LONGBOTTOM.

MACDONALD cannot take more than the quantity stated in the first instance, say 2,200 stones, and he bids me write to say that, if the wool is not delivered soon, he will expect an allowance, according to the state of the market. I trust, therefore, that you will use every exertion to get the wool forwarded without further delay."

[ *980 ]

On 27th November the plaintiffs shipped to the defendant at Liverpool the whole of the wool they had for sale, including that which belonged to the plaintiffs' own *clip, and that which they had got from the other farmers, the whole amounting to 2,542 stones. The defendant, on its being tendered, refused to accept it, on the ground that there had been unreasonable delay in the shipment. No evidence was given at the trial that he had made any objection that the wool shipped was not what he had contracted to purchase.

The learned Judge ruled that the evidence of the conversation which Macdonald, jun., had had with Stewart before the letters. of 5th and 8th September was inadmissible for the purpose of explaining what was the wool referred to in those letters. The plaintiffs were nonsuited, leave being reserved to enter a verdict for them for the amount claimed, if the Court should be of opinion that, without such evidence, or with it if admissible, there was sufficient evidence of a contract which bound the defendant to accept the wool tendered. In order to obviate the necessity for a new trial in such case, the issue of fact, as to whether the wool was tendered within a reasonable time, was submitted to the jury, who found, on such issue, a verdict for the plaintiffs.

Monk, in last Easter Term, obtained a rule to show cause why the nonsuit should not be set aside, and a verdict entered for the plaintiffs, on the ground that there was a sufficient contract in writing, and also on the ground of improper rejection. of evidence.

Edward James and W. B. Brett now showed cause. *

I am of opinion that our judgment should be for the plaintiffs. The letters of 5th and 8th September constitute a complete contract, within the Statute of Frauds, between the plaintiffs and the defendant, through his agent, Stewart. This was an offer made to the plaintiffs, and accepted by them, of 16s. per stone for "your wool," to be delivered in Liverpool. The only question, therefore, is, what was the subject-matter of

LONGBOTTOM.

[ *984 ]

the contract, described as your wool"? I am of opinion MACDONALD that, when there is a contract for the sale of a specific subject-matter, oral evidence may be received, for the purpose of showing what that subject-matter was, of every fact within the knowledge of the parties before and at the time of the contract. Now Stewart, the defendant's agent, had a conversation *before the contract with one of the plaintiffs, who stated what wool he had on his own farm, and what he had bought from other farms. The two together constituted his wool; and, with the knowledge of these facts, the defendant contracts to buy your wool." There cannot be the slightest objection to the admission of evidence of this previous conversation, which neither alters nor adds to the written contract, but merely enables us to ascertain what was the subject-matter referred to therein. Then comes the question, whether the contract is to be limited to the 2,300 stones, 100 stones more or less, which, in the course of this conversation, one of the plaintiffs stated was the amount of the whole of the wool. I am of opinion that it is not to be so limited. There was no contract entered into at the time of this conversation: and, when the defendant ultimately agrees to purchase the wool, no reference is made to the quantity. The statement of the quantity at the time of the conversation was a mere expression of opinion, and did not affect the actual contract at all. Then, is it to be said. that the letter of 5th September is to be taken as embodying the condition that the wool shipped shall not exceed that quantity? The agreement then is to take "your wool," tale quale and I think we cannot introduce any limitation of the quantity. On the evidence, it seems clear that the defendant rejected the wool, not on account of any excess, but because the market had fallen in the meantime.

:

WIGHTMAN, J.:

The contract, as constituted by the letters of 5th and 8th September, was for "your wool." That leaves it quite uncertain what was the wool meant; and we may well imagine. that, if there had been a *previous conversation between the parties respecting any specific wool, that would be the wool contracted for: and this is one of the cases in which, the subject-matter of the written contract being uncertain, oral evidence is admissible to identify it. Then, what was meant by your wool"? The wool as to which one of the plaintiffs had been previously speaking to Stewart, the defendant's agent, was partly wool of the plaintiffs' own clip, partly wool which they had purchased of others, the whole amounting, as was

66

[ *985 ]

v.

LONG

воттом.

MACDONALD then stated, to 2,300 stones, 100 stones more or less. That, I On think, was the wool which the defendant contracted for. this point I have the misfortune to differ from my Lord and my brother ERLE, who think that the contract was simply for the wool belonging to the plaintiffs, compounded from these two sources, and not for that specific quantity. The contract seems to me to fix the quantity of the specific article, as well as the article itself. If the conversation be evidence, as it is, for the purpose of identifying the specific article, I think it is evidence for fixing the specific quantity. The defendant's contract is, in effect, as if he had written saying, "You having represented that you have some wool, partly of your own clip, partly purchased from other farmers, and which you state to amount in the whole to 2,300 stones, 100 stones more or less, I am willing to accept your wool." I do not rely much on the letter of 12th October: but I think it is a circumstance not without weight that the defendant there says he will take only "the quantity stated in the first instance, say 2,200 stones;" which would be the exact minimum of the quantity mentioned in the previous conversation. On that ground I confess I think the present rule cannot be supported; for, in my view, the *tender of 2,542 stones was one which the defendant was not bound to accept. As to the evidence, as I have said, I think it was clearly admissible.

[ *986 ]

ERLE, J.:

I am of opinion that the plaintiffs are entitled to succeed. I assume that they must prove a written contract, and that that contract must contain all the material terms. The contract here is most explicit: it is to purchase of the plaintiffs "your wool," at 16s. a stone, to be delivered in Liverpool. The oral evidence is, undoubtedly, admissible to identify the subject-matter of the contract, and to show what "your wool' really was. The Judge, who has to construe the written document, cannot have judicial knowledge of the subject matter; and evidence has been invariably allowed to identify it. The previous conversation, therefore, between one of the plaintiffs and the defendant's agent is admissible for that purpose. But the conversation was by no means essential. If the plaintiffs had merely proved on the trial that, at the time of the contract, their wool consisted partly of their own clip, partly of other wool contracted for by them, they would have been entitled to succeed, without proving that this fact was stated by them to the defendant. Evidence of such statement, however, is clearly admissible to prove what was the contract, but not as

v.

LONGBOTTOM.

being embodied in the contract itself. The defendant contends MACDONALD that, as my brother WIGHTMAN thinks, the statement was embodied in the contract; and that, as part of the statement was that the whole quantity was 2,300 stones, 100 stones more or less, the defendant was not bound to accept a tender of 2,542 stones. I am of opinion that the statement as to quantity was merely preliminary talk, and cannot be *embodied in the written contract which was subsequently made. Even if it were embodied, it would be a question for the jury whether the tender actually made was a tender of an unreasonable excess. Upon the whole, I think that the rule to enter a verdict for the plaintiffs should be made absolute.

CROMPTON, J. was absent.

Rule absolute.

[ *987]

IN THE EXCHEQUER CHAMBER (1).

MACDONALD v. LONGBOTTOM.

(1 El. & El. 987-989; S. C. 29 L. J. Q. B. 256; 6 Jur. N. S. 724; 8 W. R. 614.) THE defendants appealed against the above decision of the Court of Queen's Bench, making absolute the rule to enter a verdict for the plaintiffs.

W. B. Brett was heard for the appellant.

Kemplay, for the respondents, was not called upon. WILLIAMS, J.:

We are all of opinion that the judgment of the COURT below should be affirmed. As to the main ground of the argument for the respondents, none of us entertain any more doubt than the COURT below; we all think that the evidence was admissible. That evidence does not vary the written contract, but only identifies *the subject-matter to which it refers. But upon

the other point I felt at one time the same doubt as my brother WIGHTMAN: although my learned brethren here feel no doubt upon it. It cannot be disputed that if, as a matter of fact, it could be proved that the treaty was on a condition that the wool should amount to a particular quantity, namely, 2,300 stones, 100 stones more or less, it would have been gross injustice to admit the oral evidence for the purpose of fixing the subject-matter of the contract, and exclude it from fixing the particular quantity of that subject-matter; or to hold that an action lay against the defendant for refusing to accept that

(1) Before Williams, Willes and Byles, JJ., Martin, Channell and Wilde, BB, 36

R.R.-VOL. CXVII.

1860.

June 15.

[987]

[ *988 ]

r. LONG

BOTTOM.

MACDONALD which he never had bargained for. But, upon the whole, I incline to the opinion of the rest of the COURT that the statement as to the quantity, in the previous conversation, was a mere expression of opinion by the plaintiffs, and not a material element in the contract by which the defendant bound himself to accept the wool.

[*989]

MARTIN, B.:

66

I also think that the judgment of the Court of Queen's Bench should be affirmed. The letters of the 5th and 8th September constitute a contract, which, in my opinion, would be a good contract at common law, if the Statute of Frauds had never existed. The ambiguity in the expression your wool" would not prevent the contract from being a good one; and there is nothing in sect. 17 of the Statute of Frauds to invalidate it. If the previous conversation had been the only evidence as to what was meant by the expression "your wool," I think that, as my brother WIGHTMAN suggested, it would have been a question whether the contract was not for the quantity mentioned at that conversation, viz., 2,300 stones, 100 stones more or less; and, if so, the tender of 2,542 stones would not have been a tender in conformity with the contract. But, looking at the letter of 26th August, in which Macdonald speaks of a fresh parcel of wool which he had secured, and which he says "will go along with my other wool," I have no doubt that the defendant, in using the term "your wool.” meant any wool that was then under the control of the plaintiff.

WILLES, J. and CHANNELL, B. concurred.

BYLES, J.:

I am of the same opinion, upon three grounds. First, the expression "your wool" is the expression of the defendant, and should therefore be taken in the sense which is widest and most against him. Secondly, the ordinary rule is that a latent ambiguity, an ambiguity which is raised by extrinsic evidence, may be removed by extrinsic evidence. Thirdly, such evidence, to be admissible, must not vary, but apply, the contract; and that is the effect of the oral evidence in this case. As to the statement of quantity, I agree with my brother MARTIN that the precise quantity was not an element in the contract.

WILDE, B. concurred.

Judgment affirmed.