Higgins and Others v John Senior
| Jurisdiction | England & Wales |
| Judgment Date | 26 June 1841 |
| Date | 26 June 1841 |
| Court | Exchequer |
English Reports Citation: 151 E.R. 1278
EXCH. OF PLEAS.
S. C. 11 L. J. Ex. 199. Adopted, Williamson v. Barton, 1861, 7 H. & N. 906; Fisher v. Marsh, 1865, 6 B. & S. 416; Cropper v. Cook, 1868, L. R. 3 C. P. 199; Calder v. Dobell, 1871, L. R. 6 C. P. 490; Fleet v. Thurton, 1871, L. R. 7 Q. B. 131; Armstrong v. Stokes, 1872, L. R. 7 Q. B. 607; Browning v. Procincial Insurance Company of Canada, 1873, L. R. 5 P. C. 273. Distinguished, Holding v. Elliott, 1860, 5 H. & N. 121.
HIGGIN9 I'. SENIOR 8M. &W. 834. [834] higgins and others v. john senior. Exch. of Pleas. June 26, 1841.- In an aotion on a, written agreement, purporting on the face of it to be made by the defendant and subscribed by him fur the sale and delivery by him of goods above the value of 10, it is not competent for the defendant to discharge himself on an issue on the plea of non-assumpsit, by proving that the agreement was really made by him by the authority of, and as agent for, a third person, and that the plaintiff knew those facts at the time the agreement was made and signed. [S. C. 11 L. J. Ex. 199. Adopted, William-son v. Barton, 18(51, 7 H. & N. 906 ; Figfier v. Marsh, 1865, 6 B. & S. 416; Orofjier v. (loch, 1868, L. R. :3 C. P. 199; Colder v. Dobell, 1871, L. R. 6 C. P. 490; Fleet v. Thn-rton, 187 1, L. R. 7 Q. B. 131 ; Armstrong v. Stakes, 1872, L. R. 7 Q. B. 007; Browning v. Pro-sin rial Innunmcn Uompany of Canada, 1873, L. R. 5 P. C. 27:!. Distinguished, Holding v. Klliott, 1860, 5 H. &N. 121.] Special assumpsit, to recover compensation for the non-delivery of certain quantities of iron, pursuant to agreement, whereby the defendant agreed to sell to the plaintiff's, and the plaintiff's, at the request of the defendant, then agreed to buy of and from the defendant a certain large quantity of iron, to wit, &c. Pleaa, first, that the defendant did not promise ruodo et forma; secondly, that the plaintiffs did riot agree or promise modo et forma. Issue thereon. At the trial before Rolfe, B., at the last Liverpool Assizes, it appeared that the plaintiffs were iron merchants at Liverpool, and the defendant was also an iron merchant and iron commission agent, trading there in the name of John Senior & Co. On the 20th of July, 1840, a person of the name of Mead, who \vas employed by the plaintiffs to purchase iron, applied to William Senior, a brother of the defendant (and who was then acting for him in his absence from home), to know if he sold for the Varteg Iron Company, and on being answered in the affirmative, Mead said he had a large order for a good house ; but William Senior then declined to enter into any contract with hipi. On the following day, however, the 21st of July, on being again pressed by Mead, he took the order, and Mead went to his office, and in a short time returned to William Senior at the defendant's office, and delivered to him the following bought note:- "Liverpool, 21st July, 1840. "Bought of the Varteg Iron Company, per John Senior & Co. "One thousand tons of good merchantable bar iron of common sizes, of flat, square, and round, at 6 per ton-free on board at Newport, less five per cent, for cash [835] payment, on receipt of invoice and bill of lading, for every parcel of one hundred tons or upwards. " Two hundred tons to be delivered by the 20th August, four hundred tons in all September, and the remaining four hundred tons by the 14th October, and the whole to be shipped at the lowest rate of freight offering, except in any case where a ship is Bent expressly for a cargo. "SAMUEL mead, "for messrs. V. higgixs & sons, " Iron Merchants, Liverpool." William Senior wrote and delivered to Mead the following sold note :- *'Mr. S. Mead. "Liverpool, 21st July, 1840. " We have this day sold, through you, to Messrs. V. Higgins & Sons, one thousand tons of Varteg, or other merchantable bar iron of common sizes, of flat, square, and round, at 6 per ton, free on board at Newport, less five per cent, for cash payment, on receipt of invoice and bill of lading for every parcel of one hundred tons or upwards. Five hundred tons to be delivered by the 20th August, four hundred tons in all September, and the remaining four hundred tons by the 14th October, and the whole to be shipped at the lowest rate of freight offering, except in any case where a ship is $ent expressly for a cargo.-We are, &c. " john senior & Co. " william senior. "Mr. Mead excludes the Measteg iron.-W. S." SM. &W.83& H1GGINS V. SENIOR 1279 The plaintiffs put in evidence the sold note only, contending that that was the Contract between the parties. No iron ever was delivered, though frequent applications were made to the defendant to deliver it according to the contract, both by letter and otherwise. Mead was called [836] as a witness for the plaintiff's, and he proved that there had been a contract made out for Varteg iron on the company's account, which he had made out, but that William Senior gave him the above sold note...
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