Richardson v Mellish

JurisdictionEngland & Wales
Judgment Date24 November 1825
Date24 November 1825
CourtCourt of Common Pleas

English Reports Citation: 130 E.R. 294

IN THE COURT OF COMMON PLEAS, AND OTHER COURTS

Richardson
and
Mellish

See S. C. 3 Bing. 334, 346; 7 B. & C. 819; and in House of Lords, 9 Bing. 125; 1 C1. & F. 224; 6 E. R. 900; 6 Bligh (N. S.), 70; 5 E. R. 525 (with note to which add, Mogul Steamship Company v. M'Gregor; [1892] A. C. 45; In re Kelcey, [1899] 2 Ch. 534); In re Beard, [1908] 1 Ch. 386; Chaplin v. Hicks, [1912] 1 K. B. 786.

294 RICHARDSON V. MULUSH ,W ... ./5 INQ. 229. [229] richardson w. meluhh. July 2, [See S. C. 3 Bing. 334, 346; 7 B. & C. 819 ; and in House of Lords, 9 Bing. 125; 1 01. & F. 224 ; 6 E. R. 900 ; 6 Bligh (N. S.), 70 ; 5 E. K. 525 (with note to which add, Mogul Steamship Company v. M'Gregm; [1892] A. C. 45; In re Kekey, [1899] 2 Oh. 534) ; In re Beard, [1908] 1 Ch. 386 ; Chaplin v. Hicks, [1912] 1 K. B. 786.] The Defendant having purchased twelve sixteenths uf the East India ship " M." commanded by the Plaintiff, and chartered by the Company for four voyages, proposed to the Plaintiff, and the Plaintiff consented, to resign the command in favor of the Defendant's nephew, upon receiving in exchange the command of another ship, "E.," then chartered for one voyage. If the Company acceded to the exchange, it was agreed, that in case the nephew died or resigned before the expiration of the four voyages, the Plaintiff should succeed him : as a further inducement to the Plaintiff to resign the command of the "M.," the Defendant undertook to procure a beneficial alteration in the destination of the "E.," and the person who tiegooiated ihe affair on the part of the Plaintiff undertook (as he assarted, without the Plaintiff's knowledge,) to pay the Defendant 20001. if the Plaintiff should refuse to resign. The exchange waa approved of by the Company, and the destination of the "E." altered, The Plaintiff and the nephew sailed on their respective voyages. The Plaintiff became bankrupt on his return from his voyage in the " E.," and the nephew died in the course of his second voyage in the " M." The Defendant having refused to appoint the Plaintiff to succeed him was sued in assutnpsit for breach of agreement, and the value of a voyage having been proved to vary from 40001. to 80001., the jury gave 75001. damages. On motion for a new trial and in arrest of judgment: Held, - First, That after verdict there was a sufficient consideration for the Defendant's agreement. - Secondly, That the agreement was not illegal. - Thirdly, That books containing lists of passengers, deposited at the India-house pursuant to 63 G, 3, c. 155, were admissible in evidence towards shewing the value of a voyage. - Fourthly, That the jury might give damages for the loss of the two remaining voyages, though the second had not been accomplished at the time of the action. This was an action brought to recover damages for the breach of an agreement. The Plaintiff was formely captain of the ship " Minerva," which had been chartered by the East India Company for six voyages to India. When the vessel had performed two of these voyages, the Defendant purchased twelve sixteenths of her, and having a nephew (Captain Mills) whom he wished to serve, he proposed that the Plaintiff should give up the command of the " Minerva " to Captain Mills. In order to provide the Plaintiff a compensation for this sacrifice, an agreement was entered into, by which it was stipulated, that the Plaintiff should resign the command of the " Minerva " [230] to Captain Mills, and should receive in exchange the command of the " Marquess of Ely," another vessel belonging to the Defendant, and then chartered for one voyage by the East India Company : that, provided the East India Company should accede to this proposed exchange (a), and Captain Mills should be confirmed in the command of the " Minerva," and Captain Richardson in that of the " Marquess of Ely," it was then (a) Bye-law, c. 13, s. 11. "Item. It ia ordained that hereafter no owner or part-owner of any ship, or any commander or other person, shall directly or indirectly sell or take any gratuity or consideration, nor shall any person or persons buy, pay, or give any gratuity or consideration for the command of any ship or ships to be freighted to the Company ; and in case any auoh contract, payment, or gift shall be made, the commander or intended commander concerned therein shall from thenceforth be incapable of being employed or of serving the Company in any capacity whatever, and it shall be lawful for the court of directors to discharge the ship from the Company's service, if they shall think fit ; and, moreover, the respective parties to such contract receiving, paying, or giving, or contracting to pay, receive, or give, shall severally pay damages to the Company at the rate of double the sum received or to be received, paid, or given ; and all the parties shall be obliged to discover such transactions as aforesaid, and all the circumstances relating thereto, by answer upon oath to a bill in equity, and shall not plead or demur thereto, and for that purpose proper clauses ahall be inserted in ull shipping agreements." 2BING.J3I. RICHARDSON V. HELLISH 295 agreed, that should Captain Mills die, or resign hia command, before the remaining four voyages should have been performed by the " Minerva," the Plaintiff should succeed him in the command of that vessel. As it appeared, however, that the benefit to be derived from the command of the " Marquess of Ely " was a very inadequate compensation for the loss of the command of the " Minerva," even for one voyage, the Defendant undertook to procure the Company's consent to change the destination of the " Marquess of Ely," and to send her to India, with liberty of calling at St. Helena and the Cape ; and on the other hand, Mr. Fletcher, who negociated the agreement on [231] behalf of thfr Plaintiff, undertook to pay the Defendant a sum of 20001., should the Plaintiff refuse to resign his command of the " Minerva;" he asserted, however, that the Plaintiff was igtiorant of this undertaking. The exchange of commands having met with the approbation of the East India Company, and the destination of the " Marquess of Ely " having been altered, both vessels sailed on their respective voyages. The Plaintiffs voyage in the " Marquess of Ely " having been peculiarly unfortunate, he became bankrupt soon after his return to England. It was proved by Mr. Fletcher, that, in consequence of a conversation between him and the Defendant, in which the latter expressed his dislike of a captain being possessed of an agreement which he held as a rod over the head of his owners, the agreement was deposited with the Defendant, wh& promised that it should be produced whenever it was required. While the " Minerva " was on her return to England, in the fourth of her six voyages, Captain Mills, then in the command of her, died, and another officer brought her home. The Plaintiff then made a demand on the Defendant, requiring to be re-instated in his command of the " Minerva," according to the terms of their agreement; but the Defendant having declined to comply with his request, and having sold the ship, the present action was commenced. These facts having been proved at the trial, before Lord Giffbrd and a special jury, at the London sittings after Hilary term last, the defence relied on was, that the agreement had not been merely deposited with the Defendant, but had been positively given up to him, the Plaintiff having renounced it on account of the advantage it was supposed he would have derived from the change in the destination of the " Marquess of Ely ;" and evidence was adduced to shew, that he had frequently spoken in warm commendation [232] of the Defendant's conduct towards him. The proof given at the trial of the value of one of these voyages consisted in the testimony of several captains, who described it as being worth from 40001. to 80001., and in the production of a book containing a list of passengers, made by the captain, and deposited in the India-house, pursuant to the act of 53 G. 3, passed for .the better regulation of passengers by India vessels (a). This book was objected to at (a) The 53 G. 3, c. 155, s. 15, enacts, "That no ship or vessel engaged in private trada under the authority of this act shall be permitted to clear out from any port of the said United Kingdom, or any place or places under the government of his majesty or of the said Company situate more to the northward than 11 S. latitude, and between 64 and 150" E. longitude from London, until the master or other person having the command of such ship or vessel shall have made out and exhibited to the principal officer of the customs or other person thereto authorised by such government as aforesaid at such port of clearance, upon oath (which oath such officer or other person is hereby authorised to administer) a true and perfect listy in such form as shall from time to time be settled by the said court of directors, with the approbation of the said board of commissioners, specifying and setting forth the names, capacities, and descriptions of all persona embarked or intended to be embarked on board such ship or vessel, and all arms on board or intended to be put on board the same, or be admitted to entry at any port in the said United Kingdom, or any such port within the limits last mentioned." Sect. 16 enacts, "That in every case where any such list ahall be received in any port ol the said United Kingdom from any master or other person having the command of any such ship or vessel, the officer or other person receiving the same shall and he is hereby required with all reasonable dispatch to transmit a copy of such list to the secretary of the court of directors of the said United Company ; and in case such list shall be received in any port in the East Indies or other place within the limits last mentioned, such officer or other person receiving the same shall and he is hereby...

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