1817. A LEE and Another v. MUNN. Ап анс tioneer is not con liable to pay interest upon The in his hands was SSUMPSIT. The plaintiffs were builders; and had purchased property at a sale, ducted by the defendant, as an auctioneer. plaintiffs being the highest bidders, the lot declared to be their's; and they signed an agree, ment to complete the purchase, according to the conditions of sale. They likewise paid into the hands of the defendant 200l., as a deposit, and a security for their performance of the contract. Objections being taken to the title deeds, a long negotiation commenced between the vendor and vendee'; and from the year 1813, when the property was first put up to auction, until the year 1817, different treaties had been carried on, and arrangements proposed. Finally, however, the contract was rescinded; and the plaintiffs now brought an action against the defendant, to recover the amount of the deposit money, together with interest, from the time of its having been paid into the hands of the auctioneer, and the expences which the plaintiffs had been obliged to incur in investigating the title to the property. The defendant had paid the amount of the deposit into Court. Pell, serjeant, for the plaintiffs, contended, that they had not only a right to recover the interest of the money, but the expences of investigating the title. 1. Interest was due in all cases where VOL. I. 2 P a deposit, kept during the investigation of be consideragent, unless engage as a he specially principal in ed as a mere the sale. 1817. LEE v. MUNN. the sum sought to be recovered was liquidated, and was detained in the hands of the receiver beyond the period when it ought to have been paid. At least it was competent for a Jury to calculate interest in the amount of damages. In this case the defendant had the use of the money. He might have employed it beneficially; and the plaintiffs had been deprived of the fair profits of it. 2. The expence of investigating the title was incurred as well for the benefit of the vendee as for the vendor; and the plaintiffs were entitled to recover a moiety of this expence, if not the whole. Lens, serjeant, contrà.-The defendant was a mere agent, or stakeholder, between the parties. He had no power or controul over the money; he could not invest it in any public security. He could not trust it out of his hands for the purpose of producing interest, but might be compelled to pay it over at any moment. An auctioneer, wilfully detaining money, might be liable to pay interest. But, at any rate, it should be shewn that the money was first demanded. With respect to the expence of investigating the title, there was no pretence for the demand. The defendant had never made himself a principal in the transaction, and was merely a trustee for both parties. GIBBS, C. J.-I cannot think that an auctioneer, who does not mix himself as a principal in the transaction, but merely receives a deposit, to hold upon the condition, that, in case the purchase be completed, he shall pay such deposit to the vendor, I and if it be not completed, he shall return it to the vendee, is to be charged with interest. know of no case to this effect; and I am sure the practice is the other way. As to the expences of investigating the title, they are foreign to the case. The auctioneer is not liable to pay them. But the question of interest being new, I will reserve it for.the opinion of the Court. 1817. LEE v. MUNN. In Michaelmas term the facts above stated were put into a special case, when the Court, absente the Lord Chief Justice, coincided with the opinion which he had given at the trial; and, with regard to the demand of interest, they said, that the defendant could only be considered as an agent; that auctioneers generally were not liable for the interest of deposits lodged in 1817. In effecting a policy of insurance, a circumstance of intelligence, inserted in Lloyd's Lists, need not be communicated to the underwriters, how FRIERE and Another v. WOODHOUSE. THE HIS was an action on a Policy of Insurance on the ship Louisitania, from the Brazils to Lisbon, including the common risks. The question was, whether there had been an undue concealment at the time of the insurance. The policy had been effected by the broker, who went to the ever important underwriters, exhibiting a letter from the plaintiffs, in which they stated—“ Our ship, the Louisitania, sailed from Maranham to Lisbon, on the 1st of September, 1815. We have to request the favour of your effecting an insurance on her account. We are not alarmed at her having been fifty-seven days on her voyage, as there have been many contrary winds. We are, &c." it may be to the computation of the risk; for it is to be presumed within their knowledge, and to be taken into account. This letter was dated, Lisbon, the 27th of October. No other communication was made to the defendant; but it was in evidence that the plaintiffs had received a letter from their agent at Maranham, dated August 31, 1815, which letter had been brought by another vessel, the Victorioso. The latter vessel sailed from Maranham on the 1st of September, in company with the plaintiff's ship the Louisitania; and arrived at Lisbon on the 17th of October, being ten days before the plaintiff's letter to their broker to insure. The usual passage from Maranham to Lisbon is between 60 and 70 days. It appeared, moreover, by Lloyd's Lists, that between the 1st of September and the 1817. FRIERE 27th of October several vessels, besides the Victorioso, had arrived at Lisbon from Maranham. The plaintiff's vessel was lost shortly after she left and Another Maranham. Best and Vaughan, serjeants, for the defendant, contended, that the plaintiffs had concealed a material circumstance which ought to have been communicated to the underwriters. They should have mentioned the arrival of the Victorioso, which sailed in company with their ship. Their communication to the underwriters was not candid and explicit. Lens, serjeant, and Puller, contrà. The arrival of the Victorioso was in Lloyd's List, which may be considered, for this purpose, equivalent to a special communication to the underwriters. What was commonly known at Lloyd's need not be communicated. BURROUGH, J. This is not a concealment to vitiate the policy. The material facts were honestly disclosed in the letter; and the arrival of the other vessels at Lisbon from Maranham (however important this intelligence might be) must be presumed within the knowledge of the underwriters, from the circumstance of its being contained in Lloyd's printed Lists. What is exclusively known to the assured ought to be communicated; but what the underwriter, by fair inquiry and due diligence, may learn from the ordinary sources of information need not be disclosed. It is, however, a question for the Jury. 2. WOODHOUSE. |