The Stourbridge Observer, Cradley Heath, Halesowen & District Chronicle.
Stourbridge, West Midlands, England, 1872-06-22 00:00:00

AN IMPORTANT CASE.

In the Court of Error, in the Exchequer Chamber, the cause
of "kappa a. Road has been heard, and was a case of con-
siderable intereet to merchants and to brokers, aud, indeed,
it directly, to the great be dy of the community as consumers,
for it wia an action by a merchant against a lecher for
giving I is honest opinion as between the merchant anti the
buyer, as to the epiality of the goods offered to the buyer
under the contract. The partiea, buyer nod seller, having, it
should teem, confidence In the broker, had agreed to be
bound by his opinion ; he gave his honest opinion that thy
goods ware not of lair quality, anti the seller, disputing the
correctnoss of his opinion, sited him lor allege ii error in
giving it ; but the Court, it will be seen, held that no such
, action was maintainable.
The cme hail aiisen thus i—ln Oeteber, 1869, the
plaiatiff entered into a contract through one. William
Leash, a fsult broker, for the purchase of two pare.le,
of 500 tons etch, of black Smyrna raisins, from Messrs.
Baerys, a firm of dealer,: in the fruit trade at Smyrna
and Liverpead. Afterwards, on the 26th of October,
the plaintiff authorized and instructed the defendant,
as broker, to sell 500 tons of black Smyrna raisins for
him, and the defendant accivilingly did so, and passed
to the plaintiff a contract in these tends :
'Sell by or..er and for account of Mr. D. Palma. To my
principal Messrs Ranson and ntin.—To arrive—SA) tons black
Smyrna raisins, leen growth, fair average qualil y, in opinion
of tielli.•g bitter. To be delivered in Loudon at Us. per
est."
In December the raisins began to arrive, and the
plaintiff emit the defendant an order to inspect the
raisins under the contract. He did so, and on the lich
of beeember he wrote :
"I have sarefally inspected the buts black raisin en.
Fenton. lam sorry to titcl I flout reject them, as they are
not fair average quality of 1115 growth."

Thil defendant inspected the ether portions of the
raisins, end gave similar certificates rejecting them as
"not of fair average quality of the growth of 1569."
The purchaser rejected the raisins. The effect of this
was that there was no sale, and the broker lost his
commission. The seller, .however, sued the broker.
th trial before the Lord I. hlef Justice of t,

Common Please great deal of evidence was given on
the part of the plairtiff to show that the enirdee of the
broker was wrong, and two points were taken ou his
part—that the term "fear average epedity ' in the
contract meant fair average litiality with referei,ce to
the growth of the year ILCiI, which was an inferior
growth, and also that the broker Was liable to lae sued
for an error in judgment. The Lord Chief Justice
thought otherwiee, and held that the broker was not
liable to an action provided he acted honestly and
base! fide. And on this latter ground the Court of
Common Pleas gave judgment hie the defendant, the
broker. The plaintiff, his employer, appealed from
this judgment.
Sir J. Karnlake, Sir G. Honymen, and Mr. Watkin
Widiams were for the plaintiff, the appellant ; Mr.
Q.C., mei Mr. Murphy were fur the de-
fendant.
It was agreed that the great point in the case was
whether it was a queetion of skill or of honesty—i. e.,
whether the broker was liable for want of due core or
skill, or error of judgment ; and that was the main
point argued.
Sir 3. Kerelake argued for the merchant, the plain-
tiff, that the broker woe liable for error in judgment,
as showing want of skill ha the discharge of his duty.
Mr. Justice Blackburn pointed out that here the
buyer was to take the judgment of the breker, though
he was employed by the seller, so that he was to act
for both part ie s.
Sir J. Kerslake said that, no doubt, was the great
point in the case, but still he urged that this did not
make the broker an arbitrator, so as to exonerate him
from the duty of bringing due care and skill to the per-
k)] tnance of his duty to his employer.
The Lord Chief Baron observed that here the broker
was not paid ler his inspection, and would get no com-
mission, except in case the sale was completed, which
it was not, in consequence of his adverse opinion as to
the quality of the raisins. So that he advised against
his own interest, and, as the case turned out, acted
gratuitously.
Sir J. Karelake replied that the broker in case of
sale would get his commission, and that would be a
remuneration for the whole of his duty.
The Lord Chief Baron said the question was, what
was the duty? In point of fact, the broker undertook
—in terms—to do nothing at all. The question was,
what was the nature of the undertaking implied? If
it was merely to express his opinion, he had done so.
The plaintiff, in order to sustain the action, must go
further than to show that the broker undertook to give
his opinion on an inspection of the raisins. It was
one thing to do that, aucl another thing to say that he
undertook to examine the raisins with reference to the
growth of other years or of is particular year in order
to qualify himself for giving an opinion with reference
to the growth of those years.
Mr. Justice Lush : You asked him to give his
(-pinion, and he has done so. You complain of his not
having qualified himself for giving an opinion.
The Lord Chief Baron : If you choose to ask a cer-
tain person to eive his opinion you must take it.
Baron Martin Both parties knew Mr. Rose, and
were content to take his opinion. They took him "for
bitter, for worse."
The Lord Chief Baron : There is no undertaking on
his part that he possesses any particular degree of
knowledge or skill in the subject-matter.
Baron Martin: You agreed to take his opinion,
winch now you want to upset by the opinions of other
persons.
Mr. Justice BLekburn Want of skill is very dif-
ferent from want of attention or proper care. If the
broker had given his opinion without looking at the
raisins, he might be liable; but it is quite otherwise as
to any particular degree of skill.
The Lord Chief Baron: There is no undertaking as
to skill at all. All he undertakes to do is to inspect
and give his opinion, and he has done so. Ile Was not
pail even for that, and certainly for nothing more.
After fully hearing Sir J. Kerslake for the plain-
tiff,
The Court, without calling on the counsel for the
other site, gave judgment in favour of the brisker.
The Li .rd Chief Baron odd the question was whether
the broker bad undertaken not only to use due care
and attention and give an honest opinion, but also
to exercise any particular degree of skill, and the
Court thought that there was no such undertaking en
the part of the broker. The brokerbad only undertaken
to do all that was necessary lo enable himself to give
a faie and hone-t opinion. as to exaenine the raisins and
form an honest judgment. The broker was not bound
to ascertain all about the growths of particular years,
and how far the commodity in question was equal to
the quality of an inferior growth. There was no
umlertakiug by an soltitrator that he possessed any
particular degree of skill or ler °wieder. So in the case
if a broker, slue, yor, or other person employed by the
parties to give his opinion, there was no liability to
3,,t:isu if he rave an honest pillion.
Baron Martin was of the same opinion. The parties
had selected the selling breker to examine the goods
and give his opinien, and if he acted honestly he was
not liable to action. Otherwise the parties would have
he case decided by the opinion of other persons, quite
contrary to their intention.
Mr. Justice Blackburn cenettneel. No doubt, he
sail, a broker in acting as is brisker, undertook that
he hal skill in the proper business of a broker, but
this was no necessary part of his duty as a broker, and
he was not liable to action, having given his honest
opinion and formed the best judgment he could. It
wmild he perilous to a broker in such a position if he
were liable to action.
Mr. Justice Mellor also agreed that there was no
liability to action in such a cage, and it would be most
mischievous if there was. The parties knew Mr.
Nese, and intended to take his opinion, and he had
given it honestly, and was not liable to action.
Mr. Justice Lush likewise agreed.
Judgment for the defendant, the broker.