Publisher's Synopsis
Excerpt from Leading Cases in the Commercial Law of England and Scotland, Vol. 2: Selected and Arranged in Systematic Order, With Notes; Contract of Sale
The said 10 tons of oil at the time of his purchase were part of 40 tons of oil lying in one of the cisterns in the oil house at Liverpool, the key of which cistern was in the custody of the other defendants, Dutton and Bancroft, who had before that time purchased from J. R. And J. Freme, of Liverpool, merchants, the said 40 tons of oil in the same cistern; and upon such purchase, received from the Fremes the key of the cistern. Afterwards Dutton and Bancroft sold 10 of the 40 tons they had so bought (being the 10 tons in question) to the defendants, the Frosts, who sold the same in the manner before stated to Townsend. On the 7th of February, the day on which Townsend bought the 10 tons of oil, he received from the defendants, Frosts, an order on Dutton and Bancroft, who held the key of such cistern, they having other interest therein as aforesaid, to deliver to him, Townsend, the said 10 tons of oil, a copy of which is as follows Messrs. Dutton and Bancroft, please to deliver the bearer, Mr. John Townsend, 10 tons Greenland whale oil, we purchased from you 8th Nov. Last. (signed) J. And L. Frost. The order was taken to Dutton and Bancroft *by Town send, and accepted by them upon the face of the order as follows 1809. Accepted, 14th Feb. Durrou and Baueaorr. Townsend, according to the terms of the bill of parcels, namely, on the 14th of February, 1809, gave to the defendants, Frosts, his acceptance for the amount of the oil, payable four months after date; but which acceptance has not been paid. Townsend never demanded the oil from Dutton and Bancroft, who had the custody of it. The oil was not subject to any rent; the original importer having paid the rent for twelve months, and sold it rent free for that time, which was not expired at Townsend's bankruptcy. On the 23d of May, 1809, about three months after the purchase of the 10 tons of oil, a commission of bankrupt issued against Townsend, under which he was duly declared a bankrupt, and the plaintiffs appointed his assignees. At the time of the purchase, and also at the time of Townsend's being declared a bankrupt, the oil was lying in the cistern mixed with other oil in the same and some time afterwards the defendants refused to deliver the same to the plaintiffs, notwithstanding a demand was made for the same by the assignees, and a tender of any charges due in respect thereof. When the whole of the oil lying in any of the cisterns in the oil house is sold to one person, the purchaser re ceives the key of the cistern; but when a small parcel is sold the key remains with the original owner; and the purchaser is charged, in pro portion to the quantity of oil sold, with rent for the same, until delivered out of the'oil house; unless such rent be paid by the original importer, as was the fact in the present case. If the plaintiffs were entitled to recover, the verdict was to stand: if not, a nonsuit was to be entered.
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