Samuel Gurney, David Barclay Chapman, Samuel Gurney the Younger, and Henry Edmund Gurney against Heinrich Theodor Behrend, Paul Augustus Adolphe Behrend, and Maximilian Behrend
| Jurisdiction | England & Wales |
| Judgment Date | 02 May 1854 |
| Date | 02 May 1854 |
| Court | Court of the Queen's Bench |
English Reports Citation: 118 E.R. 1275
COURTS OF QUEENS BENCH AND THE COURT OF EXCHEQUER CHAMBER.
S.C. 23 L.J. Q.B. 265; 18 Jur. 856; 2 W.R. 425. Dietum explained, The Marie Joseph, 1866, L.R. 1 P.C. 228. Applied, The Argentina, 1867, L.R. 1 Ad. & E. 376. Approved, Coventry v. Gladstone, 1867, L.R. 4 Eq. 503. Not applied, Bateman v. Green, 1867, Ir. R. 2 C.L. 166. See Hathesing v. Laing, 1873, L.R. 17 Eq. 100.
samuel gurney, david barclay chapman, samuel gurney the younoeh, and henry edmund gurney against heinrich theodoh behrend, paul augustus adolphe behrend, and maximilian behrend. Tuesday, May 2d, 1854. B,, a Dantzick merchant, sold wheat to W., an Amsterdam merchant, to be paid for by drafts, to be drawn by B. on C., a London merchant, against bills of lading. W. was in fact, though that was not disclosed to B., acting for P., another London merchant. W. wrote to C. opening a credit, on account of P., in favour of B., to be drawn on against bills of lading, P. to be debited with the amount. B. forwarded a bill of lading, indorsed by him in blank, to C. in a letter stating that, "according to instructions from W.," we hand you bill of lading, " and request you to follow" his instructions respecting the document "by whose order, and for whose account," we draw on you, "which drafts we recommend to your kind protection." On the day after C.'s receipt of this letter, the draft was left with C. for acceptance. P., on the same day, being in actual possession of the bill of lading, pledged it with G., who bona fide gave value for it. On the evening of the same day, P. was arrested on a criminal charge; and he afterwards became bankrupt. C. did tiot accept the draft; and, on the ensuing day, became bankrupt. W. also failed. B. stopped the cargo in transitu. G. brought trover against him for the cargo.-On a case stating the above facts, with power for the Court to draw inferences of fact;-Held, that B. prima facie had the right to stop in transitu ; and that (jr., though a bona fide transferee for value of the endorsed bill of lading from P., was tiot entitled to the cargo, unless P. had, not merely possession of the bill of lading, but a right to transfer it; inasmuch as bills of lading are not negotiable to the same extent as bills of exchange.-But held : that C. was entitled to band over the bill of lading to P.; the letter from B. not imposing any condition to prevent C. from doing so. And the Court, as an inference of fact, thought that C. had so handed it over to P.-Judgment for plaintiff. [S. C. 23 L. J, Q. B. 265; 18 Jur. 856; 2 W. E. 425. Dictum explained, The Marie Joseph, 1866, L. R. 1 P. C. 228. Applied, The Argentina, 1867, L. R. 1 Ad. & E. 376. Approved, Coventry v. Gladstone, 1867, L. E. 4 Eq. 503. Not applied, Bateman v. Green, 1867, Ir. R. 2 C. L. 166. See Hathesing v. Laing, 1873, L. R. 17 Eq. 100.] Trover for wheat: Pleas, Not guilty, and Not possessed. On the trial, before Lord Campbell C.J., at the London sittings after Trinity Term, a verdict passed for the plaintiffs, with 37251. damages, subject to a case. [623] By this it appeared, that the plaintiffs were London money merchants trading under the firm of Overend, Gurney & Co., and the defendants merchants at Dantzic trading under the firm of Th. Behrend & Co. The action was brought to try the right to the cargo of the ship "Erute," which the plaintiffs claimed as holders of the bill of lading. The bill of lading was for wheat in bulk, shipped by Th. Behrend & Co. at Dantzic, deliverable in London to order or assigns, and was indorsed in blank by Th. Behrend & Co. On 2d February 1853, the ship arrived in the Thames, and defendants took possession of the cargo in the ship, and kept it. The case shewed that Overend, Gurney & Co., in the ordinary course of business, made an advance on the security o/ the bill of lading to Messrs. Coventry & Sheppard on the 8th January 1853. Coventry & Sheppard had, in the course of business, made large advances to Robert Ferdinand Pries, in London, and had received this bill of lading from him, ou 1276 GURNEV V. BEHREND 8 EL. * BL. 624. the same 8th January, as a part security for these advances, and for fresh advances then made. Robert Ferdinand Pries was a corn merchant, then in good credit: but, on the evening of the same day, he was arrested on a criminal charge, not connected with this bill of lading, and had since become bankrupt. The case stated the particulars of these transactions at some length : it appeared that the whole was bona fide as regarded Overend, Gurney & Co. and Coventry & Sbeppard ; so that the real point was, whether Pries had obtained the bill of lading under such circumstances as to be able to confer a good title on a bona fide transferee. The circumstances under which Pries obtained the bill of lading were thus stated in the case. The cargo was bought of the defendants by Mr. E. Werthemann, a merchant at Amsterdam : Werthemanu in point of fact bought [624] the corn for Pries ; but that fact was unknown to the defendants. They only knew Werthemann in the transaction ; and payment of the price at the rate of 40s. per quarter was to be made in the manner stated in the following letters. Collmann and Stolterfoht, mentioned in those letters, were a firm, in a large way of business as merchants and commission agents, who had had very large dealings with Pries during the time he waa in business. On the 31st December, 1852, Werthemann wrote and sent the following letter to Messrs. Collmann and Stolterfoht, London. "Amsterdam, 31st December, 1852. " By order and for account of Mr. Robert F. Pries, I beg to inform you that I have opened a credit with your house in favour of Messrs. Th. Behrend & Co. in Dantzig for 10,0001. : Ten thousand pounds. " I therefore request you...
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