Re Wait (trading as Wait and James); The Trustee v Humphries and Bobbett

[1926] All ER Rep 433

 Court of Appeal

 By a cif contract Wait sold to the buyers 500 tons of Western White wheat, the wheat being part
of a parcel of 1,000 tons bought by Wait on the previous day. The wheat was shipped in bulk. On
21 December W sent the invoice to the buyers, and on February 6 they paid for the wheat by a
cheque for £5,933. On 24 February Wait was adjudicated bankrupt. On 28 February the ship
arrived at Avonmouth with the 1,000 tons of wheat in bulk, the 500 tons not having been
appropriated to the buyers. The trustee in bankruptcy having refused to deliver the wheat or to
refund the £5,933, the buyers moved for specific performance of the contract by the trustee, or,
alternatively, for a declaration that they were entitled to an equitable charge upon the wheat for
£5,933.

Held Although the 500 tons of wheat was described as part of a cargo of wheat of a specified
kind and shipment was stated to be within a definite period in a definite vessel, the agreement
was not a "contract to deliver specific or ascertained goods" within s 52 of the Sale of Goods
Act, 1893, nor did it amount to an equitable assignment of the 500 tons which was enforceable
against the goods in the hands of the trustee, and, therefore, the buyers were not entitled to an
order for specific performance of the contract or to a declaration that it amounted to an equitable
assignment enforceable in the manner stated above.

1
Atkin LJ

 ‘The claim of the buyers to specific performance in their argument in the courts below and
before us was based solely on the provisions of s 52 of the Sale of Goods Act, 1893. That section
… [gives] the remedy in all actions for suits for breach of contract to deliver specific goods for a
price in money. The present action gives the remedy in any action for breach of contract to
deliver specific or ascertained goods. It is not easy to discover the reason for adding the words
"or ascertained." It is, however, clear that "specific goods" bear the meaning assigned to them in
the definition clause "goods identified and agreed upon at the time a contract of sale is made."
"Ascertained" probably means identified in accordance with the agreement after the time when a
contract of sale is made, and I shall assume that to be the meaning. It seems to be beyond dispute
that at the date of this contract there were no goods identified and agreed upon; and I think it
equally clear that at no time were there any goods ascertained… Speaking generally, courts of
equity did not decree specific performance in contracts for the sale of commodities which could
be ordinarily obtained in the market where damages were a sufficient remedy. Possibly the
statutory remedy was intended to be available even in those cases. But the Act of 1893 appears to
have the effect that in contracts for the sale of goods the only remedy by way of specific
performance is the statutory remedy, and it follows that, as the goods were neither specific nor
ascertained, the remedy of specific performance was not open to creditors.’