The Express.
London, England, 1851-08-25 00:00:00

BUYING COTTON " TO ARRIVE."
IMPORTANT TO BROKERS AND COMMISSION
AGENTS.

RENNIE ♦`ID A NOTIIEIt C. TiOLDERNEA'i.

This was a special jury cause tried at the Liverpool
assizes on Saturday in which the plaintiffs were Messrs,
Rennie, Cisme*, and Co., merchants and commission agents
of Liverpool and Monthly, and the defendant was Mr.
'Thomism Hunter llolderhess, also a merchant of Liverpool,
and senior partner of the fins of Hulderneas and Chilton.
The action was brought to recover the sum of 4901., being,
as was alleged. the amount of loss sustained by the sale of
217 bales of Surat cotton sold to the defendant, but which
he had failed to receive and pay for according to contract.
Mr. Atherton, Q.C., and Mr. Cowling, were for the plain-
tiffs and Mr. Knowles (Attorney-General), with whom
was Mr. Crompton, for the defendant.
The statement made by the counsel for the plaintiffs was
as follows :—Mr. George Rennie, one of the plaintiff*, re-
sides at Bombay, and Mr. Clowes, the other partner, con-
ducts the affairs of the Liverpool house. On the 23rd of
September last, Mr. Clown r, reined ad. ices from his part-
ner in India that a consignment of 2t17 bales of cotton
was on its way to their house in Liverpool, 217 bales having
been shipped in the Marion, and the remaining 60 in the
Fairfield. This cotton was deserihed as " Good
good, free of leaf, fine staple, and fair colour; hut
it was stated also that the quality would not be
guaranteed. Upon this Mr. Clown waited on Messrs.
Thomas and Harold Littledale, the well-known and highly-
nwpectable cotton brokers of Liverpool, to whom he gas e
directions to sell the 267 hales, upon the same written de-
scription that he had received from the house in India.
Accordingly the sale was etLeted the same day to Mr. Idol-
dvrness, the defendant, at 41,1. per lb., Messrs. Littledale
intim ding such sale to the plaintiffs by a sold note, at the
same time despatching a bought note to Mr. Itolderns'.4.
By these notes, it appeared that Messrs. Littledale bad car-
ried out the instructions they received from Mr. Clawes, the
sold note being as follows:
Rionforidstreet, Liverpool, Slit. 2i, 13;0.
" Messrs. Rennie, Closter, and Co.—We have this day
sold on your necownt, to Messes. Chilton and Ilsolderne,s,
267 bales of Surat cotton, to arrive ex Marion and Fairfield,
at 51d. per Its, to be taken from the quasi in good order, re-
jecting damaged ; quality not guaranteed.
" In ease of loss of either ship, this contract to be
nullified. _ _

....
(Signed) " Titon.ts & 11.tRoLn LITTLEDALE & Co."
On the Nth of Noyemlwr the Marion arrived, and some
time was consumed in examination of her cargo; on the
Ilth of December an invoice of t of the hales was sent
by Messrs. Littledale to the defendant, who declined to take
to them. Respecting the other 12 bales, the stipulation
was, to relieve Mr. lloblerness from taking damaged, and
these being found to be so, they were sold for 310. per lb.
On the 14th December the Fairfield arrixed, and there
would he no question about those 514 hales, as they hail been
taken and paid for. [lt will be seen hereafter, that a mo-t
extraordinary mi-take arose as to these 40 bales.] But no to the
cargo of the Marion, Mr. II °Mentes., still persisted in refusing
to take to it, on the ground that the goods wete not of the
description purchased from Mews. Littledale. After con-
siderable negotiation it was agreed that the 20.1 balesshould
be sold without prejudice and the amount retained until',
the defendant's liability should be decided. The sale took
place in April last, and the Ins,. thereupon amounted to
49W. The defendant had. pleaded, among other issuer,
that the contract wasvoitt, MR having been obtained by
fraud and misrepresentation ; in reply to which it was con-
tended for the plaintiffs that the goods were bought fur
arrival, without marks to the bales and without guirmitee
or vonrounty ; that a particular and precise description had
been given to the brokers, which they had implicitly fol-
lowed in their bought-not to the defendant ; and that this
description was exactly such us had been received by Mr.
Climes from his partner in India, who knew nothing of the
cotton except what Le hi tail from the grower. Betore the
jury would dismiss the plaintiff. on this plea of fraud, the
defendant must show that the mi,d,seription, if such ex-
isted, was known by Mr. Claws to be untrue, and that it
was not a mere innocent mistake made in ignorance. if

-
(~aid the learned counsel) there had been any other des-
cription given than that conveyed in Messrs. Littledide's
instructions, it was without the knowledge of the plaintiffs,
and could not be held to be binding on them.
Messrs. Littledale had decline. to furnish any particulars
to the plaintiffs solicitor, as they probably had also to the
defendant's ; the Cai.lenCi, elicited, titer, fors., was alto-
gether of the most reluctant character, and occasioning
more interruptions and ohjections on the part of counsel
on either side than in any case we remember for many
years.
Mr. John Tore, of the firm of T. rind 11. Littledale and
Co., was called on his subierna, hut did not answer.
Mr. Harold Littledate was next called, but that gentle- ,
man evidently knew nothing whatever of the particular
transaction which formed the sabject of the present action
beyond identifying the signature of the firiu to various
documents. Comparing some samph*, he pronounced the
cotton per Marion to lie inferior rubbish and almost with-
out staple, and added that a proposition had le en made by
Mr. Holderness, the defendant, to submit the whole slue*
lion to the decision of some disinterested party. Mr.l
Grieves, he said, was the acting manager in the cotton de-
partment of their house, to whom everything was confided,
and that gentleman was now in court.
Mr. Joseph Grieves was accordingly put in the box.
though with great reluctance on the part of the learned
counsel for the plaintiffs, Messrs. Atherton and Cowling.
who made several attempts to prove the sale by means of
the bought not,—a course to which the Attoniey-fietieral
objected; and the judge rated that it could not be admitted
as evidence without prior proof of the defendant's autho-
rity in the transaction. The witness stated that the usual
mode of notifying a transaction for goods sold "to arrive "
is by a bought and sold note ; other contracts were made
by word of mouth. The defendant had bought '26;* bales
of cotton to arrive, and he received a bought note, with de-
scription, precisely as given by the plaintiffs. The Marion
arrived in November' and an invoice was sent to Mr.
liolderness as soon as the goods were warehoused ; Lot that
gentleman refused to accept them, on the ground of their
being so inferior as to be unmereliantable. The Fairfield
arrived in December; her 10 hales were landed, and put
into warehouse, pending the decision as to the Marion',
cargo. Those 50 bales had never been accepted by Mr.
Holderneea, nor were they sold even now. [lt Diu. ap-
peared, to the astonishment of every one in court, that the
plaintiffs had altogether lost sight of the value of these .50
bales, for the amount of which they had given the defend-
ant credit in their declaration.] Had the 205 bales
been sold soon after Mr. Holdemess refused to re-
ales them the loss would not have exceeded
M. There is a great distinction between merchants'
eatton and native cotton; the former is generally selected and
fidpped by a merchant ou his own account, the latter is very
ascertain, and never obtains so high a price for arrival.
Messrs. Littledule had refused to have anything to do with
sales of cotton fur arrival, but knowing Idr. Reside to be
resitting in India, and believing the cargo to Ile his own se-
h etiun, they sold it to the deft ndant under that impression.
Had they known or thought it sets native cotton they
would nut have sold it. Mr. Clowes slid not say, certainly,
that it was merchants' cotton, but the price he fixed was
such as to induce witness to come to that conclusion, as
native cotton would not have produced newly so high a
rate. When Mr. Ilolderness asked what the cotton was,
before he purchased it, witness told him be believed it was
obi pest by Mr. Rennie, and that it would answer the de.
amiptiun given of it by Mr. Clowes. When the cotton a-
sked, and defendant saw that it was the most inferior de-
oseiption received from Bombay, and not the " good good,
NA
lee staple" set forth in Mr. Clowes's written instruc-
tions, lie rejected it at once, and proposed to sell it imme-
diately. Surat cotton, strictly Ipeukiug, means that which
is grown in the district of Surat only ; but ordinarily speak-
ing, in Liverpool though not in London, all the cotton that
assnes from Bombay is called Surat.
The Attorney-Geueral (Knowles) briefly addressed the
jury on the part of the defendaut. Ile declined to call any
witnesses, being quite content to take the case as it stood
on the plaintiffs' own showing. The facts, he said, were
kw and simple. The defendant had been induced to buy
the cargo on the misrepresentation that it was merchants'
sad not native cotton ; and though he repudiated the con-
tract immediately upon discovering the worthless nature of
the article, it was too important a case, in point of prin-
ciple, for the defendant to submit to the imputation that he
had neglected to perform his contract. Mr. Grieves, in
effecting the sale, had conveyed the notion that it was cot-
ton shipped by Mr. Rennie, and there would be an end of
all confidence hereafter if persons who employ a broker arc
not to be bound by the misrepresentations they make to
misguide purchasers for the purpose of obtaining n better
lie thought he need not advert to the question of
es,
believing that the jury must be altogether in ,
anew of the case set up on the part of the defendant ; but
lest that should happen to form a portion of their delibera-
, thaw, he would remind them that the total loss which could
possibly have arises, had the cotton been sold when the de-
fendant required it, would have been less than 150/. Hav-
ing proved that the goods were not such as had been de-
scribed, he submitted that he had succeeded in establishing
his case, and confidently relied on the verdict being for the
defendant.
Mr. dustier Williams put the ease to the jury in a brief
review of the pleadings and evidence. On the plea of
fraud, he laid it down that although Mr. llolderness might
have bought the cotton under the impression that it had
been shipped by Mr. Rennie, and although Mr. Grieves
acting for Mimes. Littledale in the sale, might have beer;
himself under a similar impression, the defendant was
bound to show that Mr. Clowes, one of the plaintiffs, was
aware of the misrepresentation, and suffered Mr. Grieves
to act on it in order to obtain a better price for the cargo.
They must have powerful evidence before imputing
fraud to the plaintiffs ; whose case was that Mr. Rennie had
sent a certain description of cotton to his partner here,
that this partner had given it to the brokers, and
the goods had been purchased, for arrival at some future
time, on the strength of that description. Before they con-
victed the plaintiffs of fraud, the jury must be satisfied that
Mr. Clarice knew the description to be false ; but if they
were not satisfied that this plea was made out, they had
ample data for the assessment of damages.
At twenty minutes to five the jury retired to consider
their verdict, but at a little after seven, and again at nine,
they sent to ask if they could not be discharged, as there
was no likelihood of their coming to an agreement. The
prothonotary, however (the learned judge having retired to
his lodgings, with Mr. Baron Platt, at six o'clock), in-
formed them that they must remain until they were unani-
mous in their verdict. This ultimatum seemed to have
the effect of extracting a decilitres at all events ; accordingly,
shortly before ten o'clock. having been locked up more then
five hours, the jury returned. into court, finding a verdict
for the plaintiff es 7.4., and costs 40s.
One of the jury was particularly anxious to make a verbal
rider to the verdict, but in his lordship's absence the officer