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the loss must have happened had there been no deviation. Daris v. Garrett, 6 Bing. 716 ; Scaramanga v. Stamp, 4 C. P. D. 316; deviation is justifiable to save life, but not merely to save property. S. C. Id., and 5 C. P. D. 295, C. A. See further as to deviation, ante, p. 388. A well-founded fear of capture may justify a master in not leaving a port in performance of his contract ; Pole v. Cetcovich, 9 C. B., N. S. 430 ; 30 L. J., C. P. 102 ; even though the ship alone would be in danger of capture. The Teutonia, L. R., 4 P. C. 171 ; The San Roman, L. R., 5 P. C. 301. A statement in a charterparty that the ship is “expected to arrive at a port A. by a given day, is a warranty, that she is then, in such a position, that she may reasonably be expected to arrive there by that day. Corkling v. Massey, L. R., 8 Č. P. 395.
Upon arrival at the port, the master is bound to deliver to the consignee or order of the shipper, on production of the bill of lading, and payment of freight (and other lawful charges) for which the master has a lien on the goods, unless it appears on the bill of lading that freight has been paid, in which case it is an estoppel as against the master or owner. 3 Kent, Com. 214; Howard v. Tucker, 1 B. & Ad. 712. Where there is a charter-party the provisions of which are binding only as between the shipowner and the charterer, and there is a bill of lading given by the master which gets into the hands of a bona fide assignee for value, he is entitled to have the goods delivered to him upon his fulfilling the terms mentioned in such bill of lading, and is not ordinarily bound to refer to the charter-party. Chappel v. Comfort, 10 C. B., V. S. 802 ; 31 L. J., C. P. 58, per Willes, J. A bill of lading in the form “ on being paid for freight the sum of £- (according to charter-party)," with the memorandum “ there are 8 working days for unloading in London,” imples no contract, on the part of the indorsee, for value, of the bill, to pay demurrage. S. C. So, where the form was “ he or they paying freight and all other conditions or demurrage (if any should be incurred), for the said goods, as per the aforesaid charter-party,” the consignee named in the bill of lading was held liable only for demurrage, at the port of loading, during the 10 days at which the ship might under the charter be kept on demurrage at 81. a day, and not for damages for further delay in loading, nor for dead freight. Gray v. Carr, L. R., 6 Q. B. 522. See also The Norway, B. & L. 226 ; Russell v. Niemann, 17 C. B., N. S. 163; 34 L. J., C. P. 10 ; Fry v. Chartered Mercantile Bank of India, dc., L. R., 1 C. P. 689, and Gullischen v. Stewart, infra.
Where, however, the bill of lading states the cargo to have been received as against freight, and other conditions as per charter-party, the assignee of the bill of lading, who accepts the cargo thereunder, is liable for the demurrage provided for in the charter-party. Porteus v. Watney, 3 Q. B. D. 534, C. A.; Wegener v. Smith, 15 C. B. 729 ; 24 L, J., C. P. 25. See also Gullischen v. Stewart, 11 Q. B. D. 186 ; affirm. in C. A., W. N. 1884, p. 26. So, where the cargo is deliverable under a similar bill of lading, the shipowner may be bound by the terms of the charter-party, as against an indorsee of the bill. The Felic, L. R., 2 Adm. 273. A bill of lading, signed only by the master, is no estoppel as between the shipowner and the person who has advanced money, on the security of the bill of lading, as to the receipt and shipment of the goods specified in it; Grant v. Norway, 10 C. B. 665; 20 L. J., C. P. 93; and, the shipowner may show that the goods were not shipped; S. C. ; see also McLean v. Fleming, and Brown v. Powell, dc. Coal Co., post, p. 429; or that the master had given other bills previously for the same goods. Hubbersty v. Ward, 8 Exch. 330; 22 L. J., Ex. 113.
By the 18 & 19 Vict. c. 111, s. 3,“ every bill of lading, in the hands of a consignee or indorsee for valuable consideration, representing goods to have been shipped on board a vessel, shall be conclusive evidence of such shipment,
Merchant against Shipowner, dc.--Implied Contracts. 429 as against the master or other person signing the same, notwithstanding that such goods or some part thereof may not have been so shipped, unless such holder of the bill of lading shall have had actual notice, at the time of receiving the same, that the goods had not been in fact laden on board ; provided, that the master or other person so signing, may exonerate himself in respect of such misrepresentation, by showing that it was caused without any default on his part, and wholly by the fraud of the shipper, or of the holder, or some person under whom the holder claims.” This section only makes the bill of lading conclusive against the person by whom ; Jessel v. Bath, L. R., 2 Ex. 267; or, by whose authority ; see Brown v. Powell, dc. Coal Co., L. R., 10 C. P. 562 ; it was signed. In other cases evidence is admissible that the goods were not shipped. S. C. ; McLean v. Fleming, L. R., 2 H. L. Sc. 128 ; see also Meyer v. Dresser, 16 C. B., N. S., 646 ; 33 L. J., C. P. 289, ante, p. 425. In a case in which, by mistake of the mate, a larger number of bales were represented as having been shipped than really were, and there was some evidence that this was caused by the fraud of the person putting the goods on board, who was the shipper or his vendor, the court held that there was evidence that the misrepresentation was caused “wholly by the fraud of the shipper, &c.," within this section. Valieri v. Boylund, L. R., 1 C. P. 382.
When a ship is chartered, and is put up by the master as a general ship, a merchant who ships a cargo on board under bills of lading signed by the master, and in ignorance of the charter-party, is entitled to look to the owners, whose servant the master is, for the safe delivery of the cargo. Sandeman v. Scurr, L. R., 2 Q. B. 86; The Figlia Maggiore, L. R., 2 Adm. 106; Hayn v. Culliford, 3 C. P. D. 410 ; 4 C. P. D. 182, C. A.
If the master has hypothecated or sold part of the cargo, to raise money for necessary repairs to the ship, he is the agent of the shipowner only, and the shipper is entitled to sue the shipowner on the implied indemnity ; Benson v. Duncan, 3 Exch. 644, Ex. Ch. ; and, he may recover either the actual sum for which the goods were sold ; Campbell v. Thompson, 1 Stark. 490 ; or, the price which they would have fetched at the place of delivery ; Hallett v. Wigram, 9 C. B. 580 ; 19 L. J., C. P. 281; but, not unless the ship eventually arrived there. Atkinson v. Stephens, 7 Exch. 567 ; 21 L. J., Ex. 329. As to the duty of the master with respect to the cargo, where it has been damaged during the voyage, see Notara v. Henderson, L. R., 5 Q. B. 346 ; L. R., 7 Q. B. 225. He must not sell the cargo, unless in a case of necessity, and without an opportunity of consulting the owners thereof. Australasian Steam Navigation Co. v. Morse, L. R., 4 P. C. 222; Atlantic Mutual Insur. Co. v. Huth, 16 Ch. D. 474, C. A.
What is a sufficient delivery of the goods, depends either upon the contract or upon the custom and usage. If there be no particular custom, the master must give the consignee reasonable time and opportunity to receive them. Bourne v. Gatliffe, 7 M. & Gr. 850. As to evidence of custom in such cases, see ante, p. 21, et seq., and p. 420. Mere delivery at a wharf, and there leaving them, without notifying the arrival to the consignee, is not sufficient; and the responsibility continues until actual delivery to a person appointed to receive, or something equivalent to it; or, at least, until proper notice to the consignee has been given, and the goods separated and designated for his use. 3 Kent, Com. 215 ; see also Petrocochino v. Bott, L. R., 9 C. P. 355. Where the goods are, by the charter-party, to be unloaded at S.,
at the usual place of discharge, and according to the custom of the port," and there are more than one usual place of discharge, the master is bound to obey the orders of the charterer, as to which of the places the ship is to be taken to unload, although the master has previously taken her to
another of those places, and thereby incurred expense. The Felir, L. R., 2 Adm. 273. If the goods are sent for by the consignee by lighter, the captain is responsible for the safety of the goods till the lighter is fully laden ; such at least is the custom in the port of London. Catley v. Wintringham, Peake, 150, and Id., n.
The clause “ shipped in good order and condition” affords evidence that externally, so far as meets the eye, the goods were so shipped. The Peter der Grosse, 1 P. D. 414.
Delivery of goods to the servants of the shipowner alongside the vessel is equivalent to delivery on board. British Columbia, dc. Co. v. Nettleship, L. R., 3 C. P. 499. As to lien for freight, ride ante, pp. 424, 425. As to damages recoverable against the shipowner, vide Action against carriersDamages, post, p. 577, et seq.
Where goods carried have sustained a general average loss, the shipowner is bound to take the necessary steps for procuring an adjustment of the general average and securing its payment. Crooks v. Allan, 5 Q. B. D. 38.
ACTION ON GUARANTEE. Warranties and guarantees have acquired distinct technical meanings, and must be separately treated of. The former relate to things; the latter to persons. A guarantee is a contract to answer for the payment of a debt or performance of a duty by another person.
Proof of the Contract. Statute of Frauds, &c.] By the Statute of Frauds (29 Car. 2, c. 3), s. 4, no action shall be brought " whereby to charge the defendant upon any special promise to answer for the debt, default, or miscarriages of another person," “ unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith or some other person thereunto by him lawfully authorised.” It had long been held that, as an“ agreement” includes the consideration for the promise, the consideration must also appear, at least by necessary inference, in the writing.
Wain v. Warlters, 5 East, 10. But, by the Mercantile Law Amendment Act, 1856 (19 & 20 Vict. c. 97), s. 3, no such promise “shall be deemed invalid to support an action, suit, or other proceeding to charge the person by whom such promise shall have been made, by reason only that the consideration for such promise does not appear in writing, or by necessary inference from a written document."
Where an order for goods is given by A., for the use of B., and credit given to A., this is not within the statute ; for it is the debt of A. and not of B.; Birkmyr v. Darnell, 1 Salk. 27 ; 1 Smith's L. C. ; and, where there is no writing, whether A. or B. was made the debtor by the agreement of the parties, is a question for the jury. Keate v. Temple, 1 B. & P. 158 ; Moundstephen v. Lakeman, L. R., 7 Q. B. 196, Ex. Ch. ; L. R., 7 H. L. 17. If the person for whose use the goods are furnished is liable at all, or if his liability is made the foundation of a contract between the plaintiff and the defendant, and that liability fails, the defendant's promise is void if not in writing. S. C., L. R., 7 Q. B. 202, per Willes, J. But, until there is some person primarily liable the section does not apply. S. C., L. R., 7 H. L. 24, per Ld. Selborne. The question is, is it a promise to pay the debt of another,
Proof of the Contract.Statute of Frauds, s. 4.
for which the other was, and still remains liable, after the promise is made ? If it be, then the statute requires a writing, for it is then a collateral” and not an original promise. See notes to Forth v. Stanton, 1 Wms. Saund. 211 b. If the effect of the agreement is to extinguish or satisfy the debt of another-as if A. promises to pay the amount of B.'s debt to C., if C. will discharge B. from arrest under a ca. sa.—then, as B.'s debt is discharged, the debt becomes the debt of A. only, and is not within the statute. Goodman v. Chase, 1 B. & A. 297.
The promise must be made to the original creditor, to be within the statute. Eastwood v. Kenyon, 11 Ad. & E. 438 ; Reader v. Kingham, 13 C. B., N. S. 344; 32 L. J., Č. P. 108; Cripps v. Hartuoll, 4 B. & S., 414 ; 32 L. J., Q. B. 381, Ex. Ch. Thus, a mere promise of indemnity is not within it. Wildes v. Dudlow, L. R., 19 Eq. 198 ; following Thomas v. Cook, 8 B. & C. 728, and Reader v. Kingham, supra; Batson v. King, 4 H. & N. 739; 28 L. J., Ex. 327. As where at defendant's request, and for his accommodation, plaintiff drew a bill on A., which was accepted by A., and indorsed by defendant, defendant promising at the time to indemnify plaintiff'; and plaintiff was obliged to pay the bill; held, that he might sue defendant as for money paid, and that no written guarantee was necessary. S. C. In order that a promise should fall within the statute there must be some obligation, implied at least, from the person for whom the surety becomes answerable towards the promisee; S. CC. ; as the obligation of an arrested debtor towards his bail to pay the debt or surrender, in which case, a promise by a third person to hold the bail harmless is within the statute ; Green v. Cresswell, 10 Ad. & E. 453 ; this case, however, has been doubted; see Reuder v. Kingham, Wildes v. Dudlow, and Cripps v. Hartnoll, supra; and, it is settled that there is no debt or duty in a person bailed on a charge of misdemeanor towards his bail, and hence a similar promise is not in such case within the statute. S. C.
An agreement by a factor to sell goods on a del credere commission, is not within the section; for, though it may terminate in a liability to pay the debt of another, that is not the immediate object for which the factor receives the consideration. Couturier v. Hastie, 8 Exch. 40; 22 L. J., Ex. 97. A "forbearing to press for immediate payment” implies giving a “ reasonable time,” and this, though indefinite, is a sufficient consideration for a guarantee by a stranger to pay the debt ; semble, Oldershaw v. King, 2 H. & N. 517; 27 L. J., Ex. 120, Ex. Ch. ; questioning Semple v. Pink, 1 Exch. 74, contra ; see also Coles v. Pack, L. R., 5 C. P. 65. If the consideration for guaranteeing, by the defendant, the payment of past and future debts by A., to the plaintiffs, be the future supplying by them to A. of goods, and there be no agreement binding on them to supply the goods, and no goods are in fact supplied, the guarantee fails for want of consideration. Westhead v. Sproson, 6 H. & N. 728 ; 30 L. J., Ex. 265. A guarantee to a bank in consideration of their “lending to A. 10001., for seven days, from this date,” does not cover an account overdrawn by numerous cheques, together amounting to 10001., as the advance of 10001. is the consideration for the guarantee, and a condition precedent to its attaching. Burton v. Gray, L. R., 8 Ch. 932.
An I 0 Umay, since 19 & 20 Vict. c. 97, s. 3, (ante, p. 430), be shown to have been given as a guarantee, and will be good as such. See R. v. Chambers, L. R., 1 C. C. 341.
As to the form of memorandum and signature thereto, vide ante, p. 287, et seq.,
and also cases decided on Stat. of Frauds, s. 17, post, p. 475, et seq. Although the signature only of the party to be charged is sufficient, the names of both the contracting parties must appear upon the guarantee ; and therefore a guarantee on which the name of the person to whom it is given
does not appear is bad ; Williams v. Lake, 2 E. & E. 349 ; 29 L. J., Q. B. 1 ; Williams v. Byrnes, i Moo. P. C., N. S. 154 ; but, it was said that if the promise were accepted in writing by any one who would furnish goods under the guarantee, it would bind. S. C., Id. 198. A letter of defendant to plaintiff, referring to a mortgage not complete, and stating defendant's
willingness to take any responsibility respecting it,” is insufficient, there being nothing to explain the transaction referred to, as to amount, interest, or property meant, without oral evidence ; and, though since the 19 & 20 Vict. c. 97, s. 3, oral evidence may supply the consideration, it cannot also explain the promise. Holmes v. Mitchell, 7 C. B., N. S. 361 ; 28 L. J., C. P. 301 ; and see Glover v. Halkett, 2 H. & N. 487 ; 26 L. J., Ex. 416.
A contract of suretyship arises under the law merchant between the drawer and the indorsee, and between the indorser and subsequent holders of a bill of exchange, vide ante, pp. 342, 357; but, the indorser is under no such liability to prior parties to the bill; and to constitute such liability a written memorandum is required. Steele v. McKinlay, 5 Ap. Ca. 754, D. P.; distinguished in Wilkinson v. Unwin, 7 Q. B. D. 636, C. A.
On the admissibility of oral evidence to show that the consideration for a guarantee, ambiguously expressed, is not a past consideration, see ante,
Continuing guarantee. Revocation.] An important point often arises, whether the guarantee is a continuing guarantee—that is, whether the guarantee is confined to one transaction, and is at an end when credit has once been given to the amount guaranteed, or whether it continues in respect of credit given, or debts contracted, from time to time. The answer depends on the language of the instrument, coupled with evidence of the surrounding circumstances, in order to show what was the intention of the parties. Heffield v. Meadows, L. R., 4 C. P. 595; Laurie v. Scholefield, Id. 622; Coles v. Pack, L. R., 5 C. P. 65; and ante, p. 19. Hence it follows that the decision in one case is no certain guide to the construction of the contract in another ; but, the tendency of the courts is now to construe guarantees as continuing until revoked.
The following are examples of continuing guarantees : “In consideration of the credit given by the C. Co. to my son for coal, supplied by them to him, I hereby hold myself responsible as a guarantee to them for the sum of 1001., and in default of his payment of any accounts due, I bind myself, by this note, to pay to the C. Co. whatever may be owing to an amount not exceeding the sum of 1001.,” the son being, at the time the guarantee was given, indebted to the company for coals delivered on credit. Wood v. Priestner, L. R., 2 Ex. 66, 282, Ex. Ch. So, where the defendant gave to the plaintiff, a cattle dealer, this guarantee :-“ 501. I, M., will be answerable for bol. that Y., butcher, may buy of H.”; and it appeared, from the circumstancesjunder which the guarantee was given, that the parties contemplated a continuing supply of stock to Y., in his trade of a butcher. Hetfield v. Meadows, supra. See also Laurie v. Scholefield, cited post, p. 434, • and Nottingham Hide, dc. Co. v. Bottrill, L. R., 8 C. P. 694.
A guarantee given to secure the dealings of a single member, A., of a partnership, does not in general cover transactions of the partnership; but it will be otherwise, where it appears, from the surrounding circumstances, that the guarantee was intended to include contracts entered into by A., on behalf of his firm. Leathley v. Spyer, L. R.,
5 C. P. 595 ; see also Montefiore v. Lloyd, 15 C. B., N. S. 203 ; 33 L. J., C. P. 49.
The Mercantile Law Amendment Act, 1856 (19 & 20 Vict. c. 97), s. 4, enacts that no promise to answer for the debt, default, or miscarriage of another, made to a firm of two or more persons, or to one person trading