Pike v Ongley
| Jurisdiction | England & Wales |
| Year | 1886 |
| Date | 1886 |
| Court | Court of Appeal |
Principal and Agent - Sale of Goods - Broker making Sold-note “for and on account of owner” - Personal Liability of Broker - Evidence, Admissibility of - Usage of Trade to control written Contract.
The defendants, who were hop brokers, gave to the plaintiffs the following sold-note: “Sold by Ongley & Thornton (the defendants) to Messrs. Pike, Sons, & Co., for and on account of owner, 100 bales … hops … (Signed) for Ongley & Thornton, S. T.” In an action for non-delivery of hops according to sample, the plaintiffs sought to make the defendants personally liable on the above contract, and tendered evidence to shew that by the custom of the hop trade brokers who do not disclose the names of their principals at the time of making the contract are personally liable upon it as principals, although they contracted as brokers for a principal. No request was made by the plaintiffs to the defendants to name their principal:—
Held (reversing the decision of the Queens Bench Division) that the custom gave a remedy against the brokers as well as against the principals, that it was not in contradiction of the written contract, and that evidence of the custom was properly admitted at the trial.
MOTION for a new trial or to enter judgment for the defendants on the ground of misdirection and misreception of evidence.
The action was brought against the defendants, who were hop brokers, to recover damages for the non-delivery of hops equal to sample sold under a written contract in the following terms: “Sold by Ongley & Thornton to Messrs. Pike, Sons, & Co., for and on account of owner, 100 bales, Hallertau Bavarian hops at 52s. per cwt. Delivery in October. (Signed) for Ongley & Thornton, S. T.” At the trial before Manisty, J. and a special jury the plaintiffs contended that the defendants were personally liable on the contract, and evidence was tendered to shew that, by the custom of the hop trade in such a contract, if the principal be not disclosed at the time of making the contract the broker is in fact regarded as the principal and is held liable. The evidence was admitted by the learned judge. It was admitted by the parties that the plaintiffs had not asked the defendants for the name of their principal, but there was evidence to shew that the plaintiffs in fact knew that he was a foreigner. The jury found a verdict for the plaintiffs, and judgment was entered in accordance with the finding.
March 16. Winch, for the defendants. The defendants having made the contract “on account of” their principal, are not personally liable: Gadd v. Houghton.F1 The evidence offered to fix them with a primary liability is inconsistent with the written contract, and should have been rejected. In Hutchinson v. TathamF2 the custom proved was not one to make the agent primarily liable on such a contract, but to fix him with a personal liability if he did not disclose his principal within a reasonable time. In Fleet v. MurtonF3 the brokers were held personally liable on...
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