Margaret Brockbank (Administratrix, Company of John Brockbank, Deceased) v William Anderson and Robert Wise
| Jurisdiction | England & Wales |
| Judgment Date | 12 February 1844 |
| Date | 12 February 1844 |
| Court | Court of Common Pleas |
English Reports Citation: 135 E.R. 124
IN THE COURT OF COMMON PLEAS.
S. C. 7 Scott, N. R. 813; 13 L. J. C. P. 102.
[295] margaret brockbank (Administratrix, &c. of John Brockbank, Deceased) i). william anderson and robert wise. Feb. 12, 1844. - , [S. 0. 7 Scott, K R. 813; 13 L. J. C. P. 102.] " " By an agreement between A., the owner of a ship, and B. and C., the ship was to be placed under the management of B. and C., to load outwards from Liverpool with a cargo for The Cape, Singapore, &c., consigned to their -houses at these several ports. Before proceeding on the voyage, the captain received from B. and C. a letter of instructions, desiring him to proceed on his return from Singapore to The Cape, in which letter was the following passage :-" on your arrival there, you will call upon our managing partner D., and follow such directions there as he may give you regarding such part of the cargo as is consigned to-,his firm, and which he requires to be landed there." At Singapore, B. and C. shipped coffee for London, to be delivered to the shippers' order, pursuant to bills of lading signed by the captain, and indorsed, without his knowledge, to certain'persons in London. When the ship arrived at The Cape, the coffee being found to be in a heated state, was, by the orders of D., unshipped and sold. A. was afterwards compelled to pay the consignees of the coffee for the non-delivery thereof. D. being examined upon interrogatories, expressly stated that he was not a partner with B. and C.-In case brought by A. against B. and C., for wrongfully unshipping and selling certain coffee at The Cape of Good Hope, the declaration alleged, that " the defendants, by their agents, at the said several ports, had and exercised the management and direction, ordering, control and government of the said ship, touching and in relation to the loading and unloading and freighting the same, and the consignment and disposition of the outward and homeward cargo thereof."-Held, that the description given of D. by B. and C. in their letter of instructions, was not con-conclusive on them as to the point of his being a partner ; and that, with respect to an objection taken to the admissibility of his evidence, the statement made by him in his examination upon interrogatories had the same effect as if it had been made in an examination upon the voir dire.-Held, also, that the allegation in the declaration as to the management, &c. of the ship was not proved, and therefore that the plaintiff was not entitled to recover upon the special count.-Held, also, that having, as ship-owner, the possession of, and a special property in, the coffee which had been wrongfully sold at The Cape, he was entitled to recover on a count in trover.-The court will not take upon themselves the office of a jury, to draw inferences from facts, where such facts are to be decided upon the conflicting testimony of witnesses, whose credit is questioned. Case. The first count of the declaration stated, that, and in the lifetime of John Brockbank, since deceased, he, the said John Brockbank, was the owner [296] of a certain ship or vessel called the " Lady Gordon," and the defendants were merchants and ship-brokers, carrying on trade and business as such merchants and ship-brokers at London and Liverpool, in England, under the name, style and firm of Anderson, Wise and Co.; and also carrying on business by themselves and their agents at The Cape of Good Hope, under the name, style and firm -of William Anderson, senior, and Co.; and also carrying on business at Batavia and Singapore, under the name, style and firm of Robert Wise and Co.; and that, in the lifetime of J. Brockbank, and before the committing, &c., and whilst the said J. B. was such owner, and the defendants were so carrying on their trade and business in manner aforesaid, to wit, on the 5th of March 1831, an agreement was made and entered into by and between J. Brockbank, owner of the ship " Lady Gordon," of Whitehaven, and the defendants, Messrs. Anderson, Wise and Co., of Liverpool, merchants: by an agreement the said (a) As to the first point, vide The Queen v. The Company of Proprietors of the Leicestershire and Northamptonshire Union Canal Company, 3 Carrow and Oliver's Railway and Canal Cases, 1. ,7 MAN. &G. 297. BEOOKBANK V.. ANDERSON 125 -ship "Lady Gordon." was to be placed under the management of the defendants, to load .outwards from Liverpool with a general cargo for The Cape of Good Hope, JBatayia, Singapore, and, if agreeable to the captain and Robert Wise and Co., in India, 'to Manilla; the defendants to ship, in the said ship, all the goods which they may have on consignment to The Cape of Good Hope, Batavia, Singapore, and Manilla, and" also use their best exertions in conjunction with Messrs. Ashley, Brothers, as ship-agents, to procure goods on freight for the above places, both from their o"wn particular connections and from merchants generally;- the said J. Brockbank . to -allow" the defendants and brokers to do the ship's business at the custom-house in Liverpool, and to pay the customary commission of 5 per cent, on all freight procured for- the said ship to the said merchants and brokers : the said owner also engaged to receive on board the said ship, goods at the [297] same rate of freight as was currently given to The Cape of Good Hope, Batavia, Singapore, and Manilla; and, on the arrival of the ship at The Cape of Good Hope, the house of William Anderson, senior, and Co., there, to have the consignment of the said ship during her stay there, which was not to exceed twelve days; and, on the arrival of the ship at the said ports of Batavia, Singapore and Manilla, the houses there, of Messrs. Robert Wise and Co. were to use their,best endeavours to procure good employment, or freight, for the said ship to return to Europe, for all of which they were to receive the customary commission : and that it was further agreed, that the said ship should call at the ports of Batavia and The Cape of Good Hope on her passage to Europe, if required by the said merchants and that the ship should be consigned to R. Wise and Co. and W. Anderson, senior, and Co., respectively on the said homeward voyage; and, should the ship return to London or Liverpool, A. W. Anderson, senior, and Co., at those respective ports, were to transact the business inwards. The ship not to be detained longer in Batavia, in discharging, than fifteen days. The declaration then proceeded to state that one Nathaniel" Harmer was appointed captain and master of the ship for the said voyage; ' and set out certain instructions, dated the 2d of May 1831, from the defendants to Harmer, so being captain of the said vessel as aforesaid, by which he was directed to apply to the defendants' partners at Singapore, and to call at The Cape of Good Hope on the voyage homewards, and to land there what part of his homeward cargo the house there should require. The declaration then stated that the said ship was, according to the said agreement, placed under the management of the defendants to load outward with a general cargo, and, on the 1st of November 1831, arrived at Singapore, where the defendants, by Robert Wise and Co. their agents there, [298] shipped, as part of her homeward cargo, 657 bags of coffee, as and for freight, to be conveyed on board the said ship from Singapore to London, and there to be delivered to the order of the said shippersr pursuant to bills of lading thereof signed by the captain : that the.ship sailed from Singapore: that Harmer so being such captain, did, in all respects, duly comply with the said letter of instructions, and did duly proceed with the ship to the several ports in. the said instructions' mentioned; and that the defendants, by their agents aforesaid, at the said several ports, had the consignment of the said ship or vessel, according to the said agreement, and at those several ports respectively, had and exercised, and claimed to have and exercise, the management and direction, ordering, control and government of the said ship -Or vessel, touching, and in relation to, the -loading and unloading, and freighting of the...
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