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1862.

FISENDEN

LEVY.

bought note sent to the defendant comprising both the
parcels (seventy-five cases), and which ran thus (a):-
“ M. A. Levy.-We have this day bought for your ac-
count seventy-five cases bottles of French plums, at 40s.
per cwt. Prompt 2 mo.
(Signed) “WHITMORE & Griffiths, Colonial brokers."

The defendant retained the contract note for nine days and then inspected both the parcels of plums, which lay together at the same place (as part of same cargo), and refused to accept them, as not being according to the sample-bottle he had had sent to him, and to which, as he alleged, all he purchased was to correspond.

Within the “prompt” he received the invoice of the plaintiff's parcel of goods, which, however, ran thus :—“Bought for Mr. Levy by Whitmore & Co.," and did not disclose seller's name, and when on the expiration of the “prompt" he was applied to for payment be repudiated any knowledge of the transaction with the plaintiff.

Whitmore, the broker, being called to prove the case for the plaintiff, stated that with the bought note he sent to the defendant a letter stating that he had bought, according to his alleged instructions, more of the same description of plums; but it will be observed that the defendant had received no separate bought note of the previous parcel. The broker further stated that there was a custom to repudiate fruit in twenty-four hours after delivery of note, and that the defendant bad never objected except as to quality, nor ever denied that he had given the witness authority to buy more plums of the same description, nor ever returned bought note or invoice, which latter, however, was sent after repudiation of the contract.

The witness, moreover, was asked whether, when a broker sold fruit of two or more owners to the same person

(a) BLACKBURN, J., had made an order at Chambers, on the application of the plaintiff, for leave

to inspect and take copies of bought note and invoice.

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at the same price, there was any custom in the market as to bought and sold notes? which question was objected to, and allowed and answered in the affirmative. The custom was then stated by the witness to be that in such a case there were separate sold notes but one bought note.

The case for the plaintiff was, that it was not a sale by sample at all (a): that the defendant was bound by the broker's signature to the sold note; or that the bought and sold notes were to be read together and did not differ but explained each other; or, lastly, that though even if the bought and sold notes differed, yet that they might be explained by parol testimony (a); but

CROMPTON, J.-It is represented to the buyer in the bought note as one entire contract for the whole seventyfive cases (b), and I think there is a material variance between the notes, so that the other point will not arise.

At the close of the case for the plaintiff, which consisted of Whitmore's evidence and the notes,

CROMPTON, J., said he should direct a nonsuit, on the ground of the variance between the notes, giving leave to the plaintiff to move on the ground that there was sufficient evidence of a contract within the Statute of Frauds, either with or without the alleged custom (c).

Nonsuit (d).

(a) Bold v. Rayner, 1 M. & W. 343.

(6) As to the effect of which, on the rights and liabilities of the parties, see Oxendale v. Wetherell, 9 B. & C. 386; Withers v. Reynolds, 2 B. & Adol. 882.

(c) That is, the custom as to the bought and sold notes. The alleged custom as to repudiation within twenty-four hours must be taken to have related to the right of the buyer to repudiate on a binding contract, on the ground of breach of such contract, and it would seem

that it had nothing to do with the
right of the seller to set up a
contract not binding, by reason of
its not being within the statute. A
custom cannot be allowed if it con-
flict, even with a contract; Hutton
v. Warren, 1 M. & W. 466, much
less repeal a statute. And the only
effect of a custom in such a case
would be to make a broker agent of
buyer to enter into a valid written
contract, not to bind him by one
not valid under the statute.

(d) Hayes, Serjt., moved, but took nothing.

1862. London Sittings.

LUFF 0. HORNER.
Michaelmas
Term.

INTERPLEADER issue, between claimant and exeOn an inter- cution creditor; the question being, whether certain goods pleader issue, there being

taken at 103, Great Russell Street, taken in execution on strong evi dences that the the 23rd May, 1862, were, at the time of their seizure, the claimant had exclusive property of the claimant, as against the execution been privy to a scheme to creditor, or, if not his sole and exclusive property, his prodefeat and defraud the exe. perty in partnership with one Luff the elder, his father. cution creditor, not only after, Huddleston, Q.C., and T. J. Clark, for the plaintiff, the but before the judgment; and claimant. that, in pursu

Ballantine, Serjt., and J. Simon for the defendant, the scheme, he had taken a trans- execution creditor. fer of the property of the

In August, 1856, the defendant, a married lady, took debtor, his partner :- some railway bonds for 3,0001. to the claimant's father, Held, nevertheless, that and asked him to get them sold for her. He got them though if it were merely disposed of for 2,2501., and sent for her to receive the meant as a

money; when she went the claimant as well as his father vice by way of was present, and the father told him to hand the lady a pretended transfer, it was small packet, and then told her to band it back to him, invalid; yet, if Veen the and then said, as it would be unsafe for her to carry so

as much money with her, he suggested that she should leave intended to take effect, it with him until the next day, when he would bring it to then, whatever

her, he giving her in the meantime 501. She assented to was valid.

this and received the 501., but now swore that the packet was not opened, nor was she told, nor did she know, what it contained, while the claimant swore that the notes were counted out to her.

It was, however, not disputed that the packet, supposing it contained the money, was left in the hands of the elder Luff, and that he did not bring it as he promised; neither did he ever pay the sum due upon the bonds though he had subsequently made certain payments on account. In 1857 he entered into partnership with the claimant, retain

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ing, however, under the partnership deed, the property in the stock, and four-fifths of the proceeds. In the meantime he amused the lady with promises of marriage which he never redeemed, until, in February, 1860, she discovered that he had been deluding her, and pressed him for settlement of the account. On the 18th February, 1860, she applied through an attorney to whom she had been introduced by him, and who promised to use his endeavours to obtain the money from him, but put her off with excuses on the ground of his alleged illness.

At that very time the attorney was preparing, in privity. both with the claimant and his father, a deed of dissolution of partnership, by which the father assigned to the son the partnership stock, in consideration of a sum of money to be paid him by instalments secured by bills at two, three, four, five, six and seven years respectively. On the 22nd the son, the claimant, saw the lady, and several communications took place between her and the attorney, and she swore that she was not informed of the intended deed of dissolution, which was executed on the 27th February, 1860. After that negotiations took place between her and the father, through the medium of the son, for a settlement. These negotiations failing, in November, 1861, she issued a writ against the father for the recovery of the money, and he then went off to the continent. In April she recovered judgment by default for 1,1001., and on the 23rd May issued the execution in question, under which goods at the premises of the late firm had been seized, which under a Judge's order had been sold for 5371., the money brought into court to abide the result of this issue.

The case on behalf of the lady, the execution creditor, was that there had been a conspiracy between the father, her debtor, and the son, and the attorney to defraud her of the money; that this conspiracy had commenced when the pretended delivery of the notes was made to her; that it had been carried out with the complicity of the son, and VOL. III. LL

P.F.

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CASES AT THE SITTINGS-QUEEN'S BENCH. was completed by the deed of dissolution, which was only colourable, and intended only as a trick to defeat her execution, and a means of securing to the father all the benefit of the property, while relieving it of liability for this debt.

Since the dissolution, the old name of the firm, Luff & Son, had been retained; but subsequent creditors had since been paid by the claimant's cheques in his own name; and it was proved that the elder Luff had been out of England ever since and had not at all interfered in the business; and that the claimant, according to the provisions of the deed, had paid all the partnership debts, and had also paid all outgoings for materials and labour in the business of pianoforte manufacturer.

It was suggested for the claimant, that even supposing the deed of dissolution invalid, the stock had been changed, but this was not pressed, and the issue was tried on the validity of the alleged dissolution and assignment.

CROMPTON, J. (to the jury).-If the transfer of the stock was really intended to take effect, it would be valid, whatever its object. If it was not intended to take effect, as between the parties, then it would not be valid. The facts and dates suggest that the object was to evade the lady's claim; but that object might be consistent with either view.

Verdict for the plaintiff (a).

(a) By consent, on terms agreed to while the jury were considering their verdict.

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