De Bussche v Alt
| Jurisdiction | England & Wales |
| Judgment Date | 12 March 1878 |
| Date | 12 March 1878 |
| Court | Court of Appeal |
Court of Appeal
James, Baggallay and Thesiger, L.JJ.
De Bussche v. Alt
Duks of Leeds v. Earl AmherstENR 2 Phil. 123
Principal and agent Sub-agent Agent making a profit by sale to himself
584 MARITIME LAW CASES. ADM.] DE BUSSCHE v. ALT. [CT. oF APP. Supreme Court of Judicature COURT OF APPEAL. SITTINGS AT LINCOLN'S INK. Reported by E. S. Boom, Esq., Barrister-at-law. Dec. 10, 11, 1877; Jan. 14,15,18; and March 12, 1878, (Before Jambs, Baggallay and Thesiger, L.JJ.) De Bussche v. Alt. Principal and agent-Sub-agent-Agent making a profit by sale to himself-Disclosure-Acquiescence-Delay. In 1868 the plaintiff consigned a steamer to 0. and Co., his agents at Shanghai ,for sale, fixing minimum price of 90,000 dollars, and requiring cash payment. The defendant was a merchant residing in Japan, and he undertook, as G. and Co.'s agent, to sell the vessel in Japan, or in the-event of her not biting sold to find employment for her. this was do \e with the sanction of the plaintiff. The defement, being unable to sell the chin for cash at the price named, look her himself for 90,000 dollars, and resold her to a Japanese prince for 160,000 dollars, payable partly in cash and partly on credit. No information reached the plaintiff of any intention on the part of the defendant to change his character of agent for sale for that of purchaser until June 1869, after the transaction-with the prince was carried out. The defendant paid 90.000 dollars to G. and Co., who remitted it to the plaintiff. In the meantime the defendant, though not without Some trouble, had obtained the whole amount of 160,000 dollars from the prince. In 1873 the plaintiff instituted proceedings to compel the defendant to pay over the increase realised by him in the resale of the vessel, on the ground that he was the plaintiff's agent in the transaction, and bound to account for all profit made. Held (affirming the decision of Hall, V.C.), that this was one of those special cases where privity arose between the principal and the sub-agent, and the sub-agent became liable to-the principal as if he had been directly employed by him. The relation of agent and principal was established and existed between the defendant and the plaintiff at the time of the purchase and re-sale of the vessel; and the defendant therefore must account to the plaintiff for all the profit he had made in the Irons-action. Held, further, that there had been no such acquies-cence or delay on the part of the plaintiff as would disentitle him to maintain the action. Semble, that mere submission to a wrongful act which has been completed without the knowledge or assent of the person whose right is infringed cannot, without some conduct amouning to accord and satisfaction, or a release under seal being shown, bar her right of actions although, under the name of laches, it may afford a ground for refusing relief under same particular circumstances. This was tin appeal by the defendant from a decision of Hall, V.O, The, bill was filed by MARITIME LAW CASES. 585 CT. oF APP.] DE BUSSCHE v. ALT. [CT. oF APP. Edward Minister de Bussobe, a merchant and shipowner of Ryde, in the Isle of Wight, against William John Alt, a member of the firm of Alt and Co., merchants in Japan, and sought to make the defendant liable to account, as the plaintiff's agent, for profits made by him in the purchase and sale of a steamship called the Columbine. It appeared that in 1868 the plaintiff was the registered owner of two composite screw steamers, called the Nymph and the Columbine, subject to a mortgage to Messrs. John Willis and Son, merchants in London, to secure an account current. Each of the steamers was intended by the plaintiff, according to his usual course of business, for sale in some port in India, China, or Japan, and in the summer of 1868, by arrange-ment between the plaintiff and his mortgagees, who wore pressing for payment of the mortgage debt., the vessels were consigned for sale to Gilman and Co., a firm of marchants carrying on business at Hong Kong and Shanghai in China, and at Yokohama in Japan. It was admitted that, although John Willis and San took the active part in the original consignee-it of the vessels to Gilman and Co. yet the relationship of principal and agent in the transaction was constituted between the latter firm and the plaintiff. The amount of the mortgage debt was very much below the selling value of the vessels, and Gilman and Co, throughout the transactions which followed upon the consignment, as a rule corresponded with the plaintiff rather than with Willis and Son. The consignment was announced by Willis and Son to Gilman and Co. in a letter of the 3rd July 1868, in which occurred the following passages: The Columbine is now at Bombay, and if she cannot be sold will take cotton round to China, where, it a sale does not take place, we must beg you to send her with a freight to Shanghai, Nagasaki, or Yokohama, or all three porta if necessary, so as to get her sold as soon as possible. We understand that you hare no establishment at Nagasaki, but no donbt yon can appoint some good agent to do the business; but we have to cantian yon that great care should be taken in appointing an agent where a sale is likely to be effected, as Mr. De Bussche will naturally look to as for the proceeds. At that time the defendant was a partner in the firm of Alt and Co., an English mercantile house which traded in Japan, having three .different branches in that country-one at Nagasaki, mother at Osaca, and a third at Hiogo-trad had ??ein from time to time employed by the plaintiff as agent for the sale of merchandise. The defendant was the managing partner at Osaca end Hiogo, and a Mr. Hunt was the manager of the Nagasaki branch. The defendant hearing that the two steamers had been consigned for sale, and having better opportunities than Gilman and Co. for disposing of them in Japan, suggested to that firm that he should be allowed to do so; and the plaintiff also, having been informed that the defendant's house and another Japan house could Bell composite steamers, forwarded the information to Gilman and Co., in a letter of 10th Sept. 1868. In the result Gilman and Co. authorised the defendant to sell the vessels, or, in the event of their not being sold, to find employment for them-The defendant undertook the duty, and the plain tiff corresponded with the defendant's manages at Nagasaki, on the footing of the defendant having so undertaken it. On the 23rd Oct. 1868 the plaintiff wrote to Oilman cad Co. confirming limit which he had previously mentioned for the price of such of the vessels, viz., 90,000 dollars net proceeds in England, and stating his willingness to allow some portion, suggesting one-third, to remain on credit, if good interest were allowed and covered by the guarantee of Gilman and co.; and on the 5th Nov, in the same year the plaintiff wrote again to Gilman and Co., withdrawing the requirement of a guarantee from them, and expressing his willingness to allow a credit, if necessary, of 20,000 dollars or 25,000 dollars for six or nine months, secured on the vessel. The defendant, however, asserted that he was never made acquainted with the fact of the plaintiff's willingness to allow a credit, and that the instructions which were conveyed to him by Gilman and Co., as coming from Willis and Co., were to the effect that only cash was to be taken for the steamers. The evidence upon this point was not clear, but in the view of the court nothing really turned upon it, and they had treated the defendant's assertion as correct. For some time prior to the defendant's employment in connection with the two simmers he had business relations with a prince of a Japanese district palled Geyshien; and the prince had become indebted to him in certain moneys, some of which were payable in the year 1868 and some in 1869. This Japanese prince was desirous of becoming the purchaser if a steamer, and the defendant appeared very early to have conceived the notion of selling either the Nymph or the Colvmbine to him. In the latter part of 1868 and the early part of 1869 several letters passed between the defendant and members of the firm of Gilman and Co., in which the difficulty of obtaining cash for the vessels was stated by the defendant, and in which be suggested that ha should himself become the purchaser with a view of reselling on credit. Gilman and Co. in the answers to the defendant did not appear indisposed to accede to his suggestion, provided the plaintiff's limit of 90,000 dollars was obtained; but in the opinion of the court the correspondence failed to establish that any definite arrangement was come to until a date later than the 18th March 1869. It appeared, however, that before that date the defendant had brought his negotiations with the officers of the Prince of Geyshien for the sale of the Columbine by him to the prince to a close; and on the 24th "Fob. 1869 an agreement in writing, purporting to be made between the defendants firm and the prince's officers, was signed at Osaca, under which the defendant was to receive 160,000 dollars for the vessel, payable as to 75,000 dollars in cash, and as to the balance in two equal instilments in the fourth and eighth months (Japanese) of the then year; -that is, in May and Sept. 1869. The contract was subject to confirmation by the Gey. shien government, and complete possession of the vessel was not to be given over until lfoll payment was received. On the same day a farther agreement between the same parties was signed, under which, in con-sideration of the purchase of the steamer, it was arranged that the prince should pay to the defendant in the second month of the year 22,400 rios due in the Chird month, 23,000 rios due in the fourth month, and in the eighth month 30,72s rios due in the te?? the and eleventh months of the pre-oeding year. These agreements weralleged by the defendant to tow been mereinchoate arranges 586...
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