1871 North British Insurance Co. v. Moffatt. Nov. 9. H. Matthews, Q.C. (Holl, with him), for the plaintiffs. The teas in question were not the property of the assured. The property in them had passed to the purchasers. The defendants had not even a special property in them. The warrants were only retained by the defendants on the purchasers' behalf, in order that they might do what was necessary for the purpose of clearing the teas. The purchasers might call for the warrants at any moment, and the defendants would be bound to give them up. Neither were these goods held in trust by the defendants; they were under no responsibility in respect of them. The true construction of the policy is that the words "for which they are responsible," apply both to goods "in trust" and "on commission." The obvious intention of the 29] policy is, that the insurance should *only be on goods, the loss of which would cause damage to the assured. The defendants could suffer no damage by the loss of these teas, and, consequently, had no insurable interest in them. [He cited Seagrave v. Union Marine Insurance Co. ('); Waters v. Monarch Life and Fire Assurance Co. (2); London and North Western Ry. Co. v. Glyn (3); Powles v. Innes (*).] Sir J. B. Karslake, Q.C. (Watkin Williams and Underdown with him). The words "for which they are responsible," in the policy, only apply to those immediately antecedent, viz., “on commission." These goods come within the expression "in trust." The warrants, which represent the possession of the goods just as the key of a warehouse in which goods are deposited would, were still in the defendants' possession. They had duties in the ordinary course of business to perform in respect of the goods, for the purpose of enabling the purchasers to receive delivery. It is not necessary in such a case in order to have an insurable interest, that the persons interested should be responsible for the goods. Though there was no obligation to insure, the assured would be trustees of the amount recovered on the policies for the owners. See Waters v. Monarch Life Assurance Co. (2); and London and North Western Ry. Co. v. Glyn (3). These policies must be read in connection with the nature of the tea trade. It would be impossible to insure goods (3) 1 E. & E., 652; 28 L. J. (Q. B.),' (1) Law Rep., 1 C. P., 305, 320. () 5 E. & B., 870; 25 L. J. (Q. B.), 188, 192. 102. (*) 11 M. & W., 10. North British Insurance Co. v. Moffatt. 1871 at all under the circumstances in this case, unless they are held to be covered by a policy of this description. The interests in the teas are constantly shifting. These are intended to be floating policies kept up for the benefit of the parties who may become interested in the goods insured. Cur. adv. vult. Nov. 25. The judgment of the Court (Willes, Keating, and Brett, JJ.), was delivered by KEATING, J. This was a special case, stated between the parties, for the purpose of having it decided whether the plaintiffs can recover from the defendants a sum of 636l. 13s. 7d., alleged by them to have been paid to the defendants in excess of the sums due *on certain policies of insurance, and which [30 the defendants agreed, in the event of that allegation being well founded, to repay to the plaintiffs. The policies in question were dated the 13th of October, 1865, and in consideration of an annual premium the plaintiffs insured from loss or damage by fire the property thereinafter described, "not exceeding the sum specified as applicable to the several articles, viz., 3500l., Three thousand five hundred pounds, on merchandize (jute, petroleum, and its products, excepted), the assured's own, in trust, or on commission, for which they are responsible, in or on all or any of the warehouses, vaults, ships," &c., or other places specified, and certain wharves, including Beal's Wharf. Whilst the policies were in force a fire occurred at Beal's Wharf in the policy mentioned, and consumed certain chests of · tea, which form the subject of the present litigation. Those teas had been deposited in bond by the importer with the wharfinger to whom Beal's Wharf belonged, and who issued warrants for the same, deliverable to the depositor or his assigns, by indorsement thereon. The defendants had purchased the teas from the importer, who indorsed to them the warrants in blank. The defendants before the fire occurred had resold the teas in specified chests to customers, and had been paid for the same; they held, however, the warrants on behalf of such customers, but merely for the convenience of paying, if required to do so, the charges necessary to clear the teas, such as customhouse dues and rent, payable by the vendees. Under these 1871 North British Insurance Co. v. Moffatt. circumstances, therefore, stated in the present case, we are of opinion, that before and at the time of the fire, the property in the teas had passed to the vendees, and that the teas remained at their risk, and not at the risk of the defendants, who had no longer any interest in them, or responsibility to the vendees in respect of them in case of fire. But it was contended on behalf of the defendants that even supposing that to be the case, still the policy, being a floating policy, covered the goods in question as goods in trust, and that, therefore, the defendants were liable to pay their full value, and the cases of Waters v. Monarch Insurance Co. (1), and London and 31] *North Western Ry. Co. v. Glyn (2) were relied on in support of that contention. In those cases, goods held by the plaintiffs as bailees were insured by them under policies the conditions of which provided that goods held in trust would not be covered by the policies unless they were insured as such. The goods accordingly were insured expressly as goods held in trust by the assured. The offices contended, that as the plaintiffs, as bailees, had no insurable interest in the goods beyond their liens respectively, they could only recover to the amount of such liens. But the Court held in each case that the plaintiffs were entitled to recover to the full amount insured, and intimated that the excess beyond the personal interest of the assured would probably be held in trust for the parties really interested, though unaware of the insurance having been effected. If, therefore, the words in the present policy had been similar to those in the policies referred to, we should have thought the cases were authorities in favor of the defendants' view, notwithstanding that they had no interest even amounting to a lien upon the goods in question; but it will be observed the wording in the present policy is essentially different, for whilst in the cases referred to the insurance extended to "goods in trust or on commission" generally, in the present case it is expressly limited to "goods in trust or on commission, for which they (the assured), are responsible." In London and North Western Ry. Co. v. Glyn (2), Erle and Hill, JJ., had thrown out that if insurance companies wished in future to limit their responsibility to the responsibility of the assured, they must employ express words to that effect. It seems to us that the (1) 5 E. & B., 870: 25 L. J. (Q. B.), 102. (3) 1 E. & E., 652; 25 L. J. (Q. B.), 188. present plaintiffs have done so in this policy, and have expressly limited their liability to such goods as were held in trust by the assured, and for which they were responsible. It follows that the goods in question for which the assured were not responsible were not covered by the policy, and consequently that the plaintiffs are entitled to the judgment of the Court. Judgment for the plaintiffs. Attorneys for plaintiffs: Clements. Nov. 3, 1871 *PAPPA V. ROSE. *Law Reports, 7 Common Pleas, 32. [32 Arbitration-Broker made Referee to determine whether or not Goods are of the Quality contracted for. The defendant, as broker, made a contract for the plaintiff, as follows:"Oct. 26, 1869. Sold by order and for account of Mr. D. Pappa, to my principals, Messrs. S. H. & Son, to arrive, 500 tons Black Smyrna raisins-1869 growth— fair average quality in opinion of selling broker-to be delivered hre in Londonat 228. per cwt. D. pd. Shipment, November or December, 1869,” &c.: Held, that the defendant was in the nature of an arbitrator to determine between the parties any difference which might arise as to the quality of the raisins tendered in fulfilment of the contract; and, consequently, that he was not liable to an action for not having exercised reasonable care and skill in coming to a decision,-it being conceded that he had acted bona fide and to the best of his judgment. Quare, whether the contract was satisfied by the tender of raisins of "fair average quality" generally, or whether it required that they should be of fair average quality of the growth of 1869? THE first count of the declaration stated that the plaintiff retained and employed the defendant, as selling broker, for reward payable by the plaintiff to the defendant in that behalf, to sell certain goods for the plaintiff, to wit, raisins, upon the terms of a certain sale-note in the words and figures following, that is to say, "29 Mincing Lane, London, 26 October, 1869. Sold by order and for account of Mr. D. Pappa, to my principals, Messrs. S. Hanson & Son, to arrive, 500 tons Black Smyrna raisins 1869 growth-fair average quality in opinion of selling broker to be delivered here in London - at 22s. per cwt. D. pd. Shipment, November or December, 1869. If not delivered buyer to be allowed 1s. per cwt. In bags. Bags included in weight. Customary allowances. Discount 1 per cent. Prompt two months from date of final landing: " and in consideration thereof the defendant promised the plaintiff that he the defendant would use due care, skill, and diligence in and about the said sale by the defendant, and in acting as the selling broker within the meaning of the contract, and in and about sampling and examining the goods in order to form a just and correct opinion of the same, within the meaning of the contract, and in declaring the same as between the plaintiff and the buyer: That the defendant accepted the retainer and *entered 33] upon the employment; and that all conditions precedent were fulfilled, &c., to entitle the plaintiff to have the defendant exercise due care, skill, and diligence in sampling and examining the goods in order to form a just and correct opinion of the same, and in declaring the same as between the plaintiff and the buyer, and to sue the defendant for the breach thereinafter complained of: Yet the defendant so unskillfully and negligently conducted himself in and about the sampling and examining the goods, and in forming and declaring his opinion thereon, that, although the goods were Black Smyrna raisins of 1869 growth, fair average quality, yet the defendant declared his opinion that the same were not of fair average quality within the meaning of the contract; by reason whereof the buyers of the goods refuse to accept delivery of them, and the plaintiff was unable to enforce the contract of sale against the buyers. Second count, that the plaintiff retained and employed the defendant as selling broker to sell certain goods for the plaintiff as and upon the terms in the first count mentioned; that the defendant accepted the retainer and entered upon the employment, and, in consideration thereof, promised the plaintiff that he would carefully examine the goods, and would exercise his judgment justly and fairly in order to form and declare his opinion thereon, as selling broker, within the meaning of the contract: Averment of performance of all conditions precedent, &c.: Breach, that the defendant did not carefully examine the goods, nor exercise his judgment justly and fairly thereon, and, |