Joseph Somes and Others, - Plaintiffs in Error; The Directors of the British Empire Shipping Company, - Defendants in Error
Jurisdiction | England & Wales |
Judgment Date | 22 May 1860 |
Date | 22 May 1860 |
Court | House of Lords |
English Reports Citation: 11 E.R. 459
House of Lords
Mews' Dig. viii. 1645, 1646; xiii. 16. S.C. 30 L. J. Q.B. 229; 6 Jur. N.S. 761; 8 W.R. 707. Followed and applied in Bruce v. Everson, 1883, 1 Cab. and E. 18.
Charge for keeping a Chattel - An Enforcement of a Lien - Money had and received.
[338] JOSEPH SOMES and Others,-Plaintiffs in Error; The DIRECTORS of the BRITISH EMPIRE SHIPPING COMPANY,-Defendants in Error [May 22, I860]. [Mews' Dig. viii. 1645, 1646; xiii. 16. S.C. 30 L. J. Q.B. 229; 6 Jur. N.S. 761; 8 W.R. 707. Followed and applied in Bruce v. Everson, 1883, 1 Cab. and E. 18.] Charge for keeping a Chattel-An Enforcement of a Lien-Money had and received. A person who has a lien upon a chattel for a debt cannot, if he keeps it to enforce payment, add, to the amount for which the lien exists, a charge for keeping the chattel till the debt is paid. Where such a charge is made, and the owner of the chattel gives notice that he will pay it, but that he protests against the payment, and will seek to recover it back again, he may maintain an action for money had and received for such a purpose. A shipowner desired to have his ship repaired. On asking a shipwright for an estimate, he received one, the last item of which was " The cost of use of graving dock for the job will be from 120 to 150 guineas." The ship was repaired. When finished, the account was sent in with this item included. No objection was made to this item, but time was required for payment. The shipwright who claimed and enforced his lien on the ship for payment, urged the removal of the ship, saying that it was unnecessarily occupying his dock, that he had other ships waiting to go in, and finally, that from a certain day he should charge £21 a day for the use of the dock: Held, these facts did not constitute an implied contract on the part of the shipowner to pay the additional charge, and that (having paid it under protest) he might maintain money had and received to recover it back. Messrs. Somes, the Plaintiffs in Error (Defendants in the original action) were shipwrights, and were the owners of a graving dock used for repairing ships. The company was possessed of several vessels, one of which, the " British Empire," was in need of extensive repairs. The directors, who were throughout represented by Mr. Wilson, the ship's husband, entered into a correspondence with Messrs. Somes, represented by their general manager, Mr. Preston, as to the terms on which the ship could be repaired. In a letter, dated 25th August, 1856, Mr. Preston stated the 459 VIII H.L.C., 339 SOMES V. BRITISH EMPIRE SHIPPING CO. [i860] general cost of the required repairs, and added, " The cost [339] of use of graving dock for the job will be from 120 to 150 guineas." ..." The above prices subject to 7| per cent, discount for cash, except dock dues." The ship was sent, and the repairs were completed. The account was sent in, but there was some difficulty in providing for the payment of it. Messrs. Somes refused to give up the ship except on payment. A correspondence arose on this subject. In a letter of the 15th November, 1856, Messrs. Somes said, " the whole work is now well nigh completed, and the ship is occupying our dock to no purpose; we must, therefore, beg the favour of an early settlement." A mortgage was proposed and prepared, but not executed. On the 25th November, they wrote again, " We also give you notice, that we shall charge the owners of the ship £21 per day* for the hire of our dry dock from the time our account was delivered up to the 20th instant." On the 27th November, Messrs. Cotterill, the attornies for the company, wrote to say, that the letter of the 25th had been forwarded to them, and said, " We of course dispute Messrs. Somes'...
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