Periculum between Mandant and Mandatary. - Postmaster, whether answerable for Money sent by Post.
George Taylor, Merchant in Amsterdam, v. James Johnston, Merchant in Edinburgh
Date: 17 July 1724 Case No. No 25.
A factor who had employed one to enter goods, instead of doing it himself, was found liable for them, having been seized as not properly entered.
Click here to view a pdf copy of this documet : PDF Copy
Mr Johnston, by his letter 23d August 1718, to Mr Taylor merchant and factor at Amsterdam, directed him to buy several parcels of goods particularly expressed in the letter, “and ordered him to deliver them to Mr Andrew Man shipmaster, to be found at Mr Adam Duncan's merchant in Rotterdam, from whence he was to sail with the goods for Scotland, and to take Mr Man's receipt for the goods,” which the letter said should be sufficient.
Mr Taylor accordingly bought the goods, delivered them to Mr Man, and tood his receipt for them, dated at Rotterdam 18th September 1718, in which Man obliged himself to deliver the same to Mr Johnston at Edinburgh, or his order, sea-hazard, customhouse-officers, and all other hazards excepted.
Mr Taylor also on the 27th September 1718 transmitted to Mr Johnston an invoice of the goods, with the prices and charges, &c. and amongst other articles he stated 23 guilders, 2 stivers, as paid for custom, passports, and to searchers.
Mr Man sailed from Rotterdam with the whole goods, being nine boxes and one barrel; but it happened, that upon a search of the ship by the customhouse-officers at Helvoetsluys, (the port at the mouth of the Maese, by which ships from Rotterdam to Scotland must pass) five of the boxes and the barrel were taken out and detained by the officers.
Mr Johnston having received but four of the boxes, acquainted Mr Taylor of the seizure, and complained of an undue entry made at Rotterdam, as the occasion of it. Mr Taylor, in return to Mr Johnston's letter, wrote him on the 18th November 1718, that he regreted the misfortune, but insisted, that it was none of his fault, in respect that be had given orders to Mr Duncan to make the proper entry of the goods; and at the same time he acquainted Mr Johnston that the goods were relaxed, and that he hoped Mr Johnston would find another opportunity for bringing them home.
In September 1719 Mr. Taylor drew a bill on Mr Johnston, payable to his factor Mr Blair at Edinburgh, for the prices charged in the invoice, with interest from the first of January preceding, which was the time when the price of the goods was actually advanced. Mr Johnston having refused to accept the bill, process was raised against him upon his first letter commissioning the goods, and Mr Man's receipt of them.
It was pleaded in defence for him, That he must have allowance of the value of the five boxes and barrel which had been detained at Helvoetsluys, since the seizure was occasioned by Mr Taylor's fault, who was, by his acceptance of the commission, bound to have made the proper entries of the goods, and expede the necessary clearances; and for proof of this, Mr Johnston produced a declaration of merchants, importing, “That factors abroad were understood to be obliged not only to buy goods, &c. commissioned from foreign parts, but also to make the proper entries of them, and procure the necessary clearances of customs,” &c.
It was answered for Mr Taylor, 1mo, Admitting the above to be the case of ordinary and general commissions, yet that could not take place in the present case, where the commission expressly directed the taking a receipt of the goods from Mr Man, which was declared to be sufficient; 2do, The care of entering the goods, and procuring clearances, appeared to have been the less incumbent on the pursuer, that he did not reside at the port where the goods were to be entered on board; 3tio, No evidence was brought, that the detaining the goods happened for want of the proper entry and clearances; on the contrary, the presumption was, that it proceeded from some fault of Mr Man's, or at least the unreasonable proceedings of the customhouse-officers, since the goods were relaxed and ready to be re-delivered in less than a month after the seizure.
Replied, for Mr Johnston to the first and second answers, That there was nothing particular in the commission, it being generally expressed in all such commissions, that the shipmaster's receipt shall be sufficient; but this is never understood to liberate the factor from the necessity of making the proper entries and procuring clearances; on the contrary, it appeared from the pursuer's own letter 18th November 1718, that he understood it to be a part of his duty, even though he did not reside at Rotterdam, in so far as he gave a commission to Mr Duncan to take care of these particulars for him, and did actually charge in his invoice 23 guilders 2 stivers on account of entries and clearances; so that whether it was his or Mr Duncan's fault, he must suffer the loss. As to the third reply, it was reserved to proof.
The Lords found, That Mr Taylor having employed Duncan to enter and ship the goods libelled, and having stated the expenses of entries and shipping to Mr Johnston, Mr Taylor was liable for the fault and neglect of Mr Duncan.
Reporter, Lord Forglen.Act. Jo. Fleming & Ro. Craigie.Alt. Jo. Horn.Clerk, Gibson.
Fol. Dic. v. 4. p. 58. Edgar, p. 94.
