Barter v. Dubeux (App.), Q.B.

A. Charles and E. Crofton, for the trustee, were not heard.

BRAMWELL, L.J.—I am clearly of opinion that the judgment should be affirmed. I do not say that in no case may the trustee be made a party. This case appears to me to be in a dilemmaeither judgment could be given against the trustee, if he is made a defendant, or it could not. I do not think it could. The utmost, however, that could happen to him would be a judgment, not against him personally, but making a declaration that the plaintiffs had a right of proof against the bankrupt's estate. That declaration should be made, not by the High Court, but by the Court of Bankruptcy. What the plaintiffs, in truth, ask, is to be enabled to prove their debt in the High Court instead of the Court of Bankruptcy. Otherwise, says Mr. McLeod, all the costs incurred in the action will be wasted, and for reasons of expediency the trustee should be made a party. Now I am not sure that the costs incurred might not be made available in case the Court of Bankruptcy thought that some question or issue ought to be tried by a jury. Provision might then perhaps be made so that the costs should not be thrown away. But, allowing that possibly the costs might be wasted, I am still of opinion that the plaintiffs have no right to bring the trustee into this Court as defendant, and that the proper Court in which to enforce their rights is the Court of Bankruptcy.

BRETT, L.J.-I agree that the appeal should be dismissed, on the ground that the plaintiffs have failed to shew that they are entitled to the order asked for, or any branch of it; that is to say, either that the trustee should be joined as defendant, or that any notice should be served upon him under Order L. rule 2. The action was on a bill of exchange; the claim is indorsed on the writ of summons, and there is no other relief claimed than judgment for the amount of the bill. Since action brought the defendant has become bankrupt. It is now suggested that the trustee in bankruptcy should be made defendant. If so, it is

admitted that no judgment whatever could be given against him personally, either for the claim or for costs. It is suggested that an order should be made against him, declaring that the plaintiffs should be admitted to prove against the estate for the amount of the bill. I am of opinion that no such order should be made. No such order is claimed on the pleadings, and we should have to amend. But, apart from that, I think that, if the order asked for could be made by this Court, it could equally be made in the Court of Bankruptcy. The plaintiff, therefore, fails to shew any necessity "for the complete settlement of the question involved in the action," within the rule that the trustee should be made a defendant. Then the plaintiff asks for an order for service of notice upon the trus tee, which it is said would prevent him from disputing the claim in the Court of Bankruptcy. I can see nothing in Order L. by reason of which the notice would bind him, if not otherwise bound. The plaintiffs have therefore failed to shew that, for the complete settlement of all the questions involved in the action, it is necessary to order a notice to be served upon the trustees under rule 2 of Order L. I therefore think the appeal should be dismissed.

COTTON, L.J.-I think the Queen's Bench Division rightly discharged the Order making the trustee a defendant. The order was made under rule 2 of Order L. There is no doubt that the rule may be applied to the case of a defendant becoming bankrupt; the question is, are we to apply it here? The question turns on the words of the rule," If it be deemed necessary for the complete settlement of all the questions involved in the action." Now, where the action is brought against two defendants, and one of them becomes bankrupt and the other does not, then the rule applies; the trustee may be made a party, though the judgment is not against him personally, but that the plaintiff may be at liberty to prove against the estate. The order is made because it is necessary, with respect to the defendant who has not become bankrupt, that the action should continue. Here

Barter v. Dubeux (App.), Q.B. there is one single debt due from one defendant, and the claim ought to be settled in the Court of Bankruptcy. If the matter is one which ought to be tried by a jury, that is not a reason for joining the trustee as defendant; the Court of Bankruptcy may direct an issue to be prepared and tried by a jury. It is said that costs have been incurred in the action which will be wasted. That is no reason for joining the trustee. The plaintiff is in the position of everyone else who brings an action-he is subject to lose his costs if the defendant becomes bankrupt, and he only gets his dividend with the other creditors instead of being paid his debt in full. It would, in my opinion, be wrong if, when the Legislature has provided another and more convenient mode for settling the questions between the parties, we should allow this action to be continued.

I am, therefore, of opinion that this appeal should be dismissed.

Sale of Goods-Successive Deliveries— Refusal to accept One Delivery-Right to cancel Contract.

The defendant, in October, 1879, sold to the plaintiff 2,000 tons of iron, at 42s. per ton, free on board-" Delivery, November, 1879, or equally over November, December and January next, at 6d. per ton extra."

The plaintiff refused to accept any iron in November; the defendant then declared the contract to be cancelled. The plaintiff claimed delivery of one-third of the 2,000 tons in December, and one-third in January. The defendant refused to deliver.

In an action for non-delivery,

Held (by BRAMWELL, L.J., and BAGGALLAY, L.J.; BRETT, L.J., dissenting), that the plaintiff's breach of contract in refusing to accept delivery in November, entitled the defendant to cancel the contract, and therefore the defendant was not liable. Judg ment of FIELD, J., and MANISTY, J., reversed.

Hoare v. Rennie (5 Hurl. & N. 19; 29 Law J. Rep. Exch. 73) approved.

Action for non-delivery of certain iron, which had been bought by the plaintiff from the defendant, through Mr. Caleb Bloomer, a broker. The contract of sale was as follows:—

Middlesbrough-on-Tees, October 27, 1879.
"Sold to John Honck, Esq.,
"8 Hill Side,

"Crouch Hill, London. "2,000 (two thousand) tons No. 3 G. M. B. Middlesbro' pig iron, at 42s. (forty-two shillings) per ton, f. o. b. maker's wharf here.

"Delivery, November, 1879, or equally over November, December and January next, at 6d. per ton (sixpence) extra. Payment net cash here against bills. of lading.

"Tees conservancy dues payable by shipper.

"Under this contract buyer and seller * Coram Bramwell, L.J.; Baggallay, L.J.; and Brett, L,J.

3 Y

On the 1st of November, 1879, the defendant wrote to Mr. Bloomer, asking for a delivery order, and requesting to know whether there was any chance of the plaintiff's taking the whole of the iron in that month of November.

Mr. Bloomer wrote in answer, stating that the plaintiff could not yet decide, but that he would give seven days' notice of his decision when he had decided.

A correspondence ensued, of which the following letters are material:—

November 17, 1879. Defendant to plaintiff:

:

"I beg reference to contract of the 27th of October, for 2,000 tons pig iron, according to which you have the faculty to take the whole in November, or one-third in each month - November, December and January. Will you be good enough to inform me what quantity you wish to take this month over and above the minimum quantity of 666 tons due this month, and kindly send me your delivery instructions."

November 22, 1879. Bloomer to defendant:

. . . . Mr. Honck asks me to say he will be obliged if you will defer shipping any of his iron until December, so allowing him to take delivery of all in December and January."

December 1, 1879. plaintiff :

Defendant to

"I beg to refer you to my letter of 17th ult., to which I have received no reply. I have since then written several times also to your broker, Mr. Caleb Bloomer, pressing for orders for delivery of your iron, but could elicit no satisfactory reply. You ought to have taken delivery of a large portion of your iron during last month, and as you have failed to do so, I have been put in a very awkward

position with regard to your whole contract; in fact, I cannot keep any contract on my books which is not executed properly. I must, therefore, give you notice that I have removed from my books and cancelled the contract for 2,000 tons, No. 3, which you had with me. I do this in order to protect myself from any further

loss in the matter.'

December 2, 1879. Plaintiff to defendant:

"Yours to hand in due course. My reason for not replying to yours of the 17th was, that Mr. Bloomer, my broker, did so, and as the end of the month drew on prices hardened; hence the reason I did not give shipping orders. I am, therefore, at a loss to see your reason for saying you have cancelled my contract to prevent further loss. In fact, I will not allow such a thing to be done.

"My iron is under offer, and I expect it to be accepted; you must, therefore, accept notice that I hold you responsible for any loss in any case. You will have shipping orders in a few days."

The defendant wrote in answer that he would stand by his letter of the 1st of December, and refused to deliver any of the iron.

This action was brought to recover damages for non-delivery of the iron.

The defendant denied his liability, but paid 661. 13s. into Court.

The case was tried in London during the Trinity Sittings, 1880, before Field, J., who directed a verdict for the plaintiff for 9331. 6s. 8d., less the 661. 13s. paid into Court, and gave judgment for the plaintiff.

A rule nisi for a new trial was discharged by Field, J., and Manisty, J., and the defendant appealed.

February 24, 25, 26, 1881.-MacIntyre and Henn Collins, for the defendant. -As the defendant was prevented by the plaintiff's default from fulfilling the whole of the contract, he was not bound to fulfil a portion of it. On such a

contract as this the option as to how the iron is to be delivered is in the buyer, for the seller cannot know what quantity he is to deliver until the buyer has declared that option. Here the plaintiff

Honck v. Muller (App.), Q.B. expressed no option in November. Even assuming that the contract bound the defendant to deliver in three successive deliveries, although no option was expressed, or assuming that the plaintiff has expressed an option, then the case is governed by Hoare v. Rennie (1). There is no case in conflict with that decision. In Simpson v. Crippin (2) the failure to accept delivery was only a failure as to an unsubstantial part of the subject-matter of the contract. In Roper v. Johnson (3) the point was given up. [BRETT, L.J., referred to Jonassohn v. Young (4).]

The balance of authority is overwhelming in favour of Hoare v. Rennie (1). See Bradford v. Williams (5), Reuter & Co. v. Sala & Co. (6).

[A question was raised, but not decided, as to the measure of damages. On this point the following authorities were referred to: Roper v. Johnson (3); Frost v. Knight (7); Brown v. Muller (8); Warin v. Forrester (9).]

Charles Russell and Channell, for the plaintiff.—The plaintiff on this contract was not bound to express an option. If nothing was said on either side he was entitled to have 666 tons in November, and was bound to take that much. The breach here did not go to the whole consideration of the contract, and did not entitle the defendant to repudiate the contract and declare it at an end-Note to Pordage v. Cole (10); Simpson v. Crippin (2); Freeth v. Burr (11). The decision in Hoare v. Rennie (1) has been questioned in several of the later

(1) 5 Hurl. & N. 19; 29 Law J. Rep. Exch. 73. (2) 42 Law J. Rep. Q.B. 28; Law Rep. 8 Q.B. 14.

(3) 42 Law J. Rep. C.P. 65; Law Rep. 8 C.P.

167.

(4) 4 B. & S. 296; 32 Law J. Rep. Q.B. 385. (5) 41 Law J. Rep. Exch. 164; Law Rep. 7 Exch. 259.

(6) 48 Law J. Rep. C.P. 492; Law Rep. 4 C.P. D. 239.

(7) 41 Law J. Rep. Exch. 78; Law Rep. 7 Exch. 111.

(8) 41 Law J. Rep. Exch. 214; Law Rep. 7 Exch. 319.

(9) 4 Scotch Sess. Cas. 75, 190 (4th ser.). (10) 1 Wms. Saund. 548 (ed. of 1871).

(11) 43 Law J. Rep. C.P. 91; Law Rep. 9 C.P. 208.

cases, and is opposed to the balance of authority-Note to Cutter v. Powell (12). MacIntyre, in reply, referred to Deverill v. Burnell (13). Cur. adv. vult.

The following judgments were de livered on the 1st of April:

BRAMWELL, L.J.-I think it unnecessary to determine which of the several meanings put on the agreement in this case is right. For whichever is adopted I think the result should be the same. But it seems to me that the meaning is, that the plaintiff had the option to have the 2,000 tons in November, or in equal portions in November, December and January; and that unless he elected in

November in time to have the whole delivered in November if he so elected, or in time to have one-third delivered in November if he elected to have the iron in three deliveries, he has no cause of action.

And I think he did not elect. Such election, of course, includes notice of his option to the defendant. He certainly did not say in November that he would have all in November, nor did he say he would have three deliveries. What I have said seems to me the natural meaning; if it is not, then the contract means 2,000 tons in November unless the plaintiff should elect, as he might, to have them in equal portions in November, December and January. I think he did not so elect, and that having failed to take the 2,000 tons in November he has no cause of action. But I will assume, as the plaintiff says, though I think other. wise, that, whichever construction is right, the plaintiff elected to have the iron in three equal portions in November, December and January. I am of opinion even then that the defendant is entitled to our judgment. Before saying why, I think it fair to the defendant to say I can see no shuffling in his conduct, nor any motive for repudiating the bargain other than a legitimate one. I do not find that iron had risen in price. think it very likely the iron was at the (12) 2 Smith's Lead. Cas. at p. 40 (8th ed.) (13) 42 Law J. Rep. C.P. 214; Law Rep. 8 C.P. 475.

I

Honck v. Muller (App.), Q.B.

wharf of the sellers, and that the defendant was pressed by them to take it.

But however this may be, I think his contention right.

The case for the plaintiff is that by the contract, or what was done under it, he was to take, and was entitled to have, 666 tons in each of the months of November, December and January. That though he (the plaintiff) broke his contract in not taking the 666 in November, and though the defendant at once gave notice he would not go on with the contract, he (the plaintiff) has a right to insist on the December and January deliveries. In other words, the plaintiff says that, having agreed to take 2,000, he has a right or power to demand and take 1,333 and no more. I cannot think so. I think that contention is contrary to law and justice alike. I think where no part of a contract has been performed, and one party to it refuses to perform the entirety to be performed by him, the other party has a right to refuse to perform any part to be performed by him. I think if a man sells 2,000 tons of iron he ought not to be bound to deliver 1,333 only, if it can be avoided. I can see no difference in principle between where the deliveries are at different dates and where they are to be all at once. I think the plaintiff no more entitled to the delivery of these 1,333 tons than he would be if he was to take 2,000 tons in November, and send shipping for 1,333 tons only in that month at such a time that no more could be delivered, and he said he would take no more. Suppose it was a purchase of 100 yards of silk at so much a yard, and the buyer came for fifty only, could he insist on it? Would it make any difference that fifty yards were to be taken and paid for on Monday, and fifty on Tuesday, and the Monday's delivery was not taken but refused, and then the

Tuesday's was demanded? If there was a charter for an out and home voyage, and the charterer refused to load for the out voyage, could he insist on the ship taking his cargo for the home voyage ? Suppose 10,000 tons of coal bought to be delivered at Gibraltar, Aden and Bombay, in equal quantities, at Bombay

in January, at Aden in February, and at Gibraltar in March, and no delivery at Bombay, could the buyer be made to take the other deliveries ? Suppose a contract to supply bread to a workhouse for a year from January 1st, and the contractor says he will supply and does supply none in January, can he insist on supplying in the other eleven months? Suppose he does not supply for eleven months, can he insist on supplying in December? Would it make any difference if he was paid monthly? I hope not. I think not. Suppose a man orders a suit of clothes, the price being 71.-41. for the coat, 21. for the trousers, 11. for the waistcoat-can he be made to take the coat only, whether they were all to be delivered together or the trousers and waistcoat first? The party to a contract so broken has a right,—not to rescind the contract- for rescission is the act of both parties—but a right to declare he will not perform a part only of his contract-namely, what would remain to be performed if the other party had performed his part, and so enabled the performance of the whole. If, indeed, the contract has been part performed and cannot be undone, then it must be proceeded with without such power of declaring off. If, in this case, the plaintiff had taken the November delivery, but had refused the December, the defendant would have been bound to make the January delivery. See what the consequence is of a different conclusion. The defendant was to sell 2,000 tons of iron and have so many pounds sterling; he is made to sell two-thirds only of the iron and have two-thirds only of the pounds sterling and a right of action. Suppose the November delivery would have been a profit to the defendant, and the December and January deliveries a loss, why is he to bear the loss and have no security that he will get the profit? This reasoning, no doubt, would apply where there is part performance, but then there is no help for it. It is asked whether every trifling breach of contract is attended with this consequence. I know not; but 666 tons out of 2,000 are not a trifle. If it must be something that goes to the