then put into fresh bags and taken to the S.S. "Ionian" – one does not know how far; apparently not very distant. She had arrived from Malta that morning. Here a sample was again inspected by the same inspector – so perhaps there was not much value in it – and the bags were stowed in No. 3 hold 'tween decks. It appears that when stowed they were channelled so as to afford ventilation. These facts are supported, except the last of them, by certificates from the Government Department concerned. So far it is clear enough that the potatoes were in all respects apparently sound and fit for their purpose. The sale by Anastassiou to the Defendants was effected on June 27th.
The log of the "Ionian" shows that the loading was between 15.30 and 19.10 hours on June 29th. She weighed anchor at 19.25, but did not start her homeward voyage, going on instead to Famagusta on the east coast of the island, and arriving there at 01.36 in the morning of the 30th. Here she had considerable discharges to make. These were not completed till 17.30 on the 3rd July. There followed some loading, but not in No. 3 hold. This was finished at 20.15 on 4th July, when she at once put to sea. On 8th July she called at Tripoli and loaded further cargo, but not in No. 3 hold. She left port on 9th July and arrived at Liverpool on I8th July without incident.
It will be observed that when the contract was made the potatoes were in port at Tripoli. Payment of the contract price was made by cheque dated 15th July. When the hatches were opened it was found that the potatoes were rotten. So far gone were they that they had to a large extent rotted the bags in which they were. The Plaintiffs immediately caused a survey to be made, and the potatoes were declared unfit for human consumption by the Medical Officer of Health. The Plaintiffs did not, as they should have done – and for this the learned Judge has already visited them by mulcting them in costs – call in the Defendants or any representative of the Defendants to see the potatoes or to attend the survey. They sold the potatoes for what they would fetch – some small sum – for pig food. Having thus affirmed the contract, they brought the action against the Defendants for breach of warranty, the Writ being issued on the 25th August, 1957.
The Statement of Claim, delivered in the autumn of 1957, simply states the fact that the Plaintiffs bought the goods as being in accordance with the description in the Memorandum, and alleging an implied term that the goods should be of merchantable quality on arrival. They then allege that on arrival they were not of merchantable quality, and that is the action as it first was constituted. The Defence was a mere traverse and nothing more. But in the year 1958 there was an elaborate amendment of the Pleadings, and the warranty was then stated in three different ways, all of which, with all respect to the pleader, come to much the same thing in the end, and the breach similarly was elaborated. The Defendants amended their Defence hardly at all.
I ought to say perhaps here that the evidence in this case has taken a very curious course. The Master was examined on commission on the 18th February, 1959. The evidence in Cyprus (to which I have alluded) was given on the 9th May, 1960. And there was further evidence at the trial on the 11th or 12th January, 1961. When the Plaintiffs' case closed they had proved that the potatoes were rotten on arrival: they tendered the evidence of the Master to show that the voyage had been normal, and made no attempt to attribute the trouble to any cause. The Defendants did not confine themselves to anything so jejune. They first put in the evidence given on commission in Cyprus, which, as I say, seems to me to prove that, so far as anybody knew, when they went on board ship at Limassol, they were apparently in good order and condition. It did not prove any more than that. But they went on to call an expert witness, a person who was a very eminent mycologist or expert in fungi and so forth. He was bold enough to put forward three possible causes of the condition in which the potatoes were found to be. Of course, he did not see them at the time when they were condemned; he only had to take everything by description so far as that was concerned. But he deposed roughly to this, that there were three possible causes and no more. The disease from which the potatoes suffered was admittedly high temperature break-down known as "black heart", which has as its secondary symptom wet rot, and that may be produced, says he, by three methods: First, the potatoes had at some stage or other been so stved of oxygen that they suffered from heat asphyxiation. A potato, being a tuber, of course breathes, and the hotter it gets the more oxygen does it require. If you starve it of oxygen you produce asphyxia, just as you might in any other living organism, and that will set up the rot which results in black heart, from which these potatoes suffered. Secondly, a similar condition, says he, can be produced by a sudden and very thorough wetting of the potatoes after lifting; if, for instance, he said, there had been a thunderstorm wetting them in the lorries as they came down from the fields or when they were being transported from the warehouse to the ship. But there would have to be a very heavy saturation to produce the results with which the Defendants were confronted. Thirdly, there might be" a dry...
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