C. A. give evidence was reasonable, and that the evidence ought to have been received. 1905 GIBBON V. PEASE. Danckwerts, K.C., and Gatehouse, for the plaintiff, were not called on. COLLINS M.R. It seems to me that this case is covered by the principle of the decision in Ebdy v. M'Gowan. (1) The defendant is an architect who was employed by the plaintiff on a verbal contract to do all that was necessary to be done as an architect in designing and carrying out a certain building operation on some houses belonging to the plaintiff. The remuneration of the defendant was to be at the rate of 5 per cent. on the total outlay. It was not disputed that the employment involved the preparation and drawing of plans, nor was it disputed that plans were made and used in carrying out the building operations. When the work was done the building owner paid the contract price and claimed the plans. The defendant refused to give them up, contending that by the custom of the profession he was entitled to retain them. The plaintiff brought this action to recover possession of them, and it came before Ridley J., and evidence was tendered in support of the custom set up on behalf of the defendant. The learned judge held that if the alleged custom existed it was not one that would bind the public. I am not sure that the learned judge was satisfied as to the existence of the custom; but, however that may be, he held, on the authority of Ebdy v. M'Gowan (1), that it was so unreasonable that the Court would not give effect to it. It has been argued before us that the case referred to was distinguishable from the present one. The principle on which the right of the defendant to keep the plans is rested in this case is that the contract between the parties was not for the sale of a chattel, but for work and labour, and that the defendant completed his part of that contract when the work had been finished under his superintendence. In Ebdy v. M'Gowan (1) there was a contract with a provision for its termination at certain stages of the (1) The Times, Nov. 17, 1870. contemplated work. The plaintiff was employed by the defendant to prepare plans with reference to the rebuilding of a vicarage. If the work was carried through the remuneration was to be at the rate of 5 per cent. on the outlay; if the matter only got as far as the procuring of tenders the remuneration was to be 3 per cent. on the estimated cost; and if plans were made and nothing further was done the architect was to get 2 per cent. on the estimated cost. Plans were prepared, but before anything else was done the building owner made up his mind not to proceed further. He was willing to pay the 2 per cent., but he required that the plans should be handed over to him. The architect refused to hand over the plans and sued for payment, setting up a custom among architects to retain their plans if the work was not proceeded with. It was held by the Court of Exchequer that such a custom, even if it were proved, would be unreasonable, and that the building owner need not pay for the plans unless he obtained them. The custom set up, if it could have been justified, must have been so on the ground that is urged in support of the custom in the present case-namely, that the contract was for work and labour to be done and had no bearing on the property in the plans. If the custom set up in that case was bad, that set up in this case is equally bad, for it can make no difference that in the former case there was a sub-division of the contract into parts having relation to different stages of the contemplated work. In my opinion the contract in this case resulted in the making of plans the property in which passed to the building owner on payment of the remuneration provided under the contract. I find a difficulty in distinguishing this case from that of a contract to paint a picture or to design a coat of arms, as to which no question of ownership could arise. The case on which the learned judge based his decision was decided in the year 1870, and has never been impugned. In my opinion it was rightly decided, and this appeal must be dismissed. MATHEW L.J. I agree that the appeal should be dismissed for the reasons given by the Master of the Rolls. C. A. 1905 GIBBON V. PEASE. Collins M.R. VOL. I. 1905. 3 I 2 C. A. 1905 GIBBON r. PEASE. COZENS-HARDY L.J. I am of the same opinion. The principle which governs this case cannot, in my opinion, be distinguished from that which governed the decision of the Court in the solicitor's case, Ex parte Horsfall (1), to which I referred in the course of the argument. In that case, as in this, there was a contract for the performance of certain work. There were things which were necessary for the completion of the actual deed of conveyance, which was what the parties bargained for, and though a custom was set up by the solicitor of a right on his part to retain drafts and copies of deeds and documents, the originals of which he was admittedly bound to deliver up, the Court decided that the client who had paid for them had a right to the possession of them. If one considers the matter from the point of view of the reasonableness of the custom set up, the argument seems to me to be entirely in favour of the building owner. What would be his position after the building was completed? plans, how is he to know where the drains, the flues, and many other things are? Is he bound to go to the architect and make a fresh contract with him with respect to every matter that arises relating to the structure? Counsel for the defendant were bound to admit that, if their view as to the retention of the plans is correct, there would be some sort of obligation on the architect for their safe custody; but that admission does not make the retention reasonable. In my opinion the decision of the Court of Exchequer in 1870 was right, and this Court ought to follow the ruling in that case. Unless he has the Appeal dismissed. Solicitors for plaintiff: Gibbon & Moore. (1) (1827) 7 B. & C. 528; 31 R. R. 266. A. M. [IN THE COURT OF APPEAL.] LAW GUARANTEE AND TRUST SOCIETY v. RUSSIAN Shipping-Mortgage of Ship-Mortgagors in Possession-Contract impairing the Security Charterparty for Carriage of Contraband of War-Debenture Trust Deed. Where mortgagors in possession of a ship entered into a charterparty by which she was chartered for the carriage of contraband of war to a port of one of two belligerent States, which would involve great risk of her capture by the other belligerent, and the ship was not insured against such risks: Held, that the mortgagees were entitled to a declaration that the charterparty was not binding on them on the ground that it impaired the security, although the ship had sailed with her cargo on the voyage under the charterparty. Collins v. Lamport, (1864) 4 D. J. & S. 500, followed. The Celtic King, [1894] P. 175, discussed. APPEAL by defendants from judgment of Channell J. in an action tried by him without a jury. The action was brought by the plaintiffs as mortgagees of three steamships called respectively the Heathbank, the Heathburn, and the Heathcraig, against the Russian Bank for Foreign Trade, the Heath Line, Limited, the owners of the steamships, and Messrs. Green, Holland & Sons, for a declaration that the plaintiffs were not bound by certain charterparties and bills of lading relating to the said ships and the cargoes then on board of them. The defendants, the Heath Line, Limited, were a company owning a line of steamships, whose memorandum of association empowered them to carry on the businesses of shipowners under the British flag, managers of shipping property, freight contractors, carriers of goods, wares, cattle, merchandise, mails, parcels and other things, and passengers and troops, by land or sea, or partly in one way and partly in the other, and to enter into such contracts in relation to any of the above matters as the company might deem expedient. The plaintiffs were the C. A. 1905 March 31. C. A. 1905 trustees of a debenture trust deed entered into by the defendants, the Heath Line, Limited, to secure the holders of debentures LAW of that company, by which the undertaking of the company, GUARANTEE and all its property, present and future, were assigned to the AND TRUST SOCIETY บ. RUSSIAN BANK FOR plaintiffs, as a security for the payment of the debentures. By clause 1 of the deed the term, "the mortgaged premises," was stated to mean the steamships, Heathburn, Heathcraig, Heathford, Heathglen, and Heathbank, and other the property comprised in the deed and for the time being mortgaged to the plaintiffs. By clause 4 it was provided that, until the security became enforceable, and the trustees were in a position to enforce the same, the trustees should permit the company to hold and enjoy the mortgaged premises, and to carry on therein and therewith the business authorized by the memorandum of association of the company, and that, as regards the mortgaged premises other than the steamships therein before named, the deed should operate as a floating security, but so that the company should not be at liberty to create any mortgage or charge on the mortgaged premises ranking in priority to or pari passu with the security created in favour of the debentures. Clauses 6 and 7 provided that, when the security constituted by the deed became enforceable, the trustees might enter upon and take possession of the mortgaged premises, and that the security should become enforceable on the happening of each and every of certain events, among which was the breach by the company of any covenant or stipulation contained in the deed. Clause 24 provided (inter alia) that the company should, during the continuance of the security, carry on and conduct the business of the company to the greatest possible advantage, and should keep proper books of account, which were at all reasonable times to be open for the inspection of the trustees, that the company should, at all times during the continuance of the security, give to the trustees such information as they should require as to all matters relating to the business, or any afteracquired property of the company, or otherwise relating to the affairs thereof, that they should insure and keep insured such of the mortgaged premises as were of an insurable nature, including the vessels for the time being subject to the security, |