1851. May 5. The declara- THIS tion stated, that, in consideration that the plaintiff as a coal-factor to sell certain coals on account of the plaintiff, the defendant pro BODEN V. FRENCH. was an action of assumpsit. The declaration stated, that, in consideration that the plaintiff, at the request of the defendant, would retain and employ would employ the defendant as a coal-factor, to sell certain coals on the defendant account of the plaintiff, for reasonable reward, the defendant promised the plaintiff that he would not sell and dispose of the said goods and chattels otherwise than for ready money, and that he would render to the plaina true account of the sale thereof within a reasonable time; that the plaintiff, confiding in the said promise, did employ the defendant as such factor to sell the said goods, upon the terms aforesaid; and that the defendant accepted such employment; and alleged for breach, that the defendant sold the said coals otherwise than for ready money, to wit, at two months' credit, &c. mised the plaintiff that he would not sell the said coals otherwise than for ready money, and alleged for breach, that the defendant sold the coals otherwise than for ready money, to wit, at two months' credit : tiff Plea, amongst others, non assumpsit. At the trial, before Jervis, C. J., at the sittings in London after the last Hilary term, the plaintiff put in the following letter, in order to shew the terms upon the action was which the defendant was authorised to sell the coals in not sustained Held, that by the produc- question: tion of the following letter of instructions given by the plaintiff to the defendant, and by proof of a "Mr. French. "London, September 26, 1850. "Sir,-Please sell for me two hundred tons of an thracite coal, now lying at Neale's Wharf, Blackfriars, sale of the coals and belonging to me, at such a price as will realise me at 15s. 6d. per ton, at a credit of two months:-"Please sell for me 250 tons of anthracite coal, at such price as will realise me not less than 15s. per ton, net cash, less your commision for such sale." not less than 15s. per ton, net cash, less your commission for such sale. (Signed) "H. Boden." It was proved that the defendant had sold one hundred tons of the coal at 15s. 6d. per ton at two months' credit. It appeared also that it was customary in the coal trade to sell at coals a credit of two months, unless sold on the wharf, when the custom was to sell for cash. The lord chief justice was of opinion that the letter of instructions did not bear the construction put upon it in the declaration; and accordingly he nonsuited the plaintiff,-reserving leave to the plaintiff to move to enter a verdict for 751., if the court should be of opinion that the evidence sustained the declaration. Byles, Serjt., on a former day in this term, obtained a rule nisi. Bramwell and Dowdeswell, on a subsequent day, shewed cause. The defendant's employment must be taken to have been subject to the custom of the particular trade, of which the plaintiff must be assumed to have been cognisant: Wigglesworth v. Dallison. (a) The evidence shewed that it was the invariable course of the trade to sell at a credit of sixty days. The direction given here, was, to sell so as to realise,-that is, to insure, to the plaintiff 15s. per ton, less the defendant's commission. [Williams, J. Has the defendant sold for cash?] He has sold at such a price as will, deducting the discount, realise 15s. cash. [Jervis, C. J. The letter of instructions will admit of at least three significations: it may mean, sell for cash down 15s., or at such a price as will eventually realise 15s., or a del (a) 1 Dougl. 201., Smith's Leading Cases, 299. 1851. BODEN v. FRENCH. 1851. BODEN 17. FRENCH. credere.] If it is ambiguous, the nonsuit was right. [Cresswell, J. It may be that the defendant might sell some of the coals at 16s. and some at 14s., so as to make the average 15s. Where credit is contemplated, the ordinary expression is, "equal to cash."] Byles, Serjt., and Gray, in support of the rule. The defendant was not justified by his instructions in selling otherwise than for ready money. According to Dr. Johnson," cash" means properly "ready money, money in the chest, or at hand." In Eddison v. Collingridge (a), in assumpsit by the indorsee of a bill of exchange against the drawer, with a plea traversing the drawing, the plaintiff gave in evidence an instrument in the following form:-" Port of London Sea, Fire, and Life Assurance Company. To the cashier, 10th of September, 1849. 500l. Fifty-three days after date, credit Messrs. P. & Co., or order, with the sum of five hundred pounds, claimed per Cleopatra, in cash, on account of this corporation. A. C., managing director:" and it was held, that "credit in cash" was equivalent to "pay;" and that the affirmative of the issue was proved. Wilde, C. J., says: "The words 'credit in cash' mean, 'hold at his command,' or 'pay to him,' at the expiration of the specified time, the sum of 500l." [Cresswell, J. "Cash," no doubt, means "money:" but, the question is, when it is to be realised.] The word "cash," according to the argument on the other side, has no meaning whatever given to it. The plain and natural construction of the letter, is,-" sell for ready money, at 15s. per ton." Thus construed, and thus only, a sensible meaning is given to the whole instrument. [Cresswell, J. Would there have been any breach of duty, if the defendant had sold at a credit of two months, say, (a) 19 Law Journ., N. S., C. P. 268. for a bill at two months, and himself discounted the bill?] Probably not, so as he realised to the plaintiff 15s. per ton, net cash. JERVIS, C. J. I am of opinion that this rule must be discharged. At the trial, it occurred to me that the contract was, to say the least, extremely doubtful, and that the plaintiff had failed to make out that the authority given by the letter, was, to effect sales for ready money only. And the discussion I have heard has not at all tended to relieve me from that doubt. It seems to have been conceded, in the course of the argument, that the letter of instructions is susceptible of more than one probable construction. Now, it must be remembered that it is the plaintiff's duty to make out that the construction which he has put upon it in declaring is the true one: and this he has failed to do, if the matter be at all doubtful. The case is, in this respect, somewhat analogous to a case which I remember at Chester, where the jury said they found the contract produced quite unintelligible; and it was held that the judge was justified in ruling that the plaintiff had failed to sustain his declaration. If, however, it were necessary to put a construction upon this document, I do not think it shews such a contract as that which the declaration assumes. The real meaning, as it seems to me, of the plaintiff's letter of the 26th of September, is,-" Sell for me 250 tons of coal, at such a price as to have available for me at the time of sale 15s. per ton, less your commission." That construction does not support the declaration. I therefore think the plaintiff was properly nonsuited. The CRESSWELL, J. I am of the same opinion. plaintiff, by his declaration, undertakes to construe this very obscure document. He alleges, that the defendant 1851. BODEN V. FRENCH. 1851. BODEN v. FRENCH. undertook not to sell the coal otherwise than for ready money, and that he did sell otherwise than for ready money, to wit, at two months' credit. The authority is given in these terms,-" Please sell for me 250 tons of anthracite coal, at such a price as will realise me not less than 15s. per ton, net cash, less your commission." The defendant, it seems, therefore, is a commissionagent and we may fairly presume that the contract had reference to some known usage of the coal trade. Now, it is clear, that, by the usage of the trade, a commissionagent may sell without making the purchaser pay to his principal ready money: and, if there was any usage by which the agent pays ready money to his principal, though the sale is on credit, that would seem to be precisely the sort of contract that was contemplated here. That, however, is not the contract upon which the plaintiff has declared. For these reasons, I think the plaintiff has not set out the contract according to its true legal effect, and consequently that this rule must be discharged. WILLIAMS, J. I am of the same opinion. The plaintiff has failed to satisfy me that the letter of the 26th of September, 1850, fairly bears the construction necessary to sustain the declaration. I think the defendant would have been guilty of no breach of duty, if, though selling on credit, he had the money forthcoming at the proper time. TALFOURD, J., concurred. Rule discharged. |