WITNESS: Quite.

COUNSEL The fact is that the companies do this in order that they may deduct the commission and so pay a less premium?WITNESS: Yes.

COUNSEL Do you know that Mr. Linnett, whatever money he has received in this case, paid that money over to his company, and that they have been the gainers?-WITNESS: I did not know it.

COUNSEL I suggest to you that the practice carried out here of appointing a mem ber of the staff as agent is in order to save the company commission?-WITNESS : Yes.

COUNSEL: Have you seen Mr. Linnett with regard to supporting your case or not?-WITNESS: No.

COUNSEL Your case is that you ought to retain the commission as long as you have the business?-WITNESS: Quite.

Further cross-examined with respect to a letter he had written to the defendants, WITNESS said he did not agree that it indicated that he had lost his commission and had no claim upon it.

This concluded the plaintiff's case.

Mr. S. G. CUMMING was called for the defence. Examined by Mr. Hill, he said that when he had the interview with him, the plaintiff appreciated the company's difficulty with regard to renewing the policy and absolved him personally from all blame in the matter.

COUNSEL: Was there any discussion of the general question of companies putting forward their secretaries as agents? WITNESS: Yes.

Is that becoming a frequent occurrence with companies having large insurances?I am afraid it is.

And by that means the assured save the commission?-Yes.

In further examination, WITNESS said that Mr. Linnett became an agent of the defendants four or five months before December, 1924. He had never suggested this to the Expanded Metal Company in order to do plaintiff out of his commission.

Cross-examined by Mr. Birkett, WITNESS said that he thought Mr. McNeil appeared satisfied when he parted with him after their interview.

COUNSEL What actually did happen was that you did renew the insurance and manage to take a less premium by giving this commission to Mr. Linnett?

WITNESS: We did not take less premium. In further answer to Counsel, WITNESS said he did not know why there had been this change of policy with regard to Mr. McNeil.

Mr. ERIC L. PEARCE, agency inspector, employed by the defendants, said he had known the Expanded Metal Company from 1920, and from 1923 he was in touch with Mr. Schofield, the secretary of it, and Mr. Linnett, the cashier. He had something to do with the matter of Mr. Linnett becoming agent of the defendants in that he had to put it forward as a verbal application to his company. Mr. Linnett said that unless this course was followed defendants would lose the business. He

(witness) said he disapproved of it entirely, and pointed out to him the various advantages of employing brokers. Mr. Linnett replied that they were quite capable of looking after their own interests. He told Mr. Linnett he would report the matter to Mr. Cumming. He had never at any time made the suggestion to Mr. Linnett that that would be the proper way to do it.

In cross-examination, WITNESS said he never made the arrangement with Mr. Linnett.

Mr. J. F. LINNETT, cashier to the Expanded Metal Company, said he attended to the company's insurance business and was agent for several insurance companies. Witness spoke to the circumstances leading up to his being agent in this case, and said that the commission was credited to the company.

Cross-examined, WITNESS said that his company was out to get its insurance done as cheaply as it could, and the arrangement was that the commission should be given to the company.

Mr. HENRY SCHOFIELD, secretary to the Expanded Metal Company, said his company received quotations from other companies representing a considerable saving in premiums. The company decided in 1923 that Mr. Linnett should act as agent to the company and that the company should have the advantage of the commission on the premium, which was a very common practice. He instructed Mr. Linnett in the

matter.

This concluded defendants' case, and Mr. BIRKETT submitted that on the evidence the plaintiff was not entitled to succeed. The evidence substantiated the view of the defendants that it could not be said that the policy of 1924 was due to the instrumentality of the plaintiff.

JUDGMENT

Mr. Justice BRANSON, in giving judgment (without calling on the other side), said: In this action the plaintiff, who is an insurance broker, sues the defendants for commission upon the renewal of a policy of insurance against employers' liability granted by the defendants to a company called the Expanded Metal Co., Ltd., in respect of their works in West Hartlepool. The facts of the case The are these. plaintiff, who carries on business as C. E. Britten & Son, introduced the business of the Expanded Metal Co. to the defendants in 1912, and the defendants then issued a policy to the Expanded Metal Co., Ltd., and from 1912 onwards, at the end of each year, that policy has been renewed through the instrumentality of the plaintiff. The way in which it was done was that each December the defendants gave the plaintiff a renewal notice to send forward to the Expanded Metal Co., and the plaintiff thereupon sent forward that notice, took up with the company the matter of the rates that they would be prepared to pay and the settlement of the actual premiums which they had to pay in respect of the year, which was then completed.

In 1923 it was obvious that the renewal of this policy was going to be a somewhat difficult performance; the reason being that the Expanded Metal Co. had been receiving quotations from other insurance companies than the defendants, offering them better terms than the defendants were prepared to offer, and negotiations were initiated in which the plaintiff was endeavouring to get the Expanded Metal Co. to agree to renew the policy. In order to arm himself for those negotiations, the plaintiff was corresponding with the defendants, and obtained from the defendants reasons which he was to pass on and did pass on to the Expanded Metal Co. for the amount of the premium which the defendants were proposing to charge. The negotiations came to a point at which it appeared to be clear that, unless the defendants were prepared to take a somewhat smaller premium than they had hitherto insisted on as their premium, the business would come to nothing.

In those circumstances the plaintiff went to the defendants and saw Mr. Cumming, and suggested to him that he should go and see what he could do by way of saving this business. Mr. Cumming did not go himself to the Expanded Metal Co., but he sent Mr. Pearce; and I think it is quite plain from Mr. Pearce's evidence, coupled with that of Mr. Linnett, who was the person acting for the Expanded Metal Co. with whom Mr. Pearce had his interview, that what in effect happened was this. Mr. Linnett, instructed by Mr. Schofield, said that the company would not go on renewing this policy at the rates which the defendants were asking, and suggested that the means of getting the company a lower rate would be to appoint, or to treat Mr. Linnett as the agent for the renewal of this insurance, so that his commission might be credited to the company, and the company thereby be enabled to get its insurance at a lower rate. Mr. Pearce certainly was under no illusions in the matter. He said he assumed that the commission would go into the pocket of the company and not into the pocket of Mr. Linnett; and it could hardly be otherwise, for if Mr. Linnett was trying to make it a term of this company's renewal of this premium that he should get a commission that he should keep for himself, it would be a matter which would have thrown upon the defendants the duty of seeing that Mr. Linnett's principals were aware of what was going on, for it would have been a suggestion that, unless Mr. Linnett was authorised to make it, would have been a very improper suggestion for Mr. Linnett to make. As a matter of fact of course Mr. Linnett was acting perfectly properly. He made it perfectly plain to Mr. Pearce that the suggestion that this should be nominally put through his agency was only made in order that the company might get the benefit of a cheaper policy, by being credited, as against the premium which they would otherwise have to pay, with the commission which nominally should be paid to Mr. Linnett.

That arrangement having been come to,

the policy was renewed with the company and the plaintiff now claims that he is entitled to commission upon the premium which was received. I think there is no mystery about the law applicable to this case. It is laid down perfectly plainly by the Court of Appeal in the case of Nightingale v. Parsons, [1914] 2 K.B. 621, the particular passage to which I shall refer being in the judgment of Swinfen Eady, L.J., at p. 626. He is citing the case of Millar v. Radford, 19 T.L.R. 575, from the judgment of Sir Richard Henn Collins, the Master of the Rolls of that day, and the passage which he cites is this:

The claim of house agents to be entitled to commission in circumstances like the present was a claim which was often made, and was likely to continue to be made. It was, therefore, important to point out that the right to commission did not arise out of the mere fact that agents had introduced a tenant or a purchaser. It was not sufficient to show that the introduction was a causa sine qua non. It was necessary to show that the introduction was an efficient cause in bringing about the letting or the sale.

The principle deducible from that is this: Where an agent is asking for commission upon a certain transaction, he has got to show that he was an efficient cause of the transaction coming about. It is not enough to show that he was the introducer of the two parties because that is merely a causa sine qua non and may not be the efficient

cause.

Now in the present case it is said on behalf of the plaintiff that he was the efficient cause of the bringing about of this renewal. There is no doubt that he did a good deal of work, and, among other things, he was pointing out to the Expanded Metal Co. the reason why the defendants were in difficulties about further reducing their premiums. That was an argument which they thought was sufficiently material to hand over to the plaintiff to pass on to the Expanded Metal Co. He did pass it on and he went and saw the company about it; and his efforts, in my view of the facts, were an efficient cause in the ultimate renewal of this policy. They were not the only cause, but they were an efficient cause. I do not think it is right to say, as Mr. Norman Birkett says, that the plaintiff's efforts entirely failed, and that the policy was only renewed by reason of a completely fresh basis having been arrived at between the parties. My reason for declining to follow that view of the facts is the evidence which has been given, from which I think that it emerges beyond any doubt whatever that this question of the allowance of a premium to Mr. Linnett was a mere-I do not want to use a word which would indicate that I think there was anything underhand in it-pretence in order to enable the company to get its insurance for a smaller sum than they otherwise would have done. It may be that

the defendants' reason for doing the business in this way was that, being a tariff company with fixed rates, they had some hesitation in reducing their rates; but the fact remains, and nobody was under any illusion about it, the result and the intended result of this arrangement was that the Expandel Metal Co. should get their cover for £25 odd, whatever the amount of the commission was, less than they would otherwise have had to pay. It is not a case of principals who have been introduced by an agent and brought to a certain point in negotiations setting out for themselves on a new tack altogether.

In my view the case is exactly on all fours with the one that I put to Mr. Norman Birkett in argument, namely, the case of a man who employs an agent to go and try to sell something for him. The agent finds a purchaser but the purchaser will not pay the price which the vendor requires; he is willing to pay something a little bit less, but the price that he is asked he will not pay. The agent then goes to

the vendor and tells him that. The vendor goes in turn to the person introduced by the agent and they agree that the sile shall take place at the less figure. The agent is entitled to his commission. The result is, in my view, that the plaintiff is entitled to succeed. The actual amount I understand has been agreed.

Mr. NORMAN BIRKETT: Yes, my Lord, £25 16s. 6d. That we are agreed about.

I

Mr. PORTER: Then, my Lord, there is a question, of course, in this case with regard to the costs. The actual sum at stake is not a matter of much importance, but having regard to the evidence given here with regard to the practice between brokers and underwriters, and this practice of endeavouring to defeat the broker's commission, it is a matter of considerable importance both to the plaintiff and the defendants in dealing with like cases. submit that it is a proper case in which to allow High Court costs. On looking through the correspondence, your Lordship will see that we notified the other side that we proposed to issue a writ, and asked them to accept it, and they accepted it making no complaint that it was not a proper case for the High Court, particularly as it is possible that the case may go to appeal.

Mr. BIRKETT: Your Lordship appreciates what is laid down under Sect. 1 of the County Courts Act of 1919. Perhaps I may read it :

Where an action is brought in the High Court which could have been commenced in a County Court then if the plaintiff recovers a sum less, in the case of an action founded on a contract, than £40 -that is the material matter in this case

or, in the case of an action founded on tort, than £10, he shall not be entitled to any costs of the action, and if he recovers, in the case of an action founded

on contract, a sum of £40 or upwards but less than £100, or, in the case of an action founded on tort, a sum of £10 or upwards but less than £50, he shall not be entitled to receive more costs of the action than those to which he would have been entitled if the action had been brought in a County Court.

That is this case; £25 16s. could have been recovered in the County Court. He recovers less than £40, and therefore prima facie he has no costs of the action :

Provided that in any such action whether founded on contract or tort, the Court or a Judge. . . if satisfied that there was sufficient reason for bringing the action in the High Court or that the defendant or one of the defendants objected to the transfer of the action to a County Court, may make an order allowing the costs or any part of the costs thereof on the High Court scale, or on such one of the County Court scales and under such one of the columns in the scale as he may direct.

I think, with respect, those are the material words.

Mr. Justice BRANSON: Yes.

Mr. BIRKETT: It is entirely a matter for your Lordship, but I submit that this is not a case where there should be any special order made. Hundreds and hundreds of agency cases are fought in the County Court. My learned friend was in rather an extremity when he was suggesting that some principle was introduced into the case. My submission has always been, and I think your Lordship was of that opinion, that here it was a simple question of fact. The question of practice between the brokers and companies has really never been material to this case at all. It was mentioned as an incidental matter in passing that it was a growing practice, but the practice had nothing whatever to do with the matter which your Lordship has decided in this case; and your Lordship knows that those words in the section "which could have been commenced in a County Court," mean as to the amount; and, as to its being proper, having regard to the matter to be discussed, can it be said that there was any matter here that could not have been discussed by one of the County Court Judges in London? Is it to be said on so simple a question of fact that this was entirely beyond the province of a London County Court? Your Lordship appreciates that I do not want to enlarge on this matter, but it is my duty to put this before your Lordship. Having been beaten in law I do not want to be parsimonious: but all I want to say is that there is the statute and the statute is in clear terms. I submit that on the facts of this case there was never any ground for bringing the case in the High Court.

Mr. Justice BRANSON: I think this is a case in which I should make an order for High Court costs. My reason is this, that on the pleadings as they started there was

a case of custom raised which might have entailed a great deal of evidence and a great deal of discussion. It is true that, after certain amendments have been made, that has come to be an admitted point before the Court here, but the action was then in the High Court and no one seems to have suggested its removal. Then there is one thing more that moves me in the matter and that is the Counsel which both sides have thought it right to employ in this case. If it is a case that is worthy of such Counsel, it is worthy of a decision in this Court.

His Lordship granted a stay of execution with a view to an appeal.

KING'S BENCH DIVISION.

Thursday, Dec. 17, 1925.

SUN SHIPPING COMPANY, LTD. v. WATSON & YOUELL SHIPPING AGENCY, LTD.

Before Mr. Justice RoWLATT.

Charter-party Demurrage Readiness to load-Erection of shifting boardsDispatch money-Arbitration-Award in favour of owners-Special case -Award remitted to umpire for a finding as to custom of the port.

This was a case stated by the umpire, Mr. W. Netherton Johnson, shipbroker, for the opinion of the Court in regard to a claim by the plaintiffs, who trade at St. Helen's Place, London, for demurrage of their steamer Sunhaven, chartered to the defendants, who trade at Galatz. The umpire having made an award in favour of the shipowners, the charterers now appealed.

Mr. C. T. Le Quesne, K.C., and Mr. J. Dickinson (instructed by Messrs. Thomas Cooper & Co.) represented the appellants; while the respondents were represented by Mr. W. N. Raeburn, K.C., and Mr. Wilfrid Price (instructed by Messrs. Botterell & Roche).

The umpire's award stated that under a Chamber of Shipping Danube Berth Contract of May, 1923, the ship was to proceed to certain Danube ports and there load a cargo of grain. The cargo was to be loaded at the rate of 450 units per day, and time for loading was to count from the morning after the ship's arrival, she being then ready to load in all holds. The ship arrived at Braila on June 4, where a portion of the cargo was loaded, and then she went to Galatz and continued the loading, and was cleared on June 20. The time allowed for loading the quantity loaded was 94 days, and accordingly the owners contended that they were entitled to demurrage for 41 days. The charterers, however, claimed that June 5, 6 and 7 did not count, because the steamer was not ready in all holds, as

work was in progress on the erection of shifting boards. They also claimed that they were entitled to time for supplying the lighterage portion of the cargo; and further that they were entitled to 4 days' dispatch money in respect of the time occupied in loading the up-river portion of the cargo. The umpire held that there was no provision in the Berth Contract entitling the charterers to claim for time occupied in loading the lighterage portion of the cargo, but that they were entitled to except the time so occupied. The charterers made no protest as to the unreadiness of the ship, and the umpire held that she was ready, as there was no evidence of any delay caused by fixing of the shifting boards. Therefore he held that the charterers were not entitled to leave out of count June 5, 6 and 7, and the owners were entitled to 4 days' demurrage. He according made an award of £182 8s. in favour of the owners.

Mr. LE QUESNE said that the ship loaded in the river, and finished loading from lighters in the roads. The shipowners claimed demurrage because the ship took too long in loading at Braila and Galatz, and the umpire had upheld their claim. The charterers contended that they ought not to pay demurrage. They founded that contention on the charter-party and they also relied on the custom of the port. umpire had annexed the evidence custom, and ought to have found whether or not there was a custom. As he had not done so, he (Counsel) asked the Court to send the award back to the umpire.

The as to

Then there was the point that the ship was not ready to load when notice of readiness was given, as she had not finished putting up her shifting boards, which were fixed to prevent the grain working from one side to the other. No doubt it was possible to commence loading when the boards were only partly fixed, but that was not what was meant by the provision that the ship must be ready to load a full cargo. As to the time taken in the loading, the charterers were entitled to count not only the loading at two ports, but also the loading into the lighters up river, and, if that were done, then they loaded in time. The umpire, on the other hand, counted only the amount loaded at the ports, which was wrong. The loading on to the lighters must be counted.

Friday, Dec. 18, 1925.

Mr. RAEBURN announced that both parties now agreed that the case should go back to the umpire for a finding as to custom, and also on the question of dispatch money.

Mr. Justice ROWLATT agreed to this course, and said he would continue the hearing of the case on the first day of the next sittings.

Mr. RAEBURN said that the case was agreed to be remitted without prejudice to any argument that he might put forward as to the custom being excluded by the terms of the charter-party.

A settlement was announced in this action, which was tried before his Lordship and a special jury in April and May last. The previous proceedings were reported at 22 LI.L.Rep. 24.

The plaintiff, Mr. Vyvyan Whitmore Pearce, of Rockhurst Farm, West Hoathly, claimed against Mr. J. Deighton Patmore, of Ladbroke Road, London, and Mr. T. S. Bowen, of Leadenhall Street, E.C., damages for alleged misrepresentation in connection with the acquisition of shares in the Baltic Coal & Shipping Company, Ltd. dants denied plaintiff's allegations.

Defen

Mr. M. N. Drucquer (instructed by Messrs. Cohen & Cohen) appeared for the plaintiff; Mr. R. P. Croom-Johnson (instructed by Messrs. Pollock & Co.) for the defendants.

Mr. DRUCQUER reminded his Lordship that the hearing of the case occupied several days. The action was founded on fraud. The Judge put certain questions to the jury, and their answers were of such a character that his Lordship found it impossible to enter judgment. He sent the jury back, and in the result the jury disagreed and were discharged. The parties had since come to terms, and Counsel asked that the record should be withdrawn. Plaintiff now, through Counsel, made this statement : "The verdict actually given by the jury absolved the defendants from any moral turpitude or conduct of a morally blameworthy character."

Mr. CROOM-JOHNSON, for the two defendants, said that in an action for fraud the fact that the parties had come to terms might be thought to be some admission on the part of defendants that they were wrong. For that reason he thought it desirable that the terms arranged should be publicly stated. The action was brought for the recovery in one form or another of £4000, which had been paid by the plaintiff for 2000 shares in the company, and the jury's answers to the questions were, Counsel submitted, a most extraordinary and inconsistent verdict. At the trial the unchallenged evidence was that both defendants had themselves invested considerable sums in the company and that they had lost practically everything and were now, as a result, in reduced circumstances.

As the question of fraud had gone the defendants desired to do what they could

to assist plaintiff to recoup some small part of what he had lost. Defendants had therefore agreed to pay £100 to the Official Receiver in the company's liquidation on account of a sum of £375 which the Official Receiver was claiming as being due from the plaintiff in the liquidation. It was further agreed that each party should pay his own costs. This arrangement was to be in discharge of all claims arising out of plaintiff's investment in the company. Counsel added that defendants desired him to say that they were extremely sorry that plaintiff should have been so unfortunate as to lose his money and that he should have shared with them losses which arose out of the collapse of the company. Counsel concurred that the record should be withdrawn.

Mr. Justice ACTON: I think this is a most fortunate end to a very lamentable litigation. It is one I entirely approve of.

COURT OF SESSION. Thursday, Dec. 10, 1925.

DURIE v. ANCHOR-DONALDSON LINE. Before the Lord Justice Clerk (Lord ALNESS), Lord ORMIDALE, Lord HUNTER and Lord ANDERSON.

Workmen's Compensation Acts, 1906-1923— Injury to ship's fireman in leaping from ship to quay-Regulation that seamen must not leave the ship without written permission-Transgression of regulation-Finding by arbitrators that injury did not arise out of or in the course of seaman's employment-Appeal dismissed.

This was an appeal in an arbitration under the Workmen's Compensation Acts between George Durie, fireman, Commerce Street, Glasgow, and the Anchor-Donaldson Line, to determine Durie's right to compensation. The respondents are the owners of the steamship Saturnia, a liner engaged in the American trade. For about a year the appellant had been employed by the respondents as a fireman on board the ship. A regulation of the ship provides that, after coming on board on the sailing date, a seaman must not leave the ship unless he receives a written permit from a superior officer to be exhibited at the gangway leading ashore. The appellant went aboard on June 1, 1923. He had left home in the morning without some underclothing which he required for the voyage, and had arranged that his wife should procure it and bring it to the ship. She did so and was on the quay with the parcel, and the appellant jumped from the ship's side on to the quay, a distance of 6 or 7 ft., to get the parcel. In jumping he sprained his left ankle, and had to be removed to the Western Infirmary.