1848.

SYERS

v.

JONAS.

took place a few days ago. It was an action for tobacco sold and delivered, and goods bargained and sold, to which there was a plea of the general issue. It appeared on the trial, before my brother Wightman, that the contract for the purchase of the tobacco, which was in bond in Liverpool, was made through the medium of a broker at Liverpool, who, having authority from both parties, received and transmitted samples to the defendant; and, having made the contract, gave the usual bought note to the defendant, and sale note to the plaintiff. Both notes agreed. The contract was [His Lordship read the bought note]. The tobacco was delivered to the carrier at Liverpool for the defendant, and carried to London and placed in bond. Mr. Watson, for the defendant, made two points:-First, that the broker was appointed with limited authority to buy by sample only, and that the defendant was not bound by the contract.

It appears, however, that the learned judge offered to submit this part of the case to the jury upon the evidence, and the objection cannot now avail.

The other and more material point was this:-He offered evidence of the universal usage, that on a sale of tobacco, it was understood to be by sample, though not mentioned to be so in the contract; and the question is, whether such evidence was admissible? There is no doubt that in mercantile transactions, and others of ordinary occurrence, evidence of established usage is admissible, not merely to explain the terms used, but to annex customary incidents. In the case of Hutton v. Warren (a), the law on this subject was laid down fully, and the limitations pointed out. Such usage is admissible when it is not expressly or impliedly excluded by the tenor of the written instrument. The question then is, whether by implication that usage is excluded in this case? For the purposes of the argument, it

(a) 1 M. & W. 466.

must be assumed, that in the tobacco trade, whenever a sale of tobacco took place, and the bought note was silent on that subject, and when samples were delivered, it was the prevailing usage that the vendor was understood to agree that the bulk should correspond with them. This undoubtedly amounts to a parol warranty or agreement that the bulk should correspond with the sample. If the goods have not been delivered, or the property has not passed by the bargain, (a question depending upon the terms of the bargain for a specific chattel), this agreement authorises the purchaser to refuse to receive the article sold, or complete the bargain. If he does receive it, or the property does pass, he may sue on the agreement, or give it in evidence in mitigation of damages, according to the authority of Street v. Blay (a). Now, the offer in this case was to prove an usage annexing an additional term to the contract not inconsistent with it, unless, indeed, the term "customary allowances" excludes this additional term on the principle of " expressio unius est exclusio alterius." But it seems to us that this expression was used for a different purpose, alluding probably to some compensation for trifling damages, and that it has not the effect of excluding evidence of an implied agreement of correspondence with the sample.

(a) 2 B. & Adol. 456.

Rule absolute.

1848.

SYERS

v.

JONAS.

1848.

Feb. 5.

Under the

Companies

THE NEWRY AND ENNISKILLEN RAILWAY COMPANY v.

EDMUNDS.

DEBT under the Companies Clauses Consolidation Act,

Clauses Conso- 8 & 9 Vict. c. 16, s. 26, to recover the amount of two calls lidation Act (8

& 9 Vict. c. 16) on fifty shares in the Newry and Enniskillen Railway Coma resolution by pany.

directors to make "a call

need not specify either the time or place for pay

ment, but the directors must appoint a time

must be notified

to the shareholder by a notice allowing twenty-one days for payment.

A purchaser
of scrip cer-
tificates for

shares in a rail-
way company
is not liable for
calls until his

name is entered
on the sealed
register of
shares.

The defendant pleaded never indebted, and also pleas denying that the defendant was the holder of the shares, and that the calls were made.-Upon which issues were joined.

At the trial before Lord Denman, C. J., at the Surrey and place, which Spring Assizes, 1847, the following facts appeared:-The company was incorporated by the 8 & 9 Vict. c. cxxix, and the first general meeting was held on the 20th August, 1845. The defendant was not an original allottee of the shares in question, but had purchased in the market the scrip certificates, which in September, 1845, and before either of the calls were made, he sent to the company, and claimed to be entered in their books as the proprietor of such shares. His name was, thereupon, entered on a draft register of shares, and a receipt for the scrip sent to his agent. From this draft "the alphabetical numerical and Whether anori- sealed register of the company" was made up, and the ginal allottee corporate seal affixed to it on the 27th of February, 1846, at the second meeting of the directors, and after the making of the first of the calls for which this action was brought. On the 22nd of June, 1846, there was a meeting of the directors, at which it was resolved, that the second call be made, and "that one month's notice be given;" but the resolution contained no time or place for payment. On the 28th of June, the following notice was sent to the defendant, signed by the secretary of the company:

would in such case be liable, quære.

Sir,-The directors of the Newry and Enniskillen Rail

way Company having made a call of 21. 10s. per share, payable on or before the 8th of August next, you are

"The

1848.

NEWRY

AND ENNIS

WAY CO.

v.

EDMUNDS.

requested to pay the sum of £125, being the amount pay- KILLEN RAILable, in respect of such call, of the shares held by you in this company, to any of the undermentioned bankers," (then followed the names of several bankers). bankers have instructions to charge interest at the rate of £5 per cent. per annum on all sums which shall be tendered after the said 8th day of August next."

On the part of the defendant, it was objected, that the company could not recover the first call, since, at the time it was made, the defendant's name was not on the sealed register of shareholders; that the second call was insufficient, inasmuch as the resolution did not state the time and place of payment. The learned judge directed a verdict for the plaintiff for the amount of the calls, reserving leave for the defendant to move to enter a verdict for him.

Bramwell moved, in Easter Term (April 23rd).—The second call was insufficient, and the notice was defective for want of a proper call; so that the two together are not a compliance with the requisites of the 8 & 9 Vict. c. 16. The 21st section of that statute enacts, "that the several persons who have subscribed any money towards the undertaking, or their legal representatives respectively, shall pay the sums respectively so subscribed, or such portions thereof as shall from time to time be called for by the company, at such times and places as shall be appointed by the company." The following section, after providing for twenty-one days' notice, enacts, "that every shareholder shall be liable to pay the amount of the calls so made in respect of the shares held by him, to the persons and at the times and places from time to time appointed by the company." The expression "on the day appointed for payment" is also found in the 23rd section, which requires interest to be paid on "calls" unpaid. By the 25th section,

1848.

NEWRY AND ENNISKILLEN RAILWAY CO.

v.

EDMUNDS.

"if, at the time appointed by the company for the payment of any call, any shareholder shall fail to pay the amount of such call, it shall be lawful for the company to sue such shareholder," &c. If the 22nd section had not contained any provision as to notice, it is evident that the resolution of a call must have appointed a time and place for payment. It will, perhaps, be said, that the provision as to twenty-one days' notice shews, that "a time appointed by the company" must be the time appointed by that notice; for as the notice might be given after the day appointed by the resolution, and as the shareholder could not be sued until twenty-one days after notice, the time appointed for payment must be a time after twenty-one days' notice. That, however, is not the true construction; the meaning of the enactment is, that no action shall be brought unless notice be given. [Parke, B.—In a case of the Great North of England Railway v. Biddulph (a), this Court held that the resolution need not specify the place for payment.] The object of the 23rd and 25th sections were not to give the company a right of action, but to make the shareholder liable to interest, if he failed, after notice, to pay on the day appointed. [Parke, B.-Does the word "call" mean anything more than a call for money; and is not a call for money an application for money? If so, the Legislature says, that there shall be an application for money to each subscriber. Your argument is, not that the company shall do it uniformly, but that it is a condition precedent that they shall.] The 26th section uses the word "call" in a different sense, and as meaning the amount to be paid. When the call is made, a certain day must be appointed for payment; and before a shareholder can be sued, twentyone days' notice must be given. The act of Parliament becomes consistent if read in this way,-make a general call, give a time and place for payment, and also twenty

(a) 7 M. & W. 243.