The plaintiff, being about to tender for the supply of coal to the Harbours and Rivers Department for 18 months, saw the defendants' manager, and had certain conversations with him as to the price they would supply him with coal in the event of his being the successful tenderer; and the following letter was written to him, "I beg to confirm verbal arrangements made with reference to the prices for the contract to the Harbours and Rivers Department," and then followed the prices. The plaintiff was the successful tenderer, and entered into a contract with the department to supply such coal as should be required up to 6,500 tons. But under that contract the department was not bound to take any quantity of coal from the plaintiff. The plaintiff brought an action for breach of contract against the defendants, alleging that they had entered into an agreement to supply him with coal for the purpose of his carrying out his contract with the department. The defendants pleaded the Statute of Frauds. Held, that the letter above referred to, even when read with the contract between the plaintiff and the department, did not contain a promise to supply the coal he might require to fulfil that contract. NEW TRIAL MOTION. DECLARATION. For that before the grievances hereinafter alleged, the plaintiff was carrying on the business of a coal merchant, and the Public Works Department had advertised for tenders for the supply of coal to the Harbours and Rivers Branch of the said department for a period of 18 months from the 1st January, 1896, and the plaintiff was about to send in a tender for the supply of the said coal; all of which things the defendants well knew, and it was agreed by and between the plaintiff N.S. W.R., Vol. XIX., Law. A 1898. KELLY v. COAL CO. and defendants that, in the event of the plaintiff being the successful tenderer, the defendants would supply the plaintiff with CALEDONIAN all the coal required by the plaintiff under such contract as the plaintiff should enter into with the said Public Works Department for the supply of coal to the said Harbours and Rivers Branch during the said period of 18 months at the price, etc.; and the plaintiff became and was the successful tenderer, and entered into a contract with the said Public Works Department to supply to the said Harbours and Rivers Branch such coal as might be required during the period aforesaid, all of which things the defendants well knew, and all conditions were fulfilled, etc.; yet the defendants supplied portion only of the said coal at the said prices, and refused to supply a large part thereof at all, etc. PLEA (inter alia). Statute of Frauds. It appeared that the plaintiff, being about to tender for the supply of coal to the Public Works Department, saw Dr. Robertson, the manager of the defendant company, and told him that that department was calling for tenders, and that he was about to tender, and wanted a list of prices at which his company would supply him with coal. He got a letter from the company in these terms: "Dear Sir, I beg to confirm verbal arrangements made with reference to the prices for the contract to Harbours and Rivers Department, viz., best Waratah at shoots, 68. 4d. per ton F.O.B.; small Waratah at shoots, 3s. 6d. per ton F.O.B. These prices refer to this contract alone. Payment by p/n. due at a month from date of shipment. I am, yours truly, F. W. TANN, After receipt of this letter the plaintiff tendered for the supply of coal to the Public Works Department, and his tender was accepted. Under the contract entered into with the department, the plaintiff was to supply whatever coal the department wanted for a period of 18 months from the 1st January, 1896, up to the amount of 6500 tons at certain prices, but there was nothing in the contract which in any way bound the department to take any quantity of coal from the plaintiff. The plaintiff got coal regularly from January to March from the company at the prices quoted in the letter, but after March they refused to supply coal to the plaintiff on those terms. In order to prove the contract declared on the plaintiff put in the letter above referred to and the contract between himself and the Public Works Department. The jury found a verdict for the plaintiff. The jury specially found in answer to questions put to them by Stephen, J., that there was an agreement between the plaintiff and defendants that, in the event of the plaintiff being the successful tenderer, the defendants should supply all such coal as the plaintiff should require, and that there was a breach of such agreement. His Honour formally ruled that that agreement was in writing, and leave was reserved to the defendants to move to enter a nonsuit. A rule nisi was granted calling upon the plaintiff to shew cause why the verdict should not be set aside, and a nonsuit entered on the ground (inter alia) that there was no evidence in writing of the alleged contract sued upon sufficient to satisfy the requirements of the Statute of Frauds. The contract Scholes and Pickburn, for the defendants. declared on being one which was not to be performed within the space of one year had to be in writing under the Statute of Frauds. All the terms of the contract must be in writing. Here the letter from the defendants to Kelly did not contain all the terms of the contract: Wain v. Warlters(1); Munday v. Asprey (2). Shand and James, for the plaintiff. The letter from the defendants to Kelly refers to the contract entered into between him and the Public Works Department. That contract can, therefore, be looked at to explain the agreement entered into between the parties. It is not necessary in order to satisfy the Statute of Frauds that the whole agreement should be written on one piece of paper. If the signed paper refers to other written papers, then the separate documents can be looked at to see what the agreement is between the parties. Here the contract between (2) 13 Ch. D. 855. (1) 5 East 10. 1898. KELLY v. CALEDONIAN 1898. Kelly and the Public Works Department was to supply the coal required by the department, and the agreement between Kelly and the company was that the latter should supply the coal COAL CO. required by him to carry out that contract. KELLY v. CALEDONIAN They referred to Benjamin on Sales, 3rd Ed. 185; Macdonald v. Longbottom (1); Long v. Millar (2); Reuss v. Picksley (3); Horsey v. Graham (4). Scholes in reply. I admit that a number of papers may be looked at where they contain the whole bargain between the parties. This letter contains no promise on the part of the defendants to supply any quantity of coal. This letter is nothing more than a schedule of prices. Kelly, in giving evidence, said that the defendants had promised to supply him with what coal he wanted for the department, but that term is not in the letter. [COHEN, J., referred to Harvey v. Facey (5); Pearce v. Gardner (6). James referred to Newell v. Radford (7).] Harvey v. Facey (5) is in my favour, and shews that here there was no concluded agreement. THE CHIEF JUSTICE. In this case the plaintiff brought an action against the defendants, who are colliery proprietors, and in the declaration he alleged that the Public Works Department had advertised for tenders for the supply of coal for a period of 18 months, and he was about to send in a tender for the supply of the coal, and it was agreed that, in the event of the plaintiff' being the successful tenderer, the defendants would supply the plaintiff with all the coal required by the plaintiff under such contract as the plaintiff should enter into with the Public Works Department at the price of so much per ton, and then the declaration goes on to allege that the plaintiff was the successful tenderer, and did enter into a contract with the Public Works (1) 29 L.J.Q.B. 256. (2) 4 C.P.D. 450. (3) L.R. 1 Ex. 342. (7) L.R. 3 C.P. 52. (4) L.R. 5 C.P. 9. |