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sold out the said 117 and 175 casks, and wrote and sent to him a letter, entogether making 292 casks, or 125 tons closing a contract of sale and invoice in of tallow, against the defendant, and respect thereof, and an account shewing wrote and sent to him a letter, enclosing a balance of 3621. 4s. 5d. in favour of the a contract of sale, an invoice, and balance plaintiffs against the defendant in respect acconnt in respect thereof, copies whereof of the above-mentioned transactions in marked Y, Z, Aa, Bb, are contained in the tallow. Copies of the said letter and enappendix. (The letter Y discussed at closures marked Kk, Li, Mm, Nn, 0o, length what the plaintiffs had done, and Pp, respectively, are contained in the said they had acted “straightforwardly appendix. (These were of a similar chaand honestly as brokers ; the note Z was racter to those in paragraph 23.) “sold for your account,” charged broker. 28. The tallow which the plaintiffs gave age, and was signed as sworn brokers; the defendant notice as aforesaid that and Aa contained brokerage.)

they were ready to deliver was purchased 24. On the 17th of June the defendant by the plaintiffs, as to 50 tons thereof wrote and sent to the plaintiffs a letter from Messrs. W. W. Brown & Co., on the and on the 18th of June the plaintiffs 17th of March, 1869 ; as to 50 tons more wrote and sent to the defendant a letter, thereof, from Messrs. Rayner & Co., on copies of which letters, marked Cc and the 26th and 28th of April, 1869; as to Då respectively, are contained in the ap- 25 tons thereof, from Messrs. Vaughan, pendix. (As to the first, it is sufficient Smith & Co., on the 4th of May, 1869; to state it alleged ignorance of the real and as to the 125 tons, the residue therefacts, and inconsistency with the duty of of, from Mr. E. Stenhouse, on the 28th of sworn brokers ; as to the latter, that it May, 1869. The defendant admits that professed an intention to lay the matter the tallow so tendered by the plaintiffs to before the Comınittee of the Baltic.) the defendant was itself in all respects in

25. The preceding letters were written accordance with the contracts alleged by by the defendant in ignorance of the facts the plaintiffs to have been made between as to the contracts which the plaintiffs the plaintiffs and the defendant as aforehad entered into as aforementioned.

said. 26. On the 22nd of June the plaintiffs 29. At the trial it was proved that having sold out the said last-mentioned there exists an established custom in the parcel of 170 casks or 75 tons of tallow London tallow trade for brokers when against the defendant, wrote and sent to they receive an order from a principal for the defendant a letter, enclosing a con- the purchase of tallow, to make a contract of sale in respect thereof, and a tract or contracts in their own names, notice that they were ready to deliver without disclosing their principals, and 115 casks or 50 tons of tallow, to com- also to make such contracts either for plete the defendant's order of the 28th of the specific quantity of tallow so ordered, April. On the following day the plain- or to include such order with others they tiffs wrote and sent to the defendant a may have received, in a contract for the letter, enclosing an invoice and balance entire quantity, or in any quantities, at account in respect of the aforesaid 170 their convenience, at the same time excasks. Copies of the said letters, and changing bought and sold notes with the enclosures marked respectively Ee, Ff, selling brokers, as above described in the Gg, Hh, Ii, Jj, are contained in the ap- present case, and passing to their prinpendix. (These were of a similar charac. cipals a bought-note for the specific quanter to those in paragraph 23.)

tity ordered by them, as before described 27. On the 3rd of July, 1869, the plain- in this case; and that when a broker so tiffs wrote and sent to the defendant a leta purchases in his own name, he is perter, enclosing an invoice in respect of the sonally bound by the contract; and that last-mentioned parcel of 115 casks or 50 on the usual settling days, the brokers tons of tallow, and on the 6th of July the balance between themselves the purchases defendant not accepting it, the plaintiffs and sales so made, and make or receive sold out the same against the defendant, deliveries to or from their principals, as the case may be, or if their principals re- Cohen (Sir J. Karslake with him), for fuse to accept or deliver, then to sell or the appellant, contended that the plaintiffs buy against them, as the case may be, were employed as brokers simply; that and charge them with the loss if any, or if brokers are bound to make a binding condelivery is not required on either side, tract between their employer and a third then any difference which may arise from party as principal ; that there was no such a rise or fall in the market is paid by the contract here; and that the custom perone to the other. This custom does not mitted the broker to become principal exist at Liverpool, and was unknown to instead of agent, and was inconsistent with the defendant. The whole of the trans- the employment, and therefore not binding actions and dealings in the present case on the defendant; and further, that as were carried out in accordance with this (the original sellers not being ready), the custom.

plaintiffs had gone into the market and 30. The verdict was then by consent bought the tendered tallow in their own of the parties entered for the plaintiffs for interest, there was no loss within the the sum of 3621. 45. 5d., subject to leave contract of indemnity even if existing. being reserved to the defendant to Watkin Williams, for the respondents, move to set aside the said verdict, and contended that the custom and employto enter a verdict for the defendant, ment were not inconsistent, and that the or a nonsuit, and the Court to be at former was therefore binding on the liberty to draw inferences, and to amend defendant. the pleadings, if necessary, on such terms The following authorities were citedas the Court should think fit.

Story on Agency, ss. 9, 28; Blackburn 31. On the 14th of January, 1870, the on The Contract of Sale, p. 81; Bostock Court granted the defendant a rule nisi, v. Jardine (1); Sharman v. Brandt (2); calling upon the plaintiffs to shew cause Thornton v. Charles (3); Salomons v. why the said verdict for the plaintiffs should Pender (4); Hall v. Janson (5); Bayliffe not be set aside, and instead thereof a non- v. Butterworth (6); Sutton v. Tatham suit be entered, and directed the plaintiffs (7); Sweeting v. Pearce (8); Smouch v. to deliver to the defendant the proposed Avery (9); Collen v. Wright (10); amended declaration in a reasonable time Jenkins v. Hutchinson (11). before the rule came on for argument.

Cur, adv. vult. The plaintiffs accordingly, before the argument of the rule, delivered to the CLEASBY, B.—In this case the plaintiffs defendant the count set out, and marked seek to recover upon an alleged liability of Qq in the appendix. (This count alleged the defendant to indemnify them against that the defendant instructed the plain- certain losses which the plaintiffs were tiffs to buy tallow, and in consideration that they would do so, and become per

(1) 3 Hurl. & C. 700; s. c. 34 Law J. Rep. (N.s.)

Exch. 142. sonally liable, promised to indemnify them

(2) 40 Law J. Rep. (N.s.) Q.B. 312. against loss; that they bought tallow, and (3) 9 Mee. & W.802 ; 8. c. 11 Law J. Rep. (N.s.) became liable to pay for it and bear certain

Exch. 302. losses, and were compelled to pay money

(4) 3 Hurl. & C. 639; s. C. 34 Law J. Rep. on account of such tallow; yet the defen

(n.s.) Exch. 95.

(5) 4 E. & B. 500; s. c. 24 Law J. Rep. (N.B.) dant would not indemnify them.)

Q.B. 97. 32. On the 30th of May and 14th of (6) 1 Exch. Rep. 425; 8. c. 17 Law J. Rep. June, 1870, the said rule came on for (N.s.) Exch. 78. argument, and on the 14th of July, 1870,

(7) 10 A1. & E. 27; 8. C. 8 Law J. Rep. (n.s.)

Q.B. 210. the Court discharged the said rule.

(8) 9 Com. B. Rep. N.S. 534; 8. C. 30 Law J. 33. All the documents contained in the

Rep. (N.s.) C.P. 109. appendix hereto are to be taken as and (9) 16 Q.B. Rep. 655 ; 8. c. 20 Law J. Rep. are to form part of this case.

(N.s.) Q.B. 228. The question for the opinion of the

(10) 8 E. & B. 647; 8. c. 27 Law J. Rop. (N.s.)

Q.B. 217. Court is, whether the said rule ought to

(11) 13 Q.B. Rop. 744 ; s. c. 18 Law J. Rep. have been discharged or made absolute. (x.s.) Q.B. 274.

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compelled to make good upon two con- person) was not such a departure from tracts for the purchase of 50 tons of their duty as brokers, and so much at tallow and 200 tons of tallow. It is not variance with the defendant's instructions denied that the defendant became liable to as to make the contract in no sense the indemnify the plaintiff's a gainst those def dant's contract, and so the defendant losses if the contracts were entered into not responsible. In the absence of any for the defendant and according to his usage, this would be so. The duty of the instructions; but the defendant alleges broker in general is clear; his duty is to that no contract was entered into on his make a contract for the principal with behalf so as to make him liable. The another person, and there is no such con. plaintiffs were tallow brokers in the city tract unless there is some other person who of London, and the defendant was a mer- has entered into the same contract. But chant at Liverpool. It will be sufficient in the present case it is said the contract is in what follows to treat the case as if made in the manner customary in the there was only one contract for 50 tons, tallow market. Now, it is not disputed as there is no distinction between them. that if a person authorises another to On the 2nd day of April, 1869, the de- bargain for him in a particular market be fendant instructed the plaintiffs to pur

authorises him to contract in the manner chase for him 50 tons of tallow. There usual there, provided the usage is not of is no doubt that the plaintiffs were em

such a nature as to alter the employment. ployed to make this contract as brokers. А

person

who holds himself ont to act as This appears from all the correspondence a broker, and charges a brokerage, cannot as well as from brokerage being charged. set up as against a person unconnected It must also be taken that the contract with the market and ignorant of its was to be made in the London tallow

usages, a usage that he should fill a difmarket, so as to be subject to the regula- ferent character from that of broker; tions or usages of that market relating to but as to the form and mode of making such a contract. The plaintiffs upon re- the contract, and as to the mode of perceiving the instructions of the defendant forming the contract when made, the made a contract with certain brokers, authorities shew that the usage is binding. Simpson & Co., for the purchase of 150 In the present case the question is, whether tons of tallow, intending, as stated in the contract made with Simpson & Co. paragraph 12 of the case, to appropriate for 150 tons can, taking the usage into 50 of the 150 tons to the defendant's account, operate as a contract made on order, and the remaining 100 to another behalf of the defendant, who had only order. It was customary in the tallow ordered 50 tons to be bought. It rather market for brokers acting for several appears to me that the objection is more buyers at the same price to make one to the form and mode of contracting than contract for the amount of all the pur- to the substance. If the plaintiffs, as soon chases. The plaintiffs forwarded to the as the contract with Simpson was made, defendant a regular bought-note of the 50 had (as it is said they intended to do) tons, and to Simpson & Co. a sold-note really appropriated 50 tons of it to the for the 150 tons. The defendant refused defendant, and that contract had continued to accept the 50 tons at the time for in force until the time for performance, delivery, and the plaintiffs were obliged the defendant would have been entitled to to pay Simpson & Co. the difference of the benefit of that appropriation, and price. The alleged custom of the tallow would have been entitled (supposing the trade as to the performance of the con- usage did not make it a distributable con. tract will be considered hereafter, and also tract among the purchasers so as to entitle its bearing upon the effect of the contract each to sue in his own name) to sue in made by the brokers; but a question was the name of the plaintiffs, and recover argued before us whether the manner in damages. There is an apparent difficulty which the plaintiffs had made the con. in doing so, because the other persons to tract with Simpson & Co. (joining in it whom the residue of the 150 tons was the defendant's order with that of another appropriated would also be entitled to sue.

But I think the difficulty is not a real cording to the usage, the two would have one, because the usage is known to and balanced each other, and neither could binds Simpson & Co., and although they have called for any delivery. And so if only make one contract with the plaintiffs, after the contract for the 150 tons was they know that the plaintiffs may be con- made the price had immediately risen, tracting for several principals, and assent and the plaintiff's had afterwards made to that being done. And it would follow another contract to sell Simpson 150 tons that the principals would be entitled to at an advance of threepence a hundredall the benefits of the contract, and there weight, the pretended sale by Simpson to fore entitled to put it in suit by a special the plaintiffs would have been in effect declaration shewing the usage, and who cancelled ; and all that would have reeach real plaintiff was, and how he was sulted from it would have been the plainentitled to sue upon the contract. The tiff's brokerage and the profit of threecase put is quite a hypothetical one, be- pence a hundredweight, and when the cause the usage does not stop where I time for delivery came the plaintiffs would have stopped, but if it did, and each have had to find the 50 tons to deliver to contract of sale remained in force until the defendant. In reality the custom the time of performance for the benefit of stated in paragraph 29 shews conclusively each buyer, I should be disposed to say that it was never intended that the conthe buyer could not get rid of the conse- tract with Simpson should be performed quence of the contract, because other by them for the benefit of the defendant, buyers had been included in the same and cannot therefore in any reasonable contract. But though I should hesitate sense be considered a contract entered in coming to the conclusion that because into for his benefit. In the present case the contract with Simpson was made in it appears from paragraph 28 that the the form and manner stated, there was no plaintiffs were themselves purchasing contract between Simpson and the defen- tallow towards the end of May, for the dant, yet it appears to me that when the purpose of performing the contracts made whole usage is examined, by virtue of with the defendant; and the result of the which there is said to be such a contract, custom and course of dealing is this, it will appear that there really never was that when the time for delivery arrives, any contract at all by which the defendant the interests of the broker and the princiand Simpson were intended to be mu- pal are directly opposed; the interest of tually bound; and that the alleged con- the principal is, that he should be able to tract with Simpson is a mere form by sell at as high a price as possible; the inwhich the plaintiffs, though apparently terest of the broker, that he should be acting as brokers, are entitled to be the able to buy at as low a price as possible. real sellers. It is said in paragraph 12 In short, the proper character of broker that at the time when the contract for is entirely lost, as it appears to me, in such 150 tons with Simpson was entered into, a transaction. And when I

say

the chathe plaintiffs intended to appropriate 50 racter of broker is lost in such a transtons to the defendant's contract

. But action, I feel justified in adding that it is this expression of intention, if it has any lost by the application of a custom which meaning, cannot signify a real appro- has grown up in disregard, perhaps not priation, because the transaction was thought of or intended, but still in utter governed by the usage stated in para- disregard of the supreme obligations of graph 29, and this (which was acted upon good faith. The correspondence shews afterwards) shews that the purchase from throughout that the plaintiffs were dealt Simpson was not intended to be appro- with as persons filling an independent priated to this any more than to any other position, and qualified to be consulted and contract. It was only to form an item in to advise. For example, in the letter of a tallow account between Simpson and the 4th of May, 1869 (B. in appendix), the plaintiffs. If before the time when written shortly after the contract was that contract was made the plaintiffs had made, by the defendant to the plaintiffs, contracted to sell Simpson 150 tons ac- he refers to the state and prospects of the New SERIES, 41.-C.P.

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market, and concludes with the question- to another principal, and that it is the “What are your views?” The plaintiffs duty of the broker to negotiate a valid in their answer of the 5th of May (C in contract between two principals. The appendix) explain their views. They

They definition of a broker given by my brother begin by regretting the fall of the Blackburn, in his work on the Contract of market for his sake, and say they cannot Sale, p. 81, is as follows—“A broker for see their way into the future. They then sale is a person making it a trade to find go into the state and prospects of the purchasers for those who wish to sell, and market, and end by indirectly recom- vendors for those who wish to buy, and mending the defendant to make further to negotiate and superintend the making purchases. Can a custom prevail which of the bargain between them.” This is is to uphold the plaintiffs, not as the in- the proper description of a broker for dependent middle men, but as the in- sale throughout the whole commercial terested vendors, and with interests it may world. It is a further undisputed fact in be the same, but it may be directly this case that the plaintiffs, though they opposed to those of the defendant ? Å sent to the defendant a bought-note in disposition to uphold the contract actually the usual form representing that they had made may have made me go too far in bought tallow for his account, and charged the opinion that if the contract made him brokerage, had not in fact negotiated with Simpson had been in part really and any contract between him and any other irrevocably appropriated to the defendant, principal, but had themselves in effect the customary mode of lumping purchases bought of other parties, and resold to the together in one contract would still have defendant. It is conceded that under left the defendant the power of resorting ordinary circumstances the plaintiffs could indirectly to Simpson for the fulfilment found no claim against the defendant of his part of the contract. As to this, upon this state of facts, but it is conwhich may be regarded as the form of the tended that the plaintiffs are here entitled transaction, I can well understand there to do so on the ground that by the cusmay be a difference of opinion, and my tom of the tallow trade in London brokers own is given with much hesitation ; but as are authorised in carrying out their emregards the substance of the transaction, ployment as agents for their principals, to I feel very strongly, having regard to the omit to negotiate any contract between position which the plaintiffs occupied in their employer and another principal, and relation to the defendant, as appears both to put themselves in the position of seller from the correspondence and the nature of to their principal. It is found that the the employment, that the contract by defendant was ignorant of the existence which the plaintiffs pretended to be of such a custom. Of course if he had brokers for commission, and intended to known of this practice he must be taken be themselves vendors, and which beyond to have employed the plaintiffs to act in a doubt would not be binding in the ab- conformity with it; but if such a practice sence of a custom-see Bostock v. Jar- be binding on a person ignorant of it, it dine (1), Salomons v. Pender (4)—is not appears to me to amount to a custom made binding by the force of such a cus

for a broker in the tallow trade in London tom as I have examined and described. to do something entirely inconsistent The result is, that in my opinion the rule with the character of a broker, viz., to to enter a verdict for the defendant ought convert himself from an agent to buy for to be made absolute.

his employer into a principal to sell to

him. This seems to me a violation of HANNEN, J.-It is an undoubted fact very obvious principles, and its true chain this case that the plaintiffs were em- racter is only obscured by the accident ployed by the defendant in the character that the defendant did not in this instance of brokers to purchase tallow for him. suffer by the plaintiffs carrying out their It is not denied that the employment of a employment in the way they did. But broker is an employment as an agent an agent is not entitled to depart from only to buy or sell for his principal of or his instructions on the ground that the

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