Thompson and Another v Small
| Jurisdiction | England & Wales |
| Judgment Date | 06 February 1845 |
| Date | 06 February 1845 |
| Court | Court of Common Pleas |
English Reports Citation: 135 E.R. 566
IN THE COURT OF COMMON PLEAS.
S. C. 14 L. J. C. P. 157.
"[328] cases argued and determined in the court of common pleas, in hilary vacation, in the eighth year of the keign op victoria. The judges who sat in banco in this vacation were, Tindal C. J., Coltman J., Maule J., Erie J. thompson and another v. small. Feb. 6, 1845. [S. C. 14 L. J. C. P. 157.] A. chartered a vessel, of which B. was master and part-owner, for a voyage from London to Sydney, for a gross sum of 16001., payable two months after clearance at the custom-house. A. bought goods of C. to be shipped on A.'s own account on board the vessel, and to be paid for before the vessel left the port of London. The goods were accordingly shipped by C., who took from the mate receipts as for goods shipped on C.'s account, and which receipts were still kept by C. Two days after the goods were shipped, A. became insolvent and unable to perform his contract with C., and subsequently agreed with C. to rescind it, and signed an order directing B. to deliver the goods to them. The goods were demanded on behalf of C., both before and after the rescission of the contract, C. offering at the same time to pay all reasonable charges attending such re-delivery, and every lawful claim the owners might have upon the goods. B. refused to deliver the goods to C., on the ground that, they having been shipped for the voyage stated in the charter-party, it was the duty of B. to convey them to their destination:-Held, that, assuming that the property in the goods passed to A. by the shipment, yet, as A. had neither become bankrupt nor taken the benefit of the insolvent act, but continued sui juris up to -the time of making the agreement to rescind the contract-by the operation of that agreement and the delivery order given by A., the property in the goods re-vested in B., either in his original right as vendor, or as a new right derived from the .-assignment of the vendee; and that the refusal of B., upon the ground stated by him, to re-deliver the goods after the demand by C., the contract with A. being rescinded, and the offer then made of the payment of the reasonable charges and .all lawful claims, was a wrongful conversion; there being nothing in the terms of "the charter-party that could restrain the charterer from dealing with the cargo as he thought proper, or prevent him from taking out the cargo before the sailing of the vessel, or to entitle the master to insist on carrying it to its destination.- Quaere, whether or not C. derived a new right from retaining the mate's receipt and the demand made by them before the rescission of the contract 1 Trover, for 40 sheets of milled lead, 30 casks of shot, 6 tierces of ground lead, 6 tierces of red lead, 100 boxes of tin-plates, and 100 boxes and 30 casks of the value of 5001. [329] The defendant pleaded, first, not guilty; secondly, that the goods were not the property of the plaintiffs; upon which plea the plaintiffs joined issue. At the trial before Tindal, C. J., at the adjourned sittings in London, after Michaelmas term last, a verdict was found for the plaintiffs, damages 5001., subject to the opinion of the court upon the following case :- During the time hereinafter mentioned the plaintiffs were lead and tin-plate IC.K330. THOMPSON #. SMALL 56? merchants, carrying on business under the firm of William Thompson & Co., at Allhallows Wharf, London ; and the defendant was the master, and owner of eight 64ths, of the " Bucephalus." The action was brought for 3941. 6s. 2d., the value of certain milled-lead, shot, sheet-lead, white-lead, red-lead, and tin-plates, under the following circumstances:- On the 20th of July, 1843, Theodore Grumbrecht, who then held a responsible situation in the house of Huth & Co., ordered the goods in question of the plaintiffs, to be shipped on his account, on [330] board the "Bucephalus," then lying in the West India export dock, and then about to proceed to Sydney and New Zealand; and to be paid for before the ship left the port of London. There was no written contract for the goods, but the order was given verbally by Grumbrecht to one of the plaintiffs' clerks. The goods were accordingly shipped by the plaintiffs on board the " Bucephalus," by their own barges and servants, on the 27th of July, 1843; and at the time of such shipment the plaintiffs took a receipt for the goods from the chief officer of the vessel, of which receipt the following is a copy :- " Allhallows Wharf, London, 27th July, 1843. " Received, from William Thompson & Co., in good order and well-conditioned, the under-mentioned goods, on board the ' Bucephalus,' Captain A. Small, for Sydney :- " T. G. Nineteen sheets milled lead. Sixteen casks shot. Four tierces containing ground lead and red lead. Sixty boxes tin plates. "Eeceived the above, "P. jenkins, for E. fillan, " Chief officer of the ship ' Bucephalus.'" The plaintiffs have always, from the time of receiving the said receipt up to the present time, retained the same. On the 26th of July, 1843, the plaintiffs delivered to Grumbrecht an invoice of the said goods, of which the following is a copy :- [331] "London, 26th July, 1843. " Mr. Theodore Grumbrecht. "Bought of William Thompson & Co. " T. G. 60 boxes of tin-plates, viz.- s. d. 201C . . . . 28/ 28 0 0 20IX . . . . 34/ 34 0 0 20IXX . . . 40/ 40 0 0 16 casks, 20 bags each, containing 320 bags, of shot, 80 cwt. . , . . 19/6 78 0 0 19 sheets of milled lead, 162cwt. 3qrs. 241bs. 17/6 1421111 4 tierces containing the undermentioned 100 kegs of genuine ground white lead, 50 cwt. 23/6 58 15 0 Watching ... . . . 060 10 kegs of red lead, 2 cwt. 2 qrs. . . 18/6 263 16 casks 3/, 4 tierces 6/, 100 kegs 1/3, 10 ditto I/ . . . . . 10 7 0 394 6 2" After the goods had been put on board, as above-mentioned, viz. on or about the 29th of August, 1843, Grumbrecht was taken into custody upon a charge of felony preferred against him by Messrs. Huth & Co. Grumbrecht at the time of his apprehension was insolvent, and unable to pay for the said goods. The plaintiffs, upon the fact of the apprehension and insolvency of Grumbrecht coming to their knowledge, viz. on the 1st of September, 1843, caused ,a notice, of which the following is a copy, to be served upon the defendant personally:- [332] "We hereby demand and require you forthwith to re-deliver to Messrs. 568 THOMPSON "ZVSMAUu 1KXB.3SS; William Thompson & Co., o Allhallows Lane, London, merchants, the under-mentioned goods, shipped,by them, and now on board the ship called the 'Bucephalus,' under your command, bound for Sydney, viz. :-^ , "T. G. 19 sheets milled lead. 16 casks of shot. 4 tierces containing ground lead and red lead. 60 boxes tin-plates. "And we further give you notice that the said William Thompson & Co. hereby tender and offer to pay the reasonable charges attending the re-delivery of the said goods, and that, in case you refuse to re-deliver the same, the said William Thompson & Co. will commence an action against you for the recovery;of the same; and, in particular, we hereby further give you notice not to deliver the said goods nor sign any bill of lading for the same to, or in favour of, Theodore Grranbreeht, or his order. Dated, this 1st September, 1843. "To Mr. A. Small, captain of the said ship 'Bucephalus,' and to the owner or owners, and the brokers or broker of the said ship, and whom else it may concern." (Signed) " vandercom & Co. 23, Bush Lane, "Solicitors for the said William Thompson & Co." The defendant, upon being served with the said notice, stated that he should not deliver the goods, but that he should hand the notice to his solicitors, and that Vandercom & Co. would hear from them. On the 2nd of September, a copy of the same notice was also served, by direction of the plaintiffs, upon Mr. Lindsay, the broker of the " Bucephalus," who then said that he was only acting as broker, and that he should take the demand to Crowder & Co., and act under their advice. [333] On the 4th of September, 1843,-the plaintiff's attorneys, Vandercom & Co., received from Crowder & Maynard, then the defendant's attorneys, a letter of which the following is a copy :- " 57, Coleman Street, 4th September, 1843. " Sirs,-Mr. Small, master of the ' Bucephalus,' has brought us your notices on behalf of Messrs. Thompson & Forman and William Thompson & Co.; and we shall be glad to know on what ground you claim the redelivery of the goods there referred to. It is proper to mention that Mr. Grumbrecht, on whose account these goods were understood to be shipped, is himself the charterer of the ' Bucephalus' for her present voyage." (Signed) ".crowder & maynard." To this letter Vandercom & Co., on the same 4th of September, replied as follows:- " Sirs,-Messrs. Thompson & Forman and Messrs. William Thompson & Co. are the shippers of the goods in question for Sydney, and they hold the mate's receipts for them. The vendee having failed, they claim to be entitled to stop the goods; vide Thompson v. Trail" (2 Carr. & P. 334), " and the other cases cited. We apprehend the circumstance of the vendee being the charterer of the ship does not affect the vendor's right to stop in transitu; vide Bohtlingk v. Inglis" (3 East, 381). (Signed) "vandercom & Co. "P.S.-Please let us know immediately what your clients purpose to do. We apprehend our clients are not answerable for freight." In answer to which last-mentioned letter, Crowder & Co., the defendant's attorneys, on the 5th of September, [334] 1843, wrote and forwarded to Vandercom & Co., the plaintiffs attorneys, a letter in the following terms :- "57, Coleman Street, 5th September, 1843. " Sirs,-Unless some general arrangement can be effected in regard to the ' Bucephalus,' we are disposed to think that the ship must proceed to her destination with the cargo now on board; and in that case your clients must claim their property (if they are entitled to it) on her...
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