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said sum of £64 28. 5d., and the same still remains due and claim for money paid unpaid. by mistake.

The plaintiffs claim £64 28. 5d.

Claim for money paid on acceptance fraudulently obtained.

or

Claim for Money paid by Plaintiffs on Acceptances, which were

obtained by Misrepresentation. 1. The plaintiffs are merchants in London, and the defendants are merchants carrying on business in Messina in Sicily.

2. On the 15th of November, 1876, a contract was entered into between the plaintiffs and the defendants for the sale to the plaintiffs by the defendants of a cargo of brimstone. The said contract was made and signed by Messrs. J. B. G. & Co., merchants in London, acting as agents for and on behalf of the defendants, and it was provided by the said contract, among other stipulations not material to this action, that the said cargo of brimstone should be shipped from one of the usual loading places in Sicily during the months of December and

January next, and that the same should be paid for by the plaintiffs' acceptances at ninety days from date of the bill of lading

3. The defendants did not ship any cargo during December and January, or during any part of the said period pursuant to contract, nor has any cargo so shipped been delivered by the defendants to the plaintiffs as agreed.

4. On the 6th February, 1877, the defendants completed the shipment of a cargo of brimstone, and fraudulently procured the bill of lading for the same to be dated the 31st January, 1877, with intent thereby to induce the plaintiffs, who were ignorant of the premises, to believe that the said cargo had been shipped during December and January pursuant to contract.

5. The said bill of lading so misdated was thereupon presented by the defendants to the plaintiffs, together with an invoice, in which the defendants had also fraudulently inserted the date of 31st January, 1877, with a similar intent. By thus fraudulently representing to the plaintiffs that the said cargo had been shipped during December and January, and fraudulently concealing from the plaintiffs that the shipment was not completed till the 6th of February, the defendants Claim for

money paid induced the plaintiffs to, and the plaintiffs did accept, the said

on acceptbill of lading and invoice, and in return to give, and the plain- ance frautiffs did give to the defendants, the plaintiffs' acceptances of obtained. drafts drawn by the defendants at ninety days' sight, to the amount of £3573 9s. 6d., and such acceptances have been duly paid.

6. Shortly after the arrival of the said cargo in America, and after certain expenses and charges in respect thereof had been incurred by the plaintiffs, the plaintiffs for the first time became aware that the said cargo was not shipped in pursuance of contract, and thereupon the plaintiffs declined to receive the same.

7. The plaintiffs submit that they were entitled to reject the cargo actually shipped as not being the cargo agreed to be shipped, and they claim accordingly to recover back from the defendants the amount of the plaintiffs' acceptances, to wit, the sum of £3573 98. 6d., together with divers expenses and charges to the amount of £550 incurred by them in respect

of the cargo.

8. In the alternative the plaintiffs claim damages for the fraudulent misrepresentation and concealment aforesaid, by which they were induced to receive a bill of lading for a different and less valuable cargo, and also damages for the non-delivery by the defendants of a cargo in conformity with contract, by reason of which the plaintiffs have lost the benefit of their contract, and have had shipped to them an inferior and less valuable cargo.

The plaintiffs claim :
(1.) £3573 98. 6d., price of the said cargo.
(2.) £550 for charges and expenses.
(3.) Interest on the above at £5 per cent. per annum from

the date of contract.
(4.) In the alternative, £5000 damages for the fraudulent

breach of contract mentioned in paragraph 8. (5.) Such other or further relief as may seem to be required.

Money paid by Plaintif at Defendants Request for Bets.

1. In or about the month of June, 1876, the defendant Claim for agreed with the plaintiff that, in consideration that the plaintiff money paid

by plaintiff

at defend would make bets for the defendant as to the result of the Oaks ant's request.

race, such bets not to exceed £100, the defendant would repay to the plaintiff any moneys not exceeding £100, which the plaintiff might have to pay in consequence of the loss of such bets. The defendant gave to the plaintiff the names of the various horses he wished to have backed, and mentioned the sums of money he wished to have put on each of them.

2. Subsequently, and in pursuance of the said agreement, the plaintiff made for the defendant bets upon the said horses so named by the defendant, and for the sums of money so mentioned. The total amount of the said bets was £60.

3. All the said bets were lost, and the plaintiff had to, and did pay, the said sum of £60.

4. Yet the defendant has not repaid to the plaintiff the said sum of £60 so due to the plaintiff as aforesaid, or any part thereof.

The plaintiff claims £60.

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Action for Money had and received. (a) 1. One C. J. M. paid to the defendant for the use of the plaintiff £95, and the defendant had and received the said sum from the said C. J. M. for the use of the plaintiff.

2. The defendant, with the consent of the plaintiff, retained £5 as commission for his trouble, and paid to the plaintiff the sum of £46, parcel of the said £95 so received by him as aforesaid, leaving a balance of £45, which is wholly due and unpaid to the plaintiff.

The plaintiff claims £45, and interest thereon from &c.

(a) This claim was drawn in the case of Bartlett v. Roche (W. N. 1876, p. 54), and on objection taken was allowed by Archibald, J., to be good. It was urged that the circumstances under which the defendant received the £95 should be stated, and also when, where and under what circumstances the account was stated between plaintiff and defendant. Archibald, J., however, said, “ The only material facts in this case are, that the defendant received the money, and that he received it for the plaintiff's use. Where the old forms will serve as models, they are not necessarily abolished by the Judicature Acts. Where the defendant has received a sum of money for the plaintiff, the statement of that fact is all that can be required."

Mortgage.

See Recovery of Land.

Negligence (a).

Action for Negligence in unloading Goods causing Personal

Injury. 1. The plaintiff is a cook, and in the month of August, 1876, Claim was in the service of Mr. of No.

Terrace,

against master for negligence

of servant (a) A person is liable for his or her own negligence, or for the negli. causing gence of a servant, causing actual injury or loss to another. But it is injuries. not enough that the plaintiff has been injured, and so injured by the act of the defendant. To found an action there must be negligence on the part of the defendant directly bringing about the injury; and the onus of Onus of proving such negligence, except in a few cases where the law presumes proving it, lies on the plaintiff. Where the injury is the result of more accident, negligence no action lies; thus, where the coachman was driving in the middle of usually the road, and not on his own side, but there were no other coaches on the

on the road, and the horses took fright and overturned the coach, this was held to plaintiff

. afford no evidence of negligence (Wakeman v. Robinson, 1 Bing. 213) ; so where an injury was inflicted by a horse on which the defendant was

Injuries riding, and there was no proof that he omitted to do anything in his caused by power to prevent the accident, the plaintiff was nonsuited. (Ilammack mere acciv. White, L. J. 31 C. P. 129.) Any act of negligence on the part of the dent not defendant is insufficient. “The negligence must in some way connect

actionable. itself or be connected by evidence with the accident." (Jackson v. Any negThe Metropolitan Ry. Co., 37 L. T. N. S. 679, per Lord Cairns.) “It ligence not is not sufficient to prove 'some act of negligence, unless it be proved enough. that such negligence was the direct cause of the injury complained of.” (Ibid.) The pleader is referred to the case cited-Jackson v. The Metropolitan Ry. Co.--as the most recent and most authoritative exposition of the law on this subject.

It has been said that the onus lies on the plaintiff of proving negli. When neggence ; but the accident may take place under such circumstances as ligence may to be primâ facie evidence of negligence, for the happening of something be inferred that would not happen if ordinary skill and care were used is evidence from the of negligence (Gee v. Metropolitan Railway Co., L. R. 8 Q. B. 175, per mere fact Brett, J.), as where a collision takes place between two trains of the same of the occompany. (Skinner v. L. f. Brighton Ry. Co., 5 Exch. 787.) So proof currence. that a stage-coach broke down raises a presumption that the accident arose either from the unskilfulness of the driver or the insufficiency of the coach. (Christie v. Griggs, 2 Camp. 79.) So, where B., walking in a street in front of the house of a flour-dealer, was injured by a barrel of flour falling upon him from an upper window, it was held that the mere fact of the accident was evidence to go to the jury in an action against the flour-dealer. (Byrne v. Boadle, L. J. 33 Ex. 13. See also Scott v. London Dock Co., L. J. 34 Ex. 17, 220, Ex. Ch.; Kearney v. L., Brighton, f. 8. C. Ry. Co., L. R. 6 Q. B. 759.)

Although a person is liable for the act of a servant causing injury to another, such liability only exists where the negligence was committed

Claim

Hyde Park, and the defendant is an ice merchant carrying on against

business at No. —, master for

Street, in the city of London. the negligence of

at a time when the servant was going about his master's business, and servant

acting, however injudiciously as it turns out in the event, as he thinks causing

in the interest of his employer. It is long since the law was laid injuries.

down that a master is not answerable for the wilful and malicious act A master is of his servant. (.1/Vanus v. Crickett, 1 East, 106.) Thus, where the not liable defendant's servant wantonly, and not for the purpose of executing his for the master's orders, strikes the plaintiff's horses, and thereby produces the wilful and accident, the master is not liable; but where the servant, in the course malicious of his employment, and in order to extricate himself from a difficulty, act of ser- so strikes them, although injudiciously, his master is liable. (Croft . vant. Alison, 4 B. & A. 590.) If the servant at the time of the accident is

engaged on his own business, the master is not responsible, as in the case of Storey v. Ashton, L. R. 4 Q. B. 476. There the defendant's carman was directed to deliver the defendant's goods at a certain place, and the carman drove the defendant's cart with the goods in it in an opposite direction, in order that he might transact some business of his own, and it was held that the defendant was not liable for an injury done by the cart while it was being so driven by the carman. But where a servant uses his own horse and gig on his master's business, and with his knowledge, the master is liable, though the servant may on the same occa.

sion do business of his own. (Patten v. Rea, L. J. 26 C. P. 235.) Person not Though a master is thus generally liable for the negligence of a ser. usually vant, he is not liable for the negligence of another who contracts with liable for him to do a lawful work. Here the contractor alone is liable, and not the negli

his employer ; but this rule does not extend to protect one who is gence of bound to do a particular work, and who engages another to do it for contractor him. In such a case it is at his risk if the contractor neglect the work. employed by him.

Defences. Among the defences most common in actions for negligence are the following :

1. That the plaintiff was guilty of no negligence.

2. That even if there were negligence on the part of the defendant, such negligence was not the direct and immediate cause of the accident.

3. That plaintiff was himself guilty of negligence which contributed to the accident. This latter is a very common and important defence. The law is well settled that though there has been negligence in the

defendant, if the immediate and proximate cause of the injury was the Contribu- unskilfulness or negligence of the plaintiff, he cannot recover. Thus, tory negli." if a person were to cross a line of rail from one platform of a station gence. to another, when another means of crossing was provided, and a train

coming into the station at an unusual and improper speed were to run over and injure him, it is true in such a case there would be negligence on the part of the railway company, but there would also be such contributory negligence in the plaintiff as would probably disentitle him from recovering. The rule preventing the plaintiff from recovering when he has been guilty of contributory negligence is, however, subject to this limitation, that if the defendant, by the exercise of ordinary care on his part, might have avoided the consequences of the plaintiff's negligence, and yet does not choose to exercise such care, the plaintiff may still recover. (See Radley v. L. & N. W. Ry. Co., 46 L. J. H. L. 573.) This doctrine is well illustrated by the case of Davies v. Mann (10 M. & W. 546), known as the “ Donkey case." Here the plaintiff had improperly left an ass with its forelegs tied together lying on the high-road. The defendant driving by, saw the donkey, and might easily, by the exercise

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