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buyers to purchase other quantities of the name; he, however, being always personsame tallow, made purchases of 150 tons ally liable under the usage for the perand 200 tons respectively. When the formance of the contract with the buyer, time arrived for the delivery of the tallow, as if he had bimself been the seller of the Simpson & Co. had failed, and the plain- tallow. The question for our consideration titles having contracted with them for is, whether this usage is binding upon the several other purchases and sales of tallow defendant who is a merchant residing and before the time for performance, settled trading at Liverpool, and not in London ; the whole of these transactions by setting and whether it is a reasonable custom, off the sales against the purchases, and and so incorporated into the contract, as paying or securing the difference upon the to be binding on the defendant, and to whole of the contracts. The plaintiffs enable the plaintiffs to recover. The then, when the time arrived for the de. custom itself, as above set forth, is exlivery of the tallow to the defendant, pressly found by the case, and the plaintiffs having purchased the requisite quantities, are found to have strictly conformed to tendered the tallow in due time to the the custom throughout these transactions ; defendant, when tallow having fallen in and I am of opinion that the custom is price, and the defendant having ascer- lawful and reasonable, and also that it is tained that the tender was made by the binding upon the defendant. It is true plaintiffs and not by Simpson & Co. and that this custom, as found, does not enable Rayner, the sellers, repudiated the con- the defendant to enforce the performance tract and refused to accept the tallow; of the contract by an action in his own whereupon the plaintiffs brought this name against the seller, but inasmuch as action to recover 3621., the loss or dif- it may well be that from the nature of the ference in price which they had allowed to tallow trade a broker may be often unable Sim pson & Co. and Rayner. And the to effect a purchase of the specific quantity question is, whether they are entitled to of tallow, neither more nor less, that a recover. The defendant contends that buyer may require, or to purchase it on by reason of the purchase by the plaintiff's terms as favourable to the buyer as upon of the tallow in different quantities from the purchase of a larger quantity, I see those which he had ordered, he would nothing unreasonable in a custom which have had do right of action against the enables him, if he has several orders, to sellers if they had failed to perform the buy for different purchasers to execute contract, and that there was, in fact, no them by purchasing of a seller a sufficient privity between him and them, and that quantity to provide for the performance the plaintiffs not having effected these of all the contracts; he being himself by purchases according to the duty and force of the custom personally liable to practice of brokers, he is not bound by each of the buyers for the complete perthe contracts entered into, and which are formance of each of the contracts. It is not such as he authorised the plaintiffs to objected that the purchaser in such a case, make, and therefore that the plaintiffs if the broker becomes insolvent, being cannot maintain this action. The plain without the means of enforcing the contiffs, however, rely upon the usage in the tract against the seller, is deprived of the tallow trade in the City of London to the benefit of it altogether. But I think that effect that a broker upon an order to the disadvantage to the defendant of being purchase tallow, as in the present case, is unable to sue the solvent seller upon the entitled to contract for the purchase of insolveney of the broker is rather appathe quantity required, together with other rent than real. For if such had been the quantities for which he may have received state of things in this case, and supposing orders from other parties, including the the price of tallow to have risen, in which whole in one and the same contract of case only the defendant could have been purchase; and, further, that he may settle interested in suing Simpson & Co., I am with the sellers as before mentioned, and of opinion that he might have sued in the then enforce the performance of the con- name of the plaintiffs, and the value of the tract with the purchaser suing in his own

150 tons of tallow would have been

a

MOGER V. ESCOTT.

recovered by the plaintiffs or in their served would be often unable to comply name in trust for the defendant as to 50 with an order to purchase, or to effect the tons, and for the purchaser of the 100 contract on terms equally favourable to tons as to the remainder. And if the de. the buyer unless by availing himself of fendant's order and the plaintiffs' note of the custom. And having done so in the the contract had been so expanded as to transaction in question, I am of opinion embrace all these contingencies and to that he is justified by the custom which provide for them, there would have been being reasonable in itself and binding no departure from the real intention of

upon the defendant entitles the plaintiffs the parties, either as to the contract itself, to maintain this action. or the mode of carrying it into effect. The

Judgment affirmed. direct operation of a custom upon any contract, and indeed the

very essence

of a custom, inasmuch as it is supposed to be known to both parties, is to make it as much a

Attorneys-Simpson & Culling ford, for appellant; part of the contract itself, as if it had been Thomas & Hollams, for respondents. expressly recited or stated in it. If the contract here to all that it contains had added the words hereafter following, it appears to me that the contract would have been reasonable and just to all parties, and that which, if the parties (Appeal from Revising Barrister's Court.) knew of the custom they must actually 1871. have intended—“it is hereby agreed that Nov. 22. the broker may purchase of the seller any 1872. larger quantity of tallow than 50 tons, in Feb. 9. order to supply other contracting parties, provided that the buyer shall, if he thinks

Parliament -- Borough Vote-Successive fit, be at liberty to sue the seller in the

Occupation–30 & 31 Vict. c. 102. ss. 3, 26

—2 Will. 4. c. 45. 8. 28. name of the broker, and that the broker hereby guarantees the performance of the A claim to be registered as parliamentary contract by the seller. As to the ob- voter for a borough, under 30 8. 31 Vict. jection that the broker in fact becomes the c. 102. ss. 3, 26, as an inhabitant occupier seller, I need say no more than that he of two houses in succession, is good, although, becomes so only to the same extent as in as respects the second house, the landlord is the common case of a broker guaranteeing the person rated, and by his agreement with the performance of the contract by the the claimant has paid the rates. seller. If all parties remain solvent, no difficulty arises. If the broker becomes This was a case stated by the revising insolvent, the remedy above pointed out barrister for the borough of Bath, raising is open to the buyer. If the seller become the question whether, where a claim is insolvent, as here, the broker must perform made as inhabitant occupier of two houses the contract with the buyer. Why should in succession, under 30 & 31 Vict, c. 102. the buyer in either case escape the per. ss. 3, 26, it is sufficient that the landlord formance of the contract as against the of the second house should be rated and one party or the other ? So I think pay the rates by agreement with the octhat i he defendant upon authority as well cupier. The barrister had disallowed the as on principle, although carrying on clim. The facts of the case are so fully business at Liverpool, must be taken to stated in the judgment, that it is unnehave known, or if not, that he must be

cessary to set them out. content to be bound by the custom of the Saunders, for the appellant. — By 2 tallow trade in London, if he think fit to Will. 4. c. 45. s. 28, it was provided that instruct a broker there to effect a purchase the premises, the occupation whereof on his behalf. The custom in London is entitled a man to vote, might be different universal, and the broker as before ob

premises occupied in immediate succes.

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sion, he having paid all the poor-rates The judgment of the Court (2) was and taxes become payable by him before (on Feb. 9) delivered by a certain day, and in Rogers v. Lewis (1) BRETT, J.-In this case Thomas Mogor it was held that, if he paid, it was suffi- claimed to have his name inserted in the cient, and that it was not necessary that he list of voters for the city and borough of should be rated. Then came 30 & 31 Vict. Bath. His name appeared upon the c. 102, giving by s. 3 a qualification re- list of claimants as an occapier of a house, quiring rating, and by s. 26 allowing 7, Taylor's Court, in immediate succesdifferent premises occupied in immediate sion to his occupation of a house, 13 Parasuccession to have the same effect in dise Street, It was proved that the qualifying " as continued occupation of claimant had occupied 13 Paradise Street the same premises in the manner herein for a long time previous to and up to provided." Either this last section refers July, 1871, at a rent of 61. per annum, only to the occupation, so that if the occu- and that he was duly rated to all poorpation of these premises satisfios s. 3, it is rates made during the time of such occusufficient; or at least s. 28 of the pre- pation, and had paid all rates payable by vious Act is incorporated (for by s. 59 of him in respect of the premises during the latter Act, the two Acts are to be con- such occupation. In February, 1871, the strued as one, as far as is consistent) claimant moved direct into and occupied and consequently Rogers v. Lewis (1) 7 Taylor's Court, for which he agreed to applies, and payment of rates is enough. pay an annual rent of 81., his landlord And here there was payment, for pay- agreeing to pay the rates. A poor-rate ment by the landlord was payment by the was made in April, 1871, in which the tenant; and even if this be not so, the claimant's name did not apear; he did point as to non-payment was not taken. not claim to be rated; he was not entitled

Gorst, for the respondent. The fran- to the benefit of s. 19 of the Poor Rate chise claimed is founded on the occupa- Assessment and Collection Act, 1869; tion qualification in s. 3 of the new Act, but all rates payable in respect of 7 Tayand the meaning of s. 26, as applied to lor's Court were, previous to the 20th of the present case, is that the conditions of July, 1871, paid by his landlord. The the occupation franchise given by s. 3, revising barrister disallowed the claim. must be fulfilled as to each house (except- It was contended on behalf of the claim. ing, of course, the duration of occupation ant that this decision was erroneous; that for twelve months); and therefore, as one it was not necessary that the claimant of these conditions is that there should be should be rated in respect of the second rating, payment alone is not sufficient. house, if he paid all rates payable in reAs respects what has been said as to the spect of it; and that he had, by the hands old Act, and the case of Rogers v. Lewis of his landlord, paid all such rates. It (1), in the first place, the reasoning used was contended on behalf of the responthere does not apply, as the Act in terms dent that, according to sections 3 and 26 provided that payment should be enough; of the Representation of the People Act, and in the second place, the section is not 1867, it was necessary, in order to entitle incorporated with the new Act, so as to the claimant to be registered, that he touch s. 26, as the two incorporating sec- should not only have paid all rates paytions, ss. 56, 59, use the words, “but sub- able in respect of the second house held ject to the provisions of this Act," and in immediate succession, but that he "so far as is consistent with the tenour should also have been rated to such rates; thereof;" and to thus incorporate it and further, that the claimant had not would be adverse to the provisions and paid in this case the rates payable in reinconsistent with the tenour of the new spect of the second house. As to the first Act.

point, inasmuch as both houses occupied Cur. adv. vult. by the claimant were below the annual

value of 101., the question is, whether (1) 7 Com. B. Rep. N.S. 29; s.c. 29 Law J. Rep. (N.s.) C.P. 85.

(2) Willes, J.; Byles, J., and Brett, J,

s. 26 of the Act of 1867 deprives the oc- 1867, unless it be inconsistent with s. 26 cupier of a house in immediate succession of the new Act. According to the interwithin the year, and which house is of a pretation we have given s. 26 of the new less value than 101. a year, of the privi- Act, with reference to s. 3 of the same, lege contained in the proviso to s. 28 of there is no inconsistency between it and 2 Will. 4. c. 45, as interpreted in Rogers the proviso in s. 28 of the old Act. It v. Lewis (1). According to that proviso, follows that the proviso is applicable to as interpreted by that case, it is suflicient the cases of occupation in immediate sucfor such an occupier to have paid all rates cession under the new Act, and that in due in respect of the second house, though such cases the occupier may be registered, he be not rated in respect of such house, if he has been rated and has paid all if he has been rated in respect of and has rates in respect of the first bouse, and paid all rates due in respect of the first has paid all rates payable in respect of house. Now, by s. 3 of the Act of 1867, the second house, though he has not been the inhabitant occupier of a dwelling- rated in respect of it. The reason given house, in order to entitle himself to be in Rogers v. Lewis (1) for the distinction registered, must have occupied it, i. e., the between the first and second houses is as one dwelling-house, for twelve months, applicable in the cases of successive occu&c.; and must have been rated in respect pation under the new as under the old of it, and must have paid all rates payable Act. in respect of it. Section 26 deals with The second point is, whether the claimone only of these conditions, namely, that ant can be said to have paid the rates of the occupation, and enacts that the payable in respect of the second house. occupation of different premises in imme- He has not paid them with his own hand. diate succession shall have the same effect He has not been released from payment. as a continual occupation of the same Nor can he be deemed to have paid by premises. Then are added the words, virtue of the Poor Rate Amendment and "in the manner herein provided." These Collection Act, 1869. The question is, words might at first sight seem to refer whether, without recourse to that or any to an occupation accompanied by a being other statute, he can be said to have rated and a payment of rates. But these legally paid the rates. We are of opinion conditions are not the manner of the occu- that it can properly be said that he has pation ; they are other conditions required legally paid the rates. By virtue of the to be fulfilled, when the claimant has agreement between him and his landlord, satisfied the condition as to occupation, the actual payment of the rates by the These words seem to refer to the neces. landlord in this case is a legal payment sity of a separate as distinguished from a by the tenant-Cook v. Luckett (3). joint occupier. Section 26, therefore, We are of opinion in the result that the does not interfere with any obligation or

claimant was entitled to be registere!, and any privilege attaching to the questions that the decision of the revising barrister of being rated and of the payment of was wrong, and must be reversed, and the rates. Those obligations and privileges claimant's name must be inserted in the are regulated by other enactments. By register. sections 3 and 26, if there were no other

Decision reversed. enactments applicable, it would seem that the occupier of two houses in immediate

Attorneys-Rogerson & Ford, agents for John succession, claiming to be registered in

Ricketts, Bath, for appellant; Maule & Robertvirtue of the qualification contained in son, Bath, for respondent. the Act of 1867, must have been rated, and must have paid the rates in respect of both houses. But by sections 56 and 59 of the Act of 1867, the proviso in 8. 28 of the 2 Will. 4. c. 45 is applicable to the case of houses occupied in imme

(3) 2 Com B. Rep. 168; 8. c. 15 Law J. Rep. diate succession, according to the Act of (n.s.) C.P. 78.

the proper

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1871.

and asking for particulars; and that Nov. 15.

there was no reply but this action, com1872. COOK V. GUERRA.

menced on the 13th of March, 1868. A Feb. 9.

verdict was found for the plaintiff for the Landlord and Tenant-Payment of Rent

full amount, with leave to the defendant before due Assignment of Reversion

to move to enter a verdict for him, or Notice to Tenant-4 Anne, c. 16. 8. 10.

reduce the amount, and a rule nisi was

granted accordingly. The defendant, a tenant, prepaid his rent Montagu Chambers and Gibbons shewed to L., his landlord, who afterwards mort- cause. The plaintiff is entitled to recover gaged his reversion to the plaintif'; one B. the rent from the time of assignment, brought ejectment against the defendant as because when the lessor has assigned he being entitled under a mortgage previous to has no power to discharge the lessee when the tenancy, but nothing came of it; the

time for payment comes ; plaintif wrote to the defendant saying B. no before the proper time for payment comes longer had any title, and asking for the the advance payment is not a payment of rent; the defendant answered, saying he did rent under the contract, but is a loan, and not understand the application, and asking this loan can only be converted into a for particulars; no reply was made, but payment of rent on the proper day, subsequently the action was brought for the because the lessor then is in a position rent : -Held, that though the plaintiff could to discharge the lessee and give it the not recover rent prepaid and accruing due character of rent paid ; but if his power before his letter, yet that there was a sufi- be gone, the payment remains merely a cient notice within 4 Anne, c. 16. s. 10, and loan to him, the rent is unpaid, and the he was entitled to recover rent paid before notice requisite under 4 Anne, c. 16. s. 10 but accruing due after the letter.

does not apply; and the assignee of the

lessor is entitled to recover all prepaid rent This was an action to recover 1371. 108. accrning due after the assignment. And as two and a half year's rent, due Christ- the case of De Nicols v. Saunders (1) is

not only consistent with but supports It appeared at the trial that by an this contention. Secondly, but at all agreement dated the 7th of July, 1864,

events the rent accruing due after the one Lamb let a house to the defendant 1st of November, 1866, is recoverable, as at a rent of 551. per annum (from the 24th there was a proper notice under 4 Anne, of June then past), payable quarterly, c. 16. s. 10. finally, however, agreed to be 501. ; that

[WILLES, J.—The money paid which on the 18th of July, 1864, the defendant was due before the alleged notice at least paid Lamb 1501., and on the 3rd of March, cannot be recovered.] 1865, paid him 701. as rent in advance; W. Paterson, in support of the rule.that on the 15th of September, 1865, That being so, the only question is as to Lamb mortgaged the house to the plaintiff, the sufficiency of the notice. It is suband in August, 1866, gave him a further mitted that there was no such notice that mortgage; that in May, 1866, one Ban- the reversion had been assigned to the chini, who claimed under a mortgage plaintiff as is required by the statute, and on made by Lamb in 1858, by Carpenter, his the contrary the natural conclusion would attorney, brought ejectment against the be that the plaintiff was assignee of Bandefendant, but the matter was not pressed; chini, and only entitled, if anything, to that on the 1st of November, 1866, the eject, not to recover the rent. That this plaintiff wrote to the defendant saying was really the impression is shewn by a Carpenter had written to say his client subsequent letter ; further, though the de. was no longer entitled to the rent, fendant writes to say he does not underand requesting payment thereof; that on stand and asks for an explanation, no the 2nd of November, 1866, the defen.

answer is given, and no steps are taken till dant's solicitors answered, saying they and he did not understand the application, (1) 39 Law J. Rep. (N.s.) C.P. 297. New SERIES, 41.-C.P.

N

mas, 1867.

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