CASES ARGUED AND DETERMINED IN THE Court of Common Pleas, AND IN THE Exchequer Chamber and House of Lords ON ERROR AND APPEAL IN CASES IN THE COURT OF COMMON PLEAS. MICHAELMAS TERM, 35 VICTORIÆ. were "the assured's own, in trust or on commission for which the assured was responsible." Goods were destroyed by fire at such wharf, which the assured, to whom they had belonged, had sold to purchasers, who had paid him for the same before the fire. The assured, however, held the wharfinger's delivery warrants for such goods on behalf of such purchasers, but merely for the convenience of paying, if required to do 80, the charges necessary to clear the goods, such as custom-house dues and rent payable by the purchasers :-Held, that at the time of the fire the property in the goods had passed to the purchasers, and that the goods remained at their risk, and not at the risk of the assured, who had no longer any interest in them, or responsibility to the purchasers in NEW SERIES, 41.-C.P. respect of them in case of fire; and further that, as the assurer's liability was expressly limited by such policy to such goods as were not only held in trust by the assured but for not covered by the policy. which he was responsible, the goods were This was an action brought by the plaintiffs against the defendants for the recovery of the sum of 6361. 13s. 7d., which the plaintiffs alleged to have been paid by them to the defendants in excess of the sums due on certain policies of insurance, and which the defendants agreed, in the event of that allegation being well founded, to repay to the plaintiffs; and by the consent of the parties and a Judge's order, a CASE was stated for the opinion of the Court, the material parts of which were the following: - The defendants, who are tea merchants, effected with the plaintiffs in 1865, amongst others, two policies, each dated 13th of October, 1865, by which the plaintiffs, in consideration of an annual premium, insured from loss or damage by fire, as from the 29th of September, 1865 (subject to conditions in the policies contained), to an amount not exceeding on each policy 3,5007., merchandise (jute, petroleum, and B its products excepted), the assurer's own, in trust or on commission for which they, the said assured, were responsible in or on all the warehouses, vaults, cellars, sheds, wharfs, yards or quays, belonging to and (if not under the protection of a marine policy) on board any vessel or craft at certain wharves in the said policies mentioned. Among those wharves was one called Beal's Wharf, mentioned in both the said policies. On the 30th of October, 1865, and while the said policies were in force, a fire occurred at Beal's Wharf aforesaid, and by that fire certain chests of tea which had been and then were warehoused there in manner hereinafter stated were either consumed or damaged. The teas so consumed or damaged were divided in the Case into two classes. The plaintiffs admitted their liability to the defendants' claim in respect of the teas in the first class, and sought to be repaid 6361. 13s. 7d., as an over payment, made only in respect of the teas included in the second class. This second class consisted of teas which had been warehoused at Beal's Wharf, and which had been sold by the defendants before the time of the fire, and the following are the facts relating thereto : The teas had been originally deposited in bond with the wharfingers, to whom Beal's Wharf belonged, by the importers thereof, to whom the wharfingers issued warrants in respect thereof. The warrant is a document acknowledging that certain chests of tea therein specified are deliverable to the person named therein, or his assigns, by indorsement, and the bearer. giving a receipt for the same. Upon a warrant, endorsed by the person named therein, being presented by anyone to the wharfingers, and upon the person presenting it signing a receipt for all or any part of the teas contained therein, and upon payment of the duty, and of the rent due thereon (if any), the wharfingers deliver to him the tea for which the receipt is signed. It is not the practice to deliver any of the teas mentioned in a warrant without production of it. The wharfinger knows nothing of the actual ownership of the teas but acts upon the production of the warrant duly endorsed. The defendants had purchased the teas from the importers, who duly endorsed the warrants in blank and delivered them to the defendants. Before the date of the said policies the defendants had sold to various customers the whole of the teas included in the said second class; all the sales were of certain specified chests, and were made by sample, and the contracts for such sales were verbal and not reduced into writing; the terms of such sales were for three months upon credit, or for cash subject to discount. The purchasers had power to pay at any time within the three months, deducting discount for the time not expired of the said credit of three months. A further term of such sales was that all rent due to the wharfingers in respect of teas comprised in such sales up to the time of the expiration of the said credit, that is, up to the expiration of three months from the date of the said sales, should be borne by the vendors, and that all rent due to the wharfingers in respect of any time subsequent to the expiration of the three months during which the teas might be left on the wharf, and also the custom-house duties, should be borne by the purchasers. Shortly after each of the said sales by the defendants, and before the expiration of the said period of credit, they sent to each purchaser an invoice stating, among other things, the weights, marks, and numbers of the chests bought by him, and the price payable in respect thereof by him to the defendants. The period of credit of all the teas in the second class had expired before the said fire, and all the purchasers thereof had also before the said fire paid the defendants the price thereof. The ordinary course upon sales by the defendants was not to deliver the warrants to the purchasers, but to retain the said warrants in their own possession (on behalf of the purchasers), and to perform for the purchasers, as and when required by them, whatever was necessary to get the teas cleared and delivered; that is, to pay the custom-house duties, and the rent due in respect of the goods; and the amount paid by them for such duties, and so much of the rent as was to be borne by the purchasers was afterwards repaid to them by the purchasers. The carriage of the goods was paid by the purchasers. This course was pursued with respect to the teas included in the second class, and at the time of the fire all the warrants then belonging to purchasers remained, in manner and for the purposes aforesaid, in the hands of the defendants, as the defendants had not then been required by the purchasers to clear or deliver them to or on behalf of such purchasers. The wharfingers never received any notice of the sale of the teas to the defendants by the importers, or of the sales by the defendants to the purchasers from them. There was due to the wharfingers in respect of each of such chests so comprised in the said second class a sum of money as rent for warehousing the same after the purchase thereof by the defendants from the importers, and before the sale thereof by the defendants to their customers, which rent was unpaid at the time of the said sale and said fire, and was a charge upon the said teas to be paid by the person claiming delivery thereof prior to delivery by the said wharfingers. The defendants, previous to the fire, had made entries in their own books appropriating to each purchaser the specific chests of tea bought by him, and had written on each warrant the name of the purchaser of the teas therein comprised. The defendants had no contract with the purchasers of any of the said teas to insure the said teas or any part thereof against loss or damage by fire, or to be repaid by the said purchasers or any of them the premiums which the defendants might pay for insuring the said teas or any part thereof against loss or damage by fire, nor have the defendants in fact charged the said purchasers or any of them with any such premiums in respect of such teas or any part thereof. The question for the opinion of the Court was whether the defendants were entitled under the terms of the said policies or either of them to be paid by the plaintiffs the said sum of 6361. 138. 7d. in respect of loss or damage caused by the said fire to the said teas included in the second class. If the Court should be of opinion in the affirmative, judgment was to be entered for the defendants with costs of suit. If the Court should be of opinion in the negative, judgment was to be entered for the plaintiffs for the said sum of 6361. 13s. 7d., with costs of suit. H. Matthews (Holl with him), for the plaintiffs.-The policies cover only goods which are the assured's own in trust or for commission for which they are responsible. It is clear at the time of the fire that the tea in question was not the defendants', but that the propery in it had passed to the different customers to whom the defendants had sold it. The defendants, it is true, held the delivery warrants of the wharfinger, but they held them, as it is found in the case, on behalf of those purchasers. It may be said, therefore, that the defendants held the tea in trust, but not in trust for which they were responsible; the tea was at the risk of the purchasers, and there was no responsibility on the defendants for it. The case, therefore, is different from those of Waters v. The Monarch Insurance Company (1) and The London and North Western Railway Company v. Glyn (2). In each of those cases the goods were protected by the policy, although they were not the assured's, and the assured had been only entrusted with them in the course of business, because in each of those cases the policy extended to goods "in trust or on commission," and it was not stated in the policy that it must be a trust or com mission for which the assured was responsible. The addition of those words, "for which they are responsible," in the policies in the present case makes all the difference, and renders those cases quite inapplicable. [BRETT, J.-If the defendants had paid the warehouse rent for the vendees, would not the defendants have been entitled to have retained the delivery warrants until they had been repaid?] The case finds that they had paid no such rent, but even if they had it would give them no interest in the goods. Not (1) 5 E. & B. 870; s. c. 25 Law J. Rep. (N.S.) Q.B. 102. (2) 1 E. & E. 652; s. c. 28 Law J. Rep. (N.9.) Q.B. 188. only the right to the property in the tea but the right to the possession of it had passed to the vendees, and the position of the parties was the same as if the delivery warrants had been handed over to the vendees, and they had afterwards given them back to the defendants to hold for them. The question as to what is an agent entrusted with goods arose in Fuentes v. Montis (3). [WILLES, J.-That case is quite inapplicable, as there the agent held the warrants for the goods wrongfully, but here they held them rightfully.] Further, it is clear the defendants had no insurable interest at all, for they had no lien or claim in respect of the goods whatever. As to this, Seagrave v. The Union Marine Insurance Company (4) is in point. Sir John Karslake, for the defendants.This case is governed by the cases of Waters v. The Monarch Insurance Company (1) and The London and North Western Railway Company v. Glyn (2). No doubt before the fire the defendants had sold the tea, and the vendees had paid for the same; and it may be that the property in the tea had passed to the vendees, but the delivery warrants remained in the hands of the defendants, in order that they might perform what it was necessary they should do, such as payment of the custom-house dues, &c. (unless directed otherwise by the vendees), for the purpose of getting the tea cleared and put in such a condition that it might be received from the wharf by the carriers of the vendees. In Waters v. The Monarch Insurance Company (1) the plaintiffs, who were warehousemen and wharfingers, had no interest in the goods but in respect of their lien, and the main question was as to the amount they were entitled to recover on the policy beyond the amount of their lien. Lord Campbell, C.J., in the course of the argument in that case, said, “It was not intended to limit the policy to the personal interest of the plaintiffs; for in this and all other floating policies the promise is to make good the damage to the goods;" and in his judgment Lord Camp (3) 37 Law J. Rep. (N.s.) C.P. 137. (4) 35 Law J. Rep. (N.s.) C.P. 172; s. c. Law Rep. 1 C.P. 305. bell, C.J., said, "The first question is, Cur. adv. vult Do |
