Bourne and Others v Gatliffe, in Error
| Jurisdiction | England & Wales |
| Judgment Date | 10 June 1844 |
| Date | 10 June 1844 |
| Court | Court of Common Pleas |
English Reports Citation: 135 E.R. 345
IN THE COURT OF COMMON PLEAS.
S. C. 11 Cl. & F. 45; 8 E. R. 1019 (with note, to which add Bruner v. Moore, (1904) 1 Ch. 311).
'7 BUN. & G. 850. BOURNE V. GATLIITfi 345 [850] BOUENE AND OTHERS V. GATLIFFE, IN ERROK. June 10, 1844. [S. C. 11 Cl. & F. 45; 8 E. E. 1019 (with note, to which add Srwner v. Moore, [1904] 1 Ch. 311).] 'To a count in assumpsit by A. against B. upon a contract by B., safely to carry in a steam-vessel certain goods of A. from Dublin to London, and to deliver the same at London to A. or to his assigns, upon payment of freight,-assigning a breach in non-delivery of the goods in London,-B. pleaded that the goods were put on board under a bill of lading, by which they were made deliverable to A., or his assigns on payment of freight; that after the arrival of the vessel and goods at London, B. caused the goods to be unshipped, and safely and securely landed and deposited upon a certain wharf at London, there to remain until they could be delivered according to the bill of lading, the said wharf being a place at which goods conveyed in steam-vessels from Dublin to London were accustomed to be landed and deposited, for the use of consignees, and being a place fit for such purpose; and that the goods whilst they remained upon the said wharf, and before a reasonable time for the delivery thereof had elapsed, were accidentally destroyed by fire.-It was also pleaded, to the same count, that after the arrival of the vessel and goods at London, B. was ready and willing to deliver the goods to A. or his assigns, but that neither A. nor his assigns was or were there ready to receive the same; whereupon B. caused the goods to be landed on the said wharf, there to remain until A. or his assigns should come and receive the same, or until the same could be conveyed and delivered to A. or his assigns, with the like averment as to the said wharf being a usual and fit place; and that the goods, whilst they remained upon the said wharf, .and before A. or his assigns came or sent for the same, and before B. had been requested to deliver the same to A. or his assigns, or a reasonable time for conveying them from the said wharf to A. or his assigns had elapsed, and before the same could be removed therefrom, were accidentally destroyed by fire.-Held, in the Exchequer Chamber, in affirmance of the judgment in the Common Pleas upon demurrer, that both pleas were bad in substance, as they neither shewed a delivery of the goods to A. or his assigns, nor alleged that a delivery at the wharf was a delivery, according to the usage of London, with respect to goods on such a voyage, or that A. or his assigns had notice of the arrival of the goods, or that a reasonable time for A. or his assigns to receive them had elapsed when the goods were landed, or when they were destroyed, or that A. or his assigns had notice that B. was ready and willing to deliver the goods; and that, if, as the goods were deliverable to A. or his assigns, B. was not bound to deliver them until he had notice that A. or some assignee would receive, or until the party entitled should come to receive them, still B. was bound to keep the goods on board (or on the wharf at B.'s own risk) for a reasonable time, to enable the consignee to fetch them, and B. continued liable until such reasonable time had elapsed.-B. also pleaded that he did deliver the goods at London according to his promise. Upon the trial of this issue, evidence was admitted on the part of A. of former dealings between himself and B. ; as to the carriage of goods from B.'s wharf to A.'s place of business. Held, in the Exchequer Chamber, upon a bill of exceptions, that such evidence was admissible for the purpose of shewing the course and usage of delivery at the port of London; though, for the purpose of adding to, or .otherwise varying, the terms of the written contract, it would have been inadmissible.-Held, also, in the Exchequer Chamber, upon a bill of exceptions, that the judge was warranted in declining to tell the jury that a delivery at the wharf was, in point of law, a sufficient delivery, that B. was thereby discharged from all further responsibility, and that no contract could be inferred from the course of dealing, to vary or superadd to, the written contract contained in the bill of lading; and in stating that it was a question for the consideration of the jury, whether there had been a delivery of the goods, and that it was for them to say whether, upon the evidence, a delivery at the wharf was a delivery according to the usage and practice of delivering goods observed in the port of London. In another count, on a promise that, in consideration of the previous delivery of goods to be so carried to London for freight, and of the employment of B. by A. for other reward, to take care of the goods at the wharf, where they should be landed, and to carry and convey the same from such wharf boubhe . atliite; 7 maif. & to A.'s place of business, and there to deliver them to A. in a reasonable time after landing,-a breach was assigned in the non-delivery of the goods, although a reasonable time for that purpose had elapsed. B. pleaded that after the arrival of the steam-vessel in London with goods on board, and after the goods had been safely landed on the wharf, B. caused the same to be safely deposited and stored upon the wharf until they could be carried and conveyed therefrom, and delivered to A., the said wharf being a usual fit and proper place for that purpose, and that B. took care of the goods whilst they remained upon the wharf until they were destroyed by an accidental fire before they could be conveyed from the wharfj and before a reasonable time for their being so conveyed, or for the delivery thereof to A. had elapsed; by means whereof, and from no other cause, and without any care lessness, negligence, or improper conduct, or want of due care in B., he was prevented from delivering the goods to A.-Held, in the Exchequer Chamber, in reversal of the judgment in Common Pleas upon a demurrer to this plea; that the plea was a good answer to the count, inasmuch as the contract to carry from the wharf for other reward was not of the same nature as the contract to carry to it, and the count contained no averment that B. was a common carrier; and that if B. was not subject to the liability of a common carrier whilst the goods were in the warehouse, all that he was bound to do by the contract was, to take reasonable care of the goods whilst in the warehouse. In the Common Pleas the sum of 7341. was awarded to the plaintiff below for his costs, and in the Exchequer Chamber that part of the judgment of the Common Pleas was affirmed, and the sum of 3111. was adjudged to the defendant in error for costs of the delay of execution on pretence of prosecuting the writ of error. The House of Lords affirmed the judgment of the Exchequer Chamber as to the affirmance and the reversal of the judgment in the Common Pleas, except that the judgment of the Common Pleas and of the Exchequer Chamber was reversed as to part of the 7341. .awarded to the defendant in error for costs, by deducting therefrom the costs which had been allowed in the Common Pleas to the plaintiff below in respect of the demurrer, the judgment upon which in his favour was reversed in the Exchequer Chamber, and also as to 3111. for costs awarded in the Exchequer Chamber, the partial reversal of judgment in that court shewing that the writ of error was not improperly brought. No costs were allowed in the House of Lords. The judgment pronounced in the court of Exchequer Chamber upon the writ of error brought in this action (vide ante, vol. iii. 643, 3 Scott, N. E. 1), was entered up as follows:- f 851] "Whereupon, all and singular the premises having been considered, and as the record and proceedings aforesaid, and the judgment given in form aforesaid, as the matters aforesaid by the said E. Bourne, &c. above for error assigned, having been, by the said court of [852] Exchequer Chamber here diligently examined and fully understood, it appears to the said court of Exchequer Chamber that there is no error in the record or proceedings aforesaid, or in giving the judgment aforesaid as ta the first count of the said declaration. Therefore it is...
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