Rogers v Lambert
|England & Wales
|Court of Appeal
Bailor and Bailee - Estoppel - Jus tertii.
The bailee of goods cannot avail himself of the title of a third person to the goods as a defence to an action of detinue by the bailor except by further shewing that he is defending the action on behalf and by the authority of such third person.
Biddle v. Bond (6 B. & S. 225) approved.
TRIAL of action before Day, J., without a jury.
The plaintiffs' claim was for damages for the non-delivery of 200 tons of copper purchased by the plaintiffs from the defendants, or, in the alternative, damages for the wrongful conversion of the copper.
The plaintiffs were copper-merchants in London; the defendants were copper-smelters, carrying on business in London and at Swansea. The plaintiffs had bought the copper from the defendants, and had paid for it; but the defendants had retained it in their possession as warehousemen, subject to payment of warehousing charges, and had given the plaintiffs delivery orders, which directed delivery to the order of the plaintiffs, and the defendants had entered the plaintiffs' name in their warehouse-books as the owners of the copper.
It was admitted that the plaintiffs before the action had sold the copper to a firm named Morrison, Kekewich & Co., who had paid them the price of it, and that they had indorsed the delivery orders to Morrison, Kekewich & Co.
The delivery orders had never been presented to the defendants.
Before the commencement of the action, the plaintiffs gave notice to the defendants that they cancelled the indorsement of the delivery orders, and requested the defendants not to deliver the copper to any one but themselves.
The defendants did not profess to be defending the action upon the right or by the authority of Morrison, Kekewich & Co.; on the contrary, they admitted, in answer to interrogatories delivered by the plaintiffs, that they were defending it in their own interest.
Under an order of the Court, the copper was sold, and the proceeds of sale were paid into Court.
It appeared that Morrison, Kekewich & Co. had re-sold the copper, and that a French bank claimed to be interested in it.
Cohen, Q.C., and Mansel Jones, for the plaintiffs.
Reid, Q.C., and J. V. Austin, for the defendants.
Pollard, for the French bank.
Boyd, for Morrison, Kekewich & Co.
The learned judge held that the plaintiffs, under the circumstances, had ceased to have any interest in the copper, and had no cause of action against the defendants, for whom he gave judgment.
An order was made that the money in Court should be paid out to the defendants, and it was paid out accordingly.
The plaintiffs appealed.
1890. Nov. 6, 7. Cohen Q.C., and Mansel Jones, for the plaintiffs. The defendants had become bailees of the copper from the plaintiffs. A bailee cannot set up the jus tertii against his bailor, except by the authority of the third party: Biddle v. Bond.F1 If the sub-vendees of the plaintiffs had before the action claimed the copper from the defendants, the defendants might have a right as against the plaintiffs to withhold it on that ground; but they cannot withhold the copper on their own account for the purpose of gaining some advantage for themselves. They have not attorned to any one else, and their possession is in law the possession of the plaintiffs, their bailors. By their answers to interrogatories, they admit that they withheld the copper, and that they are defending the action, on their own account and not by the authority or under the direction of the owners. There is no case in which a bailee has been allowed to say as against his bailor that he did not defend for any other person, but claimed to hold the goods for his own benefit: European and Australian Royal Mail Co. v. Royal Mail Steam Packet Co.F2 If a bailee re-delivers the goods bailed to his bailor without notice of the title of a third party it is not a conversion.
A bailor can, even if he has given delivery orders, revoke the authority given to the warehouseman before the latter has attorned to the third party: Sheridan v. New Quay Co.F3
[LOPES, L.J., referred to McEwan v. Smith.F4]
A warehouseman can with perfect safety deliver up goods to his bailor, if he has not attorned to any one else. If the defendants had bonâ fide, on the demand of the plaintiffs, delivered up the copper to them before any demand by Morrison, Kekewich & Co., they would have had a complete defence to any action by the latter, even if they had had notice that the copper had been sold to them. In fact, they had no notice of any sale to Morrison, Kekewich & Co. till after the commencement of this action. They had only notice that the delivery orders had been indorsed to some one, who might have been an agent for the plaintiffs. A bailee of goods may deliver them to the true owner, or, if the title of the true owner has accrued after the bailment, he can interplead, or he can on behalf of the true owner defend an action by the bailor. The defendants have not adopted any of these courses, but have defended the action on their own behalf, and they have no defence to the plaintiffs' demand: Ex parte Davies.F5
[LORD ESHER, M.R. Even if the plaintiffs are entitled to judgment, what damage has the defendants' breach of contract caused to the plaintiffs, if they have been paid for the copper? The plaintiffs may never be sued by any one. Is there any authority for giving damages quia timet?]
As against the bailee, the bailor has the better right to the possession of the goods. The plaintiffs are entitled to possession to enable them to fulfil their contract with Morrison, Kekewich & Co.
[LORD ESHER, M.R. Must not the Court have regard to the equities, and decline to make any order as to the copper until all the parties interested are before it?]
The proceeds of sale have been paid out of Court.
Reid, Q.C., R. S. Wright, and Loehnis, for the defendants. It is admitted that the plaintiffs have absolutely parted with the property in the copper; they have sold it to Morrison, Kekewich & Co., and have been paid for it. If Morrison, Kekewich & Co. were to sue the plaintiffs for non-delivery of the copper, the plaintiffs' answer would be, “You yourselves prevented our delivering to you by the notice which you gave to the defendants.” The damages would not exceed a shilling. And, as to detinue, the damages could only be the amount of the plaintiffs' real loss. The plaintiffs have no property in the copper, and the defendants are liable to an action by the true owners.
By the contract of bailment the bailee acknowledges the then existing title of the bailor; the contract is to deliver the goods to the bailor, if he has not in the meantime parted with his title. In Biddle v. BondF6 the bailor had no title at the time of the bailment; such a case is entirely different from one in which the bailor loses his title after the bailment. The present case is like European and Australian Royal Mail Co. v. Royal Mail Steam...
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