1853. SCOTHORN v. THE SOUTH SHIRE tiffs. But it is contended, that the contract made by the clerk was a different contract, and not that which the defendants had entered into, which was to deliver on board the Melbourne, and that contract has been carried out. [Alderson, B.-The contract was to deliver according to the RAILWAY Co. plaintiffs' directions. It was competent to the plaintiffs to countermand the original destination of the parcel.] That may be, but even then the clerk was not the defendants' agent to receive this countermand. But even if he had been, the declaration is framed on a new con tract. ALDERSON, B.-This rule must be discharged. There can be no doubt that the defendants made a contract to carry the goods of the plaintiffs the whole way to London, for a certain reward, for that entire journey; and there can be as little doubt that they would also have been liable for any loss occasioned by negligence during any part of that journey. The whole question is, what was the contract between the parties; and that, in truth, is a question of fact merely. Now, there is abundant evidence, that the contract was that stated in the declaration, to deliver in London according to the plaintiffs' directions. It is true, that, originally, when the goods were delivered to the defendants to be carried, the directions were to deliver them at the East India Docks; but the plaintiffs communicated to the defendants' agent their altered intention, and directed him to deliver the goods, not as directed, but elsewhere. The question is not whether the agent in London was authorised to make a fresh contract on behalf of the defendants. He was authorised to deliver the goods according to the plaintiffs' directions, that being the original contract. That contract was not performed, and the defendants are therefore liable. PLATT, B.-The power to receive the countermand was 1853. SCOTHORN v. THE SOUTH SHIRE part of the contract itself. The declaration states the contract truly, that the defendants received the goods to be delivered according to the plaintiffs' directions; that means that the plaintiffs were to have some control over RAILWAY CO. them, and might stop them at any part of their transit. Though the original direction was to deliver them at the East India Docks, yet, that order having been countermanded, the defendants had no right to take them there. If a carrier undertakes to carry goods from A. to B., this is subject to the right of the owner to countermand the original direction at any point in the journey, though perhaps the latter may be bound to pay for the whole distance; but the carrier has no right to carry the goods against the express will of the owner. I think that it was incidental to the employment of the clerk, that he should do all that the defendants themselves would have been bound to do in performance of the original contract. The defendants were bound to act on a reasonable countermand; and the clerk was, therefore, their agent to receive it. In my opinion, therefore, my brother Martin's direction to the jury was perfectly right. MARTIN, B.—I entirely concur. The whole transaction when looked at is clear. The plaintiffs' goods are left at the defendants' station, with a direction that they should be delivered on board a ship in the East India Docks. This is said to be the contract. In one sense it is not. It is merely the case of a person delivering his goods to another to be disposed of according to the directions of the owner; and can it be contended, that, if the owner went an hour after the delivery and said, "I have changed my mind, let me have my goods back again," the other could have had a right to reply, "No, you have made a contract with me about them, and they must go on board the ship?" A carrier is employed as the bailee of goods, on the terms of obeying the owner's directions in regard 1853. SCOTHORN v. THE SOUTH SHIRE to them; and I have no doubt that the owner has a right to redemand them at any period of the transit when they can be got at. The redemand or subsequent direction of the owner must be reasonable. And I can easily conceive goods placed in such a position that they cannot be got RAILWAY CO. at till the end of the journey, though it is usually otherwise; but, to say that a railway company, or any other carrier, is only bound to deliver goods according to the owner's first directions, is a proposition wholly unsupported either by law or common sense. Suppose the case of a man having booked himself by railway to a certain station, and subsequently determining not to proceed beyond a nearer station, he has a right to stop and require that his luggage be delivered up to him; but, if Mr. Gray's argument were correct, the Company might say, "No, we have contracted to carry it to the end of the journey, and we will take it on." The true contract under such circumstances appears to me to be, that the carrier is a bailee for reward. The bailee may be entitled to his reward, but the owner is entitled to receive back his goods whenever he chooses. The bailee must deliver according to the owner's directions. But then, it is urged on the part of the defendants, assuming this to be true, the defendants carried the goods only part of the way; but, in my opinion, that does not make the slightest difference, for they made the London and North Western Company their agents to carry, and, consequently, to receive a countermand. I do not say that the London and North Western Company were the defendants' agents to make a fresh contract to carry to an entirely different destination from that originally named, such a contract would not have bound the defendants. But I am clearly of opinion, that the plaintiffs had a right to require their packages to be delivered at a place other than the original address, and that the clerk had authority from the defendants to assent to such fresh orders. Taking a com 1853. SCOTHORN v. THE SOUTH SHIRE RAILWAY CO. mon sense view of the matter, the clerk was the servant of the defendants to carry out their contract,-to execute the orders of the owners of goods which the defendants had contracted to carry. Rule discharged. Trinity Term, 1853. May 30th. A clerk to an engineer of the defendants, a Railway Com pany, agreed with the plain tiff for the pur chase from him of some railway sleepers on certain special terms. The sleepers were afterwards de PAULING and Another v. The London and North WEST- FIRST IRST count, that the plaintiffs, at the request of the defendants, agreed to sell to the defendants, and the defendants agreed to purchase from the plaintiffs, 6000 Heckmatack sleepers, at 3s. 14d. each, which were to be delivered by the plaintiffs, for the defendants, at the Elesmere or Egerton yard, in Liverpool, and were to be paid for by the defendants to Messrs. Houghton & Smith, in cash, on delivery; (mutual promises).- Breach: that, alto and though the plaintiffs did afterwards sell and deliver the said 6000 Heckmatach sleepers according to the terms of the said agreement, and the defendants then took and accepted the same, and although Messrs. Houghton & Smith were ready and willing to have accepted payment of the same according to the price aforesaid, amounting to 9371. 10s., yet the defendants have not paid Messrs. Houghton & Smith or the plaintiffs.-Second count, for goods bargained and sold, and for goods sold and delivered. livered to and used by the Company:Held, that there was evidence from which a jury might infer a parol contract by the directors, on be half of the Company (which would be valid under the 8 Vict. c. 16, s. 97), on the terms agreed to by the clerk. Pleas, first, that the defendants did not promise; secondly, to the second count, a set off; to which the plaintiffs replied "not indebted." At the trial, before Martin, B., at the Spring Assizes, 1853, at Liverpool, it appeared in evidence that on the 18th of February, 1852, the plaintiff Pauling wrote to one W. H. Eborall, a clerk of the engineer of the defendants, as follows: "Dear Sir, I will undertake to deliver to you in the yard, at Liverpool, 7000 Heckmatack sleepers, nine feet long, ten inches by five, for 3s. 1 d. each, paying all porterage and cartage, &c., the sleepers to be taken as they are in the stack, with the exception, that all undersized sleepers to be rejected by you. Should this offer be accepted, I shall be glad to give you an order on my agents in Liverpool, Messrs. Houghton & Smith, for their immediate delivery, they having charge of them for me. The invoice will have to be made out in their name. "Yours truly, "GEORGE C. PAULING." On the 20th of February, Eborall replied as follows: "Dear Sir,-On consideration of your offer of the 18th instant of 7000 Heckmatack sleepers, I have no objection to accept it on account of the London and North Western Railway Company, for 6000 of them, provided they be delivered to our inspector or agent in the Ellesmere or Egerton yard, Liverpool, free from shakes and other imperfections, to size, and approved of by him and selves, at 38. 14d. each; and, if agreeable, on receipt of your order upon Messrs. Houghton & Smith, we will commence shipping them. "Yours truly, “WILLIAM HENRY EBORALL.” On the 21st of February, the plaintiffs' agent sent to Eborall the following answer: 'Sir,—I accept your offer of 6000 Heckmatack sleepers, delivered at the Ellesmere or Egerton yard in Liverpool, at 3s. 14d. each, to be paid Messrs. Houghton & Smith in cash on delivery, the sale being to you on account of the London and North Western Railway Company. I 1853. PAULING V. THE LONDON |