111 MOORE IND. APP., 448 COWIE w. REMFRY [18461
[448] JOHN COWIE and Others,-AppeZZamt~; WILLIAM REMFRY and Others,-
C.
Respondents” [Feb. 10, 11, 18461.
On Appeal f rom the SupTenLe Court of Judicature a t Calcutta.
aiid Co. and H. and Co. were nierchants a t Calcutta. H. and Co. sold to C .
and Co. a large quantity of indigo, through the medium of a broker, who
drew up a sold note addressed to H. and Co., and submitted it to H. for
his approval, when H. having objected to a particular word remaining, the
broker took the sold note to C . , and informed him of H.’s objection. C .
struck his pen through the word objected ta by H., placing his initials over
that erasure, and returned it to the broker, who thereupon delivered it, so
altered, to H. and Co. The broker delivered to C . and Co., on the following
day, a bought note, which differed in certain material terms from the sold
note. In an action brought by H. and Co. against C . and Co. for non-per-
formance of the contract contained in the sold note, the Supreme Court at
Calcutta was of opinion, that the sold note alone formed the contract, and
found f o r the Plaintiffs. Upon appeal, held by the Judicial Committee,
reversing such finding, that the transaction was one of bought and sold
notes, and that the circumstances attending C.’s alteration of the sold note
and affixing his initials, were not sufficient to make that note, alone, a
binding contract; and that there being a material variation in the terms
of the bought note with the sold note, they together did not constitute a
binding contract.
This was an action brought in the Supreme Court a t Calcutta, to recover
damages for the non-perform-[449]-ance of a contract by which the Appellants (the
Defendants) engaged to purchase of the Respondents (the Plaintiffs) a certain
quantity of indigo.
The Appellants and Respondents both constituted mercantile houses a t Calcutta.
The contract was made through the instrumentality of a broker of the name of
Holmes, who then carried on business in partnership a t Calcutta.
The breach of the contract consisted in the Appellants’ refusal to receive and
pay for 147 chests of indigo, being par t of a much larger parcel delivered to the
Appellants by the Respondents, and which the Appellants afterwards returned, and
refused to receive o r pay for, upon the ground that by the specific terms of the
contract, they were authorised to reject these 147 chests, on account of the inferior
quality of the indigo contained in them. The entire parcel consisted of 1166
chests.
The declaration stated, that the Defendants and one William Ainslie, who was
then without the jurisdiction of the Supreme Court, bargained for and bought of
the Plaintiffs and Robert John Dring in his lifetime, and the Plaintiffs and Dring
sold to the Defendants and Ainslie, a large quantity of indigo, being the whole
produce of the season’s indigo of two factories and six-sixteenths of the produce of
the season’s indigo of another factory, a t the rate or price of 205 Company’s rupees
per factory maund for each and every maund thereof, free of brokerage, with the
usual allowance on rejections, viz. on broken, dusts, washings, and on stuff inferior
to the run of the parcels; delivery to be taken as the indigo should arrive, and to
be paid for by the Defendants and [450] Ainslie to the Plaintiffs and Dring on
delivery thereof; and that the Plaintiffs and Dring should have the option of giving
the rejections at the price they might be valued at by one Mr. A. Lacroix, or to
withdraw them; and that in consideration that the Plaintiffs and Dring would
deliver the said indigo, Defendants and Ainslie promised the Plaintiffs and Dring,
to take delivery of and accept the said indigo, and pay them for the same on
deliverv. It then averred that the produce of the two factories and six-sixteenths
* Present : Members of the Judicial Committee,-The Lord President, (the Duke
of Buccleugh,) Lord Broughani, the Vice-chancellor Knight Bruce, the Right Hon.
Dr. Lushington, and the Right Hon. T. Pemberton Leigh.
-________. ._
Privy Councillors,-Assessors,-Sir E. H. East, Bart., and Sir E. Ryan.
570
COFVIE ?'. R ~ M F ~ ~ [I8461 111 BIOORE IND. APP., 461
of the third factory amounted to 4361 maunds and 11 chittahs, and that Plaintiffs
and Dring were ready aiid willing to deliver, and tendered and offered to deliver,
to the Defendants and Ainslie the said indigo as it arrived, and requested the
Defendants and Ainslie to take delivery of, and accept and pay for, the same, and that
Defendants and Ainslie accepted and paid for part of the said indigo ; and assigned
for breach, tha t they would not accept or pay for the residue, and alleged special
damage.
To this declaration the Defendants pleaded three pleas :-First, that they did
not promise as alleged; Secondly, that Plaintiffs and Dring did not tender and
oEer to deliver the residue of the indigo to tlie Defer~dants and Ainslie as alleged ;
Thirdly, tha t the said residue consisted of broken, dust, washings, and stuff inferior
to the ru? of the parcels, and tha t Defendants and Ainslie, in pursuance of, and
according to, the terms of the contract, rejected the said residue. That the residue
so rejected was afterwards valued by the said Lacroix at the price of 154 ~ o ~ p a n y ' s
rupees per factory maund; that the Defendants and Ainslie were always ready
and willing to accept and pay for E4511 such residue, according to the valuation of
Lacrois, of which the Pla~ntiffs and Dring had notice ; but tha t the Plaint~iffs and
Dring would not deliver the residue a t that price 01. valuation, but withdrew tlie
same.
The P ~ a i n t i ~ s took issue on all these pleas, and hereupon issue was joined.
On the 1st of July 1812, and before the t r ia l of these issues, a commission to
examine witnesses in London, on behalf of the Plaintiffs, and of the Defendants,
was obtained.
Vpon the return of the evidence taken under the commission, the cause came
on for trial, before S i r Lawrence Peel. Chief Justice, and Sir John Peter Grant and
Si r Henry Wilmot Seton, Justices of the Supreme Gourt, on the 22nd and 23rd of
November 1843.
It was proved, on behalf of the Plaintiffs, that Kessrs. Whyte: Holnlcs and Co.
were brokers a t Calcutta, and that that finn was employed by both Plrtintiffs and
Defendants, in negotiating the sale and purchase of the indigo, in the dec lara t io~
me~t ioned ; and in order to eu ta~ l i s l~ the contract declared upon, the Plaintiffs put
in evidence the following letter written bp I-IoImes, one of the partners in the firm
of Whyte, Holmes and Co., dated the 19th November 1840, addressed to the Plaintiffs,
and ~ u r p o r t ~ n g to be the sold note of the indigo in question:-
'' Calcutta, 19th Nov. 1840,
" Messrs. Hamilton and Co.
'' Dear Sirs,-We havet this day sold for you to Messrs. Colvin, Ainslie, Cowie
and Co., the whole E4523 produce of this season's indigo of tlie Big and Little Union,
in Rishnagur, and 6-16th~ of the Mulnauth factory, on the following terms, viz. :--
Quantit?? . . . About 4500 hlds
Price . . . . . Two hundred and five CO's rupees, per factory maund, free of
brokerage, with the usual allowance on rejections, viz. on
broken, dust, washings, and on stuff inferior to the a;ud run
of the parcel.
You
are to have the option of giving the rejections at the price
they are valued a t by Mr. A. Lacroix, or to withdraw them.
'' Whyte, Holmes and Co., Brokers."
N.C.
Delivery . . . To be taken as it arrives, and to be paid for on delivery.
'' We remain, dear Sirs, yours faithfully,
This letter was proved to have been delivered by Holmes to the Plaintiff,
~-0ollaston. And it was further proved, that a t the time the letter was delivered to
Woollaston, it contained the word " usual ; " that Woollaston objected to the word
" usual " remaining in, and required that word to be struck out. That, thereupon,
Hollnes took the letter to the ~ e f e n d a n t , Henry Cowie, who struck out the vord
" usual " with his pen, and put his initials over it, for the purpose of vouching the
expunction of tha t word, and that Holmes afterwards gave the letter to T'Voollaston,
as the sale-note of the contract.
The Defendants objected to this letter being received as evidence of the contract, on
51 1
111 MOORE IND. APP., 453 COWIE v. HEMFRP [1846]
the ground, that it was [453] not in itself a contract : that it was in its form a sold
note, forniing par t only of a contract, and that to make it a contract, a corresponding
bought note ought to be produced. That further, as a contract i t was imperfect
and not binding, under the Statute of Frauds, for want of the signature of the
Defendants. The Supreme Court, however, received i t as evidence, and gave leave
t o the Defendants to move for a non-suit.
It was proved by the Defendants, as par t of their case, that on the 20th of
November 1840, Messrs. Whyte, Holmes and Co. wrote, and sent to the Defendants,
a letter of corresponding date with the sold note, and purporting to be the bought
note of the indigo mentioned, which %-as as follows:-
“ Calcutta, 19th Now. 1840.
‘‘ Messrs. Colvin, Ainslie, Cowie and Co.
‘‘ Dear sirs,-We have this day purchased on your a/c from Messrs. Hamilton
and Co. about 4500 maunds of indigo, being the present season’s produce of the
Big and Little Union in Kishnagur, & 6-16ths of the Mulnauth concern, on the
following ternis, viz.
F. Md. 8. 1 per cent brokge from you, rejecting broken, Price, Co.’s Rs. 205
Delivery, To be taken as it arrives, & to be paid for OD being delivered.
“ Mr. Lacrois of our establishment is to examine the indigo, & state any that he
considers to be inferior, 85 also to value it, 85 the other rejections, Messrs. Hamilton
& Co. reserving for themselves the option of giving the rejections or not, as they may
choose.
dust, washings, & any thing that is inferior to the run of the parcels.
“We remain, dear sirs, yrs faitlify,
[454] It was further proved, that the deliveries of indigo under the contract
made by Whyte, Holmes and Co. commenced on the 30th November 1840, and ended
on the 14th January 1841, and consisted of 1151 chests, or 4361 factory maunds, and
il cliittacks, and that the whole of them were inspected and approved or rejected
by Lacroix, the person named in the bought and sold notes, who attended all the
deliveries, and made his rejections mostly in the presence of a Mr. Savi, one of the
manufacturers of a large portion of the indigo, and that Lacroix valued all the
rejected chests, which were afterwards accepted by the Defendants. That in the
month of December 1540, the Defendants shipped for London 1012 of the chests
of indigo so bought by them of the Plaintiffs, and paid for as aforesaid, and after-
wards sold the same by auction at the indigo sales in London in July 1841. That in
March 1841, the Plaintiffs applied to Defendants, throsgh Messrs. Whyte, Holmes
and Co., to obtain the Defendants’ consent to have the rejected chests of indigo, then
in the bonded warehouse, sold by public auction, but the Defendants declined to
interfere. That in May 1841, the Plaintiffs obtained from the bonded warehouse
at Calcutta 147 chests of indigo, which included the whole number of chests rejected
by the Defendants, and 10 chests beyond. That in June 1841, the Plaintiffs, by
Messrs. Holmes, Faudon and Co., their brokers, sold the whole of the 147 chests
received by them from the bonded warehouse, by public auction in Calcutta, a t
prices considerably less than the valuation of chests rejected by Lacrois, for being
inferior, and which the Plaintiffs delivered a t such valuation, without observation
or objection. That between the 29th of November 1841, and 2nd of [455] February
1822, 64 chests of the indigo rejected by the Defendants, and part of the 132 chests
which had been deposited in the bonded warehouse in Calcutta by the Defendants,
and sold by auction in Calcutta by the Plaintiffs in June 1841, as aforesaid, arrived
in London, and were put up for dale by auction in London in April 1842. and 57
of the said chests were then sold, a t prices averaging one-third less than the sale
price of the 1012 chests. That the 64 chests so sold in April 1842, were compared
and examined with the 1012 chests of indigo sold in July 1841, the rejected chests
were contrasted with the accepted chests of the corresponding marks and parcels,
and the 1012 were found to be of very superior qualitp, and the 64 cliests were
found to be very far inferior to the general run of the 1012 chests and to the accepted
chests of the corresponding marks, and 57 of the said chests were then sold, a t prices
averaging one-third less than the sale price of the 1012 chests.
The evidence given respecting the custom of merchants a t Calcutta to deliver
“ Whyte, Holmes & CO.”
572
COWIE ?’. REMFRT [I8461 I11 MOORE IND. APP., 466
bought and sold notes, was conflicting ; but the Court, upon tlie evidence in general,
found a verdict for the Plaintiffs, for the difference of amount between the contract
pricc of tlie indigo, and that at wliich the Plaintiffs sold the 132 chests, tlirougli
Messrs Holnies, Faudon and Co. in June 1841, and directed that the amount bhould
be calculated by the prothonotary. The prothonotary calculated the amount of the
damages, and assessed them a t Rs. 26,035. 5. 11.
Upon the 26th of January 1844, the Defendants obtained from the Suprenie
Court, a rule to show cause why a judgment of nonsuit should not be entered, or why
a verdict should not be entered f o r the Defen-[456]-dauts, or why a new trial sllould
not be had, on the grounds, that the contract declared upon was not duly signed
according to the Statute of Frauds, and that there was no written contract, and tliat
the verdict was against evidence, or the weight of evidence.
The Plaintiffs showed cause against the rule, and the Court took time to consider
their judgiiieiit, and 011 the 5th Marcli 1844, Sir Lawrence Peel delivered judgmeiit,
that the Defendant’s rule of the 26th of January 1844, should be discharged, nitli
costs. This judgment proceeded on the ground that the sold note, put in by the
Plamtiffs, alone evidenced the contract between the parties ; and that the Plaintiffs,
having proved the contract declared on, and the delivery of the whole quantity coil-
tracted for, it lay upon the Defendants to show, that they had rightly exercised their
power of rejection, which the Court, upon the evidence in the cause, was not satis-
fied of, aiid was, therefore, of opinion that the Defendants were bound to pay the
contract price for the indigo rejected.
From this verdict and judgment of the Supreme Court, the present Appeal was
The Solicitor-General (Sir F. Kelly), Mr. Hill, Q.C., and Sir John Bayley, for
the Appellants.-This was a contract by bought and sold notes, according to the usual
mode of mercantile transactions a t Calcutta ; and it cannot be disputed that, if there
be any variation in any material part, between the bought and sold notes, the
contract is void and gone. P’horntoib
v. Kempster (5 Taunt. 786). Short v.
Sparkman ( 2 Barn. and Adol. 962). Wawes v. Foster (1 Moody and Rob. 368).
Smith’s Mercantile Law, 3 Edit. p. 455. The
sold note is a document which expresses only a sale; i t cannot, therefore, even
though signed by the intended buyer and seller, amount in law to a contract of sale
and purchase, su as to satisfy the Statute of Frauds (29 Car. II., cap. 3, sec. 17), the
contract required by that Act being a mutual agreement, binding on, and enforce-
able against, both partie#, which a sold note is not. In this case, the sold note
differs in many particulars from the bought note. But assuming the contract to be
contained in the sold note alone, the note proved by the Plaintiffs was altered 111
a material particular, after it had been signed by the brokers, and was not, subse-
quent to such alteration, signed by the Respondents or any agent lawfully authorised
on their behalf. The insertion of the initials H. C. above the erasure of the word
“ usual ” in the note was not intended to operate, and could not operate, further than
as an authentication of the erasure : it did not in law amount to a signature efficient
to bind the Appellants to the performance of the contract, so as to satisfy tlie
Statute of Frauds. Allen v. Bennrtt
(3 Taunt. 109). Stokes v. .Moon (1 Cox, 219). The Court below thought that this
case fell within the principle of Rowe v. Osboi-ne (1 Stark. Xisi I’VL~LS Cases, 140),
but we submit that the present is wholly different from that case. In that case there
were none of the incidents of a bought note, in the mercantile acceptance of the term ;
the contract was [468] not effected through the medium of bought and sold notes, nor
was it signed by the broker, but by the party himself ; and Lord Ellenborough was of
opinion that that was the real contract, and not the note of such contract, which
was sent by the broker to the Defendant, and which varied from the contract
itself.-[Lord Rrougham: In Hawes v. Foster (1 Moody and Rob. 368), the jury
were desired to say, whether it was a bought and sold note ; so here we are a jury
as much as the Judges in the Suprenie Court were.]-It cannot be contended that,
a t tlie time the broker went to Cowie, and he struck out the word “ usual,” the trans-
action was complete; and that the necessity of a bought note was dispensed with,
by Cowie agreeing to the alteration. Suppose a draft release brought to one of
the parties to have an alteration agreed to, his signing that alteration is not the
573
brought.
Thornton v. Mieux (1 Moody and Malkin, 43).
[457] Pitts v. Beckett (13 Mee and W. 743).
There must be niutuality of contract.
Eastwood v. Kenyom (11 Add. and Ell. 438).
111 MOORE IND. UP., as COWEE v. ~~~~R~ [1846]
format~on of a contract. The mere c ~ r c ~ s t a i i c e of the name of a party being
written by himself in the body of a meniorandum of agreement for a lease, will not
const~tute a signeture within the meaning of the Statute of Frauds. %okcs v.
Moore. This must be c ~ n s ~ d e ~ . e d as a t r a n s a ~ t ~ o ~ ~ effected by a broker between other
parties, by means of bought and sold notes j and the effect of the bought note vary-
ing ~ a t e r i a ~ ~ y from the sold note, i s to render the c o i ~ ~ r a c t void. ~ o t h i n g has been
done to waive tbe effect of such variation,
Sir Thomas Wilds, and Mr. Charles uller, for the ~ e ~ p o n d e n ~ s . -The quest. ' - 2 t
is, whether this sold note, c o n t a ~ n ~ n g all the terms of the contract of the parties,
i s within the meaning of the Statute of frauds. was not
necessary-the transaction was complete without it.-[lord Brougham : The question
is, whether this i s a t r a n s a c t i o ~ of bought and sold notes. If it i s so, the law i s clear.
Bowe v. Qsborse El Stark. N.P. 1403 was not a case of bought and sold notes.1-
This note was signed by the party sought to be h u n d . There i s no doubt
whatever that Whyte, ffolmes and Co. had a u t ~ ~ r i t y r into the c o n t r ~ t .
Rolaies tendered the note which contained the contract to offaston for his approba-
tion, but upoii his dissex~ting to the word " usual '' ~ e ~ a i n i n g , he took i t to Cowie;
and the effect of his c o ~ ~ v e r s a t ~ o n with him was, that he agreed to it, with the vord
" usual " struck out of it. Cowie drew his pen through the word, put his initials
over it, aad ~ianded it baek to Holmes to be delirered to the seller. We have, there-
fore, a paper containing the terms of the contract, signed by the party authorised
by the buyer, and delivered to the seller, with the ~ p p r o b ~ t i o n of the buyer. This
W ~ K the s i ~ ~ a t u r e of the usc chaser for all legal purpo~e$ (before the d e l ~ v e ~ y of
the bought note); if it was not so, a t the delivery, it never could be afterwards
made a contract within the Statute of Frauds. The bought note was not the means
of completing the transaction; it was not the means by which the fact of buying
was knowii to the buyer: it was not deliver^ at the time. All the evidence goes
to prove the contract ~ o ~ p l e t e ~ ~ i t ' h o u t the bought note, and it no6 being the general
custom at Calcutta, to complete ~ e r c a ~ ~ i l e traiisa.ctio~ by bought and sold notes,
there was no occasion for the bought note Bere, and the contract was a binding con-
tract wi thou~ it..
The S o l ~ c i t o r - ~ e n e ~ ~ [Sir F. Izelly], in reply.-"his is undo~btedly a case of
bought and sold notes ; [4~] the broker himself states that he had delivered both
a bought and a sold note. The contract, in such cases, i s not binding upon either
party until both a re delivered. ~ ~ ~ o ~ " q ~ ~ o q ~ v. Kempster (5 Taunt. 186. 1 Marsh.
355).-[The Eighk Hon. Dr, ~ u s ~ ~ n ~ o n referred to ~ u ~ ~ ~ ~ ~ ~ e s v. ~ ~ r ~ ~ l ~ ~ ~ (16 East.
45)].--Tha.t ease is in our favour; it goes tcr show that the nobs must c o s r ~ s p o n ~
at the time that the contract is co~np~ete.-[The Right Kan. Dr. ~ u s h i n ~ t o n : There
was parol evidence, that the seller acquiesced in the sale.]-There was no variation
of the contract on the bought and sold notes. That case only shows that the authority
might be disputed; the quest~on was, whether the seller might reject it on other
gsounds than d ~ s c r e p a ~ e y ~
The Right Hon. Dr. ~ u s l ~ i ~ ~ t ~ n august 19, 1846~.-T~ie A p p e ~ I a ~ t s and the
~espondents were twca ~ ~ r c a n t i l e firnis a t ~ a l G ~ t t a . The Appellants were the
purchasers of a large ~ua.nt i ty of indigo from the ~ e s ~ o n d e n t s , who brought an
action against them, for damages for non-~~erformance of a contract, dated the 19th
of ~ o ~ e ~ ~ ~ e r 1860.
The Supreme Court pias of opinion that the contract was solely e o n s ~ ~ ~ u t ~ d by
a note, signed by Hems. ~ - ~ ~ ~ e , Nolmes and Co., the brokers e r ~ p ~ o y e d by both
parties, thats note being dated the 19th of November 1840.
The Court being of opinion, that there had been a breach of this contract, g!ve
damages, asnessed in ~ u ~ s u a n c ~ of the contract, to the Respondents, the Plaintiffs.
The Appellants, the Defendants, contended that this sold note did not alone con-
stitute the contract, but that the contract consisted of the sold note, [4@1] and also
of the ~ ~ o ~ g ~ ~ t note, bearing the sanw date, and signed by the brokers.
The fendan ants also insisted, at the trial, that the ~ ~ a ~ n ~ ~ f f s were bound to give
in evidence the bought note as well as the sold note. The Court, however, was of
a contrary opinion, and the ~ e ~ e n d a n t s produced the bought note as par t of their
evidence.
5'14
The bought note
COWIE 2t. R E ~ F ~ Y [1846] 111 XOORE IND. APP., 462
A question arose, as to whether it was custoniary, in Calcutta, to deliver bought
and sold notes, and the Court declared, in its Judgment, that the evidence in favour
of the custom preponderated.
The questioxts for us to decide, are, what document, or documents, constitutes the
contract between the part.ies ; next, what is the construct~on of the contract : and,
lastly, whether the contract was void, or has been broken.
The facts of the transaction must be taken froin the evidence of Mr. Holmes (a
partner in the brokers’ firm), who was living in London, and exanlined under a
commission. Be states, that his firm acted as brokers; that he coiniiiunicated, as
to the purchase, with Mr. Henry Cowie, one of the firm of the Defendants : that he
wrote the sold note addressed to the Respondents; that Mr. Woollaston, one of the
~espondents, objected to the word ‘‘ usual,)’---the word *‘ usual ” occurring in this
niariner: “Two hundred and five Company’s rupees per factory maund, free of
brokerage, with the usual allowance on rejections, viz.2 on broken, dust, %I asli inp,
and on stuff inferior to the usual run of the parcel : I ’ the objection taken nas to the
word ‘‘ usual,” He says, that he stated this objeotion to Mr. Cowie, who, he thinks,
read the letter, struck through the word ‘‘ usual,” and put his initials, “ N. C.” over.
Edr. Holnies adds, that he delivered this note, so [&2] altered, to Mr. ~ ~ o ~ ~ l a s t o ~ ~ , to
bind the sale, as a contract between the parties.
Mr. Holmes, on his cross examination, states, that there was a bugl i t note as well
as a sold note. He says he delivered the bought note to the Defendants, for the
purpose of their advising their friends of the purchase; he did not deliver it as a
contract, but, subsequently to the day of the contract, for the purpose aforesaid.
He says it was not then customary, a t Calcutta, to deliver a bought iiote to the
purchaser, or a note to the seller.
Mr. Ferguson, however, a witnem of much greater experience, and whose opinion
was adopted by the Court, sitting as a jury, says, h e considered i t “ the invariable
custom, at Calcutta, to deliver bought and sold notes: it was sa in 1340. and it is
SO now.”
Then, upon the whole of this evidence, we must determine what i s the legal COD-
elusion, as M the ’ivay in which it was the intention of the parties that the contract
should be made, and whether any and what contract was made. According to the
custom ~ r e ~ a i ~ i n g a ~ ~ o n ~ t n~erchants a t Calcutta the contract should have been
by bought and sold notes, and the necessary inference is, tha t the parties intended
to contract according to this custom : but this is not all ; there is delivered to both
parties a bought and sold note, according to such custom. The actual dealing
corresponds with the usual practice. What is to be set off against thin? iiotliing but
tlie statement of Mr. Holmes, evidently a young and inexperienced person, who
deposes that he did not believe such a custom to exist, though, at the very moment he
xas, d e @to, following it. A411 tlie acts of the two parties show they were acting
in observance of the custom. Hr. ~~~oo l l a s~ [463~- ton requires the sold note to he
corrected, according to his sense of what the coiitract should be. Mr. CovPie, one *,f
the Defendants, requires a bought note to be delivered.
Looking a t all these facts, we think that if there be no other evidence, or c i i cum-
stances to the contrary, we must come to this conclusion, that the transaction is to be
considered as a contract by bought and sold notes, and to be governed by the rules
a i ~ ~ l i c ~ b l e to such a c o ~ t r ~ t . What is there in this case which militates against
such a conclusion? The fact that after the sold note had beerr shown to illr.
Woollaston, and he had objected to the word “ usual,” the same note had been S ~ O T Y I I
to Mr. Cowie, and Mr. Holmes says, he thinks, read over by him, and aftrrwards,
as he deposes, the word ‘‘ usual ” struck through, and the initials “ H. C.” of COT! le’s
name added by him.
It is contended, on the part of the Respondents, tbrzt the conclusion to be dram11
from this circumstance is, tha t Mr. Cowie, by this act, so sanctioned the sofd note,
that he and his firm were bound by all the conditions therein conta i~ed , that such
note irnInediate1~ constituted the contract between the parties, and if accepted i ) ~
the Respondents, became binding upon the Appellants, entirely abrogating, pro I t tw
uice, the customary mode of dealing by bought and sold notas, and all the legal
results arising therefrom. It may be true, that merchants dealing &lie?- se are not
bound by any customary mode of c o n ~ r a c t ~ n ~ , and that they may adopt another anti
575
111 MOORE IND. APP., 464 COWIE v. REMFRY [ 18461
a different mode of contracting, if they think fit, but we are of opinion, that the
presumption is strongly in favour of the custom, and that any alleged deviation
therefrom must be strictly proved.
Mr. [464] Cowie, as the acting
partner of his firm, conimunicates with Mr. Holmes, the broker, and they come to
some understanding as to the terms on which the indigo is to be purchased. The
custom of dealinw b bought and sold notes having been proved, i t must be presumed
that Mr. Cowie intended so to deal, till the contrary be proved.
ceiving that he understood the terms agreed upon by Mr. Cowie, embodied thein in
the sold note, which he sent to Mr. Woollaston the seller. There is neither proof
nor presuniption that Mr. Cowie saw this note before it was sent. Mr. Woollaston
returns the note through Mr. Holmes, with an objection t o the word “ usual.” Mr.
Holmes has an interview with Mr. Cowie, and tells him that he cannot finish the
transaction unless the word “ usual ” be struck out ; and so far aH it appears, it was
for this, and this only purpose, that the sold note was shown to Mr. Cowie. Mr. Holmes
thinks he read it ; assuming he did, he read it for the purpose of considering whether
he should comply with the demand made-whether he should consent to one professed
and designated alteration; he was not (whatever might be the legal consequences)
d e f a c t o required t o read it, with a view to determine whether it contained the terms
he intended to contract upon ; first of all, was it intimated to him, that by the act he
was asked t o do, he would depart from the accustomed usage, and irrevocably bind
himself and partners by that aingle note? This signature of the alteration can only
he taken to indicate his approval of, or rather his assent to, that alteration.
We are of opinion that it would be exceedingly dangerous to the safety of all
mercantile transactions, which so mainly depend upon usage, and the observance of
it, if we were to infer from a circumstance of this [465] description, that the pur-
chasers a ere bound by this sold note alone, contrary to the custom, contrary t o the
course of the transaction itself, thereby establishing a aontract by an act not in
itself purporting so to do, and of the consequences of which Mr. Cowie was not
iil’prized, and which no mercantile man could be expected to swmise.
We are of opinion that the contract was not, as held in the judgment, evidenced
by the sold note alone; but that i t was a contract by bought and sold notes, according
to the custom in use, arid to be so dealt with. We think that the established usage
of dealing in the mercantile world should be held in high respect ; the very existence
of such usage shows that in practice it has been found useful and beneficial; the
presumption is in its favour, and no departure from it is to be inferred from
doubtful circumstances, and especially not from circumstances, which, in the opinion
of mercantile men generally, would not be conceived to1 produce any such conse-
quences.
The Court below relied on the case of Rawe v. Osbomcl [l Stark. N.P. 1401.
Though this was only a decision at N i s i Prius, yet we acknowledge its weight, as
being the opinion of a niost eminent Judge (Lord Ellenborough), peculiarly con-
versant with nrercantile contracts ; but we think that case is so materially dis-
tinguishable from the present, that it is not only not directly applicable, as was
tiditritted by the Court below, but that the principle on which Lord Ellenborough
relied cannot be made applicable to the circumstances of the present case. I n Rowe
v. Osbo ixe , the note delivered to the vendor was actually signed by the purchaser ;
the note of the contract afterwards sent to the purchaser differed from it. Lord
Ellenborough held that the note signed [466] by the purahaser constituted the real
contract. The principle upon which Lord Ellenborough so ruled is not stated, but
we apprehend it must have been this, that the signature clearly evidenced the
consent of the purchaser to buy on the terms stated in the document; for that
purpose, and that purpose only, could the document have been submitted to hinl,
for his signature; and being so signed by him, the necessary and inevitable con-
clusion, in the absence of fraud, is, that he knew and approved of the terms, and
expressed such approval by his signature. The vendor having assented to those
terms, there was a complete contract between the two parties; and the very fact of
6uch a signature by a party being contrary to the custom of buying by bought and
sold notes (which are signed by the broker), showed that he relied upon himself, upon
676
Now, what was the course of this transaction?
P Y Mr. Holmes, con-‘
REG. v, EDULJEE BYRAMJEE [I 8461 111 MOORE IND. APP., 467
his own act and deed, in concluding the bargain, and not upon the broker, or on any
note to be hereafter deli$ered to him.
Here the note received no
bignature from the party; it was submitted to the party, not for the purpose of
considering i f it contained his intentions, but solely and exclusively for the purpose
of asking Mr. Cowie's consent to the removal of one word, and to that removal he
consents, and affixes his initials in approbation of that removal, and nothing else.
We cannot consider this as a proof of knowledge of contents, and consent to be bound
by the whole instrument, abandoning the usual mode of contract by bought and sold
notes. We have examined all the other authorities cited a t the Bar, but we do not
think they apply with sufficient closeness to require any further investigation.
[467] We feel bound, therefore, to differ from the Supreme Court, and the
Judgment they have pronounced, on this par t of the case. We think that this must
be considered as a tranoaction in the contemplation of the parties by bought and
bold notes, and that the contract is contained in both of the notes, and not in one.
If this be so, i t is admitted that there is a material variation between the two notes ;
and then the consequence follows, from all legal principles, that no binding contract
has been effected. To such purport is the decision of the Common Pleas in TJzoi*nton
v. Kempster (5 Taunt. 786). To use the words of Mr. Baron Parke in another case,
the parties never have contracted in writing ad idem.
For these reasons we are of opinion that the Judgment of the Court below must
be reversed, and judgment be entered for the Defendants below, the Appellants here.
I must add, however, that this is the judgment of the majority of their Lordships,
and that the Chancellor of the Duchy of Cornwall [The Right Hon. T. Pemberton
Leigh] was inclined to have taken a different view of the case.
[Mews' Dig. tit. CONTRACT, A. 2. STATUTE OF FRAUDS, b. vi., E. DISCHARGE BNU
BREACH OF CONTRAOTS, 2. Alteration; tit. SALE O F GOODS, B. STATUTE OF
FRAUDS, 2. f . S.C. 10 Jur. 789; 5 Moo. P.C. 232. See Sievewm>?it Y. Archibald,
1851, 17 Q.B. 103; Parton v. Crofts, 1864, 33 L.J. C.P. 189; Thornrpm v.
Garcliner, 1876, 1 C.P.D. 777 ; Sale of Goods Act, 1893 (56 and 57 Vict. c. 71),
s. 4; Indian Contract Act (Act ix. of 1872), ss. 7, 20, 29; Indian Transfer of
Property Act (Act iv. of 1882), s. 54. As to expression of existence of divergence
or unanimity of opinion among members of Judicial Committee, see 0. in C.
of 4th Feb., 1878, and authorities collected in Phillimore, Eccl. Law, 2nd Ed.
p. 975. See also as to Judicial Committee reversing findings of fact, Beg. v.
Edtiljee Byiamjee, 1846, 3 Moo. Ind. App. a t p. 476.1
The present case we think essentially different.
[&8] THE QUEEN, on the Prosecution of the Bombay Government, against
EDULJEE BYRAMJEE and seventeen Others * [April 4 and 8, 18461.
O n Petition from the Supreme Court of Judicature at Bombay.
The Bombay Charter of the 8th Dec. 1823, (granted in pursuance of the powers
conferred to the Crown by 4 Guo. IV., c. 71,) after providing " That in all
indictments, informations, and criminal suits and causes whatsoever, the
said Supreme Court of Judicature a t Bombay shall have the full and absolute
power and authority to allow or deny the Appeal of the party pretending to
be aggrieved," proceeds thus :-" And we do hereby also reserve to ourself,
our heirs, and successors, in our or their Privy Council, full power and
authority, upon the humble petition of any person or persons aggrieved by
* Present : Members of the Judicial Committee,-The Lord President, (the Duke
of Buccleuch), the Vice-Chancellor Wigram, the Right Hon. Dr. Lushington, and the
Right Hon. T. Pemberton Leigh.
Privy Councillors,-Assessors,-Sir E. H. East, Bart., Sir A. Johnston, and Sir
E. Ryan.
. ____
P.C. VII. 577 19