Schmaltz v Avery
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1851 |
| Date | 01 January 1851 |
| Court | Court of the Queen's Bench |
English Reports Citation: 117 E.R. 1031
QUEEN'S BENCH.
S. C. 20 L. J. Q. B. 228; 15 Jur. 291.
[655] schmaltz against avery. 1851. Assumpsit on the charter party by freighter against ship-owner for not receiving cargo. Plea : non assumpsit. Proof was given of a charter party expressed to be by defendant of one part, "and G. S. & Co. (agents of the freighter) of the other," and containing a memorandum as follows ; " This charter being concluded on behalf of another party, it is agreed that all responsibility on the part of G. S. & Co. shall cease as soon as the cargo is shipped." No notice of this memorandum was taken in the declaration. G .S. & Co. were proved to be the plaintiff. Held : 1. That, notwithstanding the terms of the charter party, plaintiff might prove that he was the freighter, and his own principal, and, on proof of his being so, was entitled to recover in his own name. 2d. That it was not necessary to notice the memorandum in the declaration. [S. C. 20 L. J. Q. B. 228 ; 15 Jur. 291.] Assumpsit on a memorandum of charter between the defendant as shipowner and the plaintiff as freighter. Breach : that defendant would not receive cargo. Plea : non assumpsit. Issue thereon. Other issues of fact, which it is unnecessary to state. On the trial, before Wightman J., at the Newcastle Summer Assizes, 1850, it appeared that the plaintiff carried on business under the firm of Schmaltz & Co. The execution of a charter party by the defendant was proved. It was expressed to be made between the defendant as owner of the ship of the one part "and G. Schmaltz & Co. (agents of the freighter) of the other part." At the end of the charter party there waa a memorandum in these terms. " This charter being concluded on behalf of another party, it is agreed that all responsibility on the part of G. Schmaltz & Co. shall cease as soon as the cargo is shipped." In the declaration no notice was taken of this memorandum : in other respects the agreement set out corresponded with that proved. Oral evidence was given that the plaintiff was in truth principal. The learned Judge directed a verdict for the defendant on the issue upon non assurapsit, (b) Reported by H. Davison, Esq. 1032 8CHMALTZ V. A VERY 16Q. B.8W. leave being reserved to move to enter a verdict for the plantiff on that issue. The other issues were left to the jury, who found a verdict for the plaintiff [656] for 51. 10s., subject to leave to enter a verdict for the defendant on another issue (a). Knowlea, in Michaelmas term, 1850, obtained a rule nisi to enter a verdict for the plaintiffs on the issue joined on the plea of non aasumpsit. In this vacation (February 8th), Watson and Unthank shewed cause (b). First, as the charter party was an executory contract, and expressed to be made by the plaintiff as agent for a principal, he is estopped from suing on it as principal. The ease is the converse of Humble v. Hunter (12 Q. B. 310). So long as the contract continues executory, the defendant has a right to say that he contracted with some one different from G, Schmaltz & Co., and that he does not choose to contract with that firm ; Bickerton v. Bwrrell (5 M. & S. 383). It may be of great consequence to one contracting party to know on whose undertaking he relies for fulfilment of the other part of an executory contract. Much may depend on skill, responsibility, character for fair dealing, and...
To continue reading
Request your trial
-
Fraser v Thames Television Ltd
... ... 168 ... Saltman Engineering Co. Ltd. v. Campbell Engineering Co. Ltd. ( 1948 ) 65 R.P.C. 203 , Vaisey J. and C.A ... Schmaltz v. Avery ( 1851 ) 16 Q.B. 655 ... Seager v. Copydex Ltd. [ 1967 ] 1 W.L.R. 923 ; [ 1967 ] 2 All E.R. 415 , C.A ... Seager ... ...
-
Braymist Ltd v The Wise Finance Company Ltd
...a party. In the circumstances, the contract was a nullity. In so deciding, the Court of Appeal distinguished the principle, applied in Schmaltz v Avery (1851) 16 QB 655 and other cases, that where a person purported to contract as agent he could nevertheless disclose himself as being in tr......
-
Electrosteel Castings Ltd v Scan-Trans Shipping & Chartering Sdn Bhd
...its qualified signature of the Booking Note. In this latter regard, it is right that I should follow long-standing authorities such as Schmaltz v Avert (1851) 16 QB 655 and Harper v Vigers [1909] 2 KB 549, notwithstanding the very cogent doubts expressed as to their justification in terms o......
-
Hill Steam Shipping Company v Hugo Stinnes Ltd
...defence on the merits. The Court refused the appeal, and granted decree for an agreed sum in name of freight. 1 Schmaltz v. AveryENR, (1851) 16 Q. B. 655; Carr v. JacksonENR, (1852) 7 Ex. 382; Stone &Rolfe v. Kimber Coal CoELR., 1926 S. C. (H. L.) 45, [1926] A. C. 414;Harper &Co. v. Vigers ......