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United Kingdom House of Lords Decisions |
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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Robert Craig, Merchant, Paisley v. Thomas Howie, Merchant in Dublin, and Alex. Murdock, Writer in Ayr, his Attorney [1817] UKHL 6_Paton_261 (5 March 1817) URL: http://www.bailii.org/uk/cases/UKHL/1817/6_Paton_261.html Cite as: [1817] UKHL 6_Paton_261 |
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Page: 261↓
(1817) 6 Paton 261
CASES DECIDED IN THE HOUSE OF LORDS, UPON APPEAL FROM THE COURTS OF SCOTLAND.
No. 54
House of Lords,
Subject_Bill — Conditional Acceptance — Agreement — Expense of Suit. —
(1.) A party agreed to accept a bill on certain conditions. He paid one half of the bill according to the terms and conditions agreed on; but refused to pay the other half until the condition of delivery of the oats, for which the bill was granted, was complied with. Held him liable for the second half of the bill. Reversed in the House of Lords. (2.) At same time an agreement had been entered into by the parties to prosecute for delivery of the oats, against the official assignees of the sellers, who claimed right to them. The appellant (acceptor) after this suit had gone on, settled the matter of dispute with the assignees, without consent of the respondent. Held him liable in the costs (£272, 10s. 5d.) of the suit. In the House of Lords, held him liable only for the half of the costs incurred prior to the date of his letter intimating the settlement that had taken place.
John and Alexander Wilson, merchants in Limerick, were in the practice of supplying the appellant with grain and butter. Their practice was, when the goods were shipped, to transmit invoices and bills of lading, and to draw bills for the price, which the appellant accepted on receipt of the shipping vouchers.
On the, 25th December 1802, and on the very eve of their bankruptcy, they drew a bill upon the appellant for £400, payable sixty-one days after sight, without transmitting previously to him the usual advice, that they had shipped goods for him to that extent.
The respondent, Thomas Howie, having acquired right to this bill, transmitted it to his agent in Ayr, by whom it was sent to Paisley to be accepted. On presentation for that purpose, the appellant refused to accept, as he had not received, as usual, any shipping vouchers for value, and had no funds of the drawers in his hands.
A few days thereafter, he was assured by John Wilson, who was their agent in Glasgow, that oats were shipped and vouchers on the way. He then offered to accept the bill,
Page: 262↓
Matters were in this situation when the appellant received notice that the Wilsons, the drawers of the bill, had stopped payment; and that the oats meant for him, were consigned to Messrs Muirhead and Son, Glasgow.
The appellant was even requested by the Wilsons not to accept the bill, and he retracted the offer he had made, which, it was admitted by all parties, he had a right to do.
The appellant was thereafter informed by the Wilsons that they had set apart for him another quantity of oats in their store, upon which he would be preferable to the other creditors, and they again urged him to accept the bill, assuring him of this preference. It was not easy to see how he could be preferable, but he yielded so far as to offer to accept the bill conditionally, namely, the one half of it payable in two months, and the other half when the oats in question should be received by him. The respondent accepted of this conditional acceptance, and took steps to recover the oats in name of the appellant, at their joint expense, by an arrangement between them.
The assignees under the bankruptcy, however, opposed this, and after some litigation, in which the respondent took an active part, in order to make the oats furthcoming to the appellant, these assignees were successful in making good their claim to the oats.
In the meantime the appellant had paid the first half of the bill, but he refused to pay the second half, the oats not having been delivered as agreed to.
In an action raised by the respondent against the appellant for this half of the bill, and also for £272, 10s. 5d., as the respondent's expense incurred by him in the prosecution of the right to the oats with the assignees.
In defence, it was stated that his acceptance was conditional, and that the second half of the bill was only to be paid on delivery of the oats. In answer, it was alleged that the appellant was to blame for the respondent being unable to deliver these oats. He had, without the knowledge of the pursuer, entered into transactions and correspondence with the assignees, such as prevented the recovery of the oats, and ensured a verdict in favour of the assignees. In particular, by his letter of 6th February 1804, in which he says, “As I have got such offers through the channel of my agent, Mr Robert Rodger, from the assignees of the Wilsons in
Page: 263↓
In reply, the appellant admitted the letter, but denied the construction and the effect put upon it. No transaction had been made by him with the assignees. But the respondent was not deceived as to the import of the letter. He did not stay the proceedings. He did not withdraw his name from them. He went on in his endeavours to recover these oats; and the cause was ultimately decided against him, not in consequence of that letter, but upon the merits.
Nov. 14, 1809.
The Lord Ordinary pronounced this interlocutor: “Finds that by the original transaction and correspondence betwixt the parties, the defender had agreed to pay the bill for £400, drawn upon him by John and Alexander Wilsons, his agents at Limerick, provided a delay of one month as to the term of payment was granted: Finds, that by subsequent letters of correspondence, in March and May 1803, parties had agreed to divide the risk, and to pursue joint measures at their joint expense for recovering the oats purchased by Messrs Wilsons for the defender, and on account of which the bill in question for £400 was drawn, and by indorsation came into the pursuer's hands: Finds, that after this arrangement, it was improper and unwarrantable in the defender, without the permission or knowledge of the pursuer, to make any transaction with the assignees of the nature and to the effect specified in his letter of the 6th February 1804; and, therefore, upon the whole circumstances of the case, finds the defender liable in the sums pursued for, and decerns.”
May 28, 1813. June 18, 1813.
On two several reclaiming petitions to the First Division of the Court, the Court refused and adhered.
Against these interlocutors the defender brought the present appeal to the House of Lords.
Page: 264↓
Pleaded for the Appellant.—1. The appellant is not liable to pay the second half of the bill with interest (£216, 13s. 4d.) claimed in the first conclusion of the respondent's summons, because the appellant never received the oats as his property, which was the condition of his granting the bill; and because it was not owing to any fault on the part of the appellant that the oats were not ascertained to be his property. In withdrawing his name, which he had simply given to assist Mr Howie in recovering the oats, he did no more than was right and proper, in so far as he was concerned. In doing so, this did not affect the right of the respondent to proceed with the action to recover the oats. Besides, the verdict given in that cause was a verdict given a twelvemonth after the date of the appellant's letter, and not in consequence of the disclamation of the proceedings on his part, but a verdict given on the merits, after the fullest investigation and proof had been led.
2. Even though by the agreement of parties the right to the oats was to be prosecuted at their joint risk and expense, the appellant could only have been liable to one half of £272, 10s. 5d., claimed in the second conclusion of the libel.
Pleaded for the Respondent.—Whatever view may be taken of the appellant's conduct, it leads to the conclusion of the respondent's summons, namely, that he is liable in the amount remaining due on the bill of exchange, and in the costs of suit, loss and expenses incurred, in the proceedings instituted for recovery of the oats.
After hearing counsel,
Journals of the House of Lords.
It was ordered and adjudged, that the interlocutors complained of in the said appeal be, and the same are hereby reversed. And it is hereby declared, That the respondent is entitled to be paid by the said appellant a moiety of the costs incurred in the proceedings against the assignees of John and Alexander Wilson, prior to the date of the appellant's letter to the respondent of 6th February 1804: And it is ordered, That the cause be remitted back to the Court of Session in Scotland, to settle the said costs and do further what shall be just in consequence of the said reversal and declaration: And it is further ordered and adjudged, that with this declaration and remit the defences of the appellant (defender in the Court below) be, and the same are hereby sustained,
Page: 265↓
Counsel: For the Appellant,
Sir Saml. Romilly,
David Douglas.
For the Respondents,
John Leach,
M. Nolan.
Note.—Unreported in the Court of Session.
