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them at the trial, and that therefore they had not provided 1862. any evidence as to the day when the loading of the iron
BREMNER was ready.
DANDO BELES, J., said he thought that was so, and indeed he
and Another. himself, at the close of the case for the plaintiff, had not seen the real importance of it. An adjournment, therefore, seemed necessary for justice, and in order to prevent a new trial on the ground of surprise, and therefore would be for the benefit of both parties. He would adjourn the case until the morrow.
Parry, Serjt.-On what terms?
BYLES, J.-On no other terms than allowing you, to adduce additional evidence on the point, the one single question of fact, which now remains, and on which alone I allow any additional evidence on either side. The costs of the adjournment will follow the usual rule, and be costs in the cause. If, on the question of fact, the jury find in favour of the plaintiffs, that will be final. If, however, they find that the shipment of the iron was not completed until the 20th of June, then I shall reserve the point raised for the defence, that the lay days did not run till then.
The trial was then adjourned until next day, on the terms above stated.
On the next day,
Evidence was called on the part of the plaintiff to rebut the defence, and eventually,
Verdict for the plaintiff.
Coram Keating, J. London Sittings
MARSH v. JELF. Trinity Term. On an employ- ACTION by an auctioneer for commission. ment of an auctioneer to Plea: never indebted. sell by auction there is no em- The claim was for commission at the rate of 21 per cent. ployment to sell by private on a sale, and there had been a Judge's order to preclude public sale
ne the plaintiff from going on a quantum meruit. abortive, and
Hawkins and Dowdeswell for the plaintiff. evidence of a custom to that
O'Brien, Serjt., and H. T. Cole for the defendant. effect among auctioneers is The plaintiff, an auctioneer, sued the defendant to renot admissible..
cover the sum of 661. 158., the balance of 821. 10s., alleged to be due for commission, at 2} per cent., on the sale of certain ground-rents arising from property in Sussex Place, Sussex Terrace, and Bridge Road, Hammersmith.
It appeared that the plaintiff put up the property for sale by auction on the 19th of December, 1861, and that it was bought in at the reserved price, 3,6001. The property was afterwards, on the 17th of January last, sold by private contract to Mr. Gatliff.
The real contest at the trial was, whether that sale had been negotiated through Mr. Marsh, or solely through the defendant's solicitor, Mr. Pilgrim. Mr. Marsh admitted that he had no express instructions to sell by private contract, but his case rested on the fact of Mr. Gatliff having been present at the sale, and of his clerk, Mr. Davis, having gone backwards and forwards between Mr. Gatliff and Mr. Pilgrim, and ascertained from them the state of the negotiations for the purchase by Mr. Gatliff, and having once urged Mr. Gatliff to make an advance in his offer. Mr. Pilgrim and Mr. Gatliff's evidence, however, showed that the plaintiff's clerk was acting as a volunteer, and without any instructions either from Mr. Gatliff or Mr. Pilgrim.
It appeared that Mr. Gatliff was a friend of Mr. Pil
grim's, and had called on him two days before the 19th of December to ascertain the reserved price, as a relative of his was desirous of purchasing if the price suited him.
On the 31st of March Mr. Pilgrim sent a cheque for fifteen guineas to the plaintiff, that being the sum he had agreed to accept if the property was not sold at the auction; the plaintiff, however, insisted on having his full demand of 821. 10s., at 25 per cent. on 3,3001., the price paid by Mr. Gatliff.
KEATING, J., in the course of the trial, asked the plaintiff's counsel how the plaintiff could have had any right to sell the property by private contract upon the original instructions to Mr. Marsh from Mr. Pilgrim for the sale.
It was proposed by the plaintiff to prove a custom among auctioneers to charge commission when property is sold by private contract, after an abortive attempt to sell by public auction; but
The learned Judge said that he would not receive evidence of such a custom to charge for services when pot done at the request of the party sought to be charged ; and that auctioneers could not among themselves make such a custom to bind the rest of her Majesty's subjects (a).
He was willing, he added, to receive evidence that where there was an engagement with the auctioneer that he should have his commission on a sale by private contract, that the custom was that this was an employment to sell by private contract.
No such evidence, however, was offered, and ultimately,
KBATING, J., left it to the jury, whether there was any employment of the plaintiff to sell by private contract.
Verdict for the defendant.
(a) Even if there had been such a custom shown, it would have
been nothing unless known to the defendant. See the next case.
LANSDOWNE v. SOMERVILLE AND ANOTHER. London Sittings.
Trinity Term. ACTION against the vestry of St. Pancras for work as An architect, who has made an architect in taking out the quantities on a building out the quanti- contract. ties on a build. ing contract
Plea : never indebted. which was not carried out, allowed to re
Bovill, Denman and J. Thompson for the plaintiff. cover from the employer on a
Sir W. Atherton, A.-G., Overend and Keane for the custom known defendants. to the parties.
The action was by an architect against the vestry of St. Pancras, for taking out the quantities on a building contract, which had become abortive by reason of the refusal of the Poor Law Commissioners to sanction it.
There was evidence of a custom that the employer should pay the architect in such a case.
Keating, J. (to the jury).—Was there such a custom ? And was it known to the parties? And did they contract on the footing of the custom ?
Verdict for the plaintiff (a).
(a) See, as to custom, the previous case.
Court of Exchequer, coram Martin, B. London Sittings.
COUSINS v. MITCHESON. Trinity Term. The mere fact ACTION by a shipbroker against a shipowner for comthat a broker has first intro- mission on the charter of a ship, the Tower Hamlets. duced a customer does Plea: never indebted. not give him a right to com- Brett for the plaintiff. mission on any future trans Denman and Watkin Williams for the defendant. action not direct the re- In 1858, the plaintiff effected a charter of the ship from sult of any further inter- the defendant to one Mohr, and was paid his commission. vention on his
In 1860 (the ship having made an intermediate voyage, part.
as to which there was no evidence) the plaintiff met the 1862. defendant, and asked him if he was doing anything with
COUSINS the ship. The defendant said he was open to a charter, and asked the plaintiff if he thought that Mohr would
Moho musta MITCHESON. take her again. The plaintiff said he would go and see, and the defendant sent the offer of a charter for rice ports, at 70s. for the United Kingdom, and 72s. 6d. for the continent. Afterwards the defendant chartered the ship through one Lindsay, another broker, to Mohr, at 72s. 6d. for the United Kingdom, and 77s. 6d. for the continent, i. e., 5s. additional for the continent. The defendant said he had met Lindsay in the street, and had some conversation with him, and that Lindsay then took him to Mohr, and the charter was concluded. The plaintiff then claimed his commission, and the answer was that Lindsay was entitled to it. On these facts,
Martin, B., said :- The plaintiff was not entitled to recover. There is nothing illegal in a shipowner employing two brokers at the same time, and whoever concludes the charter is entitled to the commission. If a broker mentions the name of the charterer to the shipowner, and he takes advantage of the information, and concludes the charter himself, without the further intervention of the broker, that does not deprive the broker of his right to his commission. But that was not the case here. This was not the case of a first introduction at all. There is nothing to show that the charter through Lindsay was not bonâ fide, and quite independent of any information furnished by the plaintiff. There is, therefore, no case for the plaintiff, and there must be a verdict for the defendant. Thereupon there was a
Nonsuit (a). (a) See Gibson v. Crick, Vol. II., p. 766; and Cunard v. Van Oppen, Vol. I., p. 716.