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1862.

LIENARD Dre

Shee, Serit., and H. James for the plaintiff.
Lush, Karslake and Aspland for the defendant..

The plaintiff was a merchant at Lille, in France, and the defendant is a merchant in London. In May, 1860, the defendant, on the instructions of the plaintiff, bought for him 150 tons of tallow, fifty tons to be delivered in the last fourteen days of October, fifty tons in the last fourteen days of November, and fifty tons in the last fourteen days of December, the value of which was upwards of 8,0001. The defendant was, of course, liable to the seller for the amount of the contract price, the principal for whom he was buying being unknown to the seller.

In May the tallow market was buoyant, and the price of tallow rising. Shortly after it changed, and the price fell.

In September it became suspected that the plaintiff was in failing circumstances, and on the 1st of October he sent out circulars convening a meeting of his creditors, which was subsequently held, when a composition was agreed to.

The defendant, on the 8th of October, sold the tallow which he had bought for the plaintiff on his own account, and the plaintiff now brought this action to recover damages for his so doing.

The defence set up was a custom in the tallow trade by which an agent who has bought, for an unnamed principal, tallow to be delivered at a future day, may, if the principal fails or is a defaulter, during the continuance of the failure close the transaction, and sell on his own account, remitting the surplus (if any) to the principal.

On bebalf of the plaintiff, the secretary of the Baltic Coffee-house and a merchant in the tallow trade gave evidence to the effect that there was no such custom, while on the part of the defendant four merchants gave evidence that such a custom existed.

ERLE, C. J., ruled that the proper question to put to the witnesses was,

1862.

LIENARD

DRESSLAR.

“Where there is a bargain by an agent for an unnamed principal, for the purchase of tallow, deliverable at a future day, and the principal fails before the time for delivery, is there a custom by which the agent has a right to close the transaction by re-selling ?

The evidence for the defendant as to the custom was, that in such a case there was such a custom, and that the agent could debit bis principal with any loss and credit him with any gain on the transaction.

ERLE, C. J., left the question to the jury, whether there was such a custom, telling them that if there was, it would be a defence, although the defendant did not ostensibly act on the custom.

Verdict for the defendant.

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London Sittings. FOSTER v. THE BANK OF LONDON. Trinity Term. Bankers hav DECLARATION that the plaintiff employed the deing disclosed the state of a fendants as his bankers, for their benefit as well as for his, customer's ac

and upon the terms, inter alia, that the defendants and count to another of their their servants would not, during the continuance of their customers, one of his credi- employment, disclose to any person, without the plaintiff's tors: held that it was for the

consent, the state of the plaintiff's account with defendjury whether ants as his bankers. there was a duty not to make such a

Breach : that the defendants disclosed to De Roo & Co.

the state of the plaintiff's account with the defendants, although there was no evi- whereby they became aware that the balance standing to dence of it beyond the ex- the plaintiff's credit was short of the amount of a bill of istence of the

exchange drawn by De Roo upon and accepted by the plainrelation of banker and tiff, and made payable at the defendants' banking-house, and

were enabled to, and by reason of their said knowledge did, pay to the credit of the plaintiff's account a sum sufficient to make up the deficiency, and by means of the promises obtained from the defendants, as the plaintiff's bankers, payment of the plaintiff's acceptance, and he thereby lost

disc

customer.

1862.

FOSTER

WY

THE BANK OF

LONDON.

the sum which had been standing to his credit, viz., 4381., and was prevented from paying other claims upon him in the way of his business, and by reason thereof necessarily stopped payment, and was ruined.

Second count, that in consideration of the plaintiff's employing the defendants as his bankers, they promised to render him just and true accounts, whereas they rendered him a false account, stating that a sum had been received to the plaintiff's credit at a time when it had not been received, &c.

Lush and W. Williams for the plaintiff.
Bovill and J. Brown for the defendants.

The bill in question had been drawn upon and accepted by the plaintiff in favour of a firm called Perederoos & Co., and was payable in October, 1861, for 1981., and there was also a cheque drawn in May, 1861, by him in their favour on the defendants' bank for 2501. Several times before the 11th December they had applied to the plaintiff for payment, and he admitted that he at that time owed them about 6001. On the 10th December they applied to him for payment, and he said he could not pay them; on which they said, “You must not be surprised, then, at what we do; we cannot wait any longer.” On the 11th December the plaintiff stated that he called at the bank and saw the manager, and told him that the bill and cheque were not for value but for accommodation, and that he desired that if they were presented they should not be paid. On the 12th December the same member of the firm of Perederoos & Co., who also were customers of the bank, and had introduced the plaintiff to them, called at the bank and saw the manager, and stated that they held the bill and cheque, and asked the state of the plaintiff's account, and being told, asked whether, if he paid in 1041., the sum required to meet the amount, they could be paid. It appeared that he was told that they would, and thereupon, on the same day, they were presented and paid, and

1862.

FOSTER

v. THE BANK OF

LONDON.

on the next day, the 13th, a cheque of the firm for 1041., dated on that day, the 13th, was paid in to the plaintiff's account, but entered in the pass-book on the 12th.

On the 12th December the plaintiff had paid 1,2001. to his credit, and before the inquiries made had drawn out so much, that there remained only 4081., so that 1041. would be required to be paid in to meet the bill and cheque, and on the presentation and payment of the latter he was left without assets. The manager of the bank had been examined on interrogatories, and denied that there had been any particular directions as to the entry of the 1041. to the plaintiff's credit, or that he knew how it was that it appeared in the pass-book as paid in before the 1,2001., on the 12th, and declared it was all in the usual course of business. In answer to two interrogatories, he stated, “ It has not been the usual or general practice of the bank to insert in the ledger accounts and pass-books of their customers the various sums with which they credit their customers in the order in which they are received by the bank. It has not been the general or usual practice at the bank to give information about the state of a customer's account with them to any person not authorized by the customer to receive such information.”

After the payments, the plaintiff's attorney went to see the defendants' manager, and complained of his having paid a bill nine months overdue without instructions, and said, “ I understand that a cheque was paid in to enable you to hand the balance over to your customers, Perederoos & Co.” The manager made no reply to this, and admitted that there must have been a disclosure of the account, but went on to suggest that the matter should be settled.

The plaintiff stated that he had not disclosed the state of his account, nor authorized the defendants to disclose it.

Bovill submitted that there was no evidence of a duty in a banker not to disclose the state of a customer's ac

FOSTER

v.

count. And in a recent case in this Court in banco, it had 1862. been held (a), he said, on demurrer, that the Court could not say that there was such a duty in law.

The BANK OF ERLE, C. J.—Here it is not on demurrer, as a mere LONDON. question of law, but on an issue of fact, whether there is such a duty, and I think it is a case for the jury (6).

Bovill then went to the jury, and stated, that on the 12th December, when the bill and cheque were presented the holders were told in effect, that 1041. would be wanted to meet them, and they thereupon proposed to pay in that account, and did so, and the bill and cheque were then paid, and he urged that a banker when a cheque was presented might say “Not enough to meet it by such a sum.”

ERLE, C. J., said, the banker could not go further than say, “Not sufficient assets.”

The jury unanimously expressed themselves to the same effect.

ERLE, C. J.—That is, the jury are of opinion that it is the duty of a banker in no way to disclose the state of his customer's account?

The jury said they were. ERLE, C. J., said, he was not aware of any law against that; and, on that finding, the verdict must be for the plaintiff, with leave to move.

Verdict for the plaintiff, 4321. (a) Tassell v. Cooper, 9 C. B. 3. (6) Hayes v. Tindall, 2 F. & F. 444.

ere.

PICKERNELL AND ANOTHER V. JAUBERRY. London Sittings.

Trinity Term. ACTION for freight, the particulars claiming for 2,000 The master of

a ship has no boxes of oranges at 4s. 6d., and 567 at 4s. 3d. The de- aut fendant paid into Court 375l. 17s. 6d., alleging that sum to si

w lading for a be sufficient, which the plaintiffs denied.

lower rate of

freight than the owner had contracted for.

Is of

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