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result has proved equally advantageous

several lots of tallow in their own names, to his principal. If this custom is to be with the intention of distributing and apupheld, it will be equally binding on a propriating them to their various custoperson who may find himself without any mers in proportion to their several orders, other principal to look to, and with only but there was no sold note between the an insolvent broker to be responsible to plaintiffs and their sellers corresponding him. It is not difficult to conjecture how to the bought note sent to the defendant, the vicious practice sought to be justified and no such purchase as therein repreas a custom has grown up. If a broker sented was in fact made by the plaintiff's is at liberty to buy in large quantities for the defendant.

The 50 tons were and sell to his principals in small, this, not delivered, nor did the sellers deliver doubtless, facilitates the earning of his any tallow to the plaintiffs, but the pracbrokerage, and so the more readily to do tice was to write it off in a general this, and to save himself the trouble of account between the plaintiffs and their negotiating separate contracts, he sacri. sellers, upon which a balance was struck fices the interest of his principal, which and the plaintiffs paid or allowed or set is to have the security not merely of the off

any difference occasioned by the state brokers but of another principal. The of the market. It was admitted in the case to which this has been likened of a argument before us that the effect of this merchant abroad buying of several per- mode of dealing by the broker was to desons and shipping to his correspondent prive the defendant of all resource against in this country, charging a fixed com. the seller in case of non-delivery of the mission on the price paid, is not parallel tallow, and threw him entirely upon the That is not the business of a broker, but responsibility of the broker; and it was a business of a totally different character, further admitted that unless the custom well known as that of a commission mer- said to exist in the tallow trade in the chant. The business of such a merchant London market authorised the plaintiff's is not to negotiate a contract between his to make the contract which they actually correspondent and third persons, and made for the defendant, he was not bound therefore differs from the employment of

It is clear that the defendant a broker in the essential point on which, employed the plaintiffs in the character as it seems to me, the determination of of brokers only, and it was incompethis case depends. For these reasons, I tent for them, as it appears to me, think that the judgment of the Court to enter into any contract for the below should be reversed.

defendant, the effect of which was to con

vert themselves into sellers, and thus MELLOR, J.-I propose to confine my deprive the defendant of the responsibility observations on this case to one trans- of a principal. The plaintiffs professed action only, as it raises the question upon to act as brokers only, and in that chawhich our decision must turn. The de- racter charged the defendant with a fendant, who is a merchant at Liverpool, commission for so acting. A merchant on the 2nd of April, 1869, instructed the may well trust to the skill and integrity plaintiffs, who are sworn brokers" of a broker to make contract for him carrying on business in London, to buy with a solvent principal, whilst he may be for him 50 tons of tallow, June delivery, indisposed to trast to his (the broker's) at 468. 6d., who on the same day by letter own solvency. It was, however, coninformed the defendant that they had tended that the universal practice of the succeeded in buying for “his account” London tallow trade must be taken as 50 tons of tallow, and enclosed in such incorporated with the authority given by letter a formal bought-note, beginning as the defendant to the plaintiffs as such follows: "We have this day bought for brokers. The statement of such custom your account 50 tons nett, in casks, &c." or practice is to be found in the 29th and signed "Mollett, Bull and Unsworth, paragraph of the case, and if it is to be swom brokers.” The plaintiffs, who had taken as incorporated into the authority other orders from other customers, bought given by the defendant to the plaintiffs,

by it.


it no doubt authorised them to purchase in that judgment. I ought to say that the any quantity of tallow in their own names, case of Bostock v. Jardine (1), which was making themselves thereby responsible to cited by my brother Willes, and in a mantheir sellers, and in appropriating to each ner relied upon as an authority in point, of their customers the quantity of tallow is misreported in the 3rd volume of necessary to satisfy his individual order.

Hurlstone & Coltman's Reports, bnt apI quite agree that the custom or practice pears to me to be more accurately reported of a market thoroughly established must in the 34th volume of the Law Journal bind a person who authorises a broker to Reports, Exchequer. It was tried before make a contract for him, although the me at Liverpool, and I have referred to custom is in fact unknown to him so far my notes and find that no question was as it regulates merely what is done in put to the jury, but that I directed a verthe market, and applies to the mode of dict for the plaintiff

, giving the defenthe performance of the business for which dants leave to move to enter a verdict the broker is engaged, but I think that no for the defendants, or a nonsnit, upon usage or custom of a market unknown to which it appears that the Court of Ex. the principal can enable the broker to chequer granted a rule which was afterchange his essential character and become wards discharged, and the case is only an himself the real seller, and deprive his authority for that which was conceded principal of the responsibility of a seller. in the argument, viz., that without the aid I have already observed that the principal of the custom, no contract binding the may have confidence in the skill and ex- defendant was made in the present case. perience of his broker and yet have none I am of opinion that the rule to enter the in his solvency. In the present case there verdict for the defendant should be made was no ratification of the broker's au. absolute. thority, and therefore unless the custom can be read into the original authority, BLACKBURN, J.-This was an appeal there was no contract binding upon the from the judgment of the Court of Comdefendant. It is said that it cannot mon Pleas, which was argued in the matter to the defendant how or from

sittings after Trinity Term, before the whom the tallow is procured, provided he Lord Chief Baron and my brothers Chanobtains the delivery of that which he in- nell, Mellor, Hannen, and Cleashy, and structed the broker to purchase. That myself. At the trial, the verdict was might be so if in fact the broker was able entered for the plaintiffs, subject to leave to insure the delivery of the tallow pur- to move on grounds which we must take suant to the contract, but the defendant, to be accurately set forth in the case as it appears to me, was not bound to

before us.

A rule was granted in the accept the broker's sole responsibility for Common Pleas, on the argument of which such delivery. Had the broker written to it appeared that Bovill, C.J., and Monthe defendant and informed him of the

tague Smith, J., were of opinion that the custom or practice of the trade in London, rule should be discharged, and Willes, J., it is probable that the defendant would and Keating, J., were of opinion that the not have objected to have his order placed rule should be made absolute. The according to such custom, notwith- Court being equally divided in opinion, standing that it did not give him the no judgment was pronounced, but the responsibility of a seller, but the brokers

rule was discharged and the verdict did not do that, and in fact represented stood, and now the question is bronght that they had bought on the defendant's before this Court on appeal. The account the 50 tons of tallow in question. opinions of the judges below are reported I think that the true limit of the effect of in Mollett v. Robinson (12). After a good a practice or custom of a market with deal of consideration, I have come to the respect to such transactions is that stated conclusion that the verdict found for the by my brother Willes in delivering the plaintiffs is right, and should not be disjudgment of himself and my brother Keating, in the Court below, and I fully concur (12) 39 Law J. Rep. (n.s.) C.P. 290.

turbed. The great question in the case perform all the ordinary duties of brokers, is whether the orders given by the defen- and have all the ordinary authority of a dant to the plaintiffs to buy tallow for broker. But this is only prima facie. him, are to be understood as incorporating The terms on which the parties deal may the customary terms, and so as to give be varied, so as to impose on the brokers the plaintiffs authority to act in the duties and liabilities, and give them powers manner which the jury have found to be beyond those which would be implied by the established custom of brokers in the law from the employment, or so as to London tallow trade. We in the Court relieve them from some of the duties of Appeal must act on this finding as true which would be otherwise imposed on and treat them as being

really the them. And this may be either by ex. customary terms.

If the orders are press agreement between the parties, or to be understood as incorporating these by the force of a custom of a particular customary terms, the plaintiffs have pur- trade, tacitly incorporated as part of their sued their authority, and there is no agreement. For if it is perfectly well difficulty as to the pleadings. For I ap- known that those engaged in a particular prehend that where a person acting at trade are always understood to deal on the request of and in pursuance of an certain terms, the employment, unless authority given by another has incurred a there is something to shew the contrary, liability, and has in consequence been is to be taken to be, by the agreement of before action obliged to pay money in the parties, on the customary terms, though discharge of that liability, he is entitled they were not expressed. This is in conto have that money repaid to him, and formity with the maxim, “In contractithe count for money paid is a proper bus tacite veniunt ea qua sunt moris et count under which to recover it-Brittain consuetudinis." Pothier, in his Traité des v. Lloyd (13). The orders are set out in Obligations, Partie 1, sect. 1, art. 7, § 95 the 8th and 9th paragraphs of the case. (Tom. 1, p. 52, Dupin's ed. 1827), exThey are not requests to the plaintiffs to presses the same rule thus: “On sonsensell tallow to the defendant, but are ex- tend dans un contrat les clauses qui y pressed to be orders to the plaintiffs to sont d'usage, quoi qu'elles ne soient pas buy tallow for the defendant, and a dis- exprimees. And this tacit variation of cretion is given to the plaintiffs to fix the terms from those which would otherthe price, which would be quite incon- wise be implied by law, has the same sistent with the plaintiffs being themselves effect as if it was express. The great questhe vendors. Those orders were given tion in the present case is, whether there to the plaintiffs in their character of is enough to shew that the customary brokers, and they especially call them- terms are not to be tacitly incorporaselves brokers when acting in pursuance

ted. In the judgment of my brothers of their orders, and they charge commis- Willes and Keating below, it is said to be sion as brokers. I do not attach so much "an elementary proposition that a cusweight to the use of the word " broker," tom of trade may control the mode of but I think the discretion as to the price performance of a contract, but cannot and the charge of commission are conclu- change its intrinsic character.” To some sive to shew that the orders were given extent I agree with this. If the terms to the plaintiffs, intending them to act, are such as to be inconsistent with the not as principals, but as agents for the nature of the employment, so that if defendant, and middlemen and negotia. they prevailed they would change its tors, which is the thing which is meant nature altogether, I think they should be by the word “broker." Prima facie, the rejected. In such a case, if the employlegal effect of accepting such orders is ment and the terms were expressed at that the plaintiffs were employed by the full length beside each other, there would defendant on the terms that they should be an apparent contradiction and in

congruity. As for instance, if an order (13) 14 Mee. & W. 762 ; s. c. 15 Law J. Rep.

was given, “ Act for me as my agent, to (N.s.) Exch. 43.

buy for me and receive commission from me for your services as such agent, on the I have cited from my brother Willes's terms that you are neither to have the judgment, I agree with it, though I powers, nor perform the services, nor be differ as to its application to the present subject to the liabilities of an agent, but


I have already expressed my shall be subject to the liabilities and have opinion that the orders clearly express an the rights of a vendor,” there would be intention that the plaintiffs should buy for a patent contradiction on the face of the the defendant, acting as his agent, and order. If this was all expressed it would receiving pay for his services as such; and be a question of construction whether the if I thought that the effect of tacitly in. order was to be considered void for un- corporating in the orders the custom set certainty, or whether the expressed terms out in paragraph twenty-nine of the case were to prevail, though the effect would would be to change the relation between be that the relation between the parties the parties from that of principal and would not be that of principal and agent agent to that of buyer and seller, so as to at all. The duty of the Court is to con- deprive the defendant of the services of strue “ut res magis valeat,” and therefore the plaintiffs for which he pays commisgenerally in the construction the expressed sion; and more particularly if I thought terms would prevail, though that would the effect of the custom was to put the have the effect of making the real relation duty which the plaintiffs would owe to different from the nominal one. But if the defendant, to obtain for him as good those terms could only be brought in, a bargain as was practicable, in conflict because, being the customary terms, they with their interest, I should, as at present were to be tacitly understood, I think it advised, think that the customary terms would be different. The maxim, "ex- must be rejected as excluded by the terms pressum cessare facit tacitum,” would of the employment. I have thought it then apply, and if the employment was to right to say so, though it is not necessary be that of an agent, and the customary in the view I take of the case to decide terms if incorporated would make it, not this, for I come to the conclusion that the that of an agent at all, the expressed em- custom is perfectly consistent with the ployment would prevail over the tacit employment of the plaintiffs as brokers to terms, and cause them to be rejected as buy for the defendant, and leaves the inconsistent with and repugnant to the plaintiffs under liabilities to the defendant express employment. To make my mean- for the due performance of services quite ing plainer, I will put a case of a trade sufficient to be a consideration for the such as that of a jobber, who sells to any commission, though the effect of the cusone who comes to him at a fraction above tom is materially to vary both the duty the market price, and buys of any one at and the authority of the plaintiffs, from a fraction below the market price. If such that which would be implied by law if no a person received an order, expressed as such custom was incorporated. In this I if he was for commission to act as an take a different view of the facts from agent to buy for his correspondent, he that which seems to have been taken by ought, unless he was willing to act as an my brothers Willes and Keating in the agent, to reject it, informing his cor- Court below. It is therefore necessary respondent of his mistake, and that he to examine what the facts of the case are. was not an agent but a jobber, for I think The order of the 2ud of April was to that if he accepted the order thus ex- buy for the defendant fifty tons for the pressed, he would incur the liabilities of June delivery. On that day it appears in an agent, however well-known it might be the eighth paragraph the plaintiffs sent that he was a jobber, and that jobbers the defendant a formal bought-note for did not incur such liabilities. And I fifty tons, setting out all the terms of the think this would be so even though the contract and signed by the plaintiffs as fraction, which as a jobber he would re- brokers. In the twelfth paragraph it is ceive, was in amount the same as the com- stated that on receiving the defendant's mission which as agent he would receive. order of the 2nd of April the plaintiff's If this is all that is meant by the passage entered into a contract with W. W.



Simpson & Co. for the purchase of 150 fiduciary relation, there was an important tons of tallow, intending to appropriate departure from the ordinary duty of a fifty ont of these 150 tons to the de- broker. The ordinary duty of a broker fendant's order, and 100 to another order is to make a contract between his emwhich the plaintiffs had received from ployer and some other person; and though another person, and the plaintiffs sent a the broker may, in consideration of a del sold-note to W.W. Simpson & Co. for 150 credere commission-see Coutourier tons of tallow, in all respects correspond- Ilastie (14)—or according to the custom ing with the note sent to the defendant, of particular trades, in consideration of except in the quantity. It is this variance his not being called upon to disclose the in the quantity that raises the first diffi- name of his principal-see Cropper v. Cook culty, and I agree that but for the custom (15), Fleet v. Merton (16)-incur perit would be fatal; but what at present I sonal liability to

see that the wish to point out is that there was no tract is performed, yet the employer breach of the fiduciary relation between has a right to have the liability of the parties, nor anything inconsistent the other person as well, and this is an imwith the employment, which the plaintiffs portant matter.

In the present case, had accepted, to buy for the defendant as W. W. Simpson & Co. have failed, whilst cheap as they could, and the duty which the brokers (the plaintiff's) have remained I think is in consequence thrown upon solvent, and so the liability of the conthose who accept such an employment, tractor is not of consequence, but it not to put their interest in conflict with might very well have been that W. W. their duty as they wonld do if they were Simpson & Co. had remained solvent and to make themselves the principals, who the brokers failed. Then the importance would profit if the price was higher. of having a contractor bound to the deHad the plaintiffs obtained the consent of fendant would have been obvious. The W. W. Simpson & Co. to divide the con- person who employs a broker on the tract, and had delivered to them two sold- terms that the broker is to make a connotes, one for 50 tons, and the other for tract for him with another, relies on the 100 tons, the transaction would have been skill and intelligence of the broker who is all regular and binding without the aid to select his contractor, and who will of any custom at all. The plaintiffs had choose a solvent one, but he has no occanot in the least degree more interest in sion to inquire whether the broker has the transaction because the contract was enough capital to meet the contracts. not divided; they would have been liable Even where the name of the contractor is for the fulfilment of the contract as not disclosed, and the broker is personally brokers who did not disclose the name of liable, it is a great security to have, in their principal, as much in the one case addition, the liability of a contractor as in the other; and in neither case was who, though not named, is, if the broker their personal interest put in conflict with has done his duty, a person of repute, their duty to their employers. The such as a broker might reasonably trust. manner in which the order of the 28th of Now in the present case there is no conApril was acted upon is stated in para- tract between the defendant and W. W. graphs 9 and 13. It differs in this, that Simpson & Co.

Simpson & Co. The defendant could not there were two sold-notes for smaller call upon W. W. Simpson & Co. to dequantities than the one bought-note, but liver him 50 tons of tallow under the conin other respects it was similar. In this tract of the 2nd of April, because W. W. case also there was no breach of the duty Simpson & Co. had not engaged to deliver imposed by the fiduciary relation between any smaller quantity than 150 tons. Nor the parties. I am the more anxious to could W. W. Simpson & Co., if willing point out this because, as I have already to deliver the smaller quantity of 50 tons, intimated, I should, as at present advised, give judgment for the defendant if I did

(14) 8 Exch. Rep. 55; s. c. 22 Law J. Rep.

(N.s.) Exch. 97. not think that this was the fact. But

(15) Law Rep. 3 C.P. 194. though there was not any breach of this (16) Q.B. not yet reported.

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