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he became further indebted to them in the sum of 1,449l. 10s. 9d., and for this debt the company had no security whatever. They pressed him for payment of both amounts; and an arrangement was made that the plaintiff should pay off both sums upon the terms and conditions of a deed hereinafter referred to. The plaintiff did accordingly pay to the company the said two sums, and they appointed him their agent at Glasgow jointly with Seton.
A deed was entered into, on the 17th of December 1852, between the defendants and two other persons, as trustees of the company, of the first part, the said A. B. Seton of the second part, and the plaintiff of the third part, which, after reciting that the plaintiff had agreed to pay off the 2,000. upon having the securities first transferred to him, and to pay off the 1,449. 10s. 9d. on the company appointing him co-agent with Seton, the trustees, in consideration of these payments, assigned to the plaintiff the securities for the 2,000, and covenanted with him that "in case the said company shall at any time hereafter displace the said A. B. Seton from his appointment as agent of the said company at Glasgow, then the said company shall and will forthwith thereafter repay unto the said William Stirling, his executors, administrators and assigns, the said sum of 1,4497. 10s. 9d., or so much thereof as shall not have been previously repaid to the said W. Stirling, or otherwise recovered or received by him." Then followed a provision, that in the event of the joint agency at Glasgow being determined by the company by the displacement of Seton, the company reserved the right of appointing the plaintiff as their agent at Glasgow or discontinuing his services; and, if they should appoint him, of compensating him in such manner as they might think proper.
After the deed had been executed, the business at Glasgow was carried on by Seton, in the name of Seton & Stirling, but in the same manner as it had previously been, and the same remuneration and allowances continued to be paid. plaintiff himself took no active part in the said agency, though he occasionally called at the office, and conversed with Seton upon the business of the company. On the 29th of July 1862 certain heads of agreement
were entered into between the company and the North British and Mercantile Assurance Company for the sale and transfer of the business, goodwill and property of the company to the North British Company. No notice was given to the plaintiff of this intended transfer till the 15th of July 1862; and on the 8th of September a letter was written to the plaintiff and Seton by one of the defendants, informing them that the agreement had been entered into, and containing the following passage: "In returning you the cordial thanks of the board of directors of this company for your influential introduction and valuable services, I am desired to express their earnest hope that you will continue to extend your influence and service to the North British and Mercantile Assurance Company, who will carry on business at this office as a branch, and who will, I feel assured, give prompt and particular attention to all matters affecting the interest of the agents and the constituents. I have the pleasure to inclose you a prospectus of the British and Mercantile Assurance Company, shewing the terms upon which they grant new insurances, and at the same time to inform you that Mr. David Smith, the general manager, will communicate with you in a few days."
The transfer to the North British Company was effected on the 1st of October, and no part of the sum of 1,4497. 10s. 9d. was paid by the company. The partnership between the plaintiff and Seton was dissolved in January 1863, and the present action was then brought.
M. Smith (Murray with him), for the plaintiff.-The defendants are liable in this action, for they have displaced Seton from the agency. They have bound themselves to pay the money in a certain event, and that event having happened they can have no defence to the action, especially as it has happened through their own voluntary act by putting an end to their business and transferring it to the North British Company. If a man covenants not to displace another from his chair, it would make no difference whether he pushed him off the chair or pulled the chair from under him. [CROMPTON, J. referred to Charnley v. Winstanley (1).]
(1) 5 East, 266.
It cannot be contended that the defendants were bound to carry on their business under all circumstances, but it is submitted, that beyond all doubt, if they choose of their own act to put an end to it, they are bound to pay the plaintiff.-He referred to Tasker v. Shepherd (2) and M'Intyre v. Belcher (3).
Coleridge (H. Lloyd with him), for the defendants. The parties, in entering into this covenant, only contemplated the agent being displaced while the business of the company was continued. It was supposed that the company was in a prosperous conditi on, and that the arrangement would be an advantage to both parties. If the plaintiff's contention be the right one, the company would be liable if they had carried on the business for twenty years, although he had been receiving commissions during the whole of that time. The duties and remuneration of Seton came to an end only by the company ceasing to carry on business, winding up their affairs and dissolving. Under such circumstances, they are not liable upon their covenant.
M. Smith, in reply.-Suppose the manager of a theatre covenanted that he would pay money if he dismissed an actor, and then gave up the occupation of the theatre, he would surely be liable. That is just the same as the present case.
[SHEE, J.-Is not the letter of the 8th of September a displacement of itself!] Yes it is.
COCKBURN, C.J.-I am of opinion that our judgment ought to be for the plaintiff. When we come to look at the terms of the deed, and the recitals in it, the nature of the arrangement and the intention of the parties become plain. Seton being the agent of the United Kingdom Life Assurance Company became indebted to them in the sum of 1,4497. 10s. 9d. The plaintiff, finding that the company were pressing their agent, was minded to pay off the debt due from him, and then the question arose, how was the repayment of the money to be secured to the plaintiff; and the deed was entered into, according to the covenants of which he was to be a co-agent with Seton,
(2) 6 Hurl. & N. 575; s. c. 30 Law J. Rep. (N.s.) Exch. 207.
(3) 32 Law J. Rep. (N.s.) C.P. 254.
the object being to give him a control over the money received by Seton, and then inasmuch as the whole object of the arrangement would have been defeated if Seton had been displaced, the covenant in question was inserted. After a time the company found that their affairs not prosperous, and an arrangement was entered into with the North British and Mercantile Assurance Company that their business should be transferred to them. Of course, when this took place, and the transfer was effected, there was a dissolution of the defendant's company, and there being no further business of the company, there would be no further agency, and the whole thing would fall to the ground. I think this comes within the terms of the covenant, and that the meaning of the company in entering into the covenant was this: "We, being the United Kingdom Company, and Seton being our agent, we, in order to secure to you the repayment by Seton of the sum which you have paid for him, will engage that we will continue him in that employment which he has hitherto held," and adopting Mr. Coleridge's construction, "so long as we continue to be a company." Then I think that a covenant is implied that they would do nothing of their own accord to put an end to the existence of the company, or the employment of Seton as their agent. I think that effect can only be given to the covenant by the continuance of a given state of things, and there is an implied covenant that the covenantors would do nothing of their own act which would put an end to the continuance of that, without which the object of the arrangement could not be attained. While, therefore, I agree with Mr. Coleridge, that if the company should come to an end by reason of any external cause, which could not be considered an act of their own, it would not have the effect of displacing the agent, I also think that where it is done by their own voluntary act, there is a breach of covenant for which the plaintiff is entitled to bring his action against them. By their own act the company have put an end to that state of things which alone could enable them to continue him in their employment. I quite feel that the effect of our decision may, morally speaking, be that an injustice will be done; but that is not the
question which we have to determine, and it may possibly be that the company may obtain relief by a proceeding in equity. We have only to consider whether there has been such a displacement of Seton from his employment as will amount to a breach of the covenant, and entitle the plaintiff to maintain this action.
as would lead to his dismissal, but you must not dismiss him of your own heads." It seems to come within the rule that an indirect act is the same as a direct one, if the necessary consequence is that he is displaced. Perhaps this is a direct act of the company. The argument that they have a right to dissolve the company, would apply equally to the case of an agreement of this sort with a common firm or partnership, which would displace the people employed by them if they put an end to their trade and business. I think the company did displace the plaintiff within the meaning of their covenant, and that the plaintiff is entitled to recover.
MELLOR, J.-I am of the same opinion. Mr. Coleridge has contended that the company could not "displace" Seton by anything which they did, except while they were carrying on the business in which he was employed by them; but upon looking at the whole of the circumstances and the deed, it seems to me to be far more reasonable to construe them to mean that they should not do anything which would have the effect of displacing him. By this arrangement the plaintiff, the agent, and also the company, were to gain some advantage, and the latter bind themselves not to displace Seton, because the plaintiff wanted the security which his remaining in his employment afforded him. The company had no right to put as end to the employment by the voluntary transfer of the business to the North British Company, by their own purely voluntary act, and at the same time to deny their liability to pay the money to the plaintiff.
SHEE, J.-I had some doubt at first whether the meaning of this covenant was not that the company would not displace Seton while they continued to carry on their business; but I have now come to the same conclusion as the rest of the Court, and I think with my Brother Crompton that Seton was displaced by the dissolution of the business which the company carried on. That this is the meaning appears more certainly from the second covenant, in which they appear to contemplate the event of the employment of the plaintiff, and to reserve to themselves the right of appointment and compensation.
Judgment for the plaintiff.
CROMPTON, J.-I am of the same opinion. The plaintiff declares against the defendants, who are the trustees of the company, upon the covenant to pay money which may become due upon the contingency of their displacing Seton, who was their agent, from his situation. The defendants plead that he was not so displaced, which raises the simple question which we have to decide, whether what has been done brings them within the meaning of the covenant, which is not that they will not turn him away, which is what I understand by "displace"; but that if they do displace him, they will pay the money; and I think that when they did an act which necessarily had the effect of displacing him, they became liable to an action. I referred during the argument to Charnley v. Winstanley (1), where a woman had before her marriage covenanted to leave certain matters in difference between herself and the plaintiff to arbitration, and to abide the award; the arbitrator made the award after the marriage, in favour of the plaintiff, and an action having been brought against the husband and wife, it was held that inasmuch as by the marriage she had by her own act put it out of her power to perform the award, the covenant to abide the award was broken. The step which she took was a very natural one, but as it was an act done of her own accord, the action was maintainable. In the present case technical words are used; and I construe the meaning of the parties to be, that Seton was not to be put out of his place; and then if the company by their own voluntary act cease to exist, he cannot any longer remain in the place. The plain meaning seems to be this: the plaintiff says, "I will pay the money which Seton owes, but I must have the security of your keeping him in his situation, and you must give me a pledge that you will not by your own voluntary act displace him; I take the chance. of his dying, or of his becoming paralyzed, or of his being guilty of such misconduct
Carriers by Railway-Cattle-Unreasonable Conditions-Special Contract-" Injury"-Over-carriage-17 & 18 Vict. c. 31.
The defendants, a railway company, received certain cattle to be carried for the plaintiff to B. station. They induced him to sign a ticket containing certain "special conditions," among others that the defendants were not to be answerable for "any consequences arising from over-carriage, detention or delay in, or in relation to the conveying or delivering of the said animals, however caused." The cattle were sent to the H. station, which was a more distant station than the B. station, and where they remained for some hours until they were found by the plaintiff. In consequence of the delay, and from want of food and water, the cattle were injured. There was no consideration for the special contract by charging the plaintiff a smaller rate of charge, or anything of the kind :-Held, that the cattle were injured within the meaning of 17 & 18 Vict. c. 31. s. 7, and also that the condition in the ticket was unreasonable within the meaning of that section.
The first count of the declaration alleged that the plaintiff delivered to the defendants certain beasts, to be by the defendants carried from Oxford to Bordesley Station, Birmingham, and there delivered for the plaintiff in a reasonable time then next following, for reward to the defendants; that the defendants received from the plaintiff the said beasts for the purpose aforesaid, and all conditions were fulfilled, and all things happened, and all times elapsed, necessary to entitle the plaintiff to have the said beasts delivered by the defendants at the last-mentioned place, yet the defendants so carelessly and negligently conducted themselves in and about effecting the purpose for which the said beasts were so bailed to them as aforesaid, that by reason of the said negligence and carelessness of the defendants they did not within the said reasonable time deliver the said beasts to the plaintiff at Bordesley Station, Birmingham, as aforesaid, by reason whereof the
plaintiff lost the use of the same for a long time, and was put to great trouble and inconvenience, and did and performed work, labour and journies in and about finding and regaining possession of the said beasts, and was deprived of the opportunity of selling the same, and for a long time was forced to expend food and labour in feediug and taking care of them for that time, and the beasts were not at the time and place when he regained possession of them so valuable as they would have been at the time and place when and where the beasts ought to have been delivered to him as aforesaid. The second count was trover for the beasts.
First plea, not guilty; second, to the first count, that the plaintiff did not deliver to them, nor did they receive from the plaintiff the said beasts, or any of them, for the purpose and on the terms alleged.
At the trial, which took place at the last Warwick Summer Assizes, before Keating, J., it appeared that in 1861 the plaintiff bought some beasts at Oxford market, and delivered them to the station-master at the Oxford station of the defendants, with directions to send them to Birmingham for the market which was to take place the next day. At the time of delivering, a ticket was given to and signed by the plaintiff, which was in the following form:
"Cattle, Sheep and Pigs (reduced rates). "To the Great Western Railway, Oxford Station,
"Nov. 13, 1861. "Received from Allday, of the under-mentioned animals on the conditions
stated below, and at special reduced charge below the rates authorized by law.
"To be sent to Bordesley Station. "Special Conditions.
"The loading and unloading is to be performed by the sender, and any assistance voluntarily given by the company's servants to be at the risk of the owner. The company are not to be subject to any risk in the receiving, loading, forwarding, in transit and unloading, nor to be amenable for any damage actual or consequential, arising from suffocation, from being trampled on, bruised or otherwise injured from fire or any other cause whatsoever, nor from any consequences arising from over-carriage, detention or delay in, or in relation to the
conveying or delivering of the said animals, however caused."
It was not proved that the rates charged were not the rates usually charged. The company have two stations for the delivery of cattle for the Birmingham market, one, that at Bordesley, for the cattle from Oxford and places south of Birmingham, which is the one mentioned in the ticket; the other, Hockley, north of Birmingham, which would not be the proper one for the plaintiff's cattle to be sent to. The plaintiff made inquiries for them the next morning at the Bordesley station, but inasmuch as they had been carried to the Hockley station, he did not get them till the middle of the day, and when the market was nearly over. The proper time for him to have received them would have been early in the morning, and at the Bordesley station. By reason of the delay which took place he lost the market; and in addition it was proved that the cattle had become injured by having been kept in the trucks without food or water. The defendants refused to make any compensation, and the action was brought at the time, though proceedings were afterwards stayed.
In consequence, however, of the decision of the House of Lords in Peek v. the North Staffordshire Railway Company (1) the plaintiff went on with the action. The defendants insisted that they were protected by the condition in the ticket, and that they were not liable in respect of over-carriage.
The learned Judge, however, was of opinion that the condition was unreasonable, and a verdict was found for the plaintiff for 157., leave being reserved to the defendants to move to enter the verdict for them.
Field (Manley Smith with him) now moved accordingly.-The plaintiff was not entitled to recover in this action; he has entered into a special contract with the defendants as to the terms upon which they were to carry the cattle. There is nothing unreasonable in the conditions set out in the ticket, nor is there anything in the 17 & 18 Vict. c. 31. s. 7. which can shew that the contract would not be binding upon the plaintiff. The difficulty of making arrangements for the carriage of cattle is very great, and there is always a possi(1) 32 Law J. Rep. (N.S.) Q.B. 241.
bility that they may be carried beyond the particular station to which they were destined.
[COCKBURN, C.J. You must go the length of arguing that if the cattle had been carried 200 miles beyond Bordesley station, the defendants would have been protected from liability.]
If that be so, the defendants may be protected on the ground that what has happened only amounted to delay, for if the plaintiff had not accepted the cattle at the Hockley station, they would have been sent back to Bordesley and delivered to him there. Next, there was "no loss of or any injury done to" the cattle within the meaning of 17 & 18 Vict. c. 31. s. 7, and therefore the defendants have a right to limit their liability as they would be able to do at common law. Admitting that the condition of the cattle had fallen off in consequence of the want of food and water, that would not amount to "injury" within section 7. of the above act.
COCKBURN, C.J.-I am of opinion that there ought not to be any rule in this case. It is admitted that there had been loss of condition to the cattle, and it is clear that that amounts to "injury" within the meaning of the 7th section. I am also of opinion that the condition expressed in the ticket is unreasonable. The defendants claim complete immunity from liability in respect of all delay, over-carriage, &c. They talk of reduced rates, but there is no proof that they charged the plaintiff anything less than the ordinary rates of charge. It might perhaps be reasonable if they had given the plaintiff the choice of two classes of rates, and had made a special contract limiting their liability in consideration of the lesser rate being charged. But no such thing has been done here.
CROMPTON, J.-I am of the same opinion. It is clear that the cattle sustained injury by reason of the conduct of the defendants. It is also clear that the condition was an unreasonable one; it was compulsory upon the plaintiff, no option being given to him, and the defendants cannot in such a manner protect themselves from liability. MELLOR, J. and SHEE, J. concurred. Rule refused.