Betts and Drewe against Gibbins

JurisdictionEngland & Wales
Judgment Date11 November 1834
Date11 November 1834
CourtCourt of the King's Bench

English Reports Citation: 111 E.R. 22


Betts and Drewe against Gibbins

S. C. 4 N. & M. 64; 4 L. J. K. B. 1. Applied, Toplis v. Grane, 1839, 5 Bing. N. C. 650. Commented on, Tanner v. Scovell, 1845, 14 Mee. & W. 37. Followed, Dugdale v. Lovering, 1875, L. R. 10 C. P. 196. Considered, The Englishman and the Australia, [1895] P. 217. Adopted, Burrows v. Rhodes, [1899] 1 Q. B. 829. Dictum adopted, Moxham v. Grant, [1900] 1 Q. B. 93. Considered, Sheffield Corporation v. Barclay, [1903] 2 K. B. 589; [1905] A. C. 399.

[57] betts and drewe against gibbins. Tuesday, Nov. llth, 1834. Defendant sold ten casks of goods to N., and sent them to plaintiffs, with notice that they were for N., and ordering plaintiffs to separate them from other articles sent at the same time, and to have them taken away distinctly from those. After they were separated, N. took away two casks. Defendant then ordered plaintiffs not to deliver the remaining eight to N., but to another person, which order plaintiffs obeyed. N. becoming bankrupt, his assignees sued plaintiffs in trover for the eight casks. Plaintiffs wrote to defendant, stating that they looked to him for indemnity ; and inquiring whether they should defend, and stated that they should settle the action, in default of receiving instructions from him. Defendant denied his liability to indemnify, though he said he was adviaed the action could not be defended, but he offered to place eight fresh casks of the same article in the plaintiffs' hands. Plaintiffs received the casks, and offered them to the assignees ; who, two months after, refused to accept them. Plaintiffs then paid the sum claimed, and costs, to the assignees, and sued defendant for the sum paid and the costs of the action, declaring upon promises to indemnify, in consideration of their not delivering the casks to N., and delivering them to another person : Held, 1. That a promise to indemnify to the full amount claimed might be (a)1 Chap. 36, p. 845, 9th edit. 1828. (ft)1 9 & 10 W. 3, c. 15, s. 2. (c) See also Manser v. Heaver, 3 B. & Ad. 295. (d) Macarthur v. Campbell, 5 B. & Ad. 518. (a)2 Ibid. (i)2 Patteson J. was absent. 2JU . SB. 88. BETTS V. GIBBINS 23 implied from the facts. 2. That, whether the right of stoppage as against N. was determined or not, the detaining the goods by the plaintiffs was not such an evidently unlawful act as entitled the defendant to resist the action as an attempt to enforce contribution or indemnity among wrongdoers. 3. That the taking of the last eight casks by the plaintiffs, and offering them to the assignees, was not a waiver or satisfaction of the plaintiffs' claim against the defendant. Letters between N. and defendant, respecting the original contract and the disposal of the casks, not communicated to the plaintiffs, were offered by the defendant in evidence. Quaere, whether they were admissible1? [S. C. 4 N. & M. 64; 4 L. J. K. B. 1. Applied, Toplis v. Grane, 1839, 5 Bing. N. C. 650. Commented on, Tanner v. Scwell, 1845, 14 Mee. & W. 37. Followed, Dugdale v. Lowering, 1875, L. R. 10 C. P. 196. Considered, The Englishman and the Australia, [1895] P. 217. Adopted, Burrows v. Rhodes, [1899] 1 Q. B. 829. Dictum adopted, Moxham v. Grant, [1900] 1 Q. B. 93. Considered, Sheffield Corporation v. Barclay, [1903] 2 K. B. 589 ; [1905] A. C. 399.] Assumpsit. The first count of the declaration alleged that in consideration that the plaintiffs, at the defendant's request, would refuse to deliver certain goods to Messrs. Nyren and Wilson, and would deliver them to another person, the defendant undertook to indemnify them for so doing; and the count averred such refusal and delivery ; it then stated that an action was commenced by the assignees of Nyren and Wilson, who had become bankrupts, against the plaintiffs, for not delivering the goods to N. and W.; and that the plaintiffs, to prevent further proceedings, paid a large sum of money. Breach, that the defendant would not indemnify them in respect of that sum. The cause of action was differently stated in several other special counts, but they all proceeded on an alleged promise to indemnify. On the trial before Denman C.J. at the sittings in London after Trinity term 1833, a verdict [58] was taken for the plaintiffs, with 1571. 5s. damages, subject to the opinion of the Court on a case, which was substantially as follows :- The plaintiffs carry on business aa bargemasters and wharfingers at Bristol and London. The defendant is a manufacturing chemist at Neath in Glamorganshire. Of the letters herein-aftermentioned, those which passed between Nyren and Wilson and the defendant were produced at the trial by the defendant, without any proof that they had been communicated to the plaintiffs ; and the reception of them being objected to, their admissibility was ordered to form a question in the case. On the 9th of August 1830, Messrs. Nyren and Wilson, who were colour-merchants in London, wrote to the defendant, inquiring when, and at what price, he could supply them with five tons of acetate of lime, to be delivered to them at a wharf in London. The defendant offered to supply them with the quantity required, at a given price, to be paid by a bill at four months on delivery ; and on the 19th of August 1830, Nyren and Wilson wrote to the defendant, accepting his proposal. The defendant, on or about the 9th of October, sent the cargo ordered, namely, five tons of acetate of lime, in ten caaks, from Neath to Bristol, to be from thence forwarded by the plaintiffs' boats to London ; and he thereupon wrote a letter to the plaintiffs as follows, dated 9th October 1830 :- "There are some casks gone on by your boats to wait my orders in London; and I wrote to your house in Bristol, directing that thirty casks (C. 1 and C. 30), containing liquid, should be for Mackmurdo and Pitchford, and ten hogsheads (C. 160 and C. 169), of dry goods, gross five tons," &c., should be for Nyren and Wilson ; [59] and as other casks are also gone forward, I shall be obliged by your carefully separating the above for the parties mentioned, and having them taken away distinct from any others ; for I am fearful that there may be some confusion in the business; and shall thank you to address me a few lines, per post, stating that this is done, and informing me the marks of the other casks which you have received to my orders." On the 12th of October, the defendant drew a bill of exchange on Nyren and Wilson, at four months date, for 1611. Is. 2d., being the amount of the price of the five tons of acetate of lime and the casks, and transmitted it to them for acceptance in a letter dated the same day. Nyren and Wilson did not either accept the bill or return it to the defendant; nor did they pay it at maturity, nor otherwise pay the price of the acetate of lime and casks, although often applied to. On or about the 20th of October 1830, Nyren and Wilson made application 24 BETTS V. GIBBINS 2 AD. ft B. 60, respecting the above consignment, and at that time took away two of the ten casks of acetate of lime. On the 2d of November 1830 whilst the remaining eight casks were still upon the plaintiffs' wharf, Thomas Gibbins, the brother of the defendant, acting on his behalf and by his authority, personally gave directions to the plaintiffs not to deliver the remaining casks to Nyren and Wilson, but to deliver them to the order of John Elliott; and he alao on the same day signed an order, which was delivered to the plaintiffs, directing them to deliver the eight casks to the order of Elliott. This order was afterwards duly indorsed by Elliott, thus:-"Deliver the eight casks to S. Moline.-John [60] Elliott." Pursuant to this order and the indorsement, the plaintiffs delivered the eight remaining casks of acetate of lime to Sparks Moline, the indorsee. On the 3d of November 1830, the defendant wrote to Messrs. Nyren and...

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