Power and Another, Assignees of Fulton, against Butcher and J. D. Capet
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1829 |
| Date | 01 January 1829 |
| Court | Court of the King's Bench |
English Reports Citation: 109 E.R. 472
IN THE COURT OF KING'S BENCH.
S. C. 5 Man. & Ry. 327; 8 L. J. K. B. O. S. 217. Observations adopted, Xenos v. Wickham, 1867, L. R. 2 H. L. 319. Approved, Universo Insurance Company of Milan v. Merchants' Marine Insurance Company, [1897] 2 Q. B. 96.
[329] power and another, Assignees of Fulton, against butcher and J. D. capet. 1829. An insurance broker effected, on behalf of another person, a policy under seal, with a company of which he was a member. The policy recited that the broker, upon his representation that he was duly authorised as owner, agent, or otherwise, to make assurance upon the vessel mentioned in the policy, and was desirous of making such insurance, had covenanted with the company to pay the premium, and then alleged that, in consideration of the premises and of such covenant, the policy was effected. The broker having become bankrupt, without having paid the premium to the company ; it was held, that his assignees were entitled to recover from the assured the amount of the premium which he had covenanted to pay. The declaration stated, that the defendants were indebted to the bankrupt before his bankruptcy for work and labour, as an insurance broker, and for divers premiums of insurance due and payable from the defendants to the bankrupt, for and in respect of his having underwritten and subscribed, and caused and procured to be underwritten and subscribed, divers policies of insurance for the said defendants, at their request. The plaintiffs, by their particulars of demand, claimed to recover for insurance. The company would have allowed the broker, when he paid the premiums, to deduct 311. Is. as commission : Held, that his assignees were entitled to recover that sum under the words in the declaration, "work and labour" done by the broker, and under the word " insurance," in the particulars of demand. Held, also, that the assignees were entitled to recover the amount of the premiums which the bankrupt had become liable to pay to the company under that part of the count which charged that the defendants were indebted to the plaintiffs for premiums due to the bankrupt for and in respect of his having caused and procured to be underwritten divers policies; but that the plaintiffs were not entitled to recover such sums under the count for money paid, because the broker had not actually paid the sums, or done any thing which was equivalent to payment. One of the defendants pleaded specially, that the plaintiffs, in Easter term 1827, impleaded him for the same causes of action, and that in Trinity term he pleaded the general issue to that action ; and paid 51. 15s. into Court; that the plaintiffs' costs were taxed at 81. 5s. 6d., and that they agreed with him to take the sum of 51. 15s. out of Court; that the defendant paid the costs to the plaintiffs, and that they accepted and received the 51. 15s.; together with those costs, in satisfaction and discharge of the promises mentioned in the declaration. The plaintiffs replied, that they did not agree with the defendant to take and receive the 51. 15s. out of Court, and did not accept and receive that sum, together with the said costs, in satisfaction and discharge of the promises mentioned in the declaration. At the trial, it appeared that the plaintiffs received their taxed costs, but gave notice to the defendant that they would not take the 51. 15s. out of Court, and that they should take out a rule to discontinue the action on payment of costs. These latter costs were taxed, and paid: Held, first, that the plaintiffs, in having received the amount of their taxed costs, could not be considered as having accepted the 51. 15s., together with those costs, in satisfaction of the promises in the declaration; and that if, in point of law, it eould have been so considered, the defendant ought to have pleaded that matter specially; secondly, that the defendant, by receiving his costs, had assented to the discontinuance of the action upon the terms of the rule to discontinue. [S. C. 5 Man. & Ey. 327 ; 8 L. J. K. B. 0. S. 217. Observations adopted, Xenos v. 10 B. & C. 330. POWER V. BUTCHER 473 Wickham, 1867, L. E. 2 H. L. 319. Approved, Universo Insurance Company of Milan v. Merchants' Marine Insurance Company, [1897] 2 Q. B. 96.] Assumpsit. The first count of the declaration stated, that the defendants were indebted to T. Fulton, before he became a bankrupt, for work and labour by [330] him bestowed in and about the writing, drawing, and making out of divers policies of insurance of divers ships, &c., before that time written, drawn, and made out by the said T. Fulton, as an insurance broker; and in about the causing and procuring divers persons to insure divers sums of money upon the said ships, &c., at the special instance and request of the defendants; and for divers sums of money before that time advanced and paid by T. Fulton for the defendants, at their like special instance and request, to divers persons, as and for certain premiums and rewards for the underwriting and subscribing the said policies of insurance before that time underwritten and subscribed for the insurance of the said ships, and during certain voyages undertaken by the said ships, &c.; and for the trouble, care, and diligence of the said T. Fulton in that behalf, at their like special instance and request; and for divers premiums of insurance, and sums of money before that time and then due and payable from the defendants to T. Fulton, for and in respect of T. Fulton having before them underwritten and subscribed, and caused and procured to be underwritten and subscribed, divers policies of insurance for the defendants, at their, like special instance and request. There were counts for premiums paid for insurances, common counts for work and labour, money counts, and upon an account stated. Plea, general issue, by both defendants. Plea, also, by Butcher, that the plaintiffs in Easter term 1827 impleaded him for the same causes of action, and that in Trinity term in that year he pleaded the general issue to that action. That on Monday next, after fifteen days of The Holy Trinity in the year aforesaid, he obtained a rule to pay 51. 15s. into Court, and that he paid that sum into Court. That the plaintiffs' costs were [331] taxed under the said rule at 81. 5s. 6d., and that the plaintiffs agreed with him (Butcher) to take the sum of 51. 15s. out of Court under the rule; that he paid the costs, viz. 81. 5s. 6d. to the plaintiffs, and the plaintiffs accepted and received the said sum of 51. 15s. together with the said costs, in satisfaction and discharge of the promises mentioned in the declaration in that action. The plea then alleged the two causes of action to be the same, and that the money sought to be recovered in this action might, if recoverable at all, have been recovered in the action brought against him (Butcher) alone. Replication, that the plaintiffs did not agree with Butcher to take and receive the sum of 51. 15s. out of Court under the rule, and did not accept and receive the sum of 51. 15s. with the said costs, in satisfaction and discharge of the promises and undertakings mentioned in the declaration in this action. At the trial before Lord Tenterden C.J., at the London sittings after Michaelmas term 1828 the jury found a verdict for the plaintiffs, with 6211. 10s. damages, subject to the opinion of this Court on the following ease:- The defendants were ship-owners; Fulton, the bankrupt, carried on business as an insurance broker at Lloyd's Coffee-House, and was employed by the defendants to effect the policies, and the...
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