1858. LINDUS v. MELROSE. pression "jointly" alone. It is by no means inconsistent with an official promise that it should be joint; it is, after all, but an expression of the quality which the promise, not being several, must in fact possess. My brothers Crompton and Willes entertain considerable doubt upon the construction of the instrument, not however sufficiently strong to induce them to dissent from the judgment of the Court; although they are anxious to guard against its being supposed that in the judgment we pronounce we intend to throw any doubt upon the rule, that an agent putting his name to a mercantile instrument is liable as a principal, unless the instrument distinctly shews that he signs as agent; or that we mean to break in upon the rule "verba fortius accipiuntur contra proferentem," which however ought to be applied only where other rules of construction fail. In these remarks of my brothers we entirely concur. Many cases were cited on the argument, but we do not think it necessary now to go through them, for each depends on its own circumstances, and this must be decided on the same principle. We are of opinion that the judgment must be affirmed. Judgment affirmed. IN THE EXCHEQUER CHAMBER. (Appeal from the Court of Exchequer.) 1858. THE GREAT WESTERN RAILWAY COMPANY v. CROUCH. of THIS was an appeal from the judgment of the Court below will be found in 2 H. & N. 491. The case stated on appeal was as follows: Feb. 23. The plaintiff delivered in defendants, a the plaintiff's agent at Ply. mouth. The railway termi The plaintiff was and is a carrier residing in London, part of whose business consisted in collecting small parcels, packing them in one parcel and so forwarding them to their defendants' place of destination, addressed to an agent of the plaintiff nates at Briswho there distributed the small parcels according to their whence they respective addresses. The Great Western Railway Company were and are the owners of the Great Western Railway extending from the tol, from forwarded the parcel to Plymouth by the South Devon Railway, and shortly before noon, on the day of its arrival, a porter tendered it to the plaintiff's agent, who refused to pay the sum charged for its carriage, whereupon the porter took it away, saying that it would be returned to London; and it was accordingly sent back to London at eight o'clock in the morning of the following day. About two hours afterwards the plaintiff's agent tendered at the office of the South Devon Railway the amount of the carriage and demanded the parcel, when he was told that it had been that morning returned to London. The parcel remained in the custody of the defendants at their office in London, and it did not appear that the plaintiff had applied for it there. The jury found that the parcel was sent back to London unreasonably soon; and that the demand of the parcel and tender of the charge for the carriage was made within a reasonable time after the parcel had been refused.-Held, in the Exchequer Chamber (affirming the judgment of the Court of Exchequer), that, under these circumstances, the defendants were liable for a breach of duty, even supposing their duty qua carriers ended with the tender of the parcel: Per Cockburn, C. J., Crompton, J., Williams, J., and Willes, J. Crowder, J., dissentiente. Wightman, J., dubitante. Also that there was no evidence of a conversion: Per Crowder, J., and Wightman, J. A declaration stated that the plaintiff delivered to the defendants, as common carriers, a parcel to be carried by them from London to Plymouth, and alleged as a breach the nondelivery of the parcel to the plaintiff at Plymouth. The defendants pleaded a tender on payment for the carriage, but that the plaintiff refused to pay the amount, whereupon the defendants refused to deliver the parcel. The plaintiff replied that within a reasonable time after the defendants had tendered the parcel, he offered at Plymouth to pay for its carriage and requested the defendants to deliver it, but they refused to deliver it at Plymouth. The defendants having taken issue on this replication, the jury found that the allegations in it were proved. Held, that if the circumstance of the defendants having sent back the parcel to London afforded an excuse for its nondelivery, that should have been specially rejoined: Per Wightman, J. VOL. III.-N. S. EXCH. 1858. GREAT WESTERN RAILWAY Co. v. CROUCH. Paddington station London to Bristol, from which latter place to Plymouth the communication by railway is over the Bristol and Exeter Railway and the South Devon Railway. The Great Western Railway Company, at the times in question, were common carriers of goods for hire from London to Plymouth over the above railways. The Great Western Railway Company had no other agents at Plymouth to deliver goods and receive the carriage charges except the South Devon Railway Company, who performed these offices for them. On the 26th day of July, 1856, the plaintiff delivered the parcel of goods in question at the booking office of the "Swan with Two Necks" in the city of London, kept by Messrs. Chaplin & Horne, where parcels were received to be carried by the Great Western Railway Company. The parcel was addressed "To Mr. Reynolds, Plymouth," and was to be carried to Plymouth by the Great Western Railway Company and there delivered to Mr. Reynolds, who was the plaintiff's agent at Plymouth. The parcel was delivered as an ordinary parcel and was marked with the sum of 1s. 6d., being the ordinary carriage of such a parcel to Plymouth, but being afterwards discovered to be a packed parcel this sum was altered and the sum of 2s. 3d. marked instead thereof. An agreement was come to at the trial by admitting that 2s. 3d. was the correct charge for the parcel in question, and such admission was made by the plaintiff accordingly, and the fact is to be so taken for the purposes of this case. The parcel was accordingly carried or forwarded by the Great Western Railway Company to Plymouth, where it arrived in due course on Monday the 28th of July. Shortly before noon of that day, it was in the usual way taken on for delivery by the railway porter of the South Devon Railway Company, and tendered for delivery at the place of business of Mr. Reynolds to a man named Morgan employed by Reynolds in his business; Reynolds was not then at his place of business. The porter demanded the sum of 2s. 3d. for the carriage which Morgan refused to pay, but offered to pay the sum of 1s. 6d. as the proper amount of carriage. This latter sum was refused by the porter, who informed Morgan that the parcel would be returned to London if the charge of 2s. 3d. was not paid. Payment being still refused, the parcel was taken by the porter back to the railway station of the South Devon Railway Company at Plymouth, and was sent off to London by the South Devon Railway Company by the train which left Plymouth at eight o'clock in the morning of the following day. About two hours after the parcel had been so sent off to London, the sum of 2s. 3d. was, under protest, tendered by Morgan, by the direction of Mr. Reynolds, to the clerk of the South Devon Railway Company at Plymouth, and the parcel demanded of him. The clerk informed Morgan that the parcel had that morning been returned to London. The parcel, being as aforesaid returned to London, arrived in due course at the Paddington station of the Great Western Railway Company, and there remained in the care of the Great Western Railway Company until the trial of the cause. In answer to questions put to them by the Lord Chief Baron, the jury found that the parcel was sent back to London unreasonably soon; and that the parcel ought not to have been sent back to London; and that the demand of the parcel and tender of the 2s. 3d. were made within a reasonable time after the parcel had been refused: wherethe Lord Chief Baron directed a verdict to be entered for the plaintiff with 197. 17s. damages, being the value of the parcel as found by the jury; leave being reserved to the defendants to move to enter the verdict for them. upon 1858. GREAT WESTERN RAILWAY Co. v. CROUCH. 1858. GREAT WESTERN RAILWAY CO. v. CROUCH. On the 21st day of April, 1857, a rule nisi was obtained to enter the verdict for the defendants, or for a new trial, on the grounds that the defendants having carried the parcel and tendered it at Plymouth to the plaintiff in due course, and the plaintiff having refused to pay the amount of the carriage, the defendants were not liable; and that there was no duty or obligation on the defendants or the South Devon Railway Company to keep the parcel at Plymouth after the plaintiff's refusal to pay the carriage: that if the act of sending back the parcel to London was wrongful it was the act of the South Devon Railway Company, and that the defendants would not be liable for such act on their part; and that the verdict was against the evidence on the questions left to the jury as to the unreasonableness of sending back the parcel to London. This rule having been argued, it was decided by the Court of Exchequer that the verdict found for the plaintiff, so far as it related to the issue found on the first replication to the defendants' third plea, should be set aside, and a verdict entered on such issue for the defendants; and that as to the residue of the said rule the same should be discharged. The defendants having appealed against that decision, the case was argued in the present Vacation (a) (Feb. 4) by Bovill, for the appellants.-The duty of the defendants as carriers, was simply to perform what they agreed to do, viz., to take the parcel to its destination. When they had done that, there was a reciprocal duty on the part of the plaintiff, to be willing to receive the parcel and pay the defendants' charge for its carriage. The plaintiff broke his contract, and now contends that he thereby imposed a fresh obliga (a) Before Cockburn, C. J., Wightman, J., Erle, J., Williams, J., Crompton, J., Crowder, J., and Willes, J. |