John Calder - Lushington v. George Aitchisonand Co. - John Campbel - Sandford [1831] UKHL 5_WS_410

UKHL
John Calder - Lushington v. George Aitchisonand Co. - John Campbel - Sandford
[1831] UKHL 5_WS_410 · 1820-12-01
When a party bound himself “to guarantee an agent for four per cent. for commission and guarantee,”—held (affirming the judgment of the Court of Session), first, that this merely imported an obligation to guarantee the payment of the price for which goods sent to the agent should be sold, and not for his faithful conduct; and, second, that evidence of mercantile men was inadmissible to prove, that in practice the words comprehended an obligation to the latter effect.Calder , a merchant in Leith, raised an action in the Court of Session against George Aitchison and Co., also merchants there, setting forth, that in the month of September 1820 he consigned to them 700 barrels crown-brand white herrings, for the purpose of being forwarded to and sold by their agents at Konigsberg; the said George Aitchison and Co. being to receive four per cent. on the amount sales of said consignment, for commission and guarantee.
“That the pursuer, as well as the said George Aitchison and Company, considered said herrings to be worth at least 23 s . per barrel, which was the sum at which they were insured: That in terms of their agreement, the said George Aitchison

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He therefore concluded for 915 l . 3 s . 1 d ., or such other sum as the herrings would have brought had they not been improperly sold.In defence, Aitchison and Co. pleaded—first, that they and their agent had acted in terms of the agreement, and the herrings had been sold at the best price which could be obtained in the market; and, second, that according to mercantile practice they had a right to dispose of them as they judged best for repayment of. their advances. An issue was then sent to a jury in these terms:—
“It being admitted, that in the month of September 1820 the pursuer consigned to the defenders, in terms of a letter from the pursuer, to the defenders, dated 12th September 1820, 700 barrels crown-brand white herrings, for the purpose of being forwarded to Konigsberg, and there sold,—Whether the defenders failed to perform their duty as commission agents, in regard to the disposal of the said herrings, to the loss, injury, and damage of the pursuer?”

The jury returned this verdict,—

“Find for the pursuer, and assess the damages at the difference between the net sum realized and the net price of eighteen shillings per barrel on each barrel consigned, free of all charges at Leith.”
A new trial was thereafter granted on payment of costs by Aitchison and Co., and the same issue sent to a special jury. *The case was tried before the Lord President and the Lord Chief Commissioner; and, among other evidence, Calder gave in the following letters as constituting the agreement between the parties:—beg to consign to you 550 barrels white herrings, which I request you will get forwarded to Konigsberg, and to be sold there on arrival by your agent, at the best price the market will afford; and I hereby also authorize you to freight the brig Chance of Largo, Captain Thomas Smith, to carry said cargo, at the rate of 3 s . per barrel in full. I have to request that you will order the same to be insured at 21 s . per barrel, say 577 l . 10 s . sterling on the whole, it being understood that you are to advance me at the rate of 16 s . per barrel on the quantity shipped, agreeably to what your Mr. Aitchison mentioned; and farther, that you are to guarantee your agent at Konigsberg, on being paid at the rate of four per cent. for commission and guarantee.” (Signed) “John Calder. P. S.—Insure at 23 s . instead of 21 s .” (Signed) ‘J. C.’—“Mr. John Calder, Leith. Sir,—We have yours of this date, consigning to us 550 barrels white herrings, to be forwarded to Konigsberg, and to be there sold on your account by our agent; also authorizing us to freight the brig Chance to carry the same, at the rate of 3 s . sterling per barrel in full, and to get them insured at the value of 21 s . per barrel, on condition of our advancing you 16 s . sterling per barrel on the quantity shipped, and guaranteeing our agent at Konigsberg, and for which we are to receive four per cent. on the amount of sales for commission and guarantee. To this we hereby agree. (Signed) P. pro Geo. Aitchison and Co. Thos. A. Shand. P. S.—Your advances will be paid on handing us bill of lading indorsed.”

“Messrs. George Aitchison and Co.—Gentlemen, I

Footnote

* A special jury in Scotland is not a jury of merchants.

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In reference to these documents (as stated in the bill of exceptions), “the counsel for the pursuer, in further maintenance of the said issue, did propose, and offer to give in evidence, by William Connal, an extensive commission agent in the city of Glasgow, and by other merchants of extensive dealings and well acquainted with the usage of trade, what they understood to be the effect and import of the undertaking in the said missives or letters of the 12th September 1820, given in evidence as aforesaid, in which the defenders stipulated to guarantee their agent at Konigsberg, upon condition of being paid at the rate of four per cent. for commission and guarantee; and that the guarantee contained in said letters is understood by merchants to amount to an engagement, upon the part of the persons

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The jury having found for the defenders, the pursuer tendered a bill of exceptions. The Court (28th June 1831) disallowed it, assoilzied the defenders, and found them entitled to expenses. *Calder appealed.

Footnote

* 9 Shaw and Dunlop, 777.

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When his counsel opened the case,The Lord Chancellor observed,—Can you say that a witness is to be examined upon the construction of an instrument, and put in the place of the Judge and the jury? It would have been very doubtful whether he ought to have given you the usage of the trade to explain so plain a letter as this; it is a guarantee of payment; it is the solvency that is guaranteed. I think it is a short case indeed.Dr. Lushington .—If that is your Lordship's impression, it would be in vain for me to trouble you further.Lord Chancellor .—Yes; it is a plain del credere. You and Mr. Campbell must be both aware, that in mercantile cases—not in other cases—the learned Judges have regretted they have gone so far as putting a letter into the hands of a witness, and saying, What does it mean? The appeal must be dismissed, and with 100 l . costs. Really the Jury Court will become a nuisance, if parties are to bring bills of exception like this. I never saw words more strongly importing del credere.The House of Lords ordered and adjudged, That the appeal be dismissed, and the Interlocutor complained of affirmed, with 100 l . costs.Appellant's Authorities .— Lucas v. Groning , 7 Taunton, 164; Smith v. Blandy , 1 Ryan & Moodie, 260; Philips' Law of Evidence, vol. i. 566; Bell's Principles of the Law of Scotland, 127; Thornton v. Royal Exchange Assurance Co. , Peak, 25; 1 Vesey, 459; Doe v. Martin , 4 T. R. 66; Hood v. Cochrane , Jan. 1818, (F. C.)Solicitors: Sydney S. Bell— Richardson and Connell,—Solicitors.