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E. B. & Co. have carried on the said business, and have had Negligent charge of the said wine of the plaintiffs so delivered as keeping of
goods by aforesaid.
bailees. 3. The defendants Messrs. E. B. & Co. were not, either Defence. before or after the date of the said change, careless or negligent, and they do not admit that before the said change the said limited company were careless or negligent in taking charge of the said wine, or by their servants drew or suffered to be drawn wine from any of the plaintiffs' casks, or the casks to be filled up with water or other liquids.
4. An excessive loss within the meaning of the said agreement has not been caused, nor has the character of any of the contents of any of the casks been damaged or altered. No part of the said wine has been confiscated by Her Majesty's Customs, nor is any part of the same now liable to be confiscated.
Negligence of Bailees in not properly packing Silk. 1. The plaintiffs are merchants, carrying on business in Negligent London, and the defendants are warehousemen and the pro- dealing
with goods prietors of the London and St. Katherine's Docks.
by bailee. 2. On or about the 10th October, 1876, the plaintiffs employed the defendants, for reward to the defendants in that behalf, to pack fourteen bales of China raw silk, the property of the plaintiffs then lying in the defendants' C. Street warehouse, in original wrappers, that is, wrappers in which silk is imported from China to England, for the purpose of forwarding the same to Lyons, in France, in fulfilment of a contract made by the plaintiffs for the sale of the said fourteen bales of silk.
3. The defendants, however, did not pack the said silk in original wrappers, according to the contract with the plaintiffs in that behalf, and in breach of their said contract, packed the said silk in Hessian bags and in an improper and insufficient manner, whereby the said silk became and was much damaged in the journey, and arrived at Lyons aforesaid in a much damaged condition and greatly deteriorated in value, and the purchasers thereof from the plaintiff, as they lawfully might, refused to and would not accept the said silk in fulfilment of their contract with the plaintiffs, and the plaintiffs lost a great part of the value of the said silk, and the profits they would
Negligent otherwise have made, and were put to great expense in forwarddealing ing, surveying, repacking, and returning the said goods, and with goods by bailee. otherwise in respect thereof, and were compelled to re-sell the
said goods at a great loss.
4. The plaintiffs, in the alternative, say that they employed the defendants, for reward to the defendants, upon the terms that the defendants would use reasonable care and diligence in and about the packing and forwarding certain silk of the plaintiffs, and the defendants accepted the said employment, and although the plaintiffs instructed the defendants to pack the said goods in original wrappers, the defendants did not use reasonable care and diligence in and about packing the said silk, and negligently and improperly packed the said goods in bags which were unfit for that purpose, and not in original wrappers, and allowed the same to be forwarded therein to Lyons, whereby the plaintiffs incurred the loss and expenses in the last paragraph mentioned.
5. The plaintiffs further say that, at the request of the defendants, the plaintiffs caused the said silk to be returned to London, and the defendants, in consideration that the plaintiffs should forbear from suing them for their breaches of contract aforesaid, agreed with the plaintiffs to take over and purchase from the plaintiffs the said silk, and to pay to the plaintiffs the price agreed to be paid by the purchasers thereof at Lyons to the plaintiffs for the same, and to indemnify the plaintiffs against all losses sustained by them as aforesaid.
6. The defendants, however, have failed to take over the said silk and pay to the plaintiffs the agreed price or any part thereof, and have refused and still refuse to indemnify the plaintiffs against the losses aforesaid in accordance with their contract in that behalf, and the plaintiffs were compelled to sell the silk at a great loss, and by reason of the defendants' breaches of contract in this paragraph mentioned, the plaintiffs have been compelled to bear and pay, and have sustained the losses and expenses hereinbefore mentioned.
7. Particulars of the plaintiffs' claim have been furnished by the plaintiffs to the defendants, but they have not paid the same.
The plaintiffs claim £2000 damages.
Statement of Defence. 1. On the 10th October, 1875, the plaintiffs requested the Negligent defendants, and the defendants undertook, to pack in original dealing
with goods wrappers thirteen bales of China raw silk, then lying in Hes- by a sian bags in the defendants' C. Street warehouse, but not bailee.
Defence. fourteen bales as alleged in the statement of claim. One of the fourteen bales which are mentioned in the statement of claim had been previously, viz., on the 26th September, 1876, delivered to the plaintiffs packed in a Hessian bag, and no order had ever been received by the defendants to pack it in an original wrapper. The said thirteen bales of silk were to be packed in original wrappers for delivery at the C. Street warehouse as aforesaid.
2. The defendants admit that they did not pack the said thirteen bales of silk in original wrappers, and that they delivered the said thirteen bales of silk packed in the Hessian bags in which they were.
3. The defendants had not notice, and they do not admit that the said thirteen bales of silk were to be packed in original wrappers for the purpose of forwarding the same to Lyons, in France, in fulfilment of a contract made by the plaintiffs for the sale of the said fourteen bales of silk, and the defendants do not admit that such contract was in fact made.
4. On or about the 28th of December, 1875, the plaintiffs, by their indorsement on a delivery order directed to the superintendent of the defendants' C. Street warehouse, required the defendants to deliver the said thirteen bales of silk to Messrs. N. H. & Co., and the defendants accordingly delivered the said thirteen bales of silk to Messrs. N. H. & Co.'s van at the said warehouse of the defendants.
5. Except so far as the same are herein admitted, the defendants deny the allegations contained in paragraphs 3 and 4 of the statement of claim, and every part thereof respectively.
6. The defendants did not request the plaintiffs to cause the said silk to be returned to London, and the defendants did not agree with the plaintiffs to take over and purchase from the plaintiffs the said silk, or to pay the plaintiffs the price agreed to be paid by the purchasers thereof at Lyons to the plaintiffs
Negligent for the same, or to indemnify the plaintiffs against the said dealing losses. with goods by a
7. Except that the defendants have not in fact taken over bailee. the said silk, or paid to the plaintiffs anything in respect of
the price thereof, or indemnified the plaintiffs against any losses, the defendants deny the allegations contained in paragraph 6 of the statement of claim, and every part thereof re
spectively. Payment 8. The defendants further say that they have paid the sum into Court. of £21 into Court in respect of the plaintiffs claim in respect
of the cause of action herein admitted, and say that the said sum is enough to satisfy the plaintiffs' claim in respect of the matters in respect of which the same has been paid into Court.
Bankers dishonouring a customer's cheque.
Action against Bankers for Dishonouring a Customer's Cheque. 1. The plaintiff is a solicitor, carrying on business at No. —,
Street, in the City of London ; and the defendants are bankers, carrying on business in Lombard Street, in the said City.
Liability of (a) If a banker refuses to pay a cheque drawn upon him by a trader, who a banker keeps an account with him, and who has sufficient assets in the hands of dishonour. the banker to meet the cheque at the time it is presented for payment, ing cus- the trader is entitled to recover substantial damages without proof of tomer's
actual damage, as the dishonouring of a cheque is likely to be very incheque.
jurious to the credit of persons in trade. (Rolin v. Steward, 23 L. J. C. P. 148.)
It has been held that the different banks of a banking company are, as Branch banks.
regards their separate customers, separate companies, so that a customer who keeps an account with one branch has no right to draw cheques on, and have them cashed by another branch. (Woodland v. Fear, 26 L. J. Q. B. 202.) Therefore where A. received payment for a cheque drawn on branch C. at branch D., and the cashier paying at the latter did not know, as was the fact, that the account of the drawer of the cheque was overdrawn at branch C., it was held that A, must refund the amount of the cheque. (S.C.) But if a banker pays the cheque of a customer erroneously supposing that he had funds, he cannot recover the amount from the person to whom the cheque is paid. (Chambers v. Miller, 32 L. J. C. P. 30.) For some purposes, however, it would seem that branch banks are not regarded as distinct. Thus where a customer had an account with two branches of a bank, it was held that in the absence of any special agreement with their customer, the bank had a right to consider the two accounts as one, and to refuse the customer's cheque, when on
2. In the year 1870 the plaintiff opened a current account Bankers
the defendant's bank, upon which he from time to time dishonouroperated by means of cheques drawn on printed forms issued ing a cusby the defendants.
cheque. 3. On the 18th of May, 1877, and throughout all that day, there was standing to the plaintiff's credit in the defendants' hands the sum of £300.
4. On the said 18th of May a cheque for £100, drawn by the plaintiff in favour of Messrs. W. & L., payable to their order, and dated the 17th of May, 1877, was duly presented for payment at the defendants' bank.
5. The defendants' cashier, however, refused to pay the said cheque, and returned the same to the agent of the said Messrs. W. & L., with the words “No assets" written on the face thereof by such cashier.
6. In consequence of the premises the plaintiff has been seriously injured in his credit and reputation as a solicitor and otherwise, and has been subjected to great annoyance, or has endured pain and anguish of mind.
The plaintiff claims : (1.) £1,000 damages.
(2.) Such further and other relief as the nature of the case may require.
adding the two accounts together the balance was against him. (Gar. nett v. M'Kewan, L. R. 8 Ex. 10.)
Where a customer pays into his bankers a sum of money to meet a As to bill, and the bankers undertake to apply the money to the payment of right of the particular bill, but afterwards fail to do so, and dishonour the bill party when presented to them, the customer may, but the holder of the dis- other than honoured bill may not have an action against them. (Moore v. Bushell, customer 27 L. J. Ex. 3.). It has been suggested that in such a case the holder of to sue the bill would have a remedy in equity as a matter of trust. (Story's banker. Equity Jurisprudence, vol. 2, pp. 288 to 291 ; but see the decision of Malins, V.-C., contra, in Hill v. Royds, L. R. 8 Eq. 290.)
If a banker pays a forged cheque he will generally have to bear the Payment of loss himself; and if he pays a cheque which has been fraudulently forged altered in amount he will have to suffer, unless the drawer has by his cheques by gross fault facilitated the commission of the fraud. (Byles on Bills, bankers. 12th ed., p. 336.) This is the general rule, but by the 16 & 17 Vict. c. 59, 8. 11, if a draft or order (which includes a cheque) drawn upon a banker for a sum payable to order or demand, when presented for payment, purports to be indorsed by the person to whom the same is drawn pay. able, that is a sufficient authority to the banker to pay the amount to the bearer, although the signature indorsed be in fact a forgery. But this enactment does not protect any other person than the banker on whom the draft or order is drawn; it does not protect any third banker who cashes it on the faith of the indorsement. (See Ogden v. Benas, L. R. 9 C. P. 513.)