2 Hurl. & C. 906, 159 Eng. Rep. 375 (Ex. 1864)
The plaintiff and the defendants entered into an agreement at Liverpool.1 Under this agreement, the plaintiff agreed to sell to the defendants, and the defendants agreed to buy from the plaintiff, 125 bales of Surat cotton guaranteed middling fair merchant's Dhollorah, to arrive ex "Peerless" from Bombay.2 The cotton was to be taken from the quay.3 The defendants agreed to pay the plaintiff for the cotton at the rate of 17 d. per pound within a certain time agreed upon after the arrival of the goods in England.4
The goods arrived by the ship from Bombay at Liverpool.5 The plaintiff was ready, willing, and offered to deliver the goods to the defendants.6 However, the defendants refused to accept the goods or pay for them.7
The defendants filed a plea stating that they meant the ship called the "Peerless" which sailed from Bombay in October.8 The plaintiff offered cotton from a different ship also called the "Peerless" which sailed in December.9 The matter came before the Court of Exchequer on demurrer to this plea.10 Milward argued in support of the demurrer.11 Mellish argued in support of the plea.12
Whether the defendants' plea that they meant the October Peerless and that the plaintiff offered cotton from the December Peerless constitutes a good answer to the declaration?13
Where a contract contains a latent ambiguity as to the identity of the subject matter and the parties intend different things, there is no consensus ad idem and thus no binding contract.14
Yes. The defendants intended the October Peerless while the plaintiff tendered cotton from the December Peerless.15 The contract language created a latent ambiguity once it appeared that two ships shared the name Peerless.16 Parol evidence showed the parties meant different vessels, resulting in the absence of any meeting of the minds.17
The defendants' plea is a good answer to the declaration.18