CASE.

Otago Daily Times, Issue 591, 9 November 1863, Page 9 (Supplement)

CASE.

The case was elaborately argued on both sides, betore Mr, Justice Johnston, Mr Justice Gresson and tnyselt at the last sittings 01' this court. We then expressed that regret, .which we still feel, that a cause ot such magnitude and complexity should come before us upon to unsatisfactory a statement of fact: and suggested to the parties the propriety of their taking the c.«e back, and eudeavoring to agree upon a fuller detail of evidence. Neither side availed themselves of this oner, considering all further attempts at agreement hopeless. The court has therefore formed its judgment upon the imperfect materials, but assisted by the able arguments thus paced before it. During a great portion of the argument this case was treated as an ajtion brought b,- the purchaser ot chattels in ihe hands of an agent and depositary of the vendor. Numerous authorities were reviewed turning upon the acceptance of deliveiy orders by' wharfingers, and upon the etfect of such acceptance, as either transferring the property in specific goo.;s to the purchaser, or constituting the wharfinger or other depositary au,agent of ..the purchaser, s- as to give the purchaser a right of action against su«h agent.. In this part of the argument the plaintiff mainly relied upon: Whitehouse v. Frost (12 East 619) and Gillet v. Hill (2 <J. Af. and it. 53D . We do not think it necessary 10 enter into a minute discussion of these authorities, because they appear to us'to have little bearing upon the present case. "■' his - defendant neverwas intact the agent of the'plaintiff, or of M'Andrew. He held no spe ifie sheep ri.e property of the latter; nor (in our view of th faces), can the .undertaking with, its eudorsem«nt be properly termed- a " .Delivery Order" within . the meaning of the authorities relied on : by the plaintiffs, ,• Ir,: may .'suffice,'-"• there-' fore, to .remark, that. WhitJwuse v. Fro>t, (so far as that authority ; can be applied to the liicis of this case) seems to'be overruled by", ustin v.Craven" (4 Taunt,.644) arid ''White v. Wiiks" (5 Taunt, 176); while 'A.Qiliett v. Hill*' is distin^uishab.e from the present ca3e ; inasmuch as there the defendant was, before and at the time, of the sale, the acknowledged agent and bailee of the goods of the vendor; he had delivered to the plaintifia part of ths goods spi-c.fied in the delivery order of the vendor, and the Jury touad as a fact, that he. had acknowledged j<e held the residue in his possession. We should r .ther apply to this case the language of Mr Justice Bayly ;n .'fßhodes.v.Thwaites^^B.and C.,392), viz: -where ...imanajlls^art-ofra'Jarge'parcel of goods, and it is at his option to se.'ect part.for the vendee, he cannot maintain any action ibr goods bargained and sold,- until he has made that selection, but, as soon as he appropriates, part tor the benefit of the vendee, the property of the article sold passes to the vendee, although the vendor is not bound to part with the possession, until he is paid the price." Here no specific sheep have ever been appropriated by the defendant to the use of the plaintiff i, and it is clear that, even assuming the former to be', bound by a valid coutract to deliver any sheep to the p aiutiffs, he was at liberty to select from amongst his flock any sheep of the character described in tne undertaking in discharge of such contract. This brings us to the question, whether the defendant was bound by any, valid contract with the plaintiffs? What is the effect of the undertaking signed by the defendant ] It it be a bare undertaking, as its language imports, it is imperfect for want of consideration ; audno considt ration in fact is even suggested, moving from the plaintiffs to the defendant, unless it be the discharge of M*Andrew. The Caurt is accordingly asked to infer—first, that M'Andrew was discharged from his contract with plaintiffs; secondly, that be was so discharged at the request of the defendant; and thirdly, that defendant, in consideration of Buch discharge, promised the plaintiffs to deliver the sheep. But no such contract is alleged in the declaration, nor do tha plaintiffs allege, in the special case, either that they had actually discharg d, or that they had agreed to discharge, MAn irew from his liability. ....... .. . If. the undertaking could be construed, either by itself or together with the wool memorandum, as amounting to a guarantee by the defendant for the performance by M.Andrew »f his contract with the plaintiffs, it is open to the same objection in respect of absence of consideration, with the addition of the one t'-iat, by the law ot New Zealand, at : the date of these documents, the consideration for a guarantee which required to be in writing mast appear on the .face of such guarantee. . : ~ , . But_ the undertaking itself is declared upon by the plaintiff, either as .an agreement, or as a note or memorandum of an agreement, for the sale of' chattels. For the declaration alleges thai the plain- ' tiifc and M'Andrew agreed, the plaintiffs to buy and ' M'Andrew to sell, the ewes mentioned iff th;it un- ' dertakiug,(de,3cribing the same as a ", certain delivery ■■'" order■ or undertaking,f and sstting it forth in words.) ihe declaration then, proceeds, to allege,, that M'An-/ drew transferred the said delivery order or undertaking, by indorsement'to the .plaintiffs; that plaintiffs presented the same to defendant, and the defendant accepted the same and attorned to the plain tiffs m respect of the ewes.; Now it is clear that the bare transfer' by indorsemeat of that undertaking,, culled a delivery order, could not convey from M'Andrew to the plaintiffs a right: of action thereon, against the defendant; nor - pass to the plaintiffs any, property in any sheep of he defendant. By the law of New Zealand, although a chose m action can be transferred, ifc can only be by ueed, and it is admitted, that no tit>e to goods passes by the mere transfer of this undertaking or de.ivery note. But it is alleged in the declaration, that the defendant "Attorned" to thepLiintiffd. The word 'attorned' seems to be applied in theisense, in which it ' has been applied by a learned Judge, to a ww houseman, who by accepting the delivery order of the veiV or ? and acting upou it hsis attorned to, or macie himself an^ agent in respect of the j;oods specified by such order, to t:ie purchaser; and, upon the argument it was, contendsd, that the defendant, by siting •i T,^ *! moran ium> and l)y his whole dealing! : with M'Andrew, had bound' himself by a va id contract to deliver sheep ,to the plaintiffs, a contract arising .partly from : wiiting, aud partly from acts done. .In support of this view the auohority ot Dixon. and others (appsliants)v, Boviil a.irt others (i-e.-uon- • dents). House ofLords case, was mainly relied o*. as ' .directly in point} and it may therefore !iedesirable to examine this case somewhat minutely. Oa the 14th July, 1849, Dixon issued to, Smith an Son an undertaking in the following words: —'' . «t -nVr V""^l^^^ July 10th, 1849 . I.will deliverlOOO tons /N». 1 pig iron, free on board here when reiiuired after the 10th day of September next, to the party lodging tiiis do :um=nc with me—i.o.b.(te free on *:oKdiu (ilasfcow.) :. '-Signed, for William ;tik,,N, ■'; -nr- j "1-'•;'.■ "■:■■;'■ " JoUN OaMPBKIL " I his undertaking was : bought for value by Messrs Balls and bons. represente.l by the respontleuts. After considerable correspondence in writing between calls and Dixou, respecting the mode of-dt.livery' to Balls. j,the latter.willing the iron to he delivered 'in senai-ate lots, to which Dixou objected),. Balls on'the 30th August wrote to Uixou,...-, it wants but a. few days" (viz, oitlie time of delivery) "if we send ..you the order for 1000 tons, will you at once reply to our' orders on you, that you will ship the 3000 and 2000 tons wuere requied?" On the4.h September Dixon replied:-" On the undertaking being ipdaed with me i will ship the iron as required iii the usual wiy "'. • The House of Lords held, rl.iat. Dixon was bound by his contract thus cr-ated with Balls, " because" (said the Lord Chancellor) " bein^ informed as he was" by "the holders of this scrip iu,te .that they belli it - which though it did nob in my vie.y of the case give ' them a legal right, yet gave them a plausible claim. Dixon,.if not liable to deiivtr to. them, cerfcduly wa9' liable to deliver, upon his original contract to Smith " Ike House ot Lords repudiate ia cogent: terms tlie uoct,nne that documents of this description create a transfer right of action, obsarving that such a doctrine : cannot be tolerate! by the law, either ofßcotland or of ■ Knglaid tut the Lord Chancellor rem-irks in the ' course of the judgment, that, although in England a ' plaintifl, suing on a contract, u,less it be a contract : under seal, must prove a consideration, that is not the • casrt in Scotland. Having regard to this state of the law in Scotland, to «U which had.passed between tha ' parties, and to the. fucb that Dixon iiad actually delivered part of the iron to Balls and Sons, the former l was held bound by a distinct engagement with Jhe letter,to deliver the midue. Tlw leading points whioh.dlstmgu.sh ; t!,at case ffora: the preset arepatent. Here, the defendant oa the first dethad of ' delirery refused to deliver ,the sheep till paid for • here there was no, part delivery, and the plaintiff was bound to : prove consideration. We do not Nearly see ; what consideration can he suggested unless it be the price of the sheep, and if this contract with the defendant was originally one tor "thei sac of goods to be deuyered at a future, time it came-within tue 9 Geo. 4, c. 14, s. 7, and she Statute of Frauds. -Inthat* cisc the whole contract required to be in writing ; i the pries was fixed and agreed upon, but not inserted m the contract, the note did not fulfil the requirements of.-the Statute, if the pi-ice was'hot fixed and agreed . upon, the memoraadum may be sufficient,; buo the Kw will infer that a treasonable, pice was to be paid as a c mdition precedent to delivery of the 'sheep We' are unable ti see how the defend uit as owner of, the sheep in his actual p ssessiqn has forfeited his right to the price unless he is precluded from claiming that right by the doctrine which was insisted upon for tue'v : plaintitfo, viz, that of Kstoppel in psiis. ■ ia •' ''ick^nl v. Sears," (6 A. and \s. 374. S.C.)thtvtdoc-rine i U'U^ expressed :'..'" Where one, by his words or c» dio:., wHully causes another to believe in th;> existMwe. f things, and indues him to act-on .th^.t beaef, ■>)•'to' ; alter his own previous pjsitioh^ ths former N co/i-------cJuded from averringr against the latter a didVi^nt state of things as existing at the same time.'" / [ This case wasfollowed by "Gregg v Wehs" (II A. & E, 98) Lord Denman expounds the law broadly thus: i

" A party who negligently or culpably stands by and allows another t > contract on the faith and uuderstandingof a fact which he can contradict, cannot afterwards dispute that fact in an action against the person whom he has himselc assisted in deceiving." The words ''-negligently," " cuU-ably," and " wilfully," have each received judicial interpretation— thus in Freeman v. Cooke (t Exch. Rep. (159), Mr Baron Parke remarks—" It wouldsecm that the negligence must be in the nature of a neglect of some duty cast upon the party who i-< guilty of it;" and Mr Baron Aldereon adds, " A person cannot be said to be culpable in sot doing a particular thing, unless it is his duty to do it." Again, in the course of the argument of the same case, the latter learned Judge interpolates : " Culpability includes will, negligence may or may not; consequently, the language of Lord Denman, in '•'flreggv Wells," mustibeunderstoidwithreference to ttuch negligence as would imply will." Lastly, Mr Baron Parke in dcliv? ring the judgment of the court in Freeman v. Cooke, after hinting a doubt whether the Rule in Gregg v.' Wells had been correctly acted upon by the jury in all cases, proceeds as follows :—" By the term ' wilfully' however in that rule, we must understand, if not that the party represents that to be true, which he, knows to be untrue, at leait that he 'means' his representation to be acted upon, and that it is acted upon accordingly; and, if, whatever a man's real intention may be, he so conducts himself that a reasonable man would take the representation .to be true, and believe that it was means that he should actupon it and did act upon it as true, the party making the representation would be equally precluded from contesting its truth, and conduct by • negligence or omission, where there is a duty cast upon a person, by usage of trade or otherwise, to disclose,the-truth may .often have the same effect." He then illustrates the latter part of this canon by reference to the case of a retiring partner omitting to inform his customers of the fact of his retirement;' and therefore remaining liable on contracts made by the continuing partners. Applying the doctrine of Estoppel, as expounded in these cases to the one before this Criurt, the pla'ntiff's cf>un«el argued that , the defendant had done that which amounted to are-" presentation that he had been pai"*; or at all events that he was guilty of "culpable negligence in not in- ■ forming the plaintiffs that Mr M'Andrew had not" . paM him (the' defendant) for the sheep, especially •when the plaintiff Te^chmaker announced the iact that he had paid McAndrew. He further argued that Tesohmaker was thus misled, antl that this position of the plaintiffs was changed by the defendant sierning'the wo 1 memorandum without declaring his lien for the prioe; and consequently-, that, as matter of law, the defendant was precluded from denying: that he had set apart and now held 2450 ewes of the clnracter described, for the use of the plaintiff, as also from denying that he had been p-.id for the same. ' But we are of opinion that we should , be forcing the doctrine of Estoppel in pais further than it has yet been carried in any.'of the authorities cite'l, and bpyond its lecititnate scope, if we were to apply if in the manner suggested in the present case There is no defence for saying- that the defendant expressly represented to Te-climaker that he had bpfen paid, and we do not. see clearly how a duty was .by law cast upon the defendant to inform Tesehmaker that he had not been paid. Neither mit clear, what specific act plaintiff^ did or abstained from -loing, in consequence of. any such supposed representation! Cleirly they did not part with their money on the faith of anything of the kin), for they had alrearly paid their money long before the undertaking of the Ist May, 1860, was thought of. If by accepting: that undertakingfrom M'Andrew, Teschm ker bound himself and co plaintiff to sive tim.3 to M'Andrew for completing his contract till November, 1860, he did " eo^-without 'enquiring whether the defendant had been paid, and without any direct communication •^ith him, taking the cb/m-e that M'Audrew mightbe finablpd t" perform that contract by aid of the defendant. 'This extension of time was not even further enlarged by the wnol memorandum, since the option. \yas still retained by the plaintiff, to demand the sheep ''.notwithstanding, anl indeed was reserved to them by the terms of that memorandum. Had . the plaintiffs "•called upon the defendont in November to set apart and mark specfic sheep for them, and had the defendant done so, without dis closing his vendor's lien for the price pcsibly there ■would have been some ground on which to a3k this Court to estop him from setting Tip that lien. But it was said the' plaintiffs were misled, and something ' like -mala fides was suggested, win h ths Court was invited to eke out against the defendant, under ) the , power 1 given to the Court in the special ca=e to draw ■ any inferences which in the opinion of the Court a ; jury ought to have drawn. But. surely if either party . desired an inference of mala fides to be dra yn, he . should have'taken the verdict of the jury thereon. • In most of the cases—we believe in all of them— to which the'doctrine of estoppel his bean applied, a Jury bad found the fact?, and the Court-then applied , the law. In "Dixon v. Bovill' 1 indeed no verdict was tiken. but'the Lord Chancellor expressly informed ; the House of Lords that " issue having been di- , rected at the trial, no evidence whatever < was offered except documentary evidence ; consisting 'of the documents in question and the letters that passed between the parties. ; Upon the evidence having been produced, and no : parol evidence having been offered, the case was by ; arrangement left for the Court to decide upon the 3aw." It being expressly declared in that special ; <jase "the parties concui in holding that there is no j question of fact on wh'ch the opinion of the Ju'y i could be taken." In this case a considerable body of j ■evidence taken' upon the trial, but disputed on set- t tiing the special case, is not before the Court. We i lave no knowledge of the evidence of the parties, nor of the relations (if any) which subsisted between j M'Andrew and the. defendant; nsither a-e we in- \ formed of anything that passed, on making these dif- j ferent arrangement, between the parties beyond the ] meagre statements (which were all the litigants could 1 agree upon) in the case itself. If upon such state- f . meats we are to decide as a Jury, we can only pro- j nounce that the plaintiffs have not made out thei-' i case to our satisfaction. If, in applying the law, we t are to cimpare the conduct of the parties, we must take them both as innocent. It is < expressly declared that the charge of fraud ajiainst the plaintiffs was abmdoned at the trial, but i they do not appear to have exercised all that vigi- i lance which a reasonably cautious man would have 1 done. It is alleged in the letter of Teschemaker 1 that, from the time of their first disappointment re- | epecting the delivery of the sheep, they anted under j Advice; but it is more important to observe, that i "when they took the undertaking with its indorsement i •from Macandrew, thoy must have known that the s ' -sheep were the'property of the defendant. If they intended to rely entirely on the latter instrument, 1 .especially seeing that they had already parted with ( their money and been disappointed, they should have ■ 'inquired at once whether the price had been paid to <the defendant, or taken other steps for getting security of some speoific kind. After an anxious consideration of this important •case, we are of opinion that:— 1. There was no novation' or substitution of contract by wWieh the defendant became bound to deliver to the plaintiff without payment of the price. 2. There was no release of M!' Andrew's liability to Teschemaker. 3. There was no contract of guarantee, formal or informal, that M'Lean would perform M'Andrew's contract without condition, if M'Andrew failed to do so.'. " 4.' There was no" foundation for the application of tne principle of so called attorniment. 5. The doctrine of Estoppel is inapplicable, for there is nothing in the evidence to show that defendant represented by language or conduct, or both, to the plaintiffs that he would perform M'Andrew's contract free from the condition of payment, and thereby induced the plaintiffs to change their position. • c m 6. Although the facts may have suggested suspicions of collunon between M'Andrew and M'Lean lor the purpose of putting the plaintiffs off with regard to the fulfilments of the contract, the plaintin^ have fai'ed to establish such fraud in our opinion to satisfy a jury; and this Court, without the means of further examination into the facts, would not be Ju. 9«ned in finding that the defendant in collision with M Andrew made a fraudulent representation to the plaintiffs, which induced them to change their position; nor is the action, founded on cause of action. ♦•ff"ltb iU?h tlie defendant by his acts led the plaintim to look to him as ths person who was to deliver the sheep to them in fulfilment of M'Andrew's conJu. L ? Plaintiffs have by no means established, mat the defendant represented to them that he had been paid, or that he would diliver to them without payment The verdict must therefore be entered for the delendant with costs.