1853. PAULING THE LONDON AND NORTH inclose an order on Messrs. Houghton & Smith, Liverpool, to deliver the sleepers. "I am, Sir, your obedient Servant, "ROBERT FRY, "Pro PAULING & Co." A person, employed by the defendants, took the order mentioned in this letter to Messrs. Houghton & Smith's, and received and removed the sleepers to the station of the Company, and they were afterwards used on the defendants' line. The invoice, with the sleepers, was as follows: "Liverpool, 27th February, 1852. "London and North Western Railway Company. "Bought of Pauling & Co., "Per Houghton, Smith & Co., "6000 Railway Sleepers, 9 × 10 × 5, at 3s. 1 d. 9371. 10s.” On the 13th of May the plaintiff Pauling received the following letter: "London and North Western Railway Company. "Audit Office, Euston Station, May 13th, 1852. "Sir,-Having a payment to make on account of Pauling & Co. for sleepers purchased from Messrs. Houghton & Smith, Liverpool, amounting to 9377. 10s., as below stated, I have to request you to say whether you prefer the balance being sent to you direct, or to the parties above, and oblige, "Yours truly, The plaintiffs requested the Company to pay the price of the sleepers to Messrs. Houghton & Smith, according to the agreement contained in the foregoing letters; but the Company refused, on the ground that the defendants were indebted to them in the above set-off of 231. 10s. In the course of the correspondence which took place on the subject the plaintiffs received the following letter from the secretary of the Company: "Liverpool, 14th June, 1852. "I remain, Gentlemen, your obedient Servant, The learned Judge left it to the jury to say, whether the Company had contracted on the terms stated in the declaration, and disclosed in the correspondence. The jury found this in the affirmative, and a verdict was entered for the plaintiffs on the first count for the whole demand, leave being reserved to the defendants to move to enter a verdict for them on that count; it being agreed, that in the event of the motion being successful, the verdict should stand for the plaintiffs on the second count, reduced by the defendants' set-off to 7061. Milward having, in Easter Term, obtained a rule nisi accordingly, 1853. PAULING V. THE LONDON AND NORTH WESTERN RAILWAY CO. 1853. PAULING v. THE LONDON AND NORTH WESTERN RAILWAY CO. Hugh Hill and Cowling (May 30) shewed cause.-There was amply sufficient evidence in support of the first count. The 97th section of the Companies Clauses Consolidation Act, 8 Vict. c. 16 (a), enables the directors to contract on behalf of a Company by parol in cases where a private individual could make a valid contract without writing. And the jury might well infer, from the fact of the sleepers having been used by the Company, that the directors had contracted for them on the terms of the agreement by Eborall. Lowe v. The London and North Western Railway Company (b) is a distinct authority that such a contract may rightly be inferred where the Company have had the benefit of the contract. They also cited Sanders v. St. Neot's Union (c), De Grave v. Mayor of Monmouth (d), and Finlay v. Bristol and Exeter Railway Company (e); and distinguished the cases of The Mayor of Ludlow v. Charlton (f), and Diggle v. London and Blackwall Railway Company (g). (a) The 8 Vict. c. 16, s. 97, by parol only, without writing, and shall be binding upon the Company, and their successors, and all other parties thereto, their heirs, executors, or administrators, as the case may be; and on any default in the execution of any such contract, either by the Company or any party thereto, such actions or suits may be brought, either by or against the Company, as might be brought had the same contracts been made between private persons only." (b) 21 L. J., Q. B., 361; ante, p. 524. (c) 6 Q. B. 810. (d) 4 Car. & P. 111. (e) 7 Exch. 409; ante, p. 449. (f) 6 M. & W. 821. (g) 5 Exch. 442; ante, Vol. 6, p. 590. 1853. PAULING v. THE LONDON AND NORTH Milward in support of the rule.-The first count has been treated as a count for goods sold and delivered; but it is a special count framed for the express purpose of excluding the defendants' set off. The case of Homersham v. The Wolverhampton Waterworks Company (a) was de- RAILWAY Co. cided upon this 97th section; and the Court held, that a contract by the directors could not be inferred. Then, as to the general principle that corporations are liable in certain exceptive cases, the mere adoption of the subjectmatter of the contract does not per se make the Company liable: Paine v. Strand Union (b), Lamprell v. Billericay Union (c), Diggle v. London and Blackwall Railway Company (d), Finlay v. Bristol and Exeter Railway Company (e). Moreover, the correspondence, relied on as shewing the contract, was with a mere clerk of the engineer, not with the secretary or other authorised officer of the Company, whose duty it would be to communicate with the directors. The inference of a contract by them is, therefore, much less natural than if the writer had been one of their own immediatè employés. POLLOCK, C. B.-I am of opinion that this rule must be discharged. There was ample evidence to justify the jury in coming to the conclusion that there was a contract with the Company on the terms contained in the correspondence. That correspondence took place between the plaintiffs and a person in the service of the Company. It is immaterial to consider in what particular capacity; he was a servant of the Company, and acting on their behalf in the correspondence. And I cannot entertain the distinction attempted to be made between a clerk of an engineer of the Company, and a clerk of the Company. The (a) 6 Exch. 137; ante, Vol. 6, p. 790. (b) 8 Q. B. 326. (c) 3 Exch. 283. (d) 5 Exch. 442; ante, Vol. 6, p. 590. special count is framed on the contract disclosed in the correspondence; and there is evidence of the goods, the subject of that contract, having been received and used by the Company. There was no evidence of any other contract than that contained in the correspondence; and it is but fair, therefore, to infer, that there was such a contract with the Company. The case of Lowe v. The London and North Western Railway Company (a) is an authority to the full extent, that, under these circumstances, the jury might well infer a contract with the Company. The learned counsel for the defendants minutely analysed the various decided cases on the subject, and attempted to distinguish them from the present. But, if minute differences are to be relied on, and particular expressions in various judgments to be laid hold of and brought forward as the law of the land, there would be no great difficulty in raising doubts on points which would otherwise appear beyond dispute. In the present case there is no difficulty in our carrying out the principle laid down by the Court of Queen's Bench in the case of Lowe v. The London and North Western Railway Company (a), and in holding, that the learned Judge was right in leaving it to the jury to say whether the defendants had contracted or not. ALDERSON, B.—I am of the same opinion. By the express provisions of the Companies Clauses Consolidation Act, Railway Companies may be bound by the parol contracts of the directors in cases in which private persons may make a valid contract by parol. Here there was abundant evidence from which to infer such a parol contract on the part of the Company to accept the goods on the terms made by a person in their employ. PLATT, B.-I concur in thinking the defendants were (a) 21 L. J., Q. B., 361; ante, p. 524. |