1860. NOBLE v. NATIONAL Noble at first said that the money that afternoon or not. he did not: he did not want to pay the money away until the next day, but afterwards said he would take 20007., DISCOUNT Co. for which amount Webber ordered a check to be drawn. Webber then said, "I cannot give you the check, but I will give it to Wienholt's clerk. I shall require their order for the payment of the balance." Wienholt's clerk got the check and handed it to the plaintiffs. Noble obtained from Wienholt and Co. an order for the payment of the balance, which he delivered to the defendants' manager, and asked if that was all the defendants wanted. The order was in this form : The manager said it was correct. On the following morning the plaintiffs demanded the balance, but Messrs. Wienholt, Wehner and Co. having in the mean time stopped payment, and the defendants having in their hands a large amount of bills which they had discounted for Wienholt and Co., refused to pay the balance to the plaintiff. The plaintiffs took up the bills at maturity and received back the warrants. The learned Judge told the jury that although the original transaction was between Wienholt and Co. and the defendants, yet if the parties agreed that the defendants should hold the balance for the plaintiffs and not for Wienholt and Co., the plaintiffs might maintain the action. If from the time of lodging the order the defendants held the money for the plaintiffs, and not for Wienholt and Co., the defendants were liable. If they held it for Wienholt and Co. they were not liable. The jury found a verdict for the plaintiffs. Leave was reserved to the defendants to move to enter a verdict for them, if the Court should be of opinion that there was no evidence to go to the jury. 1860. NOBLE v. NATIONAL Montague Smith now moved accordingly.-There was no DISCOUNT Co. evidence to charge the defendants in an action for money had and received to the use of the plaintiffs. The contract was between the defendants and Wienholt and Co., and the right to the money agreed to be advanced to them on the bills, being a chose in action, was not assignable. There was no fresh agreement between the three parties by which that money became payable to the plaintiffs. [Bramwell, B.— The question came to this: did the plaintiffs, when they called with the order, leave it and the money with the defendants till the next morning on the terms that the defendants should hold the money on account of the plaintiffs and not of Wienholt and Co. ? It struck me at first that there was no case, upon the mere presentation of an order by Wienholt and Co.; but when it appeared that the money was presently due, and that the plaintiffs had agreed to allow it to remain in the hands of the defendants till the next morning, surely there was evidence of an agreement by the defendants to hold it to the use of the plaintiffs.] Liversidge v. Broadbent (a) is an authority in favour of the defendant. [Martin, B., referred to Lilly v. Hays (b).] POLLOCK, C. B.-There will be no rule. It is clear that there was evidence of the defendants' liability; and the matter was left to the jury who found for the plaintiffs. Indeed I think we should have been bound to set aside the verdict if it had been the other way. Having presented the order, the plaintiffs instead of receiving the money said they would call another time. The defendant's assent amounts to saying "call again and we will pay you." After that, they (a) 4 H. & N. 603. (b) 5 A. & E. 548. 1860. NOBLE v. NATIONAL DISCOUNT Co. EXCHEQUER REPORTS. were bound to retain in their hands so much money as the order dealt with, for the use of the plaintiffs. MARTIN, B.-I am of the same opinion. The present case appears to me to be decided by the authority of Lilly v. Hays (a) and Walker v. Rostron (b). In Liversidge v. Broadbent (c) we were all anxious to decide the case in favour of the plaintiffs, but it did not reach the line. BRAMWELL, B.-I concur with the rest of the Court. There is no doubt as to the law, that if one person is indebted to another he cannot become under an obligation to a third party without the agreement of all three. The defendants being indebted to Wienholt and Co., with the assent of all parties, agreed to pay the plaintiffs. In cases like the present, it is necessary to shew that there was a fresh arrangement between the three parties, for without it there is simply an equitable assignment of the debt. Was there any evidence of such arrangement? I thought at first not, and that the reason why the money was not paid was that the plaintiffs had no right to do more than call on the defendants to receive the order and get the money the next day. But in truth the money was payable on the day in which the order was lodged, and the plaintiff, who was entitled to receive it, left it with the defendants. The question was one for the jury. They might have come to the conclusion that the evidence shewed nothing more than lodging an order to pay, but they have not done so. Rule refused. (a) 5 A. & E. 548. (b) 9 M. & W. 411. (c) 4 H. & N. 603. 1860. LUCY v. MOUFLET. Jan. 28. DEBT for goods sold and on an account stated.—Pleas, The plaintiff sold a hogsexcept as to 17.: never indebted, and as to that sum pay- head of cider ment into Court. The cause was tried before the judge of the County Court of Gloucestershire by order of a judge, made in pursuance of the 26th section of the 19 & 20 Vict. c. 108. At the trial, the plaintiff, a cider merchant in Herefordshire, proved that in April, 1859, he agreed to sell to the defendant, who was a victualler residing in Newgate Street, London, a hogshead of cider, by sample, as good draught cider at 1s. per gallon. About three weeks after the cider was sent, the plaintiff received the following letter from the defendant: "London, May 28, 1859. I “Sir,—I think it best to inform you that I have this day tapped the hogshead of cider I bought of you, and find it quite a different article to the sample you shewed to me. It is quite flat and I fear perfectly unsaleable. The little have sold as yet has been complained of in every case, and should this continue I shall be obliged to return it to you. "The charges for carriage, amounting to 15s. 5d., I have of course debited to your account with us, as it is the usual thing for all goods to be delivered free of charge. "Yours obediently, "C. Mouflet." to the defendant, by sample, cider. After as good draught the cask, the the arrival of defendant on the 28th of May wrote to differs from the sample, and the little I have sold has been complained of in every should this instance; continue I shall be obliged to return it." The plaintiff did not answer this letter till the 24th of June. The it unserviceable refused to pay for the rest, which he returned to the plaintiff. It was found as a fact that the 20 gallons were more than sufficient to enable the defendant to test the The plaintiff did not answer this letter. The defendant quality of again wrote: the bulk.Held, that the omission of the defendant to answer the letter of the 26th of May was evidence from which a jury might presume that the plaintiff acquiesced in the further trial of the cider, and that the defendant had not so accepted the bulk as to be bound to pay for the whole. 1860. LUCY v. MOUFLET. "Newgate Street. 21st June, 1859. "Sir, I wrote to you on the 20th of May last complaining of the cider; it is such stuff that I cannot do any thing with it. I am losing my trade with it. How that large cask is to be got out of the cellar I do not know. Perhaps you will inform me by return of post if you will send, or if you are in the way come and taste it yourself, as I must have some from some other place. "Messrs. W. F. Lucy & Co." "Yours obediently, "C. Mouflet." On the 24th of June the plaintiff wrote to say that the cider was the "same as the sample and sent off in good condition," and requesting payment. The defendant on the 28th of June wrote to the plaintiff as follows: "Sir,-In reply to yours of the 24th, I beg to say that the cider is not according to sample and I cannot do any thing with it; it is here for you to take away, and I am willing to pay you for what I have wasted in trying to sell it, but my customers would not drink it," &c. The plaintiff did not reply to this letter, and on the 8th of July the defendant returned the cask by the Great Western Railway to the plaintiff, who refused to receive it. At that time about 20 gallons had been consumed. There was evidence that cider would be liable to injury by a journey in hot weather. The judge found that the cider which was sent from Herefordshire was good draught cider-in all probability equal to sample; but the cider which arrived in London was flat and bad; and, considering that the cider might have altered between Ledbury and London, he found that by the contract the cider was to be delivered to the defendant in London. He also found that the 17. paid into Court was more than the value of the 20 gallons used by the defendant in endeavouring to sell it to his customers that the 20 gallons of cider were more than |