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Colonial Cases

Savage v. Tyree, 1875

[breach of contract]

Savage v. Tyree

United States Consular Court, Shanghai
Source: The North China Herald, 24 April 1875


  Judgment was delivered yesterday at the U.S. Consulate-General, in a cause Henry Savage v. A. F. Tyree, which involves a rather curious point.  The plaintiff sued to recover on a time bargain for lead.  Defendant alleges that never made the contract.  There were two brokers concerned - Mr. Gore-Booth who sold to Mr. Savage, and Mr. Limby who says he sold through Mr. Gore-Booth on behalf of the Defendant; both the brokers' contract notes were handed in.  But they differ in date and in price, and Mr. Limby's note mentions - not a specific quantity of lead sold to plaintiff, but a lump quantity of 200 tons sold to "Sundry Foreign Merchants."  The Court decided against plaintiff, holding that one broker cannot employ another to do busyness entrusted to him, without authority from his principal, and that Mr. Gore-Booth cannot therefore bind the defendant.

The North China Herald, 1 May 1875
Shanghai, April 23rd
Before GEORGE F. SEWARD, Esq., United States Consul-General.
  The Petition in this matter sets forth that the plaintiff is a British subject resident at Shanghai, and the defendant a citizen of the united States, and at the moment within the jurisdiction of the Court; and that the defendant has failed to deliver 25 tons of L.B. Lead, bought from the defendant's agent, H.J. Limby through plaintiff's broker, R. H. Gore-Booth.
  Attached to the petition is the broker's note, which reads as follows:-
Shanghai, 6th Nov. 1874
H. SAVAGE, Esq.,
  SIR, - I have this day bought from A.P. Tyree Esq. (of Ningpo) L.B. Tons 25, Twenty-five tons L.B. Lead, at Tls. 5.92 ½ (five ninety-two and a half taels) delivery two months'; payment cash.
Your obedient servant, R. H. Gore-Booth.
 Upon this contract the plaintiff claims for One hundred and sixty-five Taels, being the enhanced value of the Lead at the day when the contract fell due.
  The defendant alleges that he is not acquainted with the plaintiff nor with Mr. Gore-Booth, that he has not transacted any business with or through these persons, that he has not made a contract with the plaintiff as alleged, or in any other way for the delivery of twenty-five tons of Lead, and that he has not employed Mr. Limby in the capacity stated by the plaintiff, or authorized him to sell any goods for him through any other person.
  Thad plaintiff offers in evidence the statements of Mr. Limby and Mr. Gore-Booth, and, among other documents, hands in an admitted copy of the broker's note rendered to the defendant, which is as follows:-
Shanghai, 5th Nov ember, 1874
P. TYREE, Esq. Ningpo.
DEAR SIR, - We have this day sold on your account to sundry Foreign merchants 200 tons (Two Hundred Tons) pigs L.B. Lead at Tls. 5.85 per picul - delivery two months.  Payment as customary.
Yours faithfully, H. LIMBY & Co.
Confirmed, A. P. TYREE.
  In his evidence, Mr. Limby states that the 25 tons of Lead bought by the plaintiff through Mr. Gore-Booth, was a part of the lot sold, as shown in the above note.
  Without entering father upon the evidence adduced, I notice the following points:-
1st.  That the plaintiff claims to have bought through Mr. Gore-Booth as broker.
2nd. That the defendant is said to have bought through Messrs. Limb y & Co. as Brokers.
The capacity in which Mr. Gore-Booth acted is asserted by the plaintiff himself.  The capacity in which Messrs. Limby & Co. acted may be inferred from the contract note, and is perfectly established by the tenor of the correspondence which passed brighten the defendant and them.
  I believe it to be a principle of law that one Broker cannot employ another to do business entrusted to him without authority from his principal.  There is no evidence that such authority was given in this case.  The act of Mr. Gore-Booth, therefore, cannot bind the defendant.
  That his act should not bind the defendant will be more evident when it is noticed that the contract notes do not agree in date, and more particularly in the prices stated.  The difference is prices somewhat exceeds the amount which the brokerage at the usual rate of 1 per  cent would have come to, and indicates that the brokers considered themselves entitled to two commissions, or to so much of two commissions as the transaction would allow.  This way of doing business might be regular enough if Messrs. Limby & Co., were ac ting as the defendant's agents or factors, but all the circumstances should have indicated to them that they were not acting in that capacity.  And, looking to the different prices stated, it may well be doubted whether the defendant would have been bound to fulfil the sale had Messrs. Limby & Co. themselves concluded the assumed bargain.  I take it that a Broker's bought and sold notes are valuable only as evidence of a contract, and that if they differ, belying the amount of the commission (which should be stated in them), they become valueless.
  I think also that a Broker's note should mention the principals, for otherwise it may be difficult to establish between them any privity of contract.  I do not know that this is essential, but it would certainly be better.
  For the reason stated, I therefore dismiss the petition.  The plaintiff will pay the costs of the court, which amount to $44.52.  These do not include the defendant's costs in coming from Ningpo, as I have no evidence upon this head.

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