Boorman and Others against Brown
| Jurisdiction | England & Wales |
| Judgment Date | 21 June 1842 |
| Date | 21 June 1842 |
| Court | Court of the Queen's Bench |
English Reports Citation: 114 E.R. 603
IN THE QUEEN'S BENCH
Affirmed in H. L., 11 Cl. & F. 1; 8 E. R. 1003 (with note).
[511] in the exchequer chamber. (error from the queen's bench.) boorman and others against brown. Tuesday, June 21st, 1842. Declaration, in case, stated that defendant was an oil broker, and that plaintiffs, linseed crushers, retained him, as such broker, to sell and deliver for them 30 tuns of linseed oil, according to the contracts of sale, to such persons as should purchase, for commission and reward to defendant in that behalf ; which retainer he accepted : that he, as such broker, in pursuance of the retainer, made a contract between plaintiffs and P., by which plaintiffs sold to P., and he bought of them, the 30 tons, at the price, &c., to be delivered by parcels at a place and times named in the declaration, each parcel to be paid for in ready money : that plaintiffs consigned two of the parcels to defendant, and he delivered them to P. on payment : and that, after the making of the contract, and in pursuance thereof, and of the retainer, plaintiffs consigned to defendant, as such broker, the residue of the 30 tons, to be delivered by him to P. on payment : that the oil arrived, &c., of which defendant had notice, and took upon himself the delivery according to the contract : and thereupon it became and was defendant's duty, as such broker as aforesaid, to use all reasonable care that the oil should not be delivered to P, or any other person without the price being paid to defendant according to the contract : yet defendant, not regarding such duty, did not use reasonable care, &c. that the oil should not be delivered, &c. without the price being paid, but neglected and refused so to do, and so negligently and carelessly behaved in the premises, that, by defendant's mere carelessness and negligence, the last mentioned oil was delivered to H. and Co. without the price being paid, by P. or any person, to defendant : by reason whereof, and of P. having become bankrupt and unable to pay, plaintiffs lost the said oil, and the price thereof, &c. Held by the Court of Queen's Bench, after verdict for plaintiffs : that the duty was laid in the declaration as resulting from the defendant's character of broker : but that the duties of a broker as defined by statute and common law did not include those said to have been violated by the defendant. Judgment arrested. Held by the Court of Exchequer Chamber on error : that the duty resulted from an express contract described in the declaration, and did not ariae simply from the defendant's character of broker. And that, for the breach of such duty, an action of tort lay. Judgment reversed. [Affirmed in H. L., 11 Cl. & F. 1 ; 8 E. R. 1003 (with note).] The plaintiffs in error declared in the Queen's Bench against the defendant in error : For that, whereas before and at the time of the committing, &c. the said plaintiffs carried on the trade or business of linseed crushers, at Branbridges, in the county of Kent, and defendant during all that time carried on the trade or business of an oil broker, al London aforesaid ; and whereas also, before the time of the committing, &c., [512] to wit on, &c., plaintiffs had retained and employed defendant, as such broker a* aforesaid, to sell at London aforesaid, for and on behalf of them, plaintiffs, certain quantities, to wit 30 tuns, of linseed oil, and to deliver the same in the port of London aforesaid, according to the terms of the contract or contracts of sale, to such person or persons as should become the purchaser or purchasers thereof, for certain reasonable commission and reward to defendant in that behalf, which retainer and employment defendant then accepted : and whereas also, before the committing, &c., to wit (a) Dalison, 76. S. C. as Daniel v. Luker, 3 Dyer, 305 a. pi. 58. 604 BOOKMAN V. BROWN 3 Q. B. 813. on, &c., defendant, as such broker as aforesaid, in pursuance of the said retainer and employment, and being duly authorised by plaintiffs and one James Graham Peacock in that behalf, made a certain contract between the said plaintiffs and the said J. G. Peacock, whereby plaintiffs sold to the said J. G. P., and the said J. G. P. purchased of plaintiffs, the said 30 tuns of linseed oil at the price of 421. 10s. per tun, usual allowances, to be delivered in the river Thames, 10 tuns the last fourteen days in March then next, 10 tuns the last fourteen days in April then next, 10 tuns the last fourteen days in May then next, and the amount of each parcel to be paid for from delivery in ready money less 2J per cent, discount; which said contract the said plaintiffs and J. G. P. then respectively accepted : and whereas also, after the making of the said contract, plaintiffs, in pursuance thereof, consigned to defendant, at London aforesaid, in the last fourteen days of March and April respectively, two several parcels of linseed oil of 10 tuns each, to be delivered by him to the said J. G. P. upon the price of the amount thereof being paid by the said J. G. P. to defendant in ready money, less 2| per cent. dis-[513]-count, and defendant then delivered the same respectively to the said J. G. P. upon such payment thereof being so made : and whereas also, after the making the said contract, and in pursuance thereof, and of such retainer and employment as aforesaid, to wit on, &c., plaintiffs consigned to defendant, as such broker as aforesaid, at London aforesaid, by a certain barge or vessel called the "Barb.am," 10 other tuns of linseed oil, being the residue of the said 30 tuns comprised in the said contract, to be delivered by said defendant to the said J. G. P. upon payment of the price thereof by the said J. G. P. to defendant; and the said last mentioned 10 tuns of linseed oil, being so consigned, afterwards, to wit on, &c., arrived in London aforesaid on board of the said barge or vessel, of all which the defendant then had notice, and then took upon himself the delivery of the last mentioned 10 tuns of linseed oil according to the terms of the said contract; and thereupon it became and was the duty of the defendant, as such broker as aforesaid, to use all reasonable care and diligence that the said 10 tuns of linseed oil should not be delivered to the said J. G. P., or any other person, without...
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