Schuster and Others v McKellar and another
| Jurisdiction | England & Wales |
| Judgment Date | 28 May 1857 |
| Date | 28 May 1857 |
| Court | Court of the Queen's Bench |
English Reports Citation: 119 E.R. 1407
Queen's Bench Division
S.C. 26 L.J.Q.B. 281; 3 Jur. N.S. 1320; 5 W.R. 656. Referred to, Sandeman v. Scurr, 1866, L.R. 2 Q.B. 98. Discussed, Hathesing v. Laing, 1873, L.R. 17 Eq. 106. Referred to, Wagstaff v. Anderson, 1879-80,4 C.P.D. 289; 5 C.P.D. 171. Baumwoll Manufactur v. Gilchrest, [1891] 2 Q.B. 310; [1892]; 1 Q.B. 253; [1893] A.C. 8.
7 BL. * Bl. 708. SCHUSTER V. MCKELLAR 1407 leo schuster, samuel schuster and sigismund schuster against alexander McKELLAR and egbert anderson young. Thursday, May 28th, 1857. Plaintiff's, merchants in London, purchased for C., but on their own credit, goods abroad, debiting C. with the price and a commission. The goods were ware-housed in London in plaintiffs' name, C. in his own name engaged room for the goods in the ship "E.," which had been put up as a general ship for Calcutta. Plaintiffs, at C.'s request, delivered the goods to a lighterman, but, with a view to preserve their lien, took the lighterman's engagement to give them the mate's receipt. The goods were shipped on the "E."; the mate's receipt in blank was banded to the lighterman, who gave it to plaintiffs. C. promised plaintiffs to redeem the mate's receipt, but never did so, and fraudulently induced the ship-brokers to get bills of lading to C.'s order, to be signed by the master, though the mate's receipt was not produced. C. fraudulently indorsed these billa of lading for value to a bonS, fide indorsee. Plaintiffs had no communication with the ship-brokers or captain till after the ship had sailed, when, the facts being discovered, they demanded the goods both in this country and on the arrival of the ship at Calcutta. The goods were delivered by the captain at Calcutta to the holders of the bills of lading. An action was brought for this conversion against the ship-owner and the captain. It appeared that the captain and crew were appointed by the ship-owner, but the ship was chartered for a lump sura to third parties, who put up the ship as a general ship. It was proved that the refusal of the captain to deliver the goods at Calcutta was by the orders of the ship-owner. The only question left to the jury was, Whether, under the circumstances, the master was justified in signing the bills of lading without the production of the mate's receipt? The jury finding in the negative, the plaintiffs had the verdict against both defendants on the pleas of Not guilty and Not possessed. -Held : that the property in the goods remained the property of the plaintiffs, there never having been any delivery animo transferendi to C.; and that the misdelivery at Calcutta was a conversion. And that the question whether the plaintiffs were precluded from relying on their property or complaining of this conversion was in effect properly left to the jury and properly found by them.- Held, also, that, the ship-owner having authorized the detention at Calcutta, the verdict was proper.-Semble: that under such a charter party the ship-owner, though perhaps not liable on the contracts made for carnage of goods in the ship as a general ship, is still liable for the misdelivery of the goods by the captain, who for many purposes remains bis servant. Sed quaere. [S. C. 26 L. J. Q. B. 281 ; 3 Jur. N. S. 1320. ò 5 W. E. 656. Referred to, Sandeman v. Scurr, 1866, L. R. 2 Q. B. 98. Discussed, Hathesing v. Laing, 1873, L. R. 17 Eq, 106. Referred to, Wagatajf v. Anderson, 1879-80, 4 C. P. D. 289 ; 5 C. P. D. 171. Saumwoll Manufactur v. Gikhrest, [1891] 2 Q. B. 310; [18921)1 Q. B. 253; [1893] A. C. 8.] Firat count: That defendant McKellar was owner, and defendant Young master, ol the ship "Emperor," [705] then lying in London, and bound for Calcutta, and received on board plaintiffs' goods in exchange for the mate's receipt. Breach : that defendants signed bills of lading to certain persons called Coles, Brothers, who never held the mate's receipt, whereby the said persons were enabled to indorse the bills of lading for value, and the plaintiffs lost their gooda. Second count: For not delivering gooda received on board the defendant's ship to be carried to Calcutta for plaintiffs. Third count: Trover for spelter. Pleas to first count. 1. That defendants did not receive the plaintiffs' gooda on board. 2. That they did riot give the mate's receipt. 3. Not guilty. 4. That the goods were the property of Coles, Brothers, and that Coles, Brothers, made the contract for the conveyance in defendants' ship in their own name, and plaintiffs shipped the goods on Coles, Brothers', order, without any knowledge, on defendants' part, that conviction ; dissentientibus Bramwell and Watson Bs,; dubitante Martin B. Bramwell and Wsjtson Bs. held the objections, that there was no allegation of entering the service, and that the conviction appeared to have been taken on evidence not given jn the presence of the prisoner, invalid. In re Baker, 2 H. & N. 219. 1408 SCHUSTER V. MCKELLAR 7 EL. ft BL. 706. the goods were not shipped by Coles, Brothers, and induced defendants to believe that they were shipped by Coles, Brothers. 5. Leave and licence. Pleas to second count. 6. That plaintiffs did not ship, nor defendants receive, the goods to be carried as alleged. 7. A plea similar to plea 4. [706J Pleas to the count in trover. 8. Not guilty. 9. That the goods were not the goods of the plaintiffs. Issue on these pleas respectively. On the trial, before Lord Campbell C.J., at the Guildhall sittings after Hilary Term 1857, it appeared that the plaintiffs formed the firm of Schuster & Co., merchants in London. Coles, Brothers, mentioned in the pleadings, were, in 1854, merchants in London. In February 1854, Schuster & Co., by order of Coles, Brothers, and on their account, purchased on their own credit and in their own names, through their correspondents abroad, a large quantity of spelter. They accepted drafts for the price, and debited Coles, Brothers, with the amount of those drafts and a commission of one per cent, for purchasing, Schuster & Co., by order of Coles, Brothers, in April, caused the greater part of this spelter to be shipped from Hamburgh for New York : but it was shipped in the name of Schuster & Co. ; and the bills of lading were made deliverable to their order. The remainder, which consisted of two parcels forming together a little more than 100 tons, was, by order of Coles, Brothers, shipped from Hamburgh for London. This also was shipped in the name of Schuster & Co., and, on its arrival, was warehoused in Hay's wharf, in the name of Schuster & Co. Before this transaction Schuster & Co. had frequently made advances to Coles, Brothers, on the security of goods in warehouses, which were transferred into the name of Schuster & Co. When Coles, Brothers, wished to ship any goods so pledged, the course of business was lor Schuster & Co. to give to the lighterman employed by Coles, Brothers, an order on the warehousemen for the delivery of the goods, taking, at the same time, the lighterman's undertaking to give the [707] mate's receipt to Schuster & Co. The lighterman then shipped the goods as directed by Coles, Brothers, taking the mate's receipt which he delivered to Schuster & Co. Coles, Brothers, in such cases, before they got the bills of lading signed, procured from Schuster & Co. the mate's receipt by paying off the advance upon the goods : it was then attached to the bills of lading, which were delivered to the ship's broker ; and then the bills of lading were signed. There was evidence that this course of business was general in London, and that pledgees of goods allowed them to be shipped by the pledgers, relying for their security on the practice to refuse to sign bills of lading, where there was a mate's receipt, without having it produced. In this particular transaction, Coles, Brothers, informed Schuster & Co. that they intended to ship the spelter in question, part to Bombay part to Calcutta ; and Schuster & Co., at their request, gave to Henbrey, a lighterman who ordinarily acted for Coles, Brothers, the following delivery order. 3"...
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