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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Dorimex SRL & Ors v Visage Imports Ltd [1999] EWCA Civ 1427 (18 May 1999)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/1999/1427.html
Cite as: [1999] EWCA Civ 1427

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IN THE SUPREME COURT OF JUDICATURE CCRTF 98/0827/2
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
(His Honour Judge Diamond QC )
Royal Courts of Justice
The Strand
London WC2

Tuesday 18th May, 1999

B e f o r e:

THE VICE-CHANCELLOR
(Sir Richard Scott)
LORD JUSTICE SWINTON THOMAS
LORD JUSTICE POTTER

- - - - - -

(1) DORIMEX SRL
(2) TRADEX SRL
(3) INTERTRADE SRL
Appellants
- v -

VISAGE IMPORTS LIMITED
Respondents

- - - - - -

(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 180 Fleet Street,
London EC4A 2HG
Tel: 0171 421 4040
Official Shorthand Writers to the Court)

- - - - - -

MR J GRUDER QC (Instructed by Messrs Stephenson Harwood, London EC4M 8EH) appeared on behalf of the Appellants

MR P BROOK SMITH (Instructed by Messrs Hay & Kilner, Newcastle Upon Tyne NE1 1EE) appeared on behalf of the Respondents
- - - - - -
J U D G M E N T
(As approved by the Court )
- - - - - -
©Crown Copyright

Tuesday 18th May, 1999

JUDGMENT

THE VICE-CHANCELLOR: This is an appeal from His Honour Judge Diamond QC, made in the Central London County Court Business List on 22nd May 1998. The judge had given a careful reserved judgment on 8th April 1998 or, at any rate, the judgment is dated 8th April 1998. He dismissed with costs both the claimants' claim and the defendants' counterclaim. The claimants have appealed, the defendants have not.

There are three corporate claimants. The first two are Dorimex Srl and Tradex Srl. I am not quite sure what the part played in the story by the third of the claimants is; there is no reference to the third claimant in the judgment.

Both Dorimex and Tradex are companies incorporated in Italy. The individual who funded and controlled the two companies is a Mr Gianni Dormi who, like the companies, is Italian. The issues that relate to the two companies are identical and, for convenience, I propose to refer simply to Dorimex. Everything I say in relation to Dorimex will apply equally to Tradex.

Dorimex carries on business as a supplier of ladies' and men's clothing, generally, as I understand it, knitwear. It does not manufacturer the garments it supplies. The manufacturing is done by sub-contractors. Dorimex buys the yarn and supplies the yarn to the manufacturers. The manufacturers, after the garments have been made, send the goods to freight forwarders in Italy, employed by Dorimex. The forwarders, acting on instructions from Dorimex, despatch the goods to the premises of the purchasers.

The defendant in this case, the respondent before us, is Visage Imports Ltd. Visage Imports carries on business in the north of England as an importer and wholesaler of ladies' and men's clothing. The managing director of Visage is Mr Muckesh Sehgal. He is known colloquially as Mac. His spoken English appears to be not very fluent, and it seems most negotiations regarding contracts for supplies were carried on by Mr Peter Watson, Visage's chief buyer. However, Mr Sehgal seems to have been very much a hands-on managing director, under whose authority and guidance Mr Watson negotiated with the suppliers.

A business relationship between Dorimex and Visage began in July 1988. Visage placed an order with Dorimex in December of that year, and in March 1989 placed further orders for knitwear to be delivered for the autumn/winter season of 1989. Delivery of the goods, in order to enable them to be in the retail outlets for the autumn/winter season was required to be made over the period July to September 1989. Delivery, however, was late. Each side blamed the other, at least to some extent, for the delay in delivery.

There was a time when Visage was proposing or contemplating cancelling the orders on the ground that they would not arrive in time to catch the crest of the autumn/winter market. But following discussions between the parties (on Visage's side the discussions were mainly carried on by Mr Watson, on Dorimex's side the discussions were carried on by Mr Dormi) the parties compromised the dispute between them on terms that were set out in a short written agreement dated 1st November 1989. The terms of this agreement are important for more than one aspect of the case, and I think I should read the agreement in full. It said this:

"CONTRACT BETWEEN DORIMEX SRL AND VISAGE IMPORTS LIMITED.

1. Re Ladies Shipments.

It was agreed today that all goods received into our warehouse by Tuesday 7th November 1989 will be accepted at ordered price. Any goods received between Tuesday 7th November and Tuesday 21st November 1989 are subject to 25% discount. Any goods shipped after Friday 17th November 1989 are to be shipped free of charge.

2. Re Mens Shipments.

a. ...

b. Re all other mens outstanding purchase orders. If these goods are shipped before Friday 3rd November 1989 they are subject to 25% discount. If these goods are shipped after Friday 3rd November 1989 they are subject to 30% discount up until Friday 17th November 1989, after Friday 17th November any outstanding menswear orders will be shipped free of charge."

The agreement was signed on behalf of each party.

The agreement does not seem to bear a date, but there is no dispute but that it was made on 1st November. I have read both the paragraph relating to ladies' shipments and that relating to men's shipments. In fact concentration has been almost entirely on ladies' shipments; a small part only of the shipments in respect of which dispute arises were shipments of men's garments.

There was at one time a dispute between the parties, reflected in the pleadings in the case, as to the validity of the 1st November agreement. Dorimex regarded it as vulnerable on economic duress grounds. But it was eventually accepted, before the hearing before Judge Diamond QC began, that the agreement constituted an effective and enforceable contract.

The provision in the agreement that any goods shipped after 17th November 1989 would be shipped free of charge justifies some comment. This was not, of course, an open-ended commitment. The agreement related to, and only to, the goods that Visage had ordered from Dorimex in March 1989 for the 1989 autumn/winter season. The orders had been accepted by Dorimex and Dorimex was contractually obliged to supply them. The 1st November agreement compromised the dispute that had arisen between the parties as to the delivery dates for these goods.

The evidence before the judge disclosed that the provision regarding goods shipped after 17th November had been included in the contract not, as one might have supposed, at Visage's request, but at Mr Dormi's own suggestion. The suggestion appears to indicate great confidence on Mr Dormi's part that all the goods would be shipped before that date, or would be shipped not later than that date. It is, of course, also possible that the suggestion owed something to Mr Dormi's own character. There may have been an element of bravado about it. It must be remembered that Mr Dormi was not, nor was Dorimex as a company, in a position directly to control the speed at which the sub-contracting manufacturers made the garments that had been ordered from Dorimex. That was under the direct control of the manufacturers. They could be given directions and encouragement by Mr Dormi, but the actual work would be done by them and would be subject to whatever ability to increase speed in a case of an emergency that they might have.

At any event, for good or ill that was the 1st November 1989 contract. As I have said, it is accepted that it is a valid and enforceable contract. Events then occurred which led Visage to demand even greater discounts than those provided for in the 1st November contract. It appears that Dorimex, sometime prior to 1st November and fearful that Visage would refuse to accept late delivery of the goods that had been ordered in March, had been testing the market to see what alternative outlets for the goods might be available. Some contact had been made by a Mr Lea, an agent for Dorimex in England, with other wholesalers, jobbers as I think they were sometimes referred to. One of these wholesalers or jobbers had told Visage that some of the Dorimex garments were on offer at prices considerably below those at which it appeared Visage was proposing to offer the goods for sale.

Visage reacted to the news that this had happened by telling Dorimex that it, Visage, had been placed in an impossible position. The judge found that Visage had greatly exaggerated what had happened and had used its own exaggeration to put pressure on Dorimex to agree, under the threat of refusal by Visage to accept any further deliveries or to pay the full price for those goods that had already been shipped, to allow Visage a further discount. This was, as the judge found, substantial and heavy economic pressure being exerted on Dorimex.

In the result a flurry of telexes, and at least one telephone communication, on 8th and 9th November between Mr Dormi and either Mr Sehgal or Mr Watson led to a new agreement, apparently replacing the 1st November agreement. Under the new agreement Visage would be allowed a 50 per cent discount on all goods that had not yet arrived at Visage's warehouse, including a batch of goods that had been already shipped on 3rd November. The final fax in this exchange of messages, sent on 9th November by Mr Dormi, said this:

"In reference to various telephone call and in view of keeping our relations for future business, we accept 50% discount on goods that will be shipped and those who are at the moment waiting to be unloaded.

This is a very sad situation for everybody but we hope that future business will cancel on both sides all the problems."

The agreement that Mr Dormi was in that fax apparently recording was referred to by the judge as the 8th November agreement. I will refer to it in the same way whether the actual date of its contractual conclusion was 8th November or 9th November.

The remaining goods that had been comprised in the March 1989 orders were, over a period running into December 1989, shipped by Dorimex and delivered to Visage's warehouse. In relation to all these goods Visage paid 50 per cent of the full contractual price that would have been paid had the goods been delivered in September. The payment by Visage, based upon the 50 per cent discount, appeared to be accepted by Dorimex. Discussions between the parties about orders for the 1990 spring/summer season and the 1990 autumn/winter season had taken place in September and November 1989. Orders were placed by Visage for goods to be delivered over the period between February and March 1990. This was, no doubt, for the purposes of the spring/summer season. These goods were delivered by Dorimex. They were paid for by Visage. The 50 per cent discount agreed in the 8th November 1989 agreement did not, of course, apply to these deliveries. The final payment on account of these deliveries was made in June 1990. It was not until after these transactions had been completed that Dorimex first protested about the 8th November 1989 agreement. A solicitors' letter dated 30th July 1990 was sent to Visage and in it a claim to substantial additional sums in respect of the goods comprised in the March 1989 orders, and that had been shipped and delivered in November and December 1989, was made. Visage, not surprisingly, rejected the claim. Then, by letter of 26th July 1990, Dorimex's solicitors claimed for the first time that the agreements, both agreements, of 1st November and 8th November 1989 had been forced on to Dorimex by economic duress and that Dorimex was entitled to avoid them. The proceedings that ended up with the hearing before His Honour Judge Diamond QC were then commenced.

The economic duress case, insofar as it applied to the 1st November 1989 agreement, was, as I have said, dropped before the commencement of the hearing before Judge Diamond. But the allegation of economic duress was persisted in so far as the 8th November 1989 agreement was concerned. The allegation was, the judge concluded, well-founded. He held:

"There was however in my judgment illegitimate economic pressure applied by Visage. It was a threat not to perform the contract as varied on 1st November. It amounted to a repudiation of that contract. The threat left Mr Dormi with only two practical alternatives; either to submit or to accept the repudiation and to sue for damages. But the latter course was financially unattractive and potentially disastrous."

I am now on page 25. A little bit further down that page the judge says this:

"In the result I find that there was illegitimate economic pressure applied by Visage and that this pressure was one of several causes of the 8th November agreement."

A few lines further down he says:

"... on the law as I understand it, I conclude that the 8th November agreement was voidable on the grounds of economic duress."

Dorimex had, in fact, argued also that the 8th November agreement was void for want of consideration. The judge found that there was consideration. He referred to Williams v Roffey [1991] 1 QB 1. However, Dorimex's consideration point was, in my view, in any event misconceived. A lack of consideration does not render an agreement void; it renders it unenforceable. If an agreement, unenforceable for want of consideration, is carried into effect by the parties, there is an end of the matter; unless of course there is some other vitiating feature. If A agrees with B to do a job for £100 and does it so well that B agrees to pay him an extra £50, the agreement as to the extra £50 is unenforceable, but it is not void; and if B does pay the £50 he cannot get it back. So the only real issue in the present case, as I think Mr Gruder has accept in argument before us, was the economic duress issue.

Having found that the 8th November agreement was tainted by economic duress, the judge had then to consider whether Dorimex had affirmed it or whether it was still open to Dorimex to have the agreement set aside. As to affirmation, too, the judge found in Dorimex's favour. I am not entirely sure that I would have done. But there is no challenge before us either to the judge's finding of economic duress or his conclusion that in June or July 1990 it was still open to Dorimex to claim to have the agreement set aside. So, before us, that is the basis upon which the appeal must proceed.

The judge had to consider next the consequences of the 8th November 1989 agreement being set aside. As to the law, he directed himself, in my view impeccably, by reference to the principle to be found in Snell's Equity , 29th ed. (1990) and Goff & Jones 4th ed.. The passages he cited are worth repeating. The passage from Snell said this:

"A person who rescinds a contract is entitled to be restored to the position he would have been in had the contract not been made. Hence, property must be returned, possession given up, and accounts taken of profits or deterioration."

The passage from Goff & Jones was to this effect:

"We have already seen that an important limit to rescission is that there must be restitutio in integrum . The effect of this principle is that the plaintiff must ´be in a position to offer and must formally tender restitutio in integrum '; but the court will also, when rescinding the contract, order the restoration to the plaintiff of benefits received by the defendant from him under the contract. There ought to be ´a giving back and a taking back on both sides.'"

Dorimex, having had the 8th November 1989 agreement set aside, was therefore entitled to be restored to the position it would have been in had the 8th November agreement not been made. So what was that position?

First, and obviously, if the 8th November 1989 agreement had not been made, the 1st November 1989 agreement would have remained in force. Dorimex's contractual entitlement to be paid for the goods delivered after 1st November would have been in accordance with the 1st November agreement. Having regard to the deliveries of goods actually made by Dorimex to Visage after that date, the effect would have been that Dorimex would have been entitled to claim 75 per cent of the contract price of the goods shipped not later than 17th November, whereas in fact, under the 8th November agreement, Dorimex had been paid only 50 per cent of that price. On the figures, this difference amounted to £81,052.93. But, under the 1st November agreement, Dorimex would not have been entitled to any payment for goods shipped after 17th November 1989. In fact, in respect of post-17th November shipments, Dorimex had been paid by Visage 50 per cent of the contract price of the goods, namely £142,059.36. So the revival of the 1st November 1989 agreement would, on those figures, have produced a net loss to Dorimex. To put the point another way, on the rescission of the 8th November agreement, Dorimex would have to give up the benefits it had obtained under that agreement. The benefits taken were apparently the £142,059-odd, which would not have been payable under the 1st November agreement.

Dorimex would be able to escape from this unattractive conclusion (unattractive to itself that it is to say) only by establishing that it was the economic duress which had brought about its, Dorimex's, failure to ship goods not later than 17th November. If Dorimex could show that that was so, its, Dorimex's, entitlement to be restored to the position it had been in before the economic duress had been applied to it, would have entitled it to be placed in the position it would have been if it had shipped the goods not later than 17th November.

Another way of putting the same point is that, on the premise that the economic duress had caused the postponement of delivery of the goods until after 17th November, Visage would have had to have given up the benefit that it, Visage, would have obtained by that means. In the event, of course, that the goods had been shipped not later than 17th November, Dorimex would have received 75 per cent of the price, not simply the 50 per cent that it in fact received under the 8th November agreement. Not only would it in that event not have to restore the £142,059, but it would be entitled to a further 25 per cent, i.e. £71,030 or thereabouts in respect of those goods.

So this was a critical issue. On the evidence, was it the economic duress that had brought about Dorimex's failure to ship not later than 17th November? The judge held that it was not. He reviewed the evidence and concluded that if the economic duress events which gave rise to the 8th November agreement had never happened, nonetheless the deliveries that were made after 17th November would still not have been made until after that date. He therefore dismissed the claimants' action. It is on that critical finding of fact by the judge that Dorimex's appeal to us must turn.

Mr Gruder QC, counsel for Dorimex, has challenged the judge's findings of fact. He has done so partly in a reliance on the evidence of Mr Dormi, evidence that the judge did not accept, and partly by protesting against the failure of the judge to attribute much weight to certain items of documentary evidence. Before considering the evidence, however, I want to say a word about the onus of proof. Since the effect of setting aside the 8th November agreement was undeniably to restore the 1st November agreement, and since under the terms of the 1st November agreement Dorimex was undeniably overpaid by some £142,059 in respect of post 17th November shipments, it is, in my judgment, for Dorimex to show that its failure to ship not later than that date was due to the economic duress.

The evidence on this issue, if there is any, would necessarily be evidence available to Dorimex. It is Dorimex that knows why it is that the shipments did not take place until after 17th November 1989; it is Dorimex that knows what instructions were given to the manufacturers and to the freight forwarders in relation to those goods. It is Dorimex that knows what effect, if any, the decisions taken by its bankers had upon the instructions it gave to the manufacturers and freight forwarders.

Visage can, in my judgment, prima facie simply rely on the terms of the 1st November agreement. It is for Dorimex to satisfy the court that the economic duress brought about the late shipments, either of all or of some specified part, of the goods that were in fact shipped after 17th November.

As to the evidence, the judge thought very little of Mr Dormi as a witness. He was plainly unimpressed by Mr Dormi's written witness statement. This, he thought, as I think appears from his comments on it, had been over-manicured by the lawyers. As to Mr Dormi's oral evidence, the judge commented:

"... I was not altogether satisfied that Mr Dormi had fully addressed himself to the questions put to him in cross-examination or that I could safely rely on what he told me he recollected of the relevant events."

That is an approach to the reliability of Mr Dormi's evidence that this court has not been invited to, and in any event could not, go behind. It is a matter particularly for the trial judge to come to conclusions as to the reliability of the evidence of witnesses.

It is consistent with his view of Mr Dormi's reliability as a witness that on a number of occasions the judge declined to accept Mr Dormi's evidence. He also commented adversely on the extent to which Mr Dormi or Dorimex had complied with their obligations of discovery. There were a number of areas where documentation would be almost bound to exist, but none or very little had been produced. This was the background against which the judge reviewed, and was entitled to review, Mr Dormi's evidence and the significance of the few documents that Mr Dormi had produced.

The evidence of Mr Dormi on which Mr Gruder particularly relied, in regard to the issue which I have described as critical, was set out in paragraph 33 of Mr Dormi's witness statement. This paragraph was endeavouring to explain why it was that the goods to be shipped to Visage had not been shipped until after 17th November. The paragraph starts as follows:

"Visage's actions on 7-9 November 1989 showed a complete disregard and disrespect of the terms of 1 November 1989 agreement; in these circumstances the delivery timetable set out in that agreement had become academic."

I am well able to accept that these words were not Mr Dormi's words but were the words of his lawyers. But the proposition that the delivery timetable had become academic is simply ridiculous. It would not have been until the goods were delivered that Dorimex could have obtained payment. Dorimex had entered into commitments with its manufacturers and its freight forwarders. It would have been in its interests to have obtained payment at as early a point as possible. To say that the delivery timetable had become academic makes, to my mind, no business sense whatever. The paragraph goes on:

"In addition, upon seeing the irrevocable payment instructions compared to the underlying invoices, my bank refused to advance me the monies (as they would ordinarily do against the prospect of forthcoming payment in full from Visage in the form of irrevocable payment instructions from Visage's bank) which would enable me to pay my suppliers. Even though, therefore, the suppliers had the goods or the bulk of them by 8 November 1989, ready for despatch, they would not release them without payment."

The judge did not make any express comment on this part of Mr Dormi's evidence. But, for my part, I would have regarded it as thoroughly unsatisfactory. A bank's refusal to advance money to a customer under previously made arrangements because of some such change as that to which Mr Dormi refers, the change effected by the 8th November agreement in the percentage of the original price that he was to recover, would have been a matter of very great importance. I simply do not believe that if this is what the bank decided, there was no written record of that decision at all. Moreover, the proposition that the advance the bank would have been willing to make, on the basis of payment of 50 per cent of the original contracting price, would not have been sufficient to have enabled Mr Dormi to have dealt with those to whom he owed money, the manufacturers, and as Mr Gruder put it, the suppliers of the buttons and the thread, or perhaps those from whom the yarn had been purchased if that had not yet been paid for, is dependent on the figures. No figures, no details, no documents whatever are given in support of this bland statement. The judge did not deal with it but I, for my part, would not regard the evidence as even approaching the minimum standard necessary to satisfy a court of the important underlying fact that seems to be contended for, namely, that it was the bank's refusal to supply funds as a result of the harsh terms of the 8th November agreement that put Mr Dormi and his company in a position of being unable to pay their suppliers.

As to documentary evidence in support or confirmation of the bank's alleged refusal, as I have said, none at all was offered. Mr Gruder relied also on a number of documents in the bundle before us. He referred us to a document dated 3rd November, sent by Mr Dormi to his Italian freight forwarders, giving instructions for deliveries to be made during the month of November. Shipments were to be made on 10th November, 13th November and 16th November of goods which had been ordered by Visage. The significance of these instructions, as Mr Gruder pointed out, is that they show Mr Dormi making firm arrangements in relation to substantial quantities of goods for shipment before the critical 17th November date. But those instructions were countermanded by Mr Dormi on 8th November. A note of that date addressed to the freight forwarders, Albini and Pitigliani said:

"Please cancel every shipment for Visage Ltd due to various problems we have with that company. We repeat, contrary to our request to you in our fax cited above, [that is the fax of 3rd November] all shipments or transport/lorry bookings to this company are suspended and, therefore, all goods are to remain in your warehouse until further notice."

In his witness statement Mr Dormi has said that this note to the freight forwarders was sent after the 8th November agreement had been concluded. I do not believe that for one moment. This note has all the signs of a response to the threat being made by Visage to refuse to accept the goods that they had ordered, and so, of course, in that case the instructions previously given to the freight forwarders would be put on hold. But the notion that it made any sense to cancel the instructions after the 8th November agreement had been made is unacceptable. I remained unclear at the end of Mr Gruder's submissions what his explanation for this was. He contended that we should accept that this was a note sent after the 8th November agreement, and that it was probably attributable to the state of shock in which Mr Dormi found himself. He was all of a flutter, so to say, not knowing where to turn, so he cancelled the instructions. This is not, in my opinion, in the least credible. Accepting that the expectation of receiving only 50 per cent of the contract price, instead of 75 per cent, was a serious jar for Mr Dormi, nonetheless it became the more urgent that he should receive such money as he was going to receive at as early a time as possible. Here we have, apparently, goods ready for despatch in the Albini warehouse, but instructions were given not to send them. The instructions were, I have no doubt, given before the 8th November agreement had been finally concluded. What happened after that, whether any instructions were given to Albini, and if so what instructions, and, if none, why none were given, is simply not explained at all.

On the next day, on 9th November, the freight forwarders, Albini and Pitigliani responded to say: "We are really very disappointed to learn that all work scheduled by us has been temporarily suspended." They ended by saying: "We await your instructions". Deathly silence on that. The court below was not told what subsequent instructions were given, or what then happened. If no subsequent instructions were given, why were they not given? It simply is not shown in any satisfactory way, so far as the evidence before the court is concerned, why it was that the goods held by these freight forwarders were not shipped to Visage on or before 17th November.

Mr Gruder relied also on a letter dated the 8th November from one of the manufacturers, who goes by the name of Maglificio Giulia. This simply says:

"We refer to our telephone conversation and confirm that all the orders for the above company [Visage] will be despatched by, and no later than, 16th of [November] this month."

We do not know to what order that note is referring. We do not know why the orders to which it is referring were not despatched not later than 16th November. There was no evidence before the court at all from any of the manufacturers, as there was not from any of the freight forwarders. There was no documentation in relation to instructions given to the manufacturers or, bar the few documents to which I have just referred, instructions given to the freight forwarders.

Mr Gruder invited us to place weight on Mr Dormi's evident confidence that the goods would all be shipped before the 17th November deadline, as evidenced by his inserting the relevant sentences into the 1st November agreement. The judge, however, treated this submission with considerable reserve. In my opinion he was entitled to do so.

In his judgment the judge reviewed all the relevant evidence that was before him on this critical issue. His conclusions were expressed in the following passages from his judgment, page 50 of the judgment. He said:

"There is little if any evidence that fewer goods were shipped in this period [he is speaking of the period up to 17th November] than would have been shipped if the 8th November agreement had not been made."

He referred, a few lines down, to:

"... the evidence before the Court which, taken as a whole, leads to the inference that the intimidation exerted by Visage on 8th November had either no impact or minimum impact on the rate of shipment of the goods."

He expressed the final conclusion that:

"... the plaintiffs are not entitled to avoid the agreement without bringing into account the benefits accruing to them from that agreement ..."

The findings of fact made by the learned judge on this issue were, in my opinion, findings to which he was entitled to come on the evidence before him. At the very least, in my judgment, Dorimex failed to show, in relation to any of the post 17th November deliveries, that, but for the economic duress, shipment of those deliveries would have been on or before 17th November. In those circumstances, the judge's dismissal of the claimants' claim was in my view right. I would dismiss this appeal.

LORD JUSTICE SWINTON THOMAS: I agree.

LORD JUSTICE POTTER: I also agree.

ORDER: Appeal dismissed with costs, to be taxed if not agreed.
(Order not part of approved judgment)
____________________


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