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1880

Glyn v. East and West India Dock Co.

(C.A.) Q.B.D.

the goods in the defendants, it is clear that they never had any, nor has it been ever suggested that they had; the only question, as it appears to me, upon the hypothesis of the defendants being the bailees of Messrs. Cottam, is whether the defendants, having in their possession goods delivered to them by, and as the goods of, Messrs. Cottam, and to be disposed of according to the order of Messrs. Cottam, though in fact being the goods of the plaintiffs, can be held liable to the plaintiffs for disposing of them upon the order of Messrs. Cottam. I am of opinion that they cannot; they dealt with the goods in the ordinary course of their business as dock proprietors and warehousemen, and in the manner and for the purpose for which they were deposited with them. It is doubtless true, as was pointed out by Field, J., in his judgment, that the facts of the present case are in many respects different from those in Hollins v. Fowler ('); indeed, in that case, it was held that there had been a conversion but adopting the general views expressed by Lord, 508] *then Mr. Justice, Blackburn, in the course of the answer given by him to the question submitted to the judges by the House of Lords, I can arrive at no other conclusion than that the defendants have not in the present case been guilty of conversion.

I agree, therefore, with Lord Justice Bramwell in holding that the appeal must be allowed.

Appeal allowed. Solicitors for plaintiffs: Murray, Hutchins & Stirling. Solicitors for defendants: Freshfields & Williams.

(1) Law Rep., 7 H. L., 757.

See 10 Eng. Rep., 37 note; 16 id., 405; 19 id., 242 note; 24 id., 357 note; 25 id., 514 note; 28 id., 679 note; ante, p. 298 note.

If a common carrier deliver goods to a wrong person, although by his own innocent mistake, or by his being imposed upon, he is liable to the true owner for the value. Such wrongful delivery is treated in the common law as a conversion of the property (Story on Bailments, SS 545-6; McEntee . New Jersey Steamboat Co., 45 N. Y., 34). The carrier delivers at his peril. He is responsible as an insurer. His liability differs from that of a warehouseman, who is held only to the exercise of proper diligence and care in the preservation of the property and

its delivery to the true owner (Price v. Oswego and Syracuse R. R. Co., 50 N. Y., 213, per Grover, J., p. 217). When goods are safely conveyed to the place of destination and the consignee is dead, absent, or refuses to receive, or is not known, and cannot, after reasonable diligence, be found, the carrier may be discharged from further responsibility as carrier, by placing them in a proper warehouse for and on account of the owner (Fisk v. Newton (1 Den., 45); but until discharged in that manner his responsibility as carrier continues (Price v. R. R. Co., supra): Schew v. Erie R. R. Co., 10 Hun, 499.

If goods are shipped by the owner by rail to his own address, and the agent of the railway company delivers

(C.A.) Q.B.D.

Glyn v. East and West India Dock Co.

the same to an unauthorized person, who advances the freight only, trover will lie against the carrier, although he may afterwards make arrangements whereby to get the goods. When parties ship fruit trees to a point to their own address, as consignees, the carrier, neither at common law, nor by the statute, is authorized to place the trees in the hands of a stranger, with directions to him to sell enough of them to pay the charges of transportation, and if he does he will be liable in trover to the owner. The negligence of the consignee of goods to call for the same and pay freight, within a reasonable time after they reach their destination, will not justify the carrier in delivering the same to an unauthorized person, or to a person in violation of the written directions of the owner. The negligence of a plaintiff, which will prevent a recovery for an injury sustained by reason of the defendant's negligence, must be such as contributes to the injury complained of-in other words, it must be such that, by the usual course of events, the injury would result, unless without the intervention of other agencies: I. & St. L. R. R. Co. v. Herndon, 81 Ills., 144.

If goods are sent by a common carrier to be delivered to A., the carrier is not justified in delivering them at the store of B., although A. has guaranteed the rent of the store and has been compelled to pay it: Mahon v. Blake, 125 Mass., 477.

A., falsely representing himself to be a member of a firm, bought, in the name of the firm, goods from B. who sent them by a carrier to the firm. On the refusal of the firm to receive them A. sold them to C., to whom they were delivered by the carrier at A.'s request. Held, that A. had no title to the goods, and that an action for their conversion would lie by B. against C., although the latter was a purchaser in good faith Moody v. Blake, 117 Mass., 23.

Plaintiff shipped certain hogs by defendant's road, prepaying charges. At the place of destination they were taken from the carrier by a stranger and a drayman who was in the employ of the consignees, and taken by them to the consignees, the stranger representing that he had bought them of the consignors, and exhibited an expense

1880

bill he had obtained from the common carrier, whereupon he was paid for them by the consignees. Held, that the shipper could not recover from the carrier, but his remedy was against the consignees: Ryder v. B. C., etc., 51 Iowa, 460.

I. B. received an order for goods from H. H., whom he did not know, dated at St. C., a town of 8,000 inhabitants. Upon consulting a mercantile directory I. B. ascertained that a saloon keeper of good mercantile repute named H. H. resided there, whereupon he sent the goods by the defendant, a common carrier, to H. H., St. C., Mo.," also a bill of lading and a bill for the goods by mail to same address. By the bill of lading, if the goods were not removed within twenty-four hours after arrival at St. C., defendant was liable only as a warehouseman. At the date of these transactions there were two men in St. C. calling themselves H. H.-the saloon keeper, and a stranger who had been there but a short time. On the arrival of the goods the defendant notified the saloon keeper H. H. of their arrival, who said he had not ordered them and would not receive them. The goods were removed to the warehouse of defendant. Four days afterward the defendant, the stranger H. H., claimed the goods. Defendant's agent refused to deliver them, although they had heard of him as about opening a store there.

He produced the bill of lading for them and delivered it to the defendant's agent, who took his receipt for the goods and delivered them to him. He appeared in St. C. about a week or ten days before this, registered his name as H. H. at a hotel, rented a store by that name, and employed carpenters to fit it up, who went to work there. He sold part of the goods, shipped the remainder to himself at another point and left St. C. The goods were not paid for. I. B. sued the defendant for the value of the goods, alleging a misdelivery.

Held, that there was no misdelivery, and that I. B. could not recover; that the liability of defendant was that of a warehouseman; that there was an exercise of due diligence; and that the plaintiffs were guilty of negligence in not more particularly describing the

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business or address of the person to whom they intended to sell.

A warehouseman who uses due diligence is not liable to the consignor as for a conversion, in case of misdelivery, where the misdelivery is superinduced by the laches of the consiguor, and the question of diligence is one for the jury Bush v. St. Louis, etc., 3 Mo. App. Rep., 62.

:

See ante, p. 295 note.

Where a box, improperly directed, was delivered to a railroad company for transportation, and was safely carried to its destination, and there, after having been securely kept for two months and due diligence exercised to ascertain the consignee, was delivered by reason of the improper direction to the wrong person, the company was not liable for the loss: Lake Shore and Mich. South. R. R. Co. v. Hodapp, 83 Penn. St. R., 22.

Defendant was captain of one of plaintiff's barges, and by mistake delivered a load of coal to the wrong perThe general agent of plaintiffs discovered the error and undertook to

son.

(C.A.) Q.B.D.

collect the price from the person who received the coal, but failed and sued defendant.

Held, that if defendant was thrown off his guard, or suffered by the acts of the general agent or by his delay in informing him of the error plaintiffs could not recover: Philadelphia, etc., v. O'Donnell, 34 Leg. Int., 194, 12 Phila. Rep., 213, Com. Pl.

An allegation that a common carrier agreed to deliver to E. T. Learned” certain goods, is supported by evidence that the carrier clearly understood him to be the person for whom the goods were intended, although the name marked thereon was "E. D. Learned:" Mahon v. Blake, 125 Mass., 477.

While property remains in possession of a fraudulent vendee, the sale may be avoided by the vendor, but if the fraudulent vendee sell and transfer the same to an innocent third person, for valuable consideration, such sale will vest the purchaser under it with the title which the claim of the origi nal vendor cannot defeat: Hawkins . Davies, 8 Baxter (Tenn.), 500.

5161

[6 Queen's Bench Division, 516.]

Feb. 28, 1881-(C.A.), Q.B.D.
[IN THE COURT OF APPEAL.]

*MCCOLLIN V. GILPIN and Others.

Company, Loan to-Agreement signed by Directors-Whether Directors personally liable.

By agreement between the T. Company and the plaintiff, the defendants, describing themselves as "we the undersigned, three of the directors," agreed to repay £500 advanced by the plaintiff "to the company," and assigned to the plaintiff as security for the advance certain "machines and tools," which were the property of the company:

Held, after hearing parol evidence to explain the ambiguity of the agreement, that the defendants were personally liable to repay the £500,

APPEAL by the defendants from the decision of Lush, J., on further consideration ('), that the defendants were personally liable to the plaintiff upon the following agreement: "Agreement between the Tunbridge Iron and Boiler Works Company, Limited, of the one part, and William

(') 5 Q. B. D, 390; ante, p. 348.

McCollin v. Gilpin.

1881

(C.A.) Q.B.D. McCollin, Esq., of Hull, on the other part. In consideration for the advance of the sum of £500 paid by the said William McCollin, Esq., to *the said company, we, [517 the undersigned, three of the directors of the said company, hereby agree to repay the said sum of £500, with interest at the rate of 5 per cent. per annum, in six calendar months from the date hereof. And we do hereby assign to the said William McCollin, as security for the said advance of £500, the machines and tools as invoiced to him 3d June, 1878, the machines to be delivered in the same condition for working as they are now. And the said William McCollin hereby agrees not to remove the said machines and tools from their present position, except in default of the repayment of the said sum of £500, with interest at the rate of 5 per cent. per annum, at the expiration of six months from the present date.

"As witness our hands this 5th day of June, 1878."

This document was signed by the defendants and by the plaintiff, but not sealed with the seal of the company. The imachines and tools therein mentioned were the property of the company.

The plaintiff having sued the defendants for money lent, the action was tried before Lush, J., without a jury, at the Leeds spring assizes, 1880, and he, after further consideration, gave judgment for the plaintiff, from which the defendants appealed.

Wills, Q.C., and Lockwood, for the defendants, cited Magee v. Atkinson ('); Hall v. Ashurst (); Agar v. Athenæum Life Insurance Company(); Burrell v. Jones (); Lindley on Partnership, vol. i, p. 263; Brice on Ultra Vires, pp. 637, 639.

Cave, Q.C., and Dodd, for the plaintiff, cited Paice v. Walker (); Miller v. Thompson (); Lindus v. Melrose ('); Kay v. Johnson (*); Des Landes v. Gregory (').

THE COURT (Bramwell, Baggallay, and Brett, L.JJ.,) referring to Macdonald v. Longbottom (") and Acebal v. Levy ("), observed *that parol evidence was admissible [518 and desirable to explain the ambiguity of the agreement. In preference, however, to ordering a new trial, they directed certain witnesses on either side to attend for examination (1) 2 M. & W., 440.

(2) 1 C. & M., 714.

(3) 3 C. B. (N.S.), 725; 27 L. J.

(C.P.), 95.

(4) 3 B. & Ald., 47.

(5) Law Rep., 5 Ex., 173.

(6) 3 M. & G., 576.

(7) 3 H. & N., 177; 27 L. J. (Ex.), 326. (*) 2 H. & M., 118.

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1881

Bowyear v. Pawson.

Q.B.D.

before the court itself, and after hearing such witnesses, gave judgment for the plaintiff.

Appeal dismissed.

Solicitor for plaintiff: E. Jukes, for Laverack, Hull. Solicitors for defendants: Torr & Co., for Wells & Hind, Nottingham.

See ante, pp. 351, 567 notes.

He is not liable upon the contract, but only for fraud, or upon an implied warranty of authority: Noe v. Gregory, 7 Daly, 283.

The plaintiff must show affirmatively his want of authority: Noe v. Gregory, 7 Daly, 283; Algie e. Wood, 43 N. Y. Super. Ct. R., 46.

540]

[6 Queen's Bench Division, 540.]

March 18, 1881-Q.B.D.

*BOWYEAR V. PAWSON.

Set-off-Liability of Surety-Debt due to Principal.

Action on a covenant to pay all liabilities which the plaintiff might incur under a deed of assignment made between the plaintiff and other parties. The defendant pleaded that the covenant was the joint and several covenant of himself and one Wilson, and that before action the plaintiff was indebted to Wilson in an amount exceeding the plaintiff's claim against the defendant; and that Wilson had assigned the plaintiff's debt to himself and the defendant in equal shares as tenants in common. As to one half of the plaintiff's claim the defendant claimed to set off one half of the debt so assigned, and as to the other half, the defendant said that he was entitled to be exonerated by his co-surety Wilson, and to call upon him to contribute in equal shares to the payment of the plaintiff's claim, and was entitled to set off the share remaining vested in Wilson against this part of the plaintiff's claim: Held, by Watkin Williams and Mathew, JJ., that the defence was no answer to the plaintiff's claim.

DEMURRER to a statement of defence by way of set-off and counter-claim.

The statement of claim alleged that by deed of the 6th of June, 1879, the defendant covenanted with the plaintiff to pay and discharge all liabilities which the plaintiff had incurred, or might thereafter incur or be liable for, under a deed of arrangement of the 20th of August, 1878, made between Myers Brothers and the plaintiff. It alleged that the plaintiff had incurred such liabilities and a default by the defendant in paying and discharging the same.

The material parts of the statement of defence were as follows:

2. The deed of the 6th of June, 1879, mentioned in paragraph 1 was made between the plaintiff and the defendant, together with Samuel Wilson and John Vowler, and was for the purpose, amongst other matters, of releasing the plaintiff from certain liabilities incurred by him on behalf of a partnership then existing between him and Vowler. The

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