Couturier and Others v Hastie and Others
| Jurisdiction | England & Wales |
| Judgment Date | 25 June 1853 |
| Date | 25 June 1853 |
| Court | Exchequer |
English Reports Citation: 155 E.R. 1250
COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER.
couturier and otuees v hastie and others June 26, 1852 -The plaintiffs, merchants at Hmyina, chartered a vessel to proceed to Salornca, and there having loaded a cargo of Indian corn, to proceed to a safe port in the United Kingdom The plaintiffs accordingly shipped, at Kalomca, 1180 quarters of Indian corn , and on the 22nd of Febiuary, 1848, the mnstei signed a bill of lading, making the corn deliverable " to order of the plaintiffs or to their assigns, he or they paying freight as per chaitei party " The plaintiffs indorsed the bill of lading, and sent it together with the charter-party to B , their London agent, with oideis to sell the cargo on their account, and they also, thiough B, insured the cargo "at and from Salonica to the port of discharge in the United Kingdom," &c , "corn warranted free from average unless general, 01 the ship be stranded " On the 1st of May, 184H, B employed the defendants, corn-factors in London, to sell the cargo, and sent them the bill of lading indorsed, the chaitet-patty, and policy of insurance , and they advanced G001 on the caigo The custom ot coin-factors is to sell under a del credere commission, and when so selling not to mention the purchaser On the 15th of May, 1848, the defendants sold the cargo to C , and sent him a bought note, which stated, that he had bought of them " 1180 quarters of Salomes Indian corn of fair aveiage quality when shipped, at 27s per quarter, free on board, and including freight and insuiance, to a safe poit in the United Kingdom, payment at two months from thia date, upon handing over shipprng documents," On the same day the defendants wrote to B, advising him of the .sale, but without making any mention of the purchaser or of commission The 'vessel sailed from Salonica on the 23rd of February , and having met with tempestuous vveathei, the cargo became so heated and fermented that the vessel was obliged to put into Tunis Bay, where the cargo, having been surveyed, was found to be unfit to be carried further, and, on the 24th April, it was sold On the 23rd May, C gave the defendants notice that he lepudiatecl the contract, on the ground that the cargo did not exist at the time of the sale to him In March, 1849, C became bankrupt The plamtiHs brought the present action against the defendants to recover the price of the cargo, and declared specially on a del credere guarantie -Held, first, that the true meaning of the contract (which could not be explained by evidence of mercantile usage) was, that the puichaser bought the cargo, if it existed at the date of the contract, but that, if it had been damaged or lost, he bought the benefit of the insurance, and therefore he was bound to pay the stipulated price in a reasonable time after the bill of lading and other shipping documents were handed over to him-Pollock, C B, clissen-tiente-Secondly, that the defendants were responsible by reason of their del 8E3141 COUTURIER V HASTEE 1251 credere commission, although tlieie was no guaiantie in wilting signed by them, since this was not an undertaking to pay the debt of anothei within the 4th section oi the Statute of Frauds-Thirdly, that the plaintiffs weie entitled to judgment; nori obstante veredicto on n plea which stated, that, at the time the defendants were employed to sell the corn, it was heated and fei mented, and had been unloaded and sold , that the defendants and C were ignorant of the premises, and that C , in a reasonable time after the sale, and before the time of payment, repudiated the contiact [S C 22 L .T. Ex 97 leveised, 9 Ex 102 the latter decision affirmed in House Of Lords, 1856, 5 H L C 673, 10 E R 1065 (with note) See also, Ilaibury India Kabfiei Comb Company v Mm (in, [1902] 1 K B 778, Griffith v Bnjmt" , 1903, 19 Times L R 434, Davys v Boswell, [1913] 2KB 58, Gahnel v (Jhuichill, [1914] 3 K. B 1277 ] Assumpsit The declaration stated that, before the making of the piomise, &c , divers, to wit,, 1180 quarters of Indian corn, of fan average quality, of gieat value, to wit, 20001, had been shipped free on board a certain ves-[41]-sel from Salonica, foi an jl on account of the plaintiffs, undei a bill of lading, by which the Indian corn was deliverable to the plaintiffs or then assigns, paying freight foi the carnage as provided for by a charter-party theretofore in that behalf made, with primage and average acoustomed, and the vessel to proceed from Salonica fot any safe port in the United Kingdom, calling at Cork or Falmouth for orders That the plaintiffs had caused to be effected a policy of insurance upon the Indian corn, whereby the plaintiffs were insured, loat or not lost, at and from Salonica, on the said voyage, from the time of the loading the com on board That before the making of the promise, &c, the veisel had sailed on hei voyage from Salonica with the Indian corn on board, and had not at the time of making the piomise called at Coik or Falmouth, oi arrived at any poit of the United Kingdom, of which the defendants had notice And thereupon, in consideration that the plaintiffs, at the lequest of the defendants, had retained and employed the defendants, for commission and reward, to endeavoui to sell and dispose of the corn on the terms, amongst other things, of the corn havrng been shipped free on. board, and of having been at the risk of the purchaser from such loading thereof on board the same vessel, the defendants to give notice to the plaintiffs of the teiras and conditions of the sale thereof within a reasonable time after making such sale, the defendants promised the plaintiffs to endeavour to sell and dispose of the coin for the plaintiffs, on the terms, amongst other things, of the corn having been shipped frfe on board, and of having been at the risk of the purchaser from such loading thereof on board the same vessel, and to give notice to the plarntiffs of the terms and conditions of the sale thereof within a reasonable time after making such sale, arid to ba responsible to the plaintiffs for the price of the corn, according to the terms and conditions of such sale specified in such notice so to be given Averments, [42] that ttje defendants, on the 15th of May, 1848, sold the corn to one A Calleuder, on the tfflms, amongst other things, of the corn having been shipped free on board, and of hiving been at the risk of the purchaser from such loading thereof on board the same vessel, at and for the price of 27s by the quarter, free on board, and including freight and insurance, the measure of the corn to be calculated as customary, payment of ttye price to be made at two calendar months from the day and year last aforesaid that the defendants aftei wards gave notice to the plaintiffs of the ter ms and conditions of the sale Breach, that although the price of the com amounted to 20001, and the titne of payment had elapsed befoie the commencement of the suit, yet the defendants would not pay the plaintiffs, nor be responsible to them for the price of the corn , and tbe same is unpaid by A Callender or the defendants, &c Pleas -First, non assumpsit Secondly, that the plaintiffs had not retained or employed the defendants to endeavour to sell or dispose of the com on the terms in the declaration alleged, modo et forma Thirdly, that the defendants did not sell or dispose of the corn on the terms in tha declaration mentioned, modo et formd Fourthly, that the defendants did not give notice to the plaintiffs of the tei ms atid conditions of the sale, modo et formfi. Fifthly, that, after the sailing of the vessel so laden with the corn, and before the 1252 COUTURIER V HASTIE 8 EX sale and disposal of the com, and befoie the arrival of the vessel at any pott of the United Kingdom, and before the vessel had called at Cotk ot Falmouth foi ordeia, and whilst the vessel was on her voyage from Salomea with the corn so on board thereof, the plaintiffs sold and delivered the coin to ceitain persons othei than the defendants, and other than A Callendei, whose names ate to the defendants unknown , since which sale [43] the plaintiff's have nevei had any piopetty in the coin, 01 any right to sell or dispose thereof or of any part theieof, of which sale and delivery by the plaintiffs the defendants and A Callender, at the time of the sale and disposal by the defendants, were, and each of them was, wholly ignorant wheieupon, and foi the cause aforesaid, A Callendet, within a reasonable time after the said sale and disposal, and before the time for payment of the price, repudiated the said sale, and lefused to perform his contract foi the same 01 pay the price Venhcation Sixthly, that, before and at the time of the said letainet and employment, the coin had become and was heated and fermented, and gieatly damaged and iirjiued, in the said vessel," and had been and was discharged and unloaded fiom the same by reason thereof, and sold and disposed of by the captain of the vessel fot and on account of the plaintiffs That the defendants, at the time of the said retainer and employment, and also at the time of the said sale and disposal, were ignorant of the pteroises That A Callender was also ignoiant thereof, and foi the cause afoiesaid, within a reasonable time after the sale and disposal in the declaration mentioned, and befoie the time had arrived for the payment by him of the puce of the coin, to wit, on Ac , foi the cause aforesaid, repudiated the said sale, and refused to complete the same or his said contiact, and refused to pay the price of the coin, ot any pait thereof Verification Seventhly, that the plaintiffs retained and employed the defendants by and through one E Bernoulli, their agent in that behalf, and that E Bernoulli, as such agent, did procure the defendants to make then said piomise, which promise was made by them to the plaintiffs through E Bernoulli, as such agent, and not...
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