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(IN THE EXCHEQUER CHAMBER.] privity of contract, the brokers becoming (Appeal from the Court of Common Pleas.) personally liable ; per CHANNELL, B., be

cause the employment by the defendant to 1871.

buy for him, meant as a broker in the Nov. 30, Dec 1. MOLLETT AND OTHERS V. London tallow trade, and the custom did 1872.

not necessarily make the plaintiffs sellers ; Feb. 12.

and per KELLY, C.B., because the effect of Principal and AgentBroker-Usage

the custom was to allow the defendant to of Trade.

sue in the plaintiffs' names, and give him

the guarantie of the plaintiffs. The defendant, a Liverpool merchant, employed the plaintiffs, sworn brokers of This was an appeal from the decision London, to buy for him a certain quantity (reported 39 Law J. Rep. (N.s.) C.P. of tallow in the London tallow market; the 290) of the Court of Common Pleas, as plaintiffs, having other orders, bought in their to whether a rule to set aside a verdict for own name a quantity sufficient to include the plaintiffs, and enter a nonsuit, should these orders also, exchanging with the vendors be made absolute or discharged. The notes for the larger quantity (not specific) matter having been argued before four but sending the defendant a sold-note, as judges of that Court, two (Bovill, C.J., brokers, for the smaller quantity (not spe- and Montague Smith, J.) held, that the cific); the plaintiffs afterwards balanced rule should be discharged, whilst two and settled various transactions (including (Willes, J., and Keating, J.) held, that this) which they had with the said vendors, it should be made absolute, upon which and when the time for delivery to the de- the rule dropped, which for the purposes fendant came, bought the requisite quan- of appeal from that Court is the same as tity of tallow and tendered it to the de- the rule being discharged. Although the fendant; the defendant refused to accept facts material to the decision in the Court because the plaintiffs had made no bind- below are sufficiently set forth in the reing contract between him and the said port thereof, the division of opinion of vendors for the smaller quantity, and the this Court also, and the reference to and plaintiffs having thereby incurred loss, reliance on the particular statements in brought their action on the ground that the case stated on appeal, make it advisathey were justified in acting as they did by ble to set it out in extenso. the custom (unknown to the defendant) of

CASE. the London tallow market for brokers, when 1. The action was brought to recover they receive an order, to contract in their damages alleged to have been sustained own names either for the amount ordered or by the plaintiffs in consequence of the any other amount at their convenience, ex- non-performance by the defendant of two changing notes as above described, becoming contracts for the purchase of tallow which personally liable, and balancing as above the plaintiffs allege they entered into, for described, and if the principuls refused to and on account of the defendant. accept or deliver, to buy or sell against them 2. The declaration contained three and charge them with the loss :—Held, per counts, the first of which was upon an CLEASBY, B., HANNEN, J., and MELLOR, J., employment by the defendant of the that the plaintiffs were employed to act as plaintiffs as his agents and brokers, to brokers only, that the custom turned them enter into contracts for the purchase for into vendors, and that such custom therefore the defendant, of two quantities of tallow was inconsistent with the employment and of 50 tons and 200 tous respectively, upon not binding on the defendant; but by BLACK- the terms of certain bought notes in the BURN, J., CHANNELL, B., and Kelly, C.B., said first count set out, and upon the that the custom was consistent with the further terms and conditions that the de. employment and binding on him ; per fendant would accept and pay for the said BLACKBURN, J., because, though the plaintiff's tallow according to the terms of the said were employed as brokers, the custom only contracts, and would indemnify and save gave an alternative power to dispense with harmless the plaintiffs against any loss or New SERIES, 41.-C.P.


liability they might sustain by having the defendant pleaded that it was not entered into the said contracts for the de agreed as alleged ; that the plaintiffs exfendant, and the plaintiff's in the said first onerated and discharged the defendant count alleged that in pursuance of the from the said agreements; that the plainsaid employment, and upon the terms tiffs were not ready and willing to deliver thereof, they purchased the said tallow, the tallow; and to the money count the and that although the defendant refused defendant pleaded never indebted, payto accept and pay for the said tallow, and ment and set-off. the plaintiffs thereby became liable to take 4. On all these pleas issue was joined, up the same, and sustained great losses, and

a copy

of the issue marked A is conyet the defendant refused to indemnify tained in the appendix hereto. (It is, the plaintiffs.

however, unnecessary to set it forth.) The second count of the declaration was 5. The cause came on for trial at the on an agreement between the plaintiff's and London sittings after Michaelmas term, the defendant that the plaintiff's should sell 1869, before the Lord Chief Justice of the to the defendant, and the defendant should Common Pleas and a Special Jury, and buy and accept from the plaintiff's the said the following facts were proved or adparcels of tallow respectively upon the mittedterm and conditions in the bought-notes 6. The plaintiffs are sworn brokers, in the first count of the declaration set carrying on business in the City of London out, and the plaintiffs in the said second under the firm of Mollett, Bull and Unscount alleged that the defendant refused to worth, and the defendant is a merchant accept and did not accept the said tallow, carrying on business at Liverpool. The whereby the plaintiff's sustained great plaintiffs and the defendant had, previously loss by losing the agreed prices, and by to the transactions in question in this the tallow being thrown back on their cause, had several business transactions hands.

together in the buying and selling The third count of the declaration was tallow. a common money count for goods bar 7. On the 2nd of April, 1869, the degained and sold, money lent, money paid, fendant met the plaintiff, Richard Houghinterest and money due upon accounts ton Unsworth, at Liverpool, and gave him stated.

an order to buy for him fifty tons of tal3. To so much of the first count as re low, June delivery, at 46s. 6d., and the lates to the said fifty tons, the defendant same day the said Richard Houghton pleaded that he did not employ the plain- Unsworth telegraphed to his firm in Lon . tiffs upon the terms alleged ; that the don to execute the defendant's said order. plaintiffs did not purchase the said tallow 8. On the same day the plaintiffs, after in pursuance of the said employment and the receipt of the said telegram in Lonupon the terms thereof; that the sellers don, wrote and sent to the defendant the were not ready and willing to deliver the following letter and bought-note-tallow, and that by reason thereof the

“ 37, Mincing Lane, 16, Mark Lane, plaintiffs did not sustain any loss; that the

London, E.C., 2nd April, 1869. sellers did not give notice according to

“ C. J. Robinson, Esq., the terms of the bought-notes, and that

Liverpool by reason thereof the plaintiffs did not Sir,- We have received a message to sustain any loss; that the plaintiffs ex buy for your account fifty tons tallow, onerated and discharged the defendant June delivery, at 40s. 6d., and which we from accepting and paying for the tallow, succeeded in doing, since when our marand indemnifying the plaintiffs; and ket has further improved, and we close lastly, that the plaintiff's did not sustain 46s. 6d. at 46s. 9d. for April, June, 478., any loss in respect of the said tallow as nearest price June, 46s. for October, Dealleged.

cember, To so much of the first count as relates “ We enclose contracts. to the said 200 tons of tallow, the plaintiff

“We are, respectfully, pleaded similar pleas.

obedient servant, To the second connt of the declaration

“Mollett, Bull & Unsworth."

Sir, your

“ London, 2d April, 1869. firmed the said telegram by the following "C. J. Robinson, Esq.

letter: “We have this day bought for your

· Liverpool, 28th April, 1869. account fifty tons nett.

“ Messrs. Mollett, Bull & Unsworth, " In casks, of St. Petersburgh first sort

“ London. yellow candle tallow, now and of the

“Dear Sirs, I sent you a telegram this brack of 1868-9, at 46s. 6d. per cwt.

afternoon to buy 200 tons tallow, for “ The tallow is to be delivered in ware

June, on best terms, which I now confirm, house in London, at such time or times

100 tons are for myself, and 100 for a as may suit the seller, between the 1st

friend of mine; but book them all to me and 30th June next, both days inclusive. " A written notice containing the ship's

or my firm.

* Yours truly, name, and the marks and numbers, and

" (Signed) C. J. Robinson." where lying, is to be given by the seller,

10. On the same day and in reply to when all or any part is ready for delivery,

the said telegram the plaintiffs wrote to and the tallow is then to be at the dis.

the defendant a letter, enclosing a bought posal of the buyer. Should any


note as follows: arise within the prompt (by fire or otherwise), to the tallow tendered, so as to

37, Mincing Lane, 16, Mark Lane, render it unmerchantable, it is not to be

London, E.C., 28th April, 1869. considered a fulfilment of the contract, so far as regards the portion damaged or

“ C. J. Robinson, Esq., destroyed.

"Liverpool “ The tallow is to be taken at the land

“ Dear Sir, -We thank you for your ing weights, and paid for in ready money telegrain of to-day, to buy 200 tons of on receiving the order for delivery within

tallow for June, on best terms. Our marfourteen days from the date of the notice,

ket opened very good, and soon 44s. 3d. if already weighed, or from finishing the was paid for April, and 44s. 6d, for June, weighing, if ex-ship, allowing 2 per cent.

but just before going on 'Change, we rediscount, and interest at the rate of 5


ceived your message, and as there was a cent. per annum, for any amount paid temporary dulness, we fortunately sucprevious to the prompt.

The tallow is to ceeded in picking your 200 tons up at lie at the risk and charge of the seller,

44s. 3d., and now have much pleasure in until the prompt draft, 6 lbs. per cash. enclosing contract. Tare, 12 lbs. per cwt.

“We trust the market will improve, in “Should any objection be made to the order that you may make a profit. We quality of the tallow, the same is to be

ourselves think there is every sign of it settled by arbitration in the usual manner; doing so, and tallow bought now will but this contract is not to be void on that pay. account.

The spot demand here is very good, “ If 1869 tallow, 2 lbs. only draft.

and fully 500 casks, Y.C., done for con“Your obedient servants,

sumption to day at 44s. 3d. Home tallow “Mollett, Bull & Unsworth,

is scarce, and the holders of Y.C. tallow ·Sworn brokers.” will only sell their tallow to the trade. 9. On the 28th of April, the defendant

“For your own information, the holders sent a further order by telegram from

of the real tallow have not been selling Liverpool to the plaintiff's in London, re

at all. It is true 200 tons were sold at questing them to buy 200 tons as follows: 458., but it was bought back yesterday at

44s. “ 28th April, 1869. “There is only one great seller (Rayner), “ Charles Robinson.

and he owns he is selling on bear account; "Mollett, Bull & Unsworth, London, but don't mention this. We close strong

"Buy two hundred tons tallow, for at 44s. April, 44s. 3d. June, and 45s, end June, best terms."

of year, buyers all positions. There And on the same day the defendant con are orders in our market for June to the

per cwt.


extent of 500 tons or more, at 44s. 3d., sort yellow candle tallow, new, and of the not executed. Yours truly,


brack of "Mollett, Bull & Unsworth."


at forty-six shillings and " London, 28th April, 1869.

six-pence per cwt. (Then followed pro"C. J. Robinson, Esq.

visions similar to those in the bought“We have this day bought for your

note of the 2nd of April.) account 200 tons nett, in casks of

“W. W. Simpson & Co.

"South Sea House, Threadneedle Street, St Petersburgh, first sort yellow candle

London, 2nd April, 1869. tallow, new, and of the brack of 1868-9,

“Commission } per cent." at forty four shillings and three pence (Then followed provisions

13. On receiving the defendant's second

order of the 28th of April, the plaintiff's similar to those in the bought-note of

entered into a contract with Messrs. 2nd of April.). “ Your obedient servants,

Rayner & Co. for the purchase of 200 tons

of tallow, and into a contract with the “Mollett, Bull & Unsworth, said Messrs. W. W. Simpson & Co. for “ Sworn Brokers.”

the purchase of 150 tons of tallow, in11. Upon the receipt of the above

tending to appropriate to the defendant's mentioned orders from the defendant, the

second order the said 150 tons, and 50 plaintiffs made purchases of tallow from

tons out of the said 200 tons, and on the other brokers in the trade, in the manner said 28th of April bought and sold-potes hereinafter described.

were passed between the plaintiffs and 12. On receiving the defendant's order

the said Messrs. Rayner & Co., and the of the 2nd of April, the plaintiff's entered

said Messrs. W. W. Simpson & Co., of into a contract with one William Shar

which the following are copies. man, a Russia broker trading under the firm of Messrs. W. W. Simpson & Co., for.

" London, 28th April, 1869. the purchase of 150 tons of tallow, intend.

“ Messrs. W. W. Simpson & Co. ing to appropriate 50 out of these 150 tons

“ We have this day sold for your acto the defendant's said order, and 100 to

count, one hundred and fifty tons nett, in another order which the plaintiffs had

casks of St. Petersburgh, first sort yellow received from another person, and the

candle tallow, new, and of the brack of plaintiff's made out and sent to the said


1869 at forty-four shillings and three Messrs. W. W. Simpson & Co., a soldnote and received from them a bought- pence per cwt. (Then followed provi. note in respect of the said 150 tons, of

sions similar to those in the bought-note which the following are copies :

of the 2nd of April.)

“ Your obedient servants, “ London, 2nd April, 1869.

“(Signed) Mollett, Bull & Unsworth, “Messrs. W. W. Simpson & Co.

“Sworn brokers." “We have this day sold for your

“Bought for account of Messrs. Mollett, account one hundred and fifty tons nett,

Bull & Unsworth one hundred and fifty in casks of St. Petersburg, first sort

tons nett in casks of St. Petersburgh first yellow candle tallow, new, and of the

sort yellow candle tallow, new, and of the 1868 brack of

at forty-six shillings and

brack of at forty-four shillings and

1869 six pence per cwt. (Then followed provisions similar to those in the bought- provisions similar to those in the bought

threepence per cwt. (Then followed note of the 2nd of April.)

note of the 2nd of April.). "Your obedient servants,

“W. W. Simpson & Co., “ (Signed) Mollett, Bull & Unsworth,

"South Sea House, Threadneedle Street, “ Sworn biokers.

“London, 28th April, 1869." “Brokerage } per cent.' “Bought for account, Messrs. Mollett,

* London, 28th April, 1869, Bull & Unsworth, one hundred and fifty “Messrs. Rayner & Co. tons nett, in casks of St. Petersburgh, first “We have this day sold for your ac

1868, at

count two hundred tons nett in casks of I, J, K, and L are contained in the apSt. Petersburg first sort yellow candle pendix. (It is, however, unncessary to

set them forth.) tallow, new, and of the brack of

18699, 17. Between the 1st and 8th of June forty-four shillings and threepence per certain letters passed between the plaincwt (Then followed provisions similar tiffs and the defendant, copies of which, to those in the bought-note of the 2nd of marked M, N, O, P, and Q respectively, April.)

are contained in the appendix. (It is, “Your obedient Servants,

however, unnecessary to set them forth; "Mollett, Bull, & Unsworth, they simply related to the question of

• Sworn Brokers." taking up and of selling the tallow, and 14. Settlements of transactions in tal the state of the market.) low are usually made in London in the 18. On the 8th of June the plaintiffs months of April, May, and June respec wrote and sent to the defendant a letter tively, and on the May settlement the enclosing a notice that they were ready said William Sharman, trading under to deliver 170 casks, or 75 tons more the firm of Messrs. W. W. Simpson & tallow, in further fulfilment of the defen. Co., as aforesaid, failed, and was unable dant's order of the 28th of April. In to meet his engagements. Thereupon the the same letter the plaintiffs enclosed two plaintiffs and the said Messrs. W. W. invoices, one dated the 7th of June, in Simpson & Co. having many transactions respect of the afore-mentioned (in paratogether outstanding in respect of the graph 16) 175 casks of tallow, and the sale and purchase of tallow balanced and other dated the 8th of June, in respect settled an account thereof, wherein the of the aforesaid (in paragraph 16) 117 quantity of tallow sold was set off against casks. Copies of the said letter, notice, the quantity of tallow purchased by the and invoices marked R, S, T, and U, plaintiffs on account of Messrs. W. W. respectively, are contained in the

apSimpson & Co., whereby it appeared that pendix. (As to these, it need only be the plaintiffs had sold between 100 and said that brokerage was contained in the 200 tons more than they had purchased invoices.) on account of Messrs. W. W. Simpson 19. On the 9th of June the defendant & Co.

acknowledged the receipt of the said 15. Between the 4th and 31st of May, letter and inclosures. 1869, certain letters passed between the 20. On the 10th of June the plaintiffs plaintiffs and the defendant, copies of wrote and sent to the defendant a letter which, marked B, C, D, E, F, G, and H, inclosing an invoice in respect of the respectively, are contained in the appen afore-mentioned (in paragraph 18) 170 dix. (It is sufficient to say that these casks of tallow. Copies of the said letter were letters asking for and giving infor

and the invoice marked V and W respecmation and advice as to the state of the tively are contained in the appendix, market, and what transactions it was (It is only necessary to say that brokerage advisable to undertake.)

was contained in the letter.) 16. On the 31st of May and the 1st 21. On the 14th of June the plaintiffs of June the plaintiffs sent to the defen wrote and sent to the defendant the letter, dant letters dated the 31st of May and a copy of which, marked X, is contained 1st of June respectively, enclosing re in the appendix. (The letter discussed spectively a notice that they were ready the state of the market, and presumed a to deliver 117 casks or 50 tons of tallow, remittance was coming.) in fulfilment of the defendant's order of 22. The defendant having before the the 2nd of April, 1869, and a notice that 15th of June ascertained that the said they were ready to deliver 175 casks or Messrs. Simpson & Co. had failed, and had 75 tons of tallow, in part fulfilment of not themselves tendered the tallow, gave the defendant's order of the 28th of notice to the plaintiffs that he would not April, 1869. Copies of these letters and accept the tallow. of these notices marked respectively 23. On the 15th of June the plaintiff's

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