Bourne and Others v Gatliffe, in Error
| Jurisdiction | England & Wales |
| Judgment Date | 09 December 1841 |
| Date | 09 December 1841 |
| Court | Court of Common Pleas |
English Reports Citation: 133 E.R. 1298
IN THE COURT OF COMMON PLEAS
S. C. in House of Lords, 11 Cl. & F. 45; 8 E. R. 1019 (with note, to which add, Bruner v. Moore, [1904] 1 Ch. 311.)
[643] cases argued and determined in 'the court of exchequer chamber upon writs of error from the court of common pleas, in michaelmas vacation, in the fifth year of the eeign of victoria. The judges present were,-Lord Denman C. J., Parke B., Alderson B., Patteson J. Williams J., Gurney B., Eolfe B. bourne and others v. gatliffe, in error. Dec. 9, 1841. [S. C. in House of Lords, 11 Cl. & F. 45; 8 E. E. 1019 (with note, to which add, Bruner v. Moore, [1904] 1 Ch. 311).] To a count in assumpsit-by A. against B., upon a contract by B., safely and securely to carry in a steam-vessel certain goods of A. from Belfast to Dublin, and 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 the 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 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 further 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 a 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 (a) Denton and Others v. Rodie and Another, 3 Campb. 493, was a feigned issue, directed to try whether, at the time of the date and suing forth of a commission of bankruptcy against J. H. Clough, J. S. Wilkes, and J. B. Clough, those persons were indebted to the plaintiffs in any, and if any, in what sum of money. It appeared that J. B. Clough, with the privity of his partners J. H. Clough and Wilkes, drew bills in his own name on the partnership firm in favour of parties who advanced him the amount, which amount was applied by him to the use of the partnership. (b) I Esp. N. P. 468. And see Lloyd v. Archbowle, 2 Taunt. 324; Mawman v. Gillett, ibid. 325, n.; Lucas v. De La Cour, 1 Maule & Selw. 249 ; Matthews, Ex parte, 3 Ves. & B. 125; Smith Carolina Bank v. Case, 8 B. & C. 427, 2 Mann. & Eyl. 459; Bolitho, 'Ex parte, Buck, 100 ; Sevan v. Lewis, 1 Simons, 376; Liddiard, Ex parte, 2 Mont. & Ayrt. 87. 3 MAN. & G. 6M. BOURNE V. GATLIFFE 1299 elapsed, and before the same could be removed therefrom, were accidentally destroyed by fire.-Held,-in affirmance of the judgment of the court of C. P., upon demurrer to these pleas,-that both pleas were bad in substance, inasmuch 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,-upon a bill of exceptions-that such evidence was admissible for the purpose of shewing the course and usage of delivery in 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,-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 frpm 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 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 the 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 afterwards, and before they could be conveyed from the wharf, and before a reasonable time for their being so conveyed, or for the delivery thereof to A. had elapsed, the goods were destroyed by an accidental fire ; by means whereof, and from no other cause, and without any carelessness, negligence, or improper conduct, or want of due care in B., B. was prevented from delivering the goods to A.-Held,-in reversal of the judgment of the Court of C. P., 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 not subject to the liability of a common carrier whilst the goods were in the warehouse, all that B. was bound to do by the contract was, to take reasonable care of the goods whilst in the warehouse. Assumpsit. First count, that the plaintiff below (the defendant in error), on the 22d of August 1836, at the request of the defendants below (the [644] plaintiffs in error), caused to be delivered to the defendants (below) divers, to wit, eight boxes of linens, &c. of the plaintiff, then being in good order and condition, and of great value, to wit of the value of [645] 18001., to be taken care of, and safely and securely carried by the defendants (below) in a certain steam-vessel of the defendants (below) called the City of Londonderry, from Belfast, to Dublin, and there, to wit, at Dublin aforesaid, to be reshipped into a certain other steam-vessel of the defendants (below) called The " William Fawcett," and to be by them carried in the last-mentioned steam-vessel 1300 BOURNE V. GATLIFFE 3 MAN. & G. 646. from Dublin aforesaid to the port of London, and there, to wit, at the port of London aforesaid, to be delivered in the like good order and condition (all and every the dangers and accidents of the seas, steam navigation of what nature and kind [646] soever, excepted) unto the plaintiff (below) or assigns, on payment, for the said goods, of certain freight and charges, with primage and average accustomed ; that, thereupon, in consideration of the premises, and of the said freight and reward, the defendants (below) then promised to take care of, and safely and securely carry and deliver, the said goods as aforesaid (all and every the dangers &c., excepted); and that although the defendants (below) then accepted and received the said goods, of and from the plaintiff, for the purposes aforesaid, and although the last-mentioned steam-vessel, afterwards, to wit, on the 28th of August in the year aforesaid, safely arrived at London aforesaid, with the said goods on board thereof, and although none of the dangers and accidents so excepted as aforesaid, had prevented the safe carriage and delivery of the said goods or of any part thereof, and although a reasonable time for delivering the same had long before the commencement of the suit, elapsed, and although the plaintiff (below) was always ready and willing to pay the defendants (below) the said freight...
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