Cullen, Allen & Company v Barclay

• Jurisdiction: Ireland
• Judgment Date: 05 March 1881
• Date: 05 March 1881
• Court: Chancery Division (Ireland)

Appeal.

Before SULLIVAN, M. R., DEASY and FITZ GIBBON, L.JJ.

CULLEN, ALLEN & CO.

and

BARCLAY.

Severin v. KeppellENR 4 Esp. 156.

Ross v. JohnsonENR 5 Burr. 2825.

Clements v. FlightENR 16 M. & W. 42.

Gledstane v. HewittENR 1 Cr. & J. 565.

Jones v. DowleENR 9 M. & W. 19.

Colegrave v. Dias Santos 2 B. & Cr. 76.

Gledstane v. HewittENR 1 Cr. & J. 570.

Broadbent v. Ledward 11 A. & E. 209.

Clossman v. WhiteENR 7 C. B. 43.

Severin v. KeppellENR 4 Esp. 157.

Gledstane v. Hewitt 1 Cr. & Jer. 565.

Detinue Bailment Demand.

Appeal. CULLEN, ALLEN & CO. v. BARCLAY (1). 1881. Detinue-Bailment-.Demand. Jan. 28, 31. March 5. An action of detinue does not lie against a bailee of goods until demand made by the bailor after the determination of the bailment and before action brought. APPEAL from an order of the Common Pleas Division dischargÂÂing a conditional order obtained by the Defendant, pursuant to leave reserved, to change the verdict had for the Plaintiffs into a verdict for the Defendant. The action was brought by the Plaintiffs, potato merchants in Belfast, against the Defendant, a potato salesman in Manchester, to recover damages for breach of contracts for the delivery of potaÂÂtoes, and for the return of certain sacks, or their value. The stateÂÂment of claim was as follows : 1. The Defendant contracted and agreed with the Plaintiffs for the sale and delivery to them of fifty tons of Scotch champion potatoes, at the price of 5 17s. 6d. per ton. 2. The Defendant also contracted and agreed with the PlainÂÂtiffs for the sale and delivery to them of one other lot of fifty tons of Scotch champion potatoes at the price of 6 5s. per ton. 3. Both the said contracts were contained in various letters which passed between the parties between the 31st day of October, 1879, and the 15th day of March, 1880. 4. All conditions were fulfilled, and all things happened and all times elapsed necessary to entitle the Defendant to the delivery of said several lots of potatoes ; yet the Defendant did not deliver the same, or any part thereof, whereby the Plaintiffs were deprived of the profits which would have accrued to them by the delivery of the same. 5. The Plaintiffs are entitled to the possession of a certain lot of sacks, four hundred and sixty in number. (1) Before Sul:laves, M. R., DEASY and FITZ GIBBON, L.JJ. VoL. X.] Q. B., C. P., & BK. DIVISIONS. 225 6. The Defendant unlawfully detains the said four hundred Appeal. and sixty sacks from the Plaintiffs, whereby the Plaintiffs have 1881. been deprived of same. CULLEN V. The Plaintiffs claim :- BARCLAY. 1st. 400 damages for the non-delivery of said several lots of potatoes. 2ndly. The return of said four hundred and sixty sacks. 3rdly. In default of such return, the sum of 17 5s., the value of said sacks. - 4thly. The costs of this action. On the counts in contract no question arose in the Appeal Court or in the Court below, as the jury found as to one of the alleged contracts that it had never been entered into, and as to the other that the sum lodged in Court by the Defendant was sufR-, cient to satisfy any damages caused by breach of it. To the count' in detinue the Defendant pleaded a denial of the detention, and. further, that since the commencement of the action the sacks were returned to and received by the Plaintiffs. The evidence showed that, pursuant to Defendant's directions, six hundred sacks had been sent forward by the Plaintiffs to the Defendant, in which to deliver the potatoes contracted to be delivered, and that, on failure of the Defendant to complete his contract, four hundred and sixty bags remained in his hands, and none of these were sent back before. action brought. The Defendant, however, alleged that up to the time they were tendered, no demand of the bags had been made from him. The Defendant in his evidence stated that no demand was ever made upon him for the bags; that he never heard of any demand until the writ was issued, and that the bags were then at once tendered to the Plaintiffs. In addition to the oral evidence,, the Plaintiffs' Counsel relied on the hearing of the appeal on the correspondence between the parties in relation to the contract, as evidence in support of the count in detinue, and contended that there could be extracted from it a demand for the return of the sacks. It is unnecessary to set out the correspondence, as the Appeal Court came to the conclusion that, as a matter of fact, neither from it nor otherwise did it appear that there had been any demand of the bags before action brought. When the. Defendant's case had closed, the counsel for the Defendant asked for a direction LAW REPORTS (IRELAND). [L. R. I. on the count in detinue, on the grounds hereinafter stated. Dowse, B., who tried the case, declined to give a direction, and left the following, amongst other, questions to the jury :-" Does the DeÂÂfendant detain the sacks ?" The jury found as to the detention that the Defendant detained the sacks, and the Plaintiffs were entitled to 8 12s. 6d. and the return of the bags, or to 17 5s. if they were not...