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he became further indebted to them in were entered into between the company and the sum of 1,4491. 10s. 9d., and for this the North British and Mercantile Assurance debt the company had no security whatever. Company for the sale and transfer of the They pressed him for payment of both business, goodwill and property of the amounts; and an arrangement was made company to the North British Company. that the plaintiff should pay off both sums No notice was given to the plaintiff of this upon the terms and conditions of a deed intended transfer till the 15th of July 1862; hereinafter referred to. The plaintiff did and on the 8th of September a letter was accordingly pay to the company the said written to the plaintiff and Seton by one two sums, and they appointed him their of the defendants, informing them that the agent at Glasgow jointly with Seton. agreement had been entered into, and con

A deed was entered into, on the 17th of taining the following passage : “In returnDecember 1852, between the defendants ing you the cordial thanks of the board of and two other persons, as trustees of the directors of this company for your influcompany, of the first part, the said A. B. ential introduction and valuable services, I Seton of the second part, and the plaintiff am desired to express their earnest hope of the third part, which, after reciting that that you will continue to extend your inthe plaintiff had agreed to pay off the fluence and service to the North British 2,0001. upon having the securities first and Mercantile Assurance Company, who transferred to him, and to pay off the will carry on business at this office as a 1,4491. 10s. 9d. on the company appointing branch, and who will, I feel assured, give him co-agent with Seton, the trustees, in prompt and particular attention to all matconsideration of these payments, assigned ters affecting the interest of the agents and to the plaintiff the securities for the 2,0001., the constituents. I have the pleasure to and covenanted with him that “in case the inclose you a prospectus of the British and said company shall at any time hereafter Mercantile Assurance Company, shewing displace the said A. B. Seton from his the terms upon which they grant new inappointment as agent of the said company surances, and at the same time to inform at Glasgow, then the said company shall you that Mr. David Smith, the general and will forthwith thereafter repay unto manager, will communicate with you in a the said William Stirling, his executors, few days." administrators and assigns, the said sum The transfer to the North British Comof 1,4491. 108. 9d., or so much thereof as pany was effected on the 1st of October, shall not have been previously repaid to and no part of the sum of 1,4491. 108. 9d. the said W. Stirling, or otherwise recovered was paid by the company. The partnership or received by him.” Then followed a pro- between the plaintiff and Seton was disvision, that in the event of the joint agency solved in January 1863, and the present at Glasgow being determined by the com- action was then brought. pany by the displacement of Seton, the M. Smith (Murray with him), for the company reserved the right of appointing plaintiff.-The defendants are liable in this the plaintiff as their agent at Glasgow or action, for they have displaced Seton from discontinuing his services; and, if they the agency. They have bound themselves to should appoint him, of compensating him pay the money in a certain event, and that in such manner as they might think proper, event having happened they can have no

After the deed had been executed, the defence to the action, especially as it has business at Glasgow was carried on by happened through their own voluntary act Seton, in the name of Seton & Stirling, but by putting an end to their business and in the same manner as it had previously transferring it to the North British Conbeen, and the same remuneration and pany. If a man covenants not to displace allowances continued to be paid. The another from his chair, it would make no plaintiff himself took no active part in the difference whether he pushed him off the said agency, though he occasionally called chair or pulled the chair from under him. at the office, and conversed with Seton upon [CROMPTON, J. referred to Charnley v. the business of the company. On the 29th Winstanley(1).] of July 1862 certain heads of agreement

(1) 5 East, 266.

It cannot be contended that the de- the object being to give him a control fendants were bound to carry on their over the money received by Seton, and business under all circumstances, but it is then inasmuch as the whole object of submitted, that beyond all doubt, if they the arrangement would have been defeated choose of their own act to put an end to it, if Seton had been displaced, the covenant they are bound to pay the plaintiff.—He in question was inserted. After a time referred to Tasker v. Shepherd (2) and the company found that their affairs M'Intyre v. Belcher (3).

were not prosperous, and an arrangeColeridge (H. Lloyd with him), for the ment was entered into with the North defendants.—The parties, in entering into British and Mercantile Assurance Company this covenant, only contemplated the agent that their business should be transferred to being displaced while the business of the them. Of course, when this took place, and company was continued. It was supposed the transfer was effected, there was a disthat the company was in a prosperous con

solution of the defendant's company, and diti on, and that the arrangement would be there being no further business of the coman advantage to both parties. If the plain- pany, there would be no further agency, tiff's contention be the right one, the com- and the whole thing would fall to the pany would be liable if they had carried on ground. I think this comes within the terms the business for twenty years, although he of the covenant, and that the meaning of had been receiving commissions during the the company in entering into the covenant whole of that time. The duties and remu- was this: “We, being the United Kingdom neration of Seton came to an end only by Company, and Seton being our agent, we, the company ceasing to carry on business, in order to secure to you the repayment by winding up their affairs and dissolving. Seton of the sum which you have paid for Under such circumstances, they are not him, will engage that we will continue liable upon their covenant.

him in that employment which he has M. Smith, in reply.—Suppose the man- hitherto held," and adopting Mr. Coleridge's ager of a theatre covenanted that he would

construction, “so long as we continue to be pay money if he dismissed an actor, and a company.” Then I think that a covenant then gave up the occupation of the theatre, is implied that they would do nothing of he would surely be liable. That is just the their own accord to put an end to the existsame as the present case.

ence of the company, or the employment of (SHEE, J.-Is not the letter of the 8th Seton as their agent. I think that effect of September a displacement of itself!] can only be given to the covenant by the Yes it is.

continuance of a given state of things, and

there is an implied covenant that the coveCOCKBURN, C.J.-I am of opinion that nantors would do nothing of their own act our judgment ought to be for the plaintiff. which would put an end to the continuance When we come to look at the terms of the of that, without which the object of the deed, and the recitals in it, the nature of arrangement could not be attained. While, the arrangement and the intention of the

therefore, I agree with Mr. Coleridge, that parties become plain. Seton being the agent if the company should come to an end by of the United Kingdom Life Assurance Com- reason of any external cause, which could pany became indebted to them in the sum of not be considered an act of their own, it 1,4491. 108. 9d. The plaintiff, finding that would not have the effect of displacing the the company were pressing their agent, was agent, I also think that where it is done by minded to pay off the debt due from him, their own voluntary act, there is a breach and then the question arose, how was the of covenant for which the plaintiff is enrepayment of the money to be secured to titled to bring his action against them. By the plaintiff; and the deed was entered their own act the company have put an end into, according to the covenants of which to that state of things which alone could he was to be a co-agent with Seton, enable them to continue him in their em

(2) 6 Harl. & N. 575; 8. C. 30 Law J. Rep. (N.s.) ployment. I quite feel that the effect of our Exch. 207.

decision may, morally speaking, be that an (3) 32 Law J. Rep. (N.s.) C.P. 254.

injustice will be done; but that is not the question which we have to determine, and as would lead to his dismissal, but you must it may possibly be that the company may not dismiss him of your own heads.” It obtain relief by a proceeding in equity. We seems to come within the rule that an indirect have only to consider whether there has act is the same as a direct one, if the necesbeen such a displacement of Seton from his sary consequence is that he is displaced. employment as will amount to a breach of Perhaps this is a direct act of the company. the covenant, and entitle the plaintiff to The argument that they have a right to maintain this action.

dissolve the company, would apply equally CROMPTON, J.-I am of the same opinion. to the case of an agreement of this sort with The plaintiff declares against the defendants, a common firm or partnership, which would who are the trustees of the company, upon the displace the people employed by them if covenant to pay money which may become they put an end to their trade and business. due

upon the contingency of their displacing I think the company did displace the plainSeton, who was their agent, from his situa- tiff within the meaning of their covenant, tion. The defendants plead that he was not and that the plaintiff is entitled to recover. so displaced, which raises the simple ques- MELLOR, J.-I am of the same opinion. tion which we have to decide, whether what Mr. Coleridge has contended that the comhas been done brings them within the mean- pany could not "displace” Seton by anything ing of the covenant, which is not that they which they did, except while they were carrywill not turn him away, which is what I ing on the business in which he was emunderstand by “displace”; but that if they ployed by them; but upon looking at the do displace him, they will pay the money; whole of the circumstances and the deed, and I think that when they did an act which it seems to me to be far more reasonable to necessarily had the effect of displacing him, construe them to mean that they should they became liable to an action. I referred not do anything which would have the effect during the argument to Charnley v. Win- of displacing him. By this arrangement the stanley (1), where a woman had before her plaintiff, the agent, and also the company, marriage covenanted to leave certain matters were to gain some advantage, and the latter in difference between herself and the plain- bind themselves not to displace Seton, betiff to arbitration, and to abide the award; cause the plaintiff wanted the security which the arbitrator made the award after the his remaining in his employment afforded marriage, in favour of the plaintiff, and an him. The company had no right to put av action having been brought against the end to the employment by the voluntary husband and wife, it was held that inasmuch transfer of the business to the North British as by the marriage she had by her own act Company, by their own purely voluntary put it out of her power to perform the act, and at the same time to deny their award, the covenant to abide the award liability to pay the money to the plaintiff

. was broken. The step which she took was SHEE, J.-I had some doubt at first a very natural one, but as it was an act whether the meaning of this covenant was done of her own accord, the action was not that the company would not displace maintainable. In the present case no Seton while they continued to carry on their technical words are used; and I construe business; but I have now come to the same the meaning of the parties to be, that conclusion as the rest of the Court, and I Seton was not to be put out of his place; think with my Brother Crompton that and then if the company by their own vo- Seton was displaced by the dissolution of luntary act cease to exist, he cannot any the business which the company carried on. longer remain in the place. The plain mean- That this is the meaning appears more cering seems to be this: the plaintiff says, “I tainly from the second covenant, in which will pay the

money which Seton owes, but they appear to contemplate the event of the I must have the security of your keeping employment of the plaintiff, and to reserve him in his situation, and you must give me

to themselves the right of appointment and a pledge that you will not by your own compensation. voluntary act displace him; I take the chance

Judgment for the plaintiff. of his dying, or of his becoming paralyzed, or of his being guilty of such misconduct

1864. ALLDAY V. THE GREAT WESTERN

plaintiff lost the use of the same for a long Nov. 2.

time, and was put to great trouble and inRAILWAY COMPANY.

convenience, and did and performed work, Carriers by Railway-Cattle - Unreason- labour and journies in and about finding able Conditions-Special Contract--" In

and regaining possession of the said beasts, jury"-Over-carriage-17 & 18 Vict. c. 31. and was deprived of the opportunity of 8. 7.

selling the same, and for a long time was

forced to expend food and labour in feediug The defendants, a railway company, re- and taking care of them for that time, and ceived certain cattle to be carried for the the beasts were not at the time and place plaintiff to B. station. They induced him when he regained possession of them so to sign a ticket containing certain "special valuable as they would have been at the conditions,among others that the defen- time and place when and where the beasts dants were not to be answerable for "any ought to have been delivered to him as consequences arising from over-carriage, de- aforesaid. The second count was trover for tention or delay in, or in relation to the the beasts. conveying or delivering of the said animals, First plea, not guilty ; second, to the however caused.The cattle were sent to the first count, that the plaintiff did not deliver H. station, which was a more distant station to them, nor did they receive from the than the B. station, and where they remained plaintiff the said beasts, or any of them, for some hours until they were found by the for the

purpose

and on the terms alleged. plaintiff. In consequence of the delay, and At the trial, which took place at the last from want of food and water, the cattle were Warwick Summer Assizes, before Keating, injured. There was no consideration for the J., it appeared that in 1861 the plaintiff special contract by charying the plaintif a bought some beasts at Oxford market, and smaller rate of charge, or anything of the delivered them to the station-master at kind :-Held, that the cattle were injured the Oxford station of the defendants, with within the meaning of 17 & 18 Vict. c. 31. directions to send them to Birmingham for s. 7, and also that the condition in the ticket the market which was to take place the was unreasonable within the meaning of that next day. At the time of delivering, a ticket section.

was given to and signed by the plaintiff,

which was in the following form : The first count of the declaration alleged “Cattle, Sheep and Pigs (reduced rates). that the plaintiff delivered to the defen- “To the Great Western Railway, Oxford dants certain beasts, to be by the defendants

Station, carried from Oxford to Bordesley Station,

"Nov. 13, 1861. Birmingham, and there delivered for the “ Received from Allday, of the plaintiff in a reasonable time then next fol- under-mentioned animals on the conditions lowing, for reward to the defendants; that stated below, and at special reduced charge the defendants received from the plaintiff below the rates authorized by law. the said beasts for the purpose aforesaid, "To be sent to Bordesley Station. and all conditions were fulfilled, and all

“Special Conditions. things happened, and all times elapsed, “The loading and unloading is to be necessary to entitle the plaintiff to have performed by the sender, and any assistthe said beasts delivered by the defendants ance voluntarily given by the company's at the last-mentioned place, yet the defen- servants to be at the risk of the owner. dants so carelessly and negligently con- The company are not to be subject to any ducted themselves in and about effecting risk in the receiving, loading, forwarding, the purpose for which the said beasts were in transit and unloading, nor to be amenso bailed to them as aforesaid, that by reason able for any damage actual or consequential, of the said negligence and carelessness of arising from suffocation, from being tramthe defendants they did not within the said pled on, bruised or otherwise injured from reasonable time deliver the said beasts to fire or any other cause whatsoever, nor from the plaintiff at Bordesley Station, Birming- any consequences arising from over-carriage, ham, as aforesaid, by reason whereof the detention or delay in, or in relation to the conveying or delivering of the said animals, bility that they may be carried beyond however caused."

the particular station to which they were It was not proved that the rates charged destined. were not the rates usually charged. The [COCKBURN, C.J. - You must go the company have two stations for the delivery length of arguing that if the cattle had of cattle for the Birmingham market, one, been carried 200 miles beyond Bordesley that at Bordesley, for the cattle from Ox- station, the defendants would have been ford and places south of Birmingham, which protected from liability. is the one mentioned in the ticket; the other, If that be so, the defendants may be Hockley, north of Birmingham, which would protected on the ground that what has not be the proper one for the plaintiff's happened only amounted to delay, for if cattle to be sent to. The plaintiff made in- the plaintiff had not accepted the cattle at quiries for them the next morning at the the Hockley station, they would have been Bordesley station, but inasmuch as they sent back to Bordesley and delivered to had been carried to the Hockley station, he him there. Next, there was “no loss of or did not get them till the middle of the day, any injury done to” the cattle within the and when the market was nearly over. The meaning of 17 & 18 Vict. c. 31. s. 7, and proper time for him to have received them therefore the defendants have a right to would have been early in the morning, and limit their liability as they would be able at the Bordesley station. By reason of the to do at common law. Admitting that the delay which took place he lost the market; condition of the cattle had fallen off in conand in addition it was proved that the sequence of the want of food and water, cattle had become injured by having been that would not amount to “injury” within kept in the trucks without food or water. section 7. of the above act. The defendants refused to make any compensation, and the action was brought at COCKBURN, C.J.-I am of opinion that the time, though proceedings were after- there ought not to be any rule in this case. wards stayed.

It is admitted that there had been loss of In consequence, however, of the decision condition to the cattle, and it is clear that of the House of Lords in Peek v. the North that amounts to “injury” within the meanStaffordshire Railway Company (1) the ing of the 7th section. I am also of opinion plaintiff went on with the action. The de- that the condition expressed in the ticket fendants insisted that they were protected is unreasonable. The defendants claim by the condition in the ticket, and that they complete immunity from liability in respect were not liable in respect of over-carriage. of all delay, over-carriage, &c. They talk

The learned Judge, however, was of of reduced rates, but there is no proof that opinion that the condition was unreason- they charged the plaintiff anything less able, and a verdict was found for the plain- than the ordinary rates of charge. It might tiff for 15l., leave being reserved to the perhaps be reasonable if they had given the defendants to move to enter the verdict for plaintiff the choice of two classes of rates, them.

and had made a special contract limiting Field (Manley Smith with him) now their liability in consideration of the lesser moved accordingly. - The plaintiff was not rate being charged. But no such thing has entitled to recover in this action ; he has been done here. entered into a special contract with the CROMPTON, J.-I am of the same opinion. defendants as to the terms upon which they It is clear that the cattle sustained injury were to carry the cattle. There is nothing by reason of the conduct of the defendants. unreasonable in the conditions set out in It is also clear that the condition was an the ticket, nor is there anything in the unreasonable one; it was compulsory upon 17 & 18 Vict. c. 31. s. 7. which can shew the plaintiff, no option being given to him, that the contract would not be binding upon and the defendants cannot in such a manner the plaintiff. The difficulty of making protect themselves from liability. arrangements for the carriage of cattle is MELLOR, J. and SHEE, J. concurred. very great, and there is always a possi

Rule refused. (1) 32 Law J. Rep. (N.s.) Q.B. 241.

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