v.

WOODHALL.

ATKINSON I am clearly of opinion that this case is provided for, and that no action at law can be maintained which calls upon a jury to apportion salvage money among the several members of a crew. Mr. Joyce relied upon a letter of the defendant as evidence which entitled the plaintiff to recover. But it turned out that the offer contained in that letter was not accepted by the plaintiff, so that if the case had been left to the jury and they had found a verdict for him, they would have come to a different conclusion from himself as to what he was entitled to for salvage. If the plaintiff had agreed to accept the sum offered, it may be that he might have recovered it as money had and received for his use or on an account stated.

[ *173 ]

1862. May 17.

[174]

WILDE, B.:

I am of the same opinion. The apportionment of salvage is essentially a matter of Admiralty jurisdiction. *Mr. Joyce had cited no text-book or authority in support of his proposition, that an action at law can be maintained by a seaman for his share of salvage. Great mischief would ensue if such questions were withdrawn from the rules adopted by Courts of Admiralty and submitted to a jury. It is not true that there are no provisions in the 17 & 18 Vict. c. 104, for the division of salvage money where it does not exceed 2001. The sections of the Act to which I have referred, taken in connection with the instructions issued by the Board of Trade, are sufficient to meet every case. But whatever difficulty the plaintiff might have in enforcing his claim, I should require some authority for holding that such an action could be maintained in a court of law.

As to the defendant's offer to pay the plaintiff 67. 13s. 4d., my Lord has already pointed out that it was not accepted; if it had been, the case might have been different.

Rule refused (1).

IN THE EXCHEQUER CHAMBER.

DURRELL v. EVANS (2).

(1 H. & C. 174-193; S. C. 31 L. J. Ex. 337; 9 Jur. N. S. 104; 10 W. R.

665; 7 L. T. N. S. 97.)

The plaintiff, a hop grower, having sent samples of his hops to his factor, the defendant went to the factor and offered to buy some at 161. 168. a cwt. After some negociation between the defendant, the factor and the plaintiff, the latter agreed to sell the hops at that price, and the factor wrote in his book, in the presence of the plaintiff and defendant, a memorandum of the bargain in duplicate, one part of which he headed with the name of the defendant and the other part with the name

(1) Martin, B., and Channell, B.,

were not present.

(2) Distinguished,

Murphy V.

Boese (1875) L. R. 10 Ex. 126, 44
L. J. Ex. 40.

of the plaintiff. The defendant requested that the date might be altered, so that by the custom of the hop trade he would have a week's more time for payment. The plaintiff consented, and the alteration was made by the factor, who tore from his book the part of the memorandum headed with the name of the defendant and delivered it to him, and kept the counterfoil in his possession: Held, that there was evidence for the jury that the factor was the agent of both parties for the purpose of drawing a record of the contract binding on them; and that, if he were, the name of the defendant at the head of that part of the memorandum delivered to him was a sufficient signature by his agent within the 17th section of the Statute of Frauds (1).

THIS was an appeal from the decision of the Court of Exchequer in setting aside a verdict for the plaintiff and entering a nonsuit. The case on appeal (so far as material) was as follows:

The first count of the declaration stated that, by an agreement between the plaintiff and the defendants, the plaintiff agreed to sell and deliver to the defendants, and the defendants agreed to buy, accept, and pay the plaintiff for thirty-three pockets of hops at the price of 167. 16s. a cwt., to be paid on the 3rd November, 1860. Averment: that the plaintiff did all things necessary, &c., to entitle him to have the defendants buy, accept, and pay for the said hops as agreed. Breach: that the defendants would not buy, accept, or pay for the same. The second count was for money payable by the defendants to the plaintiff for goods bargained and sold, &c.

Pleas (inter alia): to first count. That the defendants did not agree as in that count alleged.

To the residue of the declaration. Never indebted. Issues thereon.

The cause was tried before the Lord Chief Baron at the London sittings after Michaelmas Term, 1860, when a verdict was found for the plaintiff, with 4207. damages, leave being reserved to the defendants to enter a verdict for them, or a nonsuit.

The plaintiff is a hop grower in Kent. The defendants are hop merchants carrying on business in the borough of Southwark. . Previous to the 19th October, 1860, the plaintiff had sent samples of the hops, forming the subject of this action, to Mr. J. T. and W. Noakes, who carry on business as hop factors in the said borough of Southwark, with instructions to sell the same for the plaintiff, but not under 181. per cwt. On Friday (October 19) the defendant J. C. Evans called on Messrs. Noakes and asked to see samples of the plaintiff's hops, which were shown to him. Upon asking the price, Mr. J. T. Noakes replied that he was instructed by the plaintiff not to sell under 181. per cwt. The defendant, J. C. Evans, said that was too high a price for them, and he should not give so high a price for them. He then left Messrs. Noakes' premises. On the afternoon of the same

(1) See now Sale of Goods Act, 1893, s. 4.

day, Friday (October 19), the plaintiff happened to be in the borough and met the defendant, J. C. Evans; a conversation took place between them with reference to the plaintiff's hops. Mr. J. C. Evans offered the plaintiff 167. 16s. per cwt. which the plaintiff refused, but ultimately both parties went to Messrs. Noakes' counting-house and saw Mr. J. T. Noakes on the subject. Some further conversation took place as to the purchase of the hops, which ended in Mr. J. C. *Evans refusing to give any more than 167. 16s. per cwt. The plaintiff (in the presence and hearing of Mr. Evans) asked Mr. J. T. Noakes whether he would recommend him (the plaintiff) to accept Mr. Evans' offer. Mr. Noakes advised him to do so, and the plaintiff agreed to sell the hops at that price. Mr. Noakes then wrote out a sale note in duplicate.

By the custom of the hop trade hops are payable on the Saturday week following the day of the sale. This transaction took place on Friday the 19th day of October, and the money would consequently have become payable in due course on Saturday, October the 27th.

The said Mr. Noakes therefore drew out the following memorandum, and dated it the 19th day of October. Whereupon Mr. Evans requested him to alter the date to the 20th, in order that he might have another week's time for payment. The plaintiff and Mr. Noakes consented to this, and the alteration was accordingly made by Mr. Noakes, who then gave the said memorandum so altered to Mr. J. C. Evans who took the same away with him, and he has never yet returned it. The said memorandum was torn from a book which contained a counterfoil, and which was filled up in the following form and retained by Messrs. Noakes. The following is a copy of the memorandum first referred to: "Messrs. EVANS.

Bought of J. T. AND W. NOAKES.

"Bags. Pocks. T. Durrell.

£16 168.

177 ]

The following is a copy of the counterfoil above referred to:

No note or memorandum (except as aforesaid) was signed or given by the defendants or any person on their behalf; nor was

there any writing relating to the said contract except as above set out, and the invoice after mentioned.

A sample of each of the pockets of hops was sent by Messrs. Noakes to the defendants the same evening, and the defendants have ever since retained them and still keep them. In the usual course of business, after the purchase is completed by the factor, an appointment is made between the vendor and the purchaser for the hops to be weighed, for which purpose they are sent by the vendor to his factor's warehouse. In this instance the appointment was made for the following Friday, October the 23rd, and on that morning the hops were sent to Messrs. Noakes' warehouse. The warehouseman of the factor generally weighs on behalf of the vendor, and the purchaser either comes himself or send some one to see them weighed on his behalf. In this case the plaintiff came up to see his hops weighed, and the defendants sent one of their men (James Wenn) to see them weighed for them. Each weigher has a book in which he records the weight of each pocket, and also the excise weight with the number or figure with which each pocket is marked or distinguished. On this occasion the weighing proceeded in the usual course until five pockets had been weighed, when a dispute took place between the weighers, and ultimately the defendants' weigher refused to weigh any *more. The defendant, Robert Percival Evans, came into the warehouse at this time and went to the scale and saw weighed the pocket that was therein. Having done so he cut it open and took out a portion of the hops and said they were damp. The plaintiff denied that they were damp, but the defendant persisted in his statement and finally said he should not take the hops at all, and left the warehouse with his man.

After the defendant and his weigher left the warehouse, and after such refusal, the plaintiff's weigher completed the weighing, which amounted in the whole to 50 cwts. O qrs. 13 lbs. On the 9th day of November, 1860, Messrs. Noakes sent to the defendants an invoice of which the following is a copy:

"Octr. 20th. Durrell. Bt. 33 Po. 50 0 13 @ 16. 16/ 841 19 0." It was stated by Mr. J. Noakes, at the trial, that a day or two after the difference relative to the weighing he had an interview with the defendant, Robert Mendham Evans, at which he requested the said Robert Mendham Evans to send and have the weighing completed, when the defendant, Robert Mendham Evans, promised the said Mr. J. Noakes that he would do so

R.R.-VOL. CXXX.

29

DURRELL

V. EVANS

[ *179 ]

[*180]

and accept the hops and complete the purchase; but the defendants subsequently refused to do so, and thereupon the plaintiff instructed his attornies to write and send a letter (of which the following is a copy) to the defendants, which was done.

66

"37, KING WILLIAM STREET, LONDON BRIDGE, 9th November, 1860. "SIRS,-We have been consulted by Mr. Durrell of Banstead with reference to your refusal to complete your contract for *the purchase of 33 pockets of hops sold to you by Messrs. Noakes on behalf of our client on the 20th October last.

"We beg to inclose you the delivery order, and are instructed to inform you that the goods remain in Messrs. Noakes' warehouse awaiting your order or disposal, and at your risk and costs; and further, that unless the sum of 841l. 19s., being the amount of the invoice already sent you for these hops, be paid to us by 11 o'clock on Monday morning, we shall take immediate proceedings against you for its recovery.

"In the event of your deciding to resist this claim we have to request a reference to your solicitors.

"Messrs. R. M. EVANS & Co.

"We are, Sirs,

"George Yard, Borough."

"Yours obediently,

"INGLE AND GOODY."

The invoice above referred to has ever since been retained by the defendants.

On the 9th day of November the plaintiff's attorney sent to the defendants in the last-mentioned letter a delivery order.

This delivery order the defendants refused to receive, and it was taken back by the clerk who brought it, and on the same day the defendants returned it.

No part of the said hops (except the samples) has ever been delivered to the defendants.

T. Jones (Waddy with him) now argued for the plaintiff (1): There was a sufficient note in writing of the bargain, signed by the agent of the parties to be charged, within the meaning of the 17th section of the Statute of *Frauds (2). The defendants. adopted the act of Noakes, the factor, so as to make him their agent for the purpose of signing the contract. An authority may be presumed from subsequent acts of assent or acquiescence, and a small matter will be evidence of such assent: Paley on Principal and Agent, p. 171, 3rd ed., Kinnitz v. Surry (3).

(1) Before Crompton, J., Willes, J., Byles, J., Blackburn, J., Keating, J., and Mellor, J.

(2) See now Sale of Goods Act,

1893, s. 4.

(3) Cited in Paley on Principal and Agent, 171, n., 3rd ed.