,
Lord Dunedin,
Lord Atkinson,
Lord Shaw, and
Lord Buckmaster.)
55 SLR 179
Oakbank Oil Company, Limited
v.
Love & Stewart, Limited.
(In the Court of Session, June 29, 1917, 54 S.L.R. 519.)
Subject_Contract — Sale of Goods — Conditions — Red Ink Note at Head of Seller's Notepaper Importing Condition into Contract of Sale.
Facts:
A firm of timber merchants had printed in red ink at the head of their notepaper—“All offers over a period are subject to stoppages through strikes, lock-outs, &c., and the right to cancel is reserved in the event of any of the countries from which our supplies are drawn becoming engaged in war.” In reply to a specification of the requirements of a shale oil company for a year they tendered and adjusted the contract by correspondence on this notepaper. The red ink note was quite clear and distinct, but was not referred to.
Held (
sus. judgment of the First Division) that it was a condition of the contract.
Per the Lord Chancellor—“It appears to me that the cases with regard to tickets on railways, which are merely vouchers for payment of a fare, have no application, and it is impossible to read the contract here apart from the red ink note.”
Headnote:
This case is reported
ante ut supra.
The pursuers, the Oakbank Oil Company, Limited, appealed to the House of Lords.
At the conclusion of the argument on behalf of the appellants—
Judgment:
Lord Chancellor—We have not thought it necessary to call upon learned counsel for the respondents, as the case has been fully argued on the part of the appellants, and every argument that could be presented is fully present to your Lordships' minds.
The question is a very short one, and it turns substantially upon the document which is printed in the appendix headed “Letter by defenders to pursuers,” dated 29th July 1914. At the top of the letter is printed in red ink this—“All offers over a period are subject to stoppages through strikes, lock-outs, &c., and the right to cancel is reserved in the event of any of
Page: 180↓
the countries from which our supplies are drawn becoming engaged in war.” Then the letter proceeds—“Dear Sirs, We hereby offer to undertake to supply all your requirements in pit props in accordance with your Schedule Class No. 12, from No. 41 to 61 inclusive, for 12 months from 1st July 1914 to 30th June 1915, at the annexed prices, and hope to be favoured with your acceptance.” That was accepted by a letter of the same date signed by the managing director of the pursuers—“I beg to inform you that your offer for the various articles specified, as per enclosed schedule, has been accepted.” Your Lordships have been referred to a facsimile of the letter from which it appears that the head-note is in red ink and is printed in a reasonably conspicuous position upon the form of the letter. The question is whether that red ink note is to be regarded as forming part of the contract or not. It seems to me clear that it must be so regarded. It is a letter, no doubt, but the parties were in the habit of writing letters upon business, and for convenience they appear to have had this head-note relating to the case of strikes and the case of war. The case of strikes is unfortunately so common that everyone would expect to find a provision made for what was to happen in case an occurrence of that kind took place. The case of war is also provided for by this note. It is said that the pursuers did not nor did any of the directors or officials read this clause, that their own attention was not directed to it, and that the attention of none of the higher officers of the company was called to it. That, to my mind, is utterly immaterial. The question is whether the red ink note was put in such a position in such type that it must be regarded reasonably as forming part of the terms which were offered by those who wrote the letter. It seems to me quite clear that this red ink note did form part of these terms. Many cases have been put. The case might be suggested of a postscript which had not been added at the end of the letter but was written in at the top of the page on which the letter begins with “Dear Sirs,” so that there you would have—“P.S. It will of course be remembered that this is subject to the strike clause in the form with which you are familiar,” or something of that kind. But here, for convenience, they had this printed clause in red ink, and it seems to me that it is quite impossible to divorce the letter, which is said to begin with the words “Dear Sirs” and end with the words “Yours truly,” from the clause which is printed in such a way as to call attention to it and which purports to qualify the terms of the letter. It appears to me that the cases with regard to tickets on railways, which are merely vouchers for payment of a fare, have no application, and it is impossible to read the contract here apart from the red ink note. If that red ink note forms part of the contract, then the decision of the majority of the Inner House was right. They reversed the decision of the Lord Ordinary, and in my opinion they were right.
The appeal therefore fails.
Lord Dunedin—I concur. The judgment of Lord Mackenzie is entirely satisfactory to my mind, and I have really nothing to add to what he said.
Lord Atkinson—I concur.
Lord Shaw—I am of the same opinion. Had I desired to write upon this case a separate judgment I fear that I should have made but an imperfect paraphrase of the judgment of Lord Mackenzie, with every word of whose opinion I agree.
Lord Buckmaster—I agree, and I have nothing to add.
Their Lordships dismissed the appeal with expenses.
Counsel:
Counsel for the Pursuers (Appellants)—
Moncrieff, K.C.—
C. H. Brown. Agents—
Moncrieff,
Warren,
Paterson, & Company,
Glasgow—
Drummond & Reid, W.S.,
Edinburgh—
Grahames & Company, Westminster.
Counsel for the Defenders (Respondents)—Lord Advocate and
Dean of Faculty (Clyde, K.C.)—
A. M. Mackay. Agents—
Borland,
King,
Shaw, & Company,
Glasgow—
Dove,
Lockhart, &
Smart, S.S.C.,
Edinburgh—
Ince,
Colt,
Ince, &
Roscoe, London.
