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Held, that the plaintiff was out// entitled to wages for the
first eight months for which he had served, as he had himself
put an end to the contract at the end of that time, for
although, at the expiration of that period, he had continued
to work for the defendant, yet no implied contract of service

b 2



CONTRACT.



arose, for the defendant had no option to refuse the services
rendered by the plaintiffs as they were performed without
his knowledge.



An Offer must be intended to create Legal Relations.

MONTREAL GAS CO. v. VASEY. [1900]
(69 L. J. P. C. 134 ; (1900) A. C. 595 ; 83 L. T. 233.)

On December loth, 1886, the company entered into a contract
with Vasey for the sale to him of ammoniacal liquor produced
by them in their manufacture of gas, by the terms of which the
company agreed to deliver to Vasey during a period of five
years from May 1, 1887, all the ammoniacal liquor they should
manufacture at their works. On December 20, 1886, five days
after the execution of the contract, the president of the company
wrote to Vasey the following letter : —

" Referring to the contract made with you on the 15th inst.,
for the sale of ammoniacal liquor, I may say that, if we are
satisfied with you as a customer, we would favourably consider
an application from you, at the expiration of the term, for a
renewal of the same for another period."

At the expiration of the contract of December 15, the company
refused Vasey's application for a renewal. Vasey thereupon
brought his action against the company, seeking to recover
damages for alleged breaches of the contract of December 15,
1886, and also for the refusal to renew the original contract,
which, as Vasey alleged, they were bound to do according to
the terms of the letter of December 20.

Held, that the letter did not constitute a contract or
agreement susceptible of legal enforcement.



OFFER ANJ) ACCEPTANCE.



An Offer must be sufficiently definite, i.e., it must not be vague

or illusory.

DA VIES v. DA VIES. [1887]
(56 L. J. Ob. 962 ; 36 Ob. D. 359 ; 58 L. T. 209 ; 36 W. E. 86.)

Previously to the 15th of July, 1884, the plaintiff, Edward
Albert Davies, and the defendant, James Davies, carried on
business at Wolverhampton and in London in partnership with
their father, Edward Davies, as galvanizers and galvanized iron
manufacturers. Disputes between the partners, which were the
subject of an action in the Chancery Division, were compromised
by agreement dated the 15th of July, 1884, on the terms of the
defendant, James Davies, retiring from the firm, he receiving a
large sum in payment for his share of capital and goodwill, and
entering into a covenant in the following terms : " The said
James Davies to retire wholly and absolutely from the partner-
ship, and, so far as the hue allows, from the trade or business
thereof in all its branches, and not to trade, act, or deal in any
way so as to either directly or indirectly affect the said Edward
Davies and Edward Albert Davies." That provision was after-
wards embodied in a deed dated the 11th of October, 1884,
which was executed by the parties. The father, Edward Davies,
died in the year 1885, and his interest in the old firm vested
in the plaintiff, Edward Albert Davies, who assigned the busi-
ness to the plaintiff company, Davies Bros. & Co.

By the present action the plaintiff, Edward Albert Davies,
and the company claimed an injunction to restrain the defendant
from directly or indirectly carrying on the business of a gal-
vanizer, or galvanized iron manufacturer or merchant, in
Middlesex or otherwise, so as to violate the covenant.

Held, that that branch of the covenant, that A. would,
11 so far as the law alloivs^ retire from the business of the
partnership in all its branches, was too vague to be enforced.

Note. — It was also held that that branch of the covenant, that



6 CONTRACT.

James Davies would not trade, &c. so as to affect Edward Davies
and Edward Albert Davies, was a covenant personally with the
latter, and that the benefit of it could not be assigned to the
plaintiff company.



Offeror must give reasonable notice of Conditions. Conditions
printed on a Passenger's Ticket are not binding until he has
received reasonable notice of them.

EICHAEDSON AND OTHEES v. EOWNTEEE. [1894]

(63 L. J. Q. B. 283 ; (1894) A. C. 217 ; 6 E. 95 ; 70 L. T. 817 ;
58 J. P. 493; 7 Asp. M. C. 482— H. L. (E.).)

Miss Rowntree took a ticket for a voyage from Philadelphia
to Liverpool by the S.S. Lord Goi/gh, and went on board.
Owing to the negligence of the defendants in not properly
fencing the gangway she fell into the sea whilst the steamer was
still alongside the quay. On the plaintiff bringing an action
against the defendants, they sought to limit their liability to
10U dollars on the ground that one of the conditions printed on
the ticket stated that the company would not be liable for
injury to person, or loss to or injury to luggage, to an amount
exceeding 100 dollars. Over this condition, or a portion of it ;
however, was stamped in red ink the words, " American Line,
Lord Goitgh, October 2, 1889. Peter Wright & Sons, Gr. a.,
Philadelphia," which rendered the conditions difficult to read.

Held, that the plaintiff was entitled to the amount of
damages found by the jury , as, although the plaintiff knew
that I here was some printing on the ticket, she did not know
they were conditions relating to the terms of the contract of
carriage, and the defendants had not done what ivas reason-
ably sufficient to give the plaintiff notice of the conditions.



OFFER AND ACCEPTANCE.



An Offer may be Revoked before Acceptance even if it is to
Remain Open for a Fixed Time which, has not Expired at
the Time of Revocation.

EOUTLEDGE v. GEANT. [1828]

(6 L. J. (0. S.) C. P. 166 ; 4 Bing. 653 ; 1 M. & P. 717 ; 3 Oar. & P.
267 ; 2<J R. E. 672.)

At the trial, before the Lord Chief Justice, at Guildhall, it
appeared that the plaintiff held a house in St. James' Street,
under a lease from a Mr. Hermon (who was seised in fee), for a
term of which about twelve years were unexpired at Lady Day,
1825; that the defendant, being desirous of taking a lease of
the premises for an extended term, after several previous con-
versations with the plaintiff on the subject, on the 18th March,
1825, sent him the following written proposal : —

" Mr. Grant's Proposal.
" To pay a premium of 2,750/. upon receiving a lease for
twenty-one years, with tbe option (upon giving six months'
previous notice to the landlord or his agent) of having the time
extended to thirty-one years, paying the same yearly rent as
before for such extended term of ten years beyond twenty-one
years. Rent, 25l)/., Mr. Grant to pay for the fixtures at a
valuation. Possession to be given on or before the 25th July
next, to which time all taxes and outgoings are to be dis-
charged by Mr. Routledge, and a definite answer to be given
within six weeks from the 18tb March, 1825."

The plaintiff applied to Mr. Hermon, his landlord, for an
extension of his term, in order to enable him to grant the lease
to the defendant as before proposed, and wrote the following
note to the defendant on the 6th April : —

" Mr. Routledge begs to say that he accepts Mr. Grant's
offer for his house, No. 59, St. James' Street, and that he will
give Mr. Grant possession on the 1st of August next.



8 CONTRACT.

" Mr. Routledge will esteem it a particular favour if Mr.
Grant will not, for the present, name the subject to anyone."

Before the expiration of the six weeks mentioned in the
defendant's offer he withdrew it, and the plaintiff then wrote to
him again, stating that he was willing to give him possession
according to the terms of his proposal.

Held, that as the plaintiff had not accepted the defen-
dant'' 's offer in terms before the latter had retracted it, the
agreement was not completed and the defendant was at
liberty to renounce it.

If a party make an offer and fixes a period within which
it is to be accepted or rejected by the person to ivliom it is
made, though the latter may at any time within the
stipulated 'period accept the offer, still the former may also
at any time before it is accepted, retract it ; for to be valid
the contract must be mutual: both or neither of the parties
must be bound by it.

Note. — But, semble, so long as eonmiunication of the revocation
of the offer is received hefure acceptance, it need not come from the
offeror or his agent. It may come, for instance, through a third
party, so long as it be credible. The foregoing, it is submitted, is
the effect of Dickinson v. Dodds (1876), 45 L. J. Ch. 777 ; 2 Ch. D.
463 ; 34 L. T. 607 ; 24 W. E. 594.



The Revocation of an Offer, in order to be operative, must be
communicated to the Offeree.

BYENE v. VAN TIENHOVEN. [1880]
(49 L. J. C. E. 316 ; 5 C. P. D. 344 ; 42 L. T. 371 ; -14 J. P. 667.)

The defendants carried on business at Cardiff and the plaintiffs
at New York, and it took ten or eleven days for a letter posted
at either place to reach the other. The alleged contract con-



OFFER AND ACCEPTANCE. 9

sisted of a letter written by the defendants to the plaintiffs on
the 1st October, 1879, and received by them on the 11th, and
accepted by telegram and letter sent to the defendants on the
11th and 15th October respectively. The letter and telegram
were as follows : —

" From Leon Van Tienhoven & Co., Cardiff, to Messrs. Joseph
Byrne & Co., New York, posted October, 1st, 1879.

" We are duly in receipt of your favour of the 18th ulto., and
are glad to hear you admit our prices for tin-plates to be

moderate As you say that Hensol is a favourite brand

of yours, we will .... maintain our firm offer of 1,000 boxes
of this brand, 14 by 20 at 17s. <6d. per box f.o.b. here, with one
per cent, for our commission, terms four months' bankers'
acceptance on London or Liverpool against shipping documents,
but subject to your cable on or before the 15th inst. here. . . ."

Cablegram from Messrs. Joseph Byrne & Co., New York, to
Messrs. Leon Van Tienhoven & Co., Cardiff, sent October 11th,
1879 :—

" Accept thousand Hensol."

On the 8th of October the defendants wrote, and sent by post
to the plaintiffs, a letter withdrawing their offer of the 1st.
The following is the material part of such letter : —

" Confirming our respects of the 1st inst., we hasten to inform
you that, there having been a regular panic in the tin-plate
market during the last few days, which has caused prices to run
up about twenty-five per cent., we are reluctantly compelled to
withdraw any offer we have made to our constituents, and must
therefore also consider our offer to you for 1,000 boxes of
' Hensols' at 17s. <6d. to be cancelled from this date."

This letter of the 8th of October did not reach the plaintiffs
until the 20th of October, i.e., some days after the plaintiffs
had cabled their acceptance, although it was posted some days
before. The plaintiffs now sued the defendants for damages for
non-delivery of the tin-plates.

Held j that though an offer of sale may be withdrawn



Id contract.

before it has been accepted, the withdrawal must be commu-
nicated to the party to whom ihe offer has been made before
such acceptance. In particular, where an offer of sale is

mode and accepted by letters sent through the post, the
withdrawal takes effect only when the letter containing it
has been received, and not from the moment it is posted,
unless the part// to ivhom the offer is made has given the
other authority to notify his withdrawal by letter so posted.



An Offer must be distinguished from a mere Statement of Fact.

HARVEY AND ANOTHER v. EACEY. [1893]

(62 L. J. P. C. 127 ; (1893) A. C. 552 ; 1 R. 428 ; 69 L. T. 504 ;
42 W. R. 129.)

The appellants were solicitors carrying on business in partner-
ship at Kingston. In the beginning of October, 1891, negotia-
tions took place between the respondent, L. M. Facey, and the
Mayor and Council of Kingston for the sale of property known
as Bumper Hall Pen, and Facey offered to sell it to them for the
sum of 900/. The offer was discussed b}^ the Council at then-
meetin°' on the 6th of October, 1891, and the consideration of
its acceptance deferred. On the 7th of October, 1891, L. M.
Facey was travelling in the train from Kingston to Porus, and
the appellants caused a telegram to be sent after him from
Kingston, addressed to him " On the train for Porus," in the
following words : kt Will you sell us Bumper Hall Pen ? Tele-
graph lowest cash price-— answer paid." On the same day
L. M. Facey replied by telegram to the appellants in the
following words : " Lowest price for Bumper Hall Pen 900/."
On the same day the appellants replied to the last-mentioned
telegram by a telegram addressed to L. M. Facey " On train at
Porus," in the words following : "We agree to buy Bumper
Hall Pen for the sum of nine hundred pounds asked by you.
Please send us your title deed in order that we may get early



OFFER AND ACCEPTANCE. 1 1

possession." The above telegrams were duly received by the
appellants and by L. M. Facey respectively, and the question
was whether they constituted a contract between the respondent
and the appellants, binding the former to sell Bumper Hall Pen
to the latter.

Held, that they did not constitute a binding contract, the
Court being of opinion that the mere statement of the lowest
price at which the vendor would sell contained no implied
contract to sell at that price to the persons making the inquiry.



An Offer must be distinguished from a mere Statement of
Intention.

IN EE FICKUS— FAKINA v. FICKUS. [1900]
(69 L. J. Ch. 161 ; (1900) 1 Ch. 331 ; 81 L. T. 749 ; 48 W. E. 250.)

Mr. and Mrs. Farina brought an action against the executors
of Mr. William Fickus, claiming for a declaration that a letter
written by the testator shortly before the marriage of the
plaintiffs constituted a binding contract for valuable considera-
tion to give or leave to Mrs. Farina, who was one of the
testator's daughters, iu the events which had happened, one
equal one-eighth share of his net property. In September,
1873, Mr. Farina, a German subject resident at Cologne, made
a proposal of marriage to Miss Eliza Fickus, which she
accepted subject to the approval and consent of her father, the
ttstator. Mr. Farina wrote to the testator a letter, which was
not forthcoming at the trial, and the testator replied on
September 21st, 1873. This letter had been kept by Mr. Farina,
and was the one upon which the action was based, and which,
so far as is material, was as follows : —

" You are, of course, aware that, with my large family, Eliza
will have little fortune. She will have a share of what I have
after the death of her mother, whom I wish to leave in
comfortable independence if I should leave her a widow."



12 CONTRACT.

The marriage afterwards took place. The testator died in
1898, having acquired a considerable fortune since 1874. By
his will, after numerous pecuniary legacies, including a legacy
of 2,000/. to Mrs. Farina and a legacy of 1,000/. to her son,
the testator bequeathed the residue of his estate equally between
six of his other seven children. The net value of the testator's
estate was valued by his executors at 102,000/. The plaintiffs
by their action claimed to be entitled by virtue of the letter of
September 21st to a sum equal to one-eighth of the net value
of the testator's estate, after giving credit for the 2,000/.
legacy.

Held ^ inter alia, that the letter did not amount to a
contract by the testator to leave his daughter a share of his
property, but was merely a representation that lie intended
to give her something at his death.

Note. — It was further held that, even assuming that the letter
did constitute a contract, the words "a share" were not equivalent
to "an equal share," and that therefore the contract was satisfied
by the legacy to the daughter of the 2,000/.



An Invitation to Treat or to Make an Offer is not an Offer.

SPENCER AND OTHERS v. HARDING AND OTHERS. [1870]
(39 L. J. C. P. 332 ; L. R. 5 C. P. 561 ; 23 L. T. 237 ; 19 W. R. 48.)

The defendants by their agents, Messrs. Honey, Humphreys
& Co., issued to the plaintiffs and other persons engaged in the
wholesale trade a circular as follows : —

•• We are instructed to offer to the wholesale trade for sale by
tender the stock-in-trade of Messrs. George Eilbeck & Co., of
I, Milk Street, amounting as per stock book to 2,503/. 13a. Id.,
and which will hp sold at a discount in one lot. Payment to
be made in cash. The stock may be viewed on the premises,



OFFER AND ACCEPTANCE. 13

No. 1, Milk Street, up to Thursday, 20th inst., on which day at
12 o'clock at noon precisely the tenders will be received and
opened at our offices. Should you tender and not attend the
sale, please address to us sealed and endorsed ' Tender for
Eilbeck's Stock.' Stock books may be had at our offices on
Tuesday morning."

The plaintiffs sent in a tender for the goods in accordance
with the circular. The tender of the plaintiffs was the highest
received. The plaintiffs' claim proceeded : — " The plaintiffs
were ready and willing to pay for the said goods according to
the true intent and meaning of the said circular, and all
conditions were performed and all things were done and all
times elapsed necessary to entitle the plaintiffs to have their
said tender accepted by the defendants, and to be declared
the purchasers of the said goods according to the true intent
and meaning of the said circular. Yet the defendants refused
to accept the said tender of the plaintiffs, and refused to sell the
said goods to the plaintiffs, and refused to open the said tender,
or proceed with the sale of the said goods in accordance with
their said offer and undertaking in that behalf. Whereby the
plaintiffs have been deprived of the profits which would have
accrued to them from the acceptance of their said tender, and
the delivery to them of the said goods in accordance with the
said offer and undertaking of the defendants."

Held, that the circular was only an invitation for offers,
and that there was no implied undertaking by the defendants
to accept any tender at all.

Note. — Mention may here be made of Rooke v. Bauson, 64 L. J.
Ch. 301 ; [1895] 1 Ch. 408 ; 72 L. T. 248 ; 43 W. E. 313 ; 59 J. P.
231 ; 13 R. 269, where it was held that the mere announcement by
the trustees of a scholarship that an examination for the same will
be held does not amount to an offer to award the scholarship to the
candidate who obtains the highest number of marks, and that in
such case an action by such candidate against the trustees must
take the form, not of an action to enforce a contract, but of an
action to enforce the trusts of the charity. The Court purported to



14 CONTRACT.

follow Spencer v. Hardin//, but the case seems equally, and iu<l< ed
rather more, within the principle of Montreal Gas Co. v. I'asey or
In re Fichus. (See supra.)



An Offer made to the World at Large is deemed to be communicated
to each Person whom it reaches.

CAELILL v. CAKBOLIC SMOKE BALL CO. [1893]

(62 L. J. Q. B. 257 ; (1893) 1 Q. B. 256 ; 4 R. 176 ; 67 L. T. 837 ;
41 W. R. 210; 57 J. P. 325.)

The defendants in November, 1891, caused to be published
in several newspapers an advertisement to the following effect :

" 100/. reward, will be paid, by the Carbolic Smoke Ball
Company to any person who contracts the increasing epidemic
influenza, colds or any disease caused by taking cold, after
having used, the ball three times daily for two weeks according
to the printed, directions supplied with each ball. 1,000/. is
deposited with the Alliance Bank, Regent Street, showing our
sincerity in the matter."

The plaintiff, relying upon the advertisement, bought from a
chemist one of the smoke balls, and contracted influenza after
using the ball for two weeks in accordance with the printed
directions. She then claimed the 100/., and on the defendants
refusing to pay, brought this action to recover the amount.

//'•A/, fli'if the advertisement, coupled with the performance
of the condition by the plaintiffs constituted a contract on
the part of the defendants to pay the plaintiff 100/.

Note. — It was also held that the offer was not too vague to be
enforced, that it was not a mere puff, that it was not of a wagering'
character, and that it was not a policy of insurance.



OFFER AND ACCEPTANCE. 15

Once accepted, an Offer cannot be revoked.

G. N. EAILWAY CO. v. W1THAM. [1873]
(43 L. J. C. P. 11 ; L. R. 9 C. P. 16 ; 29 L. T. 471 ; 22 W. R. 48.)

The plaintiffs advertised for tenders for the supply of iron,
and the defendant offered in writing 1 to sell to the plaintiffs iron
upon certain terms. The material portions of the defendant's
tender were as follows : —

" I, the undersigned, hereby undertake to supply the Great
Northern Railway Company for twelve mouths with such
quantities of each or any of the several articles named in the
attached specification as the company's storekeeper may order
from time to time, at the price set opposite each article
respectively, and agree to abide by the conditions stated on the
other side."

The defendant's tender was accepted in the following letter,
addressed to the defendant by the assistant secretary to the
plaintiffs' company : —

" I am instructed to inform you that my directors have
accepted your tender to supply to this company, at Doncaster
Station, any quantity they may order during the period ending
31st October, 1872, of the descriptions of iron mentioned on the
enclosed list, at the prices specified therein. The terms of the
contract must be strictly adhered to."

The defendant, in reply, wrote as follows : —

" I beg to own receipt of your favour accepting my tender
for bars, for which I am obliged. Your specification shall
receive my best attention."

The plaintiffs ordered iron from the defendant, which the
defendant failed to deliver, and this action was brought to
recover damages for breach of contract. The defendant pleaded
that the alleged contract did not bind the plaintiff to order any
iron from the defendant, that there was, therefore, no mutuality,



16 CONTRACT.

and the contract, being unilateral, was void as against the
defendant.

Held, that the contract was not void for tvant of
mutuality^ it was founded upon a good consideration, and
the plaintiffs were entitled to judgment.

The defendant' 's promise being to supply such iron as the
plaintiff should from time to time order, when an order
was given by the plaintiffs there was then a consideration
for the defendant's promise and a contract formed.



In a Sale by Auction without reserve the Auctioneer contracts
with the highest bona fide Bidder that the Goods shall be
sold to him.

Auctioneer may not accept Bid from Owner of Goods.

If Auctioneer without authority undertakes to sell without
Reserve, he is liable on his Undertaking.

WAELOW v. HAEEISON. [1858]

(29 L. J. Q. B. 14 ; 1 El. & El. 295 ; 6 Jur. (N. S.) 66 ;
8 W. E. 95.)

The defendant, who was an auctioneer, advertised the sale of
a mare called " Janet Pride " to be made without reserve. The
plaintiff attended the sale, and bid 60 guineas for her, and
thereupon Mr. Henderson, the owner of the mare, bid 61 guineas.
The plaintiff, having been informed that Henderson was the
owner, declined to bid further, and thereupon the defendant
knocked down the mare to Henderson for 61 guineas. The
same day the plaintiff tendered 63/. in sovereigns as the price
of the mare and demanded her. The defendant refused the
tender.

Held, the plaintiff ?vas entitled to judgment. Where a
sale is announced to be without reserve, the auctioneer



OFFER AND ACCEPTANCE. 17

pledges himself that the sale shall he without reserve, or, in
other words, contracts that it shall be so ; and this contract
is made with the highest bona fide bidder, and in case of a
breach of it the latter has a right of action against the
auctioneer.

If an auctioneer, not having authority from the owner to
sell property ivithout reserve, undertakes to sell it without
reserve, he is liable on his undertaking.



If the Offeror does not indicate the Method of Acceptance, it
is that prescribed by Usage.

HENTHORN v. FRASER. [1892]
(61 L. J. Ch. 373 ; (1892) 2 Ch. 27 ; 66 L. T. 439 ; 40 W. R. 433.)

The action was brought against the trustees of the Huskisson
Benefit Building Society and the society for the specific per-
formance of a contract to sell to the plaintiff certain house



Online LibraryPhilip Bertie PetridesStudent's cases : illustrative of all branches of the law → online text (page 4 of 29)