[1917] 1 K.B. 337
Divisional Court
The plaintiff, a fish exporter carrying on business at Valentia, Ireland, entered into a contract with the defendants, fish salesmen, of Billingsgate, to sell to them twenty boxes of hard, bright mackerel. The fish were to be sent to the defendants at Billingsgate. On the same day the plaintiff consigned by railway from Valentia to his (the plaintiff's) order in Holyhead 190 boxes of mackerel, and telegraphed instructions to the railway company at Holyhead to deliver twenty of the 190 boxes to the defendants, and of the remaining 170 boxes twenty and 150 to two other consignees respectively. After the mackerel were placed on rail at Valentia the plaintiff sent to the defendants by post an invoice on which he placed the words "At sole risk of purchaser after putting fish on rail here." The train in which the mackerel were carried from Valentia to Dublin was delayed and arrived at Dublin so late that the mackerel lost the boat by which they ought to have been carried from Dublin to Holyhead. Upon arrival of the 190 boxes at Holyhead an official of the railway company, in accordance with the plaintiff's telegraphic instructions, picked out and earmarked twenty boxes for delivery to the defendants and twenty and 150 boxes for delivery to the two other consignees respectively. In consequence of the delay which had occurred, when the mackerel reached the defendants in London they were not in a merchantable condition as hard, bright mackerel, and the defendants refused to accept them. The plaintiff sued to recover the price.
Avory J
'… The whole question is whether the twenty boxes of mackerel became the property of the buyer, or, in other words, whether they were at the buyer's risk when they were put on rail at Valentia. That depends on whether there was an appropriation of the twenty boxes at that time to the defendants. If there was an appropriation of the particular twenty boxes to them, it is clear that if they and the other purchasers had been at Holyhead when the mackerel in fact arrived there the defendants would have been entitled to say as against the other purchasers "We claim those particular twenty boxes of mackerel." Suppose that in the present case twenty boxes only had become bad, it is quite impossible on the evidence to say which of the various purchasers would have been bound to take the twenty bad boxes when they were at Holyhead. If it was impossible to determine which of the purchasers was bound to take the twenty bad boxes, it follows that no particular twenty boxes were the property of any particular purchaser at that time.
In my judgment the invoice dated January 15, which contains the words "At sole risk of purchaser after putting fish on rail," cannot be construed as part of the contract. There is no evidence of the buyers' assent to those words, and they undoubtedly were placed on the invoice after the contract was made and in my opinion formed no part of it.'