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摘要summary
This is a hallmark case in the U.S. with regard of legal status of “sole agent”. The case is, in a nutshell, about two parties, manufacturer on the one hand, and “sole selling agent” in the other entering into an agreement whereby the selling agent is required to pay certain percentage of market price to the manufacturer 30 days in receipt of goods. As to the duration of the contract, the agreement stipulates to be effective for two years and afterwards continuous subject to twelve months' notice by either party. Upon the construction of the agreement as it stands in its own, the agreement is no more than an agreement in which the manufacturers are the sellers and those who are called selling agents are to be the buyers over a period of three years of the goods.
In practice, it is disputed whether the agreement in question is an undisclosed sole and exclusive agency agreement or an agreement of buyer and seller. For the purpose of the case, it is irrelevant whichever is real because in either case the manufacturer undertakes to sell all goods to none other than buyer who sells the goods in its own capacity for the manufacturer rather than independently for their own. The effect thereof is to give the agent the sole right to sell goods manufactured to third parties and the manufacturer repudiates the agreement by stopping supply to the “agent” and selling itself.
相关问题
The relevant point in this case is as follows:
Is the sole agent an agent in a legal sense?
What is the distinction between commercial agent and buyer for resale?
Does the object matter of price have to be ascertained precisely in the context of commercial agency or resale?
案例原文
[1932] 1 KB 710
W. T. LAMB AND SONS v GORING BRICK COMPANY, LIMITED.
[1930. L. 306.]
[IN THE KING'S BENCH DIVISION AND THE COURT OF APPEAL]
[1932] 1 KB 710
HEARING-DATES: 14, October 1931, 16, 17 December 1931
17 December 1931
CATCHWORDS:
Principal and Agent - Appointment as \"Sole selling Agents\" - Sale by Principal - Breach of Contract.
HEADNOTE:
By an agreement in writing certain manufacturers of bricks and other building materials appointed a firm of builders' merchants \"sole selling agents of all bricks and other materials manufactured at their works.\" The agreement was expressed to be for three years and afterwards continuous subject to twelve months' notice by cither party. While the agreement was in force the manufacturers informed the merchants that they intended in the future to sell their goods themselves without the intervention of any agent, and thereafter they effected sales to customers directly. In an action by the merchants against the manufacturers for breach of the agreement:-
Held, by Wright J. and the Court of Appeal, that the effect of the agreement was to confer on the plaintiffs the sole right of selling the goods manufactured by the defendants at their works, so that neither the defendants themselves nor any agent appointed by them, other than the plaintiffs, should have the right of selling such goods.
Snelgrove v. Ellringham Colliery Co. (1881) 45 J. P. 408 considered, and followed by Scrutton L.J.
Dicta of the Chief Judge in Equity of New South Wales in Cant v. Miller (1913) 13 N. S. W. S. R. 505, and of McCardie J. in Bentall v. Vicary[1931] 1 K. B. 253, not adopted.
Held, by Greer and Slesser L.JJ., that the agreement was one of vendor and purchaser and not one of principal and agent, and that Snelgrove v. Ellringham Colliery Co., supra, and Bentall v. Vicary, supra, were not relevant.
INTRODUCTION:
ACTION tried by Wright J. without a jury.
By an agreement in writing dated April 21, 1927, the defendants, who were manufacturers of bricks and other building materials, appointed the plaintiffs, who were builders' merchants, \"sole selling agents of all bricks and other materials manufactured at their works.\" The agreement was expressed to be for three years and \"afterwards continuous subject to twelve months' notice by either party.\" Business proceeded under the agreement until, by a letter dated September 25, 1929, from the defendants, by their accountants, to the plaintiffs, the plaintiffs were informed that the defendants intended in the future themselves to sell
all bricks manufactured by them without the intervention of an agent. Thereafter the defendants themselves sold some, or all, of their bricks directly to customers without the intervention of the plaintiffs. Subsequently, twelve months' notice to terminate the contract was given by the defendants.
The plaintiffs brought the present action claiming damages for breach of contract, a declaration that during the currency of the agreement the defendants were not entitled to sell any bricks or other materials except through the plaintiffs, and an account. The defendants denied that they had repudiated or broken the agreement or that the plaintiffs had suffered any damage.
The defendants appealed. The appeal was heard on Dec. 16 and 17. 1931.
COUNSEL:
A. M. Sullivan K.C. and Reginald, T. Sharpe (Maurice Healy K.C. with them) for the plaintiffs. The plaintiffs are entitled to succeed. The effect of the words in the agreement appointing them \"sole selling agents\" was that they, and they alone, during the currency of the agreement, had the right to sell all bricks and other materials manufactured by the defendants at their works. No term should be implied in the agreement excluding from this general provision sales by the defendants themselves without the intervention of any agent. To apply to the present case the words of Mathew J., in Snelgrove v. Ellringham Colliery Co. n(1) , the defendants were not entitled \"to effect any sales or transact any business connected with their firm\" during the existence of the agreement \"except by means of [the plaintiffs'] agency.\" Bentall v. Vicary n(2) was decided on its special facts.
Blain for the defendants. The defendants have not been guilty of any breach of contract. The words \"sole selling agents\" in the agreement mean merely that, if the defendants sold through any agents, it must be through the plaintiffs. There is no express term in the agreement prohibiting sales by the defendants themselves and no such term need be implied to give \"business efficacy to the transaction\": see per Bowen L.J. in The Moorcock. n(3) If the parties had
n(1) 45 J. P. 408.
n(2) [1931] 1 K. B. 253.
n(3) (1889) 14 P. D. 64, 68.
intended such a prohibition nothing would have been easier than to have inserted the appropriate words: per McCardie J. in Bentall v. Vicary. n(1) It is submitted that the decision in that case should be followed in the present case. The decision in Snelgrove v. Ellringham Colliery Co. n(2) went no further than that the defendant firm, in soliciting orders by one of their partners, were doing so by an agent other than the plaintiff who had been appointed their \"sole agent\": see per the Chief Judge in Equity of New South Wales in Cant v. Miller n(3) and per McCardie J. in Bentall v. Vicary. n(4)
van den Berg E.C. and Blain for the appellants.
A. M. Sullivan K.C., Maurice Healy K.C. and R. T. Sharpefor the respondents, were not called upon.
PANEL: WRIGHT J SCRUTTON, GREER and SLESSER L.JJ
JUDGMENTBY-1: WRIGHT J
JUDGMENT-1:
WRIGHT J: By its express terms the letter of September 25, 1929, declared the intention of the defendants in the future to sell all their bricks without any intervention on the part of the plaintiffs and so entirely to abrogate the function of the plaintiffs as selling agents. Is that consistent with the terms of the agreement of April 21, 1927? In my judgment, it is not. The agreement is a commercial document. It is well known that in certain branches of trade a division of functions is common between manufacturers or producers on the one hand and merchants or salesmen on the other, and I think that the fair construction of this agreement is that the parties intended that, the manufacturing part of the business being in the hands of the defendants, the merchanting or selling part of the business should be entrusted to the plaintiffs. The plaintiffs, as merchants, it might be assumed, had the necessary selling organization, the necessary connection with possible buyers, and the hope of making bargains in the best way. It was the promise of the plaintiffs to put their organization and their services at the disposal of the defendants which formed the consideration for the promise on the part of the defendants to entrust to the plaintiffs the selling part of the business.
In my opinion, the words in the agreement, \"appoint the plaintiffs sole selling agents of all bricks and other materials
n(1) [1931] 1 K. B. 253, 258.
n(2) 45 J. P. 408.
n(3) 13 N. S. W. S. R. 505, 509.
n(4) [1931] 1 K. B. 253, 260.
manufactured at [the defendants'] works,\" mean that the plaintiffs were to have the sole right of selling in their capacity as agents all the bricks and other materials manufactured by the defendants at their works without any reservation in favour of the defendants themselves. It does not appear to me that in a contract of this nature there is any need to introduce any implied term into it to give \"such business efficacy to the transaction as must have been intended at all events by both parties who are business men\": per Bowen L.J. in The Moorcock. n(1) I think that the business sense of the words of the agreement in their natural and true interpretation is what I have stated. In any other view, during the currency of the agreement it would always have been open to the defendants to remove from the plaintiffs the power to sell the bricks and other materials which they (the defendants) produced. At any moment the defendants would have had the option of taking the whole of the business out of the plaintiffs' hands and availing themselves of the connection which had been brought into operation through the efforts of the plaintiffs. In other words, all that the agreement would have given to the plaintiffs would have been the possibility that the option which the defendants claim to be entitled to exercise would not be exercised for some time.
I am supported in the view which I have expressed with regard to the construction of this agreement by the decision of Mathew J. in Snelgrove v. Ellringham Colliery Co. n(2) The defendants there, a partnership firm, were manufacturers of fire-clay goods and they appointed the plaintiff their sole agent for the sale of their goods at a fixed scale of commission within a certain area. After a while the plaintiff discovered that the defendants, through one of their partners, were soliciting orders in the district at more favourable terms. In giving judgment, Mathew J. said: \" utting the best interpretation, however, upon the agreement between the parties, I am of opinion that this gentleman [i.e., the plaintiff] was to be the agent for the defendants, who, I assume, are
n(1) (1889) 14 P. D. 64, 68.
n(2) 45 J. P. 408.
ordinary partners, and that they were not entitled to appoint any other agent in his district, nor were they entitled to effect any sales or transact any business connected with their firm in his district, except by means of his agency.\"
In my opinion, that is a clear decision in the same sense as that which I have already indicated as my own. It is, however, said that that is not the true meaning of the decision of Mathew J., and that all he decided was that the defendants were debarred from selling their goods in the plaintiff's district through any other agent than the plaintiff, and that they were doing so because one of their partners was the agent of the firm to do the acts complained of. In a sense, of course, a partner, in transacting any business for the partnership firm, is an agent of that firm, just as, in the present case, any sales made by the defendant company must be effected by some agent of the company, but I do not think that such an agreement as we are dealing with here can be construed in the way for which Mr. Blain has contended. Nor do I think that Mathew J. intended so to limit his judgment as has been suggested because, I think, he treated the sales, or attempts to sell, on the part of the partner in the defendant firm as being the direct acts of the members of the firm, just as in the present case sales by a director of the company would be the direct acts of the company. I do not think that, either in Snelgrove v. Ellringham Colliery Co. n(1) or in the present case, the true view ought to be that there was an employment by the defendants of some agent other than the plaintiff. In my view, Mathew J. meant that the effect of appointing the plaintiff in Snelgrove v. Ellringham Colliery Co. n(1) sole agent for the sale of the defendants' goods was to put the sole right of selling in the plaintiff and so, in the present case, I think that the effect of appointing the plaintiffs \"sole selling agents\" was to put into their hands the sole right of selling the goods manufactured by the defendants, not only as against any other agent whom the defendants might appoint, but also without reservation in favour of the defendants themselves.
n(1) 45 J. P. 408.
My attention has been called to the fact that, in Cant v. Miller n(1) the Chief Judge in Equity in New South Wales said: \"In Snelgrove v. Ellringham Colliery Co. n(2) Mathew J. seems to have considered that in the contract before him, the defendant was forbidden to sell as principal. It was not apparently necessary to decide this, for the defendants in that case were a firm, A., B., and C., and the sales complained of were made by C., as agent of the firm. The defendants were, therefore, breaking their contract not to sell through any agent other than the plaintiff.\" With all respect to the Chief Judge in Equity I can only repeat that, in my opinion, that was not the view taken by Mathew J. In cases of this kind \"agent\" means something different from the principal, or the employee of a firm which is the principal.
I was also referred to Bentall v. Vicary n(3) , where the defendant, the owner of property, appointed the plaintiffs, who were estate agents, his \"sole agents for the sale of the property\" for a stipulated period. During the period of the agency the defendant negotiated personally and quite apart from the plaintiffs with a purchaser who had never had any communication with the plaintiffs and whom the plaintiffs did not know. The result of the negotiations was that the property was sold to this purchaser. In an action by the plaintiffs in which they claimed from the defendant damages for breach of contract, McCardie J. held that the plaintiffs were not entitled to damages, as the special contract in question contained no express prohibition against a sale by the defendant himself, and the implication of such a prohibition was not necessary to give business efficacy to the transaction. That may well have been a proper view to have taken in that case, but I have already indicated that, in the case before me, the matter can properly be decided on the clear language of the contract. McCardie J. refers in his judgment n(4) to Snelgrove v. Ellringham Colliery Co. n(2) , and takes the view that the case was decided simply on the ground that the acts of the partner of the defendant firm were those of an agent
n(1) 13 N. S. W. S. R. 505, 509.
n(2) 45 J. P. 408.
n(3) [1931] 1 K. B. 253.
n(4) [1931] 1 K. B. 259, 260.
of the firm, and that, in so far as Mathew J., if he did so at all, proceeded on the ground that they were the acts of a principal, his remarks were obiter dicta. I have already expressed, with deference, a different view. The other cases referred to by McCardie J. in his judgment do not appear to give much assistance in the decision of the present case.
In my judgment, the plaintiffs are entitled to succeed on the ground that, by the letter of September 25, 1929, the defendants repudiated and broke the agreement of April 21, 1927. No doubt some method will be adopted to determine what damages are payable.
JUDGMENTBY-2: SCRUTTON L.J
JUDGMENT-2:
SCRUTTON L.J: This is an appeal from a decision of Wright J. who has, without going into the question of amount, made an order that the plaintiffs are entitled to damages for breach of an agreement entered into between the parties. The agreement is a short one, and if it were read without any knowledge of the surrounding circumstances or facts its meaning might be doubtful. To the parties it presented no difficulty whatever, and for two years and a half they acted upon it, until some third person, who until then had not been concerned in the matter, bought up all the shares in the appellant Company. This person apparently took a view of the meaning of the agreement different from that taken by the parties to it who had been working on it for over two years. He acted upon his view. Hence this action.
The agreement was made between persons who manufacture bricks and other persons, described as \"merchants,\" who by
the agreement are to be the \"sole selling agents of all bricks and other materials manufactured at their\" - the appellants' - \"works.\" Now it is well known that in certain trades the word \"agent\" is often used without any reference to the law of principal and agent. The motor trade offers an obvious example, where persons described as \"agents\" are not agents in respect of any principal, but are purchasers who buy from manufacturers and sell independently of them; and many difficulties have arisen from this habit of describing a purchaser, sometimes a purchaser upon terms, as an agent.
By this particular agreement the respondents, therein called the \"manufacturers,\" the makers of the bricks, appoint the \"merchants,\" the buyers of the bricks from them and sellers of the bricks to builders and contractors, \"sole selling agents of all bricks and other materials manufactured at their works.\" It continues: \"The price which the merchants shall pay the manufacturers for the said bricks and other materials shall be mutually agreed from time to time and shall be based upon a figure which shall allow the merchants not less than 10 per cent. on the current market price to builders.\"
In his argument for the appellants Mr. van den Berg took a point which had not before occurred to any one - namely, that those words, \"The price ... shall be mutually agreed from time to time and shall be based,\" etc., did not impose an enforceable term and only amounted to an agreement to make an agreement, and being an ineffective agreement, could not form the basis of a claim for damages. In our opinion that point cannot now be raised either in this Court or on the assessment of damages. If it had been raised in the Court below evidence must have been called to show how the parties had acted upon the agreement contained in the clause. As a matter of fact there were handed to us, against a vigorous protest by Mr. van den Berg, certain documents which showed that the appellants themselves sent in accounts as sellers to the respondents stating the price at which the goods were sold, apparently the current market price, and deducting 10 per cent.; and no objection seems to have been raised by the respondents to this mode of ascertaining the price payable
under the clause. But apart from that, it is too late to take the point now.
The question then is what the agreement means. It goes on: \"The merchants shall pay the manufacturers for all goods supplied by the end of the month following delivery. This agreement to be for three years and afterwards continuous subject to twelve months' notice by either party.\" This is very different from an agreement by which an owner of real property employs an agent to sell an estate once for all upon the terms that if the agent finds a purchaser he shall be paid a commission upon the price and that he is to be the sole agent. That class of cases is well defined. Bentall v. Vicary n(1) before McCardie J. is an example, in which the learned judge held that it was open to the owner of the property to sell it himself and to say to the agent, \"You have not introduced a purchaser, and there is no term in our contract which prevents me from finding a purchaser myself.\" The learned judge is careful to add, and I emphatically agree, that no general rule can be laid down and that the wording of the agreement in each case must be carefully considered. The agreement in the present case is one of a different class, contemplating contractual relations extending over a period of three years or more, dividing the business of manufacture from that of distribution, whereby the one party, the manufacturers, are to make the goods for three years and the other party, the merchants, are to continue selling them for three years and paying the price monthly to the manufacturers. Here the words \"sole selling agents\" have a distinct meaning implying that the manufacturers are to sell to no one but the merchants who pay them the fixed price, and the merchants sell, and they are the only persons to sell, to various builders and contractors. Bentall v. Vicary n(1) therefore has no material bearing upon this case.
But there is a previous decision which has been cited, Snelgrove v. Ellringham Colliery Co. n(2) , a decision of Mathew J., a judge of the greatest experience in commercial matters, where the defendants, manufacturers of fire-clay goods, appointed the
n(1) [1931] 1 K. B. 253.
n(2) 45 J. P. 408.
plaintiff the sole agent for the sale of their goods in London and the district south of York. The plaintiff found one of the partners in the manufacturers' firm selling in his area and complained of this interference. Mathew J. said: \"I am of opinion that this gentleman was to be the agent for the defendants, who, I assume, are ordinary partners, and that they were not entitled to appoint any other agent in his district.\" McCardie J. in Bentall v. Vicary n(1) and Simpson C.J. in Equity in New South Wales in the case of Cant v. Miller n(2) take those words of Mathew J. as meaning that the defendants in Snelgrove v. Ellringham Colliery Co. n(3) could not appoint another agent, not as meaning that they could not be vendors themselves. But, first, the defendants in that case were partners, and one partner in partnership matters can and does act as the firm; the firm acts through the partners as a company acts through its authorized officers: and moreover if those learned judges had read further they would have found these words: \"Nor were they entitled to effect any sales nor transact any business connected with their firm in his district, except by means of his agency.\" I see no justification for treating those words, as McCardie J. has done, merely as an obiter dictum; they are as much part of the decision as are the words which precede them. In my opinion, when the appellants sell these goods they are breaking the contract which they made with the respondents, described as the merchants, that they shall have the sole right to sell. That is the view taken by Wright J., following the opinion of Mathew J. in Snelgrove v. Ellringham Colliery Co. n(3) I agree with it, and the appeal must be dismissed.
JUDGMENTBY-3: GREER L.J
JUDGMENT-3:
GREER L.J: I am of the same opinion. This appeal involves the construction of a document dated April 21, 1927, which on the facts of this case must be treated as the statement in writing of the contract between the parties. It is not quite clear how the contract arose. The document is signed and sealed on behalf of the parties described as \"the
n(1) [1931] 1 K. B. 253.
n(2) 13 N. S. W. S. R. 505, 509.
n(3) 45 J. P. 408.
manufacturers\"; it is not signed by the parties described as \"the merchants.\" But it must be treated as the contract between the parties, either because it was sent forward by the merchants to the manufacturers with a request for their signature, or because it was, after being signed, received by the merchants and acted on by both parties for two and a half years. Now, notwithstanding the terms of this document, the manufacturers are saying, \"We are entitled to cease from supplying you with any bricks or other materials manufactured at our works. We will exercise our discretion from time to time and supply you or not as it suits our business, and we do not recognize your right to be supplied with any of our bricks or other materials.\" In my judgment that is a clear repudiation of the contract. It is somewhat remarkable that, notwithstanding the numerous cases in which the difference between a buyer and an agent has been pointed out, there are still innumerable persons engaged in business who do not understand the simple and logical distinction between a buyer and an agent for sale, but are content to treat the two words as synonymous. However, I can only read this contract as meaning that the manufacturers undertake, as they say in para. 3, to supply goods to the persons whom they call \"selling agents\" in return for the price mentioned in para. 2. Para. 1 is in these words: \"The manufacturers hereby appoint the merchants sole selling agents of all bricks and other materials manufactured at their works.\" Para. 3 reads: \"The merchants shall pay the manufacturers for all goods supplied by the end of the month following delivery\"; and para. 2 is the paragraph which fixes the price to be paid by the merchants to the manufacturers. I can only read that document as an agreement in which the manufacturers are the sellers and those who are called selling agents are to be the buyers over a period of three years of the goods described in para. 1, i.e., \"of all bricks and other materials manufactured at their works.\"
Mr. van den Berg suggested a difficulty with regard to the fixing of the price; but in my judgment it was an apparent rather than a real difficulty, because in para. 2 the sellers are
agreeing that the price to the buyers is, unless otherwise agreed, to be 10 per cent. below the current market price to builders; that is, a price not ascertained at the date of the contract but ascertainable by means provided by the contract; and that which can be made certain is as good as that which is made certain by the words of the contract.
In my opinion therefore it is not necessary to consider how this contract was acted on in practice. If there had been an ambiguity and the intention of the parties had been in question at the trial, I think it might have been held that the parties had placed their own construction upon the contract and, having acted upon a certain view, had thereby agreed to accept it as the true view of its meaning. But the question was not raised, and I agree with Scrutton L.J. that it is not open to the appellants to raise it now in this Court or upon the future assessment of the damages.
With regard to the two authorities cited, they seem to me possibly to be in conflict. Snelgrove v. Ellringham Colliery Co. n(1) , the case before Mathew J., was one of a real agent who paid no price to the principals but was to earn a commission, just as the agent in Bentall v. Vicary n(2) was an agent earning a commission and not a buyer. It may be that the exigencies of business and the surrounding circumstances dictated a construction of the contract in Snelgrove v. Ellringham Colliery Co. n(1) different from that which would ordinarily be placed upon the appointment of an agent for the sale of an estate. Be that as it may, it seems to me that neither of these cases affords us any assistance one way or the other in the present case. Deciding it upon the construction of the contract between these parties I think that this appeal should be dismissed.
JUDGMENTBY-4: SLESSER L.J
JUDGMENT-4:
SLESSER L.J: I am of the same opinion. In my view the whole matter turns upon the proper interpretation of the agreement of April 21, 1927. I agree with my brothers that the agreement is not one of agency at all. That being so, the legal position when a principal agrees that a certain person
n(1) 45 J. P. 408.
n(2) [1931] 1 K. B. 253.
shall be his sole agent does not arise here, and for myself I prefer to express no opinion either on Snelgrove v. Ellringham Colliery Co. n(1) or on Bentall v. Vicary n(2) , because although, as Scrutton L.J. has pointed out, there are some very important observations of Mathew J. in the first case with regard to sole agencies, both cases as I read them deal with the relation of principal and agent and neither of them has to do with purchasers and their vendors. The agreement in the present case is somewhat difficult to understand, because in one and the same document the same parties are described as \"merchants\" and as \"sole selling agents,\" the first being a correct, but the second an incorrect, description. The appellants are under obligation to sell their goods to the merchants, who may resell them to other purchasers, and, in my opinion, so long as the agreement of April 21, 1927, remains in force the appellants have parted with the right to sell their own products themselves. During that period the merchants have been appointed sole sellers, which means sole purchasers from the manufacturers in order that they may have the sole right of selling to third parties.
If that is the correct view of the agreement, the manufacturers have broken it, because without the consent and against the will of the merchants they have sold and are attempting to sell to persons other than the merchants. That being my view of the true construction of this agreement, I think the appeal fails.
DISPOSITION:
Judgment for plaintiffs.
Appeal dismissed.
SOLICITORS:
Solicitors for appellants: Burton, Yeates & Hart, for Charles, Malcolm & Wilson, Worthing.
Solicitors for respondents: A. M. Longhurst & Butler.
n(1) 45 J. P. 408.
n(2) [1931] 1 K B. 253.
G. F. L. B.
W. H. G.
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