Scriven Brothers & Co v Hindley & Co

 

(1913) 3 KB 564

King's Bench

 

Northcott was employed by Scriven Brothers to sell a large quantity of Russian hemp and tow. The catalogue, prepared by Northcott, contained the shipping mark 'SL' and the numbers of the bales in two lots, namely, 63 to 67, 47 bales, and 68 to 79, 176 bales. The former were hemp and the latter were tow but the catalogue did not disclose this difference. At the showrooms bales from each of these two lots were on view, and on the floor of the room in front of the bales was written in chalk 'SL 63 to 67' opposite the samples of hemp, and 'SL 68 to 79' opposite the samples of tow. Macgregor, Hindley's buyer, bid for the 47 bales of hemp and these were knocked down to him at £24 0s 6d per ton. The 176 bales of tow were then put up and Macgregor bid £17 per ton (an extravagant price for tow). The 176 bales were immediately knocked down to him. The auctioneer said that he announced this lot as 'mixed tow,' but this was denied. It was admitted at the trial that Macgregor bid under the belief that the goods were hemp. It was stated by witnesses on both sides that in their experience Russian hem and Russian tow were never landed from the same ship under the same shipping marks.

 

Scriven Brothers contended that the mistake was only a mistake as to value and was not one as to the subject-matter of the apparent contract.

 

The jury found: (1) That hemp and tow are different commodities in commerce. (2) That the auctioneer intended to sell 176 bales of tow. (3) That Macgregor intended to bid for 176 bales of hemp. (4) That the auctioneer believed that the bid was made under a mistake when he knocked down the lot. (5) That the auctioneer had reasonable ground for believing that the mistake was merely one as to value. (6) That the form of the catalogue contributed to cause the mistake that occurred.

 

Lawrence J

 

In this case the plaintiffs brought an action for £476. 12s. 7d., the price of 560 cwt. 2 qrs. 27 lbs of Russian tow, as being due for goods bargained and sold. The defendants by their defence denied that they agreed to buy this Russian tow, and alleged that they bid for Russian hemp and that the tow was knocked down to them under a mistake of fact as to the subject-matter of the supposed contract...

 

The jury have found that hemp and tow are different commodities in commerce. I should suppose that no one can doubt the correctness of this finding. The second and third findings of the jury shew that the parties were never ad idem as to the subject-matter of the proposed sale; there was therefore in fact no contract of bargain and sale. The plaintiffs can recover from the defendants only if they can shew that the defendants are estopped from relying upon what is now admittedly the truth...

 

I must, of course, accept for the purposes of this judgement the findings of the jury, but I do not think they create any estoppel...

 

Once it was admitted that Russian hemp was never before known to be consigned or sold with the same shipping marks as Russian tow from the same cargo, it was natural for the person inspecting the 'SL' goods and being shewn hemp to suppose that the 'SL' bales represented the commodity hemp. Inasmuch as it is admitted that some one had perpetrated a swindle upon the bank which made advances in respect of this shipment of goods it was peculiarly the duty of the auctioneer to make it clear to the bidder either upon the face of his catalogue or in some other way which lots were hemp and which lots were tow.

 

To rely upon a purchaser's discovering chalk marks upon the floor or the show-room seems to me unreasonable as demanding an amount of care upon the part of the buyer which the vendor had no right to exact. A buyer when he examines a sample does so for his own benefit and not in the discharge of any duty to the seller; the use of the work 'negligence' in such a connection is entirely misplaced, it should be reserved for cases of want of due care where some duty is owed by one person to another. No evidence was tendered of the existence of any such duty upon the part of buyers of hemp... In my view it is clear that the finding of the jury upon the sixth question [that the plaintiff had contributed to the mistake] prevents the plaintiffs from being able to insist upon a contract by estoppel. Such a contract cannot arise when the person seeking to enforce it has by his own negligence or by that of those for whom he is responsible caused, or contributed to cause, the mistake.

 

I am therefore of opinion that judgement should be entered for the defendants.