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Colonial Cases

Lane, Crawford and Co. v. Glover and Co., 1870

[breach of contract]

Lane, Crawford and Co. v. Glover and Co.

Supreme Court of China and Japan
13 January 1870
Source: The North-China Herald, 18 January 1870




Jan. 13th.

Before Sir EDMUND HORNBY, Chief Judge.


Claim for $17, 686.60 breach of contract.

   The Petition was filed on 12th December 1869, by Mr. Harwood, and consisted of four counts as follows:

1st. That in consideration of a godown order for certain arms, &c., given them by the plaintiffs, the defendants guaranteed and promised to be answerable for the payment by one A. P. Porter of $17,686.60, being the balance due by the said Porter for the said arms, - breach, that the said Porter has not paid not have the defendants paid the said sum.

2nd. That for the consideration aforesaid the defendants agreed that they would guarantee and promise to be answerable for the payment as above - Breach that the defendants nevertheless refused to guarantee and promise, and that the above named A. P. Porter has not paid nor have the defendants paid the said balance of $17,686.60.

3rd. That for the consideration aforesaid and in consideration that the plaintiffs would employ the defendants to collect the said sum of $17,686.60, the defendants promised that they would collect the said sum from the said A. P. Porter. Breach, that the defendants have not collected the said sum of $17,686.60.

4th. That for the consideration mentioned in the last paragraph, the defendants promised and agreed that they would hold the said goods to the order of the plaintiffs until such time as the balance of $17,686.60 should be paid, and should the said A. P. Porter not pay the said sun, would re-deliver the said goods to the Plaintiffs - Breach, that the defendants have wrongfully parted with the said goods and have refused to re-deliver them though requested to do so.

   On the 15th December Mr. Rennie, on behalf of the defendants, moved that the petition be dismissed without answer required, or that the plaintiffs be ordered to amend their petition by setting forth:

1st the date form and wording of the promises, &c., alleged to have been made by the defendants in the 1st and 2nd paragraphs of their petition, and

2nd. Further particulars of the promises  and agreements alleged in the 3rd and 4th paragraphs and the date, form, and wording of them if in writing, and also further particulars of the nature of the alleged breach upon the following grounds.

First that the petition does not give sufficient information to enable thje Defendants reasonably to understand the nature of the claim against the, and 2nd that the petition is not framed in accordance with the 27 Rule of Procedure.  Order granted that the plaintiffs show cause why the petition should not be amended.

   On 21st Dec. Mr. Hannen, instructed by Mr. Harwood, on behalf of the plaintiffs, showed cause.  In its present form the petition is perfectly good according to common law.  It has been expressly ruled that it is not necessary to set pout the words of a written promise.  It also contains all necessary information to enable the defendants to put in an answer.  We charge them with having guaranteed, and promised certain things.  They surely know whether they did promise or no.  If they think they did not, let them say so, and we join issue at once.  We are not obliged to expose the whole of our case before the trial.

   Mr. RENNIE for defendants.  I grant that the petition may be perfectly good by Common Law Procedure, but it is not good according to the Rules of this Court.  Rule 27 directs that the petition shall contain a narrative of all the material facts and circumstances on which the plaintiff relies.  These Rules are taken from the Rules in Chancery which compel a plaintiff to set out all the written documents in his case, either in hoec verba or so much of them as is material.  The plaintiff seeks to make us answerable for the debt of another.  If they have no written promise, the action may be dismissed without answer required; if they have it may be demurred to as not amounting to a guarantee, and the case need not go to trial.  I insist therefore that it is material that we should know whether the plaintiffs do hold a written promise, and of so of what nature.

   The CHIEF JUDGE. - The object of the Rules of Procedure is to let the Deft clearly know what the plaintiff claims of him, and he has a right to all such information as may enable him to decide whether he will contest the claim as made, or whether he will admit it.  I never could understand what was meant by the inconvenience of "showing your hand."  Nothing that can induce a Deft not to resist a claim should be withheld from him, and therefore anything, and any circumstances that shall bring back to his recollection "promises made" should be readily given him.  A man may forget that he has promised; or he may forget his liability.  When sued - nay, before he is sued - it is the business of the party who claims from him to do all in his power to convince him that his claim is a well founded one, and nothing should be kept back.  If this defendant has promised, time, place, and circumstances should be clearly mentioned; if it is alleged or intended to be proved that he made such promise in writing, the writing or writings should be produced.  The Petition must therefore be amended by setting forth the material document or documents, if any, on which the Plaintiff's rely.  Costs to be costs in the suit.

   The Petition was then amended by the addition of a paragraph 5 stating that the material documents were

1st a letter from Lane, Crawford & Co., to Glover & Co., 18 Nov. 1868 in which they say:

The terms of our Contract being amount to be paid in full ere delivery at Hakodadi, it will be necessary that you hand as guarantee for payment of the outstanding balance, after deducting the $20,000 to be paid here, say $17,686.66 within 3 mos. From date.

2nd as letter from the same parties handing a godown order for delivery of the arms and requesting a cheque and guarantee for payment of $17,686.66 within 3 mos.

3rd a letter from Messrs. Glover & Co. as follows.

Shanghai, 17th Dec., 1868.

Messrs. LANE, CRAWFORD & Co.

DEAR SIR, - As arranged we guarantee to collect from A. P. Porter Esq., Hakodadi, the sum of $17,686.60 being balance due you on contract of 2,000 stand of short Enfields as per account current dated 18 Nov., and we further agree to hold as security for your said balance the said rifles now in course of being shipped per "Sunrise."

Yours very truly, p. pro. GLOVER & Co.


4th. An account current rendered to Mr. Porter by Glover & Co., with the following entry.

Dr. Dec. 19, - Further payment account above guaranteed to Lane Crawford & Co., by us per their account.  $17,686.60 a 77 Tls. 13618.73, and, under the head "Charges."

Guaranteeing Commission and commission on advance to Lane Crawford & Co., 1 per cent, Tls. 299.78.

Dec., 19, 1868.

Signed GLOVER & Co.,


   To the petition thus amended the Defendants demurred as regards the 1st and 2nd paragraphs, and as regards the rest, pleaded did not promise and not guilty.  There was also a plea that the said A. P. Porter was not indebted as alleged.

   The demurrer came on for argument on 13th January.

   Mr. Hannen for Plaintiffs.

   Mr. Rennie for Defendants.

   Mr. HANNEN. - The defendants, by demurring, must be taken to admit all the facts alleged in the petition.  It must be admitted therefore that there was an actual guarantee given, and also a promise to guarantee.  The argument of the defendants is that the Statute of Frauds requires that "the argument upon which this action is brought or some note or memorandum thereof shall be in writing and signed by the party to be charged with &c.", and that the Petition does not disclose any such agreement or note or memorandum as will satisfy the Statute.  To this, we reply that it is not necessary that the argument itself should be in writing - granted that there is a promise, all that is necessary is that the evidence on which the plaintiffs rely should be in writing (Smith's Mercantile Law, 468. I Smith's Leading cases 284 et Seq.) For this purpose letters from the defendant to a third party are sufficient.  See the case of Gibson v. Holland, I Law reports C.P. p. 1, and Bailey v. Sweeting, 3 L.R.C.P. p. 150.  The case of Gibson v. Sweeting is almost identical with ours. There was no privity whatever between the plaintiff and defendant in respect of the writings used as evidence.  They were merely letters written to a third party, from which the Court gathered that the Defendant had contracted as alleged.  So with us in the account given to Porter, there it is distinctly stated "payment guaranteed Lane, Crawford & Co. by us."

   The CHIEF JUDGE. - But, granted that you have already got a compliance with the Statute, granted that you have a written document to which both parties are privy, are you not bound by its terms? Can you travel out of your path and bring in other writings to show a different contract?

   Mr. HANNEN. - We can choose one out of several writings.  The main document begins "as arranged" &c. thus implying other considerations.  These we have in writing, and they are evidence of what the contract really was.

   Again it is a rule that, if a party gives an ambiguous guarantee, it is to be construed mist strongly against himself (Broom's Legal Maxims 571.) The case of Nicholson v. Paget denied this rule but it has been overruled in almost every subsequent case (Wood v. Priestly 2 Law Reports Ex. 66.  Mayer v. Isaac 6 M. and W. 605.  Heffield v. Meadows 4 L.R. C.P. 597.)  If then, we apply this rule to the ambiguous letter of defendants and read it by the light of the account rendered to Porter, it must be taken as a guarantee.

   The CHIEF JUDGE. - You have throughout, argued without taking any notice of the last part of the defendants letter of 17th December.  If the meaning you contend for is to be attached to it, what was their object in promising to hold as security.  You must gather the meaning of a document from the whole of it.

   Mr. HANNEN. - All that I contend for, is, that there was a promise, that we have evidence in writing of what that promise was; something was meant to be guaranteed and it is a question for the jury to say what that was.  In the case of Barr v. Montefiore, 33 L.J. Q.B. 256 it was held that surrounding circumstances may be let in to explain the contract.  Here undoubtedly we have surrounding circumstances, and we are entitled to have them laid before a jury to assist in explaining the document.

   With regard to the 2nd count, even if no actual guarantee was given, we contend there was a promise to guarantee.  All the previous cases cited apply equally well to this part of the argument to show that it is not the promise itself, only the evidence necessary to support it that must be in writing.  I contend therefore the demurrer ought to be dismissed and we be allowed to go to trial and lay our evidence before a jury.

   Mr. RENNIE for the defendants.  The mention of a guarantee in the account rendered to Porter, does not interfere with the original documents, the word guarantee is used in both places, and must be supposed to have the same meaning in the 2nd document, as in the first.  Messrs. Glover and Co., guaranteed to collect and the charge was for that - nothing more.  In the case quoted by my learned friend regarding the admissibility of surrounding circumstances, the point turned on whether the guarantee was continuing or not.  Surrounding circumstances can never be admitted to show what the guarantee itself was, as against a written document.  I can see no difference between the 1st and 2nd paragraphs of the petition.  They are both promises to answer for the debt, default, &c., of another, and the same rule applied to both, and under the 4th Sec. of the Statute of Frauds, must be in writing.  Under this Sec. the whole promise must be in writing, not merely evidence of it.  The cases quoted by my learned friend turn on the 17th Sec. When there are several ways of fulfilling a promise, the Plaintiffs are entitled to the one that is least burdensome.  My client undertook either to collect or to hold the arms.  I submit that the writings produced do not disclose a sufficient promise to render them, liable under the 4th Section of the Statute of Frauds.

   After some farther discussion His Lordship ruled as follows:

Looking at the writing I cannot read it as disclosing a guarantee to be answerable for the debt or default of Mr. Porter.  It is simply a guarantee to collect or to hold as security, and the memorandum of account to Mr. Porter is in furtherance of this guarantee for it is one means of endeavoring to collect - a means of collecting.  The demurrer is allowed.

   It was then arranged that the issues to be tried on the following day were.

1st a promise to collect and non-collection.

2nd a promise to hold as security and re-deliver in default of payment and not holding and no re-delivering.


Jan. 14.

   Before Sir E. HORNBY, Chief Judge.

   And Messrs. D. Brand, F. R. Gamwell, Saunders, Simpson, & Waller, - Jury.


Claim for $17, 686, with interest, on account stated.

   Mr. Hannen and Mr. Harwood for the plaintiffs.

   Mr. Rennie for defendants.

   Mr. HARWOOD in opening the case for the plaintiffs, explained that on the 7th May 1868, Messrs. Lane, Crawford & Co. entered into a contract with Mr. Porter of Hakodadi, to supply 2,002 short Enfield rifles at the price of $19.50 each, rifles laid down in Shanghai - the money to be paid before delivery in Hakodadi.  The arms were to be in Japan six months after the date of the order, and bargain money was to be paid.  The arms did arrive within the contract time.

   Messrs. Lane, Crawford & Co., having some idea that the money might not be paid, gave notice that, if it were not forthcoming, the arms would be sent to Osaka, where there was then a market for them.  Mr. Porter, however, insisted that Messrs. Glover & Co. should take delivery, and consigned a quantity of copper to them, to put them in funds.  Messrs. Glover & Co. communicated with Messrs. Lane, Crawford & Co. showed their authority and arranged to take over the arms and pay $20,000 bargain money; subsequently writing the following letter:-

Shanghai, 17th Dec., 1868.

Messrs. LANE, CRAWFORD & Co.

DEAR SIRS, - As arranged, we guarantee to collect from A. P. Porter Esq., Hakodadi, the sum of $17,686.60 being balance due you on contract of 2,000 stand of short Enfields as per account current dated 18 November, and we further agree to hold as security for your said balance the said rifles now in course of being shipped per "Sunrise."

Yours very truly, p. pro. GLOVER & Co.


   The arms were examined and taken delivery of and re-shipped to Japan.  But on their arrival at Hakodadi, the Senr. Naval Officer refused to allow them to be landed, and they had been brought back to Shanghai.  Messrs. Glover & Co., had since treated the arms as their own, hypothecated them as their own, appropriated the proceeds, and refused either to return them or to collect the amount due.  And Messrs. Lane, Crawford & Co. now came to the Court, to help them to recover the proceeds.

   J. WILSON, managing partner in Messrs. Lane, Crawford & Co.  I made the contract (read) with geo. Porter, to supply him with arms which were to be in Shanghai within six months from date of contract.  Shortly before arrival, I gave notice to Mr. Porter that, if the bargain money was not paid at the arrival of the arms in Shanghai, the contract would be cancelled.  Mr. Porter's answer was that I was to deliver the arms to Messrs. Glover & Co.  I had previously, on the 18th Nov., received a letter from Messrs. Glover, Dow & Co., on that subject.

[Mr. Rennie objected to the letters between Mr. Porter and Messrs. L.C. & Co. bring put in as evidence.  They were all very well between the two parties; but they had nothing to do as regarded Messrs. L. C. & Co. and Glover & Co.]

   Shortly after receipt of Messrs. Glover & Co's letter, Mr. Lindsay called on me at my office and we went to the godowns.  He examined the arms, and was satisfied that they were in order, and within the terms of the contract.  There was an arrangement made between us in reference to the delivery of the arms.

   To Mr. RENNIE. - That arrangement was not reduced to writing at the time.  The substance was put into writing by me when I delivered the arms, in a letter dated 21st November (C.)

   To Mr. HANNEN. - I afterwards received a letter dated 17th December (quoted above).  That does not give the agreement as arranged.

   A discussion here ensued as to the admissibility of verbal evidence to support and explain the written contract contained in Messrs. Glover & Co.'s letter of the 17th December.

   Mr. HANNEN relied on that letter, but alleged that it did not contain the whole of the contract; the full contract was never reduced to writing; he now wanted to produce oral testimony in support of it.

   The COURT could not allow such evidence to go to the Jury.

   Mr. HANNEN wished to produce evidence throwing light in the two points of "collecting" and "holding."

   Mr. RENNIE said the whole of the arrangement lay in that letter; supposing it had not been written, the Plaintiffs would be non-suited.

   Mr. HANNEN said here were two letters, one by the Plaintiff, and one by Defendants, both were incomplete in their explanation of the agreement made, and he wanted to go back to oral testimony to perfect them.  If the Court really thought he could not do so, he preferred not risking a verdict.

   The COURT was decidedly of opinion that it could receive no evidence other than that contained in the letter of Dec. 17th, or in letters bearing on it. In the event of the case going up for appeal, it would be said the Judge had allowed two false issues to go before the Jury.

   After some further discussion, Mr. Hannen agreed to proceed on the latter of the 17th December only; and the Chief Judge directed the Jury to dismiss from their minds everything related to the alleged verbal agreement, and to confine themselves to the written letters, considering the letter of the 17th December as the basis of the contract.

   Witness continued. - I made a verbal arrangement with Glover & Co., for delivering the arms, on payment of the bargain money of $20,000, and a guarantee note at three months for the balance.  There was no further agreement made in regard to collecting.  After having got delivery, they wrote in the guarantee note. On my return from Hongkong, the guarantee note was shown to me.  I said it was not in accordance with the agreement; but as the goods had been shipped, I was obliged to accept it.  I subsequently wrote a letter (E) dated 3rd June, asking for balance of purchase money or re-delivery of arms.

   To Mr. HANNEN. - In the document written by Mr. Lindsay to witness, there are certain mercantile terms, of which I wish to ask him what, as a mercantile man, he understands by the words "we further agree to hold as security."

   The COURT thought they were words which every one understood.

   Mr. HANNEN said it was a mercantile phrase, of which he wanted to know the meaning; he would also take the evidence of other gentlemen who might come into the box subsequently.

   Mr. RENNIE said it was allowable to take the evidence of experts as to the meaning of any peculiar idiomatic term: - it was for the Court to say whether this was sufficiently technical to need explanation.

   The COURT's impression was that the words meant what they said, but had no objection to hear what Mr. Wilson's speculative idea might be.

   Witness. To "hold as security" means to hold and not part with, to hold until the claim is satisfied; if claim is never satisfied, to return to them to my order after making any charges incurred on my account.

   To Mr. RENNIE. - I supposed that Messrs. Glover & Co. would have to pay freight on the arms to Japan.  I should have considered myself bound to return any expenses incurred by Messrs. Glover & Co. after I had delivered them.  Whilst they were in the hands of Messrs. Glover & Co. before delivery to Mr. Porter, I considered I had a right to get them back at any time.  I did not consider I delivered to Mr. Porter.  I delivered to Messrs. Glover & Co.  I do not consider your question, how much the arms cost, has anything to do with the case. [Court ruled must answer.]  The cost, as nearly as possible, was $27,000 laid down in Shanghai.  The ammunition cost close on $4,000.  This never went into the hands of Glover & Co.  It was shipped direct to Capt. Porter.  I have his acknowledgement of receipt.  I wrote letter produced (22nd June.) The original terms were, that if the bargain money were not paid up in full, before the arrival of the arms in Shanghai, the amount paid up was to be confiscated.  It was paid.  We were to get the balance before delivery at Hakodadi.  Another condition was, that $20,000 was to be paid before delivery in Shanghai.  It was not paid till after their arrival.  I considered myself at liberty to resell the goods before the bargain money was paid.  I could have sold the contract to advantage, but I allowed a few days grace.  My object in negociating with Glover & Co. was to retain the same security I should have had under the original contract.  I have three times applied by letter to Messrs. Glover & Co.  I believe we never received a letter signed by G. & Co. promising a guarantee.  I was absent myself, in Hongkong.  I remember writing letter (e).  By the terms of the contract, the arms were supposed to fall back on us in case of non-delivery.  I accordingly wrote to Yokohama to sell.  But Messrs. Glover & Co. refused to re-deliver.

   Mr. RENNIE. - Then you, having received $21,500 on account of these arms which cost $26,000, gave instructions to sell them and remit the proceeds?

   Witness. - Yes.

   Mr. RENNIE. - You would have been rather a gainer by the transaction?

   Witness. - I suppose it would have been better than losing the contract.

   Mr. RENNIE. - And I suppose you would have taken the money and kept it?

   Witness. - I should certainly have taken it if it had been handed to me.

   Mr. RENNIE. - And would probably not have given it up without a struggle?

   Witness.  - Probably not.  I did receive a letter from Messrs. Glover & Co., on 3rd June, saying that, in consequence of the arms not being landed, the contract was not completed, and refusing to deliver them unless the $20,000 bargain money was refunded.

   Mr. RENNIE. - Then this letter did show an offer to re-deliver the arms on certain terms?

   Witness. -  On condition of my refunding an advance which I never received.

   Mr. RENNIE, but you did receive $20,000.

   Witness. - That wasn't an advance.  They had copper sufficient to cover it.  I am instructed by Messrs. Glover & Co., that Mr. Porter repudiates the contract and declines to pay the balance.  Mr. P. has never written to me to that effect.  Supposing G. & Co., had sold the arms, we should have no claim against any one.  We did not consider Messrs. Glover & Co. liable for the money, had they returned the arms.  I am not aware that, even if I succeed in this action, Messrs. G. & Co. will still have no power to sell the arms.

   To Mr. HANNEN, Mr. Porter has told me that he refuses to fulfil the contract; but he never wrote to me to that effect.  Although I say I should have kept the bargain money, it would have gone in to our accounts with Mr. Porter.  By not having the arms re-delivered, I lost the market; it has since gone down.  The godown order was handed to Messrs. Glover & Co., in November.  The arms were then worth probably $15 a 17 each.

   THE COURT. - But there was no refusal to deliver till after the 17th December, because there was no contract.  The value of the arms before that date, therefore, is immaterial.

   To Mr. HANNEN. - At that date I should say the arms were worth more than the value of the contract.

   THE COURT said this really had nothing to do with the case.  The evidence might be good in an action for damages against Mr. Porter, if he were not justified in refusing the contract; but it had nothing to do with the present action against Glover and Co.

   Mr. HANNEN contended that his clients had suffered damage through Messrs. Glover & Co.'s refusal top re-deliver the arms.  They ought to have held them to L. C. and Co.'s order.

   THE COURT. - If they had been asked to return them on the 18th December?

   Mr. HANNEN. - No; but when Mr. Porter had refused to pay the balance.

   THE COURT. - Well; when was that?

   In answer to Mr. RENNIE witness here said he had not asked for re-delivery before June.

   The Court repeated that the evidence would only be material, where a contract for re-delivery was shown.  As yet, he did not see any such contract.  If the Jury were of opinion that there was a contract to re-deliver, then the question of days would become important.

   To Mr. HANNEN. - (Witness continued):- I first asked for delivery in June, 18659.  The goods were probably then worth about $35,000.  I remember a letter in which Messrs. Glover & Co., offered to submit the case to the arbitration of Sir Edmund Hornby.  We agreed; but afterwards Mr. Groom refused to submit it.

   The CHIEF JUDGE. - If it had been submitted to me, I would have settled it in ten minutes.

   Mr. RENNIE wished to make a personal explanation.  He had advised Mr. Groom that he could not enter into an arbitration, as there were four parties to the case, and he had no power to act independently.

   J. M. GRIGOR, manager of the Hongkong and Shanghai Bank: - The arms in question were hypothecated to us by Messrs. Glover & Co.  They were the only people we knew in the transaction.  The advance was made here on the 21st December.  The amount was Tls. 11,500.  I cannot say what was the value of the arms.  I wass led to believe they were worth about Tls/ 20,000 to Tls. 22,000.  They have since been redeemed - about three weeks ago.

   [Mr. Hannen here asked - As manager of the bank, had you seen the letter of the 17th December, would you have advanced the money?  Mr. Rennie objected.  Objection allowed.]

   [Mr. Hannen next asked what witness considered to be the mercantile meaning of the expression "to hold as security for your said balance."  Question objected to; objection allowed.]

   To Mr. RENNIE.  We have no further right over the goods.  We gave them back in tact.

   This closed the case for plaintiffs.


   Mr. RENNIE said, as the case now stood, it rested solely on the letter of the 17th December.  The construction of that document was clear.  The Court had already ruled that evidence as to surrounding circumstances was not admissible as evidence.  He presumed, therefore, that upon the Court, devolved the duty of construing the document.  Having reference to the fact that the balance of the purchase money was to be paid upon delivery, it was clear that the contract placed the defendants in the alternative, either of collecting or holding.  There were two branches in it. Therefore, if he succeeded in satisfying the Court that the contract was performed in any way, he satisfied the requirements of the case.

   (Mr. Rennie went on to quote Chitty on Contracts, p. 657; also the case of Provand & Alexander, 18 L.J. Com. Pleas, p. 83, which laid down that when there were several ways in which a contract could be performed, that was generally adopted which was least objectionable to the contractor.)

   He quite admitted that there had been a failure to collect; that was evident; but, therefore, in accordance with the terms of their letter, Messrs. G. & Co. were still holding the goods as security.  They will not deliver to Mr. Porter, unless on payment of the balance.  If Messrs. L. C. & Co. were entitled to do anything, they were entitled to the goods; but they sued for damages on a breach of contract without alleging any special damages.  If it were alleged that G. & Co. had acted unlawfully in pawning thje goods, he answered that nothing had been lost by their  doing so; and if an action lay against them for doing so, it would be for having, at one period during the progress of the affair, jeopardized the security.

   But why did not Messrs. L. C. & Co. sue for a return of the arms?  He could say that his clients would have been delighted if they had done so, because that would have settled the vexed question in whom the property now lies.  But they did not do this; they alleged a breach of contract, and they contended that the breach could be proved by Mr. Wilson simply going into the box and alleging it.  He (Mr. R.) submitted, on these grounds, that there was no case to lay before a jury.

   Mr. HANNEN, on the contrary, thought there was quite sufficient evidence.  The letter they were now going on ran "as arranged, we guarantee to collect from A. Porter Esq." If this meant anything, it meant a promise to collect from Mr. Porter, and it was evident the letter was intended as a guarantee to do so.

   The COURT. - But how were they to collect it?  They were Mr. Porter's agents, Mr. Hannen could not mean to say it was for them to have sued Mr. Porter.  It was incumbent on the Plaintiffs to prove the breach.  It was for them to show that Glover & Co. could have collected the money, but did not.

   Mr. HANNEN did not think it was incumbent on him to show this.  It was not a case of physical impossibility, which a man could not be compelled to perform; such as journeying from London to Rome in two hours.  A contract did not become void because its execution was difficult or improbable.  Messrs. Glover & Co. might have known that they had means of pressing Mr. Porter so that they could obtain payment; and, knowing that, were willing to undertake to do it.

   The way the petition was made up had been considerably argued on in the course of the case.  If his clients had claimed payment of a certain sum of money ---

   Mr. RENNIE never had the least notion that the petition claimed re-delivery of the goods, he had not been able to raise the question.

   Mr. HANNEN said suing a man because he hadn't done a thing, was the same as asking him to do it.  To go on --- Messrs. Glover & Co. had agreed in the second place, "to hold as security for the said balance the said rifles, &c."

   The COURT. - If Messrs. Glover & Co. had re-delivered the rifles, might not Mr. Porter have turned round and said, why did you part with them?  You should have been content to hold.

   Mr. HANNEN thought it was unreasonable to say that Messrs. Glover & Co. having once got the arms into their hands, were entitled to hold them for ever, if Mr. Porter did not take delivery.  But the Court had ruled he could not take evidence as to the meaning of the mercantile term "hold as security?"

   The COURT considered "to hold as security," meant, to hold as security; the meaning was plain.  The jury would interpret the phrase themselves, if it needed interpretation.

   Mr. HANNEN understood, then, that the case stood thus.  He (Mr. H.) said there was an absolute undertaking to collect, and that there was a breach; but the Court laid down that it was incumbent on him to show that G. & Co., might have collected but did not.

   The COURT. - That they had not shown all reasonable diligence in collecting.

   Mr. HANNEN further understood that, while he urged that the phrase "to hold as security" implied as duty to re-deliver on Mr. Porter's failure to pay, the Court said it simply meant that G. & Co., were to hold the arms as security until Mr. Porter did pay.

   The COURT was certainly not inclined to agree that "hold as security" meant that Messrs. G. & Co. were to hand the arms back at Messrs. L. C. & Co.'s request, and did hold that it lay with the Court to interpret the phrase as necessary; but it seemed very clear.

   Mr. HANNEN's argument was that the document showed the expression to have a mercantile not a legal meaning.  However, as the Court differed, there was obviously nothing for his Lordship to do, but to nonsuit him.

   The COURT, then, might discharge the jury from further trouble.  What ought to be done was for some equitable arrangement to be come to among the parties; but all those concerned, Mr. Porter and all, must come in.  The matter might be easily settled, if all were willing to make a few sacrifices.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School