CURLEWIS

r.

BIRKBECK.

[ *895 ]

[896]

the defendant at the time of payment, the horses were Toynbee's or the plaintiff's?

The horses were, in fact, the plaintiff's; and Toynbee *was, in fact, his agent, but had sold as the ostensible owner; and the facts were as follow:

Toynbee kept livery stables, and had a horse dealer's licence to sell horses; and as so licensed his name was over the stables, "Licensed dealer in horses; " and the plaintiff in no way appeared. He had, however, entered into an agreement with the plaintiff, by which he was to sell horses for plaintiff according to certain terms, the expenses being deducted and the net profits divided; the plaintiff having power at any time to determine the agreement by notice.

The two horses in question had been sent to Toynbee's stables by the plaintiff for sale; and, in December, 1862, without knowing that they were the plaintiff's, the defendant there saw them, and bargained for them; but they were not, at the time, delivered.

On a former occasion, when Toynbee had bought a horse of the defendant, the latter received in payment a cheque drawn by the plaintiff.

The sale was on the 24th December. On the 27th December the plaintiff gave Toynbee a notice to terminate the agreement, and not to sell any more of his horses, nor receive any monies on account of any such sales. The plaintiff was occasionally at the stable, and after the bargain, having heard of it, he, on the 31st December, and before payment, gave one Nevin, a "helper" at the stables, a letter to give to the defendant when he did next call. The defendant not calling, Nevin was sent to his house; but, instead of taking the letter, merely made some verbal communication, the terms of which, it will be seen, were in dispute.

On the 1st January the horses were delivered, and payment made by the defendant to Toynbee.

Payment was after defendant had seen Nevin.

The plaintiff's notice described Toynbee as "my servant and foreman."

There had been a demand and refusal before action, but after payment.

The case for the plaintiff was, that the real sale was after notice to defendant, and was after express withdrawal of authority to Toynbee to sell or receive payment; or that, at all events, the payment was after notice to the defendant of such withdrawal of authority; and in support of this case Nevin was called, but as he had not delivered the letter it was not allowed

to be produced, and he could only state the purport of his verbal communication, which, according to him, was, that the defendant was not to pay Toynbee.

The defendant was called to contradict this; and stated that Nevin did not mention the plaintiff at all. He was crossexamined as to the previous transaction, in which he saw the plaintiff's cheque, but swore that it conveyed no idea to his mind that the plaintiff had any connection with the business. Toynbee was not called as a witness on either side.

The case for the defence was, that Toynbee was allowed by the plaintiff to [sell] as the apparent owner, and that this being so, the payment to him was valid.

No particular notice was taken of the pleadings.

COCKBURN, Ch. J. (to the jury):

Whether there was express notice to the defendant, before payment, of the revocation of plaintiff's authority to receive. payment is a question for you; if you think there was such notice, you must find for the plaintiff. But if you think that there was not, then, as the plaintiff allowed Toynbee to appear to the world and to the defendant as owner of the horses, and so put him in a position of apparent authority to receive the price, the payment was valid.

Verdict for the defendant.

MASON v. CLIFTON.

(3 F. & F. 899–901.)

If A. employs B. to procure him a loan on the usual terms, and B. employs C., who obtains it on other and different terms, A. will not be liable to C. either for commission or for remuneration unless he ratifies these terms and recognizes C.'s employment.

ACTION for work and labour, and commission, &c.

Plea: Never indebted.

The particulars of demand were as follows:

"22nd of May, 1858, to commission earned by the plaintiff, at request of the defendant, in procuring the sum of 65,000l., to be advanced on mortgage of certain hereditaments and property of defendant, 2007.; to commission earned by plaintiff, at the request of defendant, in procuring the sum of 20,000l., to be advanced on mortgage of certain hereditaments and property of defendant, 2007.; to commission earned by plaintiff, at request of defendant, in procuring the sum of 8,000l., to be advanced to defendant, or for his use, 807.; 11th of May, 1858, for work and labour in proposing the defendant's life for assurance in the Guardian Life Assurance Office, in the sum of 25,5007., and in procuring the said proposal to be accepted by the said

Office, 201.; from the 16th of April, 1858, to the 11th of April, 1859, to work and labour in arranging for the compromise and liquidation of the debts and claims of numerous judgment creditors of defendant, amounting to about 155,0007., 501.-5501."

Joseph Brown and Tapping (with them Lush) conducted the case for the plaintiff.

Hawkins and Talfourd Salter were for the defendant.

The defendant was a gentleman of landed property, who, in 1858, had become largely indebted; and had judgments recovered against him, to the amount of above 40,0007.

He therefore, in March, 1858, while residing at *Boulogne, employed one Kingdon, an attorney, to raise him money, and Kingdon was acquainted, with the plaintiff and engaged his assistance in the business; and accordingly the plaintiff exerted himself to obtain certain loans for the defendant; and did, in fact, obtain the loans, and in so doing enter into the negotiations and do the work mentioned in the particulars of demand. And in the course of these endeavours and negotiations the defendant was introduced to him, and was made aware that he was thus engaged; but there was no other evidence of recognition of his employment by the defendant. And although the loans were obtained or procured for the defendant, they were not, in fact, accepted by him.

The case for the plaintiff was, that he was introduced to Sir Robert by Kingdon, and had obtained the loans above mentioned from the Guardian and various offices, and that all the arrangements were completed for the receipt of the money, and that it might have been received by Sir Robert had it not been for default on his part. Kingdon, however, who it appeared was abroad, was not called.

The case for the defendant was, that he had only employed Kingdon; that Kingdon had done nothing for him, and that though he had, indeed, seen the plaintiff in the course of the negotiations, he had not in any way employed him; and that the money had not been obtained for him on the terms he authorized, but that the matter had gone off as abortive in the hands of Kingdon.

It appeared that the loans had been obtained by the plaintiff on different terms from those authorized by the defendant.

The defendant was called, and stated that he had employed Kingdon to obtain the money on the usual terms, that is, on mortgage at four and a half per cent.; but that Kingdon had

proposed certain terms to which he would not accede, and he had therefore broken off all communication with him.

In the course of the reply,

COCKBURN, Ch. J., asked for any authority to show that if a gentleman employed an attorney to raise him money, he was liable to any agent whom the attorney, without his authority, might choose to employ.

The learned counsel for the plaintiff was not prepared to supply any such authority, and suggested that there had been ratification and recognition of the plaintiff's employment, and that he was, at all events, entitled to recover reasonable remuneration.

COCKBURN, Ch. J., in summing up the case to the jury, observed that he did not agree with this. The law, he said, no doubt was, that if A. employed B. to raise money for him, and B. found the money for him, then A. could not, merely by declining to accept it, deprive B. of his commission.

But if,

on the other hand, B. is employed to procure money upon certain terms, and does not procure it upon those terms, but upon other and different terms, then A. will not be liable to him. for commission. Nor can B., in such case, claim to recover a reasonable remuneration for trouble and labour: for he has not done what he was employed to do. Now, in this case, it appears that the defendant employed Kingdon to raise money upon the usual terms, and that the plaintiff obtained it upon other and different terms, to which the defendant would not accede. Even, therefore, assuming that the defendant could be rendered liable, without any recognition of employment, to a third party whom he never employed, he would not be liable if the loans were not procured on the terms he authorized, but on other terms, unless afterwards ratified and accepted. If the defendant gave a general authority to Kingdon to obtain the money on any terms, and to employ any one to obtain it, he would be liable. But otherwise, not so.

Verdict for the defendant.

LINDSAY v. LEATHLEY.

(3 F. & F. 902—942; S. C. 11 L. T. N. S. 194.)

In an action on one of several policies on an iron steamer, on which the owners claimed to recover for a constructive total loss, by reason of necessary abandonment and sale at a distant port,-not a repairing port, but within thirty days' post of London,-on account of a hole in one of the plates at the bottom, and also a supposed starting of rivets and plates caused by a strain, sustained by the vessel in a severe gale; it being admitted, at the end of a second trial, and after overwhelming evidence of practical and skilled witnesses, that a mere

hole in the bottom may be repaired, and the case therefore turning on the supposed injuries to plates and rivets,-the jury were directed to consider whether the ascertained state of the plates and rivets was such as either itself showed or raised a reasonable presumption and probability that the state of the rivets and plates outside was such as to be unsafe, and their real state could not be ascertained without a heaving down for external examination, which could not be done except in a repairing port; and whether, even if so, the only alternative was abandonment, and whether the captain ought not to have awaited an answer from the underwriters before abandonment. And further, that, even if abandonment was justifiable, sale would not be, unless on account of urgent necessity: Held, also, that if the captain abandoned fraudulently, for the benefit of the owners, it would not be barratry to charge the underwriter within the policy.

Quare, if he abandoned for his own purposes of which, however, in this case, there was no evidence.

Evidence of the owners' communications with other underwriters, even on other policies, admitted, as evidence of bona fides.

Quare, as to the owners' right to recover, as partial loss, expenses not actually incurred?

ACTION on a time policy (for a year, from 1st of February, 1858, to 31st of January, 1859), on an iron screw steamer, the Harbinger, for 3,9501. on hull and machinery, valued, hull at 13,500l., machinery at 4,000l., total 17,500l. The policy was in the usual terms, insuring against "perils of the seas," and barratry of the master or crew; and with the usual clause, that the insured might labour, &c., &c., for safety of cargo and ship, &c., at the expense of underwriters, &c. Averment of a total loss "by the perils insured against." Claim of 1581., the amount for which the defendant had underwritten, deducting seven per cent., as paid.

This was one of 107 actions against underwriters of this and other policies on the same ship, to the total amount of 15,000l. Plea: payment into Court of 10l. 10s., at the rate of seven per cent.; averment, that this was sufficient to cover the loss sustained. Issue.

Sir R. P. Collier, S.-G., Dowdeswell, and Horace Lloyd, for the plaintiff.

Bovill, Sir G. Honyman and Watkin Williams, for the defendant.

The ship had been abandoned and sold, at Algoa Bay, in February, 1859, and the claim was for a constructive total loss. Certain sums had been received on sale of hull and engines. Credit being given for these sums, the claim was reduced to ninety-two per cent. The sum paid into Court was at the rate of seven per cent., and the plaintiff now claimed the residue.

There had been an application at chambers for leave to plead specially the settlement and payment of the former claim. But a learned Judge at chambers indorsed the summons No order," plaintiffs undertaking to go for a total loss, or for a partial