Scottish Court of Session Decisions

The brig Craigievar of Aberdeen, of which the defender Ray was master and part owner, was in London in the beginning of the year 1827, taking in a cargo for the Cape of Good Hope—the pursuers, Arnold and Woollett, commission agents, being her brokers. At the same time another vessel, called the Brothers, was loading also for the Cape. The greater part of a quantity of crates of earthenware, belonging to Spode and Copeland of London, which had been engaged to be taken by the Brothers, having been shut out by her owners preferring some other freight, Arnold and Woollett applied to Spode and Copeland, on behalf of the Craigievar, for the crates so shut out of the Brothers, and made an agreement in regard to them, of which they gave the following account to Mr Forbes, one of the owners, in a letter of date 17th May, 1827: “A quantity of crates was shut out of the Brothers, which was loading for the Cape at the same time as the Craigievar. We applied for the goods, Captain Ray being anxious to have despatch, and if possible a full ship, having given an engagement to sail at a stated time. Messrs Spode, Copeland and Company agreed to transfer the goods, and pay the same rate as they gave the Brothers, with an understanding they should pay the full freight, if it should be recovered from the owners of the Brothers, who shut out these goods to suit their own convenience, having subsequently engaged goods which would pay a better rate, after having taken part of this shipment on board. This is the precise state of the case, and, from the present appearance, we cannot hold out any encouragement that any thing more will be recovered.” In answer to this, Forbes wrote Arnold and Woollett that he did not understand the nature of the transaction, to which they replied as follows: “We are in receipt of your favour of the 31st ult., and regret you could not comprehend the statement which we made respecting Messrs Spode and Copeland's shipment of earthenware. The facts are precisely these: We heard that the ship the Brothers (which was loading in the berth for the Cape of Good Hope) had shat out a quantity of crates belonging to the above gentlemen, which Captain Ray was anxious to secure, doubting whether he would be full within the time he had engaged with Mr Maynard to sail; this led to a meeting with Mr Copeland junior, who offered to transfer them to the Craigievar, on condition of their being taken at the same rate of freight as he had engaged to pay by the Brothers, which was 20s. per ton, and which was agreed to, with the understanding that Spode and Company should pay the current rate of freight for earthenware, in the event of their recovering the difference from the owners of the Brothers, who they said were bound to pay, in consequence of a breach in their agreement. To show the position as brief as we can, we submit a statement at foot, which we trust, together with the explanation we have given, will be sufficiently explanatory and clear. We remain, &c.

“Not having taken on board these goods according to their agreement, whereby they made themselves liable to pay all costs and charges attending their being forwarded by another vessel—full freight charged at 30s. per ton, subject to the said rate being recovered from the owners of the Brothers, agreeable to the understanding, . . £236 1 10

“Freight paid by Messrs Spode and Company, being the rate the owners of the Brothers agreed for, . 84 0 0

“Difference of freight to be recovered from the owners of the Two Brothers, to make up the difference of their rate, and the current rate, as charged by the Craigievar, ….. £152 1 10”

In return, Forbes wrote Arnold and Woollett in these terms: “I have received yours with Craigievar's manifest, which, I am sorry to say, I do not understand. You say it was agreed to take Spode and Company's goods at 20s. per ton, with the understanding that the brig was to get 30s. per ton, if Spode and Company made good their claim against the owners of the Brothers. From this the Craigievar was made sure of 20s. per ton, with some prospect of getting 30s. per ton; now yon call the full freight at 30s. per ton,… . £236 1 10 which makes about 158 tons, Spode and Company's on board at 20s. per ton, …… . £158 0 0 For which you allow, …. 84 0 0

Due still at 20s. per ton on the shipment, . . £74 0 0 “I almost suspect the £152 should be put into the place of the £84, for I cannot understand if 30s. per ton produces . £236 0 0 that 20s. per ton should only produce . . 84 0 0 “In haste. I am,” &c.

On the 28th July, Arnold and Woollett again wrote Mr Forbes thus: “We beg to inform you, Messrs Spode and Copeland will not pay more than the £84 for the present freight of the Craigievar; but that we agreed with these gentlemen for 20s. per ton, provided they did not pay the 30s., and we will use our best exertions to obtain the difference from them. We remain,” &c.

Spode and Copeland, however, refused to pay more than £84, which, they contended, was all they had agreed to pay, unless in the event of their recovering damages from the owners of the Brothers, which they offered to undertake at the expense of the owners of the Craigievar, on receiving an indemnity. Arnold and Woollett had omitted at the time to get from Spode and Copeland the freightnote containing the terms of the bargain; and on the 17th March, 1828, they wrote in these terms to Ray, the master of the Craigievar, who had then returned to London, and was about to proceed on a new voyage: “This will be accompanied by two papers which we shall continue to send should you be unfortunately windbound, with any letters we may receive, We have received a letter from Messrs Spode and Copeland, of which the annexed is a copy; the young man who brought it is the same as promised to bring the freightnote in your presence, when Mr Arnold taxed him with not keeping his word, he said when he was about bringing the freightnote, they took it from him. So far, you sec how far these gentlemen's conduct is correct or not, and what prospect we have to contend successfully against them. We will, however, do our best, and force the production of the freightnote, which was delivered at the time you signed the bills of lading; that will speak for itself. It appears clear to us it was made out at £1 per ton.”

No payment beyond the £84 was ever obtained from Spode and Copeland. Some time afterwards, Arnold and Woollett rendered their accounts for commission on this and other transactions in which they had acted as brokers, and only debited themselves with this £84, as the freight of the crates; the defenders, owners of the Craigievar, refused to pay the balance so brought out, and insisted that Arnold and Woollett should debit themselves with £ 158, being the amount of freight for the crates at 20s. per ton, on the ground, that by the agreement with Spode and Copeland, as represented by themselves, that amount was in any event to be paid, with a chance of 10s. additional to make up the current rate, which was 30s., in the event of recovery from the owners of the Brothers; and that having failed to obtain a freightnote from Spode and Copeland, or other written evidence of the contract, whereby to enable the defenders to enforce payment in a court of law, they must be responsible therefor.

Arnold and Woollett thereupon raised this action for payment of the balance as brought out in their account rendered, in which the defence pleaded was rested on the grounds above mentioned. A commission was granted to examine havers in London, in order to recover the freightnote, but without success, though one of the partners of Spode and Copeland gave a note of what he believed to have been the terms of it, bearing the freight to be “at 20s. or 30s. per ton, subject to either rate being recovered from the owners of the Brothers,” with a notandum added by himself, “or £84 in full, being the rate agreed to pay the owners of the brig ‘Brothers.’”

The Lord Ordinary thereupon pronounced this interlocutor, adding the subjoined note: ^* “Finds, that on 15th December, 1826, the pursuers, who were brokers and shipshusbands of the Craigievar, agreed to ship a quantity of stoneware for Messrs Spode and Copeland in that vessel for the Cape, and sent them a freightnote, stating the amount of the freight, which they were to pay on these goods being shipped: finds, that in their letter of 17th May, 1827, the pursuers state the bargain to have been, that Spode and Company were to ‘pay the same rate as they paid the Brothers, with an understanding they should pay the full freight, if it should be recovered from the owners of the Brothers:’ finds, that the defender Forbes having stated in reply that he did not understand the transaction, the pursuers, by their letter of 6th June, 1827, explained that it was the same rate of freight as they had engaged to pay by the Brothers, which was 20s. per ton, with the understanding that they were to pay the current rate of freight for earthenware, which is stated to have been at that time 30s.: finds, that the same terms of the bargain are again distinctly stated by the pursuers, in their letter of 28th July, 1827: finds, that the pursuers hare not delivered to the defenders any freightnote, or other document, as evidence of the bargain thus notified to them, on which they

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* “The bargain was unquestionably made by the pursuers, and they were bound to make a distinct bargain, and to furnish the usual evidence of it. This, in a case of this kind, is not by a charter party; but where the customary freight is not to be paid, then a freightnote is furnished to the shipper, more especially if he is to pay the freight, and not the person receiving the goods at the port of delivery, in which case the freight is generally entered in the bill of lading. Here Messrs Spode and Copeland, as the shippers, were to pay; and it seems impossible to doubt, after the distinct statements twice made in answer to enquiries pointing out, not the inconsistencies of the prior statement, but the Inconsistency of this with the ship's manifest, that the freight was to be 20s., subject to a further recovery. The Lord Ordinary has paid no attention to the examination of havers, in so far as they have deponed, as if they had been witnesses in causa; and as to the copy of the freight-note produced, this seems not sufficiently proved, as the copy was not compared by the commissioner and found correct, but only by the witness. Even were the facts stated by the first witness proved, the pursuers would have great difficulty In reconciling them with their letters of 6th June and 28th July, 1827, and there would have been neglect of duty in not clearing up the matter immediately, and insisting upon Messrs Spode and Company subscribing a freightnote, which stated the terms of the bargain, as they continue to represent it. If such a note had been put into the defender's bands, the pursuers had fully fulfilled their duty, and the defenders must themselves have prosecuted Spode and Copeland for implement. At this distance of time, the Lord Ordinary cannot think the pursuers are entitled to prove by parole evidence that the bargain was either not made by them, or that it was different from the statements contained in their own written and contemporary documents.”