bility to communicate with the owner. Under these conditions, and by force of them, the master becomes the agent of the owner not only with the power, but under the obligation (within certain limits) of acting for him; but he is not, in any case, entitled to substi tute his own judgment for the will of the owner, in selling the goods, where it is possible to communicate with the
8. The possibility of communicating with the owner depends on the cir cumstances of each case, involving the consideration of the facts which create the urgency for an early sale, the distance of the port from the owner, the means of communication which may exist, and the general position of the master in the particular emergency.
9. Such a communication need only be made when an answer can be obtained, or there is a reasonable expectation that it can be obtained, before the sale. Where, however, there is ground for such an expectation, every endeavor, so far as the position in which he is placed will allow, should be made by the master to obtain the owner's instructions. Australasian Steam Navigation Co. v. Morse. 100
10. A charterparty provided that the ship should load a full and complete cargo of sugar in bags, hemp and compressed bales, and [or] measurement goods. It likewise specified different rates of freight for dry and wet sugar. The ship proceeded to her port of loading, where a cargo of wet sugar was provided for her by the charterer. A great deal of moisture drains from the wet sugar, and when the cargo had been nearly all shipped it was found that there was such an accumulation of molasses in the hold, the result of drainage from the sugar, that the ship would not be seaworthy for the voyage if she proceeded in her then condition. Owing to the nature of the material and the depth of the hold, the ship's pumps were unable to clear the ship of the drainage from the sugar. The ship was perfectly seaworthy except with respect to this particular cargo, and the pumps were quite sufficient for all ordinary purposes. The sugar had to be unloaded again, and the charterer then refused to reload it or to provide any other
cargo. Cross actions were brought— the one by the shipowner against the charterer for refusing to provide a cargo, and the other by the charterer against the shipowner to recover da mages by reason of the ship not being fit to carry the cargo provided for her. 11. At the trial the jury, in answer to questions left to them by the judge, found that the cargo of sugar which was offered was a reasonable cargo to be offered; that the ship was not reasonably fit to carry a reasonable cargo of wet sugar; that the ship could not have been made fit within such a time as would not have frustrated the object of the adventure; and that the ship would not, without new pumps, and with a reasonable cargo of wet sugar on board, have been seaworthy:
12. Held, that the shipowner, by entering into the charterparty, undertook that the ship should be reasonably fit for the carriage of a reasonable cargo of any of the kinds of goods specified in the charterparty, and consequently of a reasonable cargo of wet sugar; and that upon the finding of the jury that she was not so fit, and could not be made so in such a time as not to frustrate the object of the voyage, the charterer was entitled to succeed in both actions. Stanton v. Richardson.
13. In an action by a shipowner against the charterers for not loading a cargo of coals pursuant to a charterparty by the terms of which the owner engaged that the vessel, then in the port of Sunderland, being tight, &c., should with all possible dispatch proceed direct to the South Dock, Sunderland, and there load, in the usual and customary manner, at any one of the collieries the freighters might name, a full cargo of coals, &c., which the freighters bound themselves to ship by a given day, for Calcutta, the de fendants pleaded that they had not any notice of the ship having pro ceeded to and having arrived at the South Dock, and of her being ready to receive cargo, wherefore they did not nor could load:
Held, that the allegation in the plea must be treated as an allegation of fact, meaning that by reason of want of notice of the ship's arrival at the dock and being ready to load, the de
15. A ship fell in, on the high seas, in
the winter season, with a brig in dis-
tress for want of sufficient hands to
work her. The master of the ship
sent two of his crew, who had volun-
teered to go on board the brig, and
by their assistance the brig was navi-
gated safely into a British port. In
consequence of the absence of the two
men, the ship was exposed to risk,
and the remainder of her crew had to
undergo extra labor:
Held, that not only the two men
who went on board the brig, but the
master and owners of the ship and the
rest of the crew of the ship, were en-
titled to salvage reward for the ser-
vices rendered. The Charles. 487
6. In 1867 an English vessel, then at
Monte Video, was chartered by W.,
to proceed with cargo to certain ports
in South America. She took in the
agreed cargo, and sailed according to
orders, first to one and then to another
of the ports of discharge named in the
charter. A portion of the cargo was
delivere, but the master failing to
obtain any directions for the dis-
charge of the residue, after consider-
able delay and after notice to the
consignee, sold it to defray expenses.
The vessel after having been several
other voyages, arrived at Buenos
Ayres in 1868, and procured a charter
to an English port. After this last
mentioned charter had been entered
into, W. instituted legal proceedings
at Buenos Ayres to recover damages
for the non-delivery of the cargo
shipped by him, and caused the ves-
sel to be arrested for the damages so
claimed. The arrest was under pro-
cess valid according to the law in
force at Buenos Ayres. By the advice
of the British consul at Buenos Ayres,
the master agreed with W. to com-
promise the dispute by giving to W.
a bottomry bond for a sum of money
considerably less than the amount
claimed by him. The bond was given,
and the vessel was released.
In a suit instituted on behalf of W.
and his partner in trade against the
vessel after her safe arrival home to
enforce the bond:
Held, that the circumstances under
which the bond was given rendered
it incapable of being enforced. The
Charles.
490
See AGREEMENT, 203.
BOTTOMRY BOND, 74.
See LEGACY, 711.
WILL, 563.
See VENDOR AND PURCHASER, 674.
See ADMIRALTY, 100.
AGREEMENT, 134, 146.
ANIMALS, 484.
DIRECTORS, 1, 28 note, 625.
PRINCIPAL AND AGENT, 217, 228
note, 434.
SPECIFIC PERFORMANCE, 654.
TROVER, 232, 254, note.
Action for damages for non-perform-
ance of a contract for the sale of cer
tain spars and timber, "to be deliv-
ered free of charge to morrow, or as
soon as they can be got out of the
hands of the guardian; but the pur-
chasers not bound to take them if not
delivered in one week unless they
like." No delivery having been made
within the time specified, by reason
of the guardian in possession of the
spars insisting on retaining them in
consequence of a writ of saisie-arret
issued in an action instituted against
the ostensible owner of the spars and
timber, whose mark they bore, having
been served on him, notwithstanding
that he was released by subsequent
3. C, a merchant domiciled at Alexan-
andria, being indebted to the appel-
lants, merchants carrying on business
at Leipsic, for the purpose of settling
litigation between them deposited
with the respondent (an English mer-
chant resident at Alexandria) certain
bills drawn in his favor as security
for the appellants' debt; the respond-
ent by the agreement between C and
the appellants constituting himself a
voluntary depositee of them, and un-
dertaking to be responsible for them
to the appellants" until the effective
encashment of them, which remains
intrusted to C:"
Held, that the respondent was not
guilty of a breach of duty under this
agreement in allowing C to take the
bills when due, for encashment at his
discretion, and was not bound to see
that C handed over the money to the
appellants. Trefftz v. Canelli. 146
4 Goods were shipped by plaintiffs on
board defendants' vessel, under a bill
of lading, shipped on board the
steamship Hibernia . from Singa-
pore to London . . . with liberty to
call at any ports, in or out of the
route, to receive and discharge coals..
&c., and to tranship the goods by any
other steamer:"
Held, that the contract of the de-
fendants was that the goods should
be carried on board a ship in which
the principal motive power during
the voyage should be steam. Frazer
v. Maintenance Telegraph, etc. Co. 203
5. The defendant contracted for the
purchase of a large quantity of Danu-
bian maize fair average quality of
the season and port of shipment when
shipped. To be shipped from Dan-
ube, &c., by three or more first class
vessels. For shipment in June and
[or] July, 1869 (old style), seller's op-
tion," &c.
In fulfilment of the contract on the
part of the seller two cargoes of maize
were tendered to the defendant, the
bills of lading for which were dated
respectively the 4th and 6th of June,
1869. The loading of these two car-
goes was commenced respectively on
the 12th and 16th of May, and com-
pleted on the 4th and 6th of June;
somewhat more than the half of each
cargo having been put on board in
May. There was evidence that grain
shipped in May was more likely to
damage by heating than grain shipped
1. The defendant, as broker, made a
contract for the plaintiff, the seller,
as follows: Oct. 26, 1869. Sold by
order and for account of Mr. D. P.,
to my principals, Messrs. S. H. & Son,
to arrive, 500 tons Black Smyrna
raisins-1869, growth fair average
quality in opinion of selling broker-
To be delivered here in London a 22s.
per cwt.-D. pd.- Shipment Novem-
ber or December, 1869," &c. :
Held, by the Exchequer Cham-
ber-affirming the judgment of the
Court of Common Pleas that the
defendant was employed as a sort of
arbitrator to determine between the
parties any difference which might
3 ENG. REP.1
107
arise as to the quality of the raisins
tendered in fulfilment of the contract;
and consequently, that he was not
liable to an action for failing to exer-
cise reasonable care and skill in com-
ing to a decision - he having acted
bonâ fide and to the best of his judg-
ment. Pappa v. Rose.
375
1. B consigned to the defendants by the
ship Acacia a cargo which had been
purchased at the joint risk of himself
and the defendants, and advised them
of the particulars of bills which he
had drawn against the cargo payable
to his own order. The defendants re-
plied, promising to protect the bills.
B. indorsed to the plaintiffs three of
these bills, which ran, " Pay to the
order of myself the sum of £
sterling, which place to account cargo
per A." B. having stopped payment,
the defendants refused to accept the
bills; but after selling the cargo,
offered to pay to the plaintiffs the sur-
plus of the proceeds, after satisfying
a balance due to them from B on the
general account between them. The
plaintiffs refused to accept this, and
filed their bill, claiming a lien for the
full amount of the three bills:
Held (affirming the decision of the
master of the rolls), that the plaintiffs
had no lien on the proceeds of the
cargo. Robey and Co's Iron works v.
Ollier.
571
2. When covenant not to assign lease
broken.
372, 375 note.
1. A solicitor is entitled to a charge for
his costs on property the subject of a
successful suit conducted by him
against an incumbrancer, although
the incumbrance be entirely value.
less, provided it formed a cloud upon
the title.
1. Certain cases of wine were ordered
by L. of the plaintiff, and were shipped
by the plaintiff consigned to L., who
deposited the bill of lading with the
defendant, a wharfinger, with direc-
tions to take delivery and warehouse
the wine on L.'s account. The wine,
on its arrival, was entered at defend-
ant's wharf in L.'s name, subject to a
stop for the freight. L. afterwards
refused to accept the wine on the
ground that it was not according to
contract; the plaintiff agreed to take
it back, and L. promised to send a
delivery order to enable the plaintiff
to obtain it; but on the same day L.
indorsed the bill of lading to M..
which M. took to the defendant's
wharf and procured a transfer of the
wine into his own name. "The plaint-
iff' was afterwards informed by L. that
the wine was at the disposal of the
plaintiff, but subject to charges
amounting to 17. 148. 9d., and 51. for
loss of profit At an interview be-
tween M. and the plaintiff M. offered
to give up the wine on payment of the
above sums. The plaintiff tendered
the former sum which M. would not
accept. The plaintiff's attorney after-
wards offered to the defendant to pay
all charges, and to indemnify Lan
against the claim of any other pers .
The defendant refused to deliver the
wine to the plaintiff, alleging that he
had given warrants to M. The wine
was ultimately delivered to a third
person by M.'s order. M. had in fact
paid the freight, and obtained war-
rants to him or his order. The jury
found that the transaction between M.
and L. was colorable and with know.
ledge on the part of M. of the intention
of L., to deprive the plaintiff of the
Held, power having been reserved
to the Court to draw inferences of
fact, that the defendant received the
wine as bailee to L., and after the
payment of the freight could have no
better title than his bailor; that by
the finding of the jury M. had no
better title than L.; and, as the
plaintiff had tendered the amount of
charges both to M. and the defendant,
the plaintiff's title was as valid
against the defendant as it would have
been against L.; and that the defend-
ant was liable to the plaintiff for the
value of the wine. Batut v. Hartley.
214
See AGREEMENT, 146.
TROVER, 232, 254 note.
1. Declaration against defendants for a
breach of duty as attorneys in not get
ting the best price for the equity of
redemption in premises of plaintiff in-
trusted to defendants for sale.
defendants well knew that if plaintiff
did not obtain a reasonable price, the
bankruptcy of plaintiff would be the
necessary and inevitable consequence
and that in consequence of defend.
ants' breach of duty plaintiff was
adjudged a bankrupt. Plea: the
bankruptcy of plaintiff under the Ac
of 1869, and that the causes of action
passed to the assignee. On demurrer:
Held, by Blackburn, Mellor, and
Lush, J.J., on the authority of Hdg
son v. Sidney (Law Rep., 1 Ex., 318),
i
that bankruptcy was a good defence,
and that the averment that defendants
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