Privy Council.-Cowie v. Remfry. thereupon obtained a verdict for damages and costs. The facts of the case and the substantial parts of the evidence bearing upon this question of law, are fully stated in the judgment of the court. the appellants, to recover damages for the | a transaction effected by a broker between non-performance of the contract, and other parties by means of bought and sold notes, was any thing done to waive the effect of the bought note, varying materially from the sold note ? Thornton v. Mieux, 1 M. & M. 43; Thornton v. Kempster, 5 Taunt. 786; Pitts v. Beckett, 13 Mee. & W. 743; Hawes v. Foster, 1 M. & R. 368; Short v. Spackman, 2 B. & Ald. 962; and Smith's Mercantile Law, (3d ed. 455.) Sir Fitzroy Kelley, (the Solicitor-General,) and M. D. Hill, in support of the appeal. a 1 M. D. Hill, with him, contended, that if this was not to be considered a transaction by bought and sold notes, then there was no contract to satisfy the statute of frauds, (29 Car. 2. c. 3.) Eastwood v. Kenyon, 11 Adol. & Ell. 438; Allen v. Bennet, 3 Taunt. 169. Sir T. Wilde and C. Buller, for the respondents. [Lord Brougham.-The question is, whether this is a transaction of bought and sold notes? You must admit the law, if so. Rowe v. Osborne was not a case of bought and sold notes.] The Solicitor-General.-This was transaction by bought and sold notes, and it will not be disputed, that the law in such cases is, that if there be a variation in any material part, between the bought and sold notes, the contract is void and gone. The court below thought, that by Cowie reading the sold note, and striking out the word "usual," affixing his initials, and then delivering it back to the broker, he made that the sole contract between the parties; but it does not appear that the sold note was delivered to Cowie, for any other purpose than to get his assent to the alteration. The court below also thought that this case fell within the principle of Sir T. Wilde.-If this sold note conthe case of Rowe v. Osborne, 1 Stark. tains the contract of the parties within the N. P. 140, but we submit that the present meaning of the statute of frauds, then the is wholly different from that case. There only question is, whether it was signed by the contract was not effected by the me- the parties sought to be bound? There dium of bought and sold notes, for the is no doubt whatever, that Whyte, Holmes contract was not signed by the broker, but & Co., had authority to enter into the conby the party himself; it was just the tract. Holmes tendered the contract to same as if the purchaser had written a Woollaston for his approbation, but upon letter, saying he agreed to buy on the his dissenting to the word "usual" remainterms stated; but here the whole contract ing, Holmes took it to Henry Cowie; and was made through the medium of the the effect of his conversation with him was, broker and was clearly a transaction by "Do you agree to this with the word bought and sold notes. It cannot be in-usual' struck out of it?" and Cowie imferred, that when the broker went to Henry Cowie to get him to strike out the word "usual," the transaction was completed, and the necessity of a bought note done away with, by his merely agreeing to the alteration. Suppose a draft release brought to one of the parties to have an alteration agreed to, can his signing that alteration be considered the formation of a contract? The statements of the broker as to what view he took of the transaction are wholly immaterial. Where two notes were in fact delivered, to let in such evidence would be dangerous in the extreme. If, then, this is to be considered mediately drew his pen through that word, put his initials over it, and handed it back to Holmes to be delivered to the seller. We have, therefore, a paper containing the terms of the contract, signed by the party authorized by the buyer, and delivered to the seller with the approbation of the buyer. This was the signature of the purchaser for all legal purposes, (before the delivery of the bought note;) if it was not so at the delivery, it never could be afterwards made a contract within the statute of frauds. Buller with him.-The bought note in Privy Council.-Cowie v. Remfry. this case, was not the means of comple- that this sold note did not alone constitute ting the transaction; it was not the means the contract, but that the contract conby which the fact of buying was made sisted of the sold note, and also of the known to the buyer; it was not delivered bought note, being of the same date, and at the time, but several days afterwards, signed by the brokers. The defendants at the request of the buyer, for the pur- also insisted at the trial, that the plaintiff's pose of sending it to Bombay, the tran- were bound to give in evidence the bought saction was, therefore, complete without note as well as the sold note. The court the bought note. however, was of a contrary opinion; and the defendants produced the bought note The Solicitor-General, in reply.-This as part of their evidence. A question is a clear case of bought and sold notes; arose, as to whether it was customary the broker himself states, that he delivered in Calcutta to deliver bought and sold both a bought and sold note; the contract in notes; and the court declared in its judg such cases is not binding upon either party ment that the evidence in favor of the until both are delivered. Thornton v. custom preponderated. The questions Kempster, ubi supra, et 1 Marsh. *55. [Dr. for us to determine are, first, what docuLushington referred to the case of Hum-ment or documents constituted the conphries v. Carvalho, 16 East, 45.] That case tract between the parties; next, what is fortifies my argument, and goes to show the construction of the contract; and, that the notes must correspond at the time lastly, whether the contract was void or that the contract is complete. [Dr. Lush-has been broken. The facts of the tranington. There was parol evidence there that the seller acquiesced in the sale.] There was no variation of the contract in the bought and sold notes. That case only shows that the authority might be disputed; the question was, whether the seller might reject it on other grounds than discrepancy. Sir T. Wilde said, that there was a material alteration between the bought and sold notes in that case. Dr. LUSHINGTON delivered the judgment of their Lordships.-The appellants and the respondents were two mercantile firms at Calcutta. The appellents were the purchasers of large quantity of indigo from the respondents, who brought an action against them for damages for nonperformance of a contract dated the 19th November, 1840. The supreme court were of opinion, that the contract was solely constituted by a note, signed by Messrs. Whyte, Holmes & Co., the brokers employed by both parties, the note being dated the 19th November, 1840, and being the contract declared upon by the plaintiffs. [His Lordship here referred to the sold note.] The court being of opinion that there had been breach of this contract, gave damages assessed in pursuance of the contract, to the respondents, the plaintiffs. The appellants the defendants, contended He saction must be taken from the evidence Privy Council.-Cowie v. Remfry. seller." Mr. Ferguson, however, a wit- and his firm were bound by all the condiness of much greater experience, and tions therein contained; that such note whose opinion was adopted by the immediately constituted the contract becourt sitting, also as a jury, says, He tween the parties, and if accepted by the considered it the invariable custom at respondents, became binding on the apCalcutta, to deliver bought and sold pellants; entirely abrogating pro hac vice notes: it was so in 1840, and is so now." the customary mode of dealing by bought Then, upon the whole of this evidence, we and sold notes, and all the legal results must determine what is the legal conclu- arising therefrom. It may be true, that sion, as to the way in which it was the in- merchants dealing inter se, are not bound tention of the parties that the contract by any customary mode of contracting, should be made, and whether any and and that they may adopt another and difwhat contract was made. According to ferent mode of contracting if they think the custom prevailing amongst merchants fit; but we are of opinion, that the at Calcutta, the contract should have been presumption is strongly in favor of the by bought and sold notes; and the ne- custom, and that any alleged deviation cessary inference is, that the parties in- therefrom must be strictly proved. Now, tended to contract according to the cus- what was the course of this transaction? tom. But this is not all; there are de- Mr. Cowie, as the acting partner of his livered to both parties bought and sold firm, communicates with Mr. Holmes, the notes, according to the custom. The ac- broker, and they come to some understandtual dealings correspond with the usual ing as to the terms on which the indigo practice. What is to be set off against was to be purchased. The custom of this? Nothing but the statement of Mr. dealing by bought and sold notes having Holmes, evidently a young and inexpe- been proved, it must be presumed that rienced person, who deposes that he did Mr. Cowie intended so to deal, till the not believe such a custom to exist, though, contrary be proved. Mr. Holmes conat the very moment, he was de facto fol- ceiving that he understood the terms lowing it. All the acts of the two parties agreed upon by Mr. Cowie, embodied show they were acting in observance of them in the sold note, which he sent to the custom. Mr. Woollaston requires the Mr. Woollaston the seller. There is neisold note to be corrected according to his ther proof nor presumption that Mr. sense of what the contract should be: Cowie saw this note before it was sent. Mr. Cowie, one of the defendants, re- Mr. Woollaston returns the note through quires a bought note to be delivered. Mr. Holmes, with an objection to the Looking at all these facts, we think, that word " usual." Mr. Holmes has an interif there be no other evidence or circum-view with Mr. Cowie, and tells him he stances to the contrary, we must come to the conclusion that the transaction is to be considered as a contract by bought and sold notes, and to be governed by the rules applicable to such a contract. What is there in this case that militates against such a conclusion? The fact, that after the sold note had been shown to Mr. Woollaston, and he objected to the word "usual," the same note had been shown to Mr. Cowie, and as Mr. Holmes says, he thinks read over by him and afterwards, as he deposes, the word "usual" struck through, and the initials "H. C." of Mr. Cowie's name added by him. It is contended, on the part of the respondents, that the conclusion to be drawn from this circumstance is, that Mr. Cowie by this act, so sanctioned the sold note, that he cannot finish the transaction unless the word "usual" be struck out; and so far as appears, it was for this, and this purpose alone, that the sold note was shown to Mr. Cowie. Mr. Holmes thinks he read it. Assuming he did read it, for the purpose of considering whether he should comply with the demand made, whether he should consent to one proposed and designated alteration; he was not (whatever might be the legal consequences,) de facto required to read it, with a view to determine whether it contained the terms intended to contract upon. First of all, was it intimated to him, that by the act he was asked to do, he would depart from the accustomed usage, and irrevocably bind himself and partners by that single note? This signature of the alteration Privy Council.-Cowie v. Remfry. can only be taken to indicate the approval have been this: that the signature clearly of, or rather his assent to, that alteration evidenced the consent of the purchaser to in that note. We are of opinion, that it buy on the terms stated in the document. would be exceedingly dangerous to the For that purpose, and that purpose only, safety of all mercantile transactions, which could the document have been submitted so mainly depend upon usage and the ob- to him for his signature, and being so servance of it, if we were to infer from a signed by him, the necessary and inevicircumstance of this description, that the table conclusion, in the absence of fraud, purchasers were bound by this sold note is, that he knew and approved of the terms, alone, contrary to the custom and con- and expressed such approval by his signatrary to the course of the transaction itself, ture. The vendor having assented to thereby establishing a contract by an act those terms, there was a complete contract not in itself purporting so to do, and of between the two parties; and the very the consequence of which Mr. Cowie was fact of such a signature by a party being not apprized, and which no mercantile contrary to the custom of buying by man could be expected to surmise. We are of opinion, that the contract was not, as held in the judgment of the supreme court, evidenced by the sold note alone; but that it was a contract by bought and sold notes, according to the custom in use, and to be so dealt with. We think, that the established usage of dealing in the mercantile world, should be held in high respect; the very existence of such usage shows, that in practice it has been found useful and beneficial. The presumption is in its favor, and no departure from it is probable; and, therefore, not to be inferred from doubtful circumstances, and especially not from circumstances which, in the opinion of mercantile men generally, would not be conceived to produce any such consequences. lied on the case of Rowe v. Osborne, 1 Stark. N. P. 141. Though this was only a decision at nisi prius, yet we acknowledge its weight, as being the opinion of a most eminent judge, (Lord Ellenborough,) peculiarly conversant with mercantile contracts; but we think that case is so materially distinguishable from the present, that it is not only not directly applicable, as was admitted by the court below, but that the principal upon which Lord Ellenborough relied, cannot be made applicable to the circumstances of the present case. In Rowe v. Osborne, the note delivered to the vendor was actually signed by the purchaser. The note of the contract afterwards sent to the purchaser differed from it. Lord Ellenborough held, that the note signed by the purchaser constituted the real contract. The principle upon which Lord Ellenborough so ruled, is not stated; but we apprehend it must bought and sold notes, (which are signed by the broker), showed that he relied upon himself-his own act and deed-in concluding the bargain, and not upon the broker, or on any note to be hereafter delivered to him. The present case we think essentially different. Here, the note received no signature from the party it was submitted to; the party, not for the purpose of considering if it contained his intentions, but solely and exclusively for the purpose of asking Mr. Cowie's consent to the removal of one word; and to that removal he consents and affixes his initials in approbation of that removal, and nothing else. We cannot consider this as a proof of knowledge of contents, and a consent to be bound by the whole The court below re-instrument, abandoning the usual mode of contract by bought and sold notes. We have examined all the other authorities cited at the bar, but we do not think they apply with sufficient closeness to require any further investigation. We feel bound, therefore, to differ from the supreme court, and the judgment they have pronounced on this part of the case. We think that this must be considered as a transaction, in the contemplation of the parties, by bought and sold notes, and that the contract is contained in both the notes and not in one. If this be so, it is admitted that there is a material variation between the two notes; and then the consequence follows, from all legal principles, that no binding contract has been effected. To such purport is the decision of the Common Pleas, in Thornton v. Kempster, 5 Taunt. 786. To use the words of Mr. Baron Parke in another case, the parties never have contracted in writing ad idem. For these In the Queen's Bench.-Soloman v. Lawson. In the Queen's Bench. Before the Right Honorable Thomas Lord DEN- SOLOMAN V. LAWSON.-April 27, 1846. water, and of which, they can ascertain by inquiry of the captain, doctor, or owners of the M. The doctor pronounces it to be a decided case of poison:" Held, in arrest of judgment, first, that there was nothing in the first letter which warranted the innuendo applying imputation of misconduct to plaintiff, and therefore, that the first count could not be sustained. Secondly, , that the second letter was so connected with the first, that the first ought to have been set out and declared on as part of the libel in the second count; and that for want of this, the second count was defective. Quære, whether in an introductory averment it is sufficient to state the substance of a writing? CASE for libel. The first count of the declaration alleged, that the plaintiff, before, &c., was a merchant, and carried on business as such merchant, at the island of St. Helena, and, heretofore and before, &c., was and still is accustomed to be employed for reward in that behalf paid to The first count of a declaration for libel, after in- the plaintiff, for the purpose of conveying troductory averments that plaintiff' was a merchant at St. H., and employed by captains of to, selling and supplying with fresh water ships, touching at the said Island, to supply them and provisions, from the shores of the said with fresh water, specifying the manner in which island, divers ships or vessels passing by the said ships were so supplied, and that a cer- and calling at the said island of St. Helena; tain ship called "M.," applied to plaintiff for and that the plaintiff, before, &c., had, for water, and was supplied out of wooden tanks, the better and for the more easily supplystated, that defendant published of plaintiff and his said trade, and of the said supply of water to ing the ships or vessels, so calling as aforethe said ship, a letter which contained the follow- said with water, purchased and procured ing passages:-"The ship 'M.,' arrived from B., a certain ship or schooner, for a large sum on Saturday, and the passengers landed in almost of money, to wit, &c., for the purpose of a dying state. It appears that they were all tolerably well up to their arrival at St. H., where conveying the said water to and from the they took on board fresh water. There is no shores of the said island, to and on board doubt that their illness was occasioned by the the said ships or vessels, passing by and appears the water is run into a cop-calling at the said island of St. Helena; per tank at St. H., from whence the casks are and had the said ship or schooner fitted up filled along side. There is no doubt therefore, that the poison is imbibed from this copper tank, and with divers wooden tanks or cisterns, for it behooves the authorities immediately to order containing, holding and conveying the said its removal and replace it with an iron one." water for the purpose aforesaid; and that Innuendo, that plaintiff had been guilty of selling before, &c., a certain ship or vessel called and supplying bad and unwholesome water to The Moffat, then on her voyage from the said ship M. persons, pasThe second count, after averring that defendant India to England, with divers published the preceding letter, "in substanco as sengers, officers, and crew on board, arfollows, that is to say," (setting it out,) "stated rived and called at the said island of St. that defendant published another letter of and Helena, for the purpose of taking in a supconcerning plaintiff, &c., and of and concerning the last mentioned letter, containing the follow-ply of fresh water, for the use of the said ing passages: "I beg leave to correct an error I last mentioned ship; and the said persons, was led into, respecting the passengers of the ship passengers, officers and crew on board, M., being poisoned by the water supplied at St. during her then ensuing voyage from St. H., from a copper tank. I stated that the tank Helena to England, and thereupon, afterbelonged to government. This is an error. copper tank is fitted up in a small schooner be- wards and before, &c., a certain person, longing to Mr. S., which runs along side the ships then being the captain of The Moffat, as they arrive, to supply them with water. Cap- then employed the plaintiff, and agreed tains of ships homeward bound, will therefore do with the plaintiff for, and the said plaintiff well to beware of the fatal consequences that may result from taking in water that has been probably did then sell, convey and deliver on board lying some days in a copper tank; the evil effects the said last mentioned ship, a large quan The |