Children of Daniel and Elizabeth Coates

LAW REPORT.

COURT OF KING'S BENCH, JAN. 5,

O'BRIEN v. WHITE.

This was a case of alleged carelessness in completing a contract by a broker, contrary to his instructions.

Mr. CAMPBELL stated the case. This action had been brought  against the broker, Mr. White, for negligence in concluding a contract for Canada whiskeys, an article rather new in the market. The plaintiff's case mainly rested on the evidence of the broker White, in a former action brought by the plaintiff to recover the amount of the alleged contract of sale of the whiskeys from Mr. Coats. On that occasion Mr. White deposed that he did not think he had authority from the alleged purchaser Mr. Coats to make out the sale to him. In consequence of which Mr. O'Brien lost his cause, and incurred very heavy costs on both sides.

The note of the sale, dated August 28, 1822, made at the time, was put in, and proved by the defendant's clerk, Francis Yates, to be in the defendant's hand-writing.

There appeared much reluctance, however. in the witness to establish the fact of the defendant's having affixed his signature to the bill of parcels.

The LORD CHIEF JUSTICE reminded him of the penalties incident to prevarication.

The witness then said that he did not believe that to be his (the defendant's) hand-writing. In his cross-examination he stated that the defendant on that occasion had charged no brokerage in consequence of the loss sustained. He stated the circumstances of the negociation, which referred to 90 puncheons of Canada whiskey then in the Docks. Mr. Coats had at the last interview made a calculation of the amount at a certain price, on a newspaper, The Public Ledger; the price he did not recollect. The whiskey was above proof, like Irish whiskey, which the Excise will not allow to be sold more than seven per Cent. above proof. The latter is not unfreguently 22 per Cent. or more beyond proof on importation. This was the first transaction in which the defendant was engaged relating to the sale of Canada whiskeys. This was one of the first lots imported here.

A clerk from the London Docks proved the transfer of these spirits, 90 puncheons, by Mr. O'Brien to the account of Mr. Coats.

The clerk of Reardon and Co. attorneys, was examined, and produced the judgment in the former case of O'Brien v. Coats. He stated that Mr. White, when examined on that trial, had admitted that he was not authorised to conclude that contract, nor would he swear the agreement with Mr. Coats was without any stipulation for payment of the over-proof, as it is called in the trade, or the extra strength of the spirit, which rendered it the more valuable on being rectified. On this ground the defendant's Counsel succeeded in his defence, the Jury being of opinion no contract had been concluded by his authority.

On his cross-examination by the SOLICITOR GENERAL he said he could not swear that Mr. White had stated that every thing was settled but the price. The costs in the action amounted to 39l. 18s on the part of' the defendant Coats; Mr. O'Brien's to 91l. 15s.

Mr. Nicholson, a distiller, thought that at that time 2s. 6d. a gallon, without duty, was a fair price for this whiskey. It had since fallen to 2s. 4d. Twelve months credit on the amount, which credit had been agreed on, it would appear, would make a difference of 10 per cent. on the sale. He had purchased this spirit since at 2s. 4d. and then he deducted 6d. per gallon for the difference of over-proof paid for. It was worth in fact now no more than 1s. 10d. per gallon as it lay. When it is bargained for at so much a gallon, he should not expect to pay for over-proof, except it were agreed on. On Irish whiskey payment of over-proof is always expected. Foreign spirits are stated in the contract at their respective strengths, and are bought as they lay. Rum and Canada spirits pay the same duty.

Mr. Thomas Coats was examined at great length. He however distinctly denied having ever contracted for more than two puncheons, to try the experiment of rectifying them; though he was much pressed to buy the 90 puncheons. His house did not want any such large quantity. The calculation on the newspaper referred only to two puncheons, though the conversation always led to an offer of the whole. On stepping into the coach at Clapham one day he had talked of taking the whole, but concluded nothing.

The SOLICITOR GENERAL contended, that the principle of the negociation and the usage of the trade——

The COURT—Here, Mr. Solicitor, is no usage established. The article is new to the market.

The SOLICITOR-GENERAL—Well. then the principle of the negociation was throughout that, in other cases, over-proof ought to be paid for; and hence the defendant was entitled to consider the contract complete.

Mr. W. Urquhart had heard Mr. Coats say it was the over- proof made Canada whiskeys so confounded dear that no advantage cou'd be derived from them. He had purchased those whiskeys himself from Gillespie, and was to pay for the over-proof.

Mr. Gillespie, the importer, said it was usual to pay a proportionably higher price for that which is invoiced over-proof.

Mr. SCARLETT replied.

The LORD CHIEF JUSTICE observed in summing up, that as this was a new case, it did not appear that any usage had been established in the trade as to paying for the over-proof or otherwise. It was of course the more necessary for the defendant to set forth the terms explicitly of the sale in the contract. He thought it was of great importance to the trade of the City of London to determine, whether a broker should make a contract in terms so vague that he could not bind the parties to it, which would in many cases, as in the present, lead the parties for whom he acted into most expensive and ruinous litigation. The Jury must decide whether there had not been such a negligence on the part of the defendant as must, without casting any reflection his integrity, render him liable for the damage sustained by the plaintiff.

Verdict for the plaintiff—Damages 556l, and costs.