1876 CROYDON

GAS CO.

tar and ammoniacal liquor as therein also mentioned, it was conditioned that if the said A. J. Dickinson well and truly performed the said agreement in all things, and made good all the payments. DICKINSON. due from him under or by virtue thereof, then the bond should be void, but otherwise it should remain in full force.

v.

3. The said A. J. Dickinson did not make good payments of moneys amounting to 2347. 11s. 1d., which became owing and are due from him under and by virtue of the said agreement, being for and in respect of tar and ammoniacal liquor purchased of the plaintiffs and had by the said A. J. Dickinson under and by virtue of the said agreement between the 20th of January, 1874, and the 30th of September, 1875, accounts whereof have been from time to time rendered to him.

4. The said 2347. 11s. 1d. is due and owing to the plaintiffs. The plaintiffs claim 2347. 11s. 1d.

The defendant Dickinson pleaded a composition under the liquidation clauses of the Bankruptcy Act, 1869, 32 & 33 Vict. c. 71, ss. 125, 126.

Statement of defence by Pollard :

1. The defendant admits the statement of facts in the first and second paragraphs of the plaintiffs' statement of claim.

2. The defendant says that the said agreement was as fol lows:

Memorandum of an agreement made this 20th of January, 1874, between the Croydon Commercial Gas and Coke Company, hereinafter called "The Company," of the one part, and A. J. Dickinson, of Trundley Lane, Deptford, in the county of Kent, manufacturing chemist, of the other part.

1st. That the company shall sell and Dickinson shall buy all the surplus tar made at the company's works at Waddon, in the parish of Croydon, in the county of Surrey, between the 1st of October, 1873, and the 1st of October, 1875, and which the company shall have to dispose of for distilling purposes, at the price of 14d. per gallon (except 50,000 gallons more or less of tar agreed to be sold to Grindley & Co.).

2ndly. That the company shall sell and Dickinson shall buy all the ammoniacal liquor made at the company's works at Waddon (except 100,000 gallons more or less agreed to be sold to Messrs. M'Dougall), and that the price shall be 21. for every 1000 gallons of ten-ounce strength, with the addition of 4s. 6d. per ounce per 1000 gallons for every additional ounce in strength above ten ounces per gallon strength, and so in proportion for any less quantity of any of the strengths above alluded to.

3rdly. Dickinson agrees to provide proper tanks and receptacles, and to remove the said tar and ammoniacal liquor at such days and times as may be

required by the company by notice in writing signed by their secretary, with at least three clear days' notice; such writing to be given to Dickinson or sent by post to the address above mentioned, or to any other residence or place of business that he may use for the time being.

4thly. Dickinson agrees that if he shall fail to remove all the tar and ammoniacal liquor, or either of them, as required to be removed by the company by such notice or notices as aforesaid, he will pay to the company the sum of 100l. as liquidated damages for every breach of his agreement to remove the same as aforesaid: And it is further agreed that if at any time or times the company shall find from their manager that the tar or ammoniac al liquor at their works is likely to overflow the tanks, they shall be at liberty to prevent such overflow by selling off either tar or ammoniacal liquor to any other person or persons, whether chemical manufacturers or otherwise, and that such sale or sales shall not be considered a breach of this agreement.

3thly. Dickinson agrees that the account of tar and ammoniacal liquor had by him shall be estimated on the last day of every calendar month, and the payment for the same shall be made within the first fourteen days of the ensuing month after every estimate shall be so made, unless the company shall, by writing signed by their secretary, allow a longer time for payment, and the first monthly estimate shall be made on the 1st of February next.

6thly. That, if the said A. J. Dickinson, his executors, administrators, or assigns, shall make any breach or non-performance of any of the clauses of this agreement, it shall be lawful thereupon, or at any time afterwards, notwithstanding any subsequent payment or receipt or settlement of accounts, for the company to determine this agreement by giving or leaving seven days' notice in writing, signed by their secretary, of their intention to determine the same; such notice to be given or sent as herein before required with respect to the notices before mentioned.

Lastly. This agreement shall bind the executors and administrators of Dickinson as effectually as if those words of representation were used after his name throughout. Witness the hand of the secretary of the company by order and on behalf of the company, and the hand of the said John Arthur Dickinson. (Signed by Russell, the secretary, and by Dickinson.) and that the account of tar and ammoniacal liquor was not estimated as in and by the agreement prescribed, and although the said company did not at any time by writing signed by their secretary allow a longer time for payment, as provided by the agreement.

3. The defendant says that the plaintiffs did not deal with Dickinson on the terms of the agreement between them and Dickinson; but, without the knowledge and consent of the defendant, dealt with him in a wholly different manner and on wholly different terms, and so as to prejudice the defendant thereby, and gave time for payment to Dickinson of moneys due under the agreement in a binding manner and by contract founded on

1876

CROYDON

GAS Co.

v.

DICKINSON.

1876

CROYDON
GAS Co.

sufficient consideration without the knowledge or consent of the defendant, and beyond the time prescribed by the agreement. 4. The defendant does not admit the allegations of fact in the DICKINSON, plaintiffs' third and fourth paragraphs contained.

The statement of defence delivered on behalf of Child was in all respects the same as Pollard's.

Reply. 1. The plaintiffs admit that the agreement was as set forth in the second paragraph of Pollard's statement of defence. 2. They join issue upon the residue of that statement.

The cause was tried before Denman, J., at the last Hilary sittings for Middlesex. The action as against Dickinson was discontinued, and as against Child withdrawn with the consent of Pollard. The facts were as follows:-Dickinson, a manufacturing chemist at Deptford, had been in the habit of purchasing from the plaintiffs tar and ammoniacal liquor; and in January, 1874, the agreement mentioned in Pollard's statement of defence was entered into between them. The course of business was as follows,-The amount due for the products supplied to Dickinson was ascertained at the end of each month, and an account sent in to Dickinson to be paid within fourteen days. The account for July, 1875, was made up and forwarded to Dickinson about the 3rd of August (which was as soon as reasonably could be). The amount was 2157. 16s. 8d., of which 1007. was afterwards paid, leaving a balance of 1157. 16s. 8d.

Russell, the secretary of the company, who was called as a witness, stated that, on the 21st of August, 1875, he sent a note signed by himself to Dickinson, inclosing a promissory note for 1157. 16s. 8d., payable at a month, which he requested Dickinson to sign and return to him. This Dickinson did; but the note was dishonored at maturity. Russell further proved that the amounts remaining unpaid were as follows:-Down to the end of July, 1875, 1157. 16s. Sd.; additional down to the end of August, 497. 11s. 9d.; and to the end of September a further sum of 697. 18. 2d.

Upon cross-examination, the witness was asked,-" What passed between you and Pollard as to the mode in which Dickinson was paying under his former contract at the time the bond was executed?" The question was objected to, but was allowed,

subject to the objection. The answer was,-" He said, 'How are you going on with Dickinson in the matter of payment?' I said, 'I am taking a note at a month.' He said, 'Oh! very well.' It was after the bond was executed."

The defendant Pollard admitted that no time was specifically given as to the August and September accounts; but contended that there had been a systematic giving of time from first to last; that "payment" meant payment in cash; that the sureties were entitled to a strict performance of the contract; that there was no consent by Pollard to the course adopted; and that, as regarded the July account, the letter of the 21st of August was not time given by the company, by writing signed by their secretary, within the meaning of the agreement.

For the plaintiffs it was insisted that there had been no departure from the true intention of the agreement, and that, as to the July account, the letter of the secretary was a writing signed by him within the fifth paragraph of the agreement.

The learned judge left it to the jury to say whether Pollard knew and consented that the monthly payments should be made as they were, and whether the plaintiffs were acting under the contract in taking payment by promissory notes.

The jury answered both questions in the negative; and judgment was thereupon entered for Pollard, leave being reserved to the plaintiffs to move to enter judgment for them for 1157. 16s. 8d., or for 1187. 12s. 11d., or for both, as against Pollard, as the Court might hold them entitled..

Walpole and Grantham moved accordingly. The course of business as between the plaintiffs and Dickinson was to send at the end of each month an account of the supply of products, and to take a promissory note for the amount payable at a month; and this was known to the sureties. The 5th article of the agreement between the company and Dickinson, upon which the question turns, provides that each month's account shall be paid within the first fourteen days of the ensuing month after the estimate shall be made, "unless the company shall by writing signed by their secretary allow a longer time for payment." This clause has been strictly acted upon. As to the July account, the letter of the 21st

1876

CROYDON
GAS Co.

V.

DICKINSON.

1876

CROYDON
GAS CO.

V.

of August was a sufficient giving of time by the company by writing signed by the secretary.

[BRETT, J. That was an extension of the time of payment DICKINSON. after the money had become due and the liability had attached.] Whether it was before or after the fourteen days makes no difference. But, at all events, as to 1187. 12s. 11d., for the August and September supplies, no time was given. The sureties are clearly liable for those.

[BRETT, J. Unless they were absolved for ever, by reason of time having once been given in a manner not authorized by the agreement.]

In Skillett v. Fletcher (1), to an action on a bond conditioned for the due performance by A. of his duties as collector of the poorrates and of the sewer rates of the parish of St. A., the bond to continue in force if A. held either office separately, with a breach, that A. received money in both capacities, and failed to pay it once, the defendant (a surety) pleaded that before breach an Act was passed increasing A.'s duties as collector of sewer rates, and under which he was also appointed collector of main drainage rates by the persons under whom he held his other appointments, -and it was held on demurrer on the ground that the bond was divisible, and that the plea afforded no answer to the defendant's liability for A.'s breach of duty as collector of poor-rates. Harrison v. Seymour (2) is an authority to the same effect.

A. L. Smith (Macdonald and Grane with him), shewed cause. Here was a binding contract on the 21st of August to give time to Dickinson. The contract in respect of which the defendant consented to be surety was that each month's supply of products should be paid for within fourteen days after the account rendered, unless the company should by writing signed by their secretary allow a longer time for payment. Assuming, but not admitting, that the secretary's letter of the 21st of August was a "writing signed by him" within the meaning of that condition, it was too late, being after the expiration of the fourteen days. The letter itself gave no time: time was given only when the secretary accepted the promissory note and retained it. That disposes of the 1157. 16s. 8d. Then, as to the August and September ac(1) Law Rep. 1 C. P. 217. (2) Law Rep. 1 C. P. 518.