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its products excepted), the assurer's own, in trust or on commission for which they, the said assured, were responsible in or on all the warehouses, vaults, cellars, sheds, wharfs, yards or quays, belonging to and (if not under the protection of a marine policy) on board any vessel or craft at certain wharves in the said policies mentioned. Among those wharves was one called Beal's Wharf, mentioned in both the said policies.
On the 30th of October, 1865, and while the said policies were in force, a fire occurred at Beal's Wharf aforesaid, and by that fire certain chests of tea which had been and then were warehoused there in manner hereinafter stated were either consumed or damaged. The teas so consumed or damaged were divided in the Case into two classes. The plaintiffs admitted their liability to the defendants' claim in respect of the teas in the first class, and sought to be repaid 6361. 13s. 7d., as an over payment, made only in respect of the teas included in the second class.
This second class consisted of teas which had been warehoused at Beal's Wharf, and which had been sold by the defendants before the time of the fire, and the following are the facts relating thereto : The teas had been originally deposited in bond with the wharfingers, to whom Beal's Wharf belonged, by the importers thereof, to whom the wharfingers issued warrants in respect thereof. The warrant is a document acknowledging that certain chests of tea therein specified are deliverable to the person named therein, or his assigns, by indorsement, and the bearer giving a receipt for the same. Upon a warrant, endorsed by the person named therein, being presented by anyone to the wharfingers, and upon the person presenting it signing a receipt for all or any part of the teas contained therein, and upon payment of the duty, and of the rent due thereon (if any), the wharfingers deliver to him the tea for which the receipt is signed. It is not the practice to deliver any of the teas mentioned in a warrant without production of it. The wharfinger knows nothing of the actual ownership of the teas but acts upon the production of the warrant duly endorsed. The defendants had purchased the teas from the
importers, who duly endorsed the warrants in blank and delivered them to the defendants.
Before the date of the said policies the defendants had sold to various customers the whole of the teas included in the said second class; all the sales were of certain specified chests, and were made by sample, and the contracts for such sales were verbal and not reduced into writing; the terms of such sales were for three months upon credit, or for cash subject to discount. The purchasers had power to pay at any time within the three months, deducting discount for the time not expired of the said credit of three months.
A further term of such sales was that all rent due to the wharfingers in respect of teas comprised in such sales up to the time of the expiration of the said credit, that is, up to the expiration of three months from the date of the said sales, should be borne by the vendors, and that all rent due to the wharfingers in respect of any time subsequent to the expiration of the three months during which the teas might be left on the wharf, and also the custom-house duties, should be borne by the purchasers.
Shortly after each of the said sales by the defendants, and before the expiration of the said period of credit, they sent to each purchaser an invoice stating, among other things, the weights, marks, and numbers of the chests bought by him, and the price payable in respect thereof by him to the defendants.
The period of credit of all the teas in the second class had expired before the said fire, and all the purchasers thereof had also before the said fire paid the defendants the price thereof.
The ordinary course upon sales by the defendants was not to deliver the warrants to the purchasers, but to retain the said warrants in their own possession (on behalf of the purchasers), and to perform for the purchasers, as and when required by them, whatever was necessary to get the teas cleared and delivered; that is, to pay the custom-house duties, and the rent due in respect of the goods; and the amount paid by them for such duties, and so much of the rent as was to be borne by the purchasers was afterwards repaid to
them by the purchasers. The carriage of the goods was paid by the purchasers. This course was pursued with respect to the teas included in the second class, and at the time of the fire all the warrants then belonging to purchasers remained, in manner and for the purposes aforesaid, in the hands of the defendants, as the defendants had not then been required by the purchasers to clear or deliver them to or on behalf of such purchasers.
The wharfingers never received any notice of the sale of the teas to the defendants by the importers, or of the sales by the defendants to the purchasers from them.
There was due to the wharfingers in respect of each of such chests so comprised in the said second class a sum of money as rent for warehousing the same after the purchase thereof by the defendants from the importers, and before the sale thereof by the defendants to their customers, which rent was unpaid at the time of the said sale and said fire, and was a charge upon the said teas to be paid by the person claiming delivery thereof prior to delivery by the said wharfingers.
The defendants, previous to the fire, had made entries in their own books appropriating to each purchaser the specific chests of tea bought by him, and had written on each warrant the name of the purchaser of the teas therein comprised.
The defendants had no contract with the purchasers of any of the said teas to insure the said teas or any part thereof against loss or damage by fire, or to be repaid by the said purchasers or any of them the premiums which the defendants might pay for insuring the said teas or any part thereof against loss or damage by fire, nor have the defendants in fact charged the said purchasers or any of them with any such premiums in respect of such teas or any part thereof.
The question for the opinion of the Court was whether the defendants were entitled under the terms of the said policies or either of them to be paid by the plaintiffs the said sum of 6361. 138. 7d. in respect of loss or damage caused by the said fire to the said teas included in the second class.
If the Court should be of opinion in
the affirmative, judgment was to be entered for the defendants with costs of suit. If the Court should be of opinion in the negative, judgment was to be entered for the plaintiffs for the said sum of 6361, 13s. 7d., with costs of suit.
H. Matthews (Holl with him), for the plaintiffs.-The policies cover only goods which are the assured's own in trust or for commission for which they are responsible. It is clear at the time of the fire that the tea in question was not the defendants', but that the propery in it had passed to the different customers to whom the defendants had sold it. The defendants, it is true, held the delivery warrants of the wharfinger, but they held them, as it is found in the case, on behalf of those purchasers. It may be said, therefore, that the defendants held the tea in trust, but not in trust for which they were responsible; the tea was at the risk of the purchasers, and there was no responsibility on the defendants for it. The case, therefore, is different from those of Waters v. The Monarch Insurance Company (1) and The London and North Western Railway Company v. Glyn (2). In each of those cases the goods were protected by the policy, although they were not the assured's, and the assured had been only entrusted with them in the course of business, because in each of those cases the policy extended to goods "in trust or on commission," and it was not stated in the policy that it must be a trust or com mission for which the assured was responsible. The addition of those words, "for which they are responsible," in the policies in the present case makes all the difference, and renders those cases quite inapplicable.
[BRETT, J.-If the defendants had paid the warehouse rent for the vendees, would not the defendants have been entitled to have retained the delivery warrants until they had been repaid?]
The case finds that they had paid no such rent, but even if they had it would give them no interest in the goods. Not (1) 5 E. & B. 870; s. c. 25 Law J. Rep. (N.S.) Q.B. 102.
(2) 1 E. & E. 652; s. c. 28 Law J. Rep. (N.s.) Q.B. 188.
only the right to the property in the tea but the right to the possession of it had passed to the vendees, and the position of the parties was the same as if the delivery warrants had been handed over to the vendees, and they had afterwards given them back to the defendants to hold for them. The question as to what is an agent entrusted with goods arose in Fuentes v. Montis (3).
[WILLES, J.-That case is quite inapplicable, as there the agent held the warrants for the goods wrongfully, but here they held them rightfully.]
Further, it is clear the defendants had no insurable interest at all, for they had no lien or claim in respect of the goods whatever. As to this, Seagrave v. The Union Marine Insurance Company (4) is in point.
Sir John Karslake, for the defendants.This case is governed by the cases of Waters v. The Monarch Insurance Company (1) and The London and North Western Railway Company v. Glyn (2). No doubt before the fire the defendants had sold the tea, and the vendees had paid for the same; and it may be that the property in the tea had passed to the vendees, but the delivery warrants remained in the hands of the defendants, in order that they might perform what it was necessary they should do, such as payment of the custom-house dues, &c. (unless directed otherwise by the vendees), for the purpose of getting the tea cleared and put in such a condition that it might be received from the wharf by the carriers of the vendees. In Waters v. The Monarch Insurance Company (1) the plaintiffs, who were warehousemen and wharfingers, had no interest in the goods but in respect of their lien, and the main question was as to the amount they were entitled to recover on the policy beyond the amount of their lien. Lord Campbell, C.J., in the course of the argument in that case, said, “It was not intended to limit the policy to the personal interest of the plaintiffs; for in this and all other floating policies the promise is to make good the damage to the goods;" and in his judgment Lord Camp
bell, C.J., said, "The first question is, whether, upon the construction of the contract, these goods were intended to be covered by the policy. I think, in either policy, the description is such as to include them. What is meant in those policies by the words 'goods in trust?' I think that means goods with which the assured were entrusted." And in The London and North Western Railway Company v. Glyn (2), Wightman, J., stated that "in Waters v. The Monarch Insurance Company (1) the plaintiffs being warehousemen, and therefore not insurers, were not liable to the owners of the goods which were burnt; but the Court held that that fact did not prevent the insurance company from being liable to the plaintiffs to the amount of the full value of the goods, although the utmost interest that the plaintiffs themselves had in the goods was to the extent of their warehouse charges, for which they had a lien upon them." The defendants in the present case were in the condition of bailees, and held the goods in trust in the same sense as the warehousemen in Waters v. The Monarch Insurance Company (1), or the carrier in The London and North Western Railway Company v. Glyn (2), and in like manner were entitled to recover to the full value of the goods insured. Do the words, then, in this policy, "for which they are responsible," make any difference? Those words do not override the words "in trust," but are confined to the immediately preceding words, "for commission." With respect to goods which the defendants had on commission, the policy only covered goods for which the defendants were responsible; but as to goods in trust, there was no reason why the policy should not cover those, whether the defendants were responsible for them or not. If these words, "for which they are responsible," are to override the preceding words, "in trust," they may equally extend to the words, "the assured's own," which would be absurd; and if they do not so extend, there is no reason why they should go beyond the word which immediately precedes them, namely, "commission.' H. Matthews replied.
Cur. adv. vult
(3) 37 Law J. Rep. (N.s.) C.P. 137. (4) 35 Law J. Rep. (N.s.) C.P. 172; s. c. Law Rep. 1 C.P. 305.
KEATING, J. (on Nov. 25) delivered the following judgment of the Court (5).
This was a special case stated between the parties, for the purpose of having it decided whether the plaintiffs can recover from the defendants a sum of 6361. 13s. 7d., alleged by them to have been paid to the defendants in excess of the sums due on certain policies of insurance, and which the defendants agreed, in the event of that allegation being well founded, to repay to the plaintiffs. The policies in question were dated the 13th of October, 1865, and in consideration of an annual premium, the plaintiffs insured from loss or damage by fire the property thereinafter described, "not exceeding the sum specified as applicable to the several articles, viz., 3,500l. on merchandise (jute, petroleum and its products excepted), the assured's own, in trust or on commission for which they are responsible, in or on all or any of the warehouses, vaults, ships, &c," or other places specified, and certain wharves, including Beale's Wharf.
Whilst the policies were in force a fire occurred at Beal's Wharf, in the policies mentioned, and consumed certain chests of tea, which form the subject of the present litigation. Those teas had been deposited in bond by the importer with the wharfinger to whom Beal's Wharf belonged, and who issued warrants for the same, deliverable to the depositor or his assigns by indorsement thereon. The defendants had purchased the teas from the importer, who indorsed to them the warrants in blank. The defendants, before the fire occurred, had resold the teas in specified chests to customers, and had been paid for the same; they held, however, the warrants on behalf of such customers, but merely for the convenience of paying, if required to do so, the charges necessary to clear the teas, such as custom-house dues and rent payable by these vendees.
Under the circumstances, therefore, stated in the present case, we are of opinion that before and at the time of the fire, the property in the teas had passed to the vendees, and that the teas remained at their risk, and not at the risk of the
(5) Willes, J., Keating J., and Brett, J.
defendants, who had no longer any interest in them, or responsibility to the vendees in respect of them in case of fire. But it was contended on behalf of the defendants that, even supposing that to be the case, still the policy being a floating policy covered the goods in question as goods in trust, and that therefore the plaintiff's were liable to pay their full value, and the cases of Waters v. The Monarch Insurance Company (1) and The London and North Western Railway Company v. Glyn (2), were relied on in support of that contention. In those cases goods held by the plaintiffs as bailees were insured by them under policies, the conditions of which provided that goods held in trust would not be covered by the policies unless they were insured as such. The goods accordingly were insured, expressly as goods held in trust by the assured. The offices contended that as the plaintiffs, as bailees, had no insurable interest in the goods beyond their liens respectively, they could only recover to the amount of such liens. But the Court held in each case that the plaintiffs were entitled to recover to the full amount insured, and intimated that the excess beyond the personal interest of the assured would probably be held in trust for the parties really interested, though unaware of the insurance having been effected. If, therefore, the words in the present policies had been similar to those in the policies referred to, we should have thought the cases were authorities in favour of the defendants' view, notwithstanding that they had no interest. even amounting to a lien upon the goods in question, but it will be observed the wording in the present policies is essentially different, for whilst in the cases referred to the insurance extended to goods "in trust or on commission" generally, in the present case it is expressly limited to goods "in trust or on commission for which they" (the assured) (6 were responsible." In The London and North Western Railway Company v. Glyn (1), Erle, J., and Hill, J., had thrown out that if insurance companies wished in future to limit their responsibility to the responsibility of the assured, they must employ express words to that effect. It seems to us that the present plaintiffs have done so in these
policies, and have expressly limited their liability to such goods as were held in rust by the assured, and for which they were responsible.
It follows that the goods in question, or which the assured were not responsible, were not covered by the policy, and consequently that the plaintiffs are entitled to the judgment of the Court. Judgment for the plaintiffs.
Attorneys-G. M. Clements, for plaintiffs; Willoughby & Cox, for defendants.
1871. TYSON . THE LORD MAYOR OF Nov. 20. J LONDON. Compensation-Holborn Valley Improvement Acts-London (City) Improvement Act, 1847-Lands Clauses Consolidation Act, 1845-Time from which Tenant's Interest in Property is to be computed.
The Holborn Valley Improvement Act, 1867, which empowers the Mayor, Sc., of London to acquire certain houses, &c., incorporates the London Improvement Act, 1847, which empowers the Mayor, &c., to take lands, &c., after six months' notice, to treat for the purchase, and in case of dispute to issue their precept to impanel a jury to assess the compensation, and directs persons in posession to give up possession after six months' notice; and also incorporates the 121st section of the Lands Clauses Consolidation Act, 1845, which directs that where the tenant's interest does not exceed a tenancy for a year, or from year to year, the compensation shall be assessed by justices. The Mayor, &c., gave a tenant notice that they intended to take his house, that they were willing to treat in respect thereof, and that he must quit in six months :-Held, that for the purpose of determining whether his compensation was to be assessed by a jury or by justices, the length of his interest must be computed from the date of the notice, and not from expiration of the six months.
This was an action of mandamus, brought to compel the defendant to issue his precept for the assessment of compensation claimed by the plaintiff, and to take all the necessary steps to have such compensation duly assessed, and for damages for his having made default in the issuing of such precept, and in the taking of such necessary steps; and by the consent of the parties and the order of the Honorable Mr. Justice Montague Smith, dated the 7th day of December, in the year of our Lord 1870, the following Case was stated for the opinion of the Court, without pleadings.
The plaintiff was on the 25th day of January in the year of our Lord 1869, tenant of the whole and occupier of a portion of a house and premises, forming No. 14, Black Horse Alley, in the parish of St. Bride, London, for the remainder of a term exceeding one year, under and by virtue of the following agree
Agreement entered into this 24th day of June, 1867, between Edwin Nixon, of 390, Oxford Street, in the parish of St. Ann's, Westminster, as agent for and on behalf of Mr. William Ward and others, of the one part, and James Walter Tyson, of 15, Black Horse Alley, in the parish of St. Bride and in the city of London, of the other part, as follows: The said Edwin Nixon doth agree to let, and the said James Walter Tyson doth agree to take the house and premises situate and being No. 14, Black Horse Alley, in the said parish of St. Bride, for the term of three years from Midsummer-day, 1867, at the yearly rent of twenty-four pounds, in equal quarterly payments, and with this understanding that the rent should be paid one quarter in advance, and should the said James Walter Tyson fail to pay any quarter's rent within one month after the commencement of the following quarter, then this agreement shall be considered null and void, the same as if no agreement had been entered into, and that the tenancy shall relapse into a weekly tenancy, and that a week's notice shall be sufficient on either side for giving up or retaining possession of the said premises. And it is further agreed that the said