At the reference the defendants altogether disputed the plaintiffs' right to recover for loss of fishing upon two grounds, first, because the damages were too remote; secondly, because, as they contended, the plaintiffs might have procured more nets and have continued the fishing.

The reference first came on for hearing on the 7th Feb. 1878, and the registrar not being satisfied with the evidence as to the number of nets lost or as to the impossibility of procuring other nets, adjourned the reference to enable the parties to produce further evidence on these points. On the 29th April the reference proceeded, and on the further evidence the registrar made his report, finding the sum of 2271. due to the plaintiffs, that is to say:

1. Fishing nets...

2. Barrels and strops

3. Warps

4. Loss of four weeks' fishing from 10th Oct. to 7th Nov. 1877

£105 18

32

72 227

With interest at 4 per cent. per annum from 10th Nov. 1877 until paid.

The registrar gave his reasons for his report, which were as follows: "The principal point in dispute in this case was a rather novel claim for loss of fishing during the last four weeks of the season of 1877, and which was objected to by the defendants as being too remote a damage. It appears that the plaintiffs' smack Maud and Florence, belonging to Filey in Yorkshire, was engaged in drift-net fishing for herrings in the North Sea, when the defendants' vessel Gleaner, which was trawling, fouled her nets during the night of the 10th Oct. last. The result was that after prolonged attempts to haul them in the smack was only able to save ten nets out of a fleet of sixty, and was compelled to return to port. Being then unable to procure before the close of the season, which terminates early in November, other nets for the purpose of continuing their fishing, the plaintiffs were reduced to the necessity of laying up their smack at once, and taking to the much less lucrative occupation of line fishing, and for the loss arising from this interruption of their regular net fishing the plaintiffs have made a special claim. It is well known that herring fishing with nets is systematically pursued by thousands of smacks during a certain portion of the year, and constitutes the main source of livelihood to a large number of fishermen.

"The plaintiffs in this case were so employed at the time the damage complained of was sustained. They were actually engaged in operations from which profitable results might be anticipated with confidence, almost with certainty, and the loss they sustained by the interruption of their em

[ADM.

ployment was directly consequent on the destruction of their nets by the wrongful act of the defendants.

"It is to be borne in mind that a smack of this class is solely used for net fishing, and if its nets are destroyed and cannot be renewed at once, the smack itself is necessarily laid up unemployed for a certain time at the very period of the year when it would otherwise be profitably employed. According, therefore, to the ordinary principle on which demurrage and compensation for non-employment is allowed, in respect of a vessel disabled by injury to her hull or gear, some compensation is clearly due to the plaintiffs in this case under that head; and this being so, I have considered that the ordinary rule of allowing so much per ton per day is not applicable to a vessel of this class which is not constructed and is never employed for the conveyance of cargo or passengers, or in earning freight in the common sense of the term, and that the plaintiffs are entitled to recover the probable net amount they were prevented from earning by the customary use of their smack and its fishing gear. With regard to the amount allowed under this head, viz., 721., we formed our estimate from the evidence before us of what the gross earnings of the smack would have been if she had continued fishing for four weeks on her usual ground. From that estimate we have made deductious for the expenses that would have been incurred by them, also for wear and tear of the smack and of her nets and warps, &c., and further for the amount the plaintiffs did actually earn in the substituted occupation they had recourse to. It is to be gathered from the evidence before us that herring fishery in what may be termed the Filey waters is less productive in the latter half of October and the beginning of November than in the Yarmouth waters. The season ends, in fact, for Filey smacks early in November, although it continues to a later period farther south, and for this reason the Yarmouth smacks which frequent the North Sea waters in the early part of the autumn return in the month of October to their own waters."

The defendants did not object to the report, which was taken up by the plaintiffs, and the registrar having made no recommendation as to costs, the plaintiffs gave notice that they should move the judge to certify that they were entitled to their costs of the action, and to condemn the defendants and their bail therein, and in the costs of the reference.

May 29.-James P. Aspinall for the plaintiffs in support of the motion.-The plaintiffs are entitled to their costs of the action, although they have recovered less than 300l., because they obtained leave to commence the action in the High Court under the County Courts Admiralty Jurisdiction Act 1868, sect. 9. As to the costs of the reference, it is true that more than one-third has been struck off the amount claimed by the plaintiffs, but as the defendants paid into court the amount claimed by the plaintiffs for the loss of fishing gear, the only part of the plaintiffs' claim reduced is the plaintiffs' claim for unliquidated damages, and this was the only amount in dispute between the parties. The ordinary rule as to costs ought not to apply to a claim for unliquidated damages, where it is impossible for the plaintiffs to do more than estimate the amount of

their loss; they must put down in their claim a sum sufficient to cover what the court may think enough to satisfy the loss sustained. The rule as to costs is intended to prevent exorbitant claims in respect of moneys alleged to be due or paid for work and materials for demurrage which can be accurately ascertained; it ought not to apply to claims for damages, the amount of which are greatly in the discretion of the court, and are not capable of exact estimation.

Gainsford Bruce for the defendants.-The plaintiffs ought to have brought this action in a County Court, and ought not to have their costs here. As to the reference, the payment into court was general, and not specifically for the value of fishing gear. The ordinary rule as to costs should apply; the plaintiffs bave made out no exceptional case. The adjournment of the reference was occasioned by the plaintiffs not being fully prepared with their proofs at the first hearing.

J. P. Aspinall in reply.

Sir R. PHILLIMORE.-In this case the plaintiffs ask for the costs of the action, and the costs of the reference. By the registrar's report, which has not been objected to, the plaintiffs recover less by more than one-third than they claimed, and the total amount recovered amounts to less than 3001. As to the costs of the action, I think the plaintiffs properly obtained leave to bring the action in this court, and that they are consequently entitled to those costs. As to the costs of the reference the plaintiffs ask for the costs upon the ground of the peculiarity of their claim. Their claims consisted of claims for loss of gear, and for loss of the season's fishing. The defendants tendered the amount claimed for loss of gear, but resisted altogether the claim for loss of fishing. This course of action on the part of the defendants has undoubtedly occasioned costs, and I am of opinion that, considering the peculiarity and nature of the claim of the plaintiffs, they are entitled to some costs; I think, however, that the plaintiffs are not entitled to full costs because, by reason of their not being prepared with their case on the first day of the hearing of the reference, they occasioned an adjournment; in respect of this adjournment they are not entitled to costs. Under the circumstances, I think justice will be done by awarding to the plaintiffs the sum of 401., nomine expensarum, in respect of the costs of the reference, in addition to the costs of the action. My decision here turns upon the peculiarity of the case and claim, and must not be taken in any way to weaken the authority of the general rule as to the costs of reference in cause of damage.

Solicitor for the plaintiffs, H. C. Coote. Solicitors for the defendants, Collyer-Bristow, Withers and Russell.

[CT. OF APP.

Supreme Court of Judicature.

COURT OF APPEAL.

SITTINGS AT LINCOLN'S INN. Reported by E. S. ROCHE, Esq., Barrister-at-Law.

Dec. 10, 11, 1877; Jan. 14, 15, 18; and March 12, 1878.

(Before JAMES, BAGGALLAY and THESIGER, L.JJ.) DE BUSSCHE v. ALT.

Principal and agent-Sub-agent-Agent making a profit by sale to himself—Disclosure-Acquiescence- -Delay.

In 1868 the plaintiff consigned a steamer to G. and Co., his agen's at Shanghai, for sale, fixing a minimum price of 90,000 dollars, and requiring cash payment. The defendant was a merchant residing in Japan, and he undertook, as G. and Co.'s agent, to sell the vessel in Japan, or in the event of her not being sold to find employment for her. This was done with the sanction of the plaintiff. The defendant, being unable to sell the ship for cash at the price named, took her himself for 90,000 dollars, and resold her to a Japanese prince for 160,000 dollars, payable partly in cash and partly on credit. No information reached the plaintiff of any intention on the part of the defendant to change his character of agent for sale for that of purchaser until June 1869, after the transaction with the prince was carried out. The defendant paid 90.000 dollars to G. and Co., who remitted it to the plaintiff.

In the meantime the defendant, though not without some trouble, had obtained the whole amount of 160,000 dollars from the prince.

In 1873 the plaintiff instituted proceedings to compel the defendant to pay over the increase realised by him in the resale of the vessel, on the ground that he was the plaintiff's agent in the transaction, and bound to account for all profit made.

Held (affirming the decision of Hall, V.C.), that this was one of those special cases where a privity arose between the principal and the sub-agent, and the sub-agent became liable to the principal as if he had been directly employed by him. The relation of agent and principal was established and existed between the defendant and the plaintiff at the time of the purchase and re-sale of the vessel; and the defendant therefore must account to the plaintiff for all the profit he had made in the transaction.

Held, further, that there had been no such acquiescence or delay on the part of the plaintiff as would disentitle him to maintain the action. Semble, that mere submission to a wrongful act which has been completed without the knowledge or assent of the person whose right is infringed cannot, without some conduct amoun'ing to accord and satisfaction, or a release under seal being shown, bar his right of action; although, under the name of laches, it may afford a ground for refusing relief under some particular circumstances.

THIS WAS an appeal by the defendant from a decision of Hall, V.C. The bill was filed by

CT. OF APP.]

secure

Edward Munster de Bussche, a merchant and shipowner of Ryde, in the Isle of Wight, against William John Alt, a member of the firm of Alt and Co., merchants in Japan, and sought to make the defendant liable to account, as the plaintiff's agent, for profits made by him in the purchase and sale of a steamship called the Columbine. It appeared that in 1868 the plaintiff was the registered owner of two composite screw steamers, called the Nymph and the Columbine, subject to a mortgage to Messrs. John Willis and Son, merchants in London, to an account current. Each of the steamers was intended by the plaintiff, according to his usual course of business, for sale in some port in India, China, or Japan, and in the summer of 1868, by arrangement between the plaintiff and his mortgagees, who were pressing for payment of the mortgage debt, the vessels were consigned for sale to Gilman and Co., a firm of merchants carrying on business at Hong Kong and Shanghai in China, and at Yokohama in Japan. It was admitted that, although John Willis and Son took the active part in the original consignment of the vessels to Gilman and Co., yet the relationship of principal and agent in the transaction was constituted between the latter firm and the plaintiff. The amount of the mortgage debt was very much below the selling value of the vessels, and Gilman and Co., throughout the transactions which followed upon the consignment, as a rule corresponded with the plaintiff rather than with Willis and Son. The consignment was announced by

Willis and Son to Gilman and Co. in a letter of the 3rd July 1868, in which occurred the following passages:

The Columbine is now at Bombay, and if she cannot be sold will take cotton ronnd to China, where, if a sale does not take place, we must beg you to send her with a freight to Shanghai, Nagasaki, or Yokohama, or all three ports if necessary, so as to get her sold as soon as possible. We understand that you have no establishment at Nagasaki, but no doubt you can appoint some good agent to do the business; but we have to caution you that great care should be taken in appointing an agent where a sale is likely to be effected, as Mr. Də Bussche will naturally look to us for the proceeds.

At that time the defendant was a partner in the firm of Alt and Co., an English mercantile house which traded in Japan, having three different branches in that country-one at Nagasaki, another at Osaca, and a third at Hiogo-and had been from time to time employed by the plaintiff as agent for the sale of merchandise. The defendant was the managing partner at Osaca and Hiogo, and a Mr. Hunt was the manager of the Nagasaki branch. The defendant hearing that the two steamers had been consigned for sale, and having better opportunities than Gilman and Co. for disposing of them in Japan, suggested to that firm that he should be allowed to do so; and the plaintiff also, having been informed that the defendant's house and another Japan house could sell composite steamers, forwarded the information to Gilman and Co., in a letter of 10th Sept. 1868. In the result Gilman and Co. authorised the defendant to sell the vessels, or, in the event of their not being sold, to find employment for them. The defendant undertook the duty, and the plaintiff corresponded with the defendant's manager at Nagasaki, on the footing of the defendant having so undertaken it. On the 23rd Oct. 1868 the plaintiff wrote to Gilman and Co. confirming a

[CT. OF APP.

For

limit which he had previously mentioned for the price of each of the vessels, viz., 90,000 dollars net proceeds in England, and stating his willingness to allow some portion, suggesting one-third, to remain on credit, if good interest were allowed and covered by the guarantee of Gilman and Co.; and on the 5th Nov. in the same year the plaintiff wrote again to Gilman and Co., withdrawing the requirement of a guarantee from them, and expressing his willingness to allow a credit, if necessary, of 20,000 dollars or 25,000 dollars for six or nine months, secured on the vessel. The defendant, however, asserted that he was never made acquainted with the fact of the plaintiff's willingness to allow a credit, and that the instructions which were conveyed to him by Gilman and Co., as coming from Willis and Co., were to the effect that only cash was to be taken for the steamers. The evidence upon this point was not clear, but in the view of the court nothing really turned upon it, and they had treated the defendant's assertion as correct. some time prior to the defendant's employment in connection with the two steamers he had business relations with a prince of a Japanese district called Geyshien; and the prince had become indebted to him in certain moneys, some of which were payable in the year 1868 and some in 1869. This Japanese prince was desirous of becoming the purchaser of a steamer, and the defendant appeared very early to have conceived the notion of selling either the Nymph or the Columbine to him. In the latter part of 1868 and the early part of 1869 several letters passed between the defendant and members of the firm of Gilman and Co., in which the difficulty of obtaining cash for the vessels was stated by the defendant, and in which be suggested that he should himself become the purchaser with a view of reselling on credit. Gilman and Co. in the answers to the defendant did not appear indisposed to accede to his suggestion, provided the plaintiff's limit of 90,000 dollars was obtained; but in the opinion of the court the correspondence failed to establish that any definite arrangement was come to until a date later than the 18th March 1869. It appeared, however, that before that date the defendant had brought his negotiations with the officers of the Prince of Geyshien for the sale of the Columbine by him to the prince to a close; and on the 24th Feb. 1869 an agreement in writing, purporting to be made between the defendant's firm and the prince's officers, was signed at Osaca, under which the defendant was to receive 160,000 dollars for the vessel, payable as to 75,000 dollars in cash, and as to the balance in two equal instalments in the fourth and eighth months (Japanese) of the then year; that is, in May and Sept. 1869. The contract was subject to confirmation by the Geyshien government, and complete possession of the vessel was not to be given over until full payment was received.

On the same day a further agreement between the same parties was signed, under which, in consideration of the purchase of the steamer, it was arranged that the prince should pay to the defendant in the second month of the year 22,400 rios due in the third month, 23,000 rios due in the fourth month, and in the eighth month 30,723 rios due in the tenth and eleventh months of the preceding year. These agreements were alleged by the defendant to have been mere inchoate arrange

ments, which were subsequently cancelled; but on the 17th March 1869 two admittedly binding and final agreements were concluded, which were in substance to the same effect, with the exception that possession of the vessel was to be given on payment of the 75,000 dollars, while the bill of sale was to be retained until payment of the whole purchase money. Upon these agreements being executed the crew of the Columbine was discharged, possession of the vessel was given to the prince, and on the 25th March a formal transfer to a trustee for the prince and the defendant was executed by the defendant. During the period over which the transactions with the prince extended, Mr. Hunt, the manager of the defendant's firm at Nagasaki, was corresponding from time to time with the plaintiff, mainly on matters of business unconnected with the sale of the Columbine, but incidentally also upon the subject of that vessel; and in a series of letters, coming down to as late a date as the 8th April 1869, Mr. Hunt invariably spoke of the sale of the vessel as about to be effected, or as having been effected, by the defendant under his employment for that purpose, and gave no intimation of any intention on the part of the defendant, either conceived or carried out, to change his position of agent for that of purchaser. In a post.cript to a letter of the 10th March 1869 Hunt wrote as follows:

Since writing the above we are in receipt of advices from our Hiogo friends, who state that they are finding constant and remunerative employment for the Columbine, and that she was about to proceed on a trip to the Inland Sea for the purpose of being inspected with a view to purchase,

And when, on the 8th April, he mentioned the fact of a sale having been effected, it was in the following terms:

Columbine.-This vessel has been sold; particulars regarding the sale, Messrs. Gilman and Co., of Shanghai, will doubtless give you by this mail. Our firm at Osaca have informed their friends about this subject. Capt. Lobintz, of the Columbine, is proceeding home by this mail.

It was admitted on the part of the defendant that Hunt was ignorant of the nature of the transactions resulting in the sale to the prince. While Hunt was writing to the plaintiff, as above stated, Gilman and Co. were also in correspondence with the plaintiff, and in none of their letters to him did they suggest that the defendant was to assume any other position than that of agent. On the 12th March 1869 the defendant, in the name of his firm, wrote to Gilman and Co. to the following effect:

We beg to advise having settled a sale of the steamer Columbine, which will enable us to remit you the net limit given our Mr. Alt for the vessel by your Mr. Lavers (one of the partners in the firm of Gilman and Co.), and we hold to your credit 3000 dollars as a deposit on account of the same, which will be forfeited should the arrangements we are making fall through, which please note. senior addresses Mr. Lavers on the subject, to which we refer you. Please hand us by return the necessary documents to make a legal transfer of the vessel, as we may have to give a bond to the consul here if we require to change the flag before such is received by us.

Our

The defendant on the same day wrote privately to Mr. Lavers in the following terms:

We now write officially to say we will take the Columbine over at the limit named in your letter of the 10th Dec., which I hope will be satisfactory, and show you that I have been correct in my ideas as to the sale of the steamers, and induce you to be a little patient with reference to the Nymph, which I am sure we shall be able

[CT. OF APP.

to settle very soon now. Please let me have transfer documents by return, made out in the name of W. J. Alt. We shall remit you 90,000 dollars, less our 5 per cent. commission, which we will divide with you in this instance, or will hand your Yokohama firm the equivalent of 85 000 dollars at 4s. 6d., plus your commission at 2 per cent., which comes to nearly the same thing.

Mr. Lavers replied on the 18th March as follows:

Yours of the 12th March reached me yesterday, and I am much pleased to hear that there is at last some chance of selling the Columbine, although at the price you name, 85,000 dollars, it cannot be done. By my letters of the 20th Jan. to your firm, and the 21st Jan. to you, you will not fail to notice that the limit given on these dates was 90,000 dollars, free of commission. Our commission would be 5 per cent., but we should be quite content to divide this with you, say give you 24 per cent. The steamers would be dirt cheap at this price. We cannot accept 85,000 dollars net, with an addition of 2 per cent. as our commission. Our last instructions from Mr. De Bussche are as follows:-" London, 4th March.-The limit on the Columbine and Nymph at 85,000 dollars net in England, with the 2001. per month added since 1st Sept. for insurance and interest. No deduction from above price of any earnings."

Some additional correspondence passed between the defendant and Gilman and Co., and, although the latter appeared ultimately to have acquiesced in the purchase by the defendant of the Columbine at the limit given by the plaintiff, there was nothing to show that they were aware of the terms of the resale, or of the fact that the defendant had completed the arrangement for resale before he bound himself to become a purchaser. In the meantime Gilman and Co. were also in correspondence with the plaintiff, and in their letters they spoke of the defendant as acting as an agent in the sale of the vessel. On the 17th March 1879 they wrote:

We have just received later advices from Hiogo, under date of the 12th instant, by which we are glad to find the Japanese had entered into positive negotiations for purchase of the Columbine, and paid a small amount of money as a guarantee of their good faith in the matter, so that we trust a telegram will reach you in anticipation of this letter advising actual sale of the steamer on satisfactory ternis.

On the 30th March 1869 Gilman and Co. wrote to the plaintiff :

Columbine-On the 17th instant we wrote you that our friends in Japan had advised us that the steamer was in a fair way of being sold. We have heard since from them to the effect that, as they found so much difficulty in making a sale at any price for prompt payment, they will take the steamer over at 90,000 dollars. You will no doubt understand it is unusual to sell steamers to the Japanese for cash, payment in most instances extending over some time. Our friends make the above offer, not having actually sold the steamer, but are in hopes of making a re-sale on credit terms, as a profit sufficient to reimburse them for loss arising out of interest of money, &c.

On the 12th April 1879 Gilman and Co. communicated to the plaintiff the sale of the vessel, as follows:

Columbine. We telegraphed our friends in London on the 8th instant to advise Willis and Son that this steamer had been sold for 90,000 dollars. Messrs. Alt and Co. had effected the sale before receiving our advices communicating your increased limit to cover 2001. per month for marine insurance. As, however, the price obtained is net, the difference is fortunately small, and the 90,000 dollars we shall have pleasure to remit you will nearly cover the amount required for insurance in addition to your former limit of 85,000 dollars. The steamer was transferred at Hiogo, where she was sold on the 21st ult., as advised in our telegram.

On the 3rd June 1869 Gilman and Co. wrote to the plaintiff to the following effect: