AN IMPORTANT JUDGMENT.

Manawatu Herald, Volume XXX, Issue 409, 11 July 1908, Page 3

AN IMPORTANT JUDGMENT.

At the local S.M. Court yesterday, Magistrate Thomson delivered judgment in the case M, E. Perreau (Barnard) v. Wellington and Wanganui Steam Packet Co., and Captain • Dewhurst, (R'eade) heard at the last sitting of the Court: —

In this case the defendants are sued for bread, etc., supplied to their ship, the s.s. Putiki, during November and December, 1906, and January and September, 1907, the toial amount being £2 6s id. At the hearing the plaintiff admitted that the goods supplied in January and September, 1907, to the value of 11s qd, had been paid for, but he claimed that the balance of £1 14s gd, was due to him from the defendant Company. He abandoned the proceedings against Captain Dewhurst, The supply of goods in November and December, 1906, to the value of £1 14s gd, to one Miller, the cook of the s.s. Putiki, is sworn to by the plaintiff and is not disputed by defendant Company. They contend, however, that Miller was not their agent in the matter, but was acting on his own account entirely. The evidence shows that Miller was provedore of the ship as well as cook during the period for which the goods were supplied. He received a definite sum every month for that service, and part of his contract was to supply all provisions required on the ship. Clearly, therefore, he had no actual authority to bind the defendant Company, and prima facie, he would be deemed to be contracting for himself. The plaintiff however contends that under the circumstances of this case the defendant Coy must be taken to have held out their servant the Cook as their agent to buy provisions for the ship and that if he, the plaintiff, had no notice of any special arrangement between the defendant Co and their servant he was not affected by it. The circumstances so relied on are 1. That the man who ordered the goods was cook on the vessel and that it was usual for the cook or the steward on all such vessels to order similar goods. 2. That the goods were delivered to the ship and used by, the defendant Co’s servants in the ordinary course of their employment. 3. That similar goods had been bought previously and paid for after the accounts were sent in to the ship. 4. That accounts for the amount now sued for had been sent in addressed to the S.S. Putiki and had not been returned or repudiated. The cases cited in support of the plaintiff's contention are Precious v Abel 1 Esp. 350 (a groom’s case) Rimmell v Sampayo 1 C and P 255 (a coachman’s case). In the first place it seems to me the evidence is altogether insufficient to rebut the presumption that Miller bought the goods on his own account. The plaintiff cannot remember whether Miller came to him or he went to the ship for the order. He however says Miller did not say who to debit, that the matter was never mentioned. His evidence as to previous transactions is also very vague. All he says is the ship had been getting bread for some months before — cannot say who paid —not settled every mouth —sometimes went for three mouths. All this might be quite true, and yet Miller may have been the principal throughout. Then in January, 1907, after Miller had left the ship, goods are obtained for the ship and paid for at once—a cash transaction. No more goods are obtained until September, 1907, when again cash is paid. On neither occasion is anything said about the former account still due. The evidence also shows that it is not at all uncommon for the cook to be providore on steamers of this class. On the whole, therefore, it seems to me 1 must hold that credit was given to the cook and not to the defendant company. Even, however, if credit were given to the company, the plaintiff treating Miller as an agent only, the defendant company can only be liable if they have held out Miller as their agent to bind them in matters of this sort, and in my opinion they have not done so. The cases relied on, viz., Precious v. Abel and Rimmell v. Sampayo, cannot now, since Wright v. Glyn (1902 71 EJ. 16 B. 497), be relied on as general authorities. —In this latter case it was held that the relation of master and coachman does not of itself invest the coachman with ostensible authority to pledge his master’s credit for forage. It was a decision of the Court of Appeal reversing Grantham J., who had followed the cases of Precious v. Abel and Rimmell v. Smapayo. The facts were that the coachman had undertaken to supply forage and shoeing at a fixed sum per horse. He ordered forage in his master’s name, and it was delivered and consumed by his master’s horses. The special arrangement between the master and servant was not communicated to the tradesman. In his. judgment Collins, M. R.,

says:—“lt certainly canmt be said, as a matter of law, that a coachman or groom has ostensible authority to pledge his master’s credit for forage for his horses. The mere relation of master and coachman does not of itself, as a matter of law, involve such authority. If that be so, it becomes a pure question of fact. Was there evidence of a holding out" by the defendant of Dimont (the coachman) of having his authority to pledge his credit ? It seems to me there was none. The defendant is never introduced into the discussion at all by any act done by him except that of taking Dimont into his service. Bales (the tradesman) acted on the representations made to him by Dimont, and on nothing else. He took the risk of these statements being true or false, and though he learnt that Dimont was the defendant’s coachman, and was aware that arrangements such as that here proved, some times existed between coachmen and their masters, he took no trouble to ascertain from the defendant whether any such arrangement existed between him and Dimont. Unless therefore the fact that Dimont stated with truth that he was the defendant’s coachman amounts to a holding out by the defendant ot Dimont as having authority to pledge the defendant’s credit for forage, there is literally no evidence to fix the defendant in this case.” And again further on the M.R. says : “ The learned Judge seems to have considered himself bound by the two nisi perius decisions which were cited before in Carrington v. Payne and Espuiasse respectively ; but, as I have already pointed out, there can be no dispute here as to the law, and these cases must be taken to have been decided on special facts ; and it is enough to say that in the present case actual authority is negatived, and that there is no evidence whatever either of ostensible authority acted upon by the plaintiff, or of ratification by the defendant.” Mathew, EJ. said : —“ I am of the same opinion. The law is perfectly clear. The plaintiff must show an authority in point of fact of the servant to pledge his master’s credit, or give reasonable evidence of an ostensible authority to do so. The plaintiff here was compelled to admit that there is an established course of business whereby some coachmen are made independent contractors. The coachman here was placed by his employer in a position of considerable temptation, but the law is in favour of the employer, I hope this decision will be a warning to tradesmen to ascertain whether the coachman is in fact acting for his master.” Judgment for defendant with costs £2 gs.