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TMI Blog1915 (4) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... ehalf, to obtain from the customer a written undertaking that he similarly would observe the terms so undertaken to be observed by themselves. This contract was embodied in a letter dated October 12, 1911. On January 2 the respondents contracted with Messrs. Dew, in terms of a letter of that date addressed to them, that, in consideration of the latter allowing them discounts on goods of the appellants' manufacture which the respondents might purchase from Messrs. Dew, less, in point of fact, than the discount received by the latter from the appellants, the respondents, among other things, would not sell the appellants' goods to private customers at prices below those in the appellants' current list, and that they would pay to the appellants a penalty for every article sold in breach of this stipulation. The learned judge who tried the case has held that the respondents sold goods of the appellants' manufacture supplied through Messrs. Dew at less than the stipulated prices, and the question is whether, assuming his finding to be correct, the appellants, who were not in terms parties to the contract contained in the letter of January 2, can sue them. My Lord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reover, even if this difficulty can be got over by regarding the appellants as the principals of Messrs. Dew in stipulating for the rights in question, the only consideration disclosed by the contract is one given by Messrs. Dew, not as their agents, but as principals acting on their own account. The conclusion to which I have come on the point as to consideration renders it unnecessary to decide the further question as to whether the appellants can claim that a bargain was made in this contract by Messrs. Dew as their agents; a bargain which, apart from the point as to consideration, they could therefore enforce. If it were necessary to express an opinion on this further question, a difficulty as to the position of Messrs. Dew would have to be considered. Two contracts - one by a man on his own account as principal, and another by the same man as agent - may be validly comprised in the same piece of paper. But they must be two contracts, and not one as here. I do not think that a man can treat one and the same contract as made by him in two capacities. He cannot be regarded as contracting for himself and for another uno flatu. My Lords, the form of the contract which we have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al to an agreement for sale; but that agreement for sale is an agreement entirely between Dew and Selfridge. The tyres, the property in which upon the bargain is transferred to Selfridge, were the property of Dew, not of Dunlop, for Dew under his agreement with Dunlop held these tyres as proprietor, and not as agent. What then did Dunlop do, or forbear to do, in a question with Selfridge? The answer must be, nothing. He did not do anything, for Dew, having the right of property in the tyres, could give a good title to any one he liked, subject, it might be, to an action of damages at the instance of Dunlop for breach of contract, which action, however, could never create a vitium reale in the property of the tyres. He did not forbear in anything, for he had no action against Dew which he gave up, because Dew had fulfilled his contract with Dunlop in obtaining, on the occasion of the sale, a contract from Selfridge in the terms prescribed. To my mind, this ends the case. That there are methods of framing a contract which will cause persons in the position of Selfridge to become bound, I do not doubt. But that has not been done in this instance; and as Dunlop's advisers must h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otor trade (other than co-operative societies) a discount not exceeding 10 per cent. off such list prices, plus the authorized scale of rebates on the net values of the purchases of the aforesaid goods, and further, that in case of any sale of any of the said goods to any such traders as aforesaid, Dew Co. should, as the appellants' agents, obtain from each trader a written undertaking that he would similarly observe the list prices, terms, and conditions of sale on any resales made by him, whether to private customers or other traders, would forward these undertakings to the appellants on demand, and would not allow such trade discounts to any of the persons aforesaid without previously obtaining such a written undertaking; and, second, a condition that Dew Co. should pay 5l. for every tyre, cover, or tube sold or offered for sale in breach of the conditions of the contract. Now this agreement was an agreement for the sale and purchase of the appellants' goods, with certain contractional restrictions on the purchaser's right of resale. Dew Co., unless restrained by injunction, could sell the goods they had purchased from the appellants to any sub-vendee on any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Humble v. Hunter (1848) 12 QB 310 , and that consistently with the terms of the letter itself the appellants cannot claim to be principals on whose behalf Dew Co. contracted as their agents. Kennedy L.J. has pointed out in his judgment the different stipulations in the contract which are irreconcilable with the supposition that Dew Co. did not contract as principals. But however this may be, it is, I think, clear that no consideration moved from the appellants to support any contract made with them and the respondents, and I prefer to base my judgment on that ground. I think, therefore, that the judgment appealed from was right, and this appeal should be dismissed with costs here and below. LORD PARKER OF WADDINGTON. Read by Lord Sumner My Lords, even assuming that the undertaking upon which this action is founded was given by the respondents to Messrs. A. J. Dew Co. as agents for the appellants, and was intended to enure for their benefit, the appeal cannot succeed unless the undertaking was founded on a consideration moving from the appellants, and in my opinion there was no such consideration. The appellants did not give or give up anything on the strength of the und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this contract Messrs. Dew Co. became bound, inter alia, to buy from the Dunlop Company motor tyres, covers, tubes, and sundries to the net value of 2000l. before the expiration of September, 1912, and the appellants became bound, if the contract continued to subsist, as it did, to sell and deliver such goods up to that value, whenever reasonably required to do so. On December 21, 1911, a Captain Jameson thought fit to ask the respondents, Messrs. Selfridge Co., Limited, who are described as wholesale and retail merchants, for their lowest price for a Dunlop motor tyre, grooved and non-skid, 815 by 105. Their answer was that, on receipt of his order, such a tyre would be procured and the price would be 5l. 18s. 2d., which was the appellants' list price, less 7 per cent. On January 1, 1912, Captain Jameson sent to the respondents an order for the tyre, and also the money for it, and on the same day the order was accepted, and delivery of the tyre was promised for the following day. In fact, on January 2 the respondents ordered this tyre from Messrs. Dew Co. by telephone. Messrs. Dew Co., in turn, ordered it by telephone from the appellants; it was delivered by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctly performed the conditions of their agreement with the appellants. The firm of Selfridge Co. was the trader within that agreement, and Messrs. Dew Co. duly obtained that firm's written undertaking to the intent therein described. The undertaking was in the appellants' own form, and Messrs. Dew Co. did not contract even by implication that the undertaking which they would obtain should be binding. The respondents signed what they were asked to sign, but nothing precluded them from saying afterwards that it was nudum pactum. At first they thought and said that they were bound, but this did not alter their position or the appellants', or supply a consideration where none existed before. They made no request for the tyre to the appellants, for they did not know that Messrs. Dew Co. had not got it in stock, or, if they knew, they did not constitute Messrs. Dew Co. their agents to ask the appellants for it. Messrs. Dew Co. asked for it by virtue of their agreement to buy up to 2000l. worth of goods, and so it was that the appellants delivered it. Messrs. Dew Co. did not mention to the appellants that so far no written undertaking had been signed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s competent for the appellants to bring an action to enforce certain conditions in a contract made between the respondents and Messrs. A. J. Dew Co. The appellants are manufacturers and Messrs. A. J. Dew Co. are factors and dealers in motor tyres, covers, or tubes. It is the object of the appellants to enforce and maintain certain general conditions and prices in the sale of their motor tyres, covers, or tubes, and it may be assumed that it is important for their business to attain this object. The appellants are not in form parties to the contract which they seek to enforce. They claim to be undisclosed principals. If they can prove this, they get over the first difficulty. Unless the appellants can prove that they are undisclosed principals, they fail at the outset, since the stipulations which they seek to enforce are not of such a character that a person, not a party to the contract, has a right to bring an action to enforce them. There is no question that parol evidence is admissible to prove that the plaintiff in an action is the real principal to a contract; but it is also well established law that a person cannot claim to be a principal to a contract, if this woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce from the appellants, had a full right, as factors or dealers in the appellants' goods, to sell them to the respondents. It may well be that the appellants under their contract with Messrs. A. J. Dew Co. have the power to prevent the supply of the appellants' goods to any person whose supplies the appellants request Messrs. A. J. Dew Co. to suspend, but this is a wholly different proposition from a claim to be entitled to bring an action against the purchasers of goods sold by Messrs. A. J. Dew Co. in the course of their business. If Messrs. A. J. Dew Co. had full power to sell the goods in question to the respondents, as factors or dealers, it is, I think, clear that the appellants were not in a position to give, and did not give, any consideration which could support a contract between themselves and the respondents, and that the action fails. I abstain from discussing what remedy Messrs. A. J. Dew Co. might have on their contract with the respondents, or whether the appellants might not have attained their object in some other way; it is sufficient to say that the appellants cannot succeed in their present action and that the appeal fails. Order of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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