HARVEY v FACEY [1893] AC 552 - PC

PRIVY COUNCIL

HARVEY v FACEY [1893] AC 552

LORD MORRIS:

… The appellants are solicitors carrying on business in partnership at Kingston, and it appears that in the beginning of October, 1891, negotiations took place between the respondent L M Facey and the Mayor and Council of Kingston for the sale of the property in question …

[O]n the 7th of October, 1891, L M Facey was travelling in the train from Kingston to Porus, and that the appellants caused a telegram to be sent after him from Kingston addressed to him ‘on the train for Porus,’ in the following words: ‘Will you sell us Bumper Hall Pen? Telegraph lowest cash price - answer paid;’ that on the same day L M Facey replied by telegram to the appellants in the following words: ‘Lowest price for Bumper Hall Pen £900’; that on the same day the appellants replied to the last-mentioned telegram by a telegram addressed to L M Facey ‘on train at Porus’ in the words following: ‘We agree to buy Bumper Hall Pen for the sum of nine hundred pounds asked by you. Please send us your title deed in order that we may get early possession.’

… The first telegram asks two questions. The first question is as to the willingness of L M Facey to sell to the appellants; the second question asks the lowest price … L M Facey replied to the second question only, and gives his lowest price. The third telegram from the appellants treats the answer of L M Facey stating his lowest price as an unconditional offer to sell to them at the price named. Their Lordships cannot treat the telegram from L M Facey as binding him in any respect, except to the extent it does by its terms, viz, the lowest price. Everything else is left open, and the reply telegram from the appellants cannot be treated as an acceptance of an offer to sell to them; it is an offer that required to be accepted by L M Facey. The contract could only be completed if L M Facey had accepted the appellant’s last telegram.

It has been contended for the appellants that L M Facey’s telegram should be read as saying ‘yes’ to the first question put in the appellants’ telegram, but there is nothing to support that contention. L M Facey’s telegram gives a precise answer to a precise question, viz, the price. The contract must appear by the telegrams, whereas the appellants are obliged to contend that an acceptance of the first question is to be implied. Their Lordships are of opinion that the mere statement of the lowest price at which the vendor would sell contains no implied contract to sell at that price to the persons making the inquiry …