« EelmineJätka »
20s. per ton, weighed on board during delivery: -Held, that the effect of the clause as to risks and dangers of the seas was not merely to save C. from liability for non-delivery, but to bind P. to insure the cargo on receiving the bill of lading; and that the ship and cargo having been lost on the voyage through perils of the seas, P. was liable to pay C. the price or the value of the cargo. Castle v. Playford, 41 L. J., Ex. 44; L. R. 7 Ex. 98; 26 L. T. 315; 20 W. R. 440Ex. Ch.
And see SALE and SHIPPING (Charter-party).
Agreement to use Influence and Secure Situation.]-A party agreed with another as follows: -" Provided you use your influence, and secure me the situation of superintendent, I agree to pay you the amount of my first quarter's salary": -Held, that, to maintain an action on the agreement, the influence used must be such that the situation was, in fact, secured by it. Neelly v. Lock, 8 Car. & P. 527.
"Receiving Notice."]-A declaration stating a promise of a defendant to be, that "if he received seven days'" notice requiring the appearance of W. at a place to be in the notice named, he would produce him, need not aver a notice in writing. Thompson v. Ayling, 4 Ex. 614; 19 L. J., Ex. 55.
A declaration set out an agreement, dated the 27th April, 1840, whereby, after reciting that the defendant was indebted to the plaintiffs in 60%., to be repaid with interest at 51. per cent., it was agreed that the 607. shall remain in the hands of the defendant from the date thereof, for one whole year; that at the expiration of that period (if the interest shall be then paid, and no notice be then given to call in the same), the 607. shall continue in the hands of the defendant for another year, and so on from year to year, until notice in writing shall be given by the plaintiff to call in the same; that twelve calendar months' notice in writing shall be given to call in the 607., and that at the expiration of the notice the same shall be paid by instalments of 101. every third month until the whole amount be paid, the first payment of 101. to be made at the expiration of fifteen months from the date of the notice, so that the whole amount of 60%. shall be paid by the end of two years and six months from the date of the notice," and averred that a notice in writing, dated the 29th day of May, 1846, was served upon the defendant to call in the principal, and that although twelve calendar months from the date of such notice and service elapsed before action, and although six months from the expiration of the twelve months had also clapsed, and although two instalments had become due, yet the defendant had not paid the same-Held, that after the expiration of the first year, the notice to pay off the principal might be given at any period of the year, and that the time for payment of the instalment was to be calculated from the date of the notice, not from the day of the year corresponding with the date of the agreement. Brown v. Hartill, 2 Ex. 846; 17 L. J., Ex. 278.
Default in Payment on Demand.]-Where by the terms of a mortgage deed the plaintiff's were to remain in possession on their own account, and managed the mortgaged property until they should make default in payment of the mortgage money upon demand in writing in manner
specified, and such demand was made on the wife of one of the plaintiffs during the plaintiff's absence by a person who represented himself as the defendant's agent, and upon non-payment the defendant forthwith entered upon possession and seized the mortgaged property :-Held, in an action of trespass against the mortgagee, that such non-payment before the plaintiffs had had any opportunity to inquire into the truth of the alleged agency did not constitute default, and that the defendant was liable to the mortgagors in substantial damages. Moore v. Shelley, 52 L. J., P. C. 35; 8 App. Cas. 285; 48 L. T. 918P. C.
Default in "Punctual Payment" of Instalment-Right to retake Possession of Goods.]A piano was let on the three years' hire system, under an agreement providing that "In case of default in the punctual payment of any instalment, the instalments previously paid shall be forfeited to J. B. C., who shall thereupon be entitled to resume possession of the instrument" :— Held, upon default, that J. B. C. was entitled to the possession of the piano, although the instalments in arrear were tendered by the hirer, before action brought. Cramer v. Giles, 1 Cab. & E. 151. Affirmed in C. A.
"Keep in Order."]-A. contracted, in consideration of 2207. 10s., to sell and plant a quantity of trees on B.'s land, and also that "he should and would, at his own costs and charges, well and sufficiently keep in order the trees aforesaid for two years after the planting, and that such as should die during the period (except from injury by sheep, game, or cattle,) should be replaced by him." In an action to recover the price, the jury thought that the words, "keep in order," meant to prune only, and did not extend to weeding and clearing the ground, and they found their verdict accordingly. The court, thinking this an improper construction, granted a new trial:-Held, also that evidence of nonperformance by A., of any part of the contract on his part, was admissible in reduction of damages. Allen v. Cameron, 1 C. & M. 832; 3 Tyr. 907; 2 L. J., Ex. 263.
"Ship"-Owners of Ship. The plaintiffs were owners of the ship W., and M. of the ship G., which was insured in two companies, one of which was represented by the defendant, the other by M. himself. The G. ran into the W., and was arrested in the Admiralty Court; an agreement was entered into by the plaintiffs, M.. and the insurers, that the plaintiffs would release the ship, and the other parties would "pay the amount of damage which the ship W. had received from the collision," and that in case of dispute about "the amount of damages claimed by Heard Brothers (the plaintiffs) by reason of the collision," the matter should be referred :Held, that "ship in the first clause must be read "owners of the ship," and that the plaintiffs were entitled to recover for loss of profits, as they would have done in the Admiralty Court. Heard v. Holman, 19 C. B. (N.S.) 1; 34 L. J.. C. P. 239; 11 Jur. (N.S.) 544; 12 L. T. 455; 13 W. R. 745.
"His Share" equivalent to share of Firm.] Where a memorandum of mutual agreement had been entered into between M., the plaintiffs, and three other firms, whereby M. agreed to surrender
to the plaintiffs "his share" in a certain mort- it was seized by the excise officers, because the gage held by him as trustee :-Held, upon all the place where it was deposited had not been circumstances of the case, that the share of M.'s entered, and was condemned in the Exchequer firm therein passed, and not merely his own as B.'s property, together with the casks; and, in individual share as between himself and his action for goods sold and delivered, by A. against partner. Marshal v. Maclure, 10 App. Cas. 325 B., it appeared that the word cider, at the place -P. C. where the contract was made, meant the juice of that the contract must be construed to have been the apples as soon as it was expressed :-Held, for the sale of cider in that sense of the word, and that the property passed to B. as soon as the apple juice was delivered to his servant; and secondly, that it was B.'s duty to enter the premises; and as through his fault it became impossible for A. to deliver the goods at T., the failure to do so did not bar his action. Study v. Sanders, 5 B. & C. 628; 4 L. J. (0.s.) K. B. 290.
Machine for cutting Glue Pieces strong and sound to approval of A"]-The proper construction of an agreement to make a machine for cutting glue pieces according to drawing, &c., strong and sound workmanship to the approval of A.," is that the approval of A. is to be as to the strength and workmanship of the machine, not as to its efficiency for cutting glue pieces. Ripley v. Lordan, 2 L. T. 154.
"Continued Ill-health."]-A schoolmaster, in "Timber Dues "-Remission of Duty.]-Upon 1842, contracted with the defendant to rent of the dissolution of a partnership between G. and him a house and school-room, at the rent of 351. one B., a deed was entered into to settle the a year; and it was agreed between them that rights of the parties. It contained a clause to unless death or continued ill-health in either case the effect that, should the respondent succeed in should take place, the defendant promised to obtaining from the government a remission, in provide two bedrooms over the intended school-whole or in part, of an amount due from the room, but not before 1844; and when such firm for "timber dues," secured by a bond, he rooms should be provided, the defendant agreed to pay for them an additional rent of 51. a year. In an action on this agreement, the declaration alleged as a breach that although the whole of 1845, except a few days, had elapsed, and although the defendant had not been prevented by any ill-health, he had not, although often requested, provided the two bedrooms :-Held, that "the continued ill-health in either case" meant illhealth of either of the parties, and therefore that the declaration was bad for not averring that there had been no continued ill-health on the part of the plaintiff. Ireland v. Harris, 14 M. & W. 432.
Contract by Music Hall Artiste-"Engagement," whether Sundays included-"Perform."] -See Kelly v. London Pavilion, post, col. 271. "Good" or "Fine" Barley.]--The defendants wrote to the plaintiffs, and offered them a quantity of good barley, to which they answered that they accepted the offer, expecting the defendants would give them fine barley. The defendants, in reply, stated that their letter contained no such expression as fine barley, and that therefore they declined to ship the same. In an action against the defendants for not delivering the barley-Held, that it was for the jury to say whether the words " 'good' and "fine" were mercantile phrases, and that the court was to determine the meaning of the contract; and the jury having found that there was a distinction in the corn trade between good and fine barley, there was not a sufficient acceptance, and therefore the plaintiffs must be nonsuited. Hutchinson v. Bowker, 5 M. & W. 535; 9 L. J., Ex. 24.
should account for and pay to G. one-half of the amount so remitted. The government, upon the application of B., subsequently remitted upon the bonds an excess of rents paid by the firm :Held, that the assignee of G. was entitled under the agreement to have the benefit of this remission. Burstall v. Baptist, 21 W. R. 485—
"Becoming Insolvent."] The expression "Becoming insolvent " means a general inability to pay debts, and does not signify taking the benefit of the Insolvent Debtors Act, unless the context so restrains it. Biddlecombe v. Bond, 4 A. & E. 332; 5 N. & M. 621; 5 L. J., K. B. 47. In a contract for the supply of goods there was a condition that in the event of the bankruptcy or insolvency of the vendee, the contract should be terminated, or if he should be afflicted in mind or body so as to be unable to carry on his trade:-Held, that there was nothing in the contract to show that the word insolvency was used in a technical sense, and therefore it must be understood in its ordinary import of being unable to pay his just debts. Parker v. Gossage, 2 C. M. & R. 617; 1 Tyrw. & G. 105; 1 Gale, 288; 5 L. J., Ex. 4.
"Weekly Accounts"-Building Contract.]— In a contract under seal, by which the plaintiff contracted to build for defendants a house and premises for a certain sum, it was provided that "no alterations or additions should be admitted unless directed by the defendants' architect by writing under his hand, and a weekly account of the work done thereunder should be delivered to the architect every Monday next ensuing the performance of such work." In an action on the contract:-Held, that parol evidence was admissible to show that by the usage of the building trade
weekly accounts" meant accounts of the day work only, and did not extend to extra work capable of being measured. Myers v. Sarl, 30 L. J., Q. B. 9; 7 Jur. (N.s.) 97; 9 W. R. 96.
"Cider "-Liability to Duty.]-Where a contract was made between A. and B., whereby A., having a quantity of apples, agreed to sell his cider to B. at a certain price per hogshead, to be delivered at T. at a future time, and to lend such pipes as he had for the use of the cider, to be manufactured on his, A.'s, premises, and to be paid for before it was removed; and A., in pur- Rent Balance."]-Action for work done suance, delivered a quantity of juice expressed under the following agreement: — "Mrs. E. from the apples to a servant hired by B. to agrees with Mr. B. to cleanse the cesspools to manufacture the cider on A.'s premises, and the thirteen houses in S. street for Sl. 2s.: Mr. before the cider was completely manufactured | H.'s rent balance to be deducted from the said
sum." H. was a weekly tenant to the defendant of one of the houses. The agreement was signed in the middle of one of the weeks of his tenancy. At that time 21. was due from him for rent, but when the work was completed, another week's rent had become due. The judge at the trial having expressed an opinion that the rent balance meant the amount due when the agreement was signed, and the verdict having been found accordingly, the court refused a new trial. Edwards v. Bagster, 2 M. & W. 221.
Ice to be taken from the Deck."]-A cargo of ice was consigned to the plaintiff, and before the ship came into harbour the defendants purchased the cargo, with a condition that the ice was to be taken from the ship's deck by them-Held, that the contract "from the deck meant that the vendor should pay all that was necessary in order to enable the purchaser to remove the cargo from the deck, and that harbour dues charged to be paid before goods could be removed were payable by the vendor. Playford v. Mercer, 22 L. T. 41.
Whether Usage excluded.]—When two parties enter into a written contract, specifying the terms on which they contract, they are mutually bound by the terms as expressed in the writing, and construed by the court, although one may have understood differently from the other the effect of those terms. Baines v. Woodfall, 6 C. B. (N.S.) 657; 28 L. J., C. P. 338; 6 Jur. (N.S.)
The usage of insurance brokers at Liverpool is, that if, on the occasion of a policy for time being cancelled before the expiration of the time, the premium, or a part of it, is to be returned, the return is made only in respect of unbroken months; but a contract made by a proposal or request in these terms :-"We will thank you to render us a credit note for unexpired time, say from the 12th instant, to the date of the expiration of the policy," and an acceptance in these: "Please to hand bearer stamped policies, &c., to put forward returns for cancelling," must be construed as having been made irrespective of and excluding the usage. Ib. And see Buckle v. Knoop, supra.
Mode of Carrying out Contract.]-The mode agreed on to carry a contract into effect is as much binding on the parties as the contract itself. Frankfort v. Thorpe, 2 Ball & B. 372.
c. Implied Terms. Intention.]-In the construction of a document, the court will not imply a contract or a covenant not expressed in terms, unless it is satisfied from something to be found in the document that the parties to it must have intended such a contract or a covenant. Midland Ry. v. L. & N. W. Ry., 15 L. T. 264.
supply grains to the plaintiffs:-Held, that a term could not be implied in the contract to the effect that the defendants would not by any voluntary act of their own prevent themselves from continuing the sale of grains to the plaintiffs for the period mentioned. Such an implication of a term in a contract ought to be made only where it is necessary in order to give the transaction such efficacy as both parties must have intended it to have, and to prevent such failure of consideration as cannot have been within the contemplation of either party. The question whether in any case such an implication ought or ought not to be made must depend on the particular facts of the case. The construction of one contract in this respect affords little or no guidance for the construction of another. Hamlyn v. Wood, 60 L. J., Q. B. 734;  2 Q. B. 488; 65 L. T. 286; 40 W. R. 24—Č. A.
Not to alter Circumstances.]-If a party enters into an arrangement which can only take effect by the continuance of a certain existing state of circumstances, there is an implied engagement on his part that he shall do nothing of his own motion to put an end to that state of circumstances under which alone the arrangement can be operative. Stirling v. Maitland, 5 B. & S. 840; 34 L. J., Q. B. 1 ; 11 L. T. 337; 13 W. R. 76.
An insurance company covenanted with C. D., for a valuable consideration, to appoint him their agent, together with A. B., and that if A. B. should be displaced from the agency they would pay C. D. a certain sum; the company having transferred their business to another company, and wound up their affairs, and dissolved themselves:-Held, that it was a displacement of A. B. within the meaning of the covenant. Ib.
Altered Circumstances-Extra Cost. ]-Where a contract is made with reference to certain anticipated circumstances, and when it becomes wholly inapplicable or impossible of application to any such circumstances, without any default on the part of the plaintiff, it ceases to have any application: it cannot be applied to other circumstances which could not have been in the contemplation of the parties when the contract was made. Bush v. Whitehaven Trustees, 52
J. P. 392.
B. contracted with W. in the month of June to lay a certain conduit pipe, and W. agreed to be ready at all times to give B. possession of the sites, to enable him to proceed with the construction of the works. By means of W.'s delay in giving possession of portions of the sites to B., B. was thrown into the winter months when wages were higher and the works were more difficult to construct:-Held, that a summer contract having, by implication, been in the contemplation of the parties when the contract was made, B. was entitled to a quantum meruit or damages in respect of the increased expenditure which he was thereby compelled to incur. Ib.
Agreement for Sale of Products of a Transfer of Goodwill-Covenant to carry on Business. The defendants, who carried on busi-Business.]-A., in consideration that B. would ness as brewers, entered into an agreement in writing, by which they agreed to sell to the plaintiffs, and the plaintiffs agreed to buy, all the grains made by the defendants, at the average of the rates charged cach year by certain specified firms, from July 10, 1885, until September 30, 1895. In 1890 the defendants sold their business. and in consequence ceased to
transfer to him the goodwill of his business as a surgeon, promised to pay B. one-fourth part of his carnings for and in respect of each of four successive years, if he should be living at the end of cach respective year :-Held, that there was an implied covenant by A. to carry on the business, and that he would not during the four years, by his wilful acts or default, prevent the receipt
of earnings. M'Intyre v. Belcher, 14 C. B. (N.S.) 654; 32 L. J., C. P. 254; 10 Jur. (N.S.) 239; 8 L. T. 461; 11 W. R. 889.
stones from the quarries to the works by carts, entered into an agreement with their landlord to construct a tramway from the quarry to the works, to run, inter alia, "by the end of the Assignment of Patent in consideration of policy" of the landlord; and they further agreed Royalty Covenant to Maintain.]-By a deed, to compensate the farm tenants along the line dated in 1883, a patent was assigned by the in- for any damage done to their farms during the ventors and patentees to a company in con- currency of their leases. The landlord agreed, sideration of 2507., and the other considerations inter alia, to give gratuitously the land required thereinafter appearing. The deed contained for the tramway. Outside the policy ground covenants for title by the assignors, including a there was a private road, the property of the Covenant for quiet enjoyment of the patent landlord, which, before it reached the tenants' "during the term subsisting therein." The com- works, ran through another tenant's stone pavepany covenanted for the payment of a royalty ment yard. This was the only practical route for every article manufactured and sold by them outside the policy for the tramway; and it was under the patent "while subsisting," and also alleged that the only obstacle to laying it along for payment of a share of any sums obtained by that road was, that the other tenant might regranting licences under the patent "while sub-fuse to allow it being laid on that part passing sisting." In consequence of the company having, through his yard, but for this there was no by inadvertence, omitted to pay one of the re- termini habiles. The tenants claimed that the newal fees of 107., payable under the Patents, landlord was bound to give them the use and Designs, and Trade Marks Act, 1883, in lieu of possession of land for the purpose of the tramthe stamp duty of 507., the patent became void. way, and that either (1) "within and by the end An unsuccessful application was then made by of the policy," or (2) "in any other place as the company to parliament for an act to revive suitable and convenient for them in every the patent. Subsequently the company went respect":-Held, that under the agreement the into voluntary liquidation. The assignors sent stipulation was that the tramway should pass in a claim to the liquidators for 2,000l. damages outside the walls which enclose the policy of the for the less of the patent, contending that the landlord; and that, by agreeing to give assignment contained, by implication, though not gratuitously the lands required, the landlord in express terms, a covenant by the company to merely undertook to give the tenants such rights keep the patent on foot. Thereupon a summons as were vested in him, leaving them (with power was taken out by the liquidators under s. 138 of to use his name) to settle with any persons who the Companies Act, 1862, for directions as to might have a right or interest entitling them to whether they should allow all or any part of the object to the formation of the tramway. Sinclaim-Held, that there was no implied cove-clair v. Caithness Flagstone Quarrying Co., nant to keep the patent on foot, and that, there- L. R. 6 App. Cas. 340. fore, the claim of the patentees entirely failed. But held, that even if such a covenant could be implied, yet, as there was no obligation on the part of the company to manufacture the patented article, in no circumstances could more than nominal damages be claimed. Railway and Electric Appliances Co., In re, 57 L. J., Ch. 1027; 38 Ch. D. 597; 59 L. T. 22; 36 W. R. 730.
Agreement in Articles of Association Excluding Voluntary Winding-up.]-See Ellis Dudson, 60 L. J., Ch. 353.
Implied Warranty.-See supra, Warranty.
To Give Employment.]-Where H. contracts to furnish R. with a reasonable quantity of work Contract to supply Gas-Specific Period.]-A work for any other person or persons for a period at a fixed rate of wages, and R. is bound not to gas company agrees to supply with gas A.'s pre-of seven years, there is a mutuality of contract mises, situate in a town where there is no other gas company, and he accordingly fits his premises with pipes, burners, stoves, and meter, for the reception and use of the gas. There is no implied contract that the company, although having a monopoly, is to continue to supply the gas for any specific period. Hoddesdon Gas and Coke Co. v. Haselwood, 6 C. B. (N.S.) 239; 28 L. J., C. P. 268; 5 Jur. (N.S.) 1013; 7 W. R.
Agreement to pay Debt on recovering Estate -Promise to take Proceedings.]-A., by agreement, not under seal, in consideration of B.'s consenting to a supersedeas of a commission against him, undertook, in the event of his recovering a certain estate, to liquidate B.'s claim on him, which he was not bound legally to do: -Held, that this raised an implied promise on the part of A. to take some steps for recovery of the estate. Edmunds v. Wilkinson, 7 Car. &
implied, and H. is bound to furnish work for the whole period of seven years. Hartley v. Cummings, 5 C. B. 247; 2 Car. & K. 433; 17 L. J., C. P. 84; 12 Jur. 57.
he should serve them for seven years as a crownThe plaintiffs agreed in writing with L., that glass maker-that he should not, during that term, work for any other person without their licence-that they might deduct from his wages any fine he might incur for breach of their rules
that, during any depression of trade, if he should be sick or lame, the plaintiffs should be at liberty to employ any other person in his stead without paying him any wages--that the plaintiffs should pay him so long as he should be employed and work wages by the piece, and 8. a year in lieu of house-rent and firing; and that the plaintiffs should have the option of dismissing him from their service on giving him a month's notice or a month's wages:-Held, that this agreement bound the plaintiffs to employ him during the seven years, subject to the above power of dismissal -that there was, therefore, a good consideration for L.'s contract to serve for seven years. Pilkington v. Scott, 15 M. & W. 657; 15 L. J., Ex. 329.
An agreement, by which a person and others | between Hatfield and Ware. The plaintiff thereagreed to serve the owners of a colliery, to work upon brought an action against the company, coals and do other works for carrying on the colliery as they should be required, at the rates and on the terms as follows :-The parties hired shall, during all times the pit shall be laid off, work, and continue the servants of the owners, subject to their orders and directions, and liable to be employed by them at such work as they shall see fit, and that the hewers shall, when required (except when prevented by sickness or other unavoidable cause), do and perform a full day's work on each and every working day": :Held, that there did not arise upon this agreement an implied promise on the part of the owners to keep the works open, for the purpose of affording to the plaintiff an opportunity of working and earning wages. Williamson v. Taylor, 5 Q. B. 175; 13 L. J., Q. B. 81; 8 Jur.
To Accept Goods.]—A. agreed to let, and B. to take, for one year, at a stipulated rent, certain works; and A. agreed to supply to B. the whole of the chlorine still waste, as it came from his
the declaration in which stated that it was mutually agreed between the plaintiff and the company that the plaintiff should carry all grain and other merchandise for the company between Hatfield and Ware, at the rate aforesaid, for one year," and alleged as a breach that although the plaintiff had always been ready and willing to perform his part of the agreement, yet the company would not permit him to perform the same, but prevented him from so doing, and wrongfully discharged him from any further performance of it :-Held, first, that the above was a unilateral agreement, the only contract on the part of the company being to pay the stipu lated price for the carriage of such goods between Hatfield and Ware as might be presented to the plaintiff for that purpose, and consequently the agreement alleged in the declaration was not proved. Burton v. Great Northern Ry., 9 Ex. 507; 23 L. J., Ex. 184 ; 2 W. R. 257.
Held, secondly, that if the declaration was amended by stating that the agreement was to carry such goods as should be presented to the plaintiff," the declaration would be bad in arrest of judgment, since there was no breach of that contract, for no goods were ever presented. Ib.
d. Several Documents.
Construction preferred which renders contemporaneous documents consistent. Phoenix Bessemer Steel Co., In re, 44 L. J., Ch. 683; 34 L. T.
Failure to prove one of the Documents.]The plaintiffs claimed the specific performance of an agreement for the composition of a literary work by the defendant, alleging that the agree
stills, neither adding to nor taking anything from the same, at the rate of 2s. 6d. for every twenty-one hundredweight of waste so supplied, with the undertaking that B. was to have the option of a lease of the premises for seven or fourteen years at the same rent, if he should feel disposed so to do, within three months from the date thereof. And A. agreed not to use, or ment was contained in three written documents. injure, or part with any of the still waste except At the trial the first and third of the documents to B., so long as he should hold the works :were proved; the second was not produced, nor Held, that B. was bound to accept and pay for was any evidence given of its contents. the whole of A.'s chlorine still waste during the defendant, by his statement of defence, denied year or such further term as B. should hold the that he had agreed with the plaintiffs as alleged works; and that it was no answer to an action by them with reference to the second document: for not accepting it, that B.'s manufacture failed-Held, that the plaintiffs were not entitled to and was discontinued and the chlorine still waste proved useless, and was no longer necessary for the manufacture. Bealey v. Stuart, 7 H. & N. 753; 31 L. J., Ex. 281 ; 8 Jur. (N.S.) 389.
specific performance of the agreement contained in the first and third documents, or to damages for the breach of it. Pest v. Marsh, 50 L. J., Ch. 287; 16 Ch. D. 395; 43 L. T. 628; 29 W. R. 198.
To Supply Goods for Carriage—Unilateral Contract. By agreement of the 1st of October, Covering Letter to Agent Condition 1851, between a railway company and the Waiver.]-T., who was desirous of floating a plaintiff, the plaintiff undertook to provide all gold mining company in England, sent, through waggons, horses, &c., necessary for the cartage of his broker F., a letter to D., a Dublin stockgrain, merchandise, &c., between Hatfield and broker, offering him a specified fee in consideraWare, and to convey all grain, merchandise, &c., tion of the company going to allotment, and D. that might be presented to him for that purpose allowing his name to be used as stockbroker. between the above points for 5s. per ton. "And D. signed a letter of acceptance, which had also it is mutually agreed that the agreement should been forwarded to him by T., through F., and continue in force for the period of twelve months sent the acceptance to F. in a covering letter from the date thereof." The plaintiff purchased addressed to F., in which D. mentioned that he waggons, horses, &c., and commenced carrying signed the acceptance on the distinct underbetween Hatfield and Ware, under the agree-standing that Messrs. H. (an English firm) also ment. On the 18th March, 1852, the company joined. The company's prospectus was issued, gave the plaintiff notice that the arrangement but instead of Messrs. H., another firm of equal entered into for the conveyance of grain, mer- high standing appeared as the English brokers chandise, &c., would cease from and after the 1st of the company. D., who was only interested in of April next. Accordingly, on the 1st of April not being associated with what are commonly the company ceased to present any goods what-known as mining brokers, made no objection to ever to the plaintiff for carriage in consequence the substitution, did not withdraw his name, of having leased a portion of the line to another and acted as Dublin broker until the company company, and bound themselves not to carry went to allotment. In an action for the fee :