Stumore v. Shaw

Miller,, J., delivered the opinion of the Court. The plaintiff in this'case was a ship-broker in Montreal, and the defendant a ship-owner in London. The suit is to recover for services rendered and advances made by the plaintiff in the disbursement and on account of two Steamships the “ Lilburn Tower ” and “ Maulkins Tower ” consigned to the plaintiff by the defendant in June, 1884. The amount claimed, including commissions, was £646 9s. •5d.

For this sum the plaintiff drew a draft on the defendant which the latter refused to accept or pay. The declaration contains the common counts only. The plea was .non-assumpsit, and the verdict was in favor of the plaintiff for the full amount of his claim. The steamers were sent to Montreal, the one laden with iron rails and the other in ballast, with the expectation of •receiving return cargoes, chiefly of cattle and grain; and the defence setup at the trial, stated in general terms, was misconduct, neglect of duty, and violation of instructions •on the part of the plaintiff, in regard to procuring this freight in Montreal.

There were several exceptions to the rulings of the Court as to the admissibility of evidence, and there was one as to instructions to the jury. The latter will be noticed first. 1st. There is no evidence legally sufficient to show that the defendant was induced to send either of his steamships to Montreal by any untrue representations made to him by the plaintiff. Hence there is no error in granting the plaintiff’s- first prayer, and no objection was made to it by ■appellant’s counsel in argument.

As to the defendant’s three prayers which were rejected, it appears to us plain that discussion of the legal proposi ¹⁷ tions they contain, is needless in view of the instructions given by the Court, and the verdict of the jury under them. The Court of its own motion instructed the jury “ that if they find that the plaintiff in the transaction of the defendant’s business violated his instructions or failed to give him timely information of facts important for him to know, or to exercise that degree of fidelity, skill and diligence which similar agents ordinarily employ, or might reasonably be expected to employ under similar circumstances, and that the defendant suffered loss in consequence thereof, then the defendant .is entitled to have recouped from the plaintiff’s claim such damages, if any, as the defendant may have actually sustained thereby.” This placed the case before the jury in a light more favorable to the defendant perhaps than the proof warranted, and the plaintiff excepted to it on that ground. The Court however adhered to the instruction, and the plaintiff thereupon offered his third prayer, to the effect, that if the jury’think they ought to make any deduction by way of damages from the plaintiff’s claims it should only be for such as the defendant may have actually sustained by violation of instructions or neglect of duty as stated in the Court’s instruction, if they believe there was any such violation or neglect, and such amount if any, as they may think ought to be deducted from the commissions charged. The Court granted this prayer also as an addition to or in explanation of its own instruction, and being thus instructed the jury by. their verdict made no abatement whatever from the plaintiff’s claim but gave him the whole of it with interest.

From this the inevitable conclusion is, that they found from the evidence that there had been in fact no neglect or violation of instructions by the plaintiff, and that he had transacted the defendant’s business with reasonable skill, fidelity and diligence. This verdict exonerates the plaintiff from all blame, and that being the state of the case there is no occasion to consider the question whether if there had been ¹⁸ any violation of instructions, or gross negligence or misconduct on the part of the agent, the jury would have been bound to reject his commissions in toto, and be at liberty also to recoup the damages suffered by reason of such’ negligence and misconduct, as stated in the defendant’s, first and second prayers, or whether the proposition contained in his third prayer is correct. In view of this, finding by the jury these legal propositions become mere abstractions. The appellant suffered no injury by their rejection even if.they may have been (a point on which we express no opinion) abstractly right. 2nd.

The “Lilburn Tower” sailed from Newport, England, for Montreal, on the 11th of June, loaded with a cargo of iron-rails. The usual time for her voyage was from twelve to fourteen days. The plaintiff being advised of the probable date of her departure made contracts in Montreal with shippers of grain and cattle for a return cargo, “for June loading,” by which is meant that the shippers could cancel the contracts if the vessel was not ready to receive their shipments during the month of June. The steamer was delayed on her voyage and did not arrive until the 28th of June, and not being ready to receive her return cargo during that month the cattle men refused to ship at. the contract rates, or to ship at all except at a greatly reduced rate of freight.

The plaintiff accepted the reduced rate, but the undisputed testimony is, that he