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of their taking greater care in sales to their customers, and precluding all question whether the loss arose from negligence or not, and also for assuming a greater share of responsibility than ordinary agents, namely, responsibility for the solvency and performance of their contracts by the vendees. This is the main object of the reward being given to them; and though it may terminate in a liability to pay the debt of another, that is not the immediate object for which the consideration is given:” He says that it is neither a guaranteeing nor a contract of sale, and that *consequently the Statute of Frauds is out of the (133 question. It seems to me, therefore, as Mr. Cohen said, that this custom must be taken as merely regulating the terms of the employment. I cannot see that it differs from the case of a board stuck up at a broker's office, saying: “Nota bene; we are brokers engaged in the fruit trade, and we conduct business, when employed, on the following terms : If we receive an extra commission of one per cent, we have all the liability of del credere agents; but, if we do not, we are not liable to tell you the names of our customer in the bought note; but we tell you, as it is a matter of considerable importance to us, that we should not let you know who our principals are, – that, if we conceal the names of our principals, and you choose to deal with us on these terms, we will take all the liability of del credere agents, though we don't receive the commission.” Certainly, if such a notice were stuck up over the doors of the fruit brokers, and then people came in and dealt with them on those terms, I cannot see that to charge them that they dealt, as brokers, upon the terms which they published, would be in the slightest degree inconsistent with, or contradictory to, or qualifying, or in any way interfering with, the contract expressed when they delivered the contract-note. But inasmuch as the Exchequer Chamber, on precisely similar counts, in Humfrey v. Dale ('), thought the evidence was admissible, on the declaration as it stands in this case, it would be unwise to amend now; but if the case ever goes to the House of Lords it may be worth while to consider, whether a count setting out such a contract will not obviate all objection.

Now, passing from that point, we have to consider whether the evidence of custom in the colonial trade was admissible;

(1) E. B. & E., 1004; 27 L. J. (Q. B.), 390.

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and I am bound to say that I clearly think it was. The objection taken was that there was no evidence to make the defendants, the brokers, responsible at all. Then the plaintiffs' counsel said, “I will prove by evidence of persons connected with the fruit trade, that the broker, where he does not disclose the principal's name, makes himself personally liable.” The plaintiffs accordingly offered evidence to prove such a custom, and, to strengthen the evidence, showed that in the colonial trade brokers did 134] incur a personal *liability if they did not disclose their principal's name. What was proved was this: that the trades were very closely allied to each other. All brokers are very closely connected with each other; they all deal with merchants, and with much the same merchants, in the general way of business; and they buy and sell sometimes fruit, sometimes wool, and sometimes other things. And it struck me, where the question was, does a broker, in the fruit trade, if he does not disclose his principal's name, incur a personal liability in consequence, that it would be proper evidence for a jury to consider and weigh, that such a custom existed in other trades, and that in those other trades the broker did incur a personal liability. I think it cannot be denied that any sensible person would say, that the existence of such a liability in the colonial trade, as was established in Humfrey v. Dale (), would be very cogent evidence as to whether there would be such a liability in the fruit trade. That is the reason, because I thought it would have this strong bearing on the case, that I left it to the jury. I quite agree that the case of Noble v. Kennoway () bears but slightly upon the point. It is, to some slight degree, analogous; but very slightly indeed, and there is no other authority cited at all; therefore we must go on the principle of common sense. This point was not reserved; but if the defendants go to error on the other main point, they ought to have leave to take this point also.

MELLOR, J. I am of the same opinion. I do not propose to add anything as to the first two points, because I think they have been conclusively disposed of by my Lord and my Brother Blackburn. But with reference to the last point as to the admissibility of the evidence of the custom in the colonial trade,

(1) E. B. & E., 1004; 27 L.J.(Q.B.), 390. (9) 2 Dougl., 510.

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which is a new point so far as I am aware, I think this case goes further than any case has actually gone; yet I cannot help thinking that the evidence was relevant to this case and admissible, on the ground that, showing, as it did, what was the custom in other trades, though not so analogous, no doubt, to the trade in question, as was the trade in Noble v. Kennoway ('), it tended to show the probability, that in the fruit trade as well as in the colonial trade the broker *did under given circum- (135 stances undertake a similar responsibility.

Rule discharged.

Attorneys for plaintiffs : Lowther, Mullens, f. Clair.
Attorneys for defendants: Stibbard f Beck.
(1) 2 Dougl., 510,

have adjudged to be their true meanUsage or custom may be shown to ing. Budgett v. The Orient Mutual explain an ambiguous term or to ex- Ins. Co., 3 Bosw., 385. Hulburt v. Carver, plain a contract which is not definite in 37 Barb., 62 S. C. 40 Barb., 245; see its terms. Cuthbert v.

Cumming, 10 note to Phillips v. Briard, 1 Hurl. and Excheq., 809, affirmed Exch. Cham.; Norm. 30, Johnson's Am. ed. ; Westcott 11 Excheq. Rep., 405; Muncey v. Den- v. Thomson, 18 N. Y., 367; Home v. nis, 1 Hurl, and Norm., 216; Van Sant- Mutual, &c., 1 Sandf. S. C. R., 137, affd. poord v. St. John, 6 Hill, 157; Smith v. 2 N. Y., 235; Emery v. Dunbar, 1 Daly, Dann, 6 Hill, 543.

411; Simmons v. Lalo, 8 Bosw., 214; So whether one is understood to Trustees, &c., v. Brooklyn, &c., 23 How., contract as a principal or agent. Crop- 448; see also 2 Albany Law Jour., 366, per v. Cook, L. R. 3 C. P., 194.

and article 2 Am. Law Reg. N. S., 139. One who employs a broker is pre- The usage must be general. Ehle v. sumed to deal with reference to the Chittenango Bank, 24 N. Y., Scott custom of brokers whether known to v. Central R. R., 52 Barb., 45. him or not. Whitehouse v. Moore, 13 But thoug

usage may be proved it Abb. Prac. Rep., 142 ; Horton v. Morgan, is not competent for a witness familiar 19 N. Y., 170.

with the usage to testify as to what In a complaint by a broker against construction the contract bears; Collyer his principal, it is therefore unnecessary v. Collins, 17 Abb., 468. to allege that the latter knew of the As to what is an usage see Sleght v. existence of a custom on which the Hartshorne, 2 Johns, 541. As to how action is founded. Whitehouse v. Moore, much evidence is necessary to show an 13 Abb. Prac. Rep., 142.

usage, see Weber v. Kingsland,8 Bosw., It is not competent to show that 415; Wood v. Poughkeepsie, &c., 33 words used in a written contract which N. Y., 619. have received a judicial interpretation Evidence of usage by one class of have acquired by the usage of trade a men is not admissible to bind another. commercial meaning variant from, or Field v. Burham, 9 Bosw., 468; Sleght in conflict with that which the courts v. Hartshorne, 2 Johns., 541.

548;

1871

Smith v. Myers.

139]

*[IN THE EXCHEQUER CIAMBER.]

Nov. 27, 1871.
SMITi v. MYERS and another.

Law Reports, 7 Queen's Bench, 139. Contract of Sale of Cargo expected to arriveby a particular Ship. The defendants' correspondents at Valparaiso bought on their account of S. & Co. 600 tons of nitrate of soda, and on the 16th of July, 1868, they chartered the bark Precursor to bring it to England, and they, on the same day, wrote to the defendants of this. On the receipt of the advice, the defendants, on the 8th of September, made a contract, through brokers, with the plaintiff: “ We have this day sold to you about 600 tons, more or less, being the entire parcel of nitrato of soda expected to arrive at port of call per Precursor, at 128. 9d. per cwt.... Should any circumstance or accident prevent the shipment of the nitrate, or should the vessel be lost, this contract to be void.” In the mean time, on the 13th of August, an earthquake had destroyed the greater part of the nitrate of soda while lying at the port of lading; and, it having been determined by arbitration, pursuant to the contract, that S. & Co. were not bound to supply other soda, on the 2d of September the Valparaiso house had cancelled the charter of the Precursor. Afterwards, on learning from the defendants that they had sold the nitrate of soda to arrive, but not on what terms, they purchased other 600 tons of nitrato of soda at above the defendants' limit, and obtained a transfer of a charter of the same bark Precursor, and shipped the nitrate about the 23d of December to the defendants, to enable them to execute their contract, if obliged to do so, or to sell at a profit, if free. The Precursor arrived in England on the 8th of May, 1869, and the plaintiff demanded the cargo under the contract of the 8th of September:

IIeld, affirming the judgment of the Court of Queen's Bench, that the plaintiff was not entitled to the cargo.

APPEAL from the decision of the Court of Queen's Bench, making absolute a rule to enter a verdict for the defendants.

This was an action for not delivering a cargo of 600 tons of nitrate of soda pursuant to a contract of sale of the 8th of September, 1868.

The facts of the case are fully set out in the report in the court below (1), and sufficiently appear from the headnote.

A verdict passed for the plaintiff at the trial, with leave to move to enter a verdict for the defendants; and the Court of Queen's Bench made the rule absolute, on the ground that the contract, though not for a specific cargo, was a contract for a specific adventure, which was put an end to by the destruction of the soda by the earthquake.

(1) Law Rep. 5 Q. B., 429.

Smith v. Myers.

1871 *R. G. Williams (Quain, Q. C., with him), for the plaint- (140 iff, urged the same arguments as in the court below. He cited Johnson v. Macdonald (').

Milward, Q. C. (Baylis with him), for the defendants, was not heard.

KELLY, C. B. The question in this case is, whether the contract before us of the 8th of September, 1868, relates to a specific quantity of nitrate of soda which was purchased, and which is, in fact, referred to in the letter of the 16th of July, or whether it relates to a certain quantity of nitrate which might at a subsequent time have been purchased, and which might ultimately have been conveyed to England in the Precursor. I am clearly of opinion that it relates to the quantity which is referred to in the letter of the 16th of July, the quantity which had been actually purchased, and which was intended to be conveyed, and therefore was, within the very terms of this contract of the 8th of September, by the defendants “expected to arrive" by the Precursor. There can be no doubt, when we look at the facts of the case, that a specific quantity of 600 tons of nitrate had been purchased by the agents of the defendants at Valparaiso, and that the letter of the 16th of July informed the defendants of that purchase, and that the ship Precursor had been chartered in order to convey that specific quantity so purchased to this country; that when the contract was entered into by the defendants with the plaintiff they undoubtedly meant nothing else than the specific quantity referred to in the letter of the 16th of July, and which they believed was at that time either actually shipped on board the Precursor, or was then lying ready to be shipped on board. The question is, whether the mere accident that that letter was not communicated by the defendants to the plaintiff alters the meaning and the legal effect of the contract which was entered into, and converts the specific quantity, which no doubt the defendants intended, and which is actually the property described by the contract, into any quantity which may or may not have been at the time purchased, and which should afterwards have been sent to this country by the Precursor. I think it does not. We have only to look at the terms of the contract *itself to see it clearly refers (141

(') 9 M. & W., 600.

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