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1862. Lush and Murphy for the plaintiffs.
Pickernell Dejiman and Revo for the defendant.
and Another m ._, . , . , . .
t>. Ine plaintiffs case, in support of which both were called,
Auberry. wag ^^ an agreement had been entered into between themselves and the defendant, by which the latter bound himself to ship 2,000 boxes of oranges on board the plaintiffs' ship Sampson, at Valentia, in respect of which freight was to be paid after the rate of 4*. 6d. per box. The defendant, who was also called, swore, on the other hand, that the sum due for freight was after the rate of 3*. 6d. per box, as appeared by the bill of lading; that he had simply recommended the plaintiffs to send the Sampson to Valentia, and furnished the captain with letters of introduction to his correspondents there, who accordingly shipped oranges under an agreement with the captain for the lesser sum. It was alleged on the part of the plaintiff that the captain had signed the bill of lading under duress. The plaintiffs also claimed freight for 567 additional boxes of oranges, after the rate of 4s. 3d. per box.
The plaintiffs are ship brokers in Fenchurch Street, and the defendant is a merchant in the Spanish trade.
The bill of lading signed by the master was only for freight at the rate of 3s. 6d. per box.
The question was, whether the freight was to be at that rate or at 4s. 6d.
Erle, C. J., told the jury that the master would have no authority to sign bills of lading for a lower rate of freight than the owner had contracted for, and left it to them, whether the plaintiffs here had contracted for freight at the higher rate.
The jury found for the plaintiffs, 200/. 15s. 9d.
HERSCHFELD v. BROWN. . "T^
ACTION for the conversion of a bill of exchange of .
0 A person re
the plaintiff for 500/. and also for the detention from the ceiving a bill plaintiff of a bill for 500/., dated 1st February, 1861, drawn counted, has by H. upon R. & Co., accepted by them and indorsed to SedwUh^ *°
the plaintiff. otherwise than
Third count, on a bailment of the bill by the plaintiff and a deposit
to the defendant for discount and without consideration. otherbil"?with
Breach: that the defendant, without discounting it for a b'U-broker
° as a security
the plaintiff, indorsed it to the Bank of London, for for advances, value paid by them to the defendant, whereby the plaintiff having notice not only lost the bill but was sued upon it. lWeredfoTdlsI
Common counts, for money received and money paid, &c. count, is be
yond the scope
Pleas: not guilty, not possessed, and, to the special of the authocount, denying the bailment on the terms alleged. pasiesnopro
Lush and Rosher for the plaintiff. per^'
Hawkins and Murphy for the defendant.
The various counts in the declaration all related to one and the same bill—a bill for 500/., drawn in February, 1861, by the plaintiff's brother, a merchant, abroad. The plaintiff was a merchant in London, and in February, 1861, received the bill from his brother in the usual course of business. It was payable in three months. The plaintiff desired to have it discounted, and applied for that purpose to one Salomonson, who professed to carry on the business of a bill broker. He told the plaintiff he could not discount it but could get it discounted, and the plaintiff indorsed the bill in blank, and handed it to him for the purpose. Salomonson never got the bill discounted, and on the 12th March became bankrupt, before which he had handed it over to the defendant, a bill broker, without the knowledge of the plaintiff.
In May, it appeared that the bill had been passed to the bank, who sued the now plaintiff upon it, and their action was now pending and had not been tried.
1861. The plaintiff had given Salomonson other bills to dis
Herschfeld countan(^ nad debited him with this bill and received from him afterwards two cheques (which were dishonoured) but not on account of this bill. Salomonson was called for the plaintiff and stated, that he had known the defendant, and had had many transactions with him. He himself had, till lately, been a clerk in a discount company's office, and the defendant knew that, and his circumstances. The defendant carried on discount business, and the witness had latterly taken bills to him and borrowed money upon them, not by way of discount but of loan. He gave the defendant the bill in question with others, about a week after he had it, but, so far as he remembered, without getting from him any money at the time. The defendant then had.bills in his hands to the amount of 7,000/., which he had taken from the witness. Neither by his own cheques nor by the defendant's had the plaintiff ever received any money on account of this bill. And the defendant owed the witness about 3,700/. on the bills he had, as he had only had about half their value in cash. He told the defendant that the bill came from the plaintiff, and that it was for discount, but defendant declined to discount it. The witness in crossexamination admitted, that afterwards the defendant had proposed to discount all the bills under a special arrangement, by which bonds were to be taken as money, and he had given a cheque for 400/. to Salomonson. After this, in March, the defendant got the bill discounted at the Bank of London. The drawer had since then paid it. The bill had been demanded from the defendant (a).
Hawkins, for the defendant, opened, that he had been, as a bill broker, in the habit of receiving bills from Salomonson to discount, and took this bill in the ordinary course of business, and he cited Haynes v. Foster (b), and profa) A demand of a bill after it the demand is too late; Jones v. has been transferred is of course Fort, 9 B. C. 764; Sternold v. nugatory; the conversion is in the Holden, 4 B. & C. 5. transfer, if it was wrongful; if not (4) 2 C. & M. 237; see also posed to prove that defendant had made an arrangement 1862. with Salomonson for the discount, on condition of his taking certain bonds.
Erle, C. J., said, even supposing that proved, it would not be any defence to the action for an advance of money, for it would not be according to the authority given by the plaintiff, which was to get the bill discounted for money; the arrangement opened and already partly proved between Brown and Salomonson, was to be of a special character, by which the bill was to be mixed up with others, and certain securities were to be substituted for money, which they agreed together to call "discounting." It will be for the jury whether it was in pursuance of the authority given by the plaintiff, and of which the defendant had notice.
The jury said they were unanimously of opinion that it was not according to the plaintiff's authority, but was beyond the scope of it.
Erle, C. J., thereupon directed a
Verdict for the plaintiff.
Foster v. Pearson, 1 C, M. & R. deposit the whole mass as a sc
849. There it was held, however, curity for an advance of money to
that even a bill-broker having re- himself, still less for monies already
ceived a bill to discount, had no due from him.
right to mix it with other bills and •
LEVERSON V. LANE AND ANOTHER. London Sittings.
_. Trinity Term.
JLllE action was to recover the amount of a bill of ex- One member of change for 184/. 6*. 3d., drawn by the plaintiff on and ^"/"haVing" accepted in the name of Stearne & Lane. Stearne had siven in an.
* acceptance in
suffered judgment by default: Lane denied the acceptance, the name of the
J ° J 'Brm, for a bill
Diqby Seymour and Cole for the plaintiff. g'*e» by him
•> *" » self m his own
name for money due on a speculation in diamonds :—Held, that in the absence of any evidence of an express authority from the firm to accept in the partnership's name, there was no authority to do so.
VOL. HI, R F.P.
Hayes, Serjt., and O'Brien, Serjt., for Lane.
The plaintiff was a diamond and general merchant in Bucklersbury, and the defendant, Mr. Lane, had been a farmer in Warwickshire, but subsequently he was a member of the firm of Stearne & Lane, wheel manufacturers in Newington Causeway.
The acceptance having been proved; it appeared that Mr. Stearne had had some transactions in diamonds with the plaintiff and gave him his own acceptance, but subsequently he gave in exchange for this the acceptance in the name of the firm, which was now sued upon. Mr. Stearne was not called to show he had authority to give the acceptance of the firm in exchange for his own.
At the close of the case for the plaintiff,
Hayes, Serjt., objected that there was no evidence of an authority to give this bill.
Erle, C. J., said the onus was on the plaintiff to show that the co-defendant, Stearne, had express authority to give an acceptance in the name of the partnership, as it appeared that it was given for another bill accepted by Stearne alone, and that the consideration was diamonds; which, prima facie, had nothing to do with the business of a wheelwright.
Seymour submitted that, as the defendants were in trade and the acceptance was in the name of the firm, no express authority was necessary.
Erle, C. J.—A partner in trade has authority to bind his co-partners by bills, accepted in the name, unless the drawer knew that they were not for partnership purposes. Here this must have been known to the plaintiff, for the bill originally was for Stearne's own separate transactions, in their own nature having nothing to do with the partnership business. I think there is no evidence of any autho