Rose (F. E.) (London) v William H. Pim Jnr. & Company

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeLORD JUSTICE SINGLETON,LORD JUSTICE DENNING,LORD JUSTICE MORRIS
Judgment Date16 Jul 1953
Judgment citation (vLex)[1953] EWCA Civ J0716-1
Docket Number1952 F. No. 485

[1953] EWCA Civ J0716-1

In The Supreme Court of Judicature

Court of Appeal

Before:

Lord Justice Singleton,

Lord Justice Denning, and

Lord Justice Morris

1952 F. No. 485
Frederick E. Rose (London) Ltd.
and
Wm. H. Pim, Junr. & Company, Ltd.

Qounsel for the Appellants; The Hon. T.G, ROCHE, instructed by Messrs Richards Butler & Co.

Qounsel for the Respondents; MR KENNETH DIPLOCK, Q.C., MR EUSTACE ROSKILL, Q.C., MR W.J. BATES ON and MR H.J. A. SCARLETT, instructed by Messrs Thomas Cooper & Co.

LORD JUSTICE SINGLETON
1

This dispute arises out of two contracts for the sale of North African horsebeans.

2

The Plaintiffs and the Defendants carry on business in the City of London. The representative of the former in these transactions was Mr. Hampson. The Defendants have a considerable business in North African products. The Plaintiffs have an associated company in Egypt, which is conveniently referred to as Rose (Middle East). On the 27th October, 1950, Rose (Middle East) sent a cable to the Plaintiffs in these terms: "Have enquiry Egypt up to five hundred tons Moroccan horscbcans dcsoribed here fcverolos. Please offer oif port Said single and double bags indicating admixture."

3

Mr. Hampson was ignorant of the meaning of the French word "feveroles", and he accordingly communicated with Mr. Brooks, who was well known to him, and who was the representative of the Defendants. As at the trial the Judge accepted the evidence of Mr. Hampson, I think it desirable that I should refer to it. Mr. Hampson was asked: "Why did you pick on Pims and Mr. Brooks?", and he answered: "I chose William H. Pims because I have known for many years past that they have a very important connotation in North Africa and I had always understood that the shippers in North Africa whom they represent are easily the biggest firm in North Africa. I also chose there because I have known Mr. Brooks for a matter of 25 years or more and, as I was in some little difficulty in dealing with something I had never handled before, I felt I could rely on Mr. Brooks as an old friend to help me to get the right thing. (Q) Had you ever come across the word "feverle" before? (A) No; I had never seen it in my life, (Q) When you rang up Mr. Brooks what did you do? (A) I am quite certain that I quoted to him that part of the telegram which says "500 tons Moroccanhorsebeans, described here as feveroles'. I am about 99 per cent, certain that I read the whole telegram, (Mr. Justice piloher); The descriptive words? (A) Yes. (Mr. Diplook); Did you refer to Egypt? (A) Yes. (Q) That is one of your 100 percent, certainties? (A) Yes, because I needed to buy them for shipment to Egypt, (Q) Having read out the telegram, did you ask him what 'feveroles' meant? (A) Yes, (Q) What did he reply? (A) Mr. Brooks said he did not know, but he would find out."

4

A few days later there was another conversation, of which Mr. Hampson said; "I heard from Mr. Brooks that. 'feveroles' just means horsebeans, and that the commodity that I needed to buy was Algerian/Tunisian/toroccan horse-beans."

5

Thoroaftcr there wore offers and counter-offers which are shown in the documents, of which copies arc before the Court. It is important to boar in mind that both the Plaintiffs and the Defendant's were middlemen. If there came about a contract between them the Defendants were buying from North Africa, and the Plaintiffs were to sell through Rose (Middle East),to Egypt. The matter came to a head on the 2nd November, 1950, and there was another conversation between Mr. Hampson and Mr. Brooks, of which Mr. Hampson's account is given on page 5 of the transcript of the evidence, and I read it as far as is material. Mr. Hampson said: "On the 2nd Pim came back and said they were unable to accept the bid of £30. 10s., but they again made me a firm offer – all this was quite oarly in the morning – for reply back again in London at five ol clock on the same day, of Tunisian horsebeans, which they said were the best of the three countries concerned, Algeria, Tunisia and Morocco, and they offered these to mo at £32. I also heard– it is difficult to say whether from Pim or on the market – that there wasa possibility of all these kinds of beans being freed from control in this country and I knew that the United Kingdom was short of them and I felt that, as soon as that news was known, the price was sure to go up, so I added a comment in my telegram giving that news. That was telephoned to the cable company at lo.50 in the morning. The reply had to be back in pim's hands by five o' clock on that day."

6

On that Mr. Hampson cabled to Rose (Middle East) a document which is on page 6 of the Correspondence: "Horsebeans firm here five today Tunisian which host quality thirty-two stop Believe about sellers lowest paragraph very confidentially rumoured our Government will restore to private trade within few days when rush buyers expected." He received the reply, of which a copy is on page 7, from the Alexandria House of Rose. That is on page 7 of the Correspondence, and reads: "yours today booked five hundred horsebeans."

7

Thereupon he accepted the Defendants' offer, and there came into existence a string of contracts, three in number. They are all dated the 2nd November. The first is the sale by an Algerian company to the Defendants of 500 tons Tunisian horsebeans, fair average quality, at £32 a ton less 1¼ per cent. The second records the sale by the Defendants to the Plaintiffs of the like quantity and quality of the Tunisian horsebeans at £32 a ton, and the third records the sale by the Plaintiffs to Noujaim of Port said of the some quantity of horsebeans at £33 a ton, in each case c.i.f. Port Said. There was an Arbitration clause in each of the contracts, which were on Form 62 of the London corn Trade Association, and there was attached to each a slip containing provisions as to payment, and also providing. "Certificate: Certificate of cargo Superintendents at shipment to be final as to weight, quality, condition and admixture, cost of such certificate to be for sellers' account. Admixture:Any admixture of dirt and other foreign substance over 4 per oent. to be allowed for by sellers on certificate of Cargo Superintendents."

8

Some four days later Mr. Brooks told Mr. Hampson that they could work a further 200 tons of the same commodity, and there came into existence the contract of the 7th November, 1950, between the Plaintiffs and the Defendants for the sale of 200 tons Algerian horsebeans, and corresponding contracts between the Defendants and their sellers, and the Plaintiffs and their buyer, who in this case was one Baesionini of Alexandria, to which port shipment had to be arranged. As in the case of the earlier contract there was a slip attached in the same terms as before It appears that the 200 tons of Algerian horsebeans arrived first, and a complaint was made as to them. This is shown by the letter from the Plaintiffs on page 26 of the correspondence, dated the 11th December, to which the Defendants reply on page 27.

9

On the 18th December Rose (London), the Plaintiffs, wrote to Rose (Middle East) a letter, copy of which is on page 32 of the Correspondence. This relates to the 500 tons of horsebeans which had been shipped in the S.S. "Sylva." The plaintiffs write; "We had arranged to assign the Credit from Noujaim to Pim, but in view of the dispute over the 'Gunda'" – that is the ship on which the 200 tons had been shipped – "the Writer went along to the Bank this morning and inspected the Certificate issued by Cargo Superintendents. A note of the salient points on the Certificate (which is a printed form) is enclosed herewith. On seeing the goods described as 'Fevcs de Tunisie' we immediately objected and said that we would not accept 'Fevcs' as equivalent to Horse-beans. The Bank thereupon refused to make a payment to Pim and we understand this evening from pim that they are arranging to put the matter right, having telephoned to Paris on the subject. Exactly what steps their shipper is takingis not yet dear but we are watching the position very clearly. We have been making a few enquiries on the Baltic from various people to check up on those matters, particularly as regards the nomenclature of the beans, one man tolls us that there is only one sort of bean shipped from North Africa and that they are all Horsebeans, Another man contradicts that, and says that Broadbeans are also shipped and that they are known as 'feveroles' which is what you originally asked for in your cable of 26th October. We may mention here that we used the word 'Feveroles' when first spunking to Pim and that they assured us that the translation of 'Feveroles' was 'Horsebeans'. It seems to be agreed that there are both f. a. q, Horsebeans and 'Small Horsebeans' to be had, but they are all 'Horsebeans' and one has to specify 'small' if one wants that sub-division. Another comment is that whatever one may call them in English all the beans which are shipped from North Africa are called in 'French' 'Feves', in spite of this we shall not accept this word on the Cargo Superintendents' Certificate as being sufficient, it would be very interesting if you could let us know from your end, where it is much easier to get. English/French translations accurately, what you consider is the exact equivalent of 'Horsebeans' and 'Broadbeane' and also what 'Favettes' or 'Fevettes' are."

10

This shows the complete uncertainty as to what was understood by the word "feveroles", and it brings in the question of "feves", also "favettes" and "fevettes". That is after inquiries had been made in the market by the Plaintiffs.

11

That uncertainty has not been cleared up, though it appears that both are horsebeans, and that "feves" are larger than "feveroles", although that does not appear from the letter which I have road; rather the contrary.

12

On page 33 of the correspondence...

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