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v. Lloyd (13)

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 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

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

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- tent 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- exprimeés. 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 ques

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

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 employ-. legal 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

the vendors.

not as

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 buy for me and receive commission from

(N..) Exeh. 13.

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 case. 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 tle 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.

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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 out 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 Coutourier tons of tallow, in all respects correspond. Hastie (14)-or according to the custom

—or 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 plaintiffs) 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 would 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. 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. Ref.

(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.

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, at 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 have 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

more

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'semployment, 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
order
may

be refrain from discussing this at length, placed more quickly, and perhaps more because I do not understand that any 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 dispense 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, NEW SERIES, 41.-C.P.

M

correct,

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