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ICLR: King's/Queen's Bench Division/1918/Volume 2/BLACKBURN BOBBIN COMPANY, LIMITED v. T. W.

ALLEN & SONS, LIMITED. [1917 B. 722.] - [1918] 2 K.B. 467

[1918] 2 K.B. 467

[COURT OF APPEAL]

BLACKBURN BOBBIN COMPANY, LIMITED v. T. W. ALLEN & SONS, LIMITED. [1917

B. 722.]
1918 June 19, 20.

PICKFORD, BANKES, and WARRINGTON L.JJ.

Contract - Sale of Goods - Impossibility of Performance due to Outbreak of War - Discharge.

By a contract made in the early part of 1914 the defendants, who were timber merchants at Hull, sold to the
plaintiffs 70 standards, of Finland birch timber to be delivered to the plaintiffs free on rail at Hull, deliveries to
commence in June or July, 1914, and to continue during the season which would terminate in November,
1914. The contract contained no war or force majeure or suspension provisions. Before the outbreak of war
in August, 1914, the practice was to load timber into vessels at Finnish ports for direct sea carriage to Eng-
land, but this practice was not known to the, plaintiffs, nor did they know, as the fact was, that timber mer-
chants in England do not keep Finland timber in stock. Up to the outbreak of the war the defendants had not
delivered any of the timber, and after that date, owing to the disorganization of transport caused by the war, it
became impossible for the defendants, to obtain any Finland timber for delivery to the, plaintiffs.

In an action by the plaintiffs claiming damages from the defendants for failure to deliver the timber, the de-
fendants contended that the contract had been dissolved by the outbreak of war:-

Held, that the contract had not been dissolved, and that the defendants were liable in damages for the
non-delivery of the timber.

Decision of McCardie J. [1918] 1 K. B. 540 affirmed.

APPEAL from a decision of McCardie J., reported [1918] 1 K. B. 540, where the facts, which are
summarized in the head-note, are fully stated.
[1918] 2 K.B. 467 Page 468

McCardie J. gave judgment for the plaintiffs, holding (1.) that the contract had not been dissolved,
and that the defendants were liable in damages for the non-delivery of the timber; and (2.) that the
contract was not one for the supply of materials "for any building or work" within s. 1, sub-s. 1, of
the Courts (Emergency Powers) Act, 1917.

The defendants appealed from the decision on the first point.

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MacKinnon K.C. and Jowitt for the defendants.

C. Atkinson K.C. and du Parcq, for the plaintiffs, were not called upon.

[As the Court held on the facts that the decisions relied upon by the defendants were inapplicable and there-
fore that it was unnecessary to discuss them, the argument is not set out.]

PICKFORD L.J. This is an appeal from a decision of McCardie J., and the point raised is whether an implica-
tion is to be read into the contract the performance of which has been interfered with or prevented by matters
arising out of the war. The contract, which contained no exceptions, was for the sale by the defendants to the
plaintiffs of 70 standards of Finland birch timber at the price of 10l. 15s. per standard free on rail at Hull. Be-
fore the war it was the regular practice to load the timber on vessels at ports in Finland for direct sea carriage
to English ports, and not to send it by rail across Scandinavia and ship it from a Scandinavian port to Eng-
land. When war broke out the Germans declared timber to be contraband, but, even before that declaration,
sailings from Finnish ports had entirely ceased, and therefore the ordinary and normal method of supplying
Finland timber came to an end. I will assume that it was not possible, at first at any rate, to get Finland birch
timber to England at all, although it is true that in 1916 a certain amount was sent across Scandinavia and
shipped from ports there. In August, 1914, and the following months some correspondence took place be-
tween the plaintiffs and the defendants as to the timber, the former asking for supplies, and the defendants
taking up the position that all pre-war contracts had been cancelled by the war.

The defendants contend that the contract was at an end because

[1918] 2 K.B. 467 Page 469

it was in the contemplation of both parties that the defendants should be able to supply the timber according
to the ordinary method of supplying it in the trade, and that when that became impossible both parties were
discharged from their obligations. We have had a most interesting discussion of the numerous cases where
this doctrine has been dealt with, and it is from no disrespect to Mr. MacKinnon's argument that I refrain from
going through them, but I refrain from doing so because I accept the principle for which those cases were
cited. The principle was thus stated by Lord Haldane in Tamplin Steamship Co. v. Anglo-Mexican Petroleum
Products Co. (1): "The occurrence itself," i.e. the occurrence preventing the performance of the contract,
"may yet be of a character and extent so sweeping that the foundation of what the parties are deemed to
have had in contemplation has disappeared, and the contract itself has vanished with that foundation." It was
also stated thus by Lord Shaw in Horlock v. Beal (2): "The underlying ratio is the failure of something which
was at the basis of the contract in the mind and intention of the contracting parties." In my opinion McCardie
J. was right in saying that the principle of these cases did not apply to discharge the defendants in this case.
He has found that the plaintiffs were unaware at the time of the contract of the circumstance that the timber
from Finland was shipped direct from a Finnish port to Hull, and that they did not know whether the transport
was or was not partly by rail across Scandinavia, nor did they know that timber merchants in this country did
not hold stocks of Finnish birch. I accept the finding that in fact the method of dispatching this timber was not
known to the plaintiffs. But there remains the question, Must they be deemed to have contracted on the basis
of the continuance of that method although they did not in fact know of it? I see no reason for saying so. Why
should a purchaser of goods, not specific goods, be deemed to concern himself with the way in which the
seller is going to fulfil his contract by providing the goods he has agreed to sell? The sellers in this case
agreed to deliver the timber free on rail at Hull, and it was no concern of the buyers as to how the sellers in-
tended to get the timber there. I can see no reason for saying -

(1) [1916] 2 A. C. 397, 406.

(2) [1916] 1 A. C. 486, 512.

[1918] 2 K.B. 467 Page 470
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and to free the defendants from liability this would have to be said - that the continuance of the normal mode
of shipping the timber from Finland was a matter which both parties contemplated as necessary for the ful-
filment of the contract. To dissolve the contract the matter relied on must be something which both parties
had in their minds when they entered into the contract, such for instance as the existence of the music-hall in
Taylor v. Caldwell (1), or the continuance of the vessel in readiness to perform the contract, as in Jackson v.
Union Marine Insurance Co. (2) Here there is nothing to show that the plaintiffs contemplated, and there is
no reason why they should be deemed to have contemplated, that the sellers should continue to have the
ordinary facilities for dispatching the timber from Finland. As I have said, that was a matter which to the plain-
tiffs was wholly immaterial. It was not a matter forming the basis of the contract they entered into.

On the facts the nearest case to this is Ashmore v. Cox. (3) There shipment was to be made by sailer or
sailers from a port or ports in the Philippine Islands between May 1 and July 31, 1898. The Span-
ish-American war prevented the shipment by sailer between the dates mentioned. Lord Russell of Killowen
C.J. held that no implied condition was to be imported that it was possible to ship by sailer between those
dates. I think that case was rightly decided, and this is an a fortiori case.

For the reasons I have given the defendants have failed on the facts to make out their case that the contract
was dissolved. The appeal will be dismissed.

BANKES L.J. I agree. I rest my decision upon the facts of this particular case. No doubt the defendants when
they entered into this contract intended to perform it by shipment in the ordinary way, that is, direct from
some Finnish port to a port in England, but so far as the plaintiffs are concerned, they knew nothing as to
how the timber was brought to this country, whether brought wholly by sea or partly by land and partly by
sea. In those circumstances, whether one applies the test laid down by Lord Haldane in the

(1) (1863) 3 B. & S. 826.

(2) (1873) L. R. 8 C. P. 572; (1874) L. R. 10 C. P. 125.

(3) [1899] 1 Q. B. 436.

[1918] 2 K.B. 467 Page 471

Tamplin Case (1), or that laid down by Lord Shaw in Horlock v. Beal (2), or whether it is said that perfor-
mance became impossible as that expression is found in the judgment of Hannen J. in Baily v. De Crespigny
(3), or whether the matter is treated as one to which the principle of an implied condition as explained by
Lindley L.J. in Turner v. Goldsmith (4) applies - whichever of these is the correct method - or whether all
these tests are applied, the result is the same, because the facts are not such as to bring the defendants
within the principle of any of the cases relied upon on their behalf. In my view the judgment of McCardie J.
was right.

WARRINGTON L.J. I am of the same opinion. I also think that this case is to be decided on its own facts. In
order to succeed the defendants must prove, to use the words of Lord Shaw in Horlock v. Beal (2), a "failure
of something which was at the basis of the contract in the mind and intention of the contracting parties." In
the present case what is alleged to have failed is the normal mode of transport of the subject matter of the
contract from Finland to this country. It was not proved that the continuance of that normal mode of transport
was at the basis of the contract in the mind and intention of the contracting parties. The contract was merely
for the sale and delivery of a certain quantity of Finland birch squares free on rail at Hull. The judge has
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found as a fact, and I see no reason for upsetting that finding, that the plaintiffs were unaware, at the time of
the contract, of the circumstance that the timber from Finland was shipped direct from a Finnish port to Hull.
They did not know whether the transport was or was not partly by rail across Scandinavia, nor did they know
that timber merchants in this country did not hold stocks of Finnish birch. It seems to me therefore, that the
normal mode of transport was not in fact in the mind and intention of the plaintiffs, and I see no reason for
holding that that normal mode must be deemed to have been in their mind and intention. I do not deal in de-
tail with the argument of Mr. MacKinnon or with the elaborate review of the cases by McCardie J., because in
the view I take it is unnecessary to do

(1) [1916] 2 A. C. 397, 406.

(2) [1916] 1 A. C. 486, 512.

(3) (1869) L. R. 4 Q. B. 180.

(4) [1891] 1 Q. B. 544.

[1918] 2 K.B. 467 Page 472

so. For the reason I have given I agree that the judgment of McCardie J. should be affirmed.

Appeal dismissed.

Solicitors for plaintiffs: Gibson & Weldon, for H. Worden, Blackpool.

Solicitors for defendants: Trinder, Capron & Co.

J. S. H.