Hoare and Others v Dresser and Another
| Jurisdiction | England & Wales |
| Judgment Date | 21 March 1859 |
| Date | 21 March 1859 |
| Court | House of Lords |
English Reports Citation: 11 E.R. 116
House of Lords
Mews' Dig. ii. 1524; xiii. 362, 1793. S.C. 28 L.J. Ch. 611; 5 Jur. N.S. 371; 7 W.R. 374. See Shepherd v. Harrison, 1871, L.R. 5 H.L. 116; Cahn v. Pockett's S.S. Co., 1899, 4 Com. Cas. 168; and cf. Sale of Goods Act, 1893 (56 and 57 Vict. c. 71), s. 19 (3); and Imperial Ottoman Bank v. Cowan, 1874, 31 L.T. 336.
Principal and Agent - Bills of Lading, Acceptances - Lien - Cargoes - - Appropriation.
VII H.L.C., 291 HOARE V. DBESSER [1859] RICHARD HOARE and Others,-Appellants; HENRY DRESSER, J. NORRBOM,- Respondents [March 14, 15, 17, 18, 21, 1859]. [Mews' Dig. ii. 1524; xiii. 362, 1793. S.C. 28 L.J. Ch. 611; 5 Jur. N.S. 371; 7 W.R. 374. See Shepherd v. Harrison, 1871, L.R. 5 ILL, 116; Cahn v. Pockett's S.S. Co., 1899, 4 Com. Gas. 168; and cf. Sale of Goods Act, 1893 (56 and 57 Viet. c. 71), s. 19 (3); and Imperial Ottoman Bank v. Cowan, 1874, 31 L.T. 336.] Principal and Agent-Bills of Lading, Acceptances-Lien-Cargoes--Appropriation. If there has been, an engagement to appropriate to a certain individual a particular cargo-, or a particular part of a larger cargo, asi, for example, " one hundred quarters of wheat out of five hundred quarters which I have now sent," in either of these cases equity will interfere to enforce performance of the engagement; but though the person who has made an engagement to sell a certain quantity of property, may be shown to possess such a quantity of that property, equity will not treat the property SO' possessed as available for the engagement. The agent and manager of the business of a London firm who- resided in Sweden, gave to a merchant there about to draw bills on that firm an. assurance that the bills would be accepted; whereon bills of lading of cargoes of timber were transmitted to the London firm, and bills of exchange were drawn against them: Held, that this assurance, tho-ugh thus made and acted on, was not as between the London firm and the foreign merchants to be treated [291] as equivalent to an acceptance of the bills, so as to vest in the London firm legal rights from the time of such assurance given. N., a timber merchant in Sweden, had dealings with D., a merchant in London, and sent him cargoes of timber, which D. disposed of on a del credere commission, and in respect of which N. drew bills, on D. In September 1853 the accounts between them were unsettled, but D. claimed a considerable balance as due to himself. On the 29th September N. wrote to' say that he expected bills of lading from two- captains (whom he named), and that he had drawn for a certain amount on D. On the 24th October H. and Co., merchants in London, received through K., their agent, and the manager of their business in Sweden, a, letter from N., in which he enclosed a, letter to' D., whereby he drew on D. for 1312, which he claimed as due to himself from D. In the letter to H. and Co., N. desired that this enclosure might be handed to' D.; and on his accepting the draft, and acknowledging the correctness of an accompanying account, and the fact that N. had duly delivered, all the cargoes and timber contracted for between them, except one, particularly named, that then H. and Co', were to hand to D. the three bills of lading of three ships, also named; but if he would not accept the draft, nor give the required acknowledgment, then H. and Co, were to insure the cargoes, and sell them; and N. drew on H. and Co. drafts to the amount of 1300. This letter was read to D., who hesitated to accept the draft for 1312, declaring that he was largely in advance to N. It was left in his bill-box for acceptance on the morning of the 24th October, and a formal letter, demanding compliance with the conditions of N., was written to him by H. and Co. In the course of the same day D. wrote to H. and Co., requesting the loan of the bills of lading, saying, " We will return them to you, if from any cause we do not accept the bill for 1312." They were sent to him. On the same day, but after D.'s request had been complied with, H. and Co. accepted the first of N.'s drafts, and wrote to him that they would " give protection " to all. On the morning of the 25th October a, clerk of H. and Co. learned at D.'s counting-house that the draft for 1312 had not been accepted; but in the middle of that day it was sent to H. and, Co. accepted. D., however, refused to give up the bills of lading, and, on the advice of a solicitor (obtained before he had accepted the draft for 1312), attached the goods in the hands of H. and Co. They 116 HOARE V. DRESSER [1859] VII H.L.C., 292 brought an action against him to recover the bills of lading, and he filed a bill to stay the action: Held, that he had not such equitable right on account of anything occurring before the 24th October as would prevail against the legal rights which H. and Co. acquired on that day. [292] This was an appeal against a, decretal order of the Lords Justice's, by which they varied a decree of the Vice-Chancellor, Kindersley, made in favour of the Appellants. The Appellants are merchants, carrying on business in. London, under the firm of Hoare, Burton and Co-. The Kespondent Dresser is also a, merchant, carrying on business in London, under the name of Henry Dresser and Co. The other Kespondent, Norrbom, is a timber merchant in Sweden. In November 1852, a correspondence was opened between Norrbom and Dresser, by which Dresser undertook to sell, on a del credere commission, for Norrbom, 2000 loads of fir timber, at 60s. a load, to be shipped from Sweden. Dresser, in pursuance of this commission, in the months of December 1852 and March 1853, entered into contracts for the sale of upwards of 1500 loads of timber, 500 loads for Bristol, the rest for Gloucester and London. There was some delay in sending the cargoes of timber, of which Dresser complained to Norrbom,; but, on the 30th June 1853, Norrbom wrote to Dresser, stating, that he had received two charter parties for two of the cargoes, and hoped to get one for the third; and requesting, as the three cargoes were forthcoming, and would have toi be paid for by the end of July, that Dresser would give him authority to draw on them fo r 1000 at ninety days' date. Dresser, in reply to this letter, on the 19th July 1853, consented to' Norrbom's drawing upon him as requested. Norrbom accordingly, on the 4th of August, advised Dresser, that he had that day ordered Mr. Frestadius to draw on Dresser for his account 500, at ninety days' date; and he also enclosed to Dresser copies of two charter parties of two vessels, called the Verene and the Christiane, in which two vessels the cargoes of timber for [293] Bristol and for London were afterwards shipped. The bill for 500 was accepted by Dresser, and paid at maturity. On the 24th August 1853, Dresser wrote to Norrbom, complaining of his conduct, and saying, " We have sold the goods delivered for your account, and as we are answerable for their delivery, we have only to' request you to arrange so- that the sold cargoes be shipped as soon as possible this year; in contrary case, and although, with the greatest efforts, we have succeeded to silence the buyers for the present moment, we anticipate great difficulties, together with lawsuits and damages." On the 6th September 1853, Norrbom wrote te Dresser, that, in consequence of the consent granted him in the letter of the 19th July, and as the 500 already drawn would go against a cargo to Littlehampton, he had requested Frestadius to1 draw upon Dresser for his account 500, at ninety days. This bill for 500 was also* accepted, and when due, paid by Dresser. On the 29th September 1853, Norrbom wrote to Dresser; stating that he expected to receive by the next post the bills of lading of the Verene and the Christiane, and that the captains of two other vessels would complete their loading next week, and that in a few posts he would send the shipping documents of all the four cargoes: and he added, " As an advance of the freight to these captains, I have been compelled to request Frestadius to draw upon, you for my account for 200, at ninety days, which I request you to honour to my debit." This bill for 200 was not accepted by Dresser. No cargo of timber was shipped for Gloucester. The shipping documents, in respect of the two cargoes of timber by the Verene and the Christiane were not sent to Dresser, but were forwarded to the Appellants, Hoare, Buxton and Co. On the 22d October 1853, the Appellants received from Mr. Frestadius, one of their correspondents in Sweden, a [294] letter, which wag in the Swedish language, and in the following terms: - " Messrs. Hoare, Buxton and Co., London. " Stockholm, 14th October 1853. " I beg to refer to my last respects of the 12th instant, in which I. advise my draft of 300, and I have now to advise that I this day, according to the order of Mr. Joh. 117 VII H.L.C., 295 HO ARE V. DRESSER [1859] Norrbom, of Hernosand, have drawn on you 1300 at 90 d/d, in the following bills, which I beg you will accept to the said friend's debit. " 100 to the order of W. and L. Robinson. 220 S. A. Edman. 980 Th. Engstrom. 1300 sterling. " Advice letter of these drafts from Mr. Norrbom is forwarded to Mr. Kleman, who has promised to forward it to you, and write thereabouts.-A. W. Frestadius." On the morning of the 24th October 1853, the Appellants received from Mr. Kleman, at that time their agent, and the manager of their business in Sweden, the following letter: - " Stockholm, 17th October 1853. " Enclosed you will find a letter from Mr. J. Norrbom, of Hernosand, with documents oi wood shipments on account of Messrs. Henry Dresser and Co., and a draft on them for 1312 Is. 9d., against which he has authorised Mr. A. W. Frestadius to draw upon you at 90 d/d for 1300, and knowing Dresser and Co. to be very good, I have not hesitated to assure Mr. Frestadius that you will...
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