Rose & Frank & Co v Crompton & Bros Ltd [1924] UKHL 2

House of Lords
Between
Rose & Frank & CoAppellantCrompton & Bros LtdRespondent
Before
Lord AtkinsonLord SumnerLord BuckmasterLord Phillimore
[1]HIS MAJESTY'S COURT OF APPEAL (ENGLAND). between ROSE & FRANK COMPANY ...Appellants — AND- JAS. R. CROMPTON & BROS. LIMITED and BRITTAINS LIMITED ... Respondents. APPENDIX. WILD, COLLINS & CROSSE, Kennan's House, Crown Court, Cheapside, London, E.C.2, Appellants' Solicitors. RAWLE, JOHNSTONE & CO., 1 Bedford Row, London, W.O.I. Agents for ADDLESHAW, SONS & LATHAM, Manchester, Respondents' Solicitors. Doct. No. Description of Document. Date. Page. 1 Writ, issued 19 Nov. 1919 1 2 Statement of Claim, delivered 15 Dec. 1920 3 3 Particulars, delivered 25 Feb. 1921 14 4 Defence and Counterclaim, delivered 29 July 1921 15 5 Particulars of Bequest referred to in paragraph 20 of the Defence, delivered 29 July 1921 21 6 Particulars of Counterclaim under paragraph 22 of the Defence, delivered 29 July 1921 26 7 Reply to Defence and Counterclaim, delivered 2 Nov. 1921 31 8 Order of Mr. Justice McCardie transferring .Action to the Commercial List, dated 8 Feb. 1922 32 9 Precis of Letters between Solicitors for the parties relative to arrange- ments made between them as to the Trial, dated 8 Mar. 1922 8 Mar. 1922 27 Mar. 1922 31 Mar. 1922 33 33 34 35 10 Transcript of Shorthand Writer's Notes of the Judgment of Mr. Justice Bailhache, delivered 10 Nov. 1922 36 10a Judgment of the Court, dated 10 Nov. 1922 56 11 Notice of Appeal, dated 23 Nov. 1922 58 12 Transcript of Shorthand Writer's Notes of the Judgment of the Court of Appeal, dated Lord Justice Bankes Lord Justice Scrutton Lord Justice Atkin 23 Mar. 1923 … … … … … … 59 59 64 70 13 Order of the Court of Appeal, dated 23 Mar. 1923 80 14 Further Order of the Court of Appeal, dated 23 Mar. 1923 82 DOCUMENTS PUT IN AT THE TRIAL. 15 Correspondence— Letter, Jas. R. Crompton & Bros, Ltd. to Appellants " Appellants to Jas. R. Crompton & Bros. Ltd " Jas. R. Crompton & Bros. Ltd. to Appellants " Appellants to Brittains Ltd " Brittains Ltd. to Jas. R. Crompton & Bros. Ltd " Appellants " Jas. R. Crompton & Bros. Ltd. to Appellants 7 April 1904 11 May 1904 13 Sept. 1904 22 Sept. 1904 23 Sept. 1904 3 Oct. 1904 12 Oct. 1904 84 85 85 86 87 88 89 Correspondence (continued)— Letter, Appellants to Jas. R. Crompton & Bros. Ltd " Jas. R. Crompton & Bros. Ltd. to Appellants " Appellants to Jas. R. Crompton & Bros. Ltd " Jas. R. Crompton & Bros. Ltd. to Appellants " Alfred Frank to Jas. R. Crompton & Bros. Ltd " Jas. R. Crompton & Bros. Ltd. to Alfred Frank " Alfred Frank to .Jas. R. Crompton & Bros. Ltd " Jas. R. Crompton & Bros. Ltd. to Appellants " " " " " " " Alfred Nuttall to Alfred Frank " Appellants to Jas. R. Crompton & Bros. Ltd " Brittains Ltd. " Jas. R. Crompton & Bros. Ltd. to Appellants " Jas. R. Crompton & Bros. Ltd. to Appellants " Appellants to Jas. R Crompton & Bros. Ltd " Jas. R Crompton & Bros. Ltd. to Appellants " Appellants to Jas. R. Crompton & Bros. Ltd " Jas. R Crompton & Bros. Ltd. to Appellants " Alfred Frank to Alfred Nuttall " Alfred Nuttall to Alfred Frank " Appellants to Jas. R. Crompton & Bros. Ltd " Jas. R. Crompton & Bros. Ltd. to Appellants " " " " Appellants to Jas. R. Crompton & Bros. Ltd " Jas. R. Crompton & Bros. Ltd. to Appellants " Appellants to Jas. R. Crompton & Bros. Ltd " Jas. R. Crompton & Bros. Ltd. to Appellants " Appellants to Jas. R. Crompton & Bros. Ltd " Jas. R. Crompton & Bros. Ltd. to Appellants " Ap pellants to Jas. R. Crompton & Bros. Ltd " " " " " " " Jas. R. Crompton & Bros. Ltd. to Appellants " Appellants to Jas. R. Crompton & Bros. Ltd " Jas. R. Crompton & Bros. Ltd. to Appellants " Appellants to Jas. R. Crompton & Bros. Ltd " Jas. R. Crompton & Bros. Ltd. to Appellants " Appellants to Jas. R Crompton & Bros. Ltd " Jas. R. Crompton & Bros. Ltd. to Appellants " Chas. Campbell to Jas. R. Crompton & Bros. Ltd " Jas. R Crompton & Bros. Ltd. to Appellants " Appellants to Jas. R. Crompton & Bros. Ltd " " " " Chas. Campbell " " Jas. R. Crompton & Bros. Ltd. to Appellants " Appellants to Jas. R, Crompton & Bros. Ltd " Jas. R. Crompton & Bros. Ltd. to Appellants " " " 21 Oct. 1904 9 Nov. 1904 23 Nov. 1901 14 Feb. 1905 23 Feb. 1905 25 Feb. 1905 27 Feb. 1905 7 Mar. 1905 5 April 1905 22 June 1905 28 Aug. 1905 22 Nov. 1905 1 Dec. 1905 4 Dec. 1905 17 Jan. 1906 26 Jan. 1906 10 Feb. 1906 30 Mar. 1906 9 April 1906 13 July 1906 27 July 1906 10 Aug. 1906 21 Aug. 1906 10 Sept. 1906 28 Sept. 1906 9 Oct. 1906 19 Oct. 1906 31 Oct. 1906 20 Feb. 1907 20 Mar. 1907 5 April 1907 21 Oct. 1907 2 Dec. 1907 13 Dec. 1907 20 Feb. 1908 4 Mar. 1908 13 Mar. 1908 23 Mar. 1908 28 Aug. 1908 8 Sept. 1908 6 Dec. 1908 24 Dec. 1908 30 Dec. 1908 4 Jan. 1909 11 Jan. 1909 18 Jan. 1909 29 Jan. 1909 6 Feb. 1909 13 Feb. 1909 90 90 91 92 93 94 84 95 96 97 98 98 99 100 101 101 102 103 104 105 106 107 108 109 109 110 111 111 112 114 115 116 117 118 119 120 121 121 122 123 125 125 127 127 129 130 131 133 136 15 Correspondence (continued)— Letter, Jas. R. Crompton & Bros. Ltd. to Appellants " Appellants to Jas. R. Crompton &.Bros. Ltd. " Brittains Ltd. to Appellants " Jas. R. Crompton & Bros. Ltd. to Appellants " " " " " " " " " " Appellants to Brittains Ltd " " Jas. R. Crompton & Bros. Ltd. " Jas. R. Crompton & Bros. Ltd. to Appellants " Appellants to Jas. R. Crompton & Bros. Ltd " " " " Jas. R. Crompton & Bros. Ltd. to Appellants " Appellants to Jas. R. Crompton & Bros. Ltd " " " " Jas. R. Crompton & Bros. Ltd. to Appellants " Appellants to Jas. R. Crompton & Bros. Ltd " " Brittains Ltd " " Jas. R. Crompton & Bros. Ltd " Jas. R. Crompton & Bros. Ltd. to Appellants " Appellants to Brittains Ltd " " Jas. R. Crompton & Bros. Ltd " Brittains Ltd. " " Jas. R. Crompton & Bros. Ltd. to Brittains Ltd " " Appellants " Appellants to Jas. R. Crompton & Bros. Ltd " " Brittains Ltd " Jas. R. Crompton & Bros. Ltd. to Appellants " " " " Brittains Ltd. to Appellants " Appellants to Jas. R. Crompton & Bros. Ltd " " Brittains " Brittains to Appellants " Appellants to Jas. R. Crompton & Bros. Ltd " " " " Jas. R. Crompton & Bros. Ltd. to Appellants " Appellants to Jas. R. Crompton & Bros. Ltd " " " " " Brittains Ltd " " " " Jas. R. Crompton & Bros. Ltd. to Appellants " Appellants to Brittains Ltd " " Jas. R. Crompton & Bros. Ltd " " " " " Brittains " Jas. R. Crompton & Bros. Ltd. to Appellants " Brittains Ltd. to Chas. Campbell " Jas. R. Crompton & Bros. Ltd. to Appellants " Appellants to Brittains Ltd 21 Aug. 1914 1 Sept. 1914 14 Sept. 1914 17 Sept. 1914 23 Oct. 1914 2 Dec. 1914 3 Dec. 1914 18 Dec. 1914 18 Dec. 1914 30 Dec. 1914 8 Jan. 1915 19 Jan. 1915 2 Feb. 1915 2 Mar. 1915 17 Mar. 1915 20 Mar. 1915 2 April 1915 2 April 1915 9 April 1915 15 July 1915 6 Aug. 1915 6 Aug. 1915 25 Oct. 1915 26 Oct. 1915 29 Oct. 1915 12 Nov. 1915 12 Nov. 1915 27 Nov. 1915 10 Dec. 1915 11 Dec. 1915 23 Dec. 1915 30 Dec. 1915 11 Jan. 1916 1 Mar. 1916 10 Mar. 1916 30 Mar. 1916 26 May 1916 23 June 1916 23 June 1916 15 Dec. 1916 J Jan. 1917 19 Jan. 1917 19 Jan. 1917 20 Mar. 1917 11 April 1917 13 April 1917 5 May 1917 2 July 1917 16 Oct. 1917 246 248 249 250 251 252 253 254 254 255 256 257 258 259 261 262 264 266 266 268 270 270 272 274 275 276 277 278 278 280 281 282 284 284 285 286 287 288 288 289 290 290 291 292 294 297 299 300 301 No. 1. Writ, issued 19th November 1919. 1919.—R.—No. 1401. IN THE HIGH COURT OF JUSTICE. King's Bench Division. Between—Rose & Frank Company ... Plaintiffs and J. R. Crompton & Bros. Limited and Brittains Limited Defendants. GEORGE THE FIFTH, by the Grace of God, of the United Kingdom of Great Britain and Ireland, and of the British Dominions beyond the Seas, King, Defender of the Faith To J. R. Crompton & Bros. Limited of Bury in the County of Lanes and Brittains Limited near Leek in the County of Staffs We command you, that within eight days after the service of this Writ on you, inclusive of the day of such service, you do cause an appearance to be entered for you in an action at the suit of Rose & Frank Company And take notice that in default of your so doing, the Plaintiff may proceed therein and judgment may be given in your absence. Witness, Frederick Viscount Birkenhead, Lord High Chancellor of Great Britain, the Nineteenth day of November in the year of Our Lord One thousand nine hundred and nineteen. N.B.—This Writ is to be served within twelve calendar months from the date thereof, or, if renewed, within six calendar months from the date of the last renewal, including the day of such date, and not afterwards. The Defendant may appear hereto by entering appearance either personally or by Solicitor, at the Central Office, Royal Courts of Justice, London. The Plaintiffs claim:— Damages for breach of contract. Damages for non-delivery of goods. This Writ was issued by Wild, Collins & Crosse of and whose address for service is Kennan's House, Crown Court, Cheapside, in the City of London, Solicitors for the said Plaintiffs, who carry on business as Importers and Exporters at 152 West 22nd Street New York in the United States of America, and are a body incorporated under the laws of the United States. This Writ was served by me at on the Defendant on , the day of , 192 . Indorsed the day of ,192 . (Signed) , (Address) No. 2. Statement of Claim, delivered 15th December 1920. 1919.—R.—No. 1401. IN THE HIGH COURT OF JUSTICE. King's Bench Division. Writ issued the 19th day of November 1919. Between—Rose & Frank Company Plaintiffs and J. R. Crompton & Bros. Limited and Brittains Limited Defendants. STATEMENT OF CLAIM. 1.—The Plaintiffs carry on business in New York as dealers in tissues for carbonising papers and prior to 1907 dealt chiefly in tissues for carbonising papers manufactured in countries other than England. The Defendants Brittains Limited are English manufacturers of high-class tissues for carbonising papers and the Defendants Crompton & Bros. Ltd. are English manufacturers of less expensive tissues for carbonising papers. At all material times the Defendants Crompton Bros. Ltd. had the exclusive right to the output and the sale of the products of the Defendants Brittains Limited. 2.—All the tissues hereinafter referred to bought by the Plaintiffs from the Defendants or either of them were to the knowledge of the Defendants and or each of them bought for the purpose of resale to the Plaintiffs' customers. In respect of all the tissues hereinafter referred to the practice of the Plaintiffs as the Defendants well knew was to buy such papers from the Defendants in an unfinished state and to sell such, papers to manufacturers who coated the unfinished tissues and so converted them into carbonising papers. 3.—By an Agreement made in or about December 1907 between At the conclusion of the arguments in this case, none of your Lordships had, I think, any doubt what our judgment ought to be, but as there were several points to be dealt with, your Lordships took time to consider how best to express your decision upon them. We are all still, I believe, of the same mind, and there is no reason for further delay. The appellants, Rose and Frank Company, carry on business in the United States as dealers in carbonising tissue paper which they have been in the habit of buying from England, then treating in some manner and selling in the perfected state.[2]Their relations with the respondents James R. Crompton and Brothers, Limited, began as early as 1905; and there were three arrangements, which for the purposes of this Appeal we may assume to have been binding contracts, under which Rose and Frank Company were to be entitled to have the exclusive or nearly exclusive right of selling Crompton and Brothers' carbonising tissues in America, subject to 12 months' notice—a notice which was never given.[3]In 1913, circumstances led to the relations between the parties bring reconsidered; and it was then for the first time brought to the notice of Rose and Frank Company that the respondents Brittains, Limited, had been interested with Cromptons in supplying the carbonising tissue; and thereupon the three parties entered into the arrangement which had given rise to the present litigation. It is dated the 8th July 1913, and in the earlier part of it appears to l)o a binding agreement under which the English companies agree to confine the sale of call their carbonising tissue in the U.S. and Canada—subject to certain defined exceptions—and Rose and Frank Company agree to confine their purchases of the same stuff exclusively to the two English companies and to do their best to increase their trade. The arrangement was to last for three years subject to six months' notice. The other supplementary provisions need not be stated; but towards the end of the document appears this remarkable clause:
' This arrangement is not entered into, nor is this ' memorandum written, as a formal or legal agreement and ' shall not be subject to legal jurisdiction in the Law '
Courts either of the United States or England, but it ' is only a definite expression and record of the purpose ' and intention of the three parties concerned, to which ' they each honourably pledge themselves with the fullest ' confidence—based on past business with each other— ' that it will be carried through by each of the three parties " with mutual loyalty and friendly co-operation."[4]There is. no explanation upon the record, and no suggestion was made by Counsel at the Bar of any reason for the introduction of this remarkable clause. During the progress of the hearing it occurred to some of your Lordships that it might have been inserted in order to avoid the operation of some American law discouraging monopolies. But this was a mere surmise. For whatever reason it was introduced the clause is there, and it remains for the Courts to give the proper effect to it.[5]The terms of this arrangement whatever may be its force or effect were continued by correspondence for a second three-yearly period and by arrangement in August 1918 till the 31st March 1920.[6]During the early part of 1919 differences arose between the parties. The respondents thought that the appellants were not conducting the business as they should, and that their (the respondents') interests were suffering. Accordingly on the 5th May they demanded by telegram compliance with certain requirements, threatening, if the requirements were not met, to communicate direct with the consumers.[7]On the same day, the appellants telegraphed back that they refused to consent to terminate the agreement and would hold the respondents accountable for any violation of contract and they demanded immediate shipment of the parcels they had ordered; but on the 9th and 10th May, by cable and letter, the respondents definitely refused to allow further deliveries to be made.[8]During the existence of the arrangement the appellants had been giving to the respondents Cromptons, from time to time, orders for certain numbers of cases of tissues to be delivered at various dates. The documents took this form : an order from the appellants to Crompton's :
" Please enter our order for the following " goods and ship."
Then followed either a specific date—usually the first of the month—or, if no specific date, then " as soon as possible," and the port to which they were to be shipped, either New York or sometimes Toronto, and the nature of the articles required. In compliance with these orders the respondents used to ship the goods. A few of the orders sent in this way in the early part of 1919 were complied with, but the others had hot actually been complied with by the time of the quarrel and were not fulfilled afterwards.[9]On the 19th November 1919, the appellants brought their action, treating the arrangement as a binding contract and claiming damages for the breach, alternatively averring that the three earlier agreements were still in force and claiming damages for their breach, and as a third alternative relying on the several specific orders for parcels of goods in the early part of 1919 as having been accepted by the respondents Cromptons and constituting specific contracts and claiming damages for the non-delivery of these goods. As to this part of their claim, they made no case against the respondents Brittains Ltd.[10]The respondents joined in their defence and contended that the arrangement was not a binding contract, that the earlier agreements were not binding contracts or had expired by loss of time. They also offered an alternative plea that if the respondents Cromptons ever made any of the earlier agreements, then " all of such agreements " were determined by mutual consent by virtue of or alternatively " at the date of the signing of the document referred to in " paragraph 8 of the Statement of Claim and/or alternatively the " Plaintiffs by signing the said document and acting thereon are " stopped from relying on any of the said alleged agreements."[11]As to the appellants' claim in respect of the specific orders, they denied that these orders gave rise to any contracts, said that the requirements of section 4 of the Sale of Goods Act had not been complied with, and further that these orders and acceptances, if any, were given as part of a specification under the arrangement of 1913, and that if that arrangement did not constitute any legal contract, neither did these orders with provisional acceptances constitute contracts.[12]They further pleaded misconduct on the part of the appellants justifying them in determining the agreement.[13]By an order made by McCardie, J., the action was' transferred to the commercial list, and it was ordered that the Court should try all questions of liability "except the issue as to whether the "appellants committed certain acts which were alleged by the " respondents to have justified the respondents in determining the " agreements (if any) between the parties;" and all questions as to damages. The order provided that the Court should construe all the agreements.[14]These issues were then tried by Bailhache, J. He decided that the arrangement of 1913 was a binding contract, and further that if the appellants were ultimately held to fail on this ground, they had a good case as to the orders and acceptances. He then dealt with two comparatively small money questions, directing judgment for the plaintiffs for 244 l odd with costs up to the date of the admission of this claim, and for the respondents Cromptons for 2,124 l . odd with costs up to the date of admission; and he gave the appellants the costs of the hearing before him in any event.[15]The present respondents appealed from this order, and the Court of Appeal came unanimously to a different conclusion to that of Bailhache, J., with respect to the arrangement of 1913, and by a majority, Bankes, L.J., Scrutton, L.J., and Atkin, L.J., dissenting, thought that Bailhache, J. was also wrong on the question of orders and acceptances. They declined, however, to determine whether the pre-1913 arrangements were still in existence, and whether if in existence they were enforceable and said that this matter remained to be tried. They gave the respondents costs of the issues on which they were successful and the costs of the appeal. Appeal and cross-appeal have been preferred from this order and are now before your Lordships for decision.[16]With regard to the first and most important point, that of the legal force or want of force of the arrangement of 1913, your Lordships are, I conceive, of one mind with the Court of Appeal. I do not propose to repeat their reasoning, with which I venture to concur, but I wish to add one observation. I was for a time impressed by the suggestion that as complete legal rights had been created by the earlier part of the document in question, any subsequent clause nullifying those rights ought to be regarded as repugnant and ought to be rejected. This is what happens for instance in cases where an instrument inter vivos purports to pass the whole property in something either real or personal, and there follows a provision purporting to forbid the new owner from exercising the ordinary rights of ownership. In such cases this restriction is dis- regarded. But I think the right answer was made by Scrutton, L. J. It is true that when the tribunal has before it for construction an instrument which unquestionably creates a legal interest, and the dispute is only as to the quality and extent of that interest, then later repugnant clauses in the instrument cutting down that interest which the earlier part of it has given are to be rejected, this doctrine does not apply when the question is whether it is intended to create any legal interest at all. Here, I think, the overriding clause in the document is that which provides that it is to be a contract of honour only and unenforceable at law.[17]With regard to the next point, namely, the right of the plaintiffs to recover damages for non-delivery of the goods specified in the particular orders for the year 1919, it should be stated that the defence under the Sale of Goods Act was abandoned at the trial. On this point 1 agree with your Lordships in preferring the judgments of Bailhache, J. and Atkin, L.J. to that of the majority of the Court of Appeal.[18]According to the course of business between the parties which is narrated in the unenforceable agreement, goods were ordered from time to time, shipped, received, and paid for, under an established system; but the agreement being unenforceable, there was no obligation on the American company to order goods or upon the English companies to accept an order. Any actual transaction between the parties, however, gave rise to the ordinary legal rights; for the fact that it was not of obligation to do the transaction did not divest the transaction when done of its ordinary legal significance. This, my Lords, will, I think, be plain if we begin at the latter end of each transaction.[19]Goods were ordered, shipped, and received. Was there no legal liability to pay for them? One stage further back. Goods were ordered, shipped, and invoiced. Was there no legal liability to take delivery? I apprehend that in each of these cases the American company would be bound. If the goods were short- shipped or inferior in quality, or if the nature of them was such as to be deleterious to other cargo on board or illegal for the American company to bring into their country, the American company would have its usual legal remedies against the English companies or one of them. Business usually begins in some mutual understanding without a previous bargain.[20]However, as to this claim for damages for the unfulfilled orders, the respondents have, under the terms of the order of McCardie, J., the defence open to them that the conduct of the appellants was such as to justify them in determining the agreements to deliver.[21]There remains the matter of the cross appeal. This, I think, succeeds.[22]The unenforceable agreement cannot (it is true) be relied upon as cancelling the previous agreements, because it was to have no legal weight. But the parties who entered into the relations implied by the unenforceable agreement must have previously cancelled, as they could do by mutual consent, all the earlier agreements.[23]Upon the documents which were before the Court—which were indeed the only materials before the Court—the proper inference to be drawn, was that the arrangement of 1913 was, though unenforceable, intended to supersede all previous arrangements or agreements whether enforceable or unenforceable.[24]The principle laid down in Morris v. Barron (1918 A.C., page 1) followed in British and Benningtons v. N. W. Cachas Tea Co. (1923 A.C.,-page 48) is the one which, governs the present case.[25]It was a pity, I think, that the Court of Appeal determined, apparently against the view of Scrutton, L.J., to remit this issue for trial instead of deciding it themselves. I think they should have decided it and decided it in favour of the respondents and cross appellants.[26]Upon the whole, I would advise your Lordships to restore the judgment of Bailhache, J., except that part of it which declares " that the agreement of July 1913 mentioned in paragraph 8 of the " Statement of Claim is a legally binding agreement against both " defendants," and which directs that the plaintiffs should have the costs of the hearing before him as against the defendants Brittains, Ltd., and I would advise that the plaintiffs (the present appellants) should have the costs of the appeal to the Court of Appeal as against the respondents and defendants Cromptons. I presume that the respondents and defendants Brittains, Ltd. had no separate costs on that appeal. With regard to the costs of the appeal to your Lordships' House, the appellants have succeeded in what may prove a very substantial part of their case, but on the other hand the result of the issue still to be tried may wipe out their claim. The respondents Brittains, Ltd. have been successful, but I imagine that before your Lordships' House, as in the Court of Appeal, they had no separate costs. I think that the right order would be that neither side should have any costs of the appeal" but that the cross appellants should have the costs of their cross appeal. Any costs of the action not disposed of by these orders should be disposed of by the Judge who tries the remaining issue. The case should be remitted to the High Court of Justice with a declaration that it be disposed of accordingly. sess. 1924 .— [h.l.] ROSE AND FRANK COMPANY v. J. R. CROMPTON AND BROTHERS, LIMITED, AND OTHERS, ET E CONTRA. Lord Buckmaster. MY LORDS, I had prepared an independent opinion in this case, but I have had an opportunity of reading the judgment which will shortly be read by my noble and learned friend Lord Phillimore with which I agree, and I think there is no need for any further independent judgment on my part; and my noble and learned friends Lord Birkenhead and Lord Sumner also desire that I should express their agreement in the judgment about to be read. Lord Atkinson. MY LORDS, I also have had an opportunity of reading the judgment prepared by my noble and learned friend and I concur with it. In the House of Lords. ON APPEAL FROM HIS MAJESTY'S COURT OF APPEAL (ENGLAND). between ROSE AND FRAKK COMPANY - - Appellants AND J. R. CROMPTOST & BROTHERS LIMITED and BRITTAIN'S LIMITED - - Respondents and between J. R. CROMPTON & BROTHERS LIMITED Appellants on the Cross-Appeal AND ROSE AND FRANK COMPANY - - Respondents on the Cross-Appeal. Case FOR THE RESPONDENTS ON THE ORIGINAL APPEAL AND APPELLANTS ON THE CROSS-APPEAL. 1. This is an appeal by the Appellants who were Plaintiffs in the action, from an order of His Majesty's Court of Appeal in England (Lords Justices Bankes, Scrutton, and Atkin) dated the 23rd of March 1923 which reversed in part the judgment of The Honourable Mr. Justice Bailhache dated the 10th of November 1922 on the trial of certain preliminary issues which had been given in favour of the Appellants; certain further issues (which did not affect the Respondents Brittain's Limited) were thereby left for further trial and the Respondents J. R. Crompton and Brothers Limited by their Cross Appeal claim that those further issues could and should have been decided by the Court of Appeal in their favour. 2. The main question in this appeal is whether a document signed by the parties in July and August 3913, which set out certain arrangements between them as to the supply of paper by the Respondents to the Appellants and the agency of the Appellants for the sale of such paper did or did not constitute a legally binding agreement; and the decision of this question turns upon the meaning and legal effect of a clause in the said document which is in the following words:— " This arrangement is not entered into, nor is this Memorandum written, as a formal or Legal Agreement, and shall not be subject to legal jurisdiction in the Law Courts either of the United States or England, but it is only a definite expression and record of the- purpose and intention of the three parties concerned, to which they each honourably pledge themselves, with the fullest con- fidence—based on past business with each other—that it will be carried through by each of the three parties with mutual loyalty and friendly co-operation. This is herein- after referred to as the ' honourable pledge ' clause." 3. The second question in the appeal is whether certain documents which subsequently passed between the Appellants and the Respondents Cromptons, and were in some respects in the form of orders for and acceptances of orders for such paper, constituted binding contracts upon the said Respondents for the supply of such paper or were merely requests for goods under, and the method by which the parties carried out, the honourable pledge set out in the document of August 1913 and were of no higher legal validity than the arrangement set out in that document.[27]The third question in the appeal (and in respect of this the Respondents Cromptons bring their cross appeal) is whether certain correspondence carried on between the Appellants and the Respondents Cromptons prior to the document of August 1913 constituted legally binding contracts between those two parties, and whether, if such contracts were so constituted, those contracts continued to be binding upon those parties after the arrangements made in August 1913 were entered into. The Court of Appeal have declined to decide these points and have left them for trial before a Court of First Instance.[28]The course of the proceedings in the action was as follows:—(a) The Appellants by their Writ of Summons dated the 1.9th of November 1919 sued both of the Respondents for (1) damages for breach of contract and (2) damages for non-delivery of goods. By their Statement of Claim they alleged in the first place (paragraphs 3 to 7) a series of agreements made in and between 1907 and 1911 between the Appellants and the Respondents Cromptons alone, by which those Respondents agreed that the Appellants should have the sole sale (with specified exceptions) in certain areas of certain kinds of papers manufactured and/or sold by the Respondents Cromptons.(b) In the second place they alleged (paragraphs 8 and 9 of the Statement of Claim) an agreement in August 1913 between the Appellants and both the Respondents under which both the Respondents agreed to confine the supply for sale and the sale of their papers in certain areas exclusively to the Appellants (with, certain specified exceptions). This alleged agreement was set out in the document which contained the "honourable pledge" clause set out in paragraph 2 of this Case.(c) (C) In the third place they alleged (paragraphs 12, 13, 14 and 15 of the Statement of Claim) breaches in the autumn of 1918 and in 1919 of the agreement of August 1913, and that they had suffered damage; and alterna- tively (paragraph 16 of the Statement of Claim) that if the 1913 agreement was not valid the earlier agreements with the Respondents Cromptons were still in force in 1919 and that the breaches alleged were breaches by the Respondents Cromptons of those agreements.(d) In the fourth place they alleged (paragraphs 18, 19 and 20 of the Statement of Claim) that in January, February and March 1919 they had given, and the Respon- dents Cromptons had accepted, a series of orders for paper; and that the Respondents Cromptons had, in breach of their agreements so constituted, failed to deliver part of the goods so ordered, whereby the Appellants had suffered damage.(e) There were also two small claims by the Appellants (paragraphs 17 and 21 of the Statement of Claim) and a Counter-claim by the Respondents in respect of which no question now arises.(f) (F) By their Defence the Respondents Cromptons (in substance and so far as is at present material) denied that they had made the alleged pre-1933 agreements and both Respondents denied that the August 1913 arrangement was a legally binding Contract, denied that the pre-1913 agreements (if they were legally binding contracts) con- tinued in force after the August 1913 arrangement, denied that the alleged orders and acceptances constituted legally binding contracts, and pleaded (in paragraph 18 of the Defence) that both the pre-1913 arrangements and the August 1913 arrangement were arrangements made without consideration and intended to be of no legally binding effect. It was also pleaded (paragraph 19 of the Defence) that by virtue of or alternatively at the date, of the signing of, the August 1913 document, the pre-1913 agreements were determined by mutual consent and that the Appellants were stopped from relying upon them.(g) It was further pleaded by the Respondents (para- graph 20 of the Defence) that the Appellants had by their conduct justified the Respondents in summarily determining the agreements (if any) between the parties.(h) Further the Respondents Cromptons as to the alleged pre-1913 agreements relied upon the Statute of Frauds.(i) (I) By an Order The Honourable Mr. Justice McCardie dated the 8th of February 1922 it was ordered that the action be transferred to the Commercial List and that the Court should try all questions of liability except the issue as to whether the Appellants committed certain acts which were alleged by the Respondents to have justified the Respondents in determining the agreements (if any) between the parties; that the Court should construe all the agreements; and that all questions as to damages and as to the matters alleged in paragraph 20 of the Defence (which set out certain alleged terms of the agreements and certain alleged breaches of such terms by the Appellants) should, if they became material, be referred to an Official Referee.(j) (J) At the trial of the issues so directed The Honourable Mr. Justice Bailhache held that the August 1913 arrange- ment was a binding contract and it was accordingly unnecessary for him to give any decision as to any further issues. He expressed the view, however, that the orders and acceptances also constituted legally binding contracts and so declared in his judgment. The Court of Appeal held on the contrary that neither the August 1913 arrange- ment nor the orders and acceptances constituted legally binding contracts and left for consideration on a further hearing by the Judge the questions whether the alleged pre-1913 agreements were contracts legally binding upon the Respondents Cromptons and whether if they were they continued to be binding upon those Respondents after the August 1913 arrangement had been entered into.[29]The Appellants are an American Company carrying on business in New York as dealers in tissue papers which are bought by manufacturers Who by coating them with carbon make carbon papers for typewriters and other purposes. The Respondents carry on business in England as manufacturers of such tissue papers and there is and has at all material times been an arrangement between the two Respondents under which the Respondents Cromptons deal with and sell the whole of the output of such papers of the Respondents Brittains.[30]In 1904 the Appellants were requesting the Respondents Cromptons to give to them the exclusive agency in America for the sale of the papers manufactured or sold by those Respondents ; and they continued to press for this though those Respondents were reluctant to grant it, and the result was a series of vague and informal arrangements contained in letters passing between these two parties.[31]The first of these arrangements was made with respect to a type of paper known as " 7 lbs. ' R and F ' Carbonizing Paper " which was manufactured by the Respondents Cromptons only and not by the Respondents Brittains. It was at the outset a promise by Cromptons " that in the event of your finding this paper suitable for your purpose we will confine the sale of it to you for the United States and Canada for the twelve months ending March 31st 1906. We will do our best also to see that none of this paper goes to the United States or Canada except through you during the term of the present contract." This was contained in a letter of the 7th of March 1905 which purported to confirm an oral arrangement and the period was for more than a year. There was no consideration for Cromptons' undertaking or, if there was consideration, it was not expressed and there was no memorandum sufficient to satisfy the Statute of Frauds.[32]There were, as appears from the correspondence, difficulties about getting the paper made to the satisfaction of the Appellants' customer or customers (see for instance letters of the 4th of December 1905, 26th of January 1906, 27th of July 1906,10th and 21st of August 1906,19th and 31st of October 1906) and for a time the making of the paper was experimental.[33]Finally in a letter of the 21st of October 1907 the Appellants wrote " We think we will be able to work up quite a trade on this R and F substance and of course it is understood, in accordance with the original agreement, that we are to have the sole sale of this paper in this country and Canada " : in a letter of the 2nd of December 1907 they wrote " In our letter of October 21st we wrote you that we took it for granted that the arrangements between us in regard to this grade of paper should continue and that we were to have the sole selling agency for this paper in this country and Canada. You seem to have overlooked this in your reply to our letter and we take it for granted that the arrangements on this grade of paper heretofore existing between us still exist and will continue to exist until a sufficient notice is given by either one of us to the other of determination of the same " ; and to this Cromptons replied on the 13th of December 1907 " We are sorry we omitted to reply to the remark in your letter of October 21st in regard to continuing the sole sale of this paper to you for the United States and Canada and this of course we agree to until reasonable notice is given by either side to terminate the arrangement." There was no consideration for Cromptons' undertaking, or if there was consideration it was not expressed. The Appellants claimed (paragraph 4 of the Statement of Claim) that the reasonable notice referred to was twelve months, and, if that was so, there was no sufficient memorandum to satisfy the Statute of Frauds.[34]In December 1908, Mr. Campbell, a representative of the Appellants, was in England, and, as appears from the corres- pondence, interviewed the Respondents Cromptons and succeeded in persuading them to make an arrangement covering all carbon papers. The arrangement appears in letters of the 24th of December 1908, the 4th, 18th and 29th of January 1909, and the 13th of February 1909.[35]It was to the effect that Cromptons would " confine for the time being their carbon tissue in America to the Appellants; would " so long as this arrangement lasts " open no new accounts in America for carbon tissues; would in giving quotations for such papers in England do their best to ascertain if the paper was or was not required for America and would if they found it was " bear your interest in mind and so far as we can do so decline to quote." It was understood that Cromptons were still to be at liberty to supply direct to two Companies in America, the F. S. Webster Company and the Columbia and Ribbon & Carbon Company for their own use only (i.e., not for re-sale to other manufacturers) but certain points raised by the Appellants as to the limiting of the supplies to the Columbia Company and as to the price to be charged to that Company and to the Webster Company were left unsettled. Beyond a vague assurance (in a letter of 4th January 1909) by the Appellants that they would do their utmost to push Cromptons' goods and discourage those of other manufacturers, there was no consideration for Cromptons' undertaking, and Cromptons wrote (on the 24th December 1908) " We hope the arrangement with you as named herein will enable you to give us increased business and providing we are satisfied with that increase see no reason now why the present arrangement should not continue as between you and ourselves indefinitely," and the Appellants wrote (on the 29th January 1909) " We have every confidence in your good faith in protecting our interests and appreciate the same and assure you that we will reciprocate so far as your interests are concerned." There was no provision as to the length of time for which the arrangement was to last. The Appellants claimed that it was terminable on one year's notice, and if that was so there was no memorandum sufficient to satisfy the Statute of Frauds.[36]The Appellants clearly regarded the arrangement so made as being made on mutual confidence only to be ended at once if that confidence ceased for on the 28th May 1909 they wrote claiming to be informed exactly what shipments were made by Cromptons to the Webster Company and the Columbia Company and saying " if our present arrangement is to continue you must have absolute confidence in us and in our ability to handle the situation. If this is lacking kindly let us known at once so that we can make such arrangements as to us will seem fit and we must have the absolute control of your papers in this Country." And on the 24th June 1909 they wrote " It is absolutely necessary that you leave matters entirely in our hand and let us work according to our last judgment and discretion and you will not be a loser by it in any way. If there is any lack of confidence either in our integrity or our ability to handle the situation we should be very much pleased if you would let us know."[37]The Appellants also regarded themselves as free to insist upon alterations in the arrangement at their own will for on the 15th November 1910 they wrote to Cromptons sending a draft letter which they required them to sign in which there was eliminated the right of Cromptons to sell to the Webster Company, and saying " we must therefore withdraw from the attitude that we maintained with you on November 3rd (when Mr. Frank on their behalf had interviewed Cromptons) and must absolutely insist upon one of the conditions of our agreement that you do not deliver paper directly to Webster," and the draft which accom- panied this letter provided for a grant to the Appellants of the sole right of selling the Respondents Cromptons' papers in the United States till the 31st December 1913 without any exceptions with an obligation upon the Appellants to use not less than £6,000 worth of paper per annum.[38]On the 3rd December 1910 Cromptons declined to cease to sell to Webster, but subject to this expressed willingness to make a three years' contract if the Appellants would bind themselves to buy not less than £6,000 worth of paper per annum. This suggestion was not accepted by the Appellants (letter of the 30th of December 1910).[39]In December 1910 the Respondents Cromptons cease to supply paper direct to the Columbia Company. There was no agreement on the matter between Cromptons and the Appellants but merely a letter from Cromptons to the Columbia Company (letter of the 7th December 1910) asking that Company to pass its order in future through the Appellants and a letter of the same date from Cromptons to the Appellants enclosing a copy of the above letter and saying " as we are not anxious to continue direct business with this firm and understanding you would like to do the business yourselves we have written them as per enclosed copy."[40]Between December 1910 and May 1911 there was a discussion between the Appellants and Cromptons which further indicated how informal and dependent upon the goodwill of both was the existing arrangement between them. It may be summarised as follows : The Appellants acquiesced for the present in Cromptons' claim to sell direct to Webster and to decline to bind themselves to take any specific quantity of paper but wanted the period of the arrangement to be fixed for two or three years (letter of the 30th December 1910) and they said they would do their best as hitherto to sell Cromptons' goods and extend the business (ibid); for which assurance Cromptons thanked them (letter of the 25th of January 1911). They pressed for a letter specifying that the arrangement was to continue till the 31st of December 1913 unless terminated sooner by mutual consent (letters of. the 7th and 10th February 1911) but Cromptons demurred to this unless there was a guarantee to take £6,000 worth of paper per annum (letters of February the 18th and March 3rd, 15th and 24th 1911) and the Appellants (letter of the 28th March 1911) urged that the matter should be left to their good faith saying, inter alia " We realise that it is to our interest to use as large a quantity of your merchandise as we can and to do whatever is in our power to discourage the competition on the part of others and we have acted in accordance with this policy for the last five years and intend to continue same so long as our relations remain as pleasing as they are . . . We beg to repeat however that we are looking out for your interest and will sell as many of your goods as we possibly can giving them the. preference over all others and we will not engage ourselves to take any similar line to yours." They accordingly pressed again for a letter " consenting to our present understanding continuing to December 31st 1913." But Cromptons while assuring them that they did not doubt their good faith continued to press for a guarantee of the quantity to be taken (letter of the 10th April 1911) saying " We believe that you will put all your energy into the sale of our papers and we believe it is to our mutual benefit that you should do this, but on the other hand, of course, there may be buyers who would strongly object to pur- chasing our papers through you and if we have an agreement with you we should of course be debarred from quoting these people direct, and the business in our papers would be practically speaking solely in your hands. We feel, therefore, considering that this would be the case, we should have some sort of a guarantee of a given turnover in return for the sole control of our papers." Finally it was agreed (letters of the 25th April and 4th May 1911) that the matter should be left" as it is under our old arrangement " till further discussion.[41]On the 20th of June 1911 a question arose between the Appellants and Cromptons whether Cromptons were committing a breach of the understanding between them by selling a certain blue paper direct to the Webster Company. The matter was discussed in letters of the 28th June, 8th of July, 1st and 10th of August, 12th and 19th of September and 3rd of October 1911. and in October 1911 the Appellants through their representative, Mr. Campbell, came for the first time into communication with the Respondents Brittains as appears from letters of the 24th and 26th October 1911.[42]This discussion led up to the third and last of the alleged agreements made between the Appellants and Cromptons before 1913. It concerned blue paper already referred to which was a very small part of the business done between the parties. Cromptons at first consented to give the Appellants control of this paper in the United States, i.e., without exception of the Webster Company (letter of the 24-th October 1911) with the proviso that if the business increased so as to interfere materially with the sale of white paper the arrangements would require re-consideration, but the Appellants did not accept that and insisted that they were to have the sole control throughout the world of any blue paper made by Cromptons, terminable only on twelve months' notice (letter of the 26th of October 1911). After further discussion (letters of the 27th and 30th of October and 1st and 2nd of November 1911) Cromptons wrote (letter of the 3rd of November 1911) " We will agree under the peculiar and special circumstances to give you the sole control of this particular kind of blue paper in question," the Appellants replied (letter of the 7th of November 1911) accepting that as satisfactory save that with reference to the expression " this particular kind of blue paper in question " it was to be understood that Cromptons were not to make blue carbonising tissue of any quality for anyone but the appellants and " as the usual agreements are not for less than one year I think it would be best to have it for this period. We of course agree to send you all our business in the grades which you supply so long as the agreement is in force," and Cromptons agreed to that (letter of 9th November 1911).[43]In January 1912 the Appellants again took up an attitude which showed that they regarded themselves as under no con- tractural obligation towards Cromptons and as being free to insist upon alterations in the arrangement at their own will. They wrote on the 9th of January 1912 enclosing 36 orders to be accepted only on the conditions that the discount allowed to them should be increased from 10 per cent, to 25 per cent, and that they should be accorded the sole right to sell all carbonising papers for the United States and Canada dealt in by Cromptons without any exception or reservation whatsoever. They said " our business relations for the most part have been very friendly and it is our desire to continue to do business with and through you," and after referring to changed conditions and the necessity for cheaper papers they said '' we must also repeat and dwell upon the absolute necessity of your confining the sale of carbonising papers in the United States and Canada exclusively to us." On the same day the Appellants wrote to the Respondents Brittains enclosing a copy of the above letter and saying " We have decided to close this business (i.e. the business with Cromptons) in 1912 ; since I have seen you however we have decided not to do this hoping that we could arrange matters satisfactorily with your assistance. Since my return I have gone over the matters discussed by us with Mr. Frank and have decided on the plan as per our letter to Jas. R. Crompton and Bros, of which I enclose a copy. As our stock is very low on your papers we hope that should any difficulties arise with J.R.C. that you will see to it that we suffer no loss of business through controversy." The position taken up by the Appellants thus was that they were entitled to demand peremptorily that the arrangement should be extended to Canada and that the exception of Webster Company should be eliminated, that on failure by Cromptons to comply at once they need order no more goods ; and that they could go behind Cromptons and obtain supplies direct from Brittains. Brittains protested (cable and letter of the 20th January 1912) and the Appellants consented to leave the matter in Brittains' hands for further negotiation (cable of the 22nd January 1912).[44]The matter was further discussed throughout the year 1912, and the first quarter of 1913. The Appellants used language indicating that the continuance of relations with Cromptons was in their (the Appellants) discretion (letter of the 31st of January 1912) Brittains intimated that while the business would continue to be done through Cromptons, Brittains would now be directly associated with them so far as the Appellants were concerned (letter of the 3rd February 1912) saying " We think this will be a satisfaction and an assurance to you," and the Appellants were prepared to continue their relations with Cromptons pending settlement of the questions at issue " at least for the present especially as we see that you will be directly associated with them in their business relations with us " (letters of the 13th of February 1912).[45]An offer made by Cromptons on the 5th of February 1912 in which they insisted on maintaining their right to supply the Webster Company and their own arrangements in Canada was partially but not unequivocally agreed to by the Appellants on the 19th February 1912. and the matter was further discussed in letters of the 4th, 12th and 26th of March 2nd April, 13th and 26th of November, and 5th and 11th of December 1912, and the 10th, 24th and 28th January, 3rd, 8th and 11th of February 1913 without any agreement being arrived at. It was arranged, however, that the Appellants should submit for consideration a memorandum of a proposed agreement.[46]In March 1913, Mr. Campbell, representing the Appellants, came to England bringing a memorandum as appears from letters of the 4th and 12th of March 1913. This memo- randum being the document set out on page 363 of the Appendix and dated the 1st of January 1913. It was however not accepted by the Respondents and in its place a draft memorandum was sent by Cromptons to the Appellants on the 16th of April 1913.[47]This memorandum was discussed in letters of the 2nd of May, 6th of June and 24th of June 1913, and it was signed as finally agreed by Brittains on or about the 10th of July 1913 by Cromptons on or about the 11th of July 1913 (see letter of that date) and by the Appellants on or about the 13th of August 1913 (see letter of that date). It is set out on pages 366 to 369 of the Appendix.[48]The arrangement contained in addition to the " honour- able pledge" clause already set out the following provisions to which the Respondents desired to draw attention as being expressed in language indicative of an intention not to create contractual relations:— (C) " Messrs. J. R. Crompton & Bros. Limited and Messrs. Brittains Limited, whose position is, in their opinion, soundly assured, will, subject to unforeseen circumstances and contingencies, do their best as in the past to respond efficiently and satisfactorily to the calls of Messrs. Rose and Frank Co. for deliveries both in quantity and quality."[49]The arrangement set out in this memorandum differed from the arrangements set out in the letters written before 1913 in the following, among other respects:—(i) The Respondents Brittains were now made a party to the arrangement.(ii) The period of the arrangement was now to be for three years and, in the absence of notice, for further periods of three years.(iii) If the Webster Company offered for sale the paper they bought from Cromptons objection was to be raised by Cromptons.(iv) There was an understanding that the Appellants would so far as possible confine their purchases of all grades of paper reserved to them by the Respondents exclusively to the Respondents.(v) The Appellants undertook that the volume of business in the present grades of paper should not fall in any year below that of the average of the years 1910, 1911 and 1912 without such explanations as should be considered satisfactory by the Respondents.(vi) The Respondents undertook that they would, subject to unforeseen circumstances and contingencies, do their best as in the past to respond efficiently and satis- factorily to the calls of the Appellants for deliveries both in quantity and quality.(vii) Any other special and distinctive grades of paper made at the suggestion of and introduced by the Appellants were to be confined exclusively to the Appellants for the United States and Canada.(viii) The cheaper papers already the subject of discussion were to be covered by the special and exclusive arrangement referred to in (vii) above.(ix) Prices were to be quoted in future for six months only.[50]Thereafter at the beginning of each year the Appellants were in the habit of sending to Cromptons a large number of " orders" which were " calls for deliveries" under the August 1913 arrangement and were stated to be estimates of their require- ments for the year and were sent in order to give "some idea as to the tonnage we will require " ; and Cromptons replied thanking them for the orders and the Appellants were on and after the 11th of January 1916 warned that orders were entered without guarantee as to price or delivery. Instances of this procedure occur in letters of the 30th of December 1913, 20th of January 1914, 9th of February 1914, 2nd, 3rd, 18th and 30th of December 1914, 8th of January 1915, 2nd of March 1915, 23rd and 30th of December 1915, 11th of January 1916,1st, 10th and 30th of March 3rd of January 1917, 20th of March 1917, 13th of April 2nd of July 1917, 16th of October 1917, 10th of December 1917, 21st of March 1918.[51]The arrangement of August 1913 was automatically renewed until the 31st of March 1919 and thereafter by agreement between the parties until the 30th of March 1920, notice of termina- tion to be given before the 30th of September 1919 ; as appears from letters of the 25th, 26th and 29th of October 1915, and the 12th of November 1915, 27th, 28th and 29th of August 1918, 20th and 27th of September 1918, 21st, 22nd and 28th of October 1918, 8th and 22nd of November 1918, 13th of December 1918, 6th, 29th and 31st of January 1919, and 11th of March 1919.[52]With regard to the " Orders " in respect of which the Appellants claim in this action, on the 2nd of December 1918, Brittains, in a letter, copy of which was forwarded to the Appellants, asked Cromptons to ask the Appellants " as they have opportunity, to review their own position so as to be able, say early in the New Year—to give us some indication for our guidance as to their own position and prospective requirements, so that we may be able to make the most helpful arrangements possible." Cromptons conveyed this request to the Appellants on the 3rd December 1918 and on the 9th of December the Appellants Wrote saying " Owing to the press of year and affairs and the uncertainty connected with the present conditions we have not yet firmly concluded as to what quantities on each grade of paper we will be able to place orders for the coming year." On the 6th of January 1919 they wrote saying " We cannot, of course, state definitely what our needs for the coming year will be. For the moment we estimate that we will need from 800 to 1,000 cases of Brittains' papers during the year 1919." On the 11th of January 1919 they sent four orders which were duly executed ; and on the 23rd of January they wrote to Brittains saying " We have not yet made up our seasons orders, awaiting advice from you, as per your letter through Cromptons, in which you state that about the middle of January you would be able to inform us as to your view of the situation and the probability of the quantities that you could furnish for the coming year." On the 24th of January 1919 they wrote to both the Respondents sending a number of orders. To Brittains they wrote:
" We have made no mention of price as we take it for granted that you will adjust these in accordance with conditions which we hope are such that there will be no further advance but probably gradual reductions," and to Cromptons they wrote "
We have not yet determined the full quantity of paper that we will require from you and Brittains, but realising that you have no special orders from us we are sending you orders enclosed which will cover part of our wants for the year 1919." On the 7th of February 1919 they sent a further order ; and on the 12th of February 1919 Cromptons replied as follows :
" We also thank you for the 24 orders for 286 cases of Messrs. Brittains' papers and 8 orders for 64 cases of our paper, to all of which we will give our best attention and Messrs. Brittains write us with regard to the orders for their papers that they are endeavouring to let you have deliveries this year up to at least the full 100 per cent, for the standard year ending 28th of February 1918, but that at the moment conditions are particularly uncertain. Nevertheless they would like us to assure that they would give their most careful attention to your requirements and endeavour to let you have the fullest output they possibly can and they add that time will make the position clearer."
On the 25th of February 1919 Cromptons acknowledged the order sent the 7th of February. On the 11th of March 1919 the Appellants sent a further 6 " orders" and on the 29th of March 1919 Cromptons replied saying " We also thank you for the six orders for Messrs. Brittains' blue paper which we have passed on to them and same will have their best attention."[53]It was in respect of non-delivery of a large part of the paper specified in the above " orders" that the Appellants claimed damages. Copies of the said " orders" are set out on pages 374 to 389 of the Appendix.[54]On the 9th of April 1919 the Respondents cabled to the Appellants to come to England as soon as possible, a question having arisen whether the Appellants had or had not by their conduct in respect of the prices they had charged in America given justification for the summary determination of the arrangement of August 1913. After further communications the Respondents in May 1919 treated the arrangement as at an end by reason of the Appellants' conduct.[55]On the 17th of September 1919 the Respondents gave notice if such was necessary, to terminate the arrangement of August 1933 on the 31st of March 1920.[56]The case was heard on documentary evidence alone by The Honourable Mr. Justice Bailhache on the 9th and 10th of November 1922. The learned Counsel for the Appellants argued that the August 1913 document constituted a legally binding contract; and that alternatively the 1919 orders and acceptances constituted legally binding contracts against the Respondents Cromptons alone ; and having stated that these (with the minor points which do not now arise) were all the points in the case, added later, that there was on the pleadings an alternative claim based on the pre-existing arrangements having continued as if they were not superseded by the August 1913 agreement. This last point, however, was never argued and no further allusion was made to it in the course of the case. The learned Judge in his judgment, which was delivered on the 10th of November 1922, referred to three of the earlier letters written to the Appellants by the Respondents Cromptons and treated them as without question constituting binding contracts (a point which was never admitted on behalf of the Respondents). He then in dealing with the August 1913 document assumed a line to be drawn at the end of the first paragraph of that document and examining that paragraph by itself said that it was quite clear that the parties therein agreed that the three pre-existing contracts were to be extended and strengthened. What followed was, in his view, a setting out of the intended course of business and a bringing into one document of the provisions of the three earlier letters referred to, with slight alterations, but with nothing to show that the pre-existing contracts should cease to be contracts for "if that were so, that would be directly contrary to the very object Messrs. Rose & Frank had in view, which was not to weaken the ties which bound the Defendants to them but to strengthen them." The learned Judge then, coming to the "honourable pledge" clause, stated that it was incomprehensible why the Appellants, having such intention and desire, should have consented to that clause being inserted and how three business firms should have taken the trouble to write out a memorandum of this kind, which was not to be worth the paper it was written on, and led to an impossible position; and having come to the conclusion that the memorandum, without the clause in question, recited contracts which were then binding and did in fact bind the Respondents to continue those contracts for periods of three years, held that that clause, if it meant that the parties were not to be legally bound, was repugnant to the main spirit of the memorandum and must be rejected ; and that it must equally be rejected if it merely excluded the jurisdiction of the Court, though he expressed the view that it had the wider meaning. With regard to the 1919 " Orders,' though it was in the circumstances unnecessary to decide the point, the learned Judge expressed the opinion that whatever view be taken of the 1913 document, these orders constituted binding contracts between the Appellants and the Respondents Cromptons and that there were sufficient memoranda of such contracts to satisfy the Sale of Goods Act. The plea of the Sale of Goods Act was abandoned by the Respondents in the Court of Appeal, and they do not now rely upon it.[57]It was accordingly adjudged and declared that the agreement of July 1913 was a legally binding agreement against both Respondents; that the orders mentioned in paragraph 18 of the Statement of Claim constituted legally binding contracts against the Respondents Cromptons and that all other issues remaining to be tried and the issues as to damages should stand over for trial by The Honourable Mr. Justice Bailhacheor other judge taking the Commercial List (such order to supersede the previous order directing reference to an Official Referee) that the Appellants should have the costs of the hearing in any event, that taxation of costs should stand over, and that a commission should proceed to America to take evidence as to the issues raised in paragraphs 18 and 20 of the Defence.[58]On the 23rd of November 1922 the Respondents gave notice of appeal to the Court of Appeal against the said judgment and order (save in certain respects not now material).[59]The appeal was heard before Lords Justices Bankes, Scrutton and Atkin and the Court held unanimously that the said agreement of 1913 was not a legally binding agreement upon either of the Respondents and (Lord Justice Atkin dissenting) that the said orders did not constitute legally binding contracts against the Respondents Cromptons.[60]Lord Justice Bankes on the assumption (but without deciding the point) that the pre-existing agreements between the Appellants and the Respondents Cromptons were legally binding contracts laid down the principle that it is essential to the creation of a legally binding contract that the parties should intend that it shall have legal consequences and be legally enforceable and held that the " honourable pledge" clause, was not a provision of means for ousting the jurisdiction of the Court, but an expression of an intention that the arrangement should be merely an honour- able pledge and that all legal consequences and remedies should be excluded and applied to and dominated the ,whole agreement; and that the 1919 orders and acceptances were only requisitions made under the 1913 agreement, having no more contractual force than that agreement.[61]Lord Justice Scrutton expressed the opinion that the pre-existing agreements gave rise to legal relations, though " owing to the vagueness of the language used there might be considerable difficulty in ascertaining with exactitude what those legal relations were" agreed that the " honourable pledge" clause meant that the parties should not be under any legal obligation to each other at all; and held that such intention being clearly expressed there was no reason why effect should not be given to it and that there was no ground for the application of the principle of the rejection of repugnant clauses. As to the 1919 orders, the learned Lord Justice held that on the documents there was "no binding acceptance of a legal proposal."[62]Lord Justice Atkin agreed that the 1913 arrangement was not a legally binding agreement; but was of the opinion that the 1919 orders were not affected by the arrangement of 1913 and constituted contracts binding upon the Defendants Cromptons.[63]On the question whether the pre-existing agreements remained in existence and enforceable, in spite of the 191.3 arrange- ment, the Court was unanimously of opinion that the matter should be left to the Court of First Instance as one of the issues remaining to be tried; though Lord Justice Scrutton expressed the view that the question could have been decided on the correspondence and documents without further evidence and said that if it had rested with him he would have decided it in favour of the present Respondents.[64]The Respondents humbly submit that the judgment of the Court of Appeal, save on the question of the pre-191.3 agreements, was right and ought to be affirmed for the following amongst other REASONS.(1) BECAUSE on the true construction of the August 1913 document as a whole and of the " honourable pledge " clause it was the intention of the parties that the said documents should, have no binding legal effect upon their relations.(2) BECAUSE there is no reason in law why such an intention should not be treated as having been effectively carried out.(3) BECAUSE the expressed intention of the parties was not merely to exclude the jurisdiction of the courts, and the rule that an agreement with that object is against pub lie policy is inapplicable.(4) BECAUSE even apart from the " honourable pledge'' clause, the language used in the document is indicative of an intention of the parties that the document should have no binding legal effect upon their relations and there is no repugnancy between that clause and the rest of the document.(5) BECAUSE even if the language of the document, apart from that clause, is language creating a contractual relation, it cannot be taken independently of that clause; and the doctrine as to the rejection of repugnant clauses is inapplicable.(6) BECAUSE the " orders " and acceptances were on their true construction not intended by the parties to create binding legal contracts, but were merely indications by the Appellants, acknowledged by the Respondents Cromptons, of the Appellants' probable requirements for the year under the August 1913 arrangement and were " calls for deliveries " under that arrange- ment and were of no higher contractual force than that arrangement, but were merely part of the method of carrying it out.(7) BECAUSE to attribute a contractual validity to the orders would be to treat the parties as contractually bound for a year to the extent of the orders, and so to nullify to that extent the intention of the parties expressed in the August 3 93 3 document.[65](8) BECAUSE the order of the Court of Appeal on these issues was right.[66]The Respondents Cromptons as Appellants by cross-appeal, humbly submit that the judgment of the Court of Appeal was wrong in that it was not further declared and adjudged that the arrangements made before 1913 by these Respondents with the Appellants were not legally binding contracts or alternatively, if they were legally binding contracts that they had ceased to be binding upon the parties after the arrangement of August 1913 was entered into and/or had so ceased in the year 1919 ; and will humbly pray that it may be declared and adjudged accordingly, or that such other order may be made as to this most Honourable House may seem meet for the following amongst other REASONS,(1) BECAUSE the Appellants before the Court of First Instance (as is stated in paragraph 30 of this case) did not contend that the arrangements made before 1913 continued in force.(2) BECAUSE the whole of the evidence necessary and admissible for the decision of the question is contained in the correspondence and documents.(3) BECAUSE the said arrangements were on their true construction not intended by the parties to be of legally binding effect; and the parties and in particular the Appellants showed by their conduct that they were not intended to be of legally binding effect.(4) BECAUSE there was no consideration for the undertakings given by the Respondents Cromptons.(5) BECAUSE there were no sufficient memoranda of the said alleged agreements to satisfy the Statute of Frauds.(6) BECAUSE the said alleged agreements were so vague as to be unenforceable.(7) BECAUSE, even if the said alleged agreements were legally binding contracts, they were by mutual consent rescinded and abandoned when the parties entered into the arrangement of August 1913.(8) BECAUSE they were abandoned and became obsolete by reason of the conduct of the parties in carrying on business and acting from 1913 onwards under the arrangement of August 1913.(9) BECAUSE the judgment of the Court of Appeal was wrong in so far as the Court refused to deal with these issues and to decide them in favour of these Respondents. JOHN SIMON. T. EASTHAM. JAMES WYLIE. In the House of Lords ON APPEAL From His Majesty's Court of Appeal (England). between ROSE AND FRANK COMPANY - Appellants and J. R. CROMPTON & BROTHERS LIMITED and BRITAINS LIMITED - Respondents AND BETWEEN J. R CROMPTON & BROTHERS LIMITED Appellants on the Cross-Appeal and ROSE AND FRANK COMPANY Respondents on the Cross-Appeal Case for the respondents on the original appeal and appellants on the cross- appeal. RAWLE, JOHNSTONE & CO., 1 Bedford Bow, London, W.C. l, Agents for ADDLESHAW, SONS & LATHAM,[67]Manchester, Solicitors for the Respondents and for . the Appellants on the Cross-Appeal. In the House of Lords ON APPEAL FROM HIS MAJESTY'S COURT OF APPEAL (ENGLAND). between—ROSE & FRANK COMPANY ... appellants AND J. R. CROMPTON & BROTHERS LIMITED and BRITTAINS LIMITED respondents. CASE FOR THE RESPONDENTS ON THE CROSS APPEAL (The Appellants on the Original Appeal). 1.—The Appellants on the Cross Appeal raise in their Case two points :—[68]That the Agreements made before the 1913 Agreement (hereinafter called the pre-1913 Agreements) were not valid and legal contracts ; alternatively that if they were legal contracts they were not enforceable by reason of there being no memorandum sufficient to satisfy the Statute of Frauds.[69]That the Court of Appeal was wrong in treating the issue as to whether the pre-1913 contracts were superseded or cancelled by the 1913 Agreement as being an issue of fact which should not be tried on the Appeal before them but dealt with by a Judge of First Instance and as an issue which fell under the Consent Order dated the 10th November 1922 and should be tried by the Honourable Mr. Justice Bailhache or if he could not take it by another Judge taking the Commercial List. 2.—With regard to the first question raised on the Cross Appeal, viz.: whether the pre-1913 Agreements were valid and legal contracts, it was never disputed by Mr. Disturnal, who appeared on behalf of the Appellants on the Cross Appeal before the trial Judge, that such Agreements were valid and legal contracts.[70]The Honourable Mr. Justice Bailhache in his Judgment found that the pre-1913 Agreements were legal binding contracts, the Judgment of the trial Judge as drawn up by Agreement between the parties, did not recite that part of the learned Judge's Judgment, because it was immaterial in view of the learned Judge's finding as to the 1913 Agreement. 3 . —In the Court of Appeal, Sir John Simon, who appeared for the Appellants on the Cross Appeal, in opening, said that he did not admit that the pre-1913 Agreements constituted binding contracts, but said that this question had yet to be decided ; in his reply, however, he assumed that they were enforceable contracts. 4.—Neither before the trial Judge nor before the Court of Appeal was it contended that the pre-1913 Agreements were not enforceable by reason of there being no memorandum sufficient to satisfy the Statute of Frauds. 5.—The position, therefore, would appear to be that the House of Lords is asked to decide a point which was not in issue before the trial Judge, and which was not the subject of appeal to the Court of Appeal, and which, in the Court of Appeal, was first stated to be a question yet to be decided, and was subsequently treated as being not in issue. 6.—With regard to the second question raised on the Cross- Appeal, viz.: that the Court of Appeal was wrong in treating the issue as to whether the pre-1913 contracts were superseded or cancelled by the 1913 Agreement as being an issue of fact which should not be tried on the appeal before them, but dealt with by a Judge of first instance and as an issue which fell under the Consent Order, dated the 10th November 1922, and should be tried by the Honourable Mr. Justice Bailhache, or if he could not take it by another Judge taking the Commercial List. This point was never taken before the trial Judge, but was taken by Sir John Simon in opening on behalf of the Appellants on the Gross Appeal in the Court of Appeal; when Mr. Wright, Counsel for the Respondents on the Cross Appeal, started arguing this point in the Court of Appeal he was stopped by the Court on the ground that it involved a question of fact, and that the material was not available for the Court of Appeal to arrive at a conclusion on the question of fact. 7.—In their Judgment, Lord Justice Bankes and Lord Justice Atkin decided that the question as to whether the pre-1913 Agreements cancelled or superseded the previous agreements was one of fact and should be tried by the trial Judge. Lord Justice Scrutton, on the other hand, was prepared to give Judgment on this question in favour of the Appellants on the Cross Appeal. 8.—It is submitted that the view that the majority of the Court of Appeal on this point was correct. The effect of the Cross Appeal on this point is to ask the House of Lords to decide an issue of fact, the materials for which decision were. not before the trial Judge, or the Court of Appeal of the House of Lords. The House of Lords would further, if it acceded to the Cross Appeal, be deciding the point which has never been the subject of complete arguments in the Courts below. In order to enable a decision to be arrived at, it would be probably necessary to hear oral evidence, and in any case to examine and peruse a great number of letters which were never put in evidence or considered before the trial Judge or in the Court of Appeal. 9.—It is humbly submitted that the Judgments of Lord Justice Bankes and Lord Justice Atkin were right and ought to be affirmed for the Reasons stated above. R. A. WRIGHT. C. J. CONWAY . In the House of Lords on appeal FROM HIS MAJESTY'S COURT OF APPEAL (ENGLAND). between ROSE & FRANK COMPANY Appellant — AND— J. R. CROMPTON & BROTHERS LIMITED and BRITTAINS LIMITED ... ... R espondent CASE FOR THE RESPONDENTS ON THE CROSS APPEAL (The Appellants on the Original Appeal) WILD, COLLINS & CROSSE, Kennan's House, Crown Court, Cheapside, EC In the House of Lords ON APPEAL FROM HIS MAJESTY'S COURT OF APPEAL (ENGLAND). BETWEEN ROSE & PRANK COMPANY - - - - - Appellants AND, J. R. GROMPTON & BROS. LIMITED and BRITTAINS LIMITED - - - - - - Respondents and between J. R. CBOMPTON & BROS. LIMITED - - - Appellants (On the Cress Appeal) and ROSE & FRANK COMPANY - - - - - Respondents (On the Cross Appeal). Respondents' Additional Documents EAWLE, JOHNSTONE & CO., 1 Bedford Row, W.C.I. Agents for ADDLESHAW, SONS & LATHAM, Manchester, Solicitors for the Respondents and for the Appellants in the Cross Appeal. No document Page correspondence. 29 Letter Appellants to J. R. Crompton & Bros. Ltd., dated 24th June 1909 416 Letter J. R. Crompton & Bros. Ltd. to C. Campbell, dated 12th March 1913 418 Letter J. R. Crompton & Bros. Ltd. to C. Campbell, dated 26th March 1913 419 Letter J. R. Crompton & Bros. Ltd. to Appellants, dated 16th April 1913 420 Letter Appellants to J. R. Crompton & Bros. Ltd., dated 2nd May 1913 420 Letter J. R. Crompton & Bros. Ltd. to Appellants, dated 6th June 1913 423 Letter Appellants to J. R. Crompton & Bros. Ltd., dated 24th June 1913 424 Letter Appellants to J. R. Crompton & Bros. Ltd., dated 22nd July 1913 426 Letter J. R. Crompton & Bros. Ltd. to Appellants, dated 15th March 1916 427 Letter J. R. Crompton & Bros. Ltd. to Appellants, dated 23rd March 1916 428 Letter Appellants to Brittains Limited, dated -24th March 1916 428 Letter Appellants to Brittains Limited, dated 24th March 1916 429 INDEX In the House of Lords. ON APPEAL FROM HIS MAJESTY'S COURT OF APPEAL (ENGLAND). BETWEEN ROSE & FRANK COMPANY - - - - Appellants and J. R. CROMPTON & BROS. LIMITED and BRITTAINS LIMITED - - - - Respondents and between J. R. CROMPTON & BROS. LIMITED - - Appellants (On the Cross Appeal) and ROSE & FRANK COMPANY ... - Respondents (On the Cross Appeal) Respondents' Additional Documents. No. 29. CORRESPONDENCE. S. J. rose & frank. Paper. 201 & 203, Wooster St.,[72]New York. Messrs. Jas. R. Crompton & Bros. June 24th 1909.[73]Bury, England.[74]Gentlemen,[75]We beg to acknowledge the receipt of your letter of June 9th contents of which has been duly noted.[76]We are rather surprised at the tone of your letter, as well as your reply to Ailing & Cory, of which you send us a copy. It sounds as if you lack confidence in our ability to carry on your business. If you do not think that we have your interest in mind as well as our own, and recognize that they are mutual, you are entirely mistaken. You need have no fear that Ailing & Cory will introduce any paper to substitute yours as they have been trying that for the last two years, and have not succeeded.[77]There is but one house in this country that can introduce a new paper to the trade, and that is ourselves.[78]You evidently do not realise the position that we hold with the carbon trade, and the importance of the position that we occupy, as we have a full line to supply these people with, which no other house in this country has.[79]It is absolutely necessary that you leave matters entirely in our hands and let us work according to our best judgment and discretion and you will not be a loser by it in any way. If there is any lack of confidence either in our integrity or our ability to handle the situation we should be very much pleased if you would let us know. We have been shaping things for the last six months, and it now looks to us that with a little patience, you will not be the loser.[80]In our last letter we explained to you that it is not to our advantage nor to yours to encourage a competition with ourselves, which to say the least is not satisfactory in its dealings.[81]We beg herewith to enclose draft for L.579.3.7 in payment of bills as per pay statement attached.[82]We also enclose four orders for which we bespeak your attention, calling your special attention to order 776. You know what trouble we have had in the past by reason of the uneven weights, and we trust that you will succeed in avoiding a re-occurrence. We think we can do a much larger business in this R. & F. substance if you would see your way clear to reduce the price. Also if you could make it so that it would take the Blue and Purple ink, which it does not take now, as there must be some chemical in your mixture which causes these colors to fade.[83]We have no trouble in this respect with your extra heavy. 51/2 lb. paper and we cannot understand why you cannot get the same thing in R. & F. 7 lb.[84]Please hurry forward order 781 with the first Shipment that you make to us.[85]With regards, we are, S. J. Rose & Frank. ALFRED FRANK. james R. crompton & brothers limited.[86]Elton Paper Mills, Near Bury, Ref. A.N. " 1178." Lane. 12th March 1913. Charles Campbell Esq., (of New York) Hotel Meurice, Rue de Rivoli, Paris.[87]Dear Sir,[88]We are in receipt of your favor of the 10th inst. and have also received a letter from your New York House intimating that you are on this side, and that you would call and see us. We understand you have the memorandum of the proposed Agreement for three years. We will arrange for a meeting with Messrs. Brittains if you will let us know definitely what time you can be in Manchester on Tuesday next.[89]We enclose private letter we have received for you, and with kind regards, we remain,[90]Yours truly,[91]For Jas. R. Crompton & Bros. Ltd. ALF. NUTTALL,[92]Director. P.S.—We hope you will be able to get here not later than Tuesday next, as we shall be closing for holidays latter end of the week, and the writer will be away from home. james R . crompton & brothers limited.[93]Elton Paper Mills, Near Bury,[94]Lane. Ref. A.N. " 1178." 26th March 1913.[95]Charles Campbell Esq., Midland Hotel,[96]Manchester.[97]Dear Sir,[98]We confirm telephone conversation with you this morning, & shall be pleased to see you here tomorrow morning. We have arranged with Mr. Haigh to meet us at the Midland Hotel at 3 o'clock tomorrow afternoon.[99]Yours truly,[100]For Jas. R. Crompton & Bros. Ltd. ALF. NUTTALL, Director .[101]Ref. J.R.C. " 1178."[102]The Rose & Frank Co.[103]New York. 16th April 1913.[104]Gentn. re Carbonizing Tissue business in the United States and Canada.[105]We now beg to submit to you for your acceptance, the enclosed revised draft of the proposed three years Agreement & upon hearing from you that you approve the same, we will have prepared two clear copies, one for your signature, & one for ours, unless in order to save time, you like to send one to us signed by yourselves, & one for us to sign which latter we will return to you immediately after we receive it. This we think is all that should be necessary to put the matter upon a satisfactory footing. & we shall be glad when it is finally settled.[106]If you like to include Messrs. Brittains cheap grade tissue in the Agreement, under the same conditions which apply to the best papers, we shall be glad for you to do so. If you cannot see your way to this, we suggest this grade should be left out of the present Agreement, leaving it to apply only to Messrs. Brittains best papers.[107]The writer is sorry, that through illness, he was unable to see Mr. Campbell when over here, but sends his kind regards, & hoping soon to hear from you in reply to this letter, we are,[108]Yours truly,[109]For James R. Crompton & Bros. Ltd. JAMES R. CROMPTON,[110]Director.[111]New York. May 2 1913.[112]Messrs. J. R. Crompton & Bros. Ltd. Bury.[113]Dear Sirs,[114]We have your letter of the 16th ulto. in the matter of the 3 years agreement between Messrs. Brittains Ltd., yourselves and ourselves, and have carefully read over the Memorandum. We would suggest the following changes.[115]The first sentence on the first page, first paragraph to be amended to read as follows: If no notice be given by either party the arrangements shall be regarded as continuing for a further period of three years.[116]This is the form of agreement that we have with all our manu- facturers and seems to be the fairest all around, as we do not think that any contract in which there is so much involved to all of us should continue at the risk of being terminated by six months notice at any time. No doubt if you will think this matter over you will agree with us. The same reasons that moved us all to make a three year contract now remain at the end of the first three years for any new contract.[117]We would suggest an addition to the first paragraph on page 2 regarding the F. S. Webster Co. That the paper sold to the F. S. Webster Co. shall only be in such quantities as they require for manufacturing carbonizing paper in their own plant. And that they are not to be allowed to offer any of the paper for sale uncarbonized.[118]On page 2, paragraph 2 11th line, we would suggest that the average of the last three years, 1910, 1911 and 1912 be inserted.[119]We think that in order to avoid any possible misunderstanding, something should be said in your letter carrying out the idea of paragraph 4 of the agreement submitted by us. This does not bind you in any way to accept the making of new papers for us unless you desire to do so under an understanding as outlined in the paragraph referred to.[120]We are of the opinion that the first paragraph of your letter on page 3 is unnecessary and better omitted. If, however, you desire to insert this we have no objection, as we feel perfectly safe in the light of our past experience, and we think you should reciprocate the same feeling toward us which seems to us to make this paragraph unnecessary and might be construed as a reflection on either one of us. As stated, however you can leave it in or just as you desire.[121]If you will have clear copies prepared and sent to us, adopting the suggestions that we made, we shall be pleased to sign and return them.[122]You will see that we have elected not to include Messrs. Brittains cheap grade of tissue in this agreement, as we cannot recede from tine position that we have taken regarding the confining of the sale of this paper exclusively to us for the United States and Canada without any exception whatever.[123]We also beg to acknowledge the receipt of your letter of April 17th and beg to state that we have not yet had a chance to try out the R & F Paper which you mention. Replying to your enquiries regarding an agreement with you in regard to R & F paper, we of course take it for granted that we have the selling right for this and similar grades in this country and Canada, and are perfectly willing to enter into a three year agreement with you under the same conditions that we have had the paper heretofore which you can incorporate in the letter to be signed by yourselves, Brittains and ourselves noting the different conditions under which the sale of this paper is given to us, to wit, that it is strictly confined to us without any exception whatsoever, both for these grades and anything similar.[124]We have received your invoices for shipments of some of our orders and note that you shipped these via Hull, which is rather embarrassing to us, as in cabling our order No. 2721 we stated to ship by quickest route which we thought you would understand as meaning via Liverpool. In order to avoid any future misunder- standings of this kind please note that when we cable for goods, unless we state otherwise, we would like our orders cabled shipped via Liverpool, quickest steamer.[125]We enclose herewith draft for £1235/8/5 in payment of bills as per pay statement attached.[126]With kindest regards, we are,[127]Very truly yours,[128]Rose & Frank Co. (Sgd) ALFRED FRANK. Copy of this letter sent to Brittains.[129]We would suggest the following changes.[130]The first sentence on the first page, first paragraph to be amended to read as follows: If no notice be given by either party the arrangements shall be regarded as continuing for a further period of three years.[131]This is the form of agreement that we have with all our manu- facturers and seems to be the fairest all around, as we do not think that any contract in which there is so much involved to all of us should continue at the risk of being terminated by six months notice at any time. No doubt if you will think this matter over you will agree with us. The same reasons that moved us all to make a three year contract now remain at the end of the first three years for any new contract.[132]We would suggest an addition to the first paragraph on page 2 regarding the F. S. Webster Co. That the paper sold to the F. S. Webster Co. shall only be in such quantities as they require for manufacturing carbonizing paper in their own plant. And that they are not to be allowed to offer any of the paper for sale uncarbonized.[133]On page 2, paragraph 2 11th line, we would suggest that the average of the last three years, 1910, 1911 and 1912 be inserted.[134]We think that in order to avoid any possible misunderstanding, something should be said in your letter carrying out the idea of paragraph 4 of the agreement submitted by us. This does not bind you in any way to accept the making of new papers for us unless you desire to do so under an understanding as outlined in the paragraph referred to.[135]We are of the opinion that the first paragraph of your letter on page 3 is unnecessary and better omitted. If, however, you desire to insert this we have no objection, as we feel perfectly safe in the light of our past experience, and we think you should reciprocate the same feeling toward us which seems to us to make this paragraph unnecessary and might be construed as a reflection on either one of us. As stated, however you can leave it in or just as you desire.[136]If you will have clear copies prepared and sent to us, adopting the suggestions that we made, we shall be pleased to sign and return them.[137]You will see that we have elected not to include Messrs. Brittains cheap grade of tissue in this agreement, as we cannot recede from tine position that we have taken regarding the confining of the sale of this paper exclusively to us for the United States and Canada without any exception whatever.[138]We also beg to acknowledge the receipt of your letter of April 17th and beg to state that we have not yet had a chance to try out the R & F Paper which you mention. Replying to your enquiries regarding an agreement with you in regard to R & F paper, we of course take it for granted that we have the selling right for this and similar grades in this country and Canada, and are perfectly willing to enter into a three year agreement with you under the same conditions that we have had the paper heretofore which you can incorporate in the letter to be signed by yourselves, Brittains and ourselves noting the different conditions under which the sale of this paper is given to us, to wit, that it is strictly confined to us without any exception whatsoever, both for these grades and anything similar.[139]We have received your invoices for shipments of some of our orders and note that you shipped these via Hull, which is rather embarrassing to us, as in cabling our order No. 2721 we stated to ship by quickest route which we thought you would understand as meaning via Liverpool. In order to avoid any future misunder- standings of this kind please note that when we cable for goods, unless we state otherwise, we would like our orders cabled shipped via Liverpool, quickest steamer.[140]We enclose herewith draft for £1235/8/5 in payment of bills as per pay statement attached.[141]With kindest regards, we are,[142]Very truly yours,[143]Rose & Frank Co. (Sgd) ALFRED FRANK. Copy of this letter sent to Brittains. james R. crompton & brothers limited.[144]Elton Paper Mills Near Bury, Lane. Ref. B.C. Jr. " 1178 " 6th June 1913.[145]The Rose & Frank Co. New York.[146]Gentn,[147]We duly received your favor of the 2nd ulto. with reference to the three years agreement, copy of which was sent on to Messrs. Brittains Limited. We have fully conferred with them & now enclose draft of what we propose this should be, & hope you will agree with it.[148]You will notice that we have acceded to your wish that if no notice be given by either party the arrangement shall be regarded as continuing for- a further period of three years.[149]With reference to the F. S. Webster Co. & your request that we should embody a paragraph to the effect that these customers should be supplied with paper only on the understanding that it is for their own use, & not for sale in the unprepared state, we have no reason for supposing that they do sell the paper except after they have coated it, & having no special reason for writing them now limiting them to the coating of all the paper themselves, we think that the point raised by you will be quite covered by the clause we have inserted in the agreement, to the effect that should they, during the currency of the Agreement, offer for sale in its unprepared state the paper they buy from us, objection shall then be raised by us to their doing so, as the assumption at present is that the I'. S. Webster Co. coat all the paper we supply to them.[150]With regard to the average of the last three years, we have also acceded to your desire that the minimum volume of business should be based on the average of the last three years instead of the last two years. In doing this we bear in mind that the whole basis of this agreement rests upon the honourable & loyal way in which the Agreement is carried through by each of the three parties. The natural expectation of course would be that 1 the business should show an increase from year to year, instead of falling to the average of a past series of years. For the same reason we should not like to delete the paragraph in this connection which makes it clear that this is not an ordinary legal Agreement subject to the interpretation of the Law Courts, but something that we ourselves & Brittains Limited regard as more binding still, the honourable pledge of each of the three parties.[151]With reference to the substance of paragraph 4 in your draft Agreement submitted to us, you will see that we have incorporated the essence of this paragraph in the revised draft agreement, as now sent forward, & after full discussion with Messrs. Brittains Limited, we have agreed, as stated in the draft, that the cheaper carbonizing papers which have already been the subject of dis- cussion, shall be included in this special & exclusive arrangement in which the " R & F " Papers are also included.[152]The draft Agreement as it now stands covers the whole ground of this carbonizing tissue business, & if you unreservedly agree, we will have it copied in triplicate, each copy to be signed by the three parties, & one copy retained by each of them.[153]After the full consideration that has now been given to this matter, we trust the business will go forward on sound foundations to the satisfaction of all the parties concerned.[154]Yours faithfully For Jas. R. Crompton & Bros. Ltd. RALPH CROMPTON jr.[155]Director. rose & frank Co.[156]New York,[157]June 24th 13.[158]Messrs. Jas. R. Crompton & Bros. Ltd. Bury, Lancashire, England.[159]Dear Sirs : —[160]We beg to acknowledge the receipt of your letters of the 3rd, 6th, 9th and 11th inst.[161]The Matter of Blue Carbonizing Tissue, we note that you are doing your utmost to hurry forward part of our order and we trust that you have been successful and that a partial shipment is now on the way.[162]In reference to the draft agreement sent us in your letter of the 6th inst., we beg to state that the same is satisfactory to us, and if you will have the agreement or memorandum drawn up in triplicate we shall be pleased to sign two copies returning them to you, asking you to send us one copy signed by you and Messrs. Brittains Ltd.[163]We desire to call your attention to the fact that we have been penalized on the Canadian business which we do not think is just fair. We are willing to enter the market on an even basis with you so far as the selling price is concerned but at the same time we do not think it right that we should be handicapped by having to pay more for goods going into Canada than we would if the same goods were sent to the United States.[164]We think that Messrs. Brittains Ltd, will agree with us that this should not be done, and we look forward to a discontinuance of the practice of this on your part in the future.[165]We are very glad that the matter of our future dealings is now on a basis which is fully understood, by all of us, and we look forward to a continuance of the agreeable relations that we have had with you in the past for a long time in the future.[166]As soon as we can get at it, which we hope will be in the Course of the next few weeks, we will try to send you an Order for the 7 lb. Substance to be manufactured by the Brittains Co.[167]We enclose herewith one order for which we bespeak your careful attention, as well as draft for £429. 10. 6 in payment of bill as per pay statement attached. Another draft will be sent to you in the course of a few days.[168]With kindest regards, and again wishing to express our satisfaction that our little differences are now smoothed out, we are[169]Very truly yours, ROSE & FRANK CO. rose & frank Co.[170]New York[171]Messrs. Jas R. Crompton & Bros Ltd., July 22/13[172]Bury, Lancashire, England.[173]Dear Sirs,[174]We beg to acknowledge the receipt of your letters of July 7th, 10th and 11th. We also acknowledge receipt of the Memorandum of Agreement in triplicate. Our Mr. Frank is at present on his vacation and this matter will have our attention as soon as he returns.[175]We note what you say regarding the #14 A. Gauze as against # 4 A Gauze. We shall call our customers attention to the superior quality and hope that this grade will prove superior as you state. As you state nothing in your letter about the price, we presume that you expect to sell this at the same price as the 4—A Gauze.[176]Regarding the # 14 — D Extra Thin quality, we wish to state that at the present time we could not pay 1d. per lb extra for light weight tissue. We shall be glad to bear this in mind, however, and see if we cannot open up a new trade for this grade. Before offering this, however, we would like to be sure that Brittains can keep it absolutely uniform and that it will show superior quality. In order to give it a fair test for a higher priced paper, it might be well if Brittains would make a few cases of this in 18 inch, rolls and ship the same when convenient.[177]We think it will be difficult to introduce such a high priced paper, as competition on the finished product is very keen and the prices on the light weight papers are very high as it is now. We shall do all we can to try and get a market if it is possible to do so. When the first sample run is finished, will you kindly ask Brittains to give you a report as to whether they will be able to maintain the uniformity and superior quality of the paper so that we can promise this to our customers accordingly.[178]We enclose herewith draft in payment of invoice as per pay statement attached.[179]With regards, we are Very truly yours ROSE & FRANK CO. ' ' james R. crompton & brothers limited.[180]Elton Paper Mills, Ref. A.N. Near Bury, Lane.[181]Messrs. Rose & Frank Co. March 15th 1916.[182]New York.[183]Dear Sirs, REVISION OF PRICES.[184]You will have received copy of Messrs. Brittains' letter of the 26th ulto. informing us that they find it necessary to ask for an all round advance in price of 12½ % to apply to all deliveries after March 31st and you will note what they say about not being able to give any guarantee, but that they hope to allow the new prices to remain in operation for the next six months.[185]We have been reviewing our own position and we too find we must ask the same advance from the same time.[186]It is impossible for us to tell you the difficulties with which we now have to contend and the difficulty we have in getting raw materials not to mention the greatly increased cost of that which we can obtain. We are also, as you can understand troubled as regards labour, coal, chemicals and practically everything we require.[187]We send you under separate cover invoice for a quantity of 20 L sent on your account to Canada and we very much regret that we have had to keep you so short of supplies of this paper but we have really been doing the best we could under the awkward circumstances.[188]Messrs. Brittains write us saying they will be sending forward this week a good supply of Blue Gauze 18" also some 26½" rolls No. 7 and before the end of the month a further delivery of Blue Gauze 60 rolls 18" No. 6A and some 18" and 261" No. 7.[189]We hope we shall be able to get these shipped without any undue trouble and delay and hope they will reach you safely and help you out of your difficulties.[190]Yours faithfully, ALF. NUTTALL[191]Director. james R. crompton & brothers.[192]Elton Paper Mills,[193]Messrs. Rose & Frank Co. Nr. Bury, Lane.[194]Ref. A.N. March 23rd 1916. 136/140, West 21st Street New York.[195]Dear Sirs,[196]We beg to acknowledge receipt of your favour of the 1st instant and thank you for your esteemed remittance £7.34. 3. 7d.[197]Messrs. Brittains write to say that the balance of the Blue carbonizing Paper together with some of the other grades, will be coming round quickly and we shall probably be able to ship same next week. They also add that this will make the total quantities delivered this quarter equal to the quantity delivered in the corresponding quarter last year and they are glad they have been able to keep up the deliveries to this standard.[198]No effort will be spared to deal with other deliveries. As regards the E. C. C. Paper we will try and let you have a delivery very soon, but are sorry we cannot at present do very much with this.[199]With kind regards, we remain,[200]Yours faithfully,[201]For James R. Crompton & Brothers Ltd. ALF. NUTTALL[202]Director. rose & frank Co. 136-140 West 21st Street,[203]New York, Mar. 24th 1916. Private & Confidential. Messrs. Brittains Ltd.,[204]Nr. Leek, Staffs. England. Dear Sirs,[205]Your private letter of the 26th of February has been duly received and we enclose copy of our cable sent to you on March 17. reading: " Cover six months supply " by this you will understand that we accept the conditions outlined in your letter as to taking at the advanced price, a six months supply of paper, conditional upon your being able to gather a supply of stock sufficient to make the same and to take this paper from you at the price last quoted independent of the market conditions as to price should there be a downward tendency.[206]We fully appreciate the position in which you are in and can only repeat what we have so often stated, that we regard our interests as mutual and our relations such as to warrant the helping out of each other in difficulties which may arise from circumstances entirely beyond the control of either. We have every confidence in you and appreciate the services which you have rendered to us. We hope that you will find no further obstacles in supplying us with the paper that we have ordered and that you will be in a position to make us shipments in the future as you have heretofore.[207]With kindest regards, we are,[208]Very truly yours,[209]Rose & Frank Co. ALFRED FRANK. 136-140 West 21st Street[210]New York March 24th 1916. Messrs. Brittains Ltd.[211]Nr . Leek, Staffordshire, England.[212]Dear Sirs,[213]We beg to acknowledge receipt of the copy of your letter addressed to Messrs. James R. Crompton & Bros. Ltd. in reference to price and note that after the 31st of this month you will be compelled to make an all round increase of 12 ½ %[214]We accept all the conditions as outlined in your letter, to wit: That this price is to remain for six months viz : to the end of September.[215]We beg to confirm all our recent orders sent to you under the new conditions, as we do not wish to withdraw any of them, but desire them all filled as given. 430 A copy of this letter sent to Messrs. James R. Crompton & Bros. Ltd. to day.[216]With kindest regards, we are, .[217]Very truly yours, ROSE & FRANK CO AF/HG P.S.—Enclosed please find copy of letter sent today to Messrs. In the House of Lords. ON APPEAL FROM HIS MAJESTY'S COURT OF APPEAL (ENGLAND). between ROSE & FRANK COMPANY ...Appellants — AND- JAS. R. CROMPTON & BROS. LIMITED and BRITTAINS LIMITED ... Respondents. APPENDIX. WILD, COLLINS & CROSSE,[218]Kennan's House, Crown Court,[219]Cheapside, London, E.C.2, Appellants' Solicitors. RAWLE, JOHNSTONE & CO., 1 Bedford Row, London, W.O.I. Agents for ADDLESHAW, SONS & LATHAM,[220]Manchester, Respondents' Solicitors. Doct. No. Description of Document. Date. Page. 1 Writ, issued 19 Nov. 1919 1 2 Statement of Claim, delivered 15 Dec. 1920 3 3 Particulars, delivered 25 Feb. 1921 14 4 Defence and Counterclaim, delivered 29 July 1921 15 5 Particulars of Bequest referred to in paragraph 20 of the Defence, delivered 29 July 1921 21 6 Particulars of Counterclaim under paragraph 22 of the Defence, delivered 29 July 1921 26 7 Reply to Defence and Counterclaim, delivered 2 Nov. 1921 31 8 Order of Mr. Justice McCardie transferring .Action to the Commercial List, dated 8 Feb. 1922 32 9 Precis of Letters between Solicitors for the parties relative to arrange- ments made between them as to the Trial, dated 8 Mar. 1922 8 Mar. 1922 27 Mar. 1922 31 Mar. 1922 33 33 34 35 10 Transcript of Shorthand Writer's Notes of the Judgment of Mr. Justice Bailhache, delivered 10 Nov. 1922 36 10a Judgment of the Court, dated 10 Nov. 1922 56 11 Notice of Appeal, dated 23 Nov. 1922 58 12 Transcript of Shorthand Writer's Notes of the Judgment of the Court of Appeal, dated Lord Justice Bankes Lord Justice Scrutton Lord Justice Atkin 23 Mar. 1923 … … … … … … 59 59 64 70 13 Order of the Court of Appeal, dated 23 Mar. 1923 80 14 Further Order of the Court of Appeal, dated 23 Mar. 1923 82 DOCUMENTS PUT IN AT THE TRIAL. 15 Correspondence— Letter, Jas. R. Crompton & Bros, Ltd. to Appellants " Appellants to Jas. R. Crompton & Bros. Ltd " Jas. R. Crompton & Bros. Ltd. to Appellants " Appellants to Brittains Ltd " Brittains Ltd. to Jas. R. Crompton & Bros. Ltd " Appellants " Jas. R. Crompton & Bros. Ltd. to Appellants 7 April 1904 11 May 1904 13 Sept. 1904 22 Sept. 1904 23 Sept. 1904 3 Oct. 1904 12 Oct. 1904 84 85 85 86 87 88 89 Correspondence (continued)— Letter, Appellants to Jas. R. Crompton & Bros. Ltd " Jas. R. Crompton & Bros. Ltd. to Appellants " Appellants to Jas. R. Crompton & Bros. Ltd " Jas. R. Crompton & Bros. Ltd. to Appellants " Alfred Frank to Jas. R. Crompton & Bros. Ltd " Jas. R. Crompton & Bros. Ltd. to Alfred Frank " Alfred Frank to .Jas. R. Crompton & Bros. Ltd " Jas. R. Crompton & Bros. Ltd. to Appellants " " " " " " " Alfred Nuttall to Alfred Frank " Appellants to Jas. R. Crompton & Bros. Ltd " Brittains Ltd. " Jas. R. Crompton & Bros. Ltd. to Appellants " Jas. R. Crompton & Bros. Ltd. to Appellants " Appellants to Jas. R Crompton & Bros. Ltd " Jas. R Crompton & Bros. Ltd. to Appellants " Appellants to Jas. R. Crompton & Bros. Ltd " Jas. R Crompton & Bros. Ltd. to Appellants " Alfred Frank to Alfred Nuttall " Alfred Nuttall to Alfred Frank " Appellants to Jas. R. Crompton & Bros. Ltd " Jas. R. Crompton & Bros. Ltd. to Appellants " " " " Appellants to Jas. R. Crompton & Bros. Ltd " Jas. R. Crompton & Bros. Ltd. to Appellants " Appellants to Jas. R. Crompton & Bros. Ltd " Jas. R. Crompton & Bros. Ltd. to Appellants " Appellants to Jas. R. Crompton & Bros. Ltd " Jas. R. Crompton & Bros. Ltd. to Appellants " Ap pellants to Jas. R. Crompton & Bros. Ltd " " " " " " " Jas. R. Crompton & Bros. Ltd. to Appellants " Appellants to Jas. R. Crompton & Bros. Ltd " Jas. R. Crompton & Bros. Ltd. to Appellants " Appellants to Jas. R. Crompton & Bros. Ltd " Jas. R. Crompton & Bros. Ltd. to Appellants " Appellants to Jas. R Crompton & Bros. Ltd " Jas. R. Crompton & Bros. Ltd. to Appellants " Chas. Campbell to Jas. R. Crompton & Bros. Ltd " Jas. R Crompton & Bros. Ltd. to Appellants " Appellants to Jas. R. Crompton & Bros. Ltd " " " " Chas. Campbell " " Jas. R. Crompton & Bros. Ltd. to Appellants " Appellants to Jas. R, Crompton & Bros. Ltd " Jas. R. Crompton & Bros. Ltd. to Appellants " " " 21 Oct. 1904 9 Nov. 1904 23 Nov. 1901 14 Feb. 1905 23 Feb. 1905 25 Feb. 1905 27 Feb. 1905 7 Mar. 1905 5 April 1905 22 June 1905 28 Aug. 1905 22 Nov. 1905 1 Dec. 1905 4 Dec. 1905 17 Jan. 1906 26 Jan. 1906 10 Feb. 1906 30 Mar. 1906 9 April 1906 13 July 1906 27 July 1906 10 Aug. 1906 21 Aug. 1906 10 Sept. 1906 28 Sept. 1906 9 Oct. 1906 19 Oct. 1906 31 Oct. 1906 20 Feb. 1907 20 Mar. 1907 5 April 1907 21 Oct. 1907 2 Dec. 1907 13 Dec. 1907 20 Feb. 1908 4 Mar. 1908 13 Mar. 1908 23 Mar. 1908 28 Aug. 1908 8 Sept. 1908 6 Dec. 1908 24 Dec. 1908 30 Dec. 1908 4 Jan. 1909 11 Jan. 1909 18 Jan. 1909 29 Jan. 1909 6 Feb. 1909 13 Feb. 1909 90 90 91 92 93 94 84 95 96 97 98 98 99 100 101 101 102 103 104 105 106 107 108 109 109 110 111 111 112 114 115 116 117 118 119 120 121 121 122 123 125 125 127 127 129 130 131 133 136 15 Correspondence (continued)— Letter, Jas. R. Crompton & Bros. Ltd. to Appellants " Appellants to Jas. R. Crompton &.Bros. Ltd. " Brittains Ltd. to Appellants " Jas. R. Crompton & Bros. Ltd. to Appellants " " " " " " " " " " Appellants to Brittains Ltd " " Jas. R. Crompton & Bros. Ltd. " Jas. R. Crompton & Bros. Ltd. to Appellants " Appellants to Jas. R. Crompton & Bros. Ltd " " " " Jas. R. Crompton & Bros. Ltd. to Appellants " Appellants to Jas. R. Crompton & Bros. Ltd " " " " Jas. R. Crompton & Bros. Ltd. to Appellants " Appellants to Jas. R. Crompton & Bros. Ltd " " Brittains Ltd " " Jas. R. Crompton & Bros. Ltd " Jas. R. Crompton & Bros. Ltd. to Appellants " Appellants to Brittains Ltd " " Jas. R. Crompton & Bros. Ltd " Brittains Ltd. " " Jas. R. Crompton & Bros. Ltd. to Brittains Ltd " " Appellants " Appellants to Jas. R. Crompton & Bros. Ltd " " Brittains Ltd " Jas. R. Crompton & Bros. Ltd. to Appellants " " " " Brittains Ltd. to Appellants " Appellants to Jas. R. Crompton & Bros. Ltd " " Brittains " Brittains to Appellants " Appellants to Jas. R. Crompton & Bros. Ltd " " " " Jas. R. Crompton & Bros. Ltd. to Appellants " Appellants to Jas. R. Crompton & Bros. Ltd " " " " " Brittains Ltd " " " " Jas. R. Crompton & Bros. Ltd. to Appellants " Appellants to Brittains Ltd " " Jas. R. Crompton & Bros. Ltd " " " " " Brittains " Jas. R. Crompton & Bros. Ltd. to Appellants " Brittains Ltd. to Chas. Campbell " Jas. R. Crompton & Bros. Ltd. to Appellants " Appellants to Brittains Ltd 21 Aug. 1914 1 Sept. 1914 14 Sept. 1914 17 Sept. 1914 23 Oct. 1914 2 Dec. 1914 3 Dec. 1914 18 Dec. 1914 18 Dec. 1914 30 Dec. 1914 8 Jan. 1915 19 Jan. 1915 2 Feb. 1915 2 Mar. 1915 17 Mar. 1915 20 Mar. 1915 2 April 1915 2 April 1915 9 April 1915 15 July 1915 6 Aug. 1915 6 Aug. 1915 25 Oct. 1915 26 Oct. 1915 29 Oct. 1915 12 Nov. 1915 12 Nov. 1915 27 Nov. 1915 10 Dec. 1915 11 Dec. 1915 23 Dec. 1915 30 Dec. 1915 11 Jan. 1916 1 Mar. 1916 10 Mar. 1916 30 Mar. 1916 26 May 1916 23 June 1916 23 June 1916 15 Dec. 1916 J Jan. 1917 19 Jan. 1917 19 Jan. 1917 20 Mar. 1917 11 April 1917 13 April 1917 5 May 1917 2 July 1917 16 Oct. 1917 246 248 249 250 251 252 253 254 254 255 256 257 258 259 261 262 264 266 266 268 270 270 272 274 275 276 277 278 278 280 281 282 284 284 285 286 287 288 288 289 290 290 291 292 294 297 299 300 301[222]No. 1. Writ, issued 19th November 1919. 1919.—R.—No. 1401. IN THE HIGH COURT OF JUSTICE. King's Bench Division. Between—Rose & Frank Company ... Plaintiffs and J. R. Crompton & Bros. Limited and Brittains Limited Defendants. GEORGE THE FIFTH, by the Grace of God, of the United Kingdom of Great Britain and Ireland, and of the British Dominions beyond the Seas, King, Defender of the Faith To J. R. Crompton & Bros. Limited of Bury in the County of Lanes and Brittains Limited near Leek in the County of Staffs We command you, that within eight days after the service of this Writ on you, inclusive of the day of such service, you do cause an appearance to be entered for you in an action at the suit of Rose & Frank Company And take notice that in default of your so doing, the Plaintiff may proceed therein and judgment may be given in your absence.[223]Witness, Frederick Viscount Birkenhead, Lord High Chancellor of Great Britain, the Nineteenth day of November in the year of Our Lord One thousand nine hundred and nineteen. N.B.—This Writ is to be served within twelve calendar months from the date thereof, or, if renewed, within six calendar months from the date of the last renewal, including the day of such date, and not afterwards.[224]The Defendant may appear hereto by entering appearance either personally or by Solicitor, at the Central Office, Royal Courts of Justice, London.[225]The Plaintiffs claim:—[226]Damages for breach of contract. Damages for non-delivery of goods.[227]This Writ was issued by Wild, Collins & Crosse of and whose address for service is Kennan's House, Crown Court, Cheapside, in the City of London, Solicitors for the said Plaintiffs, who carry on business as Importers and Exporters at 152 West 22nd Street New York in the United States of America, and are a body incorporated under the laws of the United States.[228]This Writ was served by me at on the Defendant on , the day of , 192 .[229]Indorsed the day of ,192 . (Signed) , (Address)[230]No. 2. Statement of Claim, delivered 15th December 1920. 1919.—R.—No. 1401. IN THE HIGH COURT OF JUSTICE. King's Bench Division.[231]Writ issued the 19th day of November 1919.[232]Between—Rose & Frank Company Plaintiffs and J. R. Crompton & Bros. Limited and Brittains Limited Defendants. STATEMENT OF CLAIM. 1.—The Plaintiffs carry on business in New York as dealers in tissues for carbonising papers and prior to 1907 dealt chiefly in tissues for carbonising papers manufactured in countries other than England. The Defendants Brittains Limited are English manufacturers of high-class tissues for carbonising papers and the Defendants Crompton & Bros. Ltd. are English manufacturers of less expensive tissues for carbonising papers. At all material times the Defendants Crompton Bros. Ltd. had the exclusive right to the output and the sale of the products of the Defendants Brittains Limited. 2.—All the tissues hereinafter referred to bought by the Plaintiffs from the Defendants or either of them were to the knowledge of the Defendants and or each of them bought for the purpose of resale to the Plaintiffs' customers. In respect of all the tissues hereinafter referred to the practice of the Plaintiffs as the Defendants well knew was to buy such papers from the Defendants in an unfinished state and to sell such, papers to manufacturers who coated the unfinished tissues and so converted them into carbonising papers. 3.—By an Agreement made in or about December 1907 between