Scottish Court of Session Decisions

The Claddagh Steamship Company, pursuers, brought an action against Thomas C. Steven & Company, shipowners, defenders, concluding for decree of implement by the defenders of their part of an alleged agreement of sale of the s.s. “Claddagh” and failing implement for £40,000 in name of damages.

The pursuers also brought an action against the defenders concluding for decree for £20,000 damages alleged to have been sustained by the pursuers owing to failure by the defenders to implement an agreement of sale of the s.s. “Factor.”

The memorandum of agreement for the sale of the “Claddagh” was as follows:—“Glasgow, November 6th, 1917.— Messrs Claddagh Steamship Company, Limited, have this day sold and Messrs. Thomas C. Steven & Company, Edinburgh, have this day purchased the British Steamship “Claddagh” classed 100 A1 at Lloyds about 640 gross—280 net tons register, now trading between U.K. & North French Ports, with all stores belonging to her on board and on shore, for the sum of £40,000, say forty thousand pounds sterling, payment to be made by cash within seven days from the time of approval of bottom and parts under water in dry-dock. A deposit of 10 per cent to be lodged on account of the purchase money on signing of this contract at the National Bank of Scotland, Glasgow, in the joint names of the Claddagh Steamship Company, Limited, and Thomas C. Steven & Company, to be held by them pending completion of the contract. The sellers shall place the vessel in graving dock at their own risk and expense, and draw tail shaft for examination, and if she be then and there found damaged in the bottom tail shaft, or parts under water, the sellers to make same good to Lloyd's surveyor's satisfaction or cancel this contract, at their option. If the contract be so cancelled the sellers to pay all expenses in connection with the docking. If the bottom, tail shaft, and parts under water are found in order the purchasers shall pay the cost of the docking. On payment of the whole of the purchase money as above agreed, a legal bill of sale, free from incumbrances, shall be executed to the purchasers at their expense, and the ship and all belonging to her as above mentioned shall be delivered to them. The ship with her stores shall be taken with all faults and errors of description, without any allowance or abatement for deficiency, condition, or errors of description in advertisements, circulars, inventories, or otherwise. Should the whole of the purchase money not be paid as aforesaid, the vessel may, notwithstanding negotiations, and without notice, be re-sold by public or private sale, the deposit forfeited to the sellers, and all loss and expense arising from the re-sale, together with interest thereon, at the rate of £5 per cent per annum, shall be paid by the present purchasers, at whose risk and expense the vessel shall be from the time of transfer. If default shall be made by the sellers in the execution of a legal bill of sale, or in delivery of the ship and her stores in the manner and within the time herein specified, the deposit paid shall be released to the purchasers, and unless the default shall have arisen from events over which the sellers have no control, the sellers shall in addition make due compensation for disappointment and loss of time caused by the non-fulfilment of this contract. Brokerage as agreed viz:— two per cent upon the purchase price is due from the sellers to Messrs James Little & Company (Glasgow), Limited, upon the completion of this contract. If any sea damage, ordinary wear and tear excepted, is sustained by the steamer before the time of delivery, the sellers shall at their expense make same good to Lloyd's satisfaction. Should the steamer be lost before the time of transfer this contract shall be null and void and the sellers shall forthwith release the deposit to the purchasers in full.…”

The memorandum of agreement for the sale of the “Factor” was as follows:—“Glasgow, November 6th, 1917.— Messrs Claddagh Steamship Company, Limited, have this day sold and Messrs Thomas C. Steven & Co., Edinburgh, have this day purchased the British steamship” Factor classed 100 A1 Lloyd's about 1178 gross—730 net tons register, and now on a voyage to Bergen ( Norway) and back to a U.K. Port, with all stores belonging to her on board and on shore, for the sum of £60,000, say, sixty thousand pounds sterling; payment to be made by cash within seven days from the time of approval of bottom and parts under water in dry-dock. A deposit of 10 per cent. to be lodged on account of the purchase money on signing of this contract at the National Bank of Scotland, Glasgow, in the joint names of the Claddagh Steamship Coy., Ltd., and Thomas C. Steven & Co., to be held by them pending completion of the contract. The sellers shall place the vessel in graving dock at their own risk and expense, and draw tail shaft for examination, and if she be then and there found damaged in the bottom, tail shaft, or parts under water, the sellers to make same good to Lloyd's Surveyor's satisfaction or cancel this contract at their option. If the contract be so cancelled the sellers to pay all expenses in connection with the docking. If the bottom, tail shaft, and parts under water are found in order, the purchasers shall pay the cost of the docking. On payment of the whole of the

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purchase money as above agreed, a legal bill of sale, free from incumbrances, shall be executed to the purchasers at their expense, and the ship and all belonging to her as above mentioned shall be delivered to them. The ship with her stores shall be taken with all faults and errors of description, without any allowance or abatement for deficiency, condition, or errors of description in advertisements, circulars, inventories, or otherwise. Should the whole of the purchase money not be paid as aforesaid, the vessel may, notwithstanding negotiations and without notice, be re-sold by public or private sale, the deposit forfeited to the sellers, and all loss and expense arising from the re-sale, together with interest thereon, at the rate of £5 per cent. per annum, shall be paid by the present purchasers, at whose risk and expense the vessel shall be from the time of transfer. If default shall be made by the sellers in the execution of a legal bill of sale, or in delivery of the ship and her stores in the manner and within the time herein specified, the deposit paid shall be released to the purchasers, and unless the default shall have arisen from events over which the sellers have no control, the sellers shall in addition make due compensation for disappointment and loss of time caused by the non-fulfilment of this contract. Brokerage as agreed, viz., two per cent. upon the purchase price, is due from the sellers to Messrs James Little & Company (Glasgow), Limited, upon the completion of this contract. If any sea damage, ordinary wear and tear excepted, is sustained by the steamer before the time of delivery, the sellers shall at their expense make same good to Lloyd's satisfaction. Should the steamer be lost before the time of transfer, this contract shall be null and void, and the sellers shall forthwith release the deposit to the purchasers in full. It is understood that the purchasers take over the steamer with her Government requisition, and that in the event of her loss the Government pay upon the basis of ascertained market talue.”

In the memoranda the parts printed in italics were typewritten in the originals, the rest being printed.

The two actions were conjoined.

In both actions the defenders pleaded—“2. The contract for the sale and purchase of the s.s. ‘Claddagh’ and ‘Factor’ being one and indivisible, the pursuers are not entitled to insist in the present action. 7. Separatim—The defenders being entitled in the circumstances condescended on, in answer to the relief provided by the Courts (Emergency Powers) Act 1917, the contract sued on if still binding should be annulled.”

In the action with reference to the “Claddagh” the defenders also pleaded—“4. The pursuers having agreed to sell to the defenders the said vessels on the material condition that the s.s. ‘Claddagh’ would on delivery be free to take up the defenders' trade, and having been unable so to deliver the said vessel to the defenders they are not entitled to decree of implement as condescended for. (5) The defenders' obligation to accept delivery of the s.s. ‘Claddagh’ and to pay for the same being conditional on the said vessel being free of requisition at delivery, the pursuers are not entitled to decree. 6. The subject-matter of the sale being a vessel free of requisition, the defenders are not bound to take delivery of a requisitioned vessel.”

In the action with reference to the “Factor” the defenders also pleaded—“4. The pursuers having undertaken as a condition of the contract for the sale and purchase of the ‘Factor’ and ‘Claddagh’ to deliver the latter free of requisition, and having failed to do so, the defenders are entitled to absolvitor. 5. The defenders' obligation to accept delivery of the s.s. ‘Factor’ and ‘Claddagh,’ and to pay for the same being conditional on the latter vessel being free of requisition at delivery, the pursuers are not entitled to decree. 6. The subject-matter of the sale of the two vessels being one of the vessels free of requisition the defenders are not bound to take delivery of two requisitioned vessels.”

On 4th June 1918 the Lord Ordinary ( Hunter) after a proof pronounced the following interlocutor:—“(1) In the action at the instance of the Claddagh Steamship Company Limited against Thomas C. Steven & Company [with reference to the ‘Claddagh’], assoilzies the defenders from the conclusions of the summons and decerns; (2) in the action at the instance of the pursuers against the defenders [with reference to the ‘Factor’], assoilzies the defenders from the conclusions of the summons and decerns.

Opinion, from which the facts of the case appear—“In these conjoined actions the Claddagh Steamship Company, Limited sue the firm of Thomas C. Steven & Company for damages in respect of the defenders having failed to take delivery of and pay for two steamers conform to two contracts alleged to have been concluded between the parties on 6th November 1917.

The defenders are shipowners in Edinburgh. They have the whole conveyance of benzol and solvent naphtha for the French Government. Until recently they had four steamers of their own and one on time charter engaged on the work. One of their four steamers was lost in April 1917, and the vessel they held on time charter was requisitioned by the British Government in July 1917. They were therefore anxious to purchase or acquire control of another vessel. Accordingly in October 1917 they communicated with James Little & Company, shipbrokers, Glasgow. That firm submitted one or two vessels for the defenders' consideration. One of these vessels was the ‘Claddagh,’ which belongs to the pursuers.

On 20th October 1917 Messrs Little communicated with the pursuers asking if the ‘Claddagh’ was free of requisition, and if they were prepared to name a reasonable price. In reply the pursuers said that the ‘Claddagh’ was free of requisition, and that although they were not anxious to sell they might give consideration to a good substantial offer. Messrs Little informed the

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defenders of the position. About the same time the defenders heard from another firm of brokers in Glasgow as to the sale of the shares in a limited company owning two ships. This company was the pursuers, and the ships were the ‘Claddagh’ and the ‘Factor.’

About 26th October 1917 the defenders through Messrs Little made a definite offer to purchase the ‘Claddagh’ from the pursuers. The pursuers, however, refused to entertain an offer to purchase the ‘Claddagh,’ but intimated their readiness to negotiate for the sale of both the ‘Claddagh’ and ‘Factor.’ Negotiations followed. Terms of purchase were arranged at a meeting in Glasgow between the parties. Those terms are set forth in a letter by the defenders to Messrs Little on 1st November 1917. From that letter it appears that the price of the two vessels was to be £110,000, and that the ‘Claddagh’ was to be released from her present coal charter and delivered free to take up the defenders' trade. The defenders were to approach the authorities in London with a view to getting the sale sanctioned.

At the meeting when the above terms for the sale of the ships were arranged between the parties the defenders had made it clear that what they wanted was a vessel free from requisition and able to take up their trade. They also made it clear that they were only purchasing the ‘Factor,’ which was on requisition, because the pursuers would not sell the ‘Claddagh’ alone. The pursuers agreed to get the latter vessel released from a coal charter under which she was carrying coal to France.

On 3rd November 1917 Mr R. B. Steven of the defenders' firm had a meeting with a Government representative of the Ministry of Shipping, when he ascertained that there was no prospect of the ‘Factor’ being released from requisition, and that the ‘Claddagh’ would not get a licence to come out of the French coal trade. Mr Steven considered that it might of be advantage to his firm if he could get the steamer to carry coals to France for a firm who act as the defenders' agents, and run on alternate voyages with benzol for the French Government. He understood that the Ministry of Shipping agreed to this. As he explained in his evidence the vessel if only licensed to run with cargoes of coal to France was of no use to the defenders for the purpose for which they were purchasing the ‘Claddagh.’ If, however, she could be employed in carrying benzol on intermediate voyages she would be useful, but not to the extent anticipated when the agreement for sale was concluded on 1st November 1917.

On his return from London Mr Steven had an interview with Mr Davis of Messrs Little, when he explained that as the ‘Claddagh’ was to be employed running coal, and there was no prospect of the ‘Factor’ coming off requisition, the proposition was not worth £110,000. Messrs Little suggested that £100,000 might be offered for the proposition as it then stood. The defenders agreed to this. The offer was made to and accepted by the pursuers, to whom the firm of Messrs Little wrote on the 6th November 1917 enclosing two memoranda of agreement of sale for the two vessels. The pursuers seem to have signed these documents on the 6th and the defenders some two days later.

Mr Steven asked Mr Davis of Messrs Little why there were two and not only one document, and was informed that owing to the different dates of delivery and to the fact that the ‘Factor’ was a requisitioned ship it was advisable that there should be two documents. The prices of £40,000 and £60,000 for the ‘Claddagh’ and ‘Factor’ respectively were put in without any communication with the pursuers.

In the agreement as to the ‘Factor’ there is a typed condition along the side of the document in these terms—‘It is understood that the purchasers take over the steamer with her Government requisition.’ In the agreement as to the ‘Claddagh’ there is no such condition.

On 9th November 1917 the Ministry of Shipping sent a telegram to the pursuers' London office that the ‘Claddagh’ was required for Government service on completion of the discharge of her present cargo.

On 10th November Mr R. B. Steven deposited £10,000 with the National Bank of Scotland at Glasgow in his firm's name. He explained to Mr Robertson of the pursuers' company that he had not put the money in joint names because he had not received the Government licence. Mr Robertson made no reference to the requisition by the Government of the ship. On 16th November the defenders learned for the first time that the ‘Claddagh’ had been requisitioned. They at once communicated with Messrs Little that in the circumstances they were not bound to purchase the vessels. Subsequently they uplifted the deposit money. The pursuers maintained that they were bound, and have brought these two actions to recover damages.

According to the pursuers' contention the agreements of sale evidence in writing two separate and distinct contracts to purchase the two ships, and as nothing is said in the documents about risk of requisition of the ‘Claddagh,’ it is incompetent for the defenders to establish by parole evidence that parties intended that she should be free of requisition at the date of delivery. They found upon a rule of law which is authoritatively recognised by the House of Lords in Inglis v. Buttery, 1878, 3 A.C. 552, 5 R. (H.L.) 87, 15 S.L.R. 462. At p. 577 of the report Lord Blackburn quotes with approval a passage from Lord Gifford that where parties have embodied ‘their contract in a formal written deed, then in determining what the contract really was and really meant a court must look to the formal deed and to that deed alone.’ His Lordship, however, goes on to explain that quite consistently with that rule you may look at the ‘surrounding circumstances’ and see what is the intention expressed in the words used as they were with regard to the particular circumstances and facts with regard to which they were used.

I do not think that the rule of law which excludes parole evidence to qualify a written contract precludes a party from showing

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that two separate documents drawn up and signed at the same time are in effect two parts of the same contract—or to put this in a different way, that there is such an interdependence of the two contracts that fulfilment of the one cannot be insisted on where the party seeking to enforce the one contract is, it may be by no fault of his own, unable to make implement of the other. It appears to be recognised in English law that parole proof is admissible to prove such an interdependence of two contracts that they fall to be treated as one (see Holliday v. Lockwood, [1917] 2 Ch. 47, and the authorities referred to in the opinion of Mr Justice Astbury). In the present case the defenders only made an offer to purchase the ‘Factor,’ because they were unable otherwise to purchase the ‘Claddagh.’ This was known to the pursuers, and it appears to me in the circumstances as disclosed in the evidence that it is impossible for them now to claim damages against the defenders because the latter failed to take delivery of the ‘Factor if they themselves are unable to implement the contract so far as the ‘Claddagh’ is concerned. The two contracts fall to be treated as one.

The real question in the case is whether the pursuers could call upon the defenders to take delivery of the ‘Claddagh’ although she was not free from requisition at the date of delivery. Mr Davis, the partner of the brokers who acted for both parties, says that in preparing the memorandum of agreement of this vessel he intended by omiting the clause as to requisition in the agreement about the ‘Factor’ to give effect to what he knew had been agreed upon by both parties. The pursuers led no evidence, but relied entirely upon what they maintained was the law governing the contract. Looking to some of the letters which the pursuers sent to their French clients, who had a charter of the vessel which they had undertaken to get cancelled, I am not surprised at their adopting this course. It is difficult to suppose that the letter dated 13th November 1917 from the pursuers was written in the belief that they had effected a binding contract of sale with the defenders.

I do not think that the parole evidence that the ‘Claddagh’ was bought subject to her being free from requisition at the date of delivery contradicts the written agreement of sale. It explains but does not contradict the document. In terms of the contract the risk of the vessel being lost was with the sellers until delivery. Nothing is said in the agreement as to the sellers releasing the s.s. ‘Claddagh’ from the coal charter under which she was running. Messrs Little by letter to the pursuers dated 6th November make it clear that the sellers are to undertake this obligation. They refer to this as ‘already agreed,’ the allusion being to what was agreed on 1st November. The pursuers confirm this understanding. The object of this condition was to allow the ship to be free to undertake the defenders' work on their getting delivery. The subject of the contract as appears from writings passing between the parties with reference to the written agreement was to be a ship free in that sense at the date of delivery. Requisition by the Government altered the character of the subject about which the parties were contracting. The vessel was no longer a subject that at date of delivery could be employed in the defenders' trade, and the defenders were entitled in my opinion to maintain that the agreement was not binding upon them.”

The pursuers reclaimed, and argued—The Lord Ordinary was wrong in both actions and his interlocutors should be recalled. If the requisition did not prevent the pursuers from fulfilling their contract with regard to the “Claddagh,” then they were entitled to succeed in both actions, for the sole defence in the action relative to the “Factor” was that the sale of that ship was conditional upon due implement of the sale of the “Claddagh,” i.e., that the contract for both ships was one, or if there were two contracts they were so interdependent that both must be fulfilled or both were voided. But further, if the pursuers were wrong as to the “Claddagh” the sale of the “Factor” was an independent contract, implement of which was not conditional in any way upon implement of the contract with reference to the “Claddagh.” As regards the “Claddagh” there was nothing in the terms of the contract to show that it was not fully implemented by delivery of the ship subject to requisition. The parties were both contracting in the knowlege that the “Claddagh” might be requisitioned at any time, but their contract contained no clause that the ship was to be free of requisition. Without such a clause the risk of requisition was upon the buyers after the contract was made. The requisition merely prevented the transfer of actual corporal possession, but the contract of sale was fully implemented by transfer of the property in the ship. Property in the ship was transferred by the execution and delivery of the bill of sale—Merchant Shipping Act 1894 (57 and 58 Vict. cap. 60), sec. 24. At the date of sale the “Claddagh” was free from requisition and the pursuers were ready and willing to fulfil their contract. A requisition did not necessarily dissolve a contract of sale, and damages for breach of contract could not be obtained—Courts (Emergency Powers) Act 1917 (7 and 8 Geo. V, cap. 25), sec. 3; F. A. Tamplin Steamship Company, Limited v. Anglo-Mexican Petroleum Products Company, Limited, [1916] 2 A.C. 397, 54 S.L.R. 433. The contract was held still to be in force in spite of a requisition. The fact of requisition was not incompatible with delivery; for the “Factor” contract, which related to a ship under requisition, spoke of delivery, and the “Claddagh” contract used the same words. Accordingly the requisition did not prevent the pursuers from implementing any part of their contract. There was no interdependence between the two contracts. To hold that the contracts were interdependent would be to read into the “Factor contract a clause to the effect that if the “Claddagh” was not available the “Factor” contract was to fly off. There was no proper averment of such

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a contract and no plea to raise the point. Further, there was no proof of such a contract, and in any event such a term could not be added to a written contract by parole evidence— Inglis v. Buttery, 1878, 3 A.C. 552, 5 R. (H.L.) 87, 15 S.L.R. 462. In any event the facts did not support the defenders. In nature and in subject-matter the two contracts were distinct; the ships were unconnected except for the fact that the pursuers owned them both; one was requisitioned, the other was not. The “Factor” was sailing, the “Claddagh” was returning to port. The prices were different; no doubt the pursuers without consideration accepted the apportionment of prices suggested by the defenders, but the pursuers were only interested in the total of the prices and not in the apportionment of the total. The truth was that the pursuers, who were going out of business, wished to sell both ships. That was all they had in mind; they were in different as to whether the ships were bought by one purchaser or two, and when the purchaser happened to be one they were equally indifferent as to the purpose of the purchaser though they were aware of it. There was nothing whatever to show that the pursuers undertook in selling to secure that the defenders would have one free ship for their benzol trade. There was no question of frustration of a joint-adventure; the sale was on the footing that the pursuers had no concern with the motives actuating the defenders in buying; if so the pursuers were entitled to succeed— Chandler v. Webster, [1904] 1 KB 493, per Collins, M.R., at p. 499; Blackburn Bobbin Company v. T. W. Allen & Sons, [1918] 2 K.B. 467, per Pickford, L.J., at p. 469, and [1918] 1 K.B. 540, per M'Cardie, J. Complexity or interdependence meant interdependence in subject-matter, e.g., farm and shooting— Holliday v. Lockwood, [1917] 2 Ch. 47, per Astbury, J., at pp. 53, 56, and 57; Dykes v. Blake, 1838, 4 Bingham, N.C., 463, at p. 467. Jamieson v. Welsh, 1900, 3 F. 176, 38 S.L.R. 96, did not support the proposition that two contracts were to be regarded as interdependent merely because the buyer disclosed to the seller a motive in purchasing which showed that the proposed uses of the subject sold were interdependent. Jacobs v. Scott & Company, 1899, 2 F. (H.L.) 70, 36 S.L.R. 611, was distinguishable, as it was upon a different section of the Sale of Goods Act 1893 (56 and 57 Vict. cap. 71). In those circumstances the only defence in the “Factor” action was unsound and the pursuers were at least entitled to succeed in that action.

Argued for the defenders (respondents)—As regards the “Claddagh” contract, the risk of requisition was upon the pursuers until there was actual physical delivery of that ship. The passing of property in a res vendita depended upon the intention of the parties, which was to be gathered from the terms of the contract, the conduct of the parties, and the circumstances of the case. At the date of the contract the “Claddagh” was on private charter to a French merchant. The defenders, however, had a French Government coal contract upon which the “Claddagh” was to be employed. Therefore once the vessel was in the defenders' hands they were in a better position than the pursuers to escape requisition, or if a requisition was laid on to negotiate for its removal. Hence it was to be inferred that until the property passed to them the pursuers should bear the risk of requisition. Prior thereto the pursuers controlled the ship, and their actings with her might, and did in this case, lead to a requisition. Further, if it had been intended that the defenders were to take the risk of requisition before delivery it would have been essential for them to receive all information as to the requisition at once so as to put them in a position to get the vessel freed. Further, the terms of the contract showed that the property in the ship, and therefore the risk of requisition, was not to pass until there was actual corporeal delivery of her. That implied that the risk was with the pursuers till the time of transfer, i.e., the passing of the bill of sale and actual physical delivery. No doubt “delivery” was used in the “Factor” contract to mean delivery subject to requisition, but it was used in the “Claddagh” contract in its ordinary sense, for the parties were dealing with a ship capable of actual physical delivery. Further, payment of the price was to be made after the approval of the underwater parts, and the requisition was laid on before that. The pursuer had not proved that they ever tendered actual physical delivery of the ship. Further, the pursuers were under obligation to warrant that the defenders should have quiet possession of the res vendita, and that it should be free of incumbrances—Sale of Goods Act, section 12 (2) and (3). At the date of transfer they could not implement either of those obligations. Further, the pursuers had failed to free the ship from her French coal charter, which they had undertaken to do. The vessel was not in a deliverable state until after the requisition was laid on, for it had not been approved after inspection—Sale of Goods Act, section 62 (4). Further, payment and delivery were concurrent terms—section 28—and the pursuer could not have demanded payment because they could not tender the bill of sale and actual delivery. The requisition was laid on when the discharge of the cargo was completed. It was under the Defence of the Realm Proclamation, No. 39 B B B, and Royal Proclamation of 3rd August 1914. As the result of a requisition the shipping controller took the actual ship but not the personnel— China Mutual Steam Navigation Company v. MacLay, [1918] 1 K.B. 33. The requisition excluded delivery and quiet possession, and the result was that both parties were released from the contract— Blackburn Bobbin Company v. T. W. Allen & Sons ( cit.), per M'Cardie, J.;

In re Shipton, Anderson, & Company and Harrison Brothers & Company, [1915] 3 K.B. 676, per Lord Reading, C.J., at 681; Nickoll & Knight v. Ashton, Edridge, & Company, [1901] 2 KB 126; Baily v. De Crespigny, 1869, L.R., 4 Q.B. 180; Taylor v. Caldwell, 1863, 3 B. & S. 826. [ Lord Skerrington referred to Clark v. Glasgow

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Assurance Company, 1854, 1 Macq. 668, per Lord Cranworth, L.C., at p. 677]. The effect of a requisition upon charterers' rights was shown and illustrated in Modern Transport Company, Limited v. Duneric s.s. Company, [1917] 1 K.B. 370, and the Tamplin case cit. If the defenders were right with reference to the “Claddagh,” they were entitled to refuse to take delivery of the “Factor.” Although embodied in two documents, the sale of the two ships was one transaction, or at least if there were two contracts the two contracts were mutually interdependent, and both or neither must be implemented. The defenders made it clear that they were willing to buy the requisitioned “Factor” only because without taking her they could not get the unrequisitioned “Claddagh.” The price was for both ships, and there was no negotiation of the apportionment upon each ship; if the question had arisen before the written documents were executed it would have been clear that there was only one transaction. The documents made no difference. The buyers' object in purchasing had been disclosed to the seller, and was accepted as a condition by both parties. The interdependence of contracts was to be implied from the whole circumstances of the case, and if there was interdependence, and one contract was not implemented, the other could not be enforced— Casamajor v. Strode, 1833, 2 My. & K. 706, per Lord Brougham at pp. 722 and 724. The law of Scotland was to the same effect— Hamilton v. Hart, 1830, 8 S. 596; Allan v. Gilchrist, 1875, 2 R. 587, at p. 594, et seq., 12 S.L.R. 380; Jamieson v. Welsh ( cit.), per Lord M'Laren at p. 181. Parole evidence was competent; the documents in question whether setting out one contract or two were mercantile documents drawn in a particular form by a broker. They did not set out the whole or the real bargain, and did not exhaust its terms. That was admitted on record. In such circumstances it was competent to prove by parole what the real bargain was— Jacobs v. Scott & Company ( cit.), per Lord Watson at p. 78.

At advising—