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Atlas Express V. Kafco Notes

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ATLAS EXPRESS V. KAFCO FACTS By their statement of claim the plaintiffs, Atlas Express Ltd., claim against the defendants, Kafco (Importers & Distributors) Ltd.,
PS17,031.83, plus interest, as outstanding payments due to them under a number of invoices submitted to the defendants. The plaintiffs are well-known carriers of goods by road in the United Kingdom. They offer a parcels delivery service. The defendant company imports basketware from abroad and supplies it to retailers in the United Kingdom... On 24 June 1986 the plaintiffs entered into a general trading agreement with the defendants whereby the plaintiffs agreed to deliver cartons of the defendants' basketware at a rate per carton depending on the number of cartons in the load. By October 1986 the defendants had entered into an agreement to supply their basketware to F. W. Woolworth Plc.'s shops in the United Kingdom. The rate agreed was expressed as being PS1.10 per carton. When Mr. Hope saw the load from the defendants, he said he was surprised to see how large the cartons were and how many large cartons were included in the load. He said they were far larger than the parties had contemplated, and because of this there were fewer of them - only 200 instead of the 400 he had anticipated. However, Mr. Hope was convinced that it would not be financially viable to carry such a load at the rate agreed. He contacted Mr. Armiger about it, in an attempt to re-negotiate the rate. I find that the two of them met to discuss it, and that Mr. Hope made it plain to Mr. Armiger that the plaintiffs would not carry any more goods under the Woolworth agreement unless the defendants agreed to pay at least a minimum rate of PS440 per trailer load. I find that if the defendants had refused, the plaintiffs would not have made any further deliveries. Woolworth Contract: The defendants were a small company and their three directors were personally committed to its success. They had secured a large order from Woolworth and had obtained a large quantity of goods in order to fulfil it. It was essential to the defendants' success and to their commercial survival that they should be in a position to make deliveries. I find that this was obvious to Mr. Hope, and was known by him. It was now early November, a time of year when demands on road hauliers and deliverers are heaviest. No other Alternatives: It would have been difficult, if not impossible, for the defendants to find alternative carriers in time to meet their delivery dates.

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