that "it would have been to sacrifice the goods entirely to send them out ;" that "they were available in this country, but would have been sacrificed by going out." Mr. Campbell, the broker to the Liverpool Underwriters' Association, stated that the goods were saturated with salt-water, and rendered unmerchantable (which he explained to mean, in such a condition that they could not have been disposed of at the Havana as merchantable or sound goods), quite irrespective of any question of freight;" that the Manchester and Bradford goods, the freight upon which were 6301., or more than half the entire freight, were perishing rapidly, and quite unfit for re-shipment to the Havana, and that "the great bulk of them, if sent on, would have been almost worthless;" that the goods had been deteriorated to the extent of 55 to 60 per cent., and that "a delay of a week in selling them would have made a material difference;" and that, "unless they were re-calendered and re-printed, they would not have been available for any purpose in the Havana." In answer to the jury, he stated that probably the printed goods might have been sent back and reprinted, but that, "because of the rice having got into almost every package, there was an amount of mildew which rendered that unadvisable." Mr. Alexander, surveyor to the Mersey Dock Board, confirmed this evidence. Mr. Fallows, a calenderer and packer, gave evidence to the same effect, and, with respect to the blankets, stated that a great many of them were in such a state as that, "if you took one by one end, the other would fall off." He added that "all the goods were not utterly worthless," but that, in his opinion, "they would have been so if kept for six months or less." Upon finding the state of the goods, the defendants came to the conclusion that the best thing to do for all parties, was that the goods should be at once sold; which they were on the 12th of September, when they realised a gross sum of 76877. 18s. 2d. After the goods had been taken by the defendants to Liverpool, and before the sale, a correspondence took place between them and the owners of the vessel, which ripened before the sale into a claim for the entire freight to Havana, or that the goods should be detained in order to proceed in the vessel. In the result, the sale was allowed to take place, but, as we shall assume in favour of the plaintiff, without prejudice to his claim. Thereupon the present action was brought, claiming in one count damages for wrongfully preventing the plaintiff from carrying on the goods to the Havana and earning freight, and in another count freight for the carriage of the goods. This latter count, to which the defendants had pleaded a set-off of the moneys paid by them for salvage on account of the vessel, was abandoned at the trial before Willes, J., at Liverpool; and the plaintiff relied upon the first count, to which the set-off was inapplicable. The learned Judge told the jury, in effect, that the defendants were justified in what they did, provided what they did was the reasonable course to take, hav ing regard to the interests of all parties: and the jury found for the defendants,-adding, that they believed their witnesses. The jury were not agreed upon the question whether or not the goods were returned absolutely and unconditionally. A rule was obtained to set aside this verdict, upon the ground of misdirection, in telling the jury, that if it was unreasonable, having regard to the interests of all parties, that the goods should go on, the defendants were justified; which rule was argued in Hilary Term last, before Erle, C.J., myself, Willes, J., and Keating, J., when the Court took time to consider. On the part of the plaintiff it was insisted by Mr. Brett and Mr. Quain, in an argument of uncommon force and learning, that the ship-owners were entitled to insist upon having the goods returned to them, if any substantial part thereof was capable of being carried on in specie to the Havana, and that it mattered not how injurious this might be to the shippers, or even indeed to the ship-owners; and that, as the shipowners were not found to have intended to give up the voyage, the sale of the goods, however reasonable it might be, was a breach of contract, and must be answered for in damages. This argument, as applied to a case where the act of the shipper in taking possession of the goods is wrong. ful and unauthorised, is sustained by a series of authorities cited in the argument, and is unanswerable, even to the extent of showing that the ship-owner is entitled to the entire freight, less discount. It is inapplicable to a case where the goods are taken back absolutely and unconditionally by consent on both sides, the further carriage of the goods being intentionally dispensed with; and ordinarily in such a case the ship-owner becomes entitled to freight pro ratâ itineris. Whether the argument is applicable to the intermediate case of the goods being returned, not absolutely, but with an authority to the charterer to act for the ship as well as for the cargo, and such authority having been acted upon, and expense thereby incurred, before any countermand, is the question which we have to consider. That question divides itself into two branches,first, as to the lawfulness of the act of the defendants, apart from the express opposition of the owners to the sale taking place. As to this, we think it clear that a sale of the damaged goods was within the scope of the defendants, authority under the letter of the 9th of August, provided such sale was the reasonable course to take, having regard to the interests of all parties. Under the extraordinary circumstances, it became the duty of the plaintiff as master to act for the best, with a due regard to the safety of the cargo. A great responsibility rested upon him in respect of this duty, which it was his interest to be rid of. The state of the cargo also was sure to raise difficulties at the Havana; and the master was answerable for part of the freight, so that, at the best, the certain present risk and inconvenience of keeping the cargo could only be paid for in future uncertain and litigious profit. Considerable expense had been already incurred. It was necessary to incur more. The vessel had been necessarily lightened of a great part of her cargo, whilst she was in a state in which it was doubtful whether she could ever be repaired. Under these circumstances, the plaintiff gave the authority to the defendants, without which they declined to act. The circumstances, therefore, under which the letter of the 9th of August was given establish beyond doubt the intention which it clearly expresses, that the defendants, in receiving the cargo, did not simply consent to take upon them the burthen and expenses of representing the vessel, which they were under no obligation to do, but either absolutely to put an end to the voyage, or at least with an authority to do the best, having regard to the interests of all parties. Indeed, the plaintiff, though he stated that he gave no authority to sell the goods, and that they went to Liverpool because Sparke said it was the best place to dry and prepare them, admitted that Sparke's offer was, to do his best for him as well as the cargo, upon which the letter of the 9th of August was given, and that the plaintiff "left it to Sparke to do the best he could." In our The defendants thus had authority to sell as they did, unless that authority was countermandable and countermanded by the owners of the vessel. opinion, however, it was an authority which could not under the circumstances be countermanded after the defendants had acted and incurred expense in acting upon it as they did, inter alia, by incurring the expense of taking the goods to Liverpool long before any objection was made. Therefore, the plaintiff's argument has failed; and, having carefully considered the evidence, we think the verdict for the defendants is in accordance with the manifest justice of the case. in the annexed schedule,-applies also to cases in which the defendant succeeds. This was an action for unliquidated damages for not unloading within a reasonable time, and had been tried before the sheriff by Judge's order made during the vacation. Verdict for the defendant. On taxation the Master taxed the defendant's costs on the lower scale. Prentice, for the defendant, now moved for a rule to show cause why the Master should not review his taxation, and tax the costs on the higher scale. The Master had acted on the 7th section of the Directions to the Masters, H. T. 1853; but he submitted that that section did not apply, 1st. Because only plaintiff's costs are mentioned in it. 2nd. Because it only contemplated such actions as are properly triable before the sheriff, which this action was not, having been for unliquidated damages. The scale of costs annexed to the Directions is headed "General Allowance for Plaintiffs and Defendants;" but that could not supply the omission in the 7th section referred to. ERLE, C.J.—I am of opinion that there should be no rule. The result of the directions in section 7, and of the schedule of charges taken together, is, that, in cases properly triable before the sheriff, the costs of lower scale. This we also understand to be the general the defendant, if he succeeds, are to be taxed on the practice among the Masters. But Mr. Prentice argues that this case was not properly triable before the sheriff. Now, he has not attempted to set aside the verdict; but, on the contrary, adopts it, and we cannot allow him to endeavour at the same time to impeach the verdict on one ground, and to deal with it as valid on another. November 26, he entered again and distrained, break- sent such goods as he pleased. Neither of the three had ing open the door with a sledge-hammer. The Judge asked the jury whether the defendant intended to abandon the original distress or not, which original distress, he told them, was legally made. Laxton, moved for a new trial, on the ground of misdirection, citing, Brown v. Glenn, 16 Q. B. 254; s. c. 20 L. J. Q. B. 205; Ryan v. Shilcock, 7 Exch. 72; s. c. 21 L. J. Ex. 55; and Co. Litt. 161a (Enclosure). ERLE, C.J.-I do not think the distress illegal because the person making it got over a fence. It was a question for the jury, whether the landlord intended to abandon his distress by waiting from the 6th to the 26th of November, or whether he was afraid of the plaintiff's violence, and the Judge was right in leaving it to them. any authority to pledge the credit of the others for the goods which he might send to the ship, and each was to share in the profit according to the amount of goods he might send. The plaintiffs rested their case on the written agreement of the 29th of May, which they contended made the three persons partners, and each liable for the goods purchased for the adventure, and therefore that the defendant was liable for the goods which were purchased by Pearson, and shipped on board in pursuance of the agreement. The learned Judge held, that this was a separate adventure as regarded the three, but that when the entire 9000l. was put on board, then it would be there for the purpose of the three; and that neither of the three had authority to pledge the credit of the others for the goods he might put on board, unless the agreement of the 29th of May gave that authority, which, under the circumstances, he thought it did not; and therefore he directed a verdict for the defendant, giving the plaintiffs leave to move the Court to enter a verdict for WILLIAMS, BYLES, and KEATING, JJ., concurred. them on the point as to the construction of the agree Rule refused. ment. Partnership-Agreement. An agreement between A, B, and C, that they will each put 3000l. worth of goods on board a vessel for a joint adventure, the profit and loss of which is to be shared between them, does not make them partners; therefore a person who has furnished A with his 30007. worth of goods, cannot sue B or C for the amount. This action was tried at Guildhall before Erle, C.J., under the following circumstances : The plaintiffs sued the defendant to recover 13771. 58. for the value of flannel goods and others of a similar description, under the following circumstances:-It appeared that in May, 1862, one Pearson, of Hull, was the owner of the steamer "Peterhoff," and that he chartered the vessel to the defendant, who was a wine and spirit merchant of Hull, and that on the 29th of May, Pearson, the defendant, and one K, entered into a written agreement each to contribute 30007. for the purpose of procuring an outward cargo to an open port in the Confederate States of America, where Pearson had a cargo of cotton, turpentine, &c., which he wished to dispose of and bring home, and they were to share in the profits if they could get it home. In point of fact, no money was contributed according to the agreement, but each of them sent what goods he pleased. The defendant said he would send only goods in the way of his trade as a wine and spirit merchant. Pearson sent the goods which were the subject of this action; he bought them of the agent of the plaintiffs, who called on him and pressed him to buy. The invoices were made out to Pearson & Co., the name of Pearson's firm, and K Lush, Q.C., now moved accordingly. The question is, whether the defendant is liable as a partner of Pearson, and this turns entirely on the construction to be put on the agreement of the 29th of May, which is to the effect, that it is mutually agreed between Pearson, the defendant, and K, that the steamer that day chartered on their joint act and risk, was to be loaded with goods to the amount of 90007., the cargo to be on their joint account, each of the parties contributing 30007. This, I contend, constituted loss, and the learned Judge was wrong in asking the an ordinary partnership, each partner taking profit and jury whether they believed Pearson in stating that the three had agreed between themselves not to be responsible for each other's share, and then directing a verdict for the defendant. He cited, Kilshaw v. Jukes, 2 N. R. 161; s. c. 32 L. J. are bound to pay for it, if there be evidence to satisfy the jury that the secretary was the general agent of the directors, even though the work was not ordered at a board meeting. This was an action brought against the defendants as trustees of the Planet Benefit Building and Investment Society, established under the provisions of 6 & 7 Will 4, c. 32, for work and labour bestowed on repairing certain houses, of which the defendants (as such trustees) were mortgagees. A verdict was found for the plaintiff for 397. 14s. 9 JUNE, 1863. Huddleston, Q.C. (Waddy with him), obtained a rule, calling on the defendants to show cause why the verdict should not be reduced by the sum of 297. 14s. for work done to one of the houses, on the ground that there was no evidence to show that any authority was given by the defendants to execute the repairs in question, so as to fix them with liability. At the trial the rules of the society were put in evidence, and contained (inter alia) the following provisions: “The society shall be managed by a board of not less than nine, nor more than twelve directors five shall compose a board. The board of directors shall also meet as often as the business of the society shall require their attention; they shall order the pay ment of all moneys due from, or to be advanced by, the society, such order to be entered in the minute book and signed by the chairman. The directors shall have power to appoint agents or other officers ... Each director who shall attend the meetings of the board within . . . . shall be allowed the sum of 5s. . . . . The secretary shall enter minutes of all resolutions and the business of the society in a rough minute book; the same shall be fairly copied into another, to be read as part of the business of the next meeting, both to be signed by the chairman. . . . The secretary shall give immediate information to the chairman of anything that may come to his knowledge which he apprehends will be of advantage or disadvantage to the society, in order that they may deliberate . . . ." It appeared that the repairs in question were ordered by one Spurgeon, who was then secretary to the society. He gave evidence to the effect that he did not call a meeting of directors, as he did not think it worth while to go to that expense, but that he mentioned the fact of the repairs being ordered to two of the directors, and that they approved of what he had done. 9 Nov. 1863. Shee, Serjt., and Gilmore Evans, showed cause. They contended that the directors by the rules had power to appoint agents, and that Spurgeon was evideatly their agent for ordering these repairs, as well as their secretary, and that it was not necessary that every order should be signed by the chairman. [ERLE, C.J.-Private individuals may agree to give orders signed in a certain way; yet if they change their minds, give orders verbally, and get work done, they must pay for it.] They were here stopped by the Court. Waddy, in support of the rule. The argument on the other side would be applicable if the directors, who sanctioned the repairs, were sued individually. [BYLES, J.-The directors may appoint agents, and Spurgeon swears he was an agent.] They may appoint agents, but how? Five directors are necessary to make a quorum. [KEATING, J.-What rule is there that the directors shall not authorise repairs except by minute.] There were only two directors present. [WILLIAMS, J.-Then if all the directors with their chairman were together, and sent for a man and told him to execute repairs, it would not bind them unless entered in the minute book?] We do not contend that; but here there was no resolution, Spurgeon would not call a board in order to save expense, but says, I spoke to A, I spoke to B. [BYLES, J.-You have a difficulty to get over before this; Spurgeon gave the order, and, he says, he was an agent.] Rulley v. The Plymouth, Stonehouse, and Devonport Grinding and Baking Company, 2 Exch. 711, is in my favour, and shows that the plaintiff ought to show that Spurgeon had authority for what he did, besides which, he (the plaintiff) was a member of the society, and must have known its rules. ERLE, C.J.-This rule must be discharged. The society have had the benefit of the work and the materials provided, the order having been given by an officer of the society, and the plaintiff believing that it was ordered by the society, and several members of the society being well aware that the work was doing; and now, having got the benefit of the work, when the time arrives to pay for it, they say that it was not ordered in strict compliance with the rules of the society. The argument fails in point of fact, as there is no rule that excludes the society from giving the order they have given. The rules gave power to the directors to appoint agents, and Spurgeon had been appointed the general agent, and he was the agent who had ordered the repairs to the house. I think the orders given were within the scope of his authority, as it would be very wasteful, for instance, if an order to repair a broken window could not be given by the rules without convening a board of directors to give the order, and paying them 5s. each for their attendance to give the order: and this was only a question of degree. I think the jury justified in the verdict at which they had arrived. WILLIAMS, J.-I am of the same opinion. There was some evidence from which the jury might infer authority was given to Spurgeon, and plenty of evidence to show the defendants were aware that work had been done of which they reaped the benefit. Smith and Others v. The Hull Glass Company (11 C. B. 897), goes further than this; there Jervis, C.J., says, "the ground upon which I am disposed to hold the company liable in respect of the goods supplied on the orders of the chairman, the deputy-chairman, and the secretary, is, that these orders were subsequently adopted by the directors. The goods were delivered upon the premises, to persons acting in the management of the business of the company, and it must be assumed with the knowledge of the directors, and were used in the manufacture for which the company was established. That would be equivalent to a fresh order by the directors, and would entitle the plaintiffs to recover. There is no pretence for saying it is necessary the orders should be given by a board." BYLES, J.-I am of the same opinion. Even assuming that less than five directors cannot give valid orders, they had power to appoint agents, an unqualified and unlimited power to appoint agents for general purposes. Spurgeon swears, "I was their general agent." It is argued, he ought to be so appointed at a meeting of at least five directors, non constat that he was not. The question is one of evidence. KEATING, J.-The evidence of Spurgeon was in conflict with that of some of the other witnesses, and the jury gave credence to his statements. There certainly was evidence to show that the directors knew the work was done. Rule discharged. THE SUBMARINE TELEGRAPH Pleading-Negligence. A plea will not be disallowed as embarrassing, simply on the ground that it reveals more than one defence to the action. WILLIAMS, J., dubitante. In this case Archibald had obtained a rule nisi to rescind an order of Williams, J., disallowing a plea. The declaration was for negligently managing a ship and tackle in the English Channel, whereby portions of the submarine telegraph cable, laid down under her Majesty's charter, were injured. It is sufficient to state that the plea in question alleged that the defendants were aliens domiciled in Gottenburg, that the vessel was Swedish on a voyage from Alicante to Genoa, and that in the place in which the alleged injury was done, the vessel, in the ordinary course of navigation had cast anchor, being more than three miles from the coast, and without the realm of England, without having any notice of the position or existence of the cable, and that on drawing up the anchor the cable was accidentally drawn up and a little injured. There was a plea of not guilty among other pleas. Rochfort Clarke now showed cause the plea is simply an embarrassing repetition of the plea of not guilty already pleaded, and also an attempt to make out that if defendant is a foreigner, and he does any injury to the plaintiff on the high seas, he is not amenable to the English law, although he had appeared and pleaded. Formerly such a plea would have been bad for duplicity. Archibald, in support of his rule, my object was to put the real facts on the record in so novel a case as this: for it may well be that in the question of defendant is Swede or English, as the cable was put negligence it will make a serious difference whether Channel beyond three miles from the coast. down under her Majesty's charter in a part of the The Court will allow a plea, if they cannot see it clearly covered by a plea of not guilty. Sect. 52, Common Law Procedure Act 1852; and Frankum v. Earl of Falmouth, 6 C. & P. 529; 2 Ad. & E. 453; were cited. ERLE, C.J. Notwithstanding the difference of opinion of my learned Brother Williams, I consider that the plea should be allowed. WILLIAMS, J.-I entertain the same opinion I held allowed, because it is uncertain what is the real at Chambers, and I think the plea should be disdefence. It is very important that Judges should see, in allowing pleas at Chambers, that it is plain what defence is going to be set up. It appears to me to be one of those pleas, too common nowadays, which enable a defendant at the trial to set up a defence totally different from the one he instructs counsel to prepare. The first part of the plea states that the defendant is a foreigner, and that the injury was committed out of the realm of England. That I can quite understand as one defence on which the defendant relies, but then comes the second part of the plea, which develops a complete defence, showing there was no negligence. It is impossible, therefore, to see whether the plea denies the negligence, or admitting it, denies it to be actionable. There is doubt and ambiguity about it, and I consider it conceals the real defence. BYLES, J.-I have great respect for the opinion of my Brother Williams, but nevertheless, it seems to me that it would be dangerous to reject this plea. It may be that the circumstance of the defendant being a Swede, will make a difference in considering the question of negligence, or that the duty of a Swede and an Englishman might differ under the circumstance of the royal licence by the charter, or that the injury having occurred in the ordinary course of navigation, the defendant, if a Swede, may not be liable. KEATING, J.-I cannot see distinctly that it might not become material that the circumstances stated in the plea should be set forth on the record. Rule absolute. |