*1066 Gustavus Couturier and Others v Robert Hastie and AnotherQB

27 June 1856

(1856) V House of Lords Cases (Clark's) 67310 E.R. 10651856

[June 26, 27, 1856].

[Mews' Dig. iv. 142; xi. 943, 998; xii. 476; xiii. 542. S.C. 25 L.J.Ex. 253; 2 Jur. N.S. 1241; 8 Exch. 40; 9 Exch. 102. On point (i.) as to actual existence of article sold, cited in The John Bellany , 1870, L.R. 3 Ad. and E. 134; Joliffe v. Baker , 1883, 11 Q.B.D. 272; and cf. Sale of Goods Act 1893 (56 and 57 Vict. c. 71), s. 6: (ii.) as to evidence of usage (5 H.L.C. 681; 8 Exch. 40), see Fleet v. Murton , 1871, L.R. 7 Q.B. 132; Mollett v. Robinson , 1872, L.R. 7 C.P. 107: (iii.) under Statute of Frauds, s. 4 (8 Exch. 40), followed in Sutton v. Grey (1894), 1 Q.B. 285.]

Contract of Sale—Actual existence of article sold.

A cargo of corn was shipped by A. at Salonica in February 1848 for delivery in London. On the 15th of May it was sold by H. a factor, who made the sale on a del credere commission. The contract described the corn as “of average quality when shipped,” and the sale was made at “27s. per quarter free on board, and including freight and insurance to a safe port in the United Kingdom, payment at, etc. upon handing shipping documents.” In fact the corn *1067 had, a short time before the date of the contract, been sold at Tunis, in consequence of getting so heated in the early part of the voyage as to render its being brought to England impossible. The contract in England was entered into in ignorance of this fact. When the English purchaser discovered it, he repudiated the contract: In an action for the price brought against the factor:

Held, that the contract contemplated that there was an existing something to be sold and bought and capable of transfer, which not being the case at the time of the sale by the factor, he was not liable.

The Plaintiffs were merchants at Smyrna; the Defendants were cornfactors in London; and this action was brought to recover from them the price of a cargo of [674] Indian corn, which had been shipped at Salonica, on board a vessel chartered by the Plaintiffs for a voyage to England, and had been sold in London by the Defendants in Error, upon a del credere commission. The purchaser, under the circumstances hereafter stated, had repudiated the contract.

In January 1848, the Plaintiffs chartered a vessel at Salonica, to bring a cargo of 1180 quarters of corn to England. On the 8th of February a policy of insurance was effected on “corn, warranted free from average, unless general, or the ship be stranded.” On the 22d of that month, the master signed a bill of lading, making the corn deliverable to the Plaintiffs, or their assigns, “he or they paying freight, as per charterparty, with primage and average accustomed.” On the 23d February the ship sailed on the homeward voyage. On the 1st May 1848, Messrs. Bernouilli, the London

agents of the Plaintiffs, and the persons to whom the bill of lading had been indorsed, employed the Defendants to sell the cargo, and sent them the bill of lading, the charterparty, and the policy of insurance, asking and receiving thereon an advance of £600.

On the 15th May the Defendants sold the cargo to A. B. Callander, who signed a bought note, in the following terms: “Bought of Hastie and Hutchinson, a cargo of about 1180 (say eleven hundred and eighty) quarters of Salonica Indian corn, of fair average quality when shipped per the Kezia Page , Captain Page, from Salonica; bill of lading dated twenty-second February, at 27s. (say twenty-seven shillings) per quarter, free on board, and including freight and insurance, to a safe port in the United Kingdom, the vessel calling at Cork or Falmouth for orders; measure to be calculated as customary; payment at two months from this date, or in cash, less discount, at the rate [675] of five per cent. per annum for the unexpired time, upon handing shipping documents.”

In the early part of the homeward voyage, the cargo became so heated that the vessel was obliged to put into Tunis, where, after a survey and other proceedings, regularly and bona fide taken, the cargo was, on the 22d April, unloaded and sold. It did not appear that either party knew of these circumstances at the time of the sale. The contract having been made on the 15th of May, Mr. Callander, on the 23d of May, wrote to Hastie and Hutchinson: “I repudiate the contract of the cargo of Indian corn, per the Kezia Page , on the ground that the cargo did not exist at the date of the contract, it appearing that the news of the condemnation and sale of this cargo at Tunis, on the 22d April, was published at Lloyd's, and other papers, on the 12th instant, being three to four days prior to its being offered for sale to me.”

The Plaintiffs afterwards brought this action. The declaration was in the usual form. The Defendants pleaded several pleas, of which the first four are not now material to be considered. The fifth plea was that before the sale to Callander, and whilst the vessel was on the voyage, the Plaintiffs sold and delivered the corn to other persons, and that since such sale the Plaintiffs never had any property in the corn or any right to sell or dispose thereof, and that Callander on that account repudiated the sale, and refused to perform his contract, or to pay the price of the corn. Sixthly, that before the Defendants were employed by the Plaintiffs, the corn had become heated and greatly damaged in the vessel, and had been unloaded by reason thereof, and sold and disposed of by the captain of the said vessel on account of the Plaintiffs at Tunis, and that Callander, for that reason, repudiated the sale, etc.

[676] The cause was tried before Mr. Baron Martin, when his Lordship ruled, that the contract imported that at the time of the sale, the corn was in existence as such, and capable of delivery, and that as it had been sold and delivered by the captain before this contract was made, the Plaintiffs could not recover in the action. He *1068 therefore directed a verdict for the Defendants. The case was afterwards argued in the Court of Exchequer before the Lord Chief Baron, Mr. Baron Parke, and Mr. Baron Alderson, when the learned Judges differed in opinion, and a rule was drawn up directing that the verdict found for the Defendants should be set aside on all the pleas except the sixth, and that on that plea judgment should be entered for the Plaintiffs, non obstante veredicto . That the Defendants should be at liberty to treat the decision of the Court as the ruling at Nisi Prius , and to put it on the record and bring a bill of exceptions (8 Exch. 40). This was done, and the Lord Chief Baron sealed the bill of exceptions, adding, however, a memorandum to the effect that he did so as the ruling of the Court, but that his own opinion was in opposition to such ruling.

The case was argued on the bill of exceptions in the Exchequer Chamber, before Justices Coleridge, Maule, Creswell, Wightman, Williams, Talfourd, and Crompton, who were unanimously of opinion that the judgment of the Court of Exchequer ought to be reversed (9 Exch. 102). The present writ of error was then brought.

The Judges were summoned, and Mr. Baron Alderson, Mr. Justice Wightman, Mr. Justice Creswell, Mr. Justice Erle, Mr. Justice Williams, Mr. Baron Martin, Mr. Justice Crompton, Mr. Justice Willes, and Mr. Baron Bramwell, attended.

[677] Sir F. Thesiger and Mr. James Wilde for the Plaintiffs in Error.—The purchase here was not of the cargo absolutely as a thing assumed to be in existence, but merely of the benefit of the expectation of its arrival, and of the securities against the contingency of its loss. The purchaser bought in fact the shipping documents, the rights and interests of the vendor. A contract of such a kind is valid, Paine v. Meller (6 Ves. 349); Cass v. Rudele (2 Vern. 280). The language of the contract implies all this. The representation that the corn was shipped free on board at Salonica, means that the cargo was the property of, and at the risk of the shipper, Cowasjee v. Thompson (5 Moo. P.C. 165). The Court of Exchequer proceeded on the words of this contract, and gave the correct meaning to them. Mr. Baron Parke (8 Exch. 54) said, “There is an express engagement that the cargo was of average quality when shipped, so that it is clear that the purchaser was to run the risk of all subsequent deterioration by sea damage or otherwise, for which he was to be indemnified by having the cargo fully insured; for the 27s. per quarter were to cover not merely the price, but all expenses of shipment, freight, and insurance.” In a contract for the sale of goods afloat, there are two periods which are important to be regarded, the time of sale and the time of arrival. If at the time of the sale there is anything on which the contract can attach it is valid, and the vendee bound, Barr v. Gibson (3 Mee. and Wels. 390). The goods are either shipped, as here, “free on board,” when it is clear that they are thenceforward at the risk of the vendee, or they are shipped “to arrive,” which saves the vendee from all risk till they are safely brought to port, Johnson v. Macdonald (9 Mee. and Wels. 600). The intention [678] of the parties is understood to be declared by different terms of expression, and the judgment of the Exchequer Chamber here really violates that intention. The case of Strickland v. Turner (7 Exch. 208), which was referred to by the Lord Chief Baron (8 Exch. 49), is not in point, for there the annuity, which was the subject of the sale, had actually ceased to exist when the sale took place; there was nothing whatever on which the contract could attach; and the principles therefore on which all contracts of sale must proceed, as explained and illustrated by Pothier, 1 whose definitions of a sale are literally adopted by Mr. Chancellor Kent (2 Kent's Com. 468), applied there, but they do not apply here, for here the parties were dealing with an expectation, namely, the expectation of the arrival of the cargo. As Lord Chief Baron Richards said, in Hitchcock v. Giddings (4 Price, 135), “If a man will make a purchase of a chance, *1069 he must abide by the consequences.” Here, however, the chance was only that of the arrival of the cargo, and that chance was covered by the policy, for the cargo itself, as stated in the contract, had been actually shipped. Had the cargo been damaged at the time of this contract, the loss thereby arising must have been borne by the purchaser Suppose the corn had been landed at Tunis, and had remained in the warehouse there, [679] it would have ceased to be a cargo in the strict and literal meaning of the word, but the purchaser would still have been bound by his contract.

The Court of Exchequer Chamber, admitting that the vendee might have recovered an average loss under the policy on this cargo, said that he could not have recovered if a total loss had occurred, and referred to an admission to that effect supposed to have been made by the present

Baron Martin when arguing Sutherland v. Pratt (11 Mee. and Wels. 296). That admission does not mean what is thus supposed; and after the case of Roux v. Salvador (3 Bing. N.C. 266), where there was a total loss, and the Plaintiff recovered on the policy, it is difficult to understand how such an opinion could be entertained. A technical objection arising on the form of the policy would not affect this question. The purchaser's right on this policy would have been complete, Phillips (1 Phill. Ins. 438), Marshall (1 Marsh. Ins. 333), and March v. Pigott (5 Burr. 2802).

By what has happened here, the purchaser has been saved the payment of freight, Vlierboom v. Chapman (13 Mee. and Wels. 230); and Owens v. Dunbar (12 Ir. Law. Rep. 304) shows that he would have been bound to accept the cargo. The contract here was, that the cargo was shipped “free on board.” To that extent the vendor was bound, but he was not bound by any farther and implied warranty, Dickson v. Zizinia (10 Com. Ben. 602).

Mr. Butt and Mr. Bovill for the Defendants in Error were not called on.

The Lord Chancellor.—My Lords, this case has been very fully and ably argued on the part of the Plaintiffs in Error, but I understand from an intimation which I have received, that all [680] the learned Judges who are present, including the learned Judge who was of a different opinion in the Court of Exchequer, before the case came to the Exchequer Chamber, are of opinion that the judgment of the Court of Exchequer Chamber sought to be reversed by this writ of error was a correct judgment, and they come to that opinion without the necessity of hearing the counsel for the Defendants in Error. If I am correct in this belief, I will not trouble the learned counsel for the Defendants in Error to address your Lordships, because I confess, though I should endeavour to keep my mind suspended till the case had been fully argued, that my strong impression in the course of the argument has been, that the judgment of the Court of Exchequer Chamber is right. I should therefore simply propose to ask the learned Judges, whether they agree in thinking that that judgment was right.

[The Judges consulted together for a few minutes, at the end of which time]

Mr. Baron Alderson said,—My Lords, Her Majesty's Judges are unanimously of opinion that the judgment of the Exchequer Chamber was right, and that the judgment of the Court of Exchequer was wrong; and I am also of that opinion myself now, having been one of the Judges before whom the case came to be heard in the Court of Exchequer.

The Lord Chancellor.—My Lords, that being so, I have no hesitation in advising your Lordships, and at once moving that the judgment of the Court below should be affirmed. It is hardly necessary, and it has not ordinarily been usual for your Lordships to go much into the merits of a judgment which is thus unanimously affirmed by the Judges who are called in to consider it, and to assist the House in forming its judgment. But I may state shortly [681] that the whole question turns upon the construction of the contract which was entered into between the parties. I do not mean to deny that many plausible and ingenious arguments have been pressed by both the learned' counsel who have addressed your Lordships, showing that there might have been a meaning attached to that contract different from that which the words themselves impart. If this had depended not merely upon the construction of the contract but upon evidence, which, if I recollect rightly, was rejected at the trial, of what mercantile usage had been, I should not have been prepared to say that a long-continued mercantile usage interpreting such contracts might not have been sufficient *1070 to warrant, or even to compel your Lordships to adopt a different construction. But in the absence of any such evidence, looking to the contract itself alone, it appears to me clearly that what the parties contemplated, those who bought and those who sold,

was that there was an existing something to be sold and bought, and if sold and bought, then the benefit of insurance should go with it. I do not feel pressed by the latter argument, which has been brought forward very ably by Mr. Wilde, derived from the subject of insurance. I think the full benefit of the insurance was meant to go as well to losses and damage that occurred previously to the 15th of May, as to losses and damage that occurred subsequently, always assuming that something passed by the contract of the 15th of May. If the contract of the 15th of May had been an operating contract, and there had been a valid sale of a cargo at that time existing, I think the purchaser would have had the benefit of insurance in respect of all damage previously occurring. The contract plainly imports that there was something which was to be sold at the time of the contract, and something to be purchased. No such thing existing, I [682] think the Court of Exchequer Chamber has come to the only reasonable conclusion upon it, and consequently that there must be judgment given by your Lordships for the Defendants in Error.

Judgment for the Defendants in Error, with costs. Lords' Journals, 27 June 1856.

1. Pothier, Contrat de Vente, pt. 1, s. 2, art. 1. “II faut en premier lieu, une chose qui soit vendue, et qui fasse l'objet du contrat. Si done, ignorant que mon cheval est mort, je le vends à quelqu'un, il n'y aura pas un contrat de vente, faute d'une chose qui en soit l'objet. Par la même raison, si, me trouvant avec vous à Paris, je vous vends un maison que j'ai à Orléans, dans l'ignorance où nous sommes, l'un et l'autre, que cette maison a été incendiée pour le total, ou pour la plus grande partie, ce contrat sera nul, parceque la maison qui en faisoit l'objet n'existoit pas; la place et ce qui restoit de cette maison, n'étoient pas tant la chose qui faisoit l'objet de notre contrat, que des restes de ces choses. L. 57, ff. de Contr. Empt.”

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*429 Smith v. Myers and Another

Queen's Bench Division

QB

Cockburn , C.J. , Mellor and Lush , JJ.

1870 June 15

Contract of Sale, of Cargo "expected to arrive" by a particular Ship.

The defendants' correspondents at Valparaiso bought on their account 600 tons of nitrate of soda, and on the 16th of July they chartered the barque Precursor to bring it to England; the defendants being informed of this, on the 8th of September made the following contract, through brokers, with the plaintiff:--"We have this day sold to you about 600 tons, more or less, being the entire parcel of nitrate of soda expected to arrive at port of call per Precursor , at 12s. 9d. per cwt. ... Should any circumstance or accident prevent the shipment of the nitrate, or should the vessel be lost, this contract to be void." In the meantime, on the 13th of August, an earthquake had destroyed the greater part of the nitrate of soda while lying at the port of lading; and, on the 2nd of September, the Valparaiso house had cancelled the charter of the Precursor . Afterwards, on learning from the defendants that they had sold the nitrate to arrive, but not on what terms, they purchased other 600 tons of nitrate at above the defendants' limit, and obtained a transfer of a charter of the same barque Precursor , and shipped the nitrate about the 23rd of December to the defendants, to enable them to execute their contract if obliged to do so, or to sell at a profit, if free. The Precursor arrived in England on the 8th of May; and the defendants, having in January sold to other parties the soda to arrive, refused to deliver to the plaintiff, on which he brought an action on the contract of the 8th of September:--

Held, that the contract, though not for a specific lot of nitrate of soda, was for a specific adventure or voyage which both parties contemplated as about to take place; and that this second lot was not within the contract.

DECLARATION, for not delivering 600 tons of nitrate of soda, expected to arrive per Precursor , pursuant to a contract of sale (setting it out).

*430 Pleas, inter alia: 1. A traverse of the contract as alleged. 2. That the shipment of the nitrate of soda was prevented by circumstances and accidents within the true intent of the contract, viz., by the soda being destroyed by an inundation caused by an earthquake at the port of loading, and that no parcel of nitrate of soda within the true meaning of the contract arrived as alleged.

Issue joined.

At the trial, before Hayes, J., at the Liverpool summer assizes, 1869, it appeared by evidence and mutual admissions, that the defendants are merchants at Liverpool, under the firm of Myers, Son, & Co., and are also partners in the firm of Myers, Bland, & Co., of Valparaiso.

On the 15th of July, 1868, Myers, Bland, & Co., purchased 600 tons of nitrate of soda from Cross & Co., pursuant to orders from the defendants, and on the 16th of July they chartered the barque Precursor to bring it to England. On the 13th of August an earthquake occurred, and the inundation caused by it destroyed the greater part of the 600 tons of nitrate of soda then lying at Iquique, the port of loading. Some dispute arose as to whether Cross & Co., the sellers, were bound to supply other soda under their contract, and on the 1st of September it was decided by arbitration (pursuant to the terms of the

contract), that they were not so bound; on this decision being given, on the 2nd of September, Myers, Bland, & Co. cancelled the charter of the Precursor by agreement with the captain.

In the meantime, on the receipt of advice from Myers, Bland, & Co., of the purchase of the soda and the charter of the Precursor , the defendants, being ignorant of the destruction of the soda and the cancellation of the charter, directed their brokers to sell the nitrate of soda to arrive; and the brokers, on the 8th of September, sold to the plaintiff, a merchant at Bristol, through other brokers, in the ordinary course, by the following note, which was the contract declared upon and set out in terms in the declaration:-- "Liverpool, September 8, 1868. Messrs. William Smith & Co. We have this day sold to you on account of Messrs. Myers, Son, & Co. about 600 tons (say, six hundred) more or less, being the entire parcel of nitrate of soda expected to arrive at port of call per Precursor , at 12s. 9d. per cwt. from the quay *431 .... Should any circumstance or accident prevent the shipment of the nitrate, or should the vessel be lost, this contract to be void. Buyers to have the option of sending the vessel into any safe port in the United Kingdom." The defendants wrote to Myers, Bland, & Co., saying they had sold to the plaintiff the nitrate "to arrive," but not stating the terms of the contract; and Myers, Bland, & Co., on the receipt of the defendants' letter, being doubtful how far the defendants might still be bound to fulfil their contact with the plaintiff bought, on the 29th of October, other 600 tons of nitrate of soda from Messrs. Cross & Co. at a higher price, and beyond the limit given by the defendants; and, on the 30th of October, they obtained from Cross & Co. a transfer of the charter of the same barque, the Precursor , which Cross & Co. had entered into after the cancellation of the charter by Myers, Bland, & Co., on the 2nd of September; and the soda was shipped about the 23rd of December under this second charter consigned to the defendants. On the 30th of October Myers, Bland, & Co., wrote to the defendants advising them of the intended shipment, and expressing a hope that it might either enable the defendants to fulfil their contract with the plaintiff if still compelled to do so, or if not so compelled, to effect a sale at a profit.

On the 2nd of September Myers, Bland, & Co., had written to the defendants announcing the destruction of the soda and the cancellation of the charter; and the defendants, on the receipt of this letter, on the 15th of October, wrote to the plaintiff's brokers announcing the destruction of the soda, and that the contract with the plaintiff would therefore be void. The plaintiff's brokers replied, on the 21st of October, that they did not consider themselves in any way concerned with any nitrate of soda that might have been destroyed by the earthquake, as it had nothing to do with their contract, a fulfilment of which they should expect. The defendants, however, being advised that under the circumstances they were not bound to deliver any cargo under their contract with the plaintiff; on advice of the shipment of the second cargo, sold it in January, 1869, to other parties "to arrive."

The Precursor arrived off Queenstown on the 8th of May with the soda, and the plaintiff demanded a delivery of the cargo, but *432 the defendants refused to deliver it; on which this action was brought.

A verdict was taken for the plaintiff for 960l., being the difference between the contract price, 12s. 9d., and the market price 14s. 6d., at the time of the arrival of the Precursor ; leave being reserved to move to enter a verdict for the defendants, or a non-suit; the Court to be at liberty to draw inferences of fact.

A rule was obtained accordingly, on the ground that the cargo which arrived was not the cargo agreed to be sold.

June 9. R. G. Williams shewed cause. The plaintiff, the buyer, knew nothing about the purchase of any specific nitrate of soda. The contract was, therefore, not for any specific soda, but only for a cargo of 600 tons to arrive by the Precursor . Nitrate answering that description arrived consigned to the defendants, and they were therefore bound to deliver it.

THE COURT then called upon

Milward, Q.C., Mellish, Q.C. , and Baylis , in support of the rule. Conceding that the contract was not for a specific cargo, but simply for a cargo to arrive by the Precursor , yet it is confined to a specific voyage or adventure then in contemplation: that was put an end to by the destruction of the nitrate of soda owing to the earthquake. The clause in the contract as to accidents puts this beyond doubt, even if the contract would not have been put an end to without this clause. At the time the contract was entered into there was nothing to which the contract could apply, and there was, in fact, no contract at all: Haste v. Couturier [FN1] .

FN1 9 Ex. 102; 22 L. J. (Ex.) 299; 5 H. L. C. 673; 25 L. J. (Ex.) 253 .

June 15. Quain, Q.C. , and R. G. Williams , were heard in continuation to shew cause. A contract like the present is contingent on the concurrence of three events; first, that the ship should arrive; secondly, that there should be goods on board answering the description; and, thirdly, that the goods are subject to the control of the vendors. All three concurred in the present case; and there is nothing in the contract to take it out of the general rule. The clause as to accidents is no more than is implied in *433 every such contract, and is merely nugatory: Johnson v. Macdonald [FN2] . The contention on the other side amounts to saying that the contract was for the specific parcel of nitrate which the defendants' agents had bought for them; but the plaintiff had no information of this purchase, and it is clear that the contract is the usual purchase "to arrive." It is a fallacy, moreover, to say this was not the voyage intended; the ship sailed the same season, and it arrived within the usual time. In Couturier v. Hastie [FN3] , the reasons given for the judgment by the Court of Exchequer Chamber, which were assented to by the House of Lords [FN4] , were that it was a contract for the sale of a specific cargo, which it was supposed was capable at the time of being transferred, but which turned out to have been already transferred, and therefore that the contract did not attach. Here it is conceded that the contract was not the sale of specific goods. Lovatt v. Hamilton [FN5] is the converse of this case: there the palm oil had been bonâ fide transhipped from the named ship to another by which it arrived, and it was held the vendee was not entitled to it.

FN2 9 M. & W. 600 .

FN3 9 Ex. 102; 22 L. J. (Ex.) 299 .

FN4 5 H. L. C. 673 ; 25 L. J. (Ex.) 253 .

FN5 5 M. & W. 639 .

COCKBURN, C.J.

This is an action brought for the non-delivery of a cargo of nitrate of soda under a contract, by which the defendants "sold" to the plaintiff "600 tons, being the entire parcel of nitrate of soda expected to arrive at port of call per Precursor ." A cargo arrived which answered the terms of the contract, and of which the defendants, the vendors in the contract, were the owners, and they refused to deliver it. The cargo, however, in question, for the non-delivery of which this action is brought, was not in existence at the date of the contract; and the contract--at all events, so far as the vendors were concerned--was a contract with respect to a cargo which, at the time of the contract, was not in existence. The defendants had become possessed of a quantity of nitrate of soda, which was intended to be shipped to England by the ship Precursor , and it was with reference to that quantity and cargo that the defendants entered into this contract. Before the contract was made, this nitrate of soda had perished by an earthquake; *434 and consequently, at the time when the contract was entered into, there was no cargo in existence upon which it could operate and take effect. But, in such a contract, though the cargo be not in existence at the time of the contract, yet if it is purchased by the vendor afterwards with a view to being shipped on board the vessel named in the contract, and that cargo is brought to England, it may well be that the contract is binding upon the vendor, and he would be liable in an action if he did not fulfil his contract by delivering the cargo; and I quite agree with the counsel for the plaintiff, that in such a case a man cannot get out of his bargain by doing something in fraud of the contract. But although such a contract as this may apply to a cargo incerti corporis, yet, it seems to me, it involves more than the mere corpus; it has reference not only to the article to be sold, or what may be called the corpus, or subject-matter, of the contract--which may be uncertain, and may be either acquired before or after--but also to the voyage; and this, as it appears to me, is of a certain and specific character, and it is upon this voyage only that the contract can operate and take effect. The corpus may be uncertain, but the navigatio is certain.

In the present case, the intended cargo had perished; but it happens that more nitrate of soda is afterwards to be had, and the defendants' correspondents purchase it, but not with any intention that the nitrate of soda so subsequently purchased should come home in the Precursor at all. It is a mere accident that it came home in the Precursor . If there had been another vessel in which it could have been brought to this country, the cargo would not have arrived by the Precursor , but it so happened that there was not another vessel available for the purpose. After the earthquake the defendants' original charter had been cancelled, and the Precursor had been chartered to other persons; and it was only because those other persons were induced to give up their charterparty that the Precursor became the vessel by which the after-acquired nitrate of soda was brought home. Therefore it is clear that the voyage by which the second cargo was brought to this country was an entirely different voyage from that originally intended, it being a pure accident that the cargo came by the Precursor at all. In a contract of this kind, granted the cargo is *435 incerti corporis, yet it is to arrive by a specified vessel,

and there is contemplated a particular voyage; and although I go along with Mr. Quain in thinking that anything done in fraud of the contract might possibly leave the parties open to an action of some kind, still I think that this is involved in a contract like the present,--and is an essential part of the contract,--that the voyage which both parties had in their minds, and with reference to which they were making the contract, is a particular voyage, and when from some cause or other the voyage is abandoned or given up, nothing being done in fraud of the contract, the contract will not extend to a cargo of the like description which comes by the specified vessel, but on a voyage different from that contemplated by the parties. Such is the case here. The rule to enter a nonsuit must, therefore, be absolute.

MELLOR, J.

I am of the same opinion. We are not embarrassed with any disputed facts. The state of circumstances really existing, and which were supposed to be existing at the time the contract in question was made, are admitted; and upon those admitted facts it appears to me that the cargo which did actually arrive was not a cargo contemplated by the contract. The contract is with respect to a cargo expected to arrive by the Precursor , and it appears that at that time there was a cargo expected to arrive by that ship, and therefore the voyage then contemplated was the voyage on which the contract was intended to operate; or, at all events, it was intended to operate upon nitrate of soda then at the port of lading, and about to be shipped; but by the accident of the earthquake it had become impossible at that time to ship any nitrate of soda, and the voyage in which it was intended to carry the soda from the port of lading to the port of discharge was abandoned, the charter being cancelled, and the whole matter appears to have been at an end. But the defendants' correspondents having made a fresh purchase subsequently of a quantity of nitrate of soda, by a pure accident (for that appears to be the result of the facts), that cargo came home consigned to the defendants in the same vessel; and although not on the same voyage, yet it is contended that the contract is to operate on that cargo and that voyage. But I think this cargo was not a cargo with respect to which the contract was *436 made, and was not a cargo contemplated by the parties to the contract, and was not a cargo expected to arrive.

LUSH, J.

I am of the same opinion. I agree with the counsel for the plaintiff that this was not a contract for any specific parcel of nitrate of soda. If nitrate of soda--whether it was the particular lot which the vendors had in their minds when they made the contract, or any other--had been shipped by the vendors on board that vessel for that voyage, and it had arrived, they would have been bound to deliver it to the plaintiff under this contract. But though it was not a specific contract as to the goods, I think it was specific as regards the voyage. I mean, that although it was not a contract as to a particular cargo, yet there was a particular voyage which the parties then had in contemplation. It cannot be supposed that it was the intention of either the vendors or the vendee that the vendors should be bound to deliver, or the vendee bound to accept, any cargo of nitrate of soda which should come by that ship from that port at any time after the making of the contract. That cannot have been the meaning of the parties, and the

contract must, therefore, be limited to a particular adventure which the parties had in contemplation at the time the contract was made. A reference to the dates shews that at that time there was nothing upon which the contract could operate. The defendants, through their house in Valparaiso, had become possessed of this nitrate of soda in the month of July; they had chartered this particular vessel to bring it to England; the nitrate of soda had been destroyed by an earthquake on the 13th of August, and thereupon the Valparaiso house abandoned the adventure, and procured the charter to be cancelled, and there was an end of the transaction. In ignorance of this the defendants in England made the contract in question with the plaintiff on the 8th of September, after the cargo had been destroyed, and after the charter had been cancelled, and the adventure ended altogether. At that time, therefore, there was nothing upon which the contract could operate at all. Subsequently the vessel was chartered by another firm for another purpose; and the defendants' correspondents in Valparaiso, in October, bought another quantity of nitrate of soda, and, in order to send it to England, they procured *437 from the charterers of this particular ship a transfer of the charter to them, and they shipped this fresh nitrate of soda on the defendants' account by mere accident in the same ship. This was, therefore, a different adventure from the one on which the contract with the plaintiff was intended to operate. Although it happened that goods of the same description came consigned to the defendants in the same ship, yet they were not goods which the parties were bargaining for, or which the plaintiff had a right to, or which, if the market had gone down instead of upwards, the defendants would have had a right to insist upon the plaintiff accepting. The rule will, therefore, be made absolute.

Representation

Attorneys for plaintiff: Jones, Blaxland, & Son , for Abbot & Leonard , Bristol.Attorneys for defendants: Walker & Sons , for Ellis & Field , Liverpool.

Rule absolute.

(c) Incorporated Council of Law Reporting For England & Wales (1869-70) L.R. 5 Q.B. 429

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