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ICLR: King's/Queen's Bench Division/1920/Volume 3/BEHREND & COMPANY, LIMITED v. PRODUCE

BROKERS COMPANY, LIMITED. - [1920] 3 K.B. 530

[1920] 3 K.B. 530

[KING'S BENCH DIVISION]

BEHREND & COMPANY, LIMITED v. PRODUCE BROKERS COMPANY, LIMITED.

1920 July 5, 8.

BAILHACHE J.

Sale of Goods - Contract - Shipment in Alexandria - Delivery in London to Buyers' Craft alongside - Arrival of
Ship - Delivery of Part - Departure of Ship - Subsequent Return - Tender of Balance - Right of Buyers to re-
ject - Sale of Goods Act, 1893 (56 & 57 Vict. c. 71), s. 30.

By two contracts in similar terms cotton seed was sold, to be shipped in Alexandria and delivered in London
to buyers' craft alongside, payment to be in London in exchange for shipping documents. On the arrival of
the ship in London, and after payment by the buyers, a portion of the seed was delivered into the buyers'
barges. The ship then left for Hull with the remainder of the seed on board in order to discharge other cargo.
The ship returned to London in fourteen days and the balance of the seed was tendered to the buyers, but
they refused to accept it. The buyers retained the portion which had been delivered and claimed repayment
of the price paid for the rejected portion:-

Held, that when the delivery had begun the buyers were entitled to receive the whole quantity before the ship
left the port, and that in
[1920] 3 K.B. 530 Page 531

the circumstances the buyers were entitled to keep the part actually delivered and to reject the balance and
to be repaid the price of the balance.

AWARD in an arbitration stated in the form of a special case.

By two contracts in writing dated July 8, 1919, and September 12, 1919, Behrend & Co., Ld. (here-
inafter called the sellers), sold to the Produce Brokers Co., Ld. (hereinafter called the buyers), 200
tons of Sakellarides Egyptian cotton seed at 32l. per ton, and 500 tons of Fayumi Egyptian cotton
seed at 26l. per ton.

The contracts, which contained clauses in identical terms, provided that the goods were to be
shipped per steamer from Alexandria; the seed to be delivered in London to buyers' craft alongside;
particulars of shipment to be declared in London within twenty-four hours after receipt of documents
in this country; payment to be made in London in fourteen days from the seed being ready for de-
livery by net cash in exchange for shipping documents and/or delivery order; the seed to be worked
and received (during customhouse hours) immediately it was ready for delivery from the steamer.
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The sellers gave notice to the buyers that they appropriated 176 tons and 400 tons per steamship
Port Inglis in part fulfilment of the contracts; these appropriations were accepted by the buyers; and
these quantities were shipped at Alexandria in the Port Inglis under bills of lading dated September
12, 1919. The steamer docked at Regent's Canal Dock, London, on October 13, 1919, and on the
following day the buyers duly paid the sellers for the 176 and 400 tons and took up the bills of lad-
ing. The steamer commenced her discharge on October 14. The buyers duly presented the bills of
lading and were ready and willing to take the whole bill of lading quantity. On October 17 and 18,
fifteen tons of Fayumi seed and twenty-two tons of Sakellarides seed were delivered to the buyers.
The steamer then proceeded to Hull with the remainder of the 176 and 400 tons of seed still on
board, in order to discharge cargo destined for Hull
[1920] 3 K.B. 530 Page 532

which had been loaded on the top of the remainder of the seed. By a letter of October 21 the buy-
ers gave notice of arbitration and contended that the vessel had completed her voyage and that the
contracts were at an end, and they requested the return of the amounts paid against the undeliv-
ered quantities.

The steamer returned from Hull without undue delay and arrived in London on November 3 and
proceeded with the discharge of the balance of the seed. The discharge was completed on No-
vember 11. By agreement between the parties the buyers took delivery of the balance of the seed
without prejudice to their rights under the contracts. It was contended in the arbitration for the
sellers that they had completed their obligations by delivering documents against payment; that the
buyers' rights (if any) were limited to recovering damages for breach of contract; that the sellers
had not been guilty of any breach of contract and were not responsible for the act of the shipowner
in proceeding to Hull before delivering the balance of the goods; that even if the sellers had been
guilty of a breach of contract, that did not justify the buyers in claiming to reject part of the goods or
in claiming repayment of an appropriate amount, and that the damages were limited to the cost of
insuring the undelivered balance from London to Hull and back, together with interest on the pro-
portionate purchase price during the delay consequent thereon.

It was contended for the buyers, inter alia, that the sellers failed to deliver the goods in accordance
with the contract; that the ship after making partial delivery had abandoned the voyage and sailed
to another port; and that the buyers were thereupon entitled to claim a refund of the amounts paid
by them for the seed which the sellers had failed to deliver.

The umpire awarded in favour of the buyers' contention.

The question for the opinion of the Court was whether the buyers were bound under the contracts
to take delivery of the balance of 385 and 154 tons of seed loaded on the steamer on her return to
London on November 3.
[1920] 3 K.B. 530 Page 533

Jowitt (R. A. Wright K.C. with him) for the sellers. If the act of the ship in going to Hull was a
breach of contract, the remedy of the buyers was against the shipowners under the bill of lading
which had passed from the sellers to the buyers. There was, however, no breach of contract, for
the contract contained no stipulation as the time within which the delivery was to be completed, and
as between the buyers and sellers the ship performed the voyage contracted for. Secondly, the
award is bad unless the buyers can show that they had a right to reject the goods. After accepting a
part of the goods the buyers had no right to reject the balance. It was one entire contract: Jackson
v. Rotax Motor and Cycle Co. (1) The buyers' remedy, if any, was damages.
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Bevan K.C. and van den Berg for the buyers. The contract was for a sale of goods to be shipped
in Alexandria and delivered in London. As soon as the ship arrived in London the contract voyage
was completed and it became the duty of the sellers to deliver the whole of the goods to the buyers
within a reasonable time after the arrival of the ship in London. If the sellers' contention is right the
ship might, after a portion of the goods had been delivered, have left London on another voyage,
returning to London twelve months later, and the buyers would have had no remedy. The delivery
contemplated by the contract was a continuous delivery. The buyers were entitled to reject the bal-
ance of the goods. They had not in law accepted the portion actually delivered, for they had only
received it in the belief that there would be a continuous delivery of the whole quantity. Receipt of a
portion of the goods without acceptance does not bind the buyers to accept the balance: Bowes v.
Shand. (2) [Sargant v. East Asiatic Co. (3) was also referred to.]

Jowitt in reply. The buyers could only reject the balance after returning the portion which they had
received. They cannot affirm the contract as to one part of the goods and reject it as to the rest.

Cur. adv. vult.

(1) [1910] 2 K. B. 937.

(2) (1877) 2 App. Cas. 455.

(3) (1915) 21 Com. Cas. 344.

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July 8. BAILHACHE J. read the following judgment: In this case the sellers, by two contracts of sale and in
the events which happened, bound themselves to the buyers to deliver in London, ex the steamship Port In-
glis, to the buyers' craft alongside, two separate parcels of cottonseed, one of 176 tons and the other of 400
tons. The buyers on their part had to pay for these parcels against shipping documents and to send craft to
receive the goods. The buyers fulfilled both these obligations and received from the Port Inglis some fifteen
tons of one parcel and twenty-two tons of the other. When these had been delivered it was discovered that
the rest of the seed was lying under cargo for Hull, and the Port Inglis stopped delivery and left for that port,
promising to return and deliver the rest of the seed. She returned in about a fortnight's time and the seed was
tendered to the buyers, but the buyers had meantime informed the sellers that they regarded the departure
of the Port Inglis with the remainder of the seed on board as a failure to deliver and a breach of contract.
They kept so much of the seed as had been delivered to them and demanded repayment of so much of the
contract price as represented the seed undelivered.

The umpire has decided in the buyers' favour and I am asked to say whether he was right. Everything de-
pends upon whether the departure of the Port Inglis for Hull with the greater part of both parcels of seed on
board was a failure to deliver, notwithstanding the promise to return and complete delivery. Both contracts
between the parties are in the same terms and neither has any express provision on the subject. In my opin-
ion, the buyer under such a contract, and where each parcel of goods is indivisible, as here, has the right to
have delivery on the arrival of the steamship, not necessarily immediately or continuously; he must take his
turn or the goods may be so stowed that other goods have to be discharged before the whole of the buyers'
parcel can be got out. To such delays and others which may occur in the course of unloading the buyer must
submit, but in the absence of any stipulation to the contrary the buyer, being ready with his craft, is entitled to
delivery of the whole of an indivisible
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parcel of goods sold to him for delivery from a vessel which has begun delivery to him before she leaves the
port to deliver goods elsewhere. If this is so the rest of the case is covered by s. 30 of the Sale of Goods Act,
and the buyer can either reject the whole of the goods, including those actually delivered, in which case he
can recover the whole of his money; or he may keep the goods actually delivered and reject the rest, in
which case he must pay for the goods kept at the contract price, and he can recover the price paid for the
undelivered portion: see Devaux v. Conolly. (1) I think that the award is right.

(1) (1849) 8 C. B. 640.

Appeal dismissed.

Solicitors for sellers: Thomas Cooper & Co.

Solicitors for buyers: Waltons & Co.

F. O. R.