Müller & Company v Weber & Schaer
| Jurisdiction | Scotland |
| Judgment Date | 29 January 1901 |
| Docket Number | No. 64. |
| Date | 29 January 1901 |
| Court | Court of Session |
Lord Kincairney, Lord President, Lord Adam, Lord M'Laren, Lord Kinnear.
ContractProofWrit or OathWritten Contract of SalePrior Oral AgreementInnominate Contract.
In an action raised by A against B for damages for failure to deliver certain parcels of indiarubber goods, A produced and founded on sale-notes under B's hand, bearing that he had sold the goods in question to A. In defence B averred that prior to the transactions condescended on the parties had entered into a verbal agreement to the effect that while the contracts for the supply of rubber by the defender to the pursuer were to be pro forma with the pursuer as buyer, the pursuer was only to receive a commission on the sale of the goods by him to a particular consumer who was named, and further, that the pursuer was to confine his dealings in the article in question to the defender alone. B further averred that A had not implemented this agreement, and moved to be allowed a proof pro ut de jure of his averments. The Lord Ordinary (Kincairney) held that the alleged agreement could only be proved by the writ or oath of the pursuer, on the ground that it was an agreement of an innominate and unusual character.
The defender having reclaimed, the Court adhered to the Lord Ordinary's judgment on the ground that it was incompetent to supersede a contract of sale instructed by writing by parole proof of an antecedent oral contract of an entirely different character.
This was an action at the instance of F. R. Mller & Company, merchants, Glasgow, against Weber & Schaer, merchants in Hamburg, concluding for 7500 as damages for breach of contract in respect of the defenders' failure to deliver certain parcels of rubber or gum, known in the trade as balata.
The pursuers averred that by contracts dated in May, June, and July 1899, the pursuers purchased from the defender four several parcels of balata amounting in all to 140 tons, for delivery commencing in July and ending in April 1900.*
The pursuers further averred (Cond. 4) that at the request of the defenders an agreement was come to by letters postponing the time for the delivery of the balata; that the defenders had delivered 141/2 tons but refused to deliver the balance; that the pursuers had accordingly been compelled to purchase balata elsewhere to enable them to meet their engagements; that the price had risen, and that they had suffered loss in consequence to the extent of the sum sued for.
The defenders admitted that they refused to deliver the balance of the balata.
They stated, inter alia, that the principal consumers of balata in the United Kingdom were R. & J. Dick of Glasgow, and that they received their supplies from the defenders through the pursuers. The business in indiarubber between the pursuers and defenders was done in the ordinary way of merchants' business, the pursuers sending orders at certain prices, and the defenders accepting if satisfied with the prices. Prior to September 1898 the business in block balata was done in similar form, but on the basis that the pursuers on their part were really doing the business on commission for the defenders, that is to say, their profit was in the form of a commission on the sales made to them for R. & J. Dick.
Further, that in consequence of incidents displeasing to the defenders, Messrs Weber and Mr Lussman, the defenders' broker in balata, had a meeting in Hamburg with Mr F. R. Mller of the pursuers' firm, with a view to adjusting the footing on which business was to be done. (Stat. 6) Before Mr Mller left Hamburg he had a meeting with the Messrs Weber and Mr Lussman, when an agreement was come to as the basis of all future transactions in block balata between the pursuers and the defenders, to the following effects, viz., that while the contracts should pro forma continue to be with the pursuers as buyers(1) The pursuers should be bound to accept a commission of one-half per cent from the defenders and to take no further commission or profit from Messrs Dick; (2) The pursuers should be bound to sell all balata supplied by the defenders to Messrs Dick at the defenders' invoice prices, and to put before Messrs Dick all the defenders' offers or proposals of business at the prices and on the terms quoted by them; (3) That if the pursuers desired at any time to speculate in balata on their own account they should only be entitled to do so after advising the defenders beforehand of the transactions, and on condition that any such balata bought by them was not for Messrs Dick, but for the pursuers' own account, or eventually for account of one or other of the smaller consumers in the United Kingdom; (4) That in the absence of express stipulation all block balata sold by the defenders to the pursuers should be for Messrs Dick so as to
enable the defenders to keep in touch with that firm's requirements; (5) That the pursuers should not buy any block balata in Hamburg except through the defenders, and that they should not buy in any other market; (6) That the pursuers should transmit to the defenders accurate information as to requirements and arrangements of Messrs Dick in regard to the purchase of balata. The above mentioned agreement was made as the basis of all future business in balata between the parties, and all contracts made thereafter, and in particular the contracts now sued on by the pursuers were entered into subject to said agreement and were conditional upon the pursuers duly performing their part thereof. In the contracts carried out after this agreement was come to the pursuers, while appearing as buyers on the invoices, were paid the stipulated commission of one-half percent above mentioned.
That the pursuers had violated the terms of this agreement, and that consequently the defenders, as already stated, had refused to deliver the balance of the balata.
The pursuers pleaded;(4) The defenders' averments of agency contract alleged to qualify the contracts libelled in condescendence 3 can only be proved by writ or oath. (5) The alleged contract libelled in statement 6 of the defenders' statement of facts being innominate and unusual, can only be proved by writ or oath.
The defenders pleaded;(2) Lis alibi pendens. (4) In respect of the pursuers' breach of contract as condescended on, the defenders were justified in refusing to make delivery under the contracts sued on.
On 4th December 1900 the Lord Ordinary (Kincairney) pronounced the following interlocutor:Repels the second plea in law for the defenders: Sustains the fifth plea in law for the pursuers: Allows the defenders a proof by writ of the pursuers of defenders' averments in statement 6 of their statement of facts; and quoad ultra, and under reservation of all other pleas...
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