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compel the defendant to accept them, notes, one for 150 tons, and one for 50 tons, because if they had been unwilling sellers instead of one for 200 tons; and to Messrs. the defendant could not have forced them Rayner two sold-notes, one for 50 tons, to deliver him that smaller quantity-see and one for 150 tons, instead of one for Thornton v. Charles (3), and I cannot 200 tons, without any objection on their think that the difficulty is cured by any parts, and with very little additional equity entitling the now defendant to trouble. But no one not personally conuse the plaintiffs' names, and sue upon versant with a business can tell what the contract pro tanto for himself. All little things are found in practice to be this difficulty would have been avoided important. The custom which was proved if two bought-notes, one for 50 tons and to the satisfaction of a London jury and one for 100 tons, had been delivered to of the Judge who tried the cause, is stated W. W. Simpson & Co., instead of one for in the 29th paragraph of the case, and by 150 tons. But the custom, it is expressly that it appears that in this trade it is an found, is to dispense with doing so; and established custom for the brokers who the case of Thornton v. Charles (3) leads have received an order from a principal me to infer that the practice is not of recent for the purchase of tallow, “to include date. I can understand that the dividing of such order with others they have received a lot may necessitate some negotiation and on a contract for the entire quantity, or trouble so as sometimes to cause a bargain in any quantities at their convenience, to be lost, which would be made if the the same time exchanging bought and whole lot were taken at once; possibly sold notes with the brokers, as above even the objection to dividing a lot may described in the present case, and passing be one only to be overcome by a fraction to their principals a bought-note for the of rise in the price, and therefore I can specific quantity ordered by them.” And easily imagine reasons why the broker I cannot construe this as having any other engaged in such a business should desire meaning than that the custom is not to to have every facility for purchasing require the broker to take care that privity entire lots, though the quantity may not

of contract is established between the precisely correspond with that specified broker's client and the person who makes in the order of any of his constituents. the contract with the broker, into which And I can also understand why the con- he enters in consequence of his client's stituent should be willing to give every order. I am not able to see any inconfacility for uniting his order with that of sistency between this modification of the others, or splitting his order into different broker's duty and his employment as a parts, if thereby it can be executed more broker. The employment would be on promptly or on more favourable terms. I the terms that the broker, in consideration am not, therefore, at all surprised at a of his employment for commission, should custom having sprung up with the object

use reasonable skill and diligence to purof enabling the broker to make his con- chase the goods as cheaply as he could, tracts more promptly and more cheaply not exceeding his client's limits, and to than he could do, if obliged to make his charge the client only the customary comcontracts for the precise quantity in his mission in addition to the price actually order. I should have thought before- agreed on, and (as a necessary result of hand that those objects might have been those duties) that the broker should not carried out without losing the advantages himself have any interest in selling the derived from the personal responsibility goods, so as to put his duty to obtain the of the principals to each other. For goods cheap in conflict with his personal instance I should bave thought that the interest; and further by the custom that plaintiffs might have delivered to W. W. if he did not disclose the name of the Simpson & Co. on the 2nd of April two person with whom he made the contract, sold-notes, one for 50 tons and the other he should be himself personally liable for for 100 tons, instead of one note for 150 its fulfilment, just as a del credere broker tons; and on the 28th of April have would be. In the ordinary case of the delivered to the defendant two bought- employment of a broker, there would be


this further duty, that he should use The custom stated in the 29th paragraph, reasonable skill and care to establish a as I read it, does no more than add, as one binding contract between his client and the of the terms of the broker's employment, an other contractor. The custom leaves all alternative power to the effect I have just the earlier terms untouched, but varies the stated. It seems to me in no way incon, last. I own I do not see how this varia- sistent with the employment as broker; tion is inconsistent with the employment and therefore not objectionable on that of the plaintiffs as brokers, or how it can, ground. The case of Bostock v. Jardine to adopt the language of Willes, J., be (1) was referred to in the Court below, said in any way to change the intrinsical and in the argument before us, as a decharacter of that employment. Let us cision that such a custom was bad in law, suppose, to test it, that the whole were and as reported (17) it certainly seems so, written out, and that the constituent of for it is there stated that the question was the broker wrote as follows: “Act for left to the jury, who found that there was me as my broker in buying the tallow on such a custom, and yet the Court entered as good terms as practicable, and for that judgment for the defendant, but the case purpose you may establish privity of con- is misreported in this respect. My brother tract between me and the person who Mellor, before whom the cause was tried, engages to supply it, as ordinary brokers has referred to his notes, and finds that no do. But as I am told that it is found question was left to the jury, the case being by experience that a broker can treated as one of law for the Court only. speedily, and perhaps more cheaply, pick The defendant is stated to be a Liverpool up tallow when able to take an entire lot merchant, and personally ignorant of this from another broker, than when obliged custom. But I think it is now thoroughly to make a contract for the specific quan- established that a person who deals in a tity contained in the client's order, and as general market is bound to enquire what it would seem it is found in practice incon- its usages are, and that those who deal venient to effectuate a contract for an entire with him have a right to hold him bound lot by the delivery of several bought-notes, by them to the same extent as they would containing each the quantity bought for have been entitled to hold a person bound each different client, and amounting in who belonged to the place. He is prethe aggregate to the quantity contained in cluded from setting up, as against the the lot, without which no privity of con- persons he dealt with, his ignorance of tract can be established. And in conse- that which he ought to have known. I quence it appears that my

be refrain from discussing this at length, placed more quickly, and perhaps more because I do not understand that


of cheaply, if I will dispense with the neces- the Judges, either in the Court below or sity for establishing privity of contract above, doubt that the defendant is in no between me and the other contractor, better position, because he was a Liverpool For these reasons I give you an alterna- man who chose to deal in London, than tive authority, to disponse with establish- if he had been a Londoner. These are ing privity of contract between me and the the reasons which lead me to the conclu. other contractor, provided you are per- sion that when the plaintiffs on the 2nd sonally liable to me for the fulfilment of of April entered into a contract with W. the contract; and there really is a contract W. Simpson & Co. for 150 tons, making made by you, which you can enforce, themselves liable to take and pay for entered into in consequence of my order, these, they did, as far as regarded 50 and so fixing the price and preventing tons, incur that liability at the request of your interest from coming in conflict and in pursuance of the authority given with your duty to me. In every other by the defendant in his order of that respect you are to have the authority and date, which is one part of the plaintiffs' liability of a broker.” Such a variation case. It remains to be seen whether in of the terms would be in no way incon

(17) See the judgment of Mellor, J., who stated sistent with the relation between the

that tho report in the Law Journal Reports is parties, being that of broker and client, correct, NEW SERIES, 41.-C.P.


order may

consequence of that liability the plaintiffs tion stipulated for, gets all he bargained for, have been compelled to pay money, and and why should he be entitled to make whether all conditions precedent to the a dishonest profit on account of the failure defendant's obligation to pay that money of the contractor ? And (still assuming, have been fulfilled. I think both positions contrary to the fact in the present case, are made out. I quite agree that the that there was privity of contract) if the plaintiffs cannot call upon the defendant person who was to supply the goods to to pay them, unless they can shew that the brokers' constituent, A., had chanced he might have had the tallow he had to have made a contract through the same stipulated for on payment of the price. broker to receive similar goods at a lower It was argued at the bar that this was price from a constituent, B., I can conceive not so, because the specific casks of tallow no reason why he should not say to the which were offered to the defendant were broker, “Apply the goods which your connever the property of W. W. Simpson & stituent, B., is to supply to me at so much Co., and this no doubt is true in fact; but a ton, to the fulfilment of the contract by I am not able to see anything which which I am bound to supply your conentitled the defendant to insist on having stituent, A., at so much more a ton, and tallow that had belonged to the persons apply the money you pay on behalf of A. whom the plaintiffs described in the in the first instance, in paying B., and bought-note as principals from whom hand over to me only the surplus.” This they bought. Supposing that there had is called, in the case, setting off one conbeen a sold-note for 50 tons delivered tract against another, and it was treated to W. W. Simpson & Co., so as to esta- on the argument as something abnormal, blish privity of contract between that and which it would require a custom to firm and the defendant, I apprehend justify. But it struck me on the arguthat W. W. Simpson & Co., if that ment that it would be quite fair and profirm continued solvent, or its trustees, per, and require no custom at all to justify if it failed, might have supplied the defen- it. I asked what harm it would do to A. dant, when the right time came, with any if his contract was fulfilled by means of tallow answering the description in the this, which is called a set-off? How he contract, however or wherever obtained, was “prejudiced" by receiving all that and that the defendant could not have he had bargained for, by means of this refused to receive that tallow, provided it or any other machinery that was condid answer that description. I have venient to the other side; no answer was known cases in which the party who had given, and after turning it over in my contracted to supply goods had failed mind, I can see none that could have been before the time of delivery, and could given. If, indeed, there should be any disnot himself on his own credit have pro- pute as to the quality of the tallow offered, cured such goods, but the market having the broker who was acting in the case gone down, so that the bargain was a supposed for both, A., who is to receive good one, he or his creditors have gone the tallow, and whose interest is to have into the market, and agreed with a third it extra good, and B., who is to supply it, party to supply the goods on his behalf, and whose interest is therefore to pass receiving the contract price, and out of tallow that was of as low a quality as that retaining the price at which the third would comply with the contract, could party was willing to furnish the goods, not well act as arbiter or judge as to the handing to the contractors or his credi- quality of the tallow, but this is a small tors the surplus. I have always, when at matter, and no difficulty of that sort has the bar, considered that such a course arisen here. It seems to me that the was legitimate. I think that since I have effect of the transaction which is called been on the bench I have so ruled, though balancing and settling the contracts against of that I cannot be sure, and I never heard each other, was simply this, that W. W. that either a judge or a jury took an Simpson & Co., or their trustees, said to opposite view of such a transaction. The the plaintiffs, “Apply all the tallow which decendant, if the goods are of the descrip- you are bound to supply to us, as far as


am of

it will go, to the fulfilment of those con. portance, but are contracts to supply any tracts by which we are bound to supply tallow answering a particular description. you tallow on the same terms; as to the And consequently the defendant was balance of the contracts, get tallow where offered all that he had ever stipulated for, you can to fulfil them on the best terms and suffered no prejudice from the tallow you can, charge us with the market price, being obtained elsewhere than from W. and pay us the difference between that W. Simpson & Co.'s own stores. and the contract price.” The plaintiffs assented to this. It is stated in the case CHANNELL, B.—In this I that it is the custom so to do, which opinion that the rule nisi granted by the certainly tends to shew that it is con- Court below ought to have been disvenient; and perhaps, therefore, the plain charged, and that the judgment entered tiffs were bound to do so. But I have pro forma to that effect (the Court failed to see what objection there would having been equally divided) ought to be have been to their voluntarily adopting affirmed. I have had the opportunity of this course without custom at all, even if reading the judgment of my brother there bad been complete privity of con- Blackburn, who has gone into the case tract established between the defendant very fully. I agree generally with him, and W. W. Simpson & Co., nor can I but considering the difference of opinion see how the defendant is in any way pre- amongst the judges here as well as below, judiced by this course being followed. If I think it right to state shortly the the plaintiffs had by any means escaped grounds of my judgment. We must paying the difference to W. W. Simpson take it that the custom set out in para& Co., and were seeking to make a profit graph 29 of this appeal case was fully out of the transaction, it would in my proved, and that the mode of dealing opinion have been quite a different case. there described is the mode according I have had the advantage of reading my

to which business is done by the persons brother Cleasby's opinion, and I wish to calling themselves brokers, in a market point out where are the two matters in which we must take to be a known and which I differ from what I understand to established market, and which is called be his reasoning. In the first place, I in the case the London tallow trade. The understand the statement in paragraph plaintiffs are persons acting as such brokers 12 of the case, that “ on receiving the in that market, and dealing according to defendant's order of the 2nd of April, the its usages. The defendant is a Liverpool plaintiffs entered into a contract with W. merchant, not perhaps cognisant of the W. Simpson & Co. for the purchase of usages of the London tallow market, but 150 tons of tallow, intending to appro- who chooses to employ the plaintiffs to priate 50 tons out of these 150 tons to buy tallow for him at that market. If he the defendant's said order," as amounting distinctly and expressly employed the to a finding that the plaintiffs made this plaintiff's to buy for him according to the contract with W. W. Simpson & Co. in usages of that market, the plaintiffs would consequence of the defendant's order, and clearly be entitled to recover in this in intended pursuance of his authority, action, for, according to the findings in and (if the custom is effectual) in real the case, they have dealt in the matter pursuance of his authority. I quite agree throughout according to the usages. He that it had not and was not intended to has not, however, expressly employed have the effect of establishing privity of them to buy according to the usages, and contract between the defendant and w. the question we have to decide, as it W. Simpson & Co. And the same re- seems to me, is, simply whether the actual marks apply to the second order. Secondly, employment of the plaintiffs by the dethat the contracts actually entered into fendant, under the circumstances stated in were not for the sale of specific casks of the case, is to be taken to be the same as tallow, or for the supply of tallow from a if he had expressly employed them to huy particular stock, or supplied by a particu- according to the usages.

The market lar firm, wbose brand might be of im- being a known and established one, it

of a

becomes immaterial whether the defend. son.” It is simply “buy for me," and ant was aware of the usages or not. By that being addressed to a broker in the choosing to deal, or employ others to deal London tallow trade, meant " buy for me for him, in such a market, where he might in the way a broker in the London tallow expect to find special usages, he became trade does,” and that again by the usage not necessarily bound by all the usages of means " buy for my bunefit in your own the market-that would depend upon the name, hand to me the goods when you nature of the dealing—but as much bound get them, get them as cheaply as you can by them if he did not know them as if he in the market, I will pay you the price did. This, I think, has been held in

you have to pay to the seller, and will numerous cases, and I do not know that

pay you brokerage for your services." I there is any difference of opinion in the can see nothing in such a mode of buyCourt upon the point. It was, in fact, ing for another so inconsistent with a his duty, before dealing or employing simple direction to buy, as to prevent our others to deal in such a market, to enquire construing as a direction to buy in that as to its usages, if he wished to provide manner a simple direction to "buy for against anything, which he had not fore- me,” when adiressed to a person who seen, done in pursuance of the contract. usually and to the knowledge of the perWe may therefore disregard the element son giving the direction buys for others introduced into the case by the defend. in that manner.

I have already pointed ant's ignorance of the usages. The ques- out, that the usage being the usage tion, therefore, comes to this-Was there known market, actual knowledge of it anything in the express terms of the em. is immaterial. There is, in fact, nothing ployment of the plaintiffs by the defend. whatever to shew


intention on the ant, so inconsistent with the usage, that part of the defendant to direct the plainthe usage is to be taken to be excluded tiffs to buy in any other manner than that and not tacitly incorporated ? The well- in which he was accustomed to buy, and known rule that a usage varying a con- in which he did buy. It seems to me, tract cannot be incorporated into it, is therefore, that the orders given by the merely an example of the maxim, "ex- defendant to the plaintiff's must be con. pressum facit cessare tacitum.” I can see strued as if they had been in express nothing in the orders given by the de- terms, "buy for me according to the fendant to the plaintiffs in this case to usages of the London tallow market;' shew that what they were employed to do and therefore tbat the plaintiffs having

so inconsistent with the course of bought for him according to those usages, dealing according to the usage that it and having incurred liabilty at the demust be taken that the plaintiff's were not fendant's request by so doing, are entitled authorised to follow the usage.

It seems to be reimbursed. For these reasons I to me that it is begging the whole ques. think the judgment should be affirmed. tion to say that the plaintiffs were employed to act as brokers, if by that is meant to KELLY, C.B.--I am of opinion that the act as ordinary brokers only. They were judgment in this case should be affirmed. employed to “buy for me.' It is true The plaintiffs are brokers in the city of that they were not asked to “sell to me, London, and on the 2nd of April, 1870, and if I thought that the effect of the effected a purchase on behalf of the de. usage was necessarily to make the plain- fendant of 50 tons, and on the 28th of tiffs sellers to the defendant, I should say April next following, of 150 tons of tallow, it was inconsistent with the employment. and delivered to him notes of the purchase I do not, however, think that is the effect in the usual form, not naming the sellers. of the usage. The order is “ buy for me,' The plaintiffs, with a view to the exesimply (in one case “buy for me on the cution of the defendant's orders, purchased best terms”). It is not “buy for me as the whole quantity at various periods of an ordinary broker does,” that is to say, Simpson & Co. and Rayner, not under “make a binding contract of sale and two several contracts for 50 and 150 tons, purchase between me and some third per. but having received orders from other


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