Martyn v Gray
| Jurisdiction | England & Wales |
| Judgment Date | 06 June 1863 |
| Date | 06 June 1863 |
| Court | Court of Common Pleas |
English Reports Citation: 143 E.R. 667
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
[824] martyn v. uray. June (Jth, 1863. The defendant advanced money to one G-., who was engaged in getting up a company to work a mine in Cornwall, receiving as a security a deposit of 250 shares in the mine, with an option to take the shares in satisfaction pro tanto, such option to be declared within fourteen days. The defendant never1 did in terms declare his optiorr to accept the shares : but he went down to the mine, made inquiries and obtained reports as to the condition and prospects of the mine and as to the cost of an engine to be used there, and on one occasion assisted in paying the miners' wages : he also permitted the captain of the mine, without contradiction, to represent him as a capitalist from London who had a large interest in the mine, and intended to work it vigorously.-In an action by a person who had supplied goods to the mine upon the faith of representations by the captain that the mine was being worked by a person of substance whose name he was not authorized to give, - Held, that the above was evidence from which the jury were warranted in inferring that the defendant was a partner, although his name was never mentioned,-personal identification being sufficient. This was an action for goods sold and delivered. Flea, never indebted. The cause was tried before Byles, J., at the last Spring Assizes at Bristol. The faota which appeared in evidence were as follows :-The plaintiff is a merchant carrying on business at Wadebridge, in the county of Cornwall. The claim in this action was for 2361. 7s. 4d., for "goods sold and delivered by the plaintiff to the defendant 668 MARTYN I'. GRAY 14 C. B. (N. 8.) 825. as a partner or adventurer in the Wheal Messer Mine Company," and for interest thereon. The Wheal Messer was a mine formerly worked by a cost-book company, with the adjoining mine called Tretoil, under the name of the Tretoil and Messer United Mines. One Rich was a shareholder in and also the resident manager and captain of these two united mines, and so continued until the Kith of July, 1800, when the Tretoil and Messer United Mines Company found it expedient to abandon the working of the Mesaer mine, and sell the materials thereon. After the sale, the same company continued to work the Tretoil mine. The Messer mine having been surrendered to the lord, one Gregg, in September, 1860, obtained an agreement for a lease, and proceeded to work it. He also obtained possession of Tretoil mine, and retained Rich as captain ; and he continued to work it down to the end of October, 18(11, when he was obliged to abandon it, for want of means. [825] The defendant is a colonial broker in Mincing Lane, London, in partnership with one Walker. The firm had been in the habit of making advances to Gregg on the security of warrants, whilst Gregg carried on business as a general merchant in London ; and a considerable balance was due to them upon these transactions. On the 4th of April, 1861, Gregg obtained from the defendant a further advance of 1601., for which he gave the following acknowledgment : - "London, 4th April, 1861. " Received this day of Thomas Gray & Walker the loan of one hundred and sixty pounds, in consideration of which I hereby give to them the option of taking 250 shares in the Messer Mine near Bodmin, Cornwall, at the price of l'2a. fid. per share : ifiiffh option to he, declared in fourteen days. The above loan of 1601. to go towards purchase-money of said shares in the event of Gray & Walker accepting the same : And I hereby engage to repay the said loan of 1601. at the expiration of two months from this date. Interest aa on the previous loana or advances, in the event of their declining the last-named shares." On the evening of the 4th of April, the defendant accompanied Gregg to Bodmin, from which the Tretoil mine was distant about two miles, and was present at the bank there on the following day, when the money the proceeds of the last-mentioned cheque was handed to Gregg. On this occasion, Rich, the captain of the mine, represented to the manager of the bank, in the defendant's presence, that the defendant waa one of the parties interested in the mine. The defendant also accompanied Gregg to the mine, and was by him introduced to Rich, the captain of the mine, and assisted in the payment of the miners' wages. In July, Gregg applied to the defendant's firm for a [826] further loan of I'JOL, telling him, as he had told him on previous occasions, that his expectations from the mine were such that he should in a short time be able to repay all that he had borrowed. This amount was advanced to Gregg by a cheque of the defendant's firm payable to Gregg's order, and Gregg gave the firm his acceptance for the amount at one month's date. On the 19th of July, Gregg, being then at the mine, wrote to the defendant as follows : - " Bodmin, July 19th, 1861. "Deai Sir, - I have been to the mine, and have reason to lie much more pleased. A sample of ore which Captain Rich has assayed gave 70 per cent, for tin ; but I shall be able to send you a full report, with various specimens and calculations, either before or after my return in a few days. I have had a long conversation with Mr. Stokes ; and we have at length come to terms, subject to the approval of Mr. Simmons and his wife on Monday ; and [ am to have the lease at once. It is more a matter of form that we see Simmons than anything else. The terms are very favourable. We have arranged a place for stamping a large quantity of tin. The work is only deferred for a few days, of which delay you will, I think, noon see the advantage. Stokes is to withdraw the notice. "S. G. On the 9th of August, 1861, the defendant made Gregg a further advance of 1001., for which Gregg gave the firm the following acknowledgment : - "I acknowledge to have borrowed from you this day the sum of 1001., which, together with 1201. for which I have passed you my acceptance, I agree to repay you within four weeks from this date. Should such sum not be then repaid, I further 14 0. B. (N. 3.) 827, MARTYN ?'. GRAY 669 agree to hand over to you all the proceeds from sale of ore at Messer [827] Mine near Bodrain, beyond the working expenses, up to 2201., as the same are received, on the understanding: that such payments are to be deducted from the 2201. above agreed to be repaid you. I also agree to hand you as a gift, for consideration of above loan and previous kindnesses, 7801. of shares in Tretoil Mine, as soon as the arrangement with Mr. Turner is carried out." In addition to the above facts, the following letters were relied on by the plaintiff, as shewing that Gray was either an actual partner in the mining adventure in question, or at least had so conducted himself as to induce the plaintiff to believe that he was a partner therein : - " Htrickstenton, Lanlivery, Bodmin, "April 4th, 1861. " Dear Sir, - [ am and have been very busy. My report shall be forwarded in a day or two. I have been about pretty much, looking into matters about an engine. The size required are very scarce. I will, however, undertake to erect a new '24-inch cylinder, with a 9-tons boiler, ample fly-wheel stamp-axle, to complete for 17501. Remember, this is new, that the western part of your sett is, I think, the most important. A shaft should he sunk in that ground. This same engine would command this as well as the stamping. But, will Tretoil engine command this shaft? No, is my answer. What then? If you want to sink a shaft (it should be clone immediately), another engine must be erected with a similar expense. Take my advice once for all. Wait for my report. Compare this with Captains Kich and Johns ; also the views of J. Williams. If not satisfied, call in...
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