Hinde against Whitehouse and Galan
| Jurisdiction | England & Wales |
| Judgment Date | 20 June 1806 |
| Date | 20 June 1806 |
| Court | Court of the King's Bench |
English Reports Citation: 103 E.R. 216
IN THE COURT OF KING'S BENCH.
Referred to, Emmerson v. Heelis, 1809, 2 Taunt. 45. Applied, Kenworthy v. Schofield, 1824, 2 B. & C. 947. Discussed, North Staffordshire Railway v. Peek, 1860-63, El. Bl. & El. 1001; 10 H. L. C. 473. Applied, Carruthers v. Payne, 1828, 5 Bing. 277. Referred to, Alexander v. Gardner, 1835, 1 Bing. N. C. 678. Applied; Turley v. Bates, 1863, 2 H. & C. 209. Adopted, Sweeting v. turner, 1872, L. R. 7 Q. B. 313. Considered, Peirce v. Corf, 1874, L. R. 9 Q. B. 215. Referred to, Oliver v. Hunting, 1890, 44 Ch. D. 208.
hinde against whitehouse and galan. Friday, June 20th, 1806. Sugars, which were in the King's warehouse under the locks of the King and the owner, from whence they could not be removed till the duties were paid, were advertised for sale by auction on the 20th of September; when samples of half a pound weight from each hogshead, drawn after the sugars had been weighed and the duties ascertained at the King's beam, were produced to the bidders assembled ; and the auctioneer, (having then before him the printed catalogue of sale, containing the lots, marks, and number of hdds., and the gross weights of the sugars; and also another written paper containing the conditions of sale, which latter he read to the bidders, as the conditions on which the sugars mentioned in the catalogue were to be sold; but the two papers were neither externally annexed nor contained any internal reference to each other,) wrote down on the catalogue the name of the highest bidder, and the sum bid for the particular lots; having first informed the bidders that the duties were not then paid, but would be paid on the morrow by the seller: and after the biddings closed, the samples were delivered to and accepted by the purchaser, according to the usual practice at such sales, as part of his purchase, to make up the quantity marked as weighed at the King's beam; and a fire having consumed the sugars on the 22d of September, before the duties could be paid, and without the default of the seller: Held, 1st, that at common law there was a sale to change the property at the time and place of auction; though the goods could not be delivered till the duties were paid, which was known at the time; such being the manifest intent of the contracting parties : and consequently that the loss must fall upon the buyer. 2dly, that assuming a sale of goods by auction to be within the 17th section of the Statute of Frauds 29 Car. 2, c. 3, (which whether it were or not was not now necessary to be decided,) and therefore requiring to be evidenced by a memorandum in writing 7 EAST, 559. HINDE V. WHITEHOUSE 217 of the bargain signed by the party to be charged, or his authorized agent, except . where the buyer shall receive part of the goods sold; yet here the delivery to and acceptance of the samples by the buyer ; which delivery was made as part of the thing purchased, and upon which the duties were paid; at any rate took the case out of the statute. 3dly, it seems that taking sales of goods by auction to be within the 17th section, the auctioneer or broker, who is a middle man, must be taken to be the agent of both parties, so as to bind the purchaser by his signature, [Referred to, Emmerson v. Heelis, 1809, 2 Taunt. 45. Applied, Ken-worthy v. Schqfield, 1824, 2 B. & G. 947. Discussed, North Staffordshire Railway v. Peek, 1860-63, El. Bl. & El. 1001; 10 H. L. C. 473. Applied, Carruthers v. Payne, 1828, 5 Bing. 277. Referred to, Alexander v. Gardner, 1835, 1 Bing. N. C. 678. Applied; Turley v. Bates, 1863, 2 H. & C. 209. Adopted, Sweeting v. Turner, 1872, L. R. 7 Q. B. 313. Considered, Peirce v. Corf, 1874, L. R. 9 Q. B. 215. Referred to, Oliver v. Hunting, 1890, 44 Ch. D. 208.] In assumpsit the plaintiff declared, that on the 20th of September 1805, at Liverpool, he was lawfully possessed of 300 hhds. of sugar, then lying in a certain warehouse there, and caused them to be put up for sale by public auction upon the following conditions; "The highest [559] bidder to be the purchaser, and in case of dispute the lot to be put up again. The sugars to be taken with all faults and defects as they now are, at the King's weights and tares, with the allowance of draft, or re-weighed giving up the draft. To be at the purchaser's risk from the time of sale; and to be positively removed within two months, or rent to be paid for any longer time they may remain. Payment to be made on delivery of invoices by approved bills on London to the satisfaction of the seller not exceeding 3 months date. Not to advance less than 3d. per cwt. at each bidding." Of which conditions the defendants had notice. That the defendants were the highest bidders at such sale for two lots of the said sugars, consisting of 27 hdds., and became purchasers of the same at the price of 74s. per cwt. at the King's weights and tares, with the allowance of draft. That the price of the 27 hdds. amounted to 12651. 11s. 3d. That the plaintiff on the 23d of September delivered to the defendants an invoice of the 27 hdds., whereupon they became liable to pay him the 12651. 11s. 3d. But that the defendants did not make payment, &c. There were other counts laying the contract more generally. To all which the defendants pleaded the general issue. The cause was tried before Rooke J. at the last assizes at Lancaster; and the point in dispute was, whether the plaintiff or defendants should bear the loss of the sugars in question, which were knocked down to the defendants, by the auctioneer, at the sale on the 20th of September, and which were burned on the 22d of September by an accidental fire in one of the King's warehouses at Liverpool, where they were deposited. It was proved that the sugars, after being landed at...
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