Kingsford and Another v Merry
| Jurisdiction | England & Wales |
| Judgment Date | 27 November 1856 |
| Date | 27 November 1856 |
| Court | Exchequer |
English Reports Citation: 156 E.R. 1299
IN THE EXCHEQUER CHAMBER.
S C 26 L J Ex. 83; 3 Jur (N S) 68, 5 W R 151. Followed, Higgonsv. Burton 1857, 26 L. J. Ex 342, 5 W R 683. Applied, Prase v. Gloahee, The Marse Joseph, 1866, L. R 1 P C. 229; In re Orerend, Gurney and Company: Ex parte oakes & peck, 1867, L R. 3 Eq 629; affirmed, nominee In re Orereul, Gurney and Company, Oakes v. Turquand, L. R. 2 H L 325, Fuentes v Montis, 1868, L. R 3 C P. 282. affirmed, L. R. 4 C. P. 93, Stone v City and County Bank, 1878, 3 C. P D. 308. Discussed, Henderson v. Williams, [1895] 1 Q. B. 321 Adopted, cole v. North Western Bank, 1875, L R. 10 C. P 378Referred to, Loughnan v Barry, 1872, Ir R 6 C. L 457, Johnson v Credit Lyonnars, 1877, 3 C. P. D 40; Farquharson Brothers v. King, [1901] 2 K B 709 reversed, [1902] A C. 325 Oppenhermer Frazer and Wyatt, [1907] 1 K. B 525
[503] michaelmas vacation, 20 vect. in the exchequer chamber. (Appeal from the Court of Exchequer ) KlNOSFORD AND another i merry. Nov. 27, 1856 -On appeal under the 34th section of the Common Law Piocedure Act, 1851, if a rule nisi be granted, cause must be shewn in the first instance, arid only one counsel on each side will be heard -The statement of the case does not preclude the respondent from objecting that no appeal will lie-In April, 1853, .7 & Co, brokers, sold for the plaintiffs, manufacturing chemists, two tons of tartanc acid, to be delivered in November In October, 1853, Gr & Co , brokers, sold for the plaintiffs two tons of tartanc acid, to be also delivered in November J & Co and Gr. & Co. respectively sent to the plaintiffs sold notes, not disclosing any principal. In November, a clerk of one Anderson, a merchant, left at the plaintiffs' counting house two delivery orders. One was from J & Co., for delivery to T. Broomhall or order of one of the tons of acid this order was indorsed by T Broomhall, " Deliver to my order." The other delivery order was from G & Co , for delivery to T. Broomhall or order of the two tons of acid : this order was indorsed, " T. Broomhall-Deliver to W. Leask: J Ellis-Deliver at Custom House Quay to my sub-order. W. Leask." Anderson induced Leask to purchase from Ellis the acid for him, upon a false representation that he was acting on behalf of V. N. & Co Ellis thereupon gave to Leask the delivery orders which he had received from Broomhall. Leask indorsed the orders specially deliverable to himself, and delivered them to Anderson for the purpose of enabling him to inspect the acid On the 28th of November Anderson went to the plaintiffs and stated that he had 1300 KTNGRFORD V. MERRY 1 H. & N. 504. purchased from Leask the acid mentioned in the delivery orders, and he requested the plaintiffs to deliver it at the Custom House Quay for him On the faith of this statement, the plaintiffs gave Anderson a delivery order and the acid was transferred into his name Anderson then obtained vvai rants and pledged the acid with the defendant for a bona fide advance.-Held, in the Exchequer Chamber, (reversing the judgment of the Court of Exchequer) that under these circumstances, the relation of vendor and vendee did not subsist between the plaintiffs and Anderson, neither did the property in the acid pass to Anderson , and that mere possession, with no further indiria of title than the delivery orcleis was not sufficient to entitle the defendant, though a bona tide pawnee, to resist the claim of the plaintiffs in an action of tiover [8 C 26 L J Ex. 83 ; 3 Jur (N S ) 68 , 5 W R 151. Followed, Higgont v. Bui ton, 1857, 26 L. J. Ex .342, 5 W R 683. Applied, Peaw v. Gloahcc, The Mane, Joseph* 1866, L. R, 1 P C. 229; In ?e OveiKud, Gwney a-nd Company : ej'j a?te Oak^&Pmk^ 1867, L R. 3 Eq 629 ; affirmed, nomine In ie Oieieud, Gurney and Company, OaLe^v. Twyuand, 1867, L R 2 H L 325, Fuentr* v Monti^ 1868, L. R 3C P. 282. affirmed, L. R. 4 C. P. 93 , Stone \ City and County Bank, 1878, 3 C. P D. 308. Discussed, Ilendeiswi v. William*^, [1895] 1 Q B. 521 Adopted, Cole v. Noith fre^tern Bank, 1875, L R. 10 C. P 375 Referied to, Loughnan v Hany, 1872, Ir R 6 C. L 457, Johnson v C-tedit Li/mmai^, 1877, ò C. P D 40; FatquJun^m Blotter v. King, [1901] 2KB 701) reversed, [1902] A C. 325 Oppenhemiei v. Fra:er and Wyatt, [1907] 1 K. B 525 ] This was an appeal under the 34th section of the Common Law Procedure Act, 1854, the Court having refused a rule (a) to shew cause why the veidict should not be enteied for the plaintiffs puisuant to leave reserved The case stated by the paities (so far as material) was as follows - The declaration was foi the conversion by the defendant of three tons of tartanc acid of the plaintiffs The pleas were, not guilty, and not possessed; upon which issues were joined. [504] The cause was tiied before Pollock, C. B, at the London sittings after Michaelmas Term, 1855, when the following facts were proved by the witnesses for the plaintiffs The plaintiffs were manufacturing chemists at Bow Common, in the county of Middlesex, and the defendant was a drug broker, carrying on business at Fenchurch Street, in the city of London. In April, 1853, Messrs Jones, Thompson fe Co., of Liverpool, sold for the plaintiffs six tons of tartanc acid, of which two tons were to be delivered in the next November, and they sent to the plaintiff's the following sold note .- " B. Exchange Buildings, Liverpool, "Messrs. Kingsford & Swinford "April 25, 1853 " We have this day sold for you the following goods, 6 Tons Tartaric Acid at Is. 4d. per Ib. as under,- 'cviz to Selves, "One Ton to be delivered in London in all Sept. "To Mi. James Roe One Ton do. do. Oct ,-.-, "Two Tons do do Nov "' " Two Tons do do Dec " Customary allowances "Payment Cash in 14 days from date of each Invoice, less 5% disct.-Respectfully Yours, "jones, thompson & Co, Brokers." Otn the 14th October, 1853, Messrs Gray & Co , of Mincing Lane, brokers, sold for the plaintiffs two tons of tartaric acid, to be delivered also in the month of November, and the following was the sold note sent by them to the plaintiffs ò- "Messrs. Kingsford & Swinford. "London, 14th Oct. 1853. "We have this day sold for your account 2 Tons Tartaric Acid Crystals of good () See the case 11 Exch. 577. 1 H & N 505. KIM4hFOUL r. MERRY 1301 merchantable quality at Is. 9d. per Ib to be dehveted in November next - Customary Conditions - Piompt 14 days after delivery - Discount 5 pei Cent "Brokerage 1 pei Cent - Your obed Servants, "GRAV& Co" [505] In pursuance of these contracts, invoices were, un November 1st, L s'5o, sent in the usual com be by the plamtitls to, and received by, Messrs .(ones, Thompson fe Co , and Gray & Co , about the middle of the same month Aftei the sending of the invoices, two delivery orders wete left at the counting house of the plaintitfs by a cleik of Anderson, which wete the only documents the plaiutrtts tecei\ed to a ouch for the iepresent;itions of Anderson, as to his being the owner of the acid, before they transferred it to his name, as hereinafter mentioned One of the delivery was in the followin form - ò "Measis. fungsford &, Swrnford. "Liverpool, 4 Nov ISo.) 41 Please deliver to Mr Thomas Bioomhall, or order, One Ton Tartat ic Acid, part òof Two tons Invoiced 1st hist On payment of £149, 2s lid, and oblige, - Yours despectf ully, " jones, thompson & Co. " Bow Common, London " This ordei was, at the time it was so left...
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