Hutchinson and Another, Assignees of Hunt, a Bankrupt, against Heyworth and Others
| Jurisdiction | England & Wales |
| Judgment Date | 01 December 1838 |
| Date | 01 December 1838 |
| Court | Court of the Queen's Bench |
English Reports Citation: 112 E.R. 1254
IN THE COURT OF QUEEN'S BENCH
S. C. 1 P. & D. 266; W. W. & D. 730; 8 L. J. Q. B. 17.
[375] hutchinson and another, Assignees of Hunt, a Bankrupt, against heyworth and others. Saturday, December 1st, 1838. H., a manufacturer, had been accustomed to consign goods by the agency of O. and Co., commission merchants, to houses in America, for sale on H.'s account. O. and Co. made advances to H. on the consignments, received the proceeds as his agents, and accounted to him, repaying themselves their commission, advances, and other charges. In 1831 H., being indebted to O. arid Co. for such advances and charges, and likewise owing 50001. to his own bankers, wrote to O. and Co., authorising them, after paying themselves their balance out of the net proceeds of H.'s shipments down to that date, to pay R. and Co., the bankers, half the remainder of such proceeds, so that the payment should not exceed 50001. 0. and Co. thereupon wrote to R. and Co., stating that they, agreeably to H.'s authority, engaged to pay R. and Co. (after liquidating their own balance) a proportion of the remaining proceeds, &c. (as in H.'s letter), in consideration of R. and Co. guaranteeing 0. and Co. from claims by any other party in consequence of such payment. R. and Co. then wrote to O. and Co. that, understanding from H. that O. and Co. had agreed to pay any surplus balance, &c. (as in H.'s letter), they, R. and Co., agreed to guarantee O. and Co. against such other claims. A few days before this correspondence, H. had transmitted to 0. and Co. a letter of authority resembling that afterwards sent, and had seen a draft of a letter from them to R. and Co., like that afterwards sent by 0. and Co. to R. and Co., claiming a guarantee as above : but this first authority was revoked, and never acted upon. In 1833 H. became bankrupt. The assignees gave 0. and Co. notice not to make any payments out of H.'s effects, except to them. Afterwards O. and Co. received proceeds of sales from the houses abroad, and paid them over to R. and Co. according to the authority given by H. The assignees sued O. and Co. for the amount as money had and received to their use: Held, 1. That the letter of H., acted upon by 0. and Co., did not need a bill stamp under stat. 55 G. 3, c. 184, Sched. part 1, tit. Inland Bill, since it neither required payment to bearer or order, nor was delivered to the payee or any person on his behalf. For the schedule means a delivery either personally to the payee, or to his agent or representative, and not to the person on whom the order is made. 2. That, if the letter had been so delivered, the sum payable was sufficiently specified or ascertainable to bring it within the schedule as an order for payment of money out of a particular fund which may or may not be available, &c. 3. That the transaction between H., O. and Co., and R. and Co., was either a valid appropria- 9 AD. ft B. 376. HUTCHINSON V. HEYWOETH 1255 tioo, or equitable assignment, of funds to the amount of 50001. in favour of R. and Co., and was not revoked by H.'s bankruptcy. [S. C. 1 P. & D. 266; W. W. & D. 730; 8 L. J. Q. B. 17.] Assumpsit for money had and received. Pleas. 1. Non assurapsit. 2. Payment before action brought. 3. A payment into Court. On the trial before Lord Abinger C.B., at the Liverpool Summer Assizes, 1835, a verdict was found for the plaintiffs, subject to the opinion of this Court on the following case. The action was brought by the plaintiffs as the assignees of Hunt, to recover 50001. and interest. The bankrupt, William Hunt, is the surviving partner of the [376] firm of Hunt and Jenkinson, woollen manufacturers at Rochdale. The defendants are commission merchants and agents at Liverpool, under the firm of Ormerod Heyworth and Co. For many years preceding the bankruptcy, Hunt and Jenkinson had been in the habit of consigning their manufactured goods through the defendants to certain mercantile establishments in America, which are mentioned in the letters hereinafter set out, and which had been recommended to them by the defendants for sale on account of Hunt and J., and to an immense amount; and, by the course of dealing between the parties, Ormerod Heyworth and Co. made advances to Hunt and J. upon such consignments. The proceeds of the sales were to be remitted by the foreign houses to the defendants in Liverpool, on account of, and as the agents of, Hunt and J.; and the defendants were to account for the same to Hunt and J. after repaying themselves thereout their commission, advances, and other charges. The defendants were partners in each of those foreign establishments; but the foreign partners in those foreign houses were not partners in the house of Ormerod Heyworth and Co. This course of dealing continued for upwards of twelve years, the proceeds of all sales being regularly remitted to the defendants, who regularly advised Hunt and J. thereof, and placed the same to their credit, or paid over the amount, as circumstances required; and the defendants made up and balanced and regularly transmitted to Hunt and J., and to Hunt after Jenkinson's death, and to the plaintiffs after Hunt's bankruptcy, their accounts current of all the said transactions, half yearly, up to every 30th June and 31st [377] December, which have been regularly approved of, except as to the 50001. in question and interest thereon. No consignments were made after 30th September 1831. At that time the amount of Hunt and J.'s goods shipped abroad through the defendants, and unsold, was from 39,0001. to 40,0001.; and the amount of remittances received by the defendants subsequent to September 1831, on account of consignments previous thereto, is about 43,5001. Hunt and J. were at that time indebted to the defendants in a large sum, for advances in anticipation of sales, and for commissions and charges. Hunt and J. had also then become indebted in upwards of 50001. to Clement Royds and Co., of Rochdale, their bankers, which debt remained unsatisfied until the time of the payment of 50001. to Royds and Co., as after mentioned. On 23d September 1831, Hunt and J., being so indebted as aforesaid, wrote and sent the following letter to the defendants. Messrs. Ormerod Heyworth and Co. Liverpool, September 23d, 1831. Gentlemen,-We hereby give you authority to pay to Messrs. Royds and Company, bankers, Rochdale, after you have paid yourselves the balance we owe you, from the net proceeds of our shipments to your foreign establishments up to the present date, one half of the remainder of the proceeds of said shipments.--We remain, &c. hunt and jenkinson. In answer to which the defendants, on the same day, sent to Hunt and J. the following enclosed in another letter. [378] Messrs. Royds and Co., Bankers, Rochdale. Gentlemen,-We have this day received an authority from Messrs. Hunt and Jenkinson to pay you, after we have liquidated the balance they owe to us from the first proceeds of their shipments to our foreign establishments up to the present date, one half of the remainder of the proceeds of the said shipments, which at a moderate estimate we think will amount to about 47001. This authority we engage to comply with, on the condition of your guaranteeing us from any claim which may be made 1256 HUTCHINSON V. HEYWORTH 9 AD. & E. 379. on us by any other party in consequence of such payment having been made to you.- We remain, &c., ormerod heyworth and Co, On 28th September 1831, Hunt and J. wrote and sent the following letter to the defendants. Messrs. Ormerod Heyworth and Co. Liverpool, 28th September, 1831. Gentlemen,-Your letter to Messrs. Eoyds and Co. of the 23d instant, enclosed in yours of the same date, we did not present to them, thinking it would not be satis factory ; and, having returned to you the same, we now authorise you to pay to Messrs. Royds and Co. (having revoked the former oider in their favour), after you have paid yourselves the balance we owe you from the net proceeds of our shipments to your foreign establishments to the present date, one half of the remainder of the proceeds of said shipments, provided the same shall not exceed the sum of 50001.- We remain, &c., HUNT AND JENKINSON. [379] The defendants on the same day wrote and sent the following letter to Royds and Co. Messrs. Royds and Co. Liverpool, 28th September, 1831. Gentlemen,-We refer to ours of the 23d instant, which has been returned to us by Messrs Hunt and Jenkinson, not being satisfactory to them, which we now revoke. We therefore now, agreeably with their authority, engage to pay you, after we have liquidated the balance they owe to us from the first proceeds of their shipments to our foreign establishments up to the present date, a proportion of the remainder of such proceeds as may come into our possession, which we expect will be to a considerable amount, so as not to exceed the sura of 50001., in consideration of your guaranteeing us from any claim which may be made on us by any other party, in consequence of such payment having been made to you.-We remain, &c. ormbrod heyworth and Co. They received the following answer from Royds and Co. Messrs. Oi-raerod Heyworth and Co. Gentlemen,-Understanding from our friends, Messrs. Hunt and Jenkinsou, that you have agreed to pay over to us one half of any surplus balance arising from the proceeds of goods consigned to your foreign establishments up to this date after liquidating your claims against them, we hereby agree to guarantee you from any claim which may be made on you from any other party in consequence of such payments. clement royds and Co. Rochdale, 30th September, 1831. [380] At the trial, the above letters of Hunt and J. to the defendants were produced to shew the authority of Hunt and J., and were objected to as not properly stamped, the only stamp being an agreement stamp of 11. 15s. on the letter of 28th...
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