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Prussian Code, for the dismission of the cause of the plaintiff; the defendant contending, that according to the precept, Part 1, tit. 11, sect. 987 of the Prussian Code, after such delivery, all the rules of law which hold between buyers and sellers are to be observed between the contracting parties, and consequently the delivery of tares was fulfilled in the very moment of the shipment on board the vessel, sect. 128 (c) loco citato, and that at six months after the receipt of the goods, the party who ordered the goods (now to be considered as purchaser) has lost by lapse of time (d), his right of action in respect of any defect affecting the thing itself. Not only from the day of the delivery (29th April 1837) but also from the day of the accept--ance (5th June 1837) to the day of the commencement of the action (10th June 1838), more than a year had elapsed, whereby the plaintiff's right of action was extinguished.
"But eventually the defendant has alleged that the agreement of delivery on his part has been duly performed; as that is a matter which depends upon the state and condition of the tares when put on board, and not upon the state in which they arrived in London, and he is able to prove that the tares were shipped on board the vessel in that stipulated condition.
“With respect to this point he has entered upon his proofs, whereupon the status controversiæ has proceeded with an express postponement of the enquiry as to the amount of damage. Nevertheless the admittance of evidence respecting the state and condition of the tares at the time of their shipment has been suspended per decretum, at the special and concurrent request of both parties, according to which, there should previously, and in conformity with the sects. 68 and 75, tit. 10, part 1 of the General Court Instruction, for the present be decided (be a decision) only upon the preliminary objection of prescription (a)?
“The plaintiff endeavours to repel such objection, by alleging that because the transaction between the parties is an agreement of delivery, the objection of prescription (a)! must fall to the ground. For the contract for delivery is a commercial contract, as to which, in the same manner as with all other commercial contracts, the particular rule prevails :
 “That if one of the parties does not fulfil or perform his obligation, the other may, without being bound to bring an action for performance, withdraw from the contract or agreement, and claim indemnification, sect. 878, I. 11 (a)?, sect. 408, I. 5 (6) of the Prussian Code.
"From this the plaintiff infers, that he had a right to decline to receive goods which were not delivered in the stipulated state and condition, and by declaring his will and intention, to be disengaged from the contract; and that he has declared, most properly and distinctly, through his protest against the acceptance of the cargo. Now if this was regularly done on his part, and consistently with the Prussian law, there can be no idea of the goods having become his property; and if the defendant alleges the rule of law laid down in tit. II. sect. 128 (which see, supra, 78), loco cit. according to which, in contracts, the shipment of goods amounts to a delivery, it must be replied that such is the case only with contracts of purchase, but not with contracts of delivery, the difference from which appears from the different nature of both kinds
(©) “The possession of a right to rescind or abandon (eines Untersagungsrechts) is lost, if the other party has acquired the possession of the opposite right.”—“Wenn der andere sich in den Besitz des entgegenstehenden negativen Rechts,—des Rechts etwas zu thun,-gesetzt hat." Part I. tit. 7, sect. 128.
(d) Verjährung; as to which see post, pa. 78 (a).
(a)1 “Verjährung,” (which answers the purpose of the “limitation of actions” in English law) is, by the Prussian code, defined to be “an alteration in certain rights resulting, by the provisions of the law, from the non-exercise of those rights for certain fixed periods." Part I. tit. 9, sect. 500.
(a)? By sect. 878 of the 11th title of the first part of the Prussian Code, supra, 77(9), "if one party refuse the promised performance, the other may immediately abandon the contract”“ von dem Vertrage sofort zurücktreten.”
(6) By the 408th section of the fifth title of the first part of the Prussian Code, supra, 78 (a), “In agreements, the principal subject of which is a commercial transaction, the party who asserts that the other has not fulfilled the contract according to its terms, or that he is unable so to perform the contract, may thenceforth, but at his own risk, (anf seine Gefahr) abandon the contract.”
C. P. XII.-2
of agreements. The purchase has respect to a special matter or thing, and the purchaser may express his acquiescence in the quality if he has an opportunity of inspecting it; therefore the assent of both parties, with respect to the thing delivered, does not exist before the receiver has expressed his satisfaction with  the commodity. Such consent is tacitly manifested by acceptance, which assent materially differs from the delivery, as sufficiently appears from the rules on Prescription, tit. 5, ss. 343 (supra, 77) and 344 (); and therefore, where acceptance never took place, as in this case, there is no ground for contending that the period of limitation has begun to run.
“Interpreter's Remarks. [“The narrative of the facts having thus been given (as usual in the Prussian judgments), and the quotations and opinions of both mandatories (called commissary of justice in Prussia, synonymous with, and joining the functions of, solicitor, attorney, lawyer, advocate, notary,) stated, the judges now, in their sentence, enter into a special inquiry on the nature of the agreement, merely to ascertain (as they say), where the tares were to be delivered, and when the same have become the property of the plaintiff. For this reason, they have referred to certain extracts of letters, (the dates of the letters follow); and as to the nature of the agreement, they consider this indifferent, both parties having agreed that it should stand as a contract of delivery. Now, as it would be useless to repeat and re-translate into English such extracts and arguments, which would tire and absent the English lawyer or judge, the interpreter leaves that, and now enters upon the real grounds whereby the judges justify their sentence or judgment.”]
“In the case now lying before us, the agreement (sense of contract) was clearly this, that the defendant had to deliver the commodity here in Königs--berg into the vessel for account and risk of the plaintiff ; such follows, doubtless, from the correspondence between the parties as above referred to, by which the contract was settled.
“The defendant had engaged to deliver a cargo for the plaintiffs, free on board here, and the plaintiff in his letters, 31st January and 30th March, left to the defendant the choice of a vessel, thereby, indeed, recommended to him the earliest possible shipment, and dividing of the whole quantity and shipping it in small vessels, that the danger of heating be lessened; and further stated that English vessels should be preferred, without, however, restricting the arrangements to be made as to the shipment, to either of the courses intimated; therefore defendant was fully entitled to make out the invoice as he did, expressing that he had shipped the tares upon order, and for risk of the plaintiff; he left to the latter to procure the insurance, and with respect to the same, only observed that he might mind (consider of) the risk of craft for the cargo between here and Pillau, and the plaintiff, in consequence of such invoice, thought himself bound to pay the balance of the said invoice.
“So, by the shipment of the tares on board the vessel, the delivery was effected, and the contract in casu performed on the part of the defendant. Had the vessel miscarried, and the cargo been lost, the loss of the tares would have touched the plaintiff or the underwriters.
“After fulfilled delivery, the rules on the agreement of purchase (s. 987, I. 11, of the Prussian Code (supra, 77)), are the only ones that may be applied. Therefore the plaintiff was no longer at liberty to recede from the contract, as from the day of the completed delivery  of the tares into the vessel, the risk as well as the ownership thereof went over upon him ; and if he thought the tares defective on their arrival in London, he could then no more refuse the receipt of the same as from the delivery into the vessel. According to contract, the property had become transferred from defendant upon the plaintiff'; as to the deficiencies in promise (complaints in respect of badness of quality), the plaintiff was now only allowed to refer to the title arising from s. 198, I. 11, and s. 319, seq. I. 5 (a), loco cit. The protest could be of no use to
(6) Which section prescribes shorter periods of limitation in respect of extrinsic defects.
(a) Which sections contain a variety of provisions relating to defects in articles which have formed the subject of contracts.
him, as he had become the owner of the commodity, from the moment of shipment on board the vessel here.
“Therefore, it is also without effect or influence when the plaintiff maintains, that if it be impossible to a purchaser on delivery, to ascertain of the quality before the receipt of the commodity, as on the one hand he may have such goods as are to be delivered abroad inspected or examined previous to and on the shipment taking place, and may suffer the goods to be shipped only in case they be found conform to agreement, and, on the other hand, nobody is entitled to form any claim or right to himself, from the neglect of precautionary measures, under the pretext, that it has been impossible to him to express his mind upon the quality of the goods before the delivery of the same.
The defects in the article which the plaintiff complains of as being contrary to the stipulated quality, he is bound to establish, within the limited periods appointed by sections 343 and 344, Part I. tit. 5, of the Prussian Code, before a competent tribunal, to which the defendant is legally amenable.
“Such prescription commenced, according to s. 343,  from the day of receipt ; and after s. 344, from that of perceiving the deficiency,
“ Indeed, the first day is not to be considered identical either with the day of delivery-if we reflect upon such, as per s. 128, I. 11, loco cit.—of that of transmission--in this case, representing the day of delivery (which has been set forth so striking by Bornemann in his observations or “Commentary on the Prussian Civil Law," par. 2, page 607, s. 99): on the contrary, it may be assumed from the general principles upon prescription, as doubtless, that the limitation should commence only from that day when the examination through the entitled (by the person entitled to the goods) could possibly take place, and, of course, from that day when the object was really taken possession of by him (went into his custody); wherefore, in order to point this out in s. 343, there has intentionally not been fixed upon the day of delivery, but on the day of receipt of the object, as the commencing moment of prescription.
“ In consequence hereof, the prescription against the plaintiff in this cause first began from the arrival of the tares in London, when and where the same could be taken possession of by him, and he became enabled to inform himself of the alleged defect in quality.
“But also from this term,-being the 5th of June 1837, until the day of commencing his action, on the 10th of June 1838, the limitations for denouncing the claims upon warranty,-at the furthest six months, as prescribed by ss. 343 and 344, loco cit., had long ago elapsed. The plaintiff consequently has lost his right of claim (8. 345, loco cit.).
“As to the 133 quarters which remained behind, the agreement of the parties, that the plaintiff renounces the receipt, and the defendant is consenting thereto, was to be and has been confirmed.
" The decision upon the point of law-charges follows  from s. 2, tit. 23, of the regulations upon law proceedings; which regulations are universally binding.
“ Issued under the seal entrusted to us, and the usual signature. "Konigsberg, on the 31st day of May, 1839.
“(L.S.). "Royal Prussian College of Commerce and Admiralty.
“Signed, STELLTER" (a).
Objections were taken on the part of the plaintiff to this judgment, on the ground that no libel or other proceedings were shewn, and that no jurisdiction of the court was proved. All objections to the judgment were reserved by the Lord Chief Justice
(a) There followed a certificate by a “sworn public translator to the royal court of Kenigsberg in Prussia, that the foregoing translation thoroughly renders the true sense and meaning of the original judgment, in German, of the royal court of Kønigsberg.” To this is subjoined the original judgment, under which the English consul
hat “the above signature (Štellter) is the proper handwriting of Mr. Stellter, Director of the royal Prussian court, called "College of Commerce and Admiralty ; and that unto all acts and writings so signed by him, in that quality, full faith and credit is, and ought to be, given in courts of justice, and elsewhere.”
for the consideration of the court; and a verdict was found for the plaintiff on all the issues but the third, which applied to the second count.
A rule nisi has been obtained by the defendant in last Michaelmas term, to enter a verdict for him on the fourth issue (b) (being the issue raised by replication to the fourth plea), and a cross rule was obtained by the plaintiff, to enter judgment non obstante veredicto, for him, in case the defendant's rule should be made absolute.
Channell Serjt. and Byles, on the part of the plaintiff, now shewed cause against the former rule. The onus  lies on the defendant, to shew that the foreign judgment is in respect of the same causes of action as those set forth in the first and second counts. It is contended on the part of the plaintiff, that it is certainly limited to the cause of action in the first count, even if it embraces that. There is nothing in the judgment to shew, that the plaintiff attempted to enforce a claim in respect of any neglect of duty, or of any breach of contract giving rise to a duty. The suit in the foreign court was for a liquidated sum ; here the action is for damages, which is a very different cause of action. The plaintiff was the purchaser, and the defendant the seller of certain tares. In the foreign court, it appears that the plaintiff contended there had been no delivery to him so as to vest the property in him; he received them under protest, and insisted that the property was still in the defendant, and prayed the court to rescind the contract. In the present action the plaintiff in the first count assumes the delivery to him and acceptance by him, and sues the defendant for the damage that has accrued to him, by reason of the tares being inferior to those contracted for. In the second count he states, that the defendant took upon himself a duty, viz. that the goods should be shipped in a proper manner, and there is clearly nothing in the foreign judgment to shew that the defendant was relieved from that liability. Besides, if the plea does not import that the judgment in the foreign court was upon the merits, it would be bad as containing no answer to the action. If it is to be taken as importing a judgment on the merits, then it is not supported by the evidence, as the document produced was merely to the effect that the remedy was lost by lapse of time, as in the case of our statute of limitations, not that the right of action was destroyed. The mere loss of a remedy in another country will be no bar to a right of action in this; as (even supposing the contract to  have been made in Prussia, which is denied), the lex loci solutionis must prevail over the lex loci contractus : The British Linen Company v. Drummond (10 B. & C. 903); Huber v. Steiner (2 New Ca. 202, 2 Scott, 304); Storey, on the Conflict of Laws (p. 839, 2d ed.); Don v. Lippman (5 Clark & Fin. 1). The libel and other proceedings would probably have shewn what really were the causes of action in the foreign court(e).
Bompas Serjt. in support of the rule obtained by the defendant. The question, whether the foreign judgment included both of the causes of action set out in this declaration, was for the jury. The present objection was not raised at the trial; it was there taken for granted that the causes of action were the same in both cases, and the defendant ought not now to be called upon to argue this point. [Tindal C. J. It was distinctly understood that all objections to the judgment, were reserved for the consideration of the court.]
The judgment sufficiently shews, that the action abroad had reference to both of the causes of action relied upon in the present action; the whole contract was before the court in Prussia. In order to raise the present objection, the plaintiff ought to have replied, that there was no such judgment as that stated in the plea, as to the cause of action in the second count mentioned. The legal effect of the plea is to refer to the cause of action in each count, and therefore it may be taken distributively. Or, if the court entertain any doubt upon this  point, having the same power as the judge at nisi prius, they may amend the plea by inserting that the judgment applied to the cause of action in the first count only.
(6) The rule was drawn up for entering a verdict for the plaintiff on the third issue, but this appears to have been an error.
(e) They also argued upon the objections taken at the trial as to the absence of proof of jurisdiction in the foreign court, and the effect of not setting out all the proceedings. The arguments upon these points are omitted, as the judgment of the court was confined to the point reported in the text. The following authorities were cited ; Buchanan v. Rutter, 1 Campb. 63, 9 East, 192, and Obicini v. Bligh, 8 Bingh. 335, i Mo. & Scott, 477.
The effect of the judgment however is, that the plaintiff's whole right of action is utterly gone. It may be admitted, that the judgment does not say that the plaintiff never had a right of action, but it says that he had lost that right; and decides, therefore, that he had no cause of action at that time.
TINDAL C. J. I am unable to get over the first difficulty that has been urged against the defendant in this case. The court are to consider themselves in the same situation as the judge at the trial ; and on perusing the judgment which was produced, it does not appear to me to be the same judgment, in effect, as that on which the defendant has relied. The plea put upon the record is, “that the plaintiff impleaded the defendant in the Royal Prussian court of Commerce and Admiralty of Kænigsberg, for not performing the very same identical promises, and each and every of them, as are in the first and second counts of the declaration in this action mentioned, and for the damages alleged to have been maintained by the plaintiff thereby.” The plea then proceeds to state, that “a judgment or decree was pronounced by the said court, whereby it was adjudged and declared that the plaintiff had no cause of action against the defendant in respect of the damages alleged to have been sustained by him, the plaintiff, through the non-performance of the said promises ;” and that such judgment was final and conclusive. This plea, therefore, professes to be an express answer to each of the specific gravamina set forth in the declaration. The issue raised by the replication is, “that no such judgment or decree, final and conclusive between the parties to the suit in  that plea mentioned, in manner and form therein alleged, ever was pronounced by the said court.”
The judgment produced in evidence appears to have been given in a cause concerning a claim for a specific sum of money made by the plaintiff against the defendant “ on account of a cargo of 917 quarters of tares received in the year 1837, by the ship Mary Swan,' commanded by G. Wright, master.” Now the first count in the declaration is for the breach of a promise by the defendant, that he would deliver to the plaintiff a certain quantity of tares at a certain fixed price; and that the said tares were to be “large, sound, good Koenigsberg seed tares, of the growth of the year 1836, and of the best quality ;” and the breach alleged is, that the defendant did not deliver to the plaintiff tares of the quality agreed upon, but that the tares delivered were “very soft, heated, discoloured, mouldy, rotten, decayed and wholly unfit to be used as and for seed tares, or for any other purpose, and not of the growth of the year 1836."
Now it is by no means clear that the judgment in the Prussian court relates to the same cause of action as that mentioned in the first count. But without considering that point, let us see what is the contract alleged in the second count of the declaration. That count states that the “defendant promised the plaintiff that he, the defendant, would superintend the shipping and loading of the said tares at Konigsberg aforesaid, and would take and use every reasonable and proper precaution in seeing that the same were properly shipped and stowed in and on board a fit and proper vessel, or fit and proper vessels, in that behalf, for the conveyance of the said tares ;” and then alleges, as a breach, that the defendant did not "superintend the shipping and loading of the same tares, or use any precaution whatsoever in or towards seeing that the same were properly shipped or stowed in or on board a fit or proper vessel, or fit or  proper vessels, in that behalf;" and that “on the contrary thereof, the vessel, in and on board of which the same 917 quarters of the said tares were so shipped and loaded as aforesaid, at the instance of the defendant, by reason of her having on board too great a quantity of cargo, and by reason of the state, size, condition and circumstances of the same vessel, was on the occasion aforesaid, a very unfit and improper vessel wherein to ship or stow the same tares, as the defendant at the time well knew.” And the plaintiff then alleges that the tares were damaged by reason of their having been so improperly shipped.
Now, if for a moment it were supposed that this second count contained the sole subject of action in this case, could it be said that the judgment was for the same cause of action as that upon which the plaintiff had declared ? Could we have seen our way, without parol evidence to shew that the judgment produced applied to the damage alleged to have been sustained by the plaintiff, in consequence of the improper shipping and stowing of the tares? I think it clear we could not; and therefore that, upon this point, there is a variance between the proof and the allegations on the record