compel the defendant to accept them, because if they had been unwilling sellers the defendant could not have forced them to deliver him that smaller quantity-see Thornton v. Charles (3), and I cannot think that the difficulty is cured by any equity entitling the now defendant to use the plaintiffs' names, and sue upon the contract pro tanto for himself. All this difficulty would have been avoided if two bought-notes, one for 50 tons and one for 100 tons, had been delivered to W. W. Simpson & Co., instead of one for 150 tons. But the custom, it is expressly found, is to dispense with doing so; and the case of Thornton v. Charles (3) leads me to infer that the practice is not of recent date. I can understand that the dividing of a lot may necessitate some negotiation and trouble so as sometimes to cause a bargain to be lost, which would be made if the whole lot were taken at once; possibly even the objection to dividing a lot may be one only to be overcome by a fraction of rise in the price, and therefore I can easily imagine reasons why the broker engaged in such a business should desire to have every facility for purchasing entire lots, though the quantity may not precisely correspond with that specified in the order of any of his constituents. And I can also understand why the constituent should be willing to give every facility for uniting his order with that of others, or splitting his order into different parts, if thereby it can be executed more promptly or on more favourable terms. I am not, therefore, at all surprised at a custom having sprung up with the object of enabling the broker to make his contracts more promptly and more cheaply than he could do, if obliged to make his contracts for the precise quantity in his order. I should have thought beforehand that those objects might have been carried out without losing the advantages derived from the personal responsibility of the principals to each other. For instance I should have thought that the plaintiff's might have delivered to W. W. Simpson & Co. on the 2nd of April two sold-notes, one for 50 tons and the other for 100 tons, instead of one note for 150 tons; and on the 28th of April have delivered to the defendant two bought

notes, one for 150 tons, and one for 50 tons, instead of one for 200 tons; and to Messrs. Rayner two sold-notes, one for 50 tons, and one for 150 tons, instead of one for 200 tons, without any objection on their parts, and with very little additional trouble. But no one not personally conversant with a business can tell what little things are found in practice to be important. The custom which was proved to the satisfaction of a London jury and of the Judge who tried the cause, is stated in the 29th paragraph of the case, and by that it appears that in this trade it is an established custom for the brokers who have received an order from a principal for the purchase of tallow, "to include such order with others they have received on a contract for the entire quantity, or in any quantities at their convenience, at the same time exchanging bought and sold notes with the brokers, as above described in the present case, and passing to their principals a bought-note for the specific quantity ordered by them." And I cannot construe this as having any other meaning than that the custom is not to require the broker to take care that privity of contract is established between the broker's client and the person who makes the contract with the broker, into which he enters in consequence of his client's order. I am not able to see any inconsistency between this modification of the broker's duty and his employment as a broker. The employment would be on the terms that the broker, in consideration of his employment for commission, should use reasonable skill and diligence to purchase the goods as cheaply as he could, not exceeding his client's limits, and to charge the client only the customary commission in addition to the price actually agreed on, and (as a necessary result of those duties) that the broker should not himself have any interest in selling the goods, so as to put his duty to obtain the goods cheap in conflict with his personal interest; and further by the custom that if he did not disclose the name of the person with whom he made the contract, he should be himself personally liable for its fulfilment, just as a del credere broker would be. In the ordinary case of the employment of a broker, there would be

this further duty, that he should use reasonable skill and care to establish a binding contract between his client and the other contractor. The custom leaves all the earlier terms untouched, but varies the last. I own I do not see how this variation is inconsistent with the employment of the plaintiffs as brokers, or how it can, to adopt the language of Willes, J., be said in any way to change the intrinsical character of that employment. Let us suppose, to test it, that the whole were written out, and that the constituent of the broker wrote as follows: "Act for me as my broker in buying the tallow on as good terms as practicable, and for that purpose you may establish privity of contract between me and the person who engages to supply it, as ordinary brokers do. But as I am told that it is found by experience that a broker can more speedily, and perhaps more cheaply, pick up tallow when able to take an entire lot from another broker, than when obliged to make a contract for the specific quantity contained in the client's order, and as it would seem it is found in practice inconvenient to effectuate a contract for an entire lot by the delivery of several bought-notes, containing each the quantity bought for each different client, and amounting in the aggregate to the quantity contained in the lot, without which no privity of contract can be established. And in consequence it appears that my order may be placed more quickly, and perhaps more cheaply, if I will dispense with the necessity for establishing privity of contract between me and the other contractor. For these reasons I give you an alternative authority, to dispense with establishing privity of contract between me and the other contractor, provided you are personally liable to me for the fulfilment of the contract; and there really is a contract made by you, which you can enforce, entered into in consequence of my order, and so fixing the price and preventing your interest from coming in conflict with your duty to me. In every other respect you are to have the authority and liability of a broker." Such a variation of the terms would be in no way inconsistent with the relation between the parties, being that of broker and client, NEW SERIES, 41.-C.P.

The custom stated in the 29th paragraph, as I read it, does no more than add, as one of the terms of the broker's employment, an alternative power to the effect I have just stated. It seems to me in no way incon, sistent with the employment as broker; and therefore not objectionable on that ground. The case of Bostock v. Jardine (1) was referred to in the Court below, and in the argument before us, as a decision that such a custom was bad in law, and as reported (17) it certainly seems so, for it is there stated that the question was left to the jury, who found that there was such a custom, and yet the Court entered judgment for the defendant, but the case is misreported in this respect. My brother Mellor, before whom the cause was tried, has referred to his notes, and finds that no question was left to the jury, the case being treated as one of law for the Court only. The defendant is stated to be a Liverpool merchant, and personally ignorant of this custom. But I think it is now thoroughly established that a person who deals in a general market is bound to enquire what its usages are, and that those who deal with him have a right to hold him bound by them to the same extent as they would have been entitled to hold a person bound who belonged to the place. He is precluded from setting up, as against the persons he dealt with, his ignorance of that which he ought to have known. refrain from discussing this at length, because I do not understand that any of the Judges, either in the Court below or above, doubt that the defendant is in no better position, because he was a Liverpool man who chose to deal in London, than if he had been a Londoner. These are the reasons which lead me to the conclusion that when the plaintiffs on the 2nd of April entered into a contract with W. W. Simpson & Co. for 150 tons, making themselves liable to take and pay for these, they did, as far as regarded 50 tons, incur that liability at the request of and in pursuance of the authority given by the defendant in his order of that date, which is one part of the plaintiffs' case. It remains to be seen whether in

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(17) See the judgment of Mellor, J., who stated that the report in the Law Journal Reports is correct,

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consequence of that liability the plaintiffs have been compelled to pay money, and whether all conditions precedent to the defendant's obligation to pay that money have been fulfilled. I think both positions are made out. I quite agree that the plaintiffs cannot call upon the defendant to pay them, unless they can shew that he might have had the tallow he had stipulated for on payment of the price. It was argued at the bar that this was not so, because the specific casks of tallow which were offered to the defendant were never the property of W. W. Simpson & Co., and this no doubt is true in fact; but I am not able to see anything which entitled the defendant to insist on having tallow that had belonged to the persons whom the plaintiff's described in the bought-note as principals from whom they bought. Supposing that there had been a sold-note for 50 tons delivered to W. W. Simpson & Co., so as to establish privity of contract between that firm and the defendant, I apprehend that W. W. Simpson & Co., if that firm continued solvent, or its trustees, if it failed, might have supplied the defendant, when the right time came, with any tallow answering the description in the contract, however or wherever obtained, and that the defendant could not have refused to receive that tallow, provided it did answer that description. I have known cases in which the party who had contracted to supply goods had failed before the time of delivery, and could not himself on his own credit have procured such goods, but the market having gone down, so that the bargain was a good one, he or his creditors have gone into the market, and agreed with a third party to supply the goods on his behalf, receiving the contract price, and out of that retaining the price at which the third party was willing to furnish the goods, handing to the contractors or his creditors the surplus. I have always, when at the bar, considered that such a course was legitimate. I think that since I have been on the bench I have so ruled, though of that I cannot be sure, and I never heard that either a judge or a jury took an opposite view of such a transaction. defendant, if the goods are of the descrip

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tion stipulated for, gets all he bargained for, and why should he be entitled to make a dishonest profit on account of the failure of the contractor? And (still assuming, contrary to the fact in the present case, that there was privity of contract) if the person who was to supply the goods to the brokers' constituent, A., had chanced to have made a contract through the same broker to receive similar goods at a lower price from a constituent, B., I can conceive no reason why he should not say to the broker, "Apply the goods which your constituent, B., is to supply to me at so much a ton, to the fulfilment of the contract by which I am bound to supply your constituent, A., at so much more a ton, and apply the money you pay on behalf of A. in the first instance, in paying B., and hand over to me only the surplus." This is called, in the case, setting off one contract against another, and it was treated on the argument as something abnormal, and which it would require a custom to justify. But it struck me on the argument that it would be quite fair and proper, and require no custom at all to justify it. I asked what harm it would do to A. if his contract was fulfilled by means of this, which is called a set-off? How he was "prejudiced" by receiving all that he had bargained for, by means of this or any other machinery that was convenient to the other side; no answer was given, and after turning it over in my mind, I can see none that could have been given. If, indeed, there should be any dispute as to the quality of the tallow offered, the broker who was acting in the case supposed for both, A., who is to receive the tallow, and whose interest is to have it extra good, and B., who is to supply it, and whose interest is therefore to pass tallow that was of as low a quality as would comply with the contract, could not well act as arbiter or judge as to the quality of the tallow, but this is a small matter, and no difficulty of that sort has arisen here. It seems to me that the effect of the transaction which is called balancing and settling the contracts against each other, was simply this, that W. W. Simpson & Co., or their trustees, said to the plaintiffs, "Apply all the tallow which you are bound to supply to us, as far as

it will go, to the fulfilment of those contracts by which we are bound to supply you tallow on the same terms; as to the balance of the contracts, get tallow where you can to fulfil them on the best terms you can, charge us with the market price, and pay us the difference between that and the contract price." The plaintiffs assented to this. It is stated in the case that it is the custom so to do, which certainly tends to shew that it is convenient; and perhaps, therefore, the plaintiffs were bound to do so. But I have failed to see what objection there would have been to their voluntarily adopting this course without custom at all, even if there had been complete privity of contract established between the defendant and W. W. Simpson & Co., nor can I see how the defendant is in any way prejudiced by this course being followed. If the plaintiffs had by any means escaped paying the difference to W. W. Simpson & Co., and were seeking to make a profit out of the transaction, it would in my opinion have been quite a different case.

I have had the advantage of reading my brother Cleasby's opinion, and I wish to point out where are the two matters in which I differ from what I understand to be his reasoning. In the first place, I understand the statement in paragraph 12 of the case, that "on receiving the defendant's order of the 2nd of April, the plaintiffs entered into a contract with W. W. Simpson & Co. for the purchase of 150 tons of tallow, intending to appropriate 50 tons out of these 150 tons to the defendant's said order," as amounting to a finding that the plaintiffs made this contract with W. W. Simpson & Co. in consequence of the defendant's order, and in intended pursuance of his authority, and (if the custom is effectual) in real pursuance of his authority. I quite agree that it had not and was not intended to have the effect of establishing privity of contract between the defendant and W. W. Simpson & Co. And the same remarks apply to the second order. Secondly, that the contracts actually entered into were not for the sale of specific casks of tallow, or for the supply of tallow from a particular stock, or supplied by a particular firm, whose brand might be of im

portance, but are contracts to supply any tallow answering a particular description. And consequently the defendant was offered all that he had ever stipulated for, and suffered no prejudice from the tallow being obtained elsewhere than from W. W. Simpson & Co.'s own stores.

CHANNELL, B.-In this case I am of opinion that the rule nisi granted by the Court below ought to have been discharged, and that the judgment entered pro forma to that effect (the Court having been equally divided) ought to be affirmed. I have had the opportunity of reading the judgment of my brother Blackburn, who has gone into the case very fully. I agree generally with him, but considering the difference of opinion amongst the judges here as well as below, I think it right to state shortly the grounds of my judgment. We must take it that the custom set out in paragraph 29 of this appeal case was fully proved, and that the mode of dealing there described is the mode according to which business is done by the persons calling themselves brokers, in a market which we must take to be a known and established market, and which is called in the case the London tallow trade. The plaintiffs are persons acting as such brokers in that market, and dealing according to its usages. The defendant is a Liverpool merchant, not perhaps cognisant of the usages of the London tallow market, but who chooses to employ the plaintiffs to buy tallow for him at that market. If he distinctly and expressly employed the plaintiffs to buy for him according to the usages of that market, the plaintiff's would clearly be entitled to recover in this action, for, according to the findings in the case, they have dealt in the matter throughout according to the usages. He has not, however, expressly employed them to buy according to the usages, and the question we have to decide, as it seems to me, is, simply whether the actual employment of the plaintiffs by the defendant, under the circumstances stated in the case, is to be taken to be the same as if he had expressly employed them to buy according to the usages. The market being a known and established one, it

becomes immaterial whether the defend. ant was aware of the usages or not. By choosing to deal, or employ others to deal for him, in such a market, where he might expect to find special usages, he became not necessarily bound by all the usages of the market-that would depend upon the nature of the dealing-but as much bound by them if he did not know them as if he did. This, I think, has been held in numerous cases, and I do not know that there is any difference of opinion in the Court upon the point. It was, in fact, his duty, before dealing or employing others to deal in such a market, to enquire as to its usages, if he wished to provide against anything, which he had not foreseen, done in pursuance of the contract. We may therefore disregard the element introduced into the case by the defendant's ignorance of the usages. The question, therefore, comes to this-Was there anything in the express terms of the employment of the plaintiffs by the defendant, so inconsistent with the usage, that the usage is to be taken to be excluded and not tacitly incorporated? The wellknown rule that a usage varying a contract cannot be incorporated into it, is merely an example of the maxim, expressum facit cessare tacitum." I can see nothing in the orders given by the defendant to the plaintiffs in this case to shew that what they were employed to do was so inconsistent with the course of dealing according to the usage that it must be taken that the plaintiff's were not authorised to follow the usage. It seems to me that it is begging the whole question to say that the plaintiffs were employed to act as brokers, if by that is meant to act as ordinary brokers only. They were employed to "buy for me." It is true that they were not asked to " sell to me,' and if I thought that the effect of the usage was necessarily to make the plaintiffs sellers to the defendant, I should say it was inconsistent with the employment. I do not, however, think that is the effect of the usage. The order is "buy for me," simply (in one case "buy for me on the best terms "). It is not "buy for me as an ordinary broker does," that is to say, "make a binding contract of sale and purchase between me and some third per

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son." It is simply "buy for me," and that being addressed to a broker in the London tallow trade, meant "buy for me in the way a broker in the London tallow trade does," and that again by the usage means buy for my benefit in your own name, hand to me the goods when you get them, get them as cheaply as you can in the market, I will pay you the price you have to pay to the seller, and will pay you brokerage for your services." can see nothing in such a mode of buying for another so inconsistent with a simple direction to buy, as to prevent our construing as a direction to buy in that manner a simple direction to "buy for me," when addressed to a person who usually and to the knowledge of the person giving the direction buys for others in that manner. I have already pointed out, that the usage being the usage of a known market, actual knowledge of it is immaterial. There is, in fact, nothing whatever to shew any intention on the part of the defendant to direct the plaintiffs to buy in any other manner than that in which he was accustomed to buy, and in which he did buy. It seems to me, therefore, that the orders given by the defendant to the plaintiff's must be construed as if they had been in express terms, "buy for me according to the usages of the London tallow market; and therefore that the plaintiff's having bought for him according to those usages, and having incurred liabilty at the defendant's request by so doing, are entitled to be reimbursed. For these reasons I think the judgment should be affirmed.

KELLY, C.B. I am of opinion that the judgment in this case should be affirmed. The plaintiffs are brokers in the city of London, and on the 2nd of April, 1870, effected a purchase on behalf of the defendant of 50 tons, and on the 28th of April next following, of 150 tons of tallow, and delivered to him notes of the purchase in the usual form, not naming the sellers. The plaintiffs, with a view to the execution of the defendant's orders, purchased the whole quantity at various periods of Simpson & Co. and Rayner, not under two several contracts for 50 and 150 tons, but having received orders from other