Court Of King's Bench, Tu...
MIJ. =L. R.., ;N Opened tte pleadinges. This was an action to recover the sum of 911. 17s. f6d.4 being the balance of an account fox goods sold mid delivered, a'.d money expended bv the plaintiff for the use of the defendant. The defendantrpleaded that he wlas no' liable, and upon thatpoint issue was iJined. Alr. SCARLEI'TT detailed the case for the plaintiff. From the evi- dence which he caUed, it appoared that on the 24th of June, 1822, the plaintiff, who is a corn-factor in Slark-lane, sold to the defen- dant, who is a corn-dealer at Newark, 200 quaiters of eats at 25s. per quarter.. At the iimeef the purchase an order for the delivery of the oats, which weerelying ih the granary of a person hamted Lee, at Pickled Herring.stairs; was given to the dlefendant, who permitteci them to remain there till the latter end of October. In the course of tbat month the landlerd distrained all the corn in Lee's gcranary for arrears of rent. The-plaintiff. by direction of the defendant, ki- came surety in a replevin bond for -Lee, and incurred considlerable expense on his behalf, before he received ordert from the defendant to pay the costs on it, aml to desist from all further proceedines. Sandry payments were admitted to have been made by the defen- dant to the plaintiff, and also sandry resales of oats to have been madle by the plaintiff for the defendant, of which the former re- tained the proceeds. On the baiance of accounts it appeared from the plaintiff's documgnts, that 011. 17s. 6d. would be due to the plaintiff from the defendant Wietrow. On the part of the defence MIr. DlARRYATT contended on the strength of admissions obtained from the plaintift's wit- nesses in the course of cross-examination, and also of a witness whom he called bimself, that the defendant had allowed thic corn to remain in the granary, where it was at the time of his pir. chasing it, under the idea thait the gianary belonyed to the plaintiff. and notto Lce He likewise maiatained, that if lie should fail in establishing that point, the loss sustained bv the seizure of the corn niist fall upon the plaintiff, because he had 'wthhlield from the krow- ledge ot tl,e defendant two material circumstances respecting Lee, with which the defendant ought to have been made acquainted at the timie he was infonned (supposing hin to havc been informed) that the corn was in Lee's aranarv. The first was, that though Lee helti otit to the world that all comr deposited in his granaries was insurecl. the plaintiff'knew the contrarv to be the case, from havinig sut- fered a loss of 1,7001. or I,8bl0l., suasequently reduced to 5501., upon corn burned in one of Lice's granaries. onlv a fort- niglt before he sold these oats to the defendant. The se- cond was, that at the close of September, nearlv- a montli before the distress wvas put in the plaintiff, on measuring out a quai- tity of oats which he had in Lce's warehouse, found a deficiency of eight quarters in 400, which he supposed hinself to have thcre. He contended, that as the plaintiffhad notcormrnmnicated to the dlefecnd- ant his doubts of Lee's solvency in the fire.t instanlce, and of his honesty in the second, he must submit to bear the loss of thie corn which tne distress had swept away. . Ie likewise offered to prove that there was a custom among corn-mercbauts which rendered a factor liable to his principal for thesolvency of the granary-keeper, to whonm lie intrusted his principal's corn; but the n'con-existence of this cus- tom was distinctlyr made out by the witnesses whom the learned counsel called to establish the fact. Slr. SCkaJLETT in reply ShioCd, from the correspondence which had taken place between the nlaintiff and tlte defendant, that the defendant, on being informed of tlte distress placed on Lee's pre. mises, had nevcr intimated that it could do himl no harn, as his corn was in th-plpintiff's granhrv,and not in Lee's; but that lie had, on the contrary, given the plaintiff several directions to secure him against the los5 which he conceived that dlistress likely to do bim. H e likewise reminded the jury, that it had been proved that the plaintiff was completely convinced, within a clay of two after the rorn had been measured, that the deficiency discovered in the quan- tity had arisen from no misconduct on ti;pait of Lee; and he fur- ther argued, that the non-insurance of Lec's granary, which had been burned down only a fortnight before the corn was sold, was too notorious in the coin market to require any communication. rThe LORD CCIIEF .)USTICE, in suimming, up the case, told tile iury that the real question which they had to Jecide in this case was, which of the two parties to the snit was to bear the loss which hadi been sustained, in consequence of tite vorn having been clistrained for rent, whilst it IJy in Lee's granary waiting the defendant's di- rectioni for a resale. Ety tlhe genieral rule of law. when property was sold, it immediately vested in the buver; and after it had so vested, any loss wbich it sustained fell entirely tipon the buver. Now there was nothing in this cse wMhich madle it an eoception to tl:c nule; and therefore the plaintifFinust recover,unless there were sorie ;pecial circumstances which he ought to havc communicated.bit had not communicated to ite defendant, reardling the place or person with ; ehom the property was dleposited. The learned J.udge then allotled to the non-insuranec of Lec's warehouse, arid the deficienev -alleed tohavcbeen discovered in the quantity of corn theplaintiffl' hd depe. sited there. He left it to the jurv to say. whecther tliose circunstanecs )ught to lhave bcen cornmun3icated by the plaintiff to the defendant; antl whether, if' they had bert: so comanitiicatetd. theY thought thlmt they wo'tltl have irnduced the plaintift to remove his cern before it was seized by the distress. if tiey thought that thev oiught to c;ave been coirimunicated to thre defentlant hult Were not, then they would find their verdict in his favoulr; if. on the centrary. they eithtr thouglht the circumstances immaterial, or so notoriout as to require io conimunkiation, tilentliey would finl their verdict foi the plairtflE The jury retired for a quarter ol an hhour, ant then r1eturned nwith s verdict for the plaintiff-Damages 541. COURT OF KING'S BENC.H. Tnv.n&vR l.ue- 9 ,, , PAYN-E V. WINROW.