So, where the parties were in places far apart and all the niyleiene v necessarily conducted by cable :

So, where the parties were in places far apart and all the niyleiene v necessarily conducted by cable : - [1907] HCA 38 - HCA 1907 case summary — Zoe

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H.C.or A. "Q, Did you know Captain Miles? A. Yes. saad "Q. Had he any business relations with you? A. He tried to Howarn have, but he did not have any before that. sien Co. «Q. What did you know himas? A. Iknew himasa roam é ea ee from Tasmania. He told me he was. "Q. What did he tell you at Manila? A. He came to Shanghai, and told me he was one of the wealthiest men in - Tasmania. "Q. Did you know him as a shipbroker, that is what I mean? "A. He told me he was travelling around with a certain number of ships for sale. He said he had them for the owners, and he was doing it for a pastime." There was no more evidence on the subject, and it is difficult to draw any definite conclusion from that which I have read. The Peregrine, the subject of the alleged contract, was a - steamship then employed in the passenger and goods trade on the Australian coast. ¢ The first cablegram, which was sent by Moller to Miles on 22nd November, was as follows: "Telegraph whether you can purchase two steamers not less than seventeen knots 2000 tons dead weight delivery Hongkong as soon as possible." Miles replied on the same day in these words: " Mararoa Peregrine Mowra." On 23rd November Moller wired as follows ; " Mararoa Peregrine Moura if you guarantee 17 knots we can buy : tele- graph lowest possible price delivery Sydney also Singapore: what deposit is required : telegraph immediately : there is every prospect of business." On the following day, 24th November, Miles replied: " Peregrine £28,000 Sydney : Mararoa £45,000 New Zealand: Singapore will be extra £2,000 : Highest speed 17 . knots 10 pc. deposit." On the same day, apparently in reply to : this message, Moller wired as follows: "Peregrine Mararoa: Telegraph the lowest firm offer Singapore delivery minus 5 p..: If vessels not suitable £2,000 stg. each will be paid to pay expenses: Deposit arranged: When will you be ready for delivery : How many hours can steamer maintain seventeen : Also, name speed for ordinary fast voyage: Name lowest price." On 25th November Miles replied : - " Has been given the lowest price and no reduction can be made: Cannot give the option of pur

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reasoning by which it is supported. Having regard to the plead- ings the plaintiffs cannot succeed without proving a contract in writing. The contract, if any there is, must, therefore, be made out from the cablegrams which passed between Miles and Moller. From those cables it is necessary to establish : first, that the parties were ad idem, that they arrived at a concluded contract; secondly, that the contract was made between Miles, acting as the plaintifis' agent, and Moller, acting as the defendant's agent. The Court is entitled, in reading the cables, to any assistance which evidence of the subject matter and surrounding circumstances may afford. But the facts and cireumstances of which there is evidence do not afford much assistance. The cables themselves are, as is to be expected in that species of communication, in some instances obseure and confused. However, a Court must do the best it can to arrive at the meaning of the communications by which the parties have chosen to negotiate their contract. To my mind it is quite clear that on the Ist December 1904 there was no con- cluded agreement. I was at first disposed to think that the parties were in agreement on the 3rd December 1904. But further consideration of the cables of that and subsequent dates satisfies me that there was one matter at least as to which the parties were never ad idem, that is, which party was to bear the responsibility of any difference between the condition of the Pere- grine as she arrived at Singapore and as she was passed for delivery in Sydney. Proposals and counter proposals were made, but that question was never settled by the cables. Indeed, the evidence appears to show that it was because of the difficulty of coming to any agreement on that matter that Moller and Varawa came on to Sydney. I am also of opinion that there was no evi- dence in the cables or letters to show that Miles contracted or purported to contract as the plaintiffs' agent. The cables not admitted in evidence furnish strong evidence that he was not acting as their agent. Leaving those out of consideration and taking only the cables and letters in evidence, a strong light is thrown on Miles's position by the cables which were passing between him and the plaintiffs at the time he was negotiating the alleged contract with Moller. The latter set of cables appears to be entirely inconsistent with the position that he made the

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otherwise ask, ten per cent. for outside commissions, and 24 cent for Moller & Co. So that Miles was not to receive net price he nominally asked but only that sum less 124 per cent. of - the net price. : Moller of course knew Miles had to get the ships from others; that is why "purchase" was used; and so on the basis of this knowledge and of the telegraphic arrangements already adverted - to, two sets of cable negotiations took place. The first was" between Miles and Moller, and the second between Miles and the plaintiffs. a These sets of negotiations were perfectly distinct and separate ; and as might be expected from a person in Miles's position, buyer in one aspect and a seller in the other, they are often 4 irreconcilable and apparently contradictory. : In the cables between Miles and Moller there is to be foul in Ex. 10 (Sth December) and afterwards some mention of the owners, not however expressly as contractors with Moller, but only as persons whose objection to a desired course was an insuperable obstacle to Miles agreeing to it, or whose insistence - on a guarantee was a condition to the delivery of the ship to the purchaser. If those references stood alone and were capable of no other construction they might greatly assist the plaintiffs i this branch of the case, but they are altogether counterbalanced Z by the other written evidence. The opening cables of the Miles- Moller negotiations are decisive that Miles at all events did not enter upon his work as owner's agent, and was not intended to. - He was first of all asked if he could purchase two steamers which is quite inconsistent with the plaintiffs' theory to start with; then this is followed by a cable to which I have already referred to and which should be quoted verbatim. It was part o the negotiations between Miles and Moller and clearly admissil Tt runs thus: " Add ten per cent. for outside commissions besides our two half cannot be helped keep confidential." Apart from the moral aspect of the scheme, upon which Mo and Miles were embarking, it is clear that this telegram is destructive of the suggestion that Miles was professedly ba ing for Howard Smith & Co. That would suppose that Ho Smith & Co. were to add the 12} per cent. commission, that

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were to receive their price plus the padding, and were to delude the purchaser by giving a receipt to him for the whole gross sum as if for purchase money only, and then hand over the 124 per cent. to the purchaser's agents for distribution to the intended recipients of the commission. This is a material circumstance when the question of ratification is considered. In succeeding telegrams expressions are used which taken literally point to Miles as the vendor to Moller, no mention being made to the owners till 8th December. Reference is also several times made to the Mararoa as well as the Peregrine in the same telegrams, and it fits in better with the view that Miles dealt with Moller in respect of both, than that he was acting in one line of a cable as agent for the owners of the Mararoa and in the next as agent for Howard Smith & Co. as owners of the Peregrine. On the whole I feel no doubt on the construction of this first set of telegrams that Miles professed and purported to act for himself and not for Howard Smith & Co. He, of course, depended for his ability to do this on his success with the second set of negotia- tions, namely with the plaintiffs, to which I shall now refer. I may state in limine that nowhere in these negotiations is there a direction or arrangement to sell for £28,000. The price asked is £26,000. On 23rd November he tells the plaintiffs that he is offered £25,000 for the Peregrine if he will guarantee 17 knots, and is informed in reply that plaintiffs will accept £27,500, and they add significantly "must have a guarantee from a responsible party." In other words, in response to his virtual question how much less than £25,000 they can take, they tell him they want more, and in addition cannot accept merely his responsibility. On 7th December plaintiffs cable that they will accept £26,000 nett free of commission, cash on delivery. Next day Miles cables the plaintiffs that on certain conditions the " National Bank will pay £28,000, £26,000 purchase money, £2,000 commission and brokerage, which they will receive. Fully expect £100 from you to pay expenses" &c, The plaintiffs reply the same day is " If you accept delivery" &e. Now the telegram sent by Miles does not say the £28,000 is to be paid to Howard Smith & Co., nor could they with any honesty receive it. They were plainly told the bank was to pay £28,000 evidently to Miles in the first place, and

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Judgment (100 paragraphs)

Parties