1860.

TURNER

v.

HUTCHINSON.

He was called, and denied that he had ever heard of any other than the ordinary terms. Shaw had since died.

BLACKBURN, J. (to the jury).-Was there any authority in fact from the defendant to Shaw to enter into such an agreement as the plaintiff sets up? or did the defendant hold out Shaw, or allow him to act and appear as if he had such authority? If so, find for the plaintiff; but if not, and if you believe Shaw had only authority to let in tenants on the ordinary terms, find for the defendant.

Verdict for the defendant.

Summer Assizes.

DICKENSON AND ANOTHER V. LANO.

The defendant, ACTION for freight and demurrage.

manager of a stone quarry, signed a shipping note, expressing that

stone was

shipped on board the

plaintiff's ves

sel to be carried for the owner of the quarry, who

however never appeared. In reality it was shipped for the purchaser of the stone, the real consignee.

Declaration, that in consideration that the plaintiffs at the request of the defendant would receive on board their vessel a quantity of stone, to be carried in their vessel from Portland to London, for reward to them, the defendant promised them to receive the stone from out of the vessel within a reasonable time after its arrival at London.

Averment, that the plaintiffs received the stone on those terms and carried it to London, where it was ready to be discharged within a reasonable time, whereof the defendant had notice, and took a part of it away.

Breach, that he did not within a reasonable time take the residue of it away, but neglected so to do, whereby the plaintiff's lost the use of their vessel a long time and were that in such put to charges, &c.

In an action for freight and demurrage, evi

dence of

cases the

usage

quarry owner

never paid

Second count, for money payable for freight and for the conveyance of goods, and also for demurrage of a ship of admitted, and the plaintiffs kept and detained by the defendant on demurrage, &c.

freight, &c. was

the question,

whether the

stone was

shipped for the

defendant, was

Pleas 1. That the defendant did not agree as alleged.

:

2. That the plaintiffs were not ready to deliver the stone

left to the jury within a reasonable time, according to the contract.

upon all the

circumstances.

3. That the plaintiffs prevented the defendant from taking away the residue of the stone according to the con

tract.

4. That the plaintiffs, before any breach, exonerated the defendant.

5. (To the third count.) That he did not detain the vessel.

6. (To the second and third counts.) Never indebted. Parry, Serjt., and Barnard for the plaintiffs.

Hawkins and Maud for the defendant.

It was opened for the plaintiffs that one Williamson was the agent of the defendant, and had first delayed the unloading and then had disappeared.

The case for the plaintiffs being closed,

Hawkins opened for the defendant, that he was not the owner of the stone, but the foreman or manager of one Weston, the owner of the quarry; that Williamson had bought the stone and that the defendant as his agent had engaged the plaintiffs' vessel to carry it.

The shipping note given by the defendant was as follows:

"Shipped on board the M-, 31 blocks containing 88 tons, for Mr. G. Weston, of Dalston, London Hermitage Wharf, Wapping; freight 7s. per ton. (Signed) J. LANO."

A letter from Williamson to the defendant directing him to get freight at the lowest rate was put in evidence.

The defendant stated that it was usual for the quarrymasters to give such notes on the shipment of stone, but that they had nothing to do with the stone after ship

ment.

Hawkins asked if there was any usage in the business as to the payment of freight in such cases.

Parry, Serjt., objected that the evidence of usage was inadmissible to control the contract, and that even if it

VOL. II.

P

F.F.

1860.

DICKENSON and Another

V.

LANO.

1860.

DICKENSON and Another

v.

LANO.

were admissible, the witness was not a proper person to give it, being only a stone merchant, not acquainted with the customs of shipping.

BLACKBURN, J.-There is no contract in writing (a), and the usage is not as between consignor and consignee, but as between shipper and shipowner. I think, therefore, that the evidence is admissible.

The defendant then stated that he never paid freight in such cases in his life, nor had he ever known the other quarry-masters do so-that the consignee always paid it.

Parry, Serjt. That begs the question, whether the shipper is liable; or the custom is bad, being a custom that shippers shall not pay their debts. Besides, a custom that the consignees pay does not show that the shippers are not liable to pay.

BLACKBURN, J. (to the jury).—The question is, whether the defendant is liable. That depends upon whether the plaintiffs took the stone on board to be carried for the defendant or for Williamson. If for the defendant, then he is liable; if for Williamson, the real consignee, then the defendant is not liable, and the plaintiffs' remedy is against Williamson.

Prima facie the contract is with the owner of the goods, as in the ordinary case of goods delivered on behalf of a vendee to a carrier, at the vendee's risk. The custom here set up is in truth nothing more than this-that what is the general law prevails in the stone trade. But if the carrier made a bargain with any one else, as the party who bought the goods, clearly that bargain would bind. So here the question is, whether there was such a bargain

(a) Where there is, as here, not a contract in writing, but a mere memorandum, part of a transaction, the question of liability is for the jury on all the circumstances, as in the converse case of liability of

consignee on receipt of the goods; Wegner v. Smith, 15 C. B. 285; 24 L J., C. P. 28; Smith v. Seiveking, 4 E. & B. 945; 24 L. J., Q. B. 257.

1860.

DICKENSON

between the plaintiffs and the defendant, that is, an agreement with the defendant at the time of shipment, to carry the stone for him. There is no contract in writing, the and Another written memorandum put in evidence is not clear as to the parties to the contract. It may be, either that the defendant made the contract for Williamson or made it for him

self at Williamson's request. The master of the ship has a lien for freight, but not for demurrage, so that as to the latter, he would be likely to enter into some express

contract.

Verdict for the plaintiffs.

v.

LANO.

3. Justification under a right of way granted by the plaintiff to one Cuddon, the owner of close C., afterwards conveyed by Cuddon to the defendant.

Essex Summer
Assizes.

In an action of trespass, the question being as to a right of way over the

locus in quo as an equitable plea, stating

that the defendant had contracted to

one C. a close, to which was

attached the question, and right of way in that the plain

tiff had con

tracted with C. to purchase the

4. Justification under rights of way attached to close purchase from C., reserved by Cuddon to the right of way by necessity. 5. For a defence on equitable grounds, that Cuddon being seised of C. put it up for sale along with other closes A., B., D., &c. on certain conditions, inter alia, that they should be sold, subject to all ways and rights of way then used and enjoyed over the same respectively. That locus in quo the plaintiff agreed with Cuddon to purchase lot A. (the right, but that locus in quo), and the defendant agreed with Cuddon purchase lot C. That afterwards Cuddon, in consideration of the purchase-money paid by the defendant on the faith of the said conditions, by deed conveyed lot C. to the defendant with all ways and rights thereto appertaining, That the tenants and occupiers of C. had used and enjoyed

to

subject to such

by their mutual
been omitted
in the convey-
ance; evidence

mistake it had

admitted on the part of the plaintiff as to

what C. said at

the sale as to

the close con

veyed to defendant, in order to negative the alleged agreement with him.

1860.

SCOTT

v.

SYKES.

a certain way over the locus in quo, which was and is ne-
cessary to its convenient enjoyment: that at the time of
the agreement with defendant, the existence of the way
was notorious and apparent (a), and that the plaintiff
knew it, or had he made reasonable inquiries would have
known of it: that after the agreement with defendant,
but before the conveyance to him, Cuddon conveyed lot A.,
the locus in quo to the plaintiff, by a deed which purported
and was intended by the plaintiff and Cuddon to be made
in conformity with the plaintiff's agreement, but by acci-
dental error and mistake was not made subject to ways as
aforesaid as it ought to have been, &c. Issue.
Lush and G. Denman for the plaintiff.

Bovill and L. Kelly for the defendant.

The locus in quo and all the adjoining land belonged in 1858 to one Hurrell, who had possessed it for some years previously; and while he was the owner the only way used from the land, now the defendant's, to the road was the way in question, over the locus in quo, and that any other access was almost impracticable.

In 1858 one Cuddon purchased the whole of the land. In September, 1858, Cuddon sold the land in various lots to different persons, and the plaintiff bought the locus

in quo.

In October the defendant bought lot C., the land to which, as was alleged, the way in question had been used.

Afterwards the conveyance to the plaintiff was executed prior in date to that of the defendant, and it contained the usual terms, "all ways, paths, &c. thereunto belonging or appertaining," &c., without any express exception or reservation of the way in question. The conveyance to the defendant contained similar terms as regarded the land conveyed to him. The conditions of sale contained no terms such as were stated in the equitable plea.

(a) See Glave v. Harding, 27 L. J., Exch. 286.