|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Philp v Knoblauch  ScotCS CSIH_9 (31 May 1907)
Cite as: (1907) 15 SLT 61,  ScotCS CSIH_9, 1907 SC 994
[New search] [Printable version] [Help]
31 May 1907
|Philp & Co.|
think they did when we read the telegram and the letter together. The telegram “accepts” without any reservation on this point, and the letter contains the words “usual contract,” which plainly mean the same thing as the words “usual Plate terms” in the offer.
The case of Harvey v. Facey which was quoted to us has no bearing. That was a case regarding an alleged purchase and sale of heritable property, not a transaction like this in re mercatoria. Further there was never really an offer. The telegram founded on as an offer was not an offer. It was merely an opening of negotiations. It offered nothing. It was merely an intimation of the lowest price which would be considered if anyone came forward offering it. I have no doubt that decision was right, but it has no bearing here.
But here I am of opinion that the defender's letter to the pursuers of 28th December, and the pursuers' telegram of 29th December in answer thereto, contained all the conditions necessary to make a concluded agreement. There was no necessity or reason for the defender, in that letter, quoting to the pursuers a specific quantity and price unless he was prepared to make a contract with them if buyers, as to which he awaited their reply. That reply could only be received next day, and was sent by telegram as soon as possible. I am of opinion that a contract was thereby concluded, and on usual Plate terms. It is true the telegram does not repeat “on usual Plate terms,” but I think that pursuers' telegram plainly implied their consent thereto.
It was maintained by the defender that there was no concluded contract because the telegram did not fully meet the offer, in respect that it did not refer to “usual Plate terms”; but with regard to a document so plainly in re mercatoria as a telegram, I think the acceptance therein contained, which included a specification of the subject sold, the time of delivery, the quantity and the price, was sufficient, and that it implied an acceptance of the ancillary condition “usual Plate terms.” But further, the pursuers' letter of 29th December 1905 contained that condition, and moreover these “terms” being the invariable conditions for Plate linseed, they must be held to have formed an implied condition of the acceptance unless specially excluded. For these reasons I think it is vain for the defender to plead that there was no concluded contract in respect of the absence in the telegram of a reference to “usual Plate terms.”
The permission for BAILII to publish the text of this judgment
was granted by Scottish Council of Law Reporting and
the electronic version of the text was provided by Justis Publishing Ltd.
Their assistance is gratefully acknowledged.