200 LLOYD'S LIST LAW REPORTS. [Sune 7, 1 (3057) Vou 0 ‘The plaintiff also relied on the absence of a rail or chain on this platform, Having hhesrd the evidence of Mr. Peacock and others I'am satisfied hore that there is nothing in that point, that a chain or rail vould not have added to the safety factor Wall, but would have possibly aggravated one risk, if 1 did not egeravate any more. ‘The platform seas safer without the cha than it" would have been with, [think Mr. Grifin probably agrees with that, ‘The only other matter is the question of damages. ‘The special. damage is agreed fg a fgare at £1065. 143. 8d. That is on the basis that Mr. Griffin has been totally incapacitated from earning right up. to date, The medical ‘evidence shows that the doctors agree that any return tothe heavy’ work ‘which Mr. Griffin has done all his life is out of the question. But the doctors also agree that as far back as Teane, 1055, if he had been minded, ho was Ht to’do a sedentary light job, if, of course, a job was available. Unfortunately, is. Griffin did not share that opinion of the doctors, He has not made ‘any effort at all to find a sedentary job. Whether if he had made the effort he would have succeeded or not I'do not know. AB it is, in view of the medical evidence, 1 cannot accept the figure of special damage at Snything like its fall value, As against that there is no doubt at’ all that Mfr Griffin's future earning capacity has been very, very. substantially eut down by his Injaties. On the other hand one has to Temember that he is now 60 years of age, ‘and, although he. tells ‘me. that dock curera ean go on in some cases doing this very heavy work up to the age of 60 or 88, 1 cannot help thinking that there Gennot be very many of them, who, euery fon quite as fong as that. In the ordinary course of nature, as Mr, Griffin’ will no doube know, one has to look round for substantially. lighter job than he has done in the heyday of his life. Taking everything inte consideration I think the proper award here for very nasty injuries, severe injuries, is sum Of Boson "and. give judgment for ‘the plaintid’ for that amount and costs, with the usual order for taxation. Mr. Goopats: I ask, therefore, my Lord, for judgment for the’ sum of $9500, with costs, and Task for the usual order for taxation under the Legal Aid and Advice ‘Act, 1949, my client being legally assisted. Mr, Justice Sram: Yes Carlos Federspiel & Co., S.A. v. Charles Twi (QB. CH DIVISION. (COMMERCIAL COURT.) ‘Mar, 25, 26, 97, 1967. CARLOS FEDERSPIEL & CO, 8.4. v. CHARLES TWIGG & Co., LTD. AND ANOTHER, Before Mr, Justice Peansox. Sale of goods (t0.b.)—Passing of property— ‘Vnasbertained "goods by“ description— Payment. by buyers—Goods not shipped — ‘Winding-up’ of defendant company’ (celles) “ight of receiver to retain goods against Duyers—Whether goods were appropriated to contract and property had pasted to buyers “Damages. ct entered into between plaintiff sad defendant company (sellers) ‘and. tricycles. f.0.. woe and. freight 9 be charged as extras—Price paid by buyers-— Preparations for shipment made by sellers = Second’ defendant appointed by ebonture holders as receiver and manager ‘of defendant company before shipment Refusal by receiver to ship goods to buyers except upon further. payment of price Compulsory windingup of defendant company—Claim by Buyers, in conversion or detinue, alleging that goods had been Sppropristed to the contract and that the pe ‘them had posed to buyers Eomention’ “by recover that, unl Shipment, goods were not appropriated to ‘goods the ontragt and that no pruperty ia goods hadpassed —"Bvidenco ae to intention of parties "Damages, Held, (1) that it was 0 be inferred’ from ‘the “contract™ that” the Intention was. that the property. im the goods should not pass until shipment, and that’ accordingly, although tellors” had reparations for shipment of goods which. they fntended to Spproprinte to the contract, much goods RAa"not. in face ‘been appropriated to the contract. and the property had not passed to the buyers at the Ume of the ‘inding-ap-—Sudgment for” defendants. Held, (2) (abiter), that the goods inaving been’ offered’ to” buyers bye the receiver on further payment of the price, ayers should have aocepted such offer in spigaeion anu cold ag lam a dagen 10 Righer price which they might have Fecorered on resale. die ‘The following cases wore referred to: Aldridge v, Johnson, (1887) 7 E. & B. 885; ‘Armbold Karberg & Co. v. Blythe, Green, Jourdain & Co, [1910] 1 K.B. 495;Tune 7, 1957.) LLOYD'S LIST LAW REPORTS. 2 QB) Arpad, (1984) P. 189; (1984) 49 LLL.Rep. 3135 Carlos Federspiel & Co, S. ‘Atkinson and Others (Assignees of Sleddon) ¥, Bell and Others, (1828) 6 B. & C. 377; Biddeli Brothers v. “E, Clemens Horst Company, [1911] 1 KB. 834; [1912] AC. 18; Browne and Another v. Hare and Another, (1858) 3-H & NN. 484; (1850) 4 Hae NL 532 Colley v. Overseas ‘3 KB. 502; Elliott v. Pybus, (1834) 10 Bing. 912; Franee "Gaudet and Others, (1871) L.R. 6 QB. 190; Ireland and Others v. Livingston, (1872) LR. 8 HLL, 395; Langton v. Higgins, (1859) 4-H. & N. 402: Law é& Bonar, Ltd, v. British American ‘Tobacco Company, Ltd., [1916] 2 K.B. 608 ; Mirabita v, Imperial Ottoman Bank, (1878) 3 ExD. 16; Mucklow and Others (Assignees of Royland) y. Mangles, (1808) 1 Taunt, 318. Payzu, Ltd. v. Saunders, [1919] 2 K.B. 81; Pignataro ¥, Gilroy, [1010] 1 K.B, 439; Rohde and’ Others’ y,Thwaites, (1827) OB, &C, 385; Sachs ¥. Miklos and Others, [1948] 2 K.B. Exporters, [1921] 33 Stock v. Inglis, (1884) 12, QB.D. 564; (1885) 10 App. Cas. 263; Wait and Another v. Baker, (1848) 2 Ex. 1 Wilkins v, Bromhead and’ Hutton, (1844) 6M. & G. 963; ible, Sons & Co. v, Rosenberg & Sons, Us13] 3 K.B, 743, In this case, Carlos Federspiel & Co., S.A, of San Jose, Costa Rica, claimed for the delivery of goods valued’ at £546 58,, for which they had paid, and damages for detinue or conversion by Charles vig & Co., Ltd., of Lye, Wores, and Mr. H. J. Patience, Plaintiffs’ case was that by a letter of June 16, 1953, they ordered a number of eycles and tricyeles from the defendant company, which order was accepted. On July 38, 1958, Mr. Patience was appointed receiver and’ manager of the company on Iehalf of the debenture holders, after which the company carried on business; but on Nov. 17, 1958, a compulsory winding-up order was made and the company went into liquidation, ‘The goods ordered by plaintifis were ‘paid for by ‘cheque on July’ 1.1958," but’ were nevor “delivered. ¥. Charles Twigg & Co., Ltd. [1987] Vou. 1 Plaintifis claimed that the goods were appropriated to the contract and that the property had passed to them. ilsiniy also claimed that they bad been leprived of the opportunity of selling the goods at a profit and that they had thereby Jost such profit as they would have made on resale Mr. Pationce denied that the goods were appropriated to the contract or that there was a breach of the agreement. Thoy were charged to the debenture holders in terms of their debentures and the defendants had no authority to make them available to plaintifis, ‘The defendant company did not take part in the proceedings. Mr. Stephen Chapman, Q.0., and Mr, | John’ Stephenson (instructed by Messrs, Henry Pumfrey & Son) appeared for plaintifts; Mr, Maurice Lyell, QC. and Mr. John’ Shaw (instructed by ‘Mr. Sidney Pearlman) represented Mr. Batience. Mz, CuanMan said that the question was whether the receiver, Mr. Patience, had committed conversion of the goods which had been ordered and paid for prior to his appointment, Te turned basically on whether the goods were appropriated to the contract so that the property passed to the plaintiffs, Covnse, said that the order on June 16, 1953, was for the goods to be shipped direct to Bort Limon 8 soon as possible. On June 35, the defendants wrote accepting the order and stating they would have the goods ready for shipment at the earliest hossible moment. “The prices were quoted “fob. British port,” but insurance and freight were to be charged as extras. Tt was not a standard form of fo.b, contract, A cheque for $1820 (then £616 $s.) was received from the plaintiffs, who stated chat, they were looking forward. to the woiees and shipping documents, On Tuly 2, the day after Mr. Patience’s appointitent, deiendants wrote stating they were mot yet able to dispateh the goods. On Aug. 37 thiey wrote that the goods ‘were available but that no vessel would be sailing to Port Limon until the end of September, and that the goods had been registered for export. That was completion of the appropriation of the goods to the contract. 'The only hold-up was finding the ship. The plaintiffs wrote stating that if there was no ship sailing for” Port Limon, the goods could be sent by way of ew York On Sept, 14 the defendants242 LLOYD’S LIST LAW REPORTS. [Tune 7, 1953 {1087} Vou. 1] wrote that they were arranging to ship by way of New York. Houlder Brothers & Co., Ltd., shipping agents, instructed the deféndanis to send the goods to Liverpool for the steamship Britannic, ‘The docu- ment from the defendant company giving forwarding instructions to the Britannic was never sent, but Covnse contended that, even 80,” there was evidence of appropriation. iis Loxpsse: ‘The defendants may be cir en rege Until the goods were dumped in the ho of the ship. Counsss. said that the defendants were taking’ the line that this was an fo.b. contract and that there could be no passing of the property until. the goods were over the rail of the ship; but in Counsel's view that was not £0 Mr. Lyaut, for the defendants, said that the contract was “'f.0.b. U.K. port.” There was never an intention by the sellers or the buyers to fix prices on c.f, terms. He submitted that the words “ free on board” in contract clearly indicated that the property wat intended to pass by virtue of sub-Rule (2) and not sub-Rule (1) of Rule 5 of Sect, 18 of the Sale of Goods Act, 1803. Sub-Ruie (1) proceeded on the basis that the parties agreed that the specific article should be the agreed article of the contract. ‘That was what “assent app) priation” meant.” No such assent, was necessary under sub-Rule (2). Sub-Rule (2) was designed to meet just those circum. stances which arose "in international commerce where parties were far apart and there was no real possibility of one accepting what tho other selected or offered. The first thing in an f.0.b, contract was to put the goods on board ship. No doubt, there were things for the sellers to do beforehand, but that was preparatory. In the present’ case there was an agreement indicating that the property passed from the sellers to the buyers under “f.0.b.” when it was put on board. From start to finish the intention was to pass the goods when thoy were on board and not before. ‘They were never put on board, so the property never passed. The receiver was entitled to hold them as the property of the company for the benefit of the creditors; and the plaintiffs were creditors for the amount of money paid in advance. ‘Mr. Cnaruan replied. Judgment was reserved. Carlos Federspiel & Co., S.A. v. Charles Twigg & Co., Ltd, (QB. ‘Tuesday, Apr. 2, 1987. sunemenr. PEARSON: In this cate the bane facts are agreed and all the evidence ie"contained int agceed documents. The nly remaining ines are (1) whether toe qracrep. of fects qooie eased oes te defendant companys as sions, to the pisinie, os buyeror ah ‘whieh ceo’ both defendants woutd be liable to the plaintatts {or conversion of their goods, (@) if there ia" iabilityy whether the tum deworibed ax loan of prOGe can, underany” guise be included” in the damages The defendant company has taken ne part in the trial Snd’'the ‘contest hasbeen between the Plaintiff and the second defendants who EiNfeceirer"for a debenturetolding’ com: Paty. The figures of Gaimages In the event oF ability ‘Belg established, are ‘agreed Bt, Think, 2006°50 without the eum for Joss of profit, and that sum, if it is to be ded, fr agreed atv figure which 1 think 1'Ss0 a. ‘As stated in par, 1 of the statement of claim "the "plains aren company {neorporsted fa San dose Coste Bice, ahs sore ‘at all material times crying on iurinese as merchants in Costa Rica “The defendant company stall meter’ times fathe early ‘part ‘of ioi9 scarred "on brsiness ‘ay ‘natnufacturors of ekitdron’s Bieytee and tricycle 8¢ Lye inte County of Worcester. Then, aa seated tn par, 4 Sf the statement of'claimn, and ndinitiod Ja the defence) in about Yune, 1955, the Plsintide agreed to buy and the defedant Company agreed to sell snd deliver at Prise of 1600" US, doles certain, goods vitch ‘are att out in that pareprad of Statement of claim, namely eel the tenet of cm, naney lo, in ‘par of the statement of lata and inticd'in the defence, the agreement wea Contained in or evidenced by an order tn iting from’ ‘the plaintife tothe Getendant tompany” dated June 16, 105 nd an aceptence in writing of the aot Seder from the dtendant copany fo the Plaintis, dated June 2, 1909. Then it ie ito common ground tek ke stated ta par, 0 of the statement of clam, poreuant Uo the suid sareoment che plaintite on or ‘about July 1, 1983, paid the said price to the Gefendant company by cheque Of that date, find the receipe of it was taknowledged by fie defendant company oo uly 7. 1083 ‘Then it sppeare from par. 3 ofthe defence,Tune 7, 1957.) LLOYD'S LIST LAW REPORTS. QBy which is similar to, but as to the date more accurate than, par. 3 of the statement of claim, that on July 38, 1983, the second Gefendant, Me. H.” J.” Patience, was appointed receiver ‘and’ manager of ‘the defendant, company by "the debenture- holders.” ‘Thereafter all goods belonging to the ‘defendant company, which were charged to. the “debenture “holders” by wirtue of their” debentures, passed” into his “management and tontrol.. On Get, 2,088, the second defendan Pationos, the receiver, refused to deliver to the plaintiff company any goods in ful. filment'of the contract of sale which had bent made in June, 1958. Then on Nov. 17, 1983, the company being insolvent, ‘compulsory winding-up order was made. ‘The plaintifis’ claim, in its essence, appears from par, 7 of the statement of claim which alleges Pursuant to the said agreoment, the said goods were duly manufactured by the defendant company, and thereafter ‘were made available to the plaintiffs and appropriated to the aaid agreement, which availability and appropriation were duly notified to the plaintiffs by lotters to the plaintiffs dated the 27th August and. the 1th September 1053 from the defendant company and/or the defendant Patience as receiver and ‘manager thereof, Some further and better particulars wore given of the acts and matters reli upon under that paragraph, and those further and better particulars are dated June 6, 1655, but Ido not have to refer to them hore} because the matters referred to will be mentioned in due course. ‘Then par. § of the statement of claim alleges: ‘The property in the said goods in the premises passed to the plaintifis by virtue of ‘Sect, 18 (5) of the Sale of Goods “Act 1603 but, ‘the defendant company and the defendant Patience none the less failed and neglected to deliver the same to the plaintiffs and wrongfully and in breach of the said agreement detained and still detain the ‘Then it is alleged—and this is, T think, admitted—that the plaintiffs demanded the goods from the receiver, and” the recoiver and the defendant’ company refused to deliver them up. It is admitted that if the goods wore the property of the Carlos Federspiel & Co., S.A. v. Charles Twigg & Co. 243 td, [2087] Vou. 1 buyers, that is to say, the plaintitt Company, there’ was conversion “by” the defendants. if ‘The issue in the case appears from par. 5 of the defence, I should perhaps read also art, at any rate, of par. 4: ‘This defendant [Patience] . . . denies that any bicycles or tricycles were made available to the plaintiffs or appro: Driated to the said agreement, In par. 5 it ia said: ‘This defendant denies that the property in any bieycles. or tricycles ‘manufactured by the defendant company passed to the plaintiffs either as alleged or at all. ‘This defendant admits that no. bicycles or tricycles “have been delivered to the plaintiffs pursuant, to the said agreoment but he denies that he or the defendant company detain wrongfully or in breach of the said agreement any goods belonging to the plaintiffs. That, therefore, is the main issue: whether or not the goods were appro- priated to the contract by the sellers with the consent of the buyers so as to pass the ownership to the buyers; and the buyers are the plaintiff company. T should have said that, the defence to which I have referred is the defence of the defendant Patience only. “As I have ssid, the defendant company have taken no part in the trial, and they did not even deliver a defence at the earli In considering that, main issue, it is convenient to refer first to the relevant, or possibly relevant, provisions of the Sale ‘of Goods Act, 1883. Sect, 1 provides: (3) Where under a contract of sale the property in the goods is transferred from the seller to the buyer the contract is called a sale; but, where the transfer of the property in the goods is to take place at 9 future time or subject to some condition thereafter to be fulfilled the contract is called. "an agreament to (4) An agreement to sell becomes a sale when the time elapses or the conditions are fulfilled subject to which the property in the goods is to be transferred. ‘Thea Sect. 5 provides (Q) The goods which form the subject of a contract of sale may be either exist: lng’ goods, owned ‘or possessed by the seller, or goods to be manufactured or[1957] Vou. 1] LLOYD'S LIST LAW REPORTS. Carlos Federspiel & Co,, S.A. v. Charles Twigg & Co., Ltd. [June 7, 1957. (QB. acquired by the seller after the making Of the contract of sale, in this. Act fatled future goods.” T noed not read sub-ss, (2) and (8). "Then there is Sect. 16, which provides Where there is a contract for the s of unarcertained goods no. proper the "goods is transferred tothe buyer nies aad. until the "goods are ‘Moertained, ‘Then the operiing words of Sect. 18 are important : Unless a different intention appears, the following are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer. ‘Then T can pass over Rules 1 to 4 Rule 5 is in two parts, Sub-Rule (1) says Where there ia a contract for the s: of unaseertained or future goods hy desoription, and. goods of "that description and in a deliverable state are unconditionally appropriated to the contract, either by the seller with the ‘assent of the buyer, or by the buyer with the assent of the seller, the property in the goods thereupon passes to the buyer. Such assent may be express or implied, and may be given either before or after the appropriation is made (2) Where, in pursuance of the con. tract, the seller delivers the goods to the buyer or toa carrier or other bailee or eustadier (whether named by the buyer or not) for the aie of transmission to the buyer, and does not reserve. the | right of disposal, he is deemed to have | lnconditionally appropriated the goods | to the contract, | Sect. 20 may have some bearing, It says: Unless otherwise agreed, the goods remain at the seller's risk until. the property therein is transferred to the buyer, but, when the property therein is, transferred to the buyer, the goods are at the buyer's risk whether delivery has been made or not. I need not read the two provisos to that section. Sect. 32 T have in mind, but I think it need not be read. Sect, 62 contains definitions, include: which Delivery ” means voluntary transfer | of possession from one person to another. “Sale” includes a bargain and sale as well as a sale and delivery. Sect, 62 (4) provides that Goods are in a “deliverable state” within the meaning of this Act when they are in such a state that the buyer would under the eontract be bound to take delivery of them. This is a case in which tho contract is for the sale of unascertained goods by deseription, for the sale of future goods probably stil! to be manufactured. After- wards eertain goods were manufactured, and the sellers at one time apparently expected to use them in fulfilment of the contract, ‘The question is whether there was an ‘appropriation of those goods to the contract by the sellers with the assent of the Ubuyery within the meaning. of Rule 8 of Sect. 18, I think it is convenient just, in effect, to lay a foundation for the understanding of the exact meaning and effect of Sect, 18 by reading a short passage from an old case, Mirabita v. Imperial Ottoman Bank, (1878) 3 Ex.D. 164. The relevant passage’ is from the judgment of Lord Justice Cotton, at p. 172, where he says: Under a contract for sale of chattels not specific the property doos not pass to the purchaser unless there is after wards an appropriation cf the specific chattels to pass under the contract, that is, unless both parties agree as to the specific chattels in which the property is to pass, and nothing remains to be done in order to pass it, Tn the case of such “a ‘contract the delivery by the vendor to a common carrier, or (unless the effect of the shipment is restricted by the terms of the bill of lading) ship. ment on board a ship of, or chartered for, the purchaser, is an ‘appropriation sufficient to ass the property. There was an old ease called Wait and Another v. Baker, (188) 2 Ex. 1, in which there was a discussion by Baron’ Parke which is of considerable interest, I think it is convenient to read only a short passage from it, He said, at p. 7 It is perfectly clear that the original contract between the parties was not for fa specific. chattel, ‘That contract would be ‘satisfied by the delivery of any 500 quarters of corn, provided the corn answered the character of that which was agreed to be delivered, By the original contract, therefore, no property passed; and that matter admits of noTune 7, 1957.] LLOYD’S LIST LAW REPORTS. QBI doubt whatever. In order, therefore, to doprive the original owner of ‘the property, it must be shown in this form Of action—the action being for the recovery of the property—that, at some Subsequent time, the property passed. Tt ‘admitied, that if, goods are ordered by a person, although they are to be selected by the vendor, and to be delivered to a common earrier to be sent to the person by whom they have been ordered, the moment the goods, which have been selected in pursuance of the contract, are delivered to the cdrrier, carrier becomes. the agent of the vendee, and such a delivery amounts to a delivery to the vendee; and if there ia a binding contract between the vendor and vendee, either by note in writing, or by. part payment, or subsequently’ by part acceptance, then there is no doubt that the property passes by such delivery to the carrier. Tt is necessary, of course, that the goods should agree with the contract. Later, on p. 9, having referred to Roman Jaw, he’ says on this subject : ‘The law of England is different: here, property does not pass until there is = sargain with respect t0 a specifo art snd everything is done whlch, accord to the intention. of the. parties to the bargain, wat necewary to transfer the property in it ‘Then he discusses the different senses in ‘which the word "appropriation ” is used. Now I will come to the set of documents in this care which constitute the contract, First, there is the sellers’ price list, which quotes, the prices f.o.b. English port ‘That only states the price, 50 I think it is not of great significance. ‘Then there is a letter of May 20, 1958, from the buyers to the sellers, saying: ‘To-day we are able to inform you that we received your first shipment, accord ing your invoice No, . . and found that the eycles and tricycles are made of 3 good quality and are satisfactory. For the above mentioned, we would like to place a new order’and would ‘appreciate very much if you would send us by airmail, your last catalogue and complete price list. We do not have it complete and would like to place the now order for rush shipment, The only significance of that is, I think, that at this early stage, as one will find throughout the correspondence, the Carlos Federspiel & Co., S.A. v. Charles Twigg & Co., Ltd. [i957] Vor. 1 emphasis is on shipment as indi intention ‘of the "parties that should bee decisive act of porformance by the seller. ‘Then there i the letter of June 6 from the sellers to. the buyers, and they say, fatong other things: + a6 we should very extend’ our business relationship with Sour goodselves, "we have pleasure. in aflering you a commission of 5 per sent Ga the £o. value exclusive of pacing) on all orders which you place with ui. ‘hig commission ‘would be in edd to the 9} per cent, eash diacount which wre allow dor payment in advance or by confirmed irrevocable letter of credit, On June 16 there is the offer, Tt is addressed by'the buyers to the sellers, and ie says Gentlemen, Regarding to your letter dated Tune 6th, "we are agree at the present with your indications in regard to. the Tepresentation, but hope that in avery ear future you are going to accede to ‘Our request. naming ‘us Jour exclusive gente for this tereitory. For the following order we beg you to send us two proforma involees 10 bs able fo make advance, payment reducing the 5 por cont. and 2} per cont. discounts, Bika prepare shipment to. beable to ahip with direct ship to our Port Limon, {35 boon 89 you revolve our advance pay? meat remidance, ‘Then they set out the goods for which tho order is given, being eyeles, and 20 cn. ‘Thon there fs the provisions All boxes have to be marked: C. F. 4 Co. Ban Jose Costa ies, Port Eimon’ ‘The answer, which is the acceptance, is on June 9,’ There is a letter and an enclosed confirmation of export order and an enclosed pro. forma invoice. ‘The ‘material parts of the letter from the sellers to the buyers are at the beginning: Dear Sirs, ‘We thank you for your letter of the aeth June and are very pleased to have your second order for cycles and tricycles, This has been entered by us under reference P/1052_and we are enclosing herewith our official "acknowledgment form. Attached also is our proforma26 (2997 Vou. 1] invoice, in dupli agen th approx ledueted the 8 per cent, commission and 2h per cent, cash discount. ‘This will enable you to remit to us, as suggested, nd we look forward to receiving your cheque in due course. Meanwhile, wo have placed the order on sur works snd ean assure you that ‘we will have the goods ready for’ ship- ent at the earliest. possible moment, Confirmation of export order was enclosed, and it contains these provisio Shipping Marks: ©. F. & Co, San Jose, ‘Costa Ries, Port Limon, Delivery : Fob. Usk, Port Packing: Extra.—No. 4—As per our proforma invoice dated 2.6.59, Freight: Extra Insurance: Extra, Payment: In advance.—As per your letter dated 1603.53 The goods are set out, and there is the provision AIL shipments willbe invoiced at prices ruling at the date of despatch, Trrespeotive of anything shown to the coiitrary on your order sheet. ‘Then there is the enclosed pro forma invoice, which sets out the goods, sets out se cafbgtng mack and sumbsry es before 1 O.B. & Go, Sam Jose, Costa Tica, Port Limon. “1/up.” Then” certain packing charges are seb out, and then there are these words: “" Approximate ef. charges —860,"""Then there ia a deduction made for the two commissions, per cent. on the fob. value, exclusive of packing, and 2 per cent. cash discount on the same sum for payment in edvance. ‘Then on July 1 there ia letter from the buyers to the sellers, saying: Today we received your letter dated June 25th from which we separate your ‘bro pro forma invoices "To cover this pro forma invoices we ing. you herewith our cheque st our account at the National City ‘Bank of New York in the amount of U.S.A. 81820. We beg you to acknowledge receipt of this remittance any difference. will. be paid as soon as we recvive your definiti ond two original shipping LLOYD'S LIST LAW REPORTS. Carlos Federspiel & Co., S.A. v, Charles Twigg & Co. Ltd. [June 7, 1957. (QB. Please follow the shipping instructions given on our order of June 16th regard: ing marks, eto, ete. To avoid difficulties with the custom house it is indispensable that you send us with the five invoices, 6 packing lists indiesting what contains on each box, with the indication of the No. of each Cyole (serial No.) that would help us very’ much ‘Thanking you in advanco for the soon shipment of that order, we remain, ‘Yours truly, Carlos Federspiel & Oo., S.A. ‘Then there is the receipt for the cheque, dated July 7, 1983. ‘Then on July 9 the sellers write to the buyers, saying! We thank you for your letter of the ist July’ together with cheque for the amount of $1820 and have pleasure in enclosing our official receipt. Your instructions regarding marks, te, will be complied with and immedi- ‘ately we have some definite information as to the date of shipment we will write to you again. ‘When we forward the documents we will let [you] have a statement showing the actual Position of the account, and you ean then remit to us any balance which may be due. ‘You may be assured that the order is having our best attention, and we anticipate that the goods will be ready for despatch ix the very near future. ‘That is the end of the contractual documents, and the question arises: what is the nature of this contract? I agree with Mr. Lyell that fundamentally it is to be regarded as an f0.b. contract, but one has to add that it has some cif fentures to'be fob, but freight and insurance are to be extras, and they are stated at an approximate figure of £60. Tt would seem that the intention is that the sellers are, in the. first. instance, to arrange the insurance ‘and the contract of afreight. ment, and they are to pay the freight and insurance and charge them as extras to the buyers; and the intention scems to be that they should charge the cost price to the buyers, so that any rise or fallin rates of freight or insurance would be for the account of the bugers and of no interest to the sellers. ‘That seems to be the nature of the contract.Tune 7, 1957.) LLOYD'S LIST LAW REPORTS. 27 Tt ia, in my view, an fob, contract, but one can also consider what the position would be if that is a wrong view and if itis ‘in truth to be regarded as predominantly a cif, contract, The frst festion is when would the property pase Ander that contract of sale in the absence Of any farther development subsequentiy Twill have to consider later. whether subsequent developments make any differ. fence, There is, authority. which shows quite clearly that normally, at any rate, Under an. fob. contract the, ‘propert ‘There is the case of “Another, the passes on shipment. Browne and Another v, Hare a 1858) 3-H. & N. 484, a decision of yurt of Exchequer. ‘the relevant pass ig in the majority judgment of Chief Baron Pollock, Baron Martin and Baron Channell, beginning on p. 498: If, at the timo the oil was shipped at Rotterdam, the plaintiffs had intended to continue their ownership, and had taken the bill of lading in the terms in which it was made for the purpose of continuing the ownership and exercising dominion over the oil, they would in our opinion have broken’ their contract to ship the oil “free on board,” and the property ‘would not bave patsed to the defendants; but if when they shipped the oil they intended to. perform their contract and deliver it “free on board” for the defendants, we think they did perform it, and the property in the oil passed from them to the defendants, T ought to have explained that thie was 9 contract for oil to be shipped free on board at Rotterdam, and. the possible doubt as to the date of passing of the roperty arose. from. the "fact that the teller took the bill of lading to his own order but indorsed it specially to the other party. That is what was said in the Court Of Exchequer. Then it went to appeal, apparently to the Court of Exchoquer, Chamber, which in therefore of high authority. Me Justice Erle delivered the judgment of tho Court, and he says, (1850) 411. & N. 629, a¢ peep: slp th age roof opinion, tha the afirmed. The contract was for the purchase of unascertained. goods, and. the question thas been, when the property passed. For the answer the contract must be resorted tos and under that we think the property Carlos Federspiel & Co., S.A. v. Charles Twigg & Co., Ltd. [i957] Vor. 1 assed when the goods were placed "ire on board,” in performance of the contract.” He went. on to discuss the special problem which arose from the fact that the feller, who was the shipper, took the bill of lading to shippers order but indorsed it to the buyers. That isthe first authority. ‘Thon there is the caso of Stock v. Inglis, 1884) 12 Q.B.D. 564, a decision of the Court of Appeal. That is a case where the difficulty ‘arose in this way: there were ‘two contracts each providing for 200 tons of sugar to be loaded f.o.b, Hamburg with the port of destination Bristol; but the goods as put on board wore not Srecause this was an action by the plaintiff, 2Bristol ‘merchant, against, a Lloyd's tnderwritar under | policy of insurance, And the question was whether the plaintif, ‘who “wa the buyer, had” an insurable Interest There is 8 passage on p, 73 from the judament of ir Ballo! Breis, A.B, whete faye Now if the goods dealt: with by the contract, were specific goods, itis not lied hat tna the, orde’ fren on ard,” according to the meneral vader Handing of merchants, would mean more them "on Board. at” his” expense; they ‘would mean that he was to put them on board at his expense on aesoant of the person for whom they were shipped; and In'that cage the goods to put on board tinder such a contract woind be_at the Hak of the buyer whether they were lost oF not on the voyage Now that is the meaning of those words “fren on_ board "in. contract. with, regard to specific goods, and in that ease he" goods ave. at. the purchaser's risk, even’ though the payment is not to be ‘ade ‘on the delivery of the ‘goods on hoard, ‘but at some. other time, and although the bill of lading is sent forward. by the seller with documents attached in order that the goods sball not be finally delivered to the purchaser Tint he has either accepted bills o paid ‘Then the question arises, can, there be a contract ‘with the terms" free, on hoard” which can be fulfiled without the delivery of specific goods at the ti248, LLOYD'S LIST LAW REPORTS. {Sune 7, 1957. (1957) Vou. 1] of shipment? Is there any mercantile or legal reason why © person should not Saree to sell so much out of « bulk cargo on board or ex sucha ship upon the terms that if the cargo be lost the loss shall fall upon the purchaser, and not upon the seller? “I ean see no reason why he should nots and if such acon tract can be made, and in a contract to buy and sell «certain quantity ex ship or ex bulk there is putin he terms "spec on board,” one must, with regard to that contract, give somo meaning to those words “free "on board,” What meaning can be given to. them with regard to the unseparated part of the goods which is the rubjectmatter of the contract, but the same meaning as. is fiven {5 those "words with regard. to goods attributed to the contract! What {e°there unreasonable or contrary to cas of law it those words fre on board,” meaning in such & contract “1 sell you twenty tont out of fifty. upon the terms that you shall pay such & price for those twenty, T paying the costs of the shipment, that is, ‘free on board’ ‘and you bearing the risk of whether they are lost or not ‘Then there is a passage on p. 979 in lord Surion Bageallay’s Judgment, where re aay Tt bas not been denied that, where the contract deals with specified goods, the {introduction of the provision that ‘they are to be." free on board places. the foods at the risk of the buyer. But i fias been suggested that such is not the case when the goods are not specific, but fate, as they were in the present case, Gerlain proportion of ‘goods. to. be delivered’ out of -@ larger. quantity. To think the ‘argument. which was addressed tous by Mr. Reid in. reply wwas a very foreible one. What authority is" there’ for a suggested difference between the ease of specific goods, and goods of the class which T have just now Mentioned! “Why” should there be any difference betsreen the two! Thon Lord Justice Lindley said, at p. 376 Let us look at that contract by itself, and without reference to any particular courge of trade. "No particular sugar is Specified, but $00 tons of sugar, and I apprehend that that contract might. be performed in one of two ways. 200 tons Of sugar might be shipped. “free on board’ a vessel at Hamburg, and be Carlos Federspiel & Co,, S.A. v. Charles Twigg & Co. Lids (QB. shipped ap as to be appropriated at the TI’SE shipment That We one mode of Pirforming Ih vdind 7 sipald aay. thas ould be the ordinary mode of perform fg fut an dat that eae a eroge priridad ip sunrteed tbs tesiplc Eontracied for, would be appropriated at the time of shipment, and the property would then ‘paw tothe buyer, and of ourse would at his Fak That in the passage that is quite el in that case, hacen - ‘The ease went to appeal, and is reported under the name of Inglis. Stock, (89) To Ap. Gas ans, ‘There the House of Lorde Nore tare” apeciionly dealing with the {ueston ofthe poteng ofthe ak thon the asst of the Property. a the Howe of Peed liay coald ot ad eaythlng tnsoee sistent. wilh the slew eapresed ty Lord Fustive Lindley’ in the Court of Appeal and Claiak Ie wot eoteunry fo rend ths pane Twill merely refer to two other case ‘igo is the ease of Winble, Sone & Go ». Rosenberg & Sons, (1913) 3 K.B. 743; tcaterel paseage fs AUP 15, where thé Damage. ftom the Master” of "the Holle Pidgdnnd an Steed er Tnglie, tues Hipitied ‘Thon tists fuportast. Ho i at express end oleae decsion on the sub: fect by Mg, Justice MeCardie in Colley 0. Overseas Exporters, (1921) 3 K.B. 302. The merit pasage hae. 3, where he 1 stems ler that in the sbsnze of special agrcoment the property and IN'goods doce not in the eave of gn tobe contract pass from the mer to the buyer ERI Wleebods are actaully put om bens: se0 Browne v. Hare, (1859) 4H. & N. 892; “Inglie v. ‘Stock, (1885)" 10 App. Cas, 203; Wimble v. Rosenberg, (1813) 3 'K.B. 749, at p. 747; Benjamia on Sale, 6ih'ed,"p. 785, where several Itnefal cases are collected Tt follows, therefore, that if and so far as this contract was ih its true nature an Fob. contract, the natural time at which the ‘property would pass. would. be. on shipment. Undonbtedly. this contract aleo contained some ef features, and théce is fh exprean fearon. to wig called forma tavoien, If and in'so faras it was week, camaact he “etek "of the Authorities is that the property would pars hot earlier than shipment, perhaps later than shipment. But for the purpose of the present ease there is no. need. €0Tune 7, 1957.) LLOYD'S LIST LAW REPORTS. 249 QB] consider whether it would be om shipment or-at some later time. ‘The insurance referred to in a.c.if, contract ie, of course, Marine. insurance for" the sea _voya Although authority is bardly required for Ghat, We can be found in George Ireland and’ Others’ v. Livingston, (8) EER. HEL, 905, at p. 408. There is also Lord Tustice Kennedy's dissenting judament in Biddsit Brothers. mone Horst Company, [1911] 1 K.1 3 984, the material Yeing aé p. 986; and Lord Stier passage Kennody’s dissenting” judgment was approved in. the House of Lords, ({1913] B.18). ‘Then there is Arnhold Karbero © Co. «Blythe, Green, Jourdain & Con, {tote} 1.405, ab pp. 812 and 318. There ig also Law @ Bonar, Ltd. v. British Americon Tobacco Company, Ltd., (1918) 2 KB. 60s, at p. 608. Therefore, under the contract, it was to bo expected ‘that’ the ownership of the Boods ‘would pass, to the buyers on ship- Inent of the goods, or possibly lat some Tater time, when the bill of lading and insurance’ policy and. final - definitive invoice would be handed over to. the buyers, “The goods were not in fact shipped, and indeed they were not even dispatched from the sellers” works to the port of shipment," They were, howover, Backed, and the ‘packages’ were. marked NCOP. Co., San Jose, Costa Rica, Port ‘There were ‘some answers to interrogatories which admitted certain facta showing tat the Preparatory sepa towards shipment had been. taken by sellers. Goods to the quantity and proper description required had been manu tured.” They were packed, and they wa ‘marked with these ‘shipping marke. "The steps can be regarded, not as intended appropriation, but as ‘being preparation for the shipment. Tt was contended that in August or September, 1953, there was an appropriation of the goods. tothe contract by the sellers with the assent of the buyers. I will first go through the relevant further. documents which bear on this uestion.. Then Twill. consider cortain lecided ‘cases that were cited and then Twill endeavour to apply the principles which emerge from ‘those cases. to the Dresent case now under consideration, have already read the letter of July 9, which may be regarded either as the final contractual letter, or the first letter after the conclusion of the contract, It refers to shipment and says: [1067] Vou 1 Your instructions regarding marks ete will be ‘complied with and immediately we “have some .deGnite information as to the date of shipment ‘we will write to you again. ‘When we forward the documents we vill let (you) have a statement showin the actual position of the account, an You can then remit tous any. balance ‘which may be due, ‘You may be assured that the order is having our best attention, “and. we anticipate that the goods will he ready for dispatch in the Very near futare. a July 88 05, the buyers write tothe Regarding your letter of July oth we would appreciate very much if you ‘would executa our pending, order as soon ts possible with direct ship to our Port Timon, or Puntarenas ‘Thanking you in advance for your co-operation, we remain, aud so on, Tin of inert to note that c form of execution of the pending order to which reference ia made is, “with direct Ship. to our Port Limon” ‘That. is consistent ‘with the assumption that the {Intention sll was that the performance of the order should be by shipment. On Tuly 29, the sellers write to the buyers, saying’ ‘We thank you for your letter of the sand July and regret that we have, a0 yet, been unable f> despatch ‘the goods eninst your resent order, "Most of the items are ayailoble but others are still in course of production find, unfortunately, we are ‘unable to Droseed at the prescat time as our works fre closed for the annual holiday of two weeks Flowever, we can assure you that we will’endeavour to complete your order 2t the earliest ‘possible moment after the re-opening "of our” factory” on August loth, ‘and. we will write you farther “immediately we have some definite information regarding the date ‘of shipment. On Avg. 24 the buyers write to the “Herewith we beg you to indicate us when you expect to exeeute our pending order of toys, of June Teth 1958 ‘As we are in a big urgency of these toys, we will appreciate very much if you ship 1, as soon as possible,250 LLOYD'S LIST LAW REPORTS. [June 7, 1957. (2957) Vou. 1] ‘Thanking you for your prompt answer, There aguin there is the contemplation anne tho Crdee will ‘bo “executed by shipment. Then on Aug, 27 shipping instructions wore “given by the sellers to. Messrs Hontder Brothers & Co, Lid a¢ Birming: Boon ‘and ioe ehipptag’instfuctions tats tat the goods are to be consigned by Vil oF lading t9 Carlos Federapiel & Coy the pletntiti “rhe ‘document faye, referring Bo the seliers Freight payable by us, Fob, charges payable by us, Plesee insure for 2° Ertanged by te Thon the shipping matke are given On the same date, Aug. 27, the sellers wrnte fo the buyers? Farther to our Istter of the oth Tuty, veo hove pleasure fu advising you shag The goods against. your order tre. nom Sveilable bus unfortunately there ia no oat aalling dipecr to Port iamon vot fhe end of September, ‘However, we have registered the con- sigument for shipment ede will write sen farther imgediately wo bave tome Jelnits neve regarding the name of the feovel“and tho dots of sailing Then from the form of registration of tho consigument for abipment ope cau see thee fe did refer to a Proposed shipment of eycies aad. triycles. andthe. mount feosived was to be receved as stated and itefact that cash had beeu received wes Tentioned and the pastier names. On Aug, 2, the agents, Messrs, Houlder Brothers & Co, Ltd, wrote to the sellers! We thank you for shipping deta covering. the “undermentioned consign: font, “whieh matier ie receiving ur sitertion and required instructions sil ie sont to you as early as possible, Tnsurance ie not being fected, in aceordanee with your instructions, ‘Then the identification of the “under mentioned consignment ez" C.'B, & Co, Ban doce, Costa Ries, Fort Liteon, 1/102! (On Aug. 31 there js a letter from the buyers 10 the sellers which ayes Referring to your letter of August 27th 1960 we beg. Jou yen, you Eave the tnpment ready, if there ie net, Bost tailing direct 10° Port Litton, please send Fy vis New Yorks as soon as Possible, Carlos Federspiel & Co., S.A. v. Charles Twigg & Co. Ltd. (QB. There again the emphasis is on shipment as constituting the performance, or the deciding act of performance qf the contract, On Sept. 9, Messrs, Houlder. Brothers serie to ho irs fling them, chat here Xore no direct sailings ftom Liverpool to Bort Limon, ‘They go on: es Shipment may however be arranged with transhipment at Cristobal or New York ‘on Sept 34, ther i the Inter eapecilly relied upon, together with that of Aug. 21, ty the plaintifis in their pleading. Tt is written by the sellers to the buyers, and ieays: ‘Dear Sirs, We thank you for your letter of the 24th" August ‘which efoared ours of the Sith and'we also acknowledge your letter of August ist In accordance with your instructions wwe are now arranging to ship the con- signment via New York and we hope to iefyou have some definite information regarding the date’ of shipment, ste, within the course of the next few days, ‘Assuring you of our co-operation at al times Then ther are forwarding instructions, saying that the goods were then to be sont to the particular ship, the steamship Britannic, at Huskisson ‘Dock, Liverpool, to the order of Houlder Brothers & Co., Ltd. ‘Then on Oct. 2, 1953, the receiver, the second defendant,’ wrote to the buyers in these term Dear Sirs, I have to inform you that I was appointed receiver and manager of this company on the 25th July, 1953, under the terms of a debenture dated. the 2nd September, 1952. T am informed that you are awaiting shipment of tricycles and adult bicycles. From a lack of understanding of the legal position, our sales office have had these goods manufactured, T much regret to have to inform you ‘that T cannot release these goods as they are claimed for the debenture holders under the terms of the debentures, In the circum: stances, T am unable to dispatch them. You will rank, with the other creditors of the company, in respect of the remit- tance you made of $1820, the sterling equivalent of which is £644 19s, 2d.June 7, 1957.) LLOYD'S LIST LAW REPORTS. 251 QB) Carlos Federspiel & Co, S.A. v. Charles Twigg & Co., Ltd, [1987] Vou 1 An alternative, which I do not suppose your it" exerl ior these to ‘be shipped. againat a Sr Poyment, which would ‘make, this an Entirely "now transection “with me a receiver and manager of the ‘company. ‘Then T was informed that some Chamber of Commerce, the British, and. Latin Rinestan” Saber "fCommetee at anning’ House, "2, ‘Belgrave Square, London SWit" wrote e°letter to the receiver’ or to. the defendant. company oF [both containing strong proteta ai the tall the er ager were ecelving from the two English companies, ihe vaallers and the debenture holders, in this “transaction. "Tt appeara from” the fetter T'am about to read that the Board Of Trade had. been informed of the matter Mr, Pationoe, the secsiver and Tanager of the debenture holders, writes Gn Nov, 2 1008 to the British and Latin American Chamber of Commerce: Dear irs Catios Federspiel & Co., B.A 1 have now informed the Board of ‘Trade that have been advised that 1 am Unable to dispatch goods to the above Susinst the payment of 1889 dollars made by him, "As you sre already aware this payment sit id by hm smpany bore mr Sppoistment 6 receiver and manager, SnU°the goods were made" up and. com Pleted for shipment after that time. Whilst I fully appreciate the points set forth in your letter of the 20th October, Puch regret my own Tegal. position ompels moto. adopt this attitude, 1 srould add chat on” the sth, November, T'vinding up order wee made for the Sompultory Lguidation of the company, td that Bederapie’ claim as ereditat EGS been passed to the Oficial Receiver tho was appointed Hguidator, There are come further letters which show that the shipping instructions for the ‘Gritannce had been cancelled, and'T think ‘the rest of the correspondence need not he read," should however, mention tha the foreign Guyers, nov unsaturelly, did: not accept. the offer contained in’ the. last forage, oF se revere of ‘On that correspondence, the question is whether there was an appropriation of the Foods to the contract by the sellers with the consent of the buyers after the con clusion of the contract’ and before the letter of Oct. 2, 1958. A number of cases were cited to which I will refer as briefly as possible, Some of them were quite old eases, The rst is Mueklow and Others (Assignees of Hoyland) v. Mangles, (1808) 1 Taunt, 318, ‘That was a case. where it appears ‘that Mr. Royland "bad undertaken to build a barge for Mr, Pooock. ‘The head-note reads: Before the work was begun, Pocock advanced to Royland some money on account, and as it proceeded, he paid him more, to the amount of £190 in all, being the whole value of the barge. When it was nearly finished, Pocock’s name was painted on the stern. Two days after the completion of the work, and before a commission of bankrupt had issued, the defendant, who was an officer of the sheriff of Middlesex, under ‘an execution against Royland, took this ,, which had not then been delivered to Pocock, but gave it up to him under an indemnity, ‘The jury found a verdict for the plaintiff. ‘Tho material passage, I think, is in Mr. Justice Heath’s judgment, where he says this (ibid., at p. 318): A. tradesman often finishes goods, which he is making in pursuance of an order given by one person, and sells ‘them to another. Tf the first customer has other goods made for him within ‘the stipulated time, he has no right to complain: he could not bring trover ageinst the parchaser for the goods, 20 sold. The painting of the name on the stern in this case makes no differences. If the thing be in existence at the time of the order, the property of it passes by the contract, but not s0, where the subject is to be made. ‘The next case is Rohde and Others ». Pheajtes, (W827) 6B. EC. $88, The head A. having in his warchouse a quantity of sugar, in bulk, more than sufficient to fill twenty hogsheads, agreed to sell twenty hogsheads to B., but there was no note in writing of the contract suficient to satisfy the Statute of Frauds, Four hhogsheads were delivered to and accepted by B.A. filled up and appropriated to B. sixteen other hogsheads, and informed him that they were ready, and desired him to take them away. B. said he would fake them as soon a6 he could: Held, that the appropriation having been made by A., and assented to by B., theLLOYD'S LIST LAW REPORTS. [June 7, 1957. {1967} Vou. property in the sixteen hogsheads there- by passed to the latter, and that their value might be recovered by A. under a count for goods bargained and sold, Mr. Justice Bayley said, at p. 902: Where a man sells part of a large parcel of goods, and it'is at his option Lo'elet part fs the vende he cannot maintain any action for goods bargsine and. sold; until, he ‘has made’ that election but as soon as he eppropriates part for the beneSt of the vendee, the property in the article sold passes to the ‘vende, although the vendor is not bound to"part ‘with the. powession wall he ta paid the price, Here there was a bargsin, Uy" ‘which the defendant undertook to take twenty hogsheads of suger, to be the plaintifs zo. question, aids that Memorandum of contract in writ fificient to satisfy the Statute of Frauds, there was no valid sale of them; and that the plaintits in their deela Hon having stated their claim to aro by vittue of @ bargain and sale, cannot recover for more than the four hogghea ‘which were actually delivered ‘9 and ‘ocepted hy the defeadant; thet in order {o recover for the others they ought to Have declared specially, that, in con sideration that the plaigtiffs would sel, the defendants promised to accept them, Tn answer to this itis said, that there was an etire contract for twenty hogsheads, and that the defendant, by. receivin four, had accepted part of the goods old within the meaning of ‘the seventeenth tection of the Statute of Frauds, Tn fect, the plaintiffs did appropriate, for the’ benedt of the defendant, sixteen hhogsheads of sugar, and they. communi- ated to the defendant that they had so appropriated them, and desired him to take them away and the latter adopted that act of the plaintiffs, and said he would send for them as soon as he could, T'am of opinion, that by reason of that appropristion made by the ‘plaintite, and assented to by. the defendant, the Property in the sixteen hogsheads of Bugar pasted to the vendee, That being to, the plaintifis are entitled to recover ‘the full value of the twenty hogsheads of ugar, under’ the ‘count for’ goods bargained and sold, Mr. Justice Holroyd said (at p. 393): Carlos Federspiel & Co., S.A. v. Charles Twigg & Co. Ltd | [QB "The sugars agreed tobe sold being part of a larger parcel, the vendors were to Select twenty hogsheads for the, vendee, That ‘selection wae made" by the plaintiffs, and they notified it to the Sefendant, and the latter then promised to take tem away, “That js equivalent fo an actual acceptance of the sixteen Nogsheads by the defendant, That Acceptance made the, goods “his own, subject to the vendor's lien as to the Brice, Tf the sugars had afterwards been Aestroyed by Are, the loss must-have fallen’on the deferdant, I'am of opinion that the selection of the sixteen. hoge heads by the plaintiffs, and the adoption of that act by the defendant, converted that whieh before wat a mere agreement tole Ito an aia sal and that the property in the sugars thereby pass fo the defendant; sand,_ consequently, that he was entitled to recover to the value of the whole under the count for Boods bargained and sold. ‘That is a perfectly clear anticipation of Sect. 18 of the Sale of Goods, Act. ‘The next case ie Atkinson and Others (designers of Sleddon) ms Belt ond Other G9885"95. he Caer That was a matter of two spinning framer'and. ¢. roving frame’ ordered from Seddon by a mas named Ray for the defendant, ‘They were Tiade and’ altered and packed by ‘Key's directions, tut then the defendants refused to take delivery. There wan an action for fhe price, Ie isa case of considerable Inerurt T think the mont material passage invat p, 983, where Mr. Justice Bayley Bye! They wore Sleddon’s goods, although they were intended for the defendants. find he hed writin t9'tall then ao. Sey ‘had expressed their assent then hE cage would have boon, withte: Rohe tnd Others t Phsiten, (1621) 6 Be aie Saathore would havo been compleie appropriation vesting the property in'the Wefendants But there tram noe any such aesent to the appro lal, hey “tie aan and and sold was maintainable. . ‘Then (and T am taking this shortly) the next case is £iliott v, Pybus, (18M) 10 Bing. 512, where there was a machine to be manufactured and there was no doubt that there was an appropriation, ‘The real contest was as to whether the ‘price had been agreed, but it was held that thereane 7, 1957.] LLOYD'S LIST LAW REPORTS. QB was a sufficient acceptance. The passage which is, T think, of some interest is in Chief Justice Tindal’s judgment at p. 517, where he say’ T agree that this comes, at last, to the question, whether or not the property has passed to the defendant; and that the plaintiff cannot sustain his action | for goods bargained and sold, unless when the defendant is in a condition to recover the goods in trover, and must sustain the loss in case of their being | stolen or destroyed by fire. ‘That is in anticipation of Sect. 20 of the Sale of Goods Act, whereby normally the ownership and the risk are associated. ‘Then there is Wilkins ». Bromhcad and Hutton, (84s) 63K, & G, 963, The head- note there is A, employed B, to build him a green. house for £0, When it was completed, B, gave A. notice, and requested kim t emit the price. A. remitted the amount and desired B, to keep. the greenhouse Ut sent for, "Afterwards B. (anknown to A.) deposited the greenhouse with C., telling him it wan the property of A” find requesting him to keep it for A” ‘which he agreed to do, B, having becom® bankrupt, his assignees took possession of the rene, Hel, est thatthe roperty in the greenhoute passed to Ay fhere having been an appropriation of it fo him by B. and an assent on his part to such "appropriation; secondly, that the greenhouse was not in the possession, order, and disposition of B. as reputed Chief Justice Tindal gave the judgment, and he said, at'p. 9742 Looking at the facts of this cas, seems. to me that there is comp evidence of ascent on the part of the Plaintif, to the appropriation made by the vendor, ‘The plaintiff was informed by. “etter that’ the "greenhouse ras Snished, and was requested to remit the ce He" dldag "ahi tne Fequesting the vendors to keep the green: House for him until he sent for it. Tt has been argued, thatthe letter of the isintif, desiring Smith and Bryant to jeep. the. greethoute for. him, "was written before the article was see, and that it would be hard if it wore held to be such an acceptance as would preclude him from rejecting the article if it after- wards turned out defective in its con. Siruction. “If a purchaser's astent to the first Carlos Federspiel & Co. S.A. v. Charles Twigg & Co., Ltd. [1957] Vor. 1 appropriation was shown to have been obtained by misropresentation, it seems to me it would probably be held to. be no assent at all, But that is not the eave here; and ‘although the plaintiff thought proper to assent to the appro. priation without seeing the greenhouse, the ascent wat not the lest complete! Upon this point, therefore, I think that the property vested in the plaintiff, so fas to enable him to maintain this action ‘Then there was Mr. Justice Maule’s judgment. At the foot of p. 978 he says: Tn these casos it is not necessary that the vendee should actually see the article when completed, provided there is sufficient to show ‘that the identical thing offered or appropriated by the oni party, is accepted and assented to by the other, ‘as made in the performance of the contract, Of this” there was evidence on whieh any jury would have found for the plaintiff, Mr. Justice Cresswell said (at p. 979) 1 am of the same opinion, ‘The frst point comes very’ much to this,—whether fhe contract was not in effect’ an agree ment for the sale of a specific chattel; {or although, in the first instancn, the bankrupts contracted to build the green house for the plaintify after the article wvas finished there was an appropriation Of it to the plaintif, and n clear assent or hie’ seta ck Sppropriaton. werefore think the property” pasted to the plaintiff. ree ‘Then there is the case of Aldridge v. Tohnson, (851) 7 E, & 8. 885, This was ‘case of considerable interest. ‘There was a contract for the sale of barley, ‘There were some rather complieated facts in the case, because to some extent there was an exchange of barley for agricultural ‘animals, which I think were bullocks, In eflect, there was an agreement for a sale cf the barley, The buyer inspected the barley. in bulc and approved of it, and sent his sacks to the eller for the seller to fill barley into the sacks.” The seller did so, and the buyer repeatedly sent. to the seller demanding the barley, but the seller detained it and eventually emptied it from the sacks back’ into the bulk. Tt was held, however, that the barley which had been put into the sacks did become the property of the plaintiff buyer, because that was a clear appropriation of it to the contract for which authority had been ssiven by the buyer, and therefore assent204 LLOYD'S LIST LAW REPORTS. [June 7, 1957. {1967} Vou 1) Carlos Federspiel & Co. S.A. v. Charles Twigg & Co. Ltd. TQB. had been given by the buyer, It was 90 Hat, notwithstanding ihe fact chat under thercontract the seller efter putting te barley into the tacks, stil had'the further Cine sending the tothe meeibouing taller satiog and sceamgipg for thee transmission, ‘That was the siton td Lord Campbell, C.J., gave judgment at Pergo wore he wal: TE i equally clear that, ato what was put indo thoes sucks thee must be edge Tent for the plaiatift"Looking iol Tint was done phen dhe bankrape pat URe'parkey inte the sack eo tavtant tbe property i ech ack if vested "ta the BREE“ “Soraldar ites bape won a pron an assent by the plain He had EEpcted ond spproved?ef to barley ta Ike if ont hls socks to be Bled out oF that bolle There san bo no doubt of Sie chet bo cet sppropristian of wost Bite" thoutd have been put data tae Sith there was sy evince of Be ‘thsequent Sppropeaton, by bis onder that should be sent on, ‘There remeined nothing tobe done by the vendor, ho Hed Sppropriated a party "the Giregtite of ne vandes. Hts U2 sume Seif bocce had bees filed and went on By the bankrupt, in wide cave H sanaot Ur Repated that the peepee “woetd pasts and it eat take nb tonne that BiStplttaitordored. the socket be forwarded hy the vendor. Then there is Mr. Jutioe Bre, who said nat. ta: property in what was put into the sucks assed to the plaintiff. Tt is clear that, ‘where there is an agreement for the sale ind purchase of a particular chattel, the pass till it is Ihe right of asoe vendes, "sometimes vendor, only, the bankrupt. "When he had. done the outward act which showed. whi part waa to be the vendee's property, his flection was made and the. property passed. That might be shown by sendin {he goods by the railway: and in-suel case the property would not pass till the ‘goods were dispatched. "But it might also be shown by other acts. Here an. ascertained” bulk, ‘of | which Dlaintif’ agreed to buy about half. ‘was left to the bankrupt to decide what solely with the ‘Here it is vested in the vendor portion should be delivered under that Contract, As soon as he does that, his lection has been indicated ; the decisive act was putting the portion into the sacks. The next case in Tangton 0. Hidgine (1880) 2H. @N, d02, That was a similar ease to tho last’ one, because in January the farmer had. agreed to. sell to. the plaintif all the erop of oil of peppermint frown on his. farm at a. certain. price per pound. In September” the farmer ‘wrote to tho plaintiff for bottles to put the il in. The plaintiff sent the bottles, and the farmer, Maving weighed the oil, put it in the. plaintif’s. bottles, labelled "them with “the “weight and. "made. out. the invoices. Before he completed the dlling he sold and delivered some of the bottles to the defendant, snd there the question arose. whether the property had passed to the plaintif. Baron Martin gave judgment at p. 408, where he said: ‘The defendant's Counsel chiefly founded “their” argument upon the obligation of the ‘vendor to daliver the is to, the earrier to convey them to {its “raitway “station. “It they. had established that, it might. havo altered the ease, but they, have failed to do so. Tn my opinion, ‘when two parties enter into a contract ‘and. put into writing, that writing determines the terms of their bargat, ‘There was no term that the goods should bo sont to the railway station, ‘Thero,was also a judgment delivered by Baron, Broprlh, ho foo A wider view, End bis judgment fe eopectaly ipteratag on. the importance of the intention ‘of the Parties in deciding whether the property pasion, “He said, at p. 400 T do not dissent from what was said g apy, brother “Martin with renpest, to e delivery to a carrier. "It may be tha the vendor would be bound to show some fact of delivery before he could sue for fhe pre; but however tht nay bey am of opinion that the property vested in laintiff when the oll was put into her bottens Tooling at the yetcisie there ‘ought to be no doabt, ‘A person agrees to buy a cartain article, and sends Is botttes to the seller to put the article into.” ‘The seller pute the article into ihe’ buyer's ‘bottles, then ie there any rule to sey that the property doss ‘nob pase? ‘The buyer in effect says, “Twill frust you to dliver into my bottles, andTune 7, 1957.] LLOYD'S LIST LAW REPORTS. QB) Carlos Federspiel & Co,, S.A. v. Charles Twigg & Cou Ltd. {i957} Vor. 1 by that means to appropriate to me, the atticle which I have tought of you.” Gn" the ‘other hand the seller ‘must be faken to say, "You have sent your Hotties ‘and {will put the article in tiem for you.” In_all reason, when a vendeo senda his ship, o eart, oF cask, fr battle to the vendor, and hé puts the Article sold into it, that ie a delivery to the vendee, phen, fnally,,thore in, the suo of “ignataro v. Gilroy, [1919] 1 KB, 459, and. which was ¢ Divisional’ Court decision by Mr. Justice Lawrence and Mr. Justice Howlatt on appeal from the Middlesex County Court. That was a case in which there was a sale of 140 bags of Tico to be ‘taken delivery in 14 days fr from date,” The sale was by sample and the bags were ascertained when the defendant seller told the plaintiff that the 125 bags would be delivered at Chambers! Wharf and the remaining 15 bags at the defen- dant’s place of business. The plaintiff sent a cheque for the price and asked for = Gelivery order as arranged. On the follow- ing day the defendant wrote to. the plaintiff enclosing a delivery order for 135. bags. from Chambers’ Wharf and stating that the 15 bags were ready for delivery at 50 Long Acre. ‘The plaintiff neglected to send for. the 15 bags until considerably later, and it was found that they had been stélen.. ‘The question was to whom the bags belonged, and it was held that the property had passed, because in eflect there was nothing remaining for te seller to do. He bad had the goods ready to be taken by the buyer, and it was for the buyer to come and take them, and therefore it was held that that constituted an appropriation for the purpose of the contract. On those authorities, what are the principles emerging? 1 think one can distinguish these principles. First, Rule 6 of Sect. 18 of the Act is one of the ul for ‘ascertaining, the intention of the parties ato the time at which the property in the goods is to pass to the buyer unless a different intention appears. ‘Therefore the element of common intention hhas always to be borne in mind. A mere setting apart or selection of the seller of ‘the goods which he expects to use in performance of the contract is not enough. Fen is ll he can change his mind end use those goods in performance of some ‘other contract and use tome other goods in performance of this contract. To constitute an appropriation of the goods to the contract, the parties must have had, or be reasonably supposed to have had, an intention to attach the contract irrevoe- ably to those goods, #0 that those goods and no others are the subject of the sale and become the property of the buyer. Secondly, it is by agreement of tho parties that the appropriation, involving a change of ownership, is, made, although in some, cases, the buyer's assent to an appropriation by the seller is conferred in advance by the contract itself or otherwise. Thirdly, an appropriation by che seller with the assent of the buyer, may be eal “iways to favolve an actual ot constructive delivery. If the seller retains posession, hhe does so as bailee for the buyer. ‘There is a passage in Chalmers’ Sale of Goods ‘Act, Tath ed, at p. 75, whore itis said ‘in the escond plac, ifthe decisions be carefully examined, it will be found that Se ort che witee Do! property ‘bes ion “hsidto pansy dere Baa been an Sitnel or epobtattine Salivary et the fools tthe buyer I think that is right, subject only to this pst qualisealisee fad thorny bo Phter nue! constructive delivery an octual Geieery sll to be mage by de ‘seller nds the ountenct "OF eautan, tat is Gite, poraGley because cllvery a the Sannte of podctiony eheraas apprapris: Han" tranatdre weertlp. Bo. tae aay tere an. appropriation, constructive Gtuivery, suareby sale betomer balls for the’ buyer," and then -osubeequent tekuel “delivery _favetving.ostunt Poa mand whe Tany that T'have ia mind {n'partleuar the two cuca efed, waned), Uudrtige voohneom sop ad Longton’, oan top. Fourthly, one hes to romember Seok, 20 off the Sule"ot Goods ‘Ast, whereby the Seastthip oud the isl "ary sorually Stvoclnted, "Mherefgr at it'appeare thet Bere it nama dot Winkie ont contruction of tho’ relent documents fat iho goods were abn stern tines, fll at the aller Fak, thar i prima facts fn indication thae the property had ‘not assed to te bayer, Fifty, unually bot not necerarily, the appropriating txt ia ihe last act 1 be Sette bythe miles," or inianee, if Uslivery in 09 be taken by the buyer at the wolleeh” premist and” the." slles as SSmploted his part of the contract ond has Sppropristed the goods when be hav made56 LLOYD'S LIST LAW REPORTS. [June 7, 1957. [i997] Vou. 1] Carlos Federspiel & Co., S.A. v. Charles Twigg & Co, Ltd, the goods ready and has identified them find placed them in position to be taken by Me bayer on has so informed oe juyer, and if the buyer agrees to come an take "them, that. it the assent to. the snpropriation, But if there fsa further aUt, an important and decisive act to be done ‘by the seller, then there is. prima Jace evidence’ that’ probably the property does not pass until the final act is done Applying those principles to the present case I would say this, Firstly, the inten tion was that the ownership should pass on shipment (or possibly at some later date) because the emphasis is throughout on shipment as the decisive act to be done by the seller in performance of the contract. Secondly, it 1s impossible to find in this correspondence an agreement to a change of ownership before the time of shipment, ‘The letters, especially those of Aug. 27 and Sopt, 14, which are particularly relied on by the ’ plaintiff, do not contain any provision or implication of any earlier change of ownership, Thirdly, there is no factual or constructive delivery; no tug. gestion of the seller becoming a baile for the buyer. Fourthly, there is no suggestion of the goods being ‘at the buyer's risk at any time before shipment; no suggestion that thesbuyer should insist on the seller arranging insurance for them. Fifthly, the last two acts to be performed by the seller, namely, sending the goods to Liverpool and having the goods shipped on board, were not performed. Therefore, my decision that the. prima facie inference which. one would. have drawn’ from the’ contract iz that the roperty was not to pass at any time Ketore shipment, ia in'my view not dis. placed ‘by’ the. subsequent. correspondenes between the parties, It follows, therefore, that there was no appropriation of thes: koods and therefore the ection fails, T should also deal briefy with another question that was raised as to what the Ieasure of damages would have been if the Action had aucseeded. ‘There was only one Guestion there, It is agreed that the value Of the goods in the sense of their cost to the buyers, at least, can be recovered. That figure is, aa T have stated, agreed, A further question is whether the sum called sum for loss of profit would in some way be recoverable. Reference was made to, T think, four cases: France v. Gaudet and Others) (1811) LR. 6 QB. 199; Payew, Wid. v. Saunders,” {iis} § "KB. 8813 (QB. Phe _Aroad, (3804) P1505 (199) 4 EN aie sha ana) Sache es Alon and Gtncrs [io] 2 KD. 2, T will deal with this shortly because on the view Lave taken as to lability it does not have to be decided. 1 am expressing a view on this point only to indicate briefly how the argument went, and what my opinion is as to the decision, T think the proper view is that if this additional sum is recoverable at all i ean only be recoverable on the ground that the proper value to be taken as the measure is the value to the buyer, and the value of these goods to the buyer would have been hot merely what he had to. pay for’ the goods but the higher sum at whieh be could fave sold thein, It is agreed that he would have ‘been “able to sell them for ‘some on per cent, more, and I have stated the figure which is sgréed, ‘On the other hand, it ie pointed out that when the receiver ‘wrote to the buyer on Oct, 2, he offered o tel the goods to the buyer at cost price. ‘ha buyer fe waa rong, hd OU fo mitigate the resulting damage, and. the ‘question is whether in legal faith the buyer Mould have accepted that offer, or at any rate whether, not having accepted that er be ous to elem oh « footing that'the goods have any higher value than the price at which be could have bought them at that moment. ‘The material case hore fe Payeuy biden, Sounder sun and wre is a. paseage fa the judgment of Lor Tustioe “Banker which’ bears on this problem. ‘There the question was whether Kewas unreasonable for one party to refuse to take advantage of an offer made by. the other party. ‘Lord Justice Bankes said, at . 588 It is plain that the question what is reasonable for a person to do in mitiga- tiow of his damages cannot be a question of law but must be one of fact in the circumstances of each particular case. ‘There may be cases where as matter of fact it would unreasonable to expect a plaintiff to consider any offer made in view of the treatment he has received from the defendant. If he had been rendering personal services and had beon dismissed after being accused in presence of others of being a thief, and if after that his employer had offered to take him back into his service, most persons would think he was justified in refusing the offer, and that it would be unreasonable to atk him in this way to mitigate thejune 7, 1957.) QB] damages in an action of wrongful dismissal. “But that is not to state a principle of law, but a conclusion of fact fo be arrived at on a consideration of ail the circumstances “of the case, Mr Matthews complsined that the respon mnt had treated his elients so badly that Ie eould be usreuonabe to expect chen to Tisten to ‘any. proposition she ‘might tuske. I do not agree, ey et arty. as ready" to. sccuse the other of Conduct unworthy of « high eommereial Feputation, and there was nothing. to justify the appellante ‘in refusing to Zonsider the respondent's offer, I think the learned Judge came. to.'a_ proper conclusion on the: facts, and that. the Sppeal must be dismissed, One can see the possibility of an argu ment here, because the final result of this transaction in all its aspects was that the two English companies, te sellers, and the debenture holders taken together, received the money and kept the goods, and the Unfortunete foreign buyers who’ had been too confiding in his dealings with the Persone concerned, found that he had paid tie money. and received no goods. “One ean imagine the feeling of indignation in the breast of the foreign buyer in that situa. tion. The question is whether, trom & legal point of view, "his refusal to. accept. the Feceiver's offer in mitigation is unteason- able, or, asi is put better, whether having refused’ that offer, the Buyer can after: ards charge any higher price the defendants when he. mak against them, On the whole, I think in a commercial sense the proper view is that, in spite of the indignation the buyers may well have felt, having refused that offer they cannot reasonably” claim an additional sum against the defendants here. I am dealing, of course, solely with the legal aspect, and it is not necessary for mo to consider any non-legal aspeet of the transaction. One would suppose that such treatment of a foreign buyer was not conducive to the improvement of the British export trade, but that is a non-legal consideration, and T think Mr. Lyell was perfectly right from a legal point of view when he said that legally no discrimination can be made between a foreign and a home buyer in a matter of this sort, The English debenture holding company’ has taken good and timely steps to protect, its interests, and the foreign buyers, being too confiding, LLOYD'S LIST LAW REPORTS. In my view each | 257 [1987] Vor. 1 ¥. Charles Twigg & Co. Ltd have not taken such steps, and the loss legally falls on the foreign buyer. There- fore if the question had to be decided, I Would have held that the proper measure Of damages here is the mere cost price, and that. the additional sum could. not be Woluded. However, in view of my decision fon liability, there must be judgment here for the defendants, with costs