if so, it was invalidated by the separation of Whitefield from the rest of the parish. It appears to me to be proved in fact, and that the evidence is all one way. As to the second question, the position assumed by the Defendant is almost suicidal, because he himself claims under a custom, the validity of which would be equally disproved by the removal of Whitefield; but for the reasons already pointed out by my Lord and my Brother Willes, I am of opinion that that removal did not invalidate the custom proved to have exsted from time immemorial in the township of Prestwich. SMITH, J. I am of the same opinion. On the main point I agree with the rest of the Court, that the custom of choosing and appointing churchwardens set up by the Plaintiffs was proved. The evidence in favour of their contention is very uniform and strong, and, in my opinion, its effect is not shaken by the few variations in the entries. In the case of the Duke of Beaufort v. Smith (a), it was held that variations in old entries of receivers' accounts, as to the description of a customary payment extending over three centuries and uniform in amount, were no objection to the validity of the claim; and that it might be supported either as a manorial custom or toll traverse. Moreover, I think that the separation of Whitefield did not destroy the powers of the churchwardens for the five remaining townships. They are rather an aggregate of individuals than a corporation. The other points are more matters of form than of substance, and in respect to them I agree with the rest of the Court. Judgment for the Plaintiffs accordingly. (a) 4 Exch. 450. END OF TRINITY TERM. 1866. BREMNER v. HULL. 1866. EXCHEQUER CHAMBER. Friday, June 15. Sale of goods on board particular ship. Delivery "ex quay.” Condition precedent. NEILL and Others v. WHITWORTH. The Plaintiffs bought of Defendant 500 bales of cotton, guaranteed October shipment, to arrive in Liverpool per ship or ships from Calcutta. The cotton to be taken from the quay: customary allowance of tare and draft, and the invoice to be dated from date of delivery of last bale; to be in merchantable condition, and the damaged, if any, to be rejected if it could not be made merchantable. The ship Talavera was declared by Defendants, and on her arrival the cotton was landed on the quay, but, before giving the Plaintiffs the delivery order, it was removed and warehoused. The Plaintiffs then refused to accept. Held, affirming the judgment of the Common Pleas, that the clause stating that delivery was to be "ex quay" was a stipulation introduced for the benefit of the vendors, and not a condition precedent on which the vendees could rely. HIS was an appeal from the decision of the Court THIS of Common Pleas in making absolute a rule to enter a verdict for the Defendant. The proceedings in the Court below are reported 18 C. B., N. S. 435. It is sufficient to state here that the action was by purchasers of certain bales of cotton, to arrive by a particular ship, against the vendor, for breach of contract in not delivering the cotton as agreed; the part of the agreement relied on by the Plaintiffs, and the construction of which was the point in dispute, being the clause: "The cotton to be taken from the quay." The ship arrived in due course, but no delivery order was given or tendered until the goods had been removed from the quay and warehoused. On this being discovered, the Plaintiffs refused to accept them. Mellish (C. Russell with him) for the Plaintiffs.-The question is what is the true construction of that part of the contract which states that the goods are "to be taken from the quay?" It is that the parties thereby appoint a time and place for the delivery, and if the vendor should not be then and there ready to deliver, a breach of contract would arise, justifying the purchaser in refusing to accept the goods. The Court below held, that it was not a stipulation to deliver at a particular time and place, but a stipulation in favour of the vendor to save him the expense of warehousing, and that there was no corresponding right in favour of the vendee, who must therefore consent to a delivery from the warehouse. But this is not the true construction of a mercantile contract; the provision ought to have been held applicable to both parties. The question is can a vendor, who agrees to sell cotton by a particular ship, ex quay, deliver it from a warehouse? [Pollock, C. B. Is not the question-for whose benefit the words are introduced into the contract? Mellor, J. The words are "taken ex quay," not "delivered."] That makes no difference, the one term implies the other. [Pollock, C. B. "To be delivered" shows a duty cast on the vendor; "to be taken" shows a duty cast on the vendee.] Unless the Plaintiffs' contention is right, this contract fixes no time or place for delivery, and then resort must be had to the question of reasonableness with all its vagueness; but if there are words showing a specific time and place, the words are material and ought to be followed. No doubt the provisions that the goods shall be merchantable, or that they will be rejected unless made so, imply that the vendor shall have time to make them merchantable. Holker (Brett with him) for the Defendant. POLLOCK, C. B. We are all (a) of opinion that, for the reasons assigned in the Court below, the judgment of the Court of Common Pleas ought to be affirmed. Judgment affirmed. (a) Pollock, C. B., Channell and Pigott, BB., Blackburn, Mellor, 1866. NEILL บ. WHITWORTH. and Shee, JJ. 1866. Saturday, Principal and agent. Employment of builder by architect. Liability of architect's em ployés to builder. SCRIVENER and Another v. PASK. The Defendant employed an architect to prepare plans for a villa, and to procure a builder to erect it; and the Plaintiffs were the builders so engaged. An arrangement between these three parties was then entered into, and the Plaintiffs, before signing it, received from the architect a bill of quantities. These having proved incorrect while the building was in progress, the Plaintiffs sought to recover from the Defendant the difference in the cost of the building on its completion. Held, affirming the judgment of the Common Pleas, that there was no such evidence of agency as rendered the Defendant liable for the mistake of the architect. THIS was an appeal against a decision of the Court of Common Pleas in refusing a rule to enter a verdict for the Plaintiffs, who had been nonsuited. The proceedings in the Court below are reported 18 C. B., N. S. 785. Denman (Prentice with him) for the Plaintiffs.-The architect Paice, having been employed by the Defendant to give him plans for his villa, and also to procure a builder, the Plaintiffs, on their engagement by the architect, were entitled to look to the Defendant as the principal, and to Paice as his agent merely. Consequently the Plaintiffs are entitled to make their claims against the Defendant for the work actually done. [Blackburn, J. You say that in consequence of the "quantities" being wrongly taken you have charged 155l. too little?] The Plaintiffs would rather rely on the money counts; the Defendant rests his case on the contract, but that he cannot do without shewing the circumstances under which the contract was entered into. In determining the question of agency the material point is not-who pays? but who employs? [Blackburn, J. To establish your case you must make out-that Paice was acting as the Defendant's agent; that Paice was guilty of fraud, and that the Defendant was aware of it; but there is no evi- M. Chambers (Clare with him) was not called upon. 1866. SCRIVENER v. PASK. Judgment affirmed. (a) Pollock, C. B., Channell and Pigott, BB., Blackburn and Mellor, JJ. |