THE PEKIN.

The Leverington coming up the Cardiff Drain at a place before it divides (as it then did) into the channels leading to the East Bute Dock and the Roath Basin respectively, and proceeding for the East Bute Dock (as appears from a full report of the judgment of the Lord Chancellor), had the Kapid, which was in the channel leading to the Roath Basin, three or four points on her starboard bow. She slightly quickened her speed for the purpose of crossing the bows of the Rapid and so keeping out of her way, and would have accomplished her object had not the Rapid frustrated it by porting. It is clear that the two vessels were crossing each other's courses, for they could not else have reached their destinations, and at a time which involved a risk of collision; and it is equally clear, especially having regard to the extreme narrowness of the channels, that the Rapid should have been aware of the fact.

The learned Chief Justice in the Court below has based his judgment not so much on the above view, as on the conclusion at which he has arrived that the Pekin did in fact, though porting her helm, keep her course. She did so, because, owing to the bend in the river, that was the proper and ordinary method of reaching the starboard side of the main channel for a vessel which had been coming up by the outside portion of the divided channel. This is also the view of their Lordships' assessors, and their Lordships agree with it.

The remaining question is whether the Pekin reversed her engines in due time. There is evidence which was pressed with considerable force against the Pekin on this point. According to the account given on her behalf, and as the learned Chief Justice has found, she reversed her paddles when the vessels were only 300 feet apart. It is clear that she stopped her engines without reversing them at an earlier time, and it is urged that, though she may have brought herself to a standstill by the time of the collision, had she reversed sooner the collision Iwould have been avoided. The evidence of the captain of the Pekin is as follows: "When I first distinguished the Normandie I was at the Old Dock Buoy, and

he looked to me as if he was about opposite Ariel. I then ordered one whistle, and go slow and port a little; whistle was blown, ported, and the speed slackened. He seemed to be going neither one side nor the other. . . . My next orders were to blow one whistle and stop. I heard these executed. When he was 300 feet from me I went full speed astern." It is clear, therefore, that when, or even before, the Pekin stopped her engines, the situation was seen to be one of difficulty, and that the engines were not reversed until after an appreciable interval. It is of the utmost importance that vessels should reverse their engines in order to bring themselves to a stop as soon as ever risk of collision arises, and if their Lordships were sitting as a Court of first instance in the present case they might find it difficult to say that the Pekin fulfilled her duty in this respect. But there is nothing on the notes of the evidence to shew that those responsible for the navigation of the Pekin were asked to explain why they did not reverse their engines at an earlier time, and there is nothing from which it can be clearly made out what was the length of the interval of time which separated the orders to stop and to reverse. The learned Chief Justice, however, saw the witnesses, and heard their evidence given at full length, and not in the abbreviated form in which it appears on the notes. evidently had his attention directed to the point, and he has found that "before the collision the Pekin was not proceeding at an improper rate of speed, and that she took all the measures she could by stopping and reversing her engines to avoid the collision." From this decision their Lordships do not feel it necessary to dissent.

He

The appeal must therefore be dismissed with costs, and their Lordships will humbly advise her Majesty accordingly.

Solicitors-Stokes & Stokes, for appellants; Waltons, Johnson, Bubb & Whatton, for respondents.

[Reported by J. Eyre Thompson, Esq., Barrister-at-Law.

1897. May 21, 25. July 24.

PEARSE (appellant) v. SCHWEDER AND co. (respondents).*

resulted in making the memorandum in question. The evidence by which the appellant sought to prove that there was a concluded agreement is as follows:

On May 2, 1893, Percy Schweder wrote a letter from Cape Town to the appellant at Durban which contains the following paragraph: "But for our better understanding it is necessary for me to enlighten you as to my position-namely, that the London firm and myself are one, since I am the responsible partner in charge of the entire South African business, and therefore so long as I am in this part of the world my instructions have to be your guide and none other, and in case of conflict of instruction or doubt your reference has to be to me. Your presumption that you must follow London, as they have better information than I probably, is

Hollams, for the respondents.

July 24.-SIR RICHARD COUCH delivered the judgment of their Lordships:

The principal question in this case is whether an agreement was come to and conclusively made between the appellant and respondents, whereby the latter agreed to employ the former as their agent in Natal for buying wool and other produce, on the terms contained in a memorandum in writing made on October 21, 1892, by the appellant and Percy Schweder, a member of the respondent firm. The suit was brought by the appellant against the respondent for breaches of this alleged agreement. The appellant at the time of the transaction was a wool buyer, and carried on business at Durban in the colony of Natal. The respondents are wool merchants carrying on business in the city of London, and prior to 1893 the appellant had been in the habit of purchasing wool and other produce for them on commission. In March, 1893, Percy Schweder went out to South Africa,

Coram, Lord Macnaghten, Lord Morris, Sir Richard Couch, and Mr. Way.

this from your mind. I am in constant cable communication and correspondence with my people at home, as you may imagine, and even their letters to you (the copies) pass through my hands here before you see the originals. I wish to avoid everything causing misunderstanding, but I beg to remind you of the first message I wrote to you on landing in this country -namely, that henceforth the whole business centres in me, and you must take your instructions from me. If not it will give trouble.” The other part of the letter is not material to the present question. On August 5, 1893, he wrote from Cape Town to the appellant at Durban a letter in which, after saying he had determined not to entrust him with any further credits, "because it is not safe for us to give you the power to draw, seeing that we have no guarantee through your part that your shipments will turn out what they profess," he says, "If you are in a position to place an effective and substantial guarantee to the extent of 2,0007. at my disposal to be availed of by me or my firm to cover deficiencies arising at any time through your disregard of orders and instructions, short falls of yields or

PEARSE v. SCHWEDER & Co.

the like, if you are able to get me the guarantee of a bank or thoroughly responsible and substantial guarantor, I shall be willing to approach the subject of employing you in some shape or other again for the execution of our Natal orders."

On August 16, 1893, the appellant wrote to Percy Schweder complaining that for the past few months he had suffered from constant misunderstandings, and saying that if they had met he intended proposing that for the purpose of acquiring a complete control of his Natal agency Percy Schweder should alter the appellant's terms to a salary and commission, and making various suggestions for the conduct of the business. To this letter Percy Schweder replied by one of August 25, 1893, dated Cape Town, in which he says, "I have been considering your letter 16th instant"; and after justifying himself in regard to the complaints of the appellant, says, "I could not without consulting with my London partners express myself as to the expediency of entertaining your proposal to take over your business and place you on salary and commission. I am writing them this mail, and will hear what they say." It was admitted before their Lordships that the time of the post between Cape Town and London was nineteen days, and it may reasonably be assumed that this letter was answered and that Percy Schweder had received their opinion before October 21. The correspondence between him and the firm in London was not put in by the respondents. On September 9 the appellant again wrote to Percy Schweder referring to his letter of August 16, and the reply to it, and submitting an outline of business on the new basis he proposed that it should in future assume. In it he says: 66 The season will soon be upon us, and if you wish to wait the exchange of letters with London before finally agreeing, I further suggest that we commence working on these lines on the understanding that the agreement may be cancelled if letters you shortly expect veto it." This was relied upon by the learned counsel for the respondents, but Percy Schweder in his reply of September 14, where he discusses the proposals, does not take any

notice of it, only saying that he should not think of taking a new departure like this without a personal interview.

He

The interview took place at East London on Saturday, October 21. The appellant in his evidence said: "I met Mr. Schweder at Boorman's Hotel. Off and on we spent the whole day discussing the matter. I was most of my time there with him discussing the future working of Natal agency. Certain conditions were reduced to writing late on Sunday night. The matter was very much discussed on Saturday and Sunday. We both agreed to put our agreement in writing. reduced it to writing, and I now see this document. It was entirely his own composition. I merely threw in a word now and then. After he had written it out, at his suggestion I wrote a copy of it for him. This writing I also see. The one he wrote is not dated. My copy is dated October 21, 1893, the date being in Schweder's. This was done on Sunday because I was leaving early on Monday morning. I suggested he should sign his copy and he mine. He said, 'I am not very particular about formal documents. I think you had better go back to Natal and elaborate it in a letter addressed.' It was a bargain then and there. He said, 'I hope you leave East London in good spirits for the new season.' I said I was satisfied it was a fair arrangement. There was not one word said about its being provisional or that it was subject to veto or ratification from London; I had no such idea in my mind, and I also acted accordingly." The appellant also said that a proposal as to the union of Schweder & Co's business with Flack & Co. was discussed at considerable length, and he believed the arrangement P. Schweder thought of was to be subject to ratification in London. The two copies were put in evidence. Percy Schweder was not called as a witness, and this evidence of the appellant is uncontradicted. only explanation of his not being called is in a letter of the respondents' solicitors in which it is said that he was debarred from coming to Natal by a threat of arresting him.

The

One of the terms in the writings is that the respondents were to provide the

PEARSE v. SCHWEDER & Co. appellant with a clean overdraft at a bank for 2,000l., and R. Richards, the fatherin-law of the appellant, was to stand guarantor for the proper application and faithful repayment to the extent of 1,0007. of such overdraft. In their plea the respondents say that Richards did not give a guarantee in the terms of the "treaty or negotiation," and this objection was taken before their Lordships. Richards was examined as a witness, and said that he had always been willing to become a guarantor on the basis set out in the agreement, and considered himself bound by his letter of October 26. In this letter, addressed to the respondents' firm, which he said he handed to the appellant for Percy Schweder, he gave a guarantee for 1,000l., and it appears in his letter of November 4 that P. Schweder had received it. The terms of this guarantee are, in their Lordships' opinion, sufficient to satisfy the provision in the memorandum of agreement.

On October 27, 1893, the appellant wrote a letter to Percy Schweder in which he said, "For convenience sake I recapitulate the terms arranged in East London for the conduct of your Natal business during the coming season." The recapitulation was substantially the same as the memorandum made at East London, but was not in the same words. On November 4 P. Schweder replied to this letter, objecting to parts of it as not entirely following the headings and terms of the memorandum, and saying that the guarantee was not sufficient. The appellant replied to this on November 11, and on November 17 P. Schweder wrote to him thus: "Agreement-I think it will be better to have it set forth clearly; at the same time, now that we are agreed in principle and have all the points thereof defined through our exchange of letters, the matter can rest till I get to Durban, which, however, will not be as early as I hoped." The letter of November 4 contained instructions to the appellant to buy skins, which he did to a considerable extent; and an account having been opened with the Bank of Africa, there was on December 14 an overdraft of 8501. On that day P. Schweder sent a telegram to the appellant-" Schweder's, London

write me not complete proposed agreement nor grant clean overdraft. Consequently instructed bank you will repay amount taken cancelling remainder," and on the same day he wrote a letter saying that the proposed arrangement must fall through and be abandoned.

The defendants' counsel called no witness, and the jury found that a binding agreement was made on October 21, 1893, and was acted upon, and assessed the damages at 7501. Thereupon judgment was entered for the plaintiff. On September 1, 1894, an application was made to the Supreme Court for an order setting aside the verdict and judgment, and entering judgment for the defendants, or absolving them from the instance or granting a new trial. On September 11 the Court ordered the judgment to be turned "into absolution of defendants from the instance," which was understood on the hearing of the appeal to be a judgment for the defendants setting aside the verdict.

Now before the verdict could be set aside it was necessary to determine whether upon the evidence before the jury it was one which they could reasonably find. In their Lordships' opinion it was, and they do not see any ground for setting it aside and granting a new trial, still less for entering judgment for the defendants. There was certainly evidence for the jury to consider. From the reasons of the learned Judges stated in the Supplemental Record, it appears to their Lordships that the order was made on the ground that the Court did not agree with the jury, and thought the verdict was wrong. The Chief Justice says: "We have heard and carefully considered the facts in this case, and have had the benefit of the correspondence both before and after this alleged contract of October 21, and we have come to the conclusion that there was no completed contract on which the plaintiff could succeed in a Court of law." In another part he says: "My impression is that they settled the terms between themselves subject to adoption by the English firm, and that they had not corrected the terms between them. When the corrections came before the English firm the arrangement was altered in