XXI. VICTORIA. add to or alter any portion of the tackle of the vessel. They were, therefore, responsible for any negligence of the crew, or failure of the tackle. I think, moreover, that it is wholly immaterial whether or not the plaintiff was a passenger for hire, either with Hetherington or with the defendants. If he had been a mere stranger, standing on the pier at the time, and had been injured, he would have had a right of action against the defendants; and that right is certainly not destroyed by the fact of his being on board, as it is clear he was, with the consent of the defendants, even if not for hire payable to them. As to the third point, I think that the allegation as to the duty of the defendants must be read as my brother Erle takes it; and that, so reading it, it is quite clear that it was the duty of the defendants to navigate the vessel so as not to endanger the life or limbs of any persons, and that they failed in their duty. The declaration, therefore, in my opinion, is proved; and the rule must 1858. DALYELL V. TYRER. be discharged. Rule discharged. LUCAS and another against BRISTOW. THE declaration stated that defendant bought of plaintiffs, and plaintiffs, at defendant's request, sold to him, 50 tons best palm oil, expected to arrive in Bristol from Africa per The Chalco, after the delivery Wednesday, Plaintiffs sold to defendant 50 tons best palm oil, ex pected to arrive" "per The Chalco," "at 401. 10s. per ton:" "wet, dirty and inferior oil, if any, at a fair allowance." The oil, on arrival, contained one fifth only of "best" oil. In an action for not accepting the oil: Held, that oral evidence was admissible to shew that, according to mercantile usage, the contract in question was satisfied if the oil delivered contained a substantial portion of "best" oil; and such evidence was for the jury. of 100 tons previously sold, at the price of 401. 10s. per ton, with usual tare and draft, upon the terms that wet, dirty and inferior oil (if any) should be taken at a fair allowance, and that, if any difference should arise thereon, the same should be settled by arbitration; and also that payment should be made by cash on delivery, less 2 per cent. discount, at the end of fourteen days from being ready for delivery in Bristol: that afterwards the said palm oil did arrive in Bristol per The Chalco; and that, after the delivery of the said 100 tons previously sold, there still remained the said 50 tons of palm oil ready for delivery to the defendant, and plaintiffs were at all times ready to have delivered the same to defendant, and to make him a fair allowance upon the agreed price thereof for so much of the said oil as was wet, dirty and inferior, and did all things on their part to be done, and all things happened, to entitle them to have the said palm oil accepted and paid for by defendant; but defendant would not accept or pay for the same; and the same remained on plaintiffs' hands; and they were compelled to resell the same at a loss, and were put to expences upon such resale. Count for goods bargained and sold, interest, and on accounts stated. Pleas. 1, 2, 3, to the first count, traversing, respectively, the sale, the arrival of the oil, and plaintiffs' readiness and willingness to deliver. 4. To first count: That the oil which arrived by The Chalco, and which plaintiffs were ready and willing to deliver to defendant, was not best palm oil, or fairly within the description in the contract, but was of a totally different quality, which difference in quality was so great and of such a nature as not to be the subject of allowance within the true intent and meaning of the said contract. 5. To residue of declaration: Never indebted. Issue on all the pleas. On the trial, before Crowder J., at the last Assizes for Bristol, it appeared that the action was brought to recover the amount of loss sustained by the plaintiffs upon the resale of 50 tons of palm oil, the defendant having refused to accept it. On 30th August, 1856, Dale, Morgan & Co., brokers in London, bought of the plaintiffs, through their brokers, for the defendant, the oil in question, and sent to the plaintiffs the following sold note. "London, 30th August, 1856. "Sold this day, for Messrs. Lucas Brothers and Company, to Mr. John Bristow, 50 tons best palm oil, expected to arrive in Bristol from Africa per The Chalco, after delivery of one hundred tons previously sold, at forty pounds ten shillings per ton, usual tare and draft. 66 Wet, dirty and inferior oil, if any, at a fair allowance; and if any difference should arise the same to be settled by arbitration. Payment by cash on delivery, less 2 per cent. discount, end of fourteen days from being ready for delivery in Bristol. "Dale, Morgan & Co., Brokers." The Chalco arrived at Bristol on 17th October, 1857. Messrs. King, the brokers who had purchased the cargo of The Chalco for the plaintiffs, divided the whole cargo into five portions, of different quantities, and, as to four of them, stated the allowances which should respectively be made in respect of inferior oil. About 60 tons (i. e. about one fifth of the whole cargo) were best oil: the rest was mixed with palm nut oil, an inferior kind. The 50 tons allotted to the defendant comprised their 1858. LUCAS V. BRISTOW. 1858. LUCAS V. BRISTOW. proper amount of best oil in proportion with the rest of the cargo. The defendant disputed the correctness of these allowances. The cargo was again sampled, and larger allowances made, by arbitrators named by Messrs. King and the plaintiffs; and the other part of the cargo was sold at these allowances. The defendant refused to accept the 50 tons: and the plaintiffs resold it at a loss. Evidence was tendered, on behalf of the plaintiffs, that, according to mercantile usage, a contract for "best" palm oil did not imply any particular proportion of best oil; but that the contract was complied with if the oil delivered contained, at all events, a substantial portion of best oil; the word "best" being used only as a standard of price. The defendant's counsel objected to the reception of this evidence. The learned Judge admitted it; and left it to the jury to say, first, whether the contract was made according to mercantile usage; and, if so, secondly, whether the plaintiffs had satisfied the contract according to that usage; and directed them, in that case, to find a verdict for the plaintiffs. The jury found a verdict for the plaintiffs. Collier, in last Easter Term, obtained a rule Nisi to set aside the verdict, and for a new trial, "on the grounds that the evidence of mercantile usage was not, under the circumstances, admissible;" and "that the learned Judge misdirected the jury in telling them to find for the plaintiffs, if, according to the mercantile usage, the plaintiffs had satisfied the contract; and that the verdict was against evidence" (a). Montague Smith and Barstow now shewed cause. The (a) There was another ground, viz., the non-admissibility of evidence, by the purchaser of the remainder of the cargo, that his contract contained a clause similar to that of the defendants. This ground was not brought forward in support of the rule. evidence of mercantile usage was properly admitted. It does not vary the contract, but explains it. The contract itself shews that the cargo was not to consist entirely of best oil; and the evidence of usage explains what proportion of best oil, in addition to what might turn out "wet," "dirty" or "inferior," will satisfy the contract. The language of the contract is consistent with the evidence tendered; and the evidence is therefore admissible. In Brown v. Byrne (a) it was held that the construction of the following clause in a bill of lading, "freight for the said goods five eighths of a penny sterling per pound, with five per cent. primage, and average accustomed," was not inconsistent with the custom, which was admitted, of allowing three months interest or discount upon freights payable for goods coming, as the goods in question did, from a particular port. Evidence of this kind is admissible unless, as is laid down by Lord Campbell C. J. in Humfrey v. Dale (b), "it labours under the objection of introducing something repugnant to or inconsistent with the tenor of the written instrument." The objection to this evidence amounts, in fact, to contending that the learned Judge was bound, at the trial, to decide what amount of best oil would satisfy the contract: that is not a matter within the province of the Judge. On the motion for the rule Nisi Yates v. Pym (c) was relied upon. But the contract there was an express and definite contract for a particular article, and did not contain, as this does, a provision which renders the whole susceptible of explanation. Collier and Coleridge, contrà. It would be going far (a) 3 E. & B. 703. See Hall v. Janson, 4 E. & B. 500. 510. (b) 7 E. & B. 266. 274., in Q. B. Judgment affirmed in Exch. Ch. ; Dale v. Humfrey, post, p. 1004. (c) 6 Taun. 446. 1858. LUCAS V. BRISTOW. |