a partner, was, in fact, a selling, just as much as it would be in the case of a joint-stock company; and, 3rdly, that the arrangement come to with Mr. Henry Butterworth was in the nature of an accord and satisfaction to the plaintiff. Mr. Butterworth told the plaintiff that he would give back his copies, which formed so large a portion that the rest must be comparatively unimportant, if it would satisfy him, and make an end of the dispute between the parties; to which the plaintiff replied, that it would be very satisfactory, and that, according to his, Mr. Butterworth's, understanding, it was to put an end to all differences, and the plaintiff went away perfectly satisfied. On these grounds the learned counsel submitted that the plaintiff should be called. DENMAN, C. J.-I think I cannot nonsuit upon the first ground, as the facts relied on do not appear to have been communicated to the defendant; and, with respect to the second, enough does not appear of the terms on which the partnership commenced, to justify me in deciding that there was a parting with the books by the plaintiff within the meaning of the agreement: with respect to the third ground, it does seem an answer to the action. On the part of the defendant it was proposed that a juror should be withdrawn. This was objected to on the part of the plaintiff, and the case went to the jury. DENMAN, C. J., in summing up, after stating the pleadings and reading the letters, observed-It seems that the defendant left the plaintiff at liberty to sell as he pleased, but bound himself down not to sell under the prices stated, and this is an answer to some part of the argument urged in favour of the defendant. You will have to say, first, whether the agreement was made; of this, there does not seem any doubt; and then, whether it was broken; and if it was, you must spell out the damage as well as you can from the evidence. It is a very difficult thing to ascertain 1833. BENNING v. Dove. 1833. BENNING ย. Dove. the amount of damage. I think, in considering that subject, you may reasonably consider, as damage must arise from the effect produced upon the price of the work in the market, by the defendant's having sold copies at a sum lower than the stipulated price, whether the plaintiff's own selling at 45s. and 46s. might not have contributed to that depreciation. If you are satisfied that the agreement was broken, then you will have to say to what extent the plaintiff has been injured; unless you should be of opinion that what took place between Mr. Butterworth and the plaintiff was a complete conciliation up to that time, and was not confined to Mr. Butterworth's individual transaction only. There is no distinct evidence that the plaintiff knew that the defendant had sold to others; but Mr. Butterworth says, that he understood it to be a complete settlement of the difference which existed between the parties, and that he would not have returned the books at a loss to himself if he had not wished to make an end of the disputes between them. His Lordship left it to the jury to say, in the first instance, whether they thought Mr. Butterworth made an end to the dispute between the parties altogether, telling them, that, if they did, they should find their verdict for the defendant; but, that, if they did not, he would read over to them the evidence upon the subject of the damage (a). The jury said, they thought that the arrangement made by Mr. Butterworth satisfied the whole of the difference, as he said that the plaintiff went away perfectly satisfied. Grainger, for the plaintiff. Verdict for the defendant. Sir J. Scarlett and Kelly, for the defendant. [Attornies-Owen & Dixon, and Molloy.] (a) It was at first thought that damages must be given for the sale of three copies after the settle ment of the difference, but it turned out that they were sold after the action was commenced. 1832. MILLER v. HAMILTON. ASSUMPSIT for goods sold and delivered. The plaintiff was a baker, and sought to recover from the defendant a sum of 67. 15s. for bread delivered at his house from February 8th to March 22nd, and from April 3rd to May 24th, 1830. It appeared that weekly bills were made out and delivered every week to the defendant's housekeeper, and that the two weeks from the 22nd of March to the 3rd of April had been paid, as had also the whole of the bills from the 24th of May to the latter end of August, at which time the housekeeper left the defendant's service. A few days after she left, payment of the omitted weeks was, for the first time, demanded of the defendant by the plaintiff. It was sworn, on the part of the plaintiff, that the paid bills were all separately receipted, though sometimes three or four weeks were paid at one time. Campbell, S. G., for the defendant.-The action cannot be maintained. The plaintiff has trusted the housekeeper, and to her he must look. It was a weekly dealing; and as soon as the plaintiff found that some of the bills were not paid, he should have made application to the defendant, and complained of the non-payment, but, instead of doing this, he continued to give receipts weekly from time to time afterwards. If the plaintiff had gone after the housekeeper's omission to pay the weekly bills and told the plaintiff of it, this would not have happened; and his not doing so, but continuing to give receipts afterwards, is tantamount to an admission of his having trusted her. It was proved, on the part of the defendant, that the plaintiff had said to his wife, after the housekeeper left— "The old woman has done us at last;"-and also, that he told the person who succeeded as housekeeper, that he 1833. MILLER บ. HAMILTON. did not think he could recover, as he had acted wrong in receipting the bills and leaving the back debt. Goulburn, Serjt., for the plaintiff, in reply, (inter alia), said-There is no proof that the defendant gave any money to the housekeeper for the purpose of paying these bills, and, without such proof, there is no defence to the action. DENMAN, C. J., in summing up, said—The plaintiff claims of the defendant the amount of a baker's bill. The defendant says that he has paid it. Now it seems to me, that the last observation made by the plaintiff's counsel decides the case; for it does not appear that the defendant ever gave any money to his housekeeper to make these payments with. The plaintiff thought that she had received the money when he said "the old woman has done us;" and perhaps we may think so too; but, as it is not proved, we cannot act upon it. It seems to me, therefore, that we need not go into the question of negligence, for there has been some negligence on both sides. Under these circumstances, it appears to me, that the verdict should be for the plaintiff. Verdict for the plaintiff-Damages 67. 15s. Goulburn, Serjt., and R. Gurney, for the plaintiff. Campbell, S. G., for the defendant. [Attornies-Ashley, and Teesdale & Co.] 1833. PROMOTIONS. IN the Vacation after Easter Term, J. T. Coleridge, Esq., Barrister at Law, was called to the degree of Serjeant at Law. In the same Vacation, John Gurney, Esq., one of his Majesty's counsel learned in the law, was appointed one of the Barons of the Exchequer, vice Sir W. Garrow, Knight, resigned. In Trinity Term, Mr. Serjeant Taddy was appointed her Majesty's Attorney-General, vice J. Williams, Esq.: and Mr. Serjeant Merewether was appointed her Majesty's Solicitor-General, vice C. C. Pepys, Esq. In the Vacation after Trinity Term, Mr. Serjeant Spankie was appointed one of his Majesty's Serjeants learned in the law. In the same Vacation, Mr. Serjeant Merewether received a patent of precedence; and J. Beames, Esq., H. H. Joy, Esq., C. T. Swanston, Esq., and R. M. Rolfe, Esq., were appointed his Majesty's counsel learned in the law. In Michaelmas Term, Sir Thomas Denman, Knight, was appointed Lord Chief Justice of England, vice Lord Tenterden, deceased; and Sir William Horne, Knight, was appointed his Majesty's Attorney-General, and John Campbell, Esq., his Majesty's Solicitor-General. In Hilary Term, Thomas Noon Talfourd, Esq., was called to the degree of Serjeant at Law. |