SWINFEN EADY J.(reading the judgment)
In this case the plaintiffs are manufacturers of tobacco. There are two defendants-Sterious and Co., who are retail tobacconists at Southend, and James Netten, a wholesale dealer. The plaintiffs submit to have their action dismissed with costs as against Netten; there only remains, therefore, their action against Sterious and Co. The object of the action is to obtain a declaration that these defendants are *358 not entitled to sell any packet tobaccos manufactured by the plaintiffs except at such prices and generally upon terms and conditions of supply as were specified and contained in their invoices, price-lists, and catalogues, and also in labels and notices attached to the boxes in which the tobacco was sold, and an injunction.
The defendants have dealt in the plaintiffs' tobaccos for some time. It is not suggested that they were ignorant of the terms and conditions issued by the plaintiffs. Complaints were made on several occasions of the defendants selling under the minimum price, and since the writ was issued the defendant Netten has agreed not to sell them any more of this tobacco, and the supply from that source has ceased. But the claim made by Taddy and Co. is not confined to tobacco obtained by Sterious and Co. from Netten, but is quite general. The plaintiffs put their case in two ways. First, they contended that the conditions constituted a contract made by Sterious and Co. with Netten as the plaintiffs' agents, and that they are entitled to restrain Sterious and Co. from acting in breach of that contract. Secondly, they contended that the goods were sold subject to certain conditions, and that even if Netten or any one else had purported to sell them free from the conditions, Sterious and Co., having notice of the conditions, could not sell the goods except according to the conditions, and the plaintiffs were entitled to restrain them from doing so.
With regard to this last contention, there is a short answer. Conditions of this kind do not run with goods, and cannot be imposed upon them. Subsequent purchasers, therefore, do not take subject to any conditions which the Court can enforce. If there was a breach of contract, the plaintiffs could no doubt sue. The question remains, therefore, whether there was any contract. There was no direct contract between Sterious and Co. and Taddy and Co., and the question does not arise as to the effect of a sale by Taddy and Co. direct to a retail trader subject to these terms as to minimum retail price. The part of the conditions now in question is: "In the case of a purchase by a retail dealer through a wholesale dealer, the latter shall be *359 deemed to be the agent of Taddy and Co." Now it is quite clear that Taddy and Co. sell to wholesale dealers out and out. The wholesale dealers are not Taddy and Co.'s agents to sell the goods; they buy them out and out, and sell them for their own profit. It was argued that the words in the special condition, "purchase by a retail dealer through a wholesale dealer," can only refer to cases where the wholesale dealers really are the agents of Taddy and Co., and do not apply to cases where the wholesale dealers first bought and then resold. That seems to be the right construction. If, however, the condition ought to be construed as applying to a purchase from as well as through a wholesale dealer-even then, a wholesale dealer selling for his own profit would not be an agent of Taddy and Co. in the ordinary sense of that term. Nor can it be said that the wholesale dealer was selling the goods for his own profit, and at the same time entered into a collateral contract with the purchaser, as to the subsequent dealing with the goods, as the agent of Taddy and Co. No such collateral contract was in fact entered into. In my opinion, when the wholesale dealer sold the goods for his own profit, he was not in any sense whatever the agent of Taddy and Co., and the mere insertion in the condition of the words that he was to be deemed to be an agent could not make him one. Whatever may be the case as between Taddy and Co. and Netten, there is no contract between Taddy and Co. and Sterious and Co
Appeal dismissed