Browne and Another v Hare and Another
| Jurisdiction | England & Wales |
| Judgment Date | 23 June 1859 |
| Date | 23 June 1859 |
| Court | Exchequer |
English Reports Citation: 157 E.R. 1067
IN THE EXCHEQUER CHAMBER.
S C. 29 L. J. Ex. 6, 5 Jur. (N S) 711; 7 W. R 619. Explained, Castle v. Sworder, 1861, 6 H. & N. 828. Discussed, Ogg v. Shutes, 1875, L R 10 C. P 164. reversed 1 C. P. D. 47. Applied, Ingles v. Stock, 1885, 10 A. C. 263. Referred to, Cuirie v Anderson, 1860, 2 El & El 592, Green v. Sichel, 1860, 7 C. B. (N S) 747, Joyce v Suann, 1864, 17 C. B (N S.) 84, Seagrave v Union Marine Insurance Company, 1866, L. R. 1 C, P 315; Herlbutt v. Hickson, 1872, L. R. 7 C. P. 450, Garbarrow v. Kreeft, 1875, L. R. 10 Ex. 284.
in the exchequer chamber (Appeal from the Court of Exchequei ) browne and another v hare and another. June 23, 1859.-The defendants, merchants at Bristol, through a broker contracted to buy of the plaintiffs, merchants at Rotterdam, ten tons of the best refined rape oil, to be shipped " free on board" at Rotterdam in September, 1857, at 481. 15s. per ton, to be paid for on delivery to the defendants of the bills of lading, by bill of exchange to be accepted by the defendants payable three months after date, and to be dated on the day of shipment of the oil. On the 8th of September, the plaintiffs (having on the previous day advised that the shipment would be made) shipped on board a general ship, trading between Rotterdam and Bristol, five tons of the oil, and the master signed a bill of lading by which the oil was deliverable " unto shipper's order," and the plaintiffs indorsed it specially to the defendants On the same day the plaintiffs inclosed in a letter to the broker the bill of lading, invoice and bill of exchange drawn on the defendants in accordance with the contract. On the night of the 9th the ship with the oil on board was run down in the Bristol Channel, and the oil totally lost The plaintiffs' letter of the 8th arrived at Bristol on the afternoon of the 10th in due course of post, but after business hours. On the morning of the 11th the broker left with defendants the bill of lading, invoice, and bill of exchange for their acceptance. At that time he knew of the loss of the ship. In about two hours aftei wards the defendants returned to the broker the documents left with them, on the ground that, under the circumstances, they were not liable to pay for the oil. In an action for not accepting the bill of exchange, and for goods sold and delivered, the jury stated that in their opinion, according to mercantile usage, the risk of the loss of the oil was on the defendants. Held, in the Exchequer Chamber (affirming the judgment of the Court of Exchequer), that the property in the oil passed to the defendants when it was placed " free on board " in performance of the contract -Held also, that it was a question for the jury whether the plaintiffs so shipped the oil in performance of their contract to place it " free on board," or for the purpose of retaining a control over it and continuing to be owners contrary to the contract. [S C. 29 L. J. Ex. 6 , 5 Jur. (N S ) 711; 7 AV. R 019. Explained, L'a&tle v. Swo,der, 1861, 6 H. & N. 828. Discussed, Ogg v. Shutei, 1875, L R 10 C. P 164 . leversed 1 C. P. D. 47. Applied, Inglu v. Stock, 1885, 10 A. C. '263. Refened to, Uuine v Anderson, 1860, 2 El & El 592 , Gheen v. Sichel, 1860, 7 C. B. (N S ) 747 , Joyw v Suann, 1864, 17 C. B (N S.) 84 , Seagiave v Union Mai me Insuiatic? Company, 1866, L. R. 1 C, P 315; Heilbutt v. Hickwn, 1872, L. R. 7 C. P. 450 , Gaibairow v. Kieeft, 1875, L. R. 10 Ex. 284.] This was an appeal against the decision of the Court of Exchequer in discharging a rule to set aside the verdict [823] found for the plaintiffs and enter it for the defendants, pursuant to leave reserved at the trial. The pleadings and material facts of the case are fully stated in the report of the case in the Court below (3 H. & N. 484). 1068 BROWNE V. HARE 4H &N 824 Eaymond argued for the appellants (the defendants) in List Easter Vacation () (May 17) The decision of the Court of Exchequei is erroneoub In oidei to entitle the plaintitis to succeed, they must satibfy the Couit that the oil at the time it was lost was the propeity of the defendants, or th.it they dehveied to the defendcints the bills of lading duly indorsed, so as to have a right to call on them to accept the bill of exchange. It appears by the case that Goolden was the geneial agent of Brown and Co.; but it is assumed that he was also the agent of Hare and Co for the purpose of receiving the shipping documents First: no property in any specific oil passed by the contract, which would be performed by the delivery of any oil of the particular description mentioned in it The shipment on boaid the "Sophie" did not transfer the property. The "Sophie''was a general ship, and if there had been simply a shipment of oil corresponding with the contract, that might have been a delivery to the vendees : but when the vendors shipped the oil, they took from the master bills of lading making it deliverable "unto shippers' order or their assigns" lVa.it v. Baker (2 Exch 1) is an express authority that under such circumstances no property passed. [Crompton, J. In that case the vendor kept his hand upon the goods, by not indorsing the bill of lading to the vendee.] Lord S to well, in his judgment in the case of The Packet de Bilboa (2 Eob. Adm. 13.3, 134), said -"The ordinary state of commerce is, that goods ordered [824] and delivered to the master are considered as delivered to the consignee, whose agent the master is in this respect, but that general contract of the law may be varied by special agreement, or by a particular prevailing practice, which presupposes an agreement amongst such a desmption of merchants." There is no use in a bill of lading by which goods are deliverable "to shipper's order," except as shewing that he reserves to himself the propeity. [Crompton, J. Is there any difference between a shipper taking a bill of lading in hia own name and indorsing it over to the consignee, and putting in the consignee's name at first 1] In the former case the property in the goods remains in the shipper , and the master undertakes to carry and deliver for him When the consignee's name is on the bill of lading, it is a contract by the master to carry for and deliver to him Here the shippers would have committed no breach of contract if they had assigned the bill of lading to any third person. The vendees had no power to compel a delivery of these specific goods. [Willes, J The vendors sent the bill of lading to Goolden, the common agent of both parties. The jury have found that there was an appiopria-tion in fact, because they have found that according to mercantile usage, the risk of the loss of the oil was on the vendees ] It is submitted that Goolden was not the agent of Hare and Co. The documents were sent to him to deliver to them upon their acceptance of the bill of exchange. The judgment of the majority of the Court below proceeds on the assumption that the vendors intended to pass the property , but why should they have taken a bill of lading by which the caigo was deliverable to themselves unless they meant to retain a control over it [Crornpton, J , referred io Fiagano v. Long (4 B. & C 219).] There was nothing to prevent Gooldeu from altering the disposition of the goods, if they had [825] arrived and the vendees had refused to accept the bill of exchange. But the oil was not in existence at the time Goalden left the bill of lading with Hare and Co, and therefore was incapable of being transferred : Ha^he v. Couhmei (9 Exch. 102) It is incumbent on the consignees to shew an appropriation by consent of the parties, or some act which per se transferred the property Whatever may have been the intention of the consignor's they were at libeity to altei it: The Auiora (4 Rob Adm 218), The Jowp/tt/te (4 Rob Adm. 25). [Crompton, J. The law is correctly .stated by Lord Brougham in his judgment in LWav/ee v. Thompson (5 Moo P. C. 103, 17.}), viz, " Tmit when goods dresold in London, free on board, the cost of shipping them tails on the seller, but the buyer is consideied as the shipper."] Goolden would not have been hablo if, with the authority of Browne and Co., he had refused to deliver the bill of lading to Hare and Co. . Bnnd v. Hampshue (1 M. & W. .365). [\Villes, J , referred to JKilliamt, v Everett (14 East, 582).] Prideaux (Butt with him), for the plaintiffs (May 18) Goolden was the broker acting for both parties. [Willes, J In cases where the broker gets a commission up$n sales, one half from one party and the other half from the othei, it is the common practice for all subsequent matters relating to the sale to be transacted through the (a) Before Erie, J., Williams, J., Crowder, J , Crompton, J., Willes, J., and Hill, J. . 328. BROWNE V. HARE 1069 broker Erie, J. If Goolden was the agent of both parties the appellant's case is not arguable.] The fifth plea was not proved; it states that the " Sophie" was a general ship, not appointed or in any way denoted by the defendants. But the evidence is, that the defendants requested the plaintiffs to send part of the oil by the first vessel, and that the "Sophie" was the first vessel. The next allegation not [826] proved is, that " before the indorsement of the bill of lading the ship was lost." The plea is either bad or a denial of the shipment under the contract. If it admits u shipment under the contract, it is bad. The effect of the shipment is to transfer not only the property, but the possession of the goods. But it would be sufficient to entitle the plaintiffs to recover if the property in the goods was transferred to the defendants. The ettect of the contract is, that the defendants purchased the oil free on board, and the property passed on such shipment, though payment was not to be made until the delivery of the bills of lading The words "free on board" mean that the oil was to be put on board at the expence of the consignors, and...
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