Abbildungen der Seite
PDF
EPUB

of the timber so delivered by the plaintiff as goods sold and delivered. The defendants by their defence alleged that the plaintiff adopted their contract with Bell, Harrison & Co. for the supply of timber, and made the deliveries the subject of the action under it, and alternatively that the deliveries made by the plaintiff were made in pursuance of the contract between Bell, Harrison & Co. and the defendants, and that the plaintiff had no right of action against the defendants except under that contract, and that it was subject to the defendants' right of set-off and counter-claim. The defendants claimed that they were entitled to set-off and counter-claim against the plaintiff £1,017 175. 3d. as the

any case, nor had he been referred to any, which was an authority as to what the receiver's position was in respect of contracts entered into before he became receiver and manager, which was the present case. There was a contract by Bell, Harrison & Co., Lim., to deliver to the defendants a large quantity of colliery timber during the twelve months ending June 30 1905, and Bell, Harrison & Co. fell into arrears with their deliveries. He was satisfied that an arrangement had been made in June 1905 for an extension of time for delivery, and that the quantities still undelivered should be delivered during the twelve months up to June 30 1906. If the plaintiff had been the trustee of an undischarged bankrupt instead of receiver and manager

difference between the contract price and the market price of a company, he would, under section 55, subsection 4, of

of the quantities of timber not delivered under their contract with Bell, Harrison & Co. In the course of the case it was admitted that the price of timber had risen so as to make the damages for non-delivery under the contract exceed the amount of the plaintiff's claim.

Mr. T. E. Scrutton, K.C., and Mr. F. D. Mackinnon appeared for the plaintiff, and contended that the plaintiff was only liable for his own acts and that there was no evidence that the contract had been adopted by him; that the deliveries must be taken to have been under a fresh contract, and that he did not make them as agent on behalf of a company who could not control him in any way.

Mr. J. E. Bankes, K.C., and Mr. D. C. Leck appeared for the defendants, and argued that the plaintiff either adopted the contract and made it his own so as to become personally liable under it, or that he allowed Bell, Harrison & Co. to make deliveries under the contract, and that consequently the defendants would be entitled to set-off a sufficient sum as damages for breach of the contract against the price of the timber just as if Bell, Harrison & Co. were the actual plaintiffs.

JUDGMENT.

Mr. Justice Channell said that he had no doubt as to what the judgment ought to be, but he was not so sure as to the proper reasons to be given for it. In the present case a receiver and manager of the business of Bell, Harrison & Co., Lim., was appointed by the order of the Court, so that the appointment was adverse to the company. It also might be said to arise out of the assignment by the directors of the assets of the company to the debenture-holders as security for their money, under what was known as a floating security, but the company had authority to deal with the assets in the ordinary way of trading. The present plaintiff was appointed receiver and manager, and he thought it was perfectly clear since the case of Burt, Boulton & Hayward v. Bull (1895, 1 Q.B. 276), that a person who had got into that position was, in respect of contracts he thereafter entered into for the purpose of carrying on the business, to be regarded as a principal, and to be personally liable. But he (the Judge) did not know of

2795-10

the Bankruptcy Act, 1883, after notice to him, have had to elect to disclaim the contract or be held to have accepted it, but there was no such provision in the case of a company. It was suggested that if he delivered any timber under the contract he thereby undertook to be personally responsible for the whole contract. The learned Judge saw no authority for that proposition, and if it had to be drawn as an inference of fact, he should decline to draw it. What the plaintiff did was to deliver timber and also to purport to deliver it in pursuance of the existing contract to the extent of £350 or thereabouts. On the one hand it was contended that he was entitled to recover as for goods sold and delivered by him, that was on a new promise to pay for goods delivered by him which was independent of the contract that previously existed, but that was not what the parties intended, because it was agreed that the timber was delivered at the contract price which was at the time of delivery considerably under the current market price. It seemed to him that what the plaintiff did was to carry out the obligations of Bell, Harrison & Co., but if he did that he must do it either as agent for Bell, Harrison & Co., or as assignee of their rights. If the plaintiff came in as assignee it was well settled that he could only recover subject to the rights of the other party to set-off any claim they might have against his assignor arising out of the same matter. That was unless there was a special contract, which there was not in the present case. The learned Judge did not think the plaintiff made himself personally liable on the contract, but he also thought he could not recover on his claim except subject to the rights of the defendants to set-off their claim arising out of the contract against his, because he could only recover as assignee. He was not sure that the plaintiff could recover at all, inasmuch as he only came in to perform the contract of another, but even if he was entitled to sue, it was only subject to the equities of the defendants, and as it was admitted that the defendants' set-off far exceeded the amount of the plaintiff's claim, there must be judgment for the defendants with costs on the claim, but the plaintiff was to have judgment upon and costs of the defendants' counter-claim as apart from set-off. (23 Times Law Reports, 138.)

[merged small][ocr errors][ocr errors]
[graphic]
« ZurückWeiter »