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[1923] 2 K.B. 261 Page 161923 WL 18206 (CA), (1923) 14 Ll. L. Rep. 519, [1924] All E.R. Rep. 245(Cite as: [1923] 2 K.B. 261)are sufficiently informed of the relevantcircumstances to pronounce. It*296 would benecessary to consider what the actual existingcontracts were, as constituted by letters andmodified, if at all, by subsequent correspondenceand course of business. It would be furthernecessary to consider the circumstances underwhich the arrangement of July, 1913, was made,and the conduct of the parties under it. Thequestion, though raised in the pleadings andmentioned to the learned judge, was not consideredby him, as his construction of the contract made itunnecessary. Some, but very few, of the relevantletters were read before us, the discussion beinglimited on behalf of the plaintiff for the reasonhereinafter given. Under the circumstances, Ishould come to the conclusion that this mattershould be ordered to be retried, even if the twofollowing considerations were not, as I think theyare, conclusive.FN35 [1918] A. C. 1.FN36 L. R. 2 Ex. 135.FN37 L. R. 2 Ex. 135.FN38 [1918] A. C. 10.FN39 [1918] A. C. 18.The judgment in this case provides for adeclaration that the agreement of July, 1913, is alegally binding agreement, and that the ordersmentioned in para. 18 of the statement of claimconstitute legally binding contracts against thedefendants, Crompton & Bros., Ld., and thenprovides that all other issues remaining to be triedshould stand over for trial by Bailhache J. or otherjudge taking the Commercial List. This latterprovision gave effect to the agreement of theparties expressed at the trial after the judgment wasgiven. If the learned judge's judgment is reversed asto the declaration of the validity of the agreementof July, 1913, the point as to rescission is an issueremaining to be tried. It never has been tried by thelearned judge and, in my opinion, should be triedby him, or some other judge taking the CommercialList, according to the terms of the judgment, andshould not be tried by the Court of Appeal.On the hearing of the appeal we stopped Mr.Wright, counsel for the plaintiff on this point, andintimated that we should send the action back to thelearned judge for hearing on the question ofrescission. Sir John Simon, in reply, adducedreasons why we should decide this point in hisclients' favour, but he did not, as far as I am aware,alter our decision, and Mr. Wright was given noopportunity to discuss*297 the matter further. Ican see no justification under the circumstances fordeciding the point in this Court, and I agree withthe judgment of Bankes L.J. in this respect.The question of the orders given in 1919 requiresseparate consideration. I myself am at a loss tounderstand how the provisions of the arrangementof 1913, whether binding or not, affect the matter.The general relation of the parties was that theplaintiffs were to be the sole vendors of thedefendants' goods in the United States of America.Agreements constituting one party sole sellingagent in a defined area of the other party's goodsare, of course, common. Their special provisionsvary; often the agent enters into a correlativeobligation that he will not sell within his area anyother maker's goods of similar description.Sometimes the manufacturer is under no legalobligation to sell any or any particular amount ofgoods to the selling agent; sometimes the agentsucceeds in putting him under such an obligation.In this case the defendants by the honourableunderstanding entered into the vague engagementcontained in the document which had as a basis theaverage turnover for the last three years before theagreement. But whatever the terms of theagreement or understanding, it contemplated, asnearly all such agreements do, that the actualbusiness done under it should be done by particularcontracts of purchase and sale upon the terms of thegeneral agreement so far as applicable. The actualbusiness was done in this case, as in countlessothers, by orders for specific goods given by the"agent" and accepted by the manufacturer ormerchant. To see whether the orders given wereaccepted, the terms of the alleged acceptance haveto be regarded. In this case I find that after acorrespondence as to the possible requirements ofthe plaintiffs for the whole of the year, theplaintiffs, on January 24, 1919, write: "We have notyet determined the full quantity of paper that wewill require from you and Brittains, but realizingthat you have no special orders from us, we aresending you orders enclosed which will cover partof our wants for the year 1919." Enclosed wereorders all addressed to Messrs. Cromptons: "Pleaseenter our order for*298 the following goods andship .... to us at ...." The blanks were all filled up byvarious directions, "When convenient," "As soon aspossible," February 1, March 1, April 1, up toDecember 1, 1919, and the destination was eitherNew York or Toronto. The price and terms are leftblank, and I agree with the learned judge that theseCopr. © West 2004 No Claim to Orig. Govt. Works
[1923] 2 K.B. 261 Page 171923 WL 18206 (CA), (1923) 14 Ll. L. Rep. 519, [1924] All E.R. Rep. 245(Cite as: [1923] 2 K.B. 261)are sufficiently defined by the course of businessbetween the parties. No question arises before us asto the provisions of s. 4 of the Sale of Goods Act,as it was expressly waived by counsel for thedefendants. The order proceeds: "Kindlyacknowledge and state when you will ship." Thelast words obviously mean "Advise us when thetime comes of any proposed shipment." The answeris on February 12, 1919: "We .... thank you for the24 orders for 286 cases of Messrs. Brittains' papersand 8 orders for 64 cases of our paper, to all ofwhich we will give our best attention." Pausingthere, this is the common formula of acceptance inthe business world which has been treated asacceptance in countless cases since merchants firstwrote to one another. It would be understood as anacceptance passing between two merchants wherethere was no obligation at all on the part of thevendor to accept. Why it should bear a differentmeaning in a case where there is an honourableunderstanding by the merchant to accept up tosome vague limit, I am unable to understand. Theletter continues, "and Messrs. Brittains write uswith regard to the orders for their papers that theyare endeavouring to let you have deliveries thisyear up to at least the full 100 per cent. for thestandard year ending February 28, 1918, but that atthe moment conditions are particularly uncertain."This seems to me to relate to the business likely tobe done over the whole year, and particularly to theplaintiffs' statement in the letter of January 24,1919, under reply that they had not yet determinedthe full quantity of paper that they would require,and that they would send on further orders later. Iread the whole letter as saying "We definitelyaccept these orders, and as to further orders forBrittains' paper we expect to be able to executethem up to the 1918 quantity, but this is notcertain." I cannot think that any business*299 manreceiving the letter of February 12 wouldunderstand that the writers were making theiracceptance conditional on Brittains choosing tosupply the goods. If Messrs. Cromptons meant toconvey that after using the previous formula, theyshould have used much more definite language.The remaining orders are order 4661, an order forgoods "as soon as possible," sent on February 7 andaccepted on February 25: "We thank you for yourorder .... and we will endeavour to get this throughduring the next three or four weeks," and sixfurther orders for Brittains' paper sent on March 11,three "at once," and three for July 1 accepted onMarch 29, 1919: "We thank you for the six ordersfor Messrs. Brittains' paper which we have passedon to them, and the same will have their bestattention." It may be noticed that some of theorders so sent, and, as I think, so accepted, were infact executed. The dispute is as to the large balancethat remained unexecuted. In my view this is a veryplain case of acceptance of a written order, and Ientirely agree with the judgment of Bailhache J. onthis part of the claim. I should vary the order ofBailhache J. by declaring that the agreement ofJuly, 1913, is not a legally binding agreement, butotherwise I should leave the order as it is, allowingthe question of rescission to be tried under theorder as one of the "other issues remaining to betried," and I think that there should be no costs ofthe appeal, but as the other members of the Courthave come to a different conclusion, the order willbe as proposed by them.RepresentationSolicitors for appellants: Rawle, Johnstone & Co.,for Addleshaw, Sons & Latham, Manchester.Solicitors for respondents: Collins & Crosse.Appeal Allowed. (W. H. G.)NOTE.The draft agreement of January 1, 1913,mentioned above:-Agreement made and entered into this 1st day ofJanuary, 1913, by and between Brittains Limited ofCheddleton, Staffordshire, England party of thefirst part James R. Crompton & Brothers Limitedof Bury, Lancashire,*300 England party of thesecond part and <strong>Rose</strong> & Frank Company of NewYork, United States of America party of the thirdpart.1. The parties of the first and second parts dohereby constitute the party of the third part theirsale and exclusive agent, except as hereinafterotherwise provided, for the sale in the United Statesof America and the Dominion of Canada of allpapers for carbonizing purposes manufactured bythe parties of the first and second parts or either ofthem during the term of this agreement of thequalities hitherto supplied by them or either ofthem directly or indirectly to the party of the thirdpart upon the terms and conditions hereinafterspecified.2. The parties of the first and second parts agree todeliver to the party of the third part in the City ofNew York or elsewhere in the United States ofAmerica or in the Dominion of Canada as may bedesignated by the party of the third part suchquantities of paper for carbonizing purposes as mayCopr. © West 2004 No Claim to Orig. Govt. Works
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