Scragg (Ernest) & Sons Ltd Perseverance Banking and Trust Company Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE STEPHENSON |
| Judgment Date | 02 April 1973 |
| Judgment citation (vLex) | [1973] EWCA Civ J0402-2 |
| Court | Court of Appeal (Civil Division) |
| Date | 02 April 1973 |
[1973] EWCA Civ J0402-2
In The Supreme Court of Judicature
Court of Appeal
Appeal by Defendants from Order of Mr. Justice Ackner on 18th January 1973.
Revised
The Master of the Rolls (Lord Denning) and
Lord Justice Stephenson
Mr. MICHAEL KEMPSTER, Q.C., and Mr. E. ADEANE (Instructed by Messrs. A. Kramer & Co.) appeared on behalf of the Appellant Defendants.
Mr. M. WALLER (instructed by Messrs. Bird & Bird) appeared on behalf of the Respondent Plaintiffs.
This is a commercial transaction in common form. The question is whether the sellers are entitled to payment for goods supplied. The sellers, Ernest Soragg & sons Ltd., received an order in writing for some continuous texturing machines, as they are sailed. The order on its face said it was from the perseverance Banking and Trust Co. Ltd. of 120 Moorgate in the City of London. The payment terms were to be 10% with, the signed order and 90% cash against first presentation of shipping documents - a very familiar form of contract. This order was signed on 7th June 1971, "for and on behalf of the Perseverance Banking and Trust Co. Ltd." On 6th August 1971 the goods were shipped on M.S. Atherton for carriage to Israel. The seller prepared the documents. A sight draft with an invoice for two machines, together with the bill of lading, were sent forward by the sellers' bank, the National Westminster Bank. They sent the documents forward to the Perseverance Banking and Trust Co. Limited., thinking that they ware bankers, as their name would suggest. Now it is admitted that they were not bankers at all. They did not deal with these documents like bankers: they did not accept the drafts or pay cash against them. They forwarded the documents without paying for them. The sellers' bank sent messages for payment. Still the payment was not forthcoming, nor were the documents returned. Of course, the sellers' bank were worried about this. It was contrary to all banking practice. Finally the Perseverance Banking Co. wrote on 14th September 1971:
"We regret that there has been a misunderstanding in as much as in this case we are not acting as Bankers but as purchasers on behalf of a disclosed client."
They had done what is plainly wrong: Without paying the cash against documents, they had sent forward these invoices and the bill of lading to the destination in Israel, where the goodswere obtained without any payment at all.
Naturally enough, the suppliers, Ernest Soragg & Sons, Ltd., On 1st October 1971 Issued a writ for the price of the goods. Allowing for a deposit (which had been paid) the sum outstanding would be £74.332. Then there were pleadings. The Perseverance Banking Co. said: We were not principals buying these goods for ourselves: we were agents for an Israeli company. Iaranyl Limited. They say: We were disclosed agents; and, being disclosed agents, we are not liable. Thereupon the plaintiffs amended their statement of claim so as to say: If you were agents then by sending on these shipping documents (as you did) not having been paid for, you converted the bills of lading, which were the documents of title to the goods: you have converted them and you are liable for the same amount: the price is the sum payable as damages for conversion.
The plaintiffs took proceedings under Order XIV for summary Judgment. Both the Master and the Judge gave judgment. Now there is an appeal by the Perseverance Banking Co. to this Court against the Judgment. We have been shown a lot of new affidavits a which were not before the Master of the Judge.
The first point taken by Mr. Kempster is this: He agrees that on the face of that order form which I have read the Perseverance Banking and Trust Co. Ltd. were the buyers. There is an unqualified signature. Even if they were agents, it is well known that if an agent gives an order in his own signature without qualification, he is liable upon it. But Mr. Kempster submits that on the affidavits there is a case for rectifying the written documents - to rectify them so as to show that Perseverance were acting solely "as agents on behalf" of Isranyl Ltd. He referred us to the cases of rectification and to the evidence in this case.
A gentleman named Mr. Reitman. who seems to be a leading figure in both the Perseverance Co. and the Iaranyl Co., says there was a meeting in March between the plaintiffs' representatives and himself, at which it was agreed that the Perseverance Co. should be named as buyers on the order and invoice; but he says that there was a stipulation that the Perseverance Co. were to play no more than...
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...v Lim & Tan (Pte) [1985-1986] SLR (R) 1081; [1986] SLR 489 (refd) Ernest Scragg & Sons Ltd v Perseverance Banking and Trust Co Ltd [1973] 2 Lloyd's Rep 101 (refd) Farrell v Secretary of State for Defence [1980] 1 WLR 172 (refd) F C Jones & Sons, Trustee of the property of v Jones [1997] Ch ......
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...600; Midland Bank Ltd v Eastcheap Dried Fruit Co [1961] 2 Lloyd’s Rep 251; Ernest Scragg & Sons v Perseverance Banking and Trust Co [1973] 2 Lloyd’s Rep 101. 132 As corporeal, tangible property, there is no doubt that the share certificates can be converted. The question is whether they are......
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Alwie Handoyo v Tjong Very Sumito and another and another appeal
...600; Midland Bank Ltd v Eastcheap Dried Fruit Co [1961] 2 Lloyd’s Rep 251; Ernest Scragg & Sons v Perseverance Banking and Trust Co [1973] 2 Lloyd’s Rep 101. As corporeal, tangible property, there is no doubt that the share certificates can be converted. The question is whether they are wor......