March 2 , 1891 ,] 
THE TROPICAL AQRiOliLTURIST, 
641 
beon the quay for about four days before they were 
removod. 
Arthur BroadbridgOj a flaleaman in the einploy of the 
plaintiffs, said ho took tlitee samples of nuts on Nov. 
12lh ftom the bulk, and on the 14th took three sam- 
ples from these for defendants. He put his hands in 
the centre of the pile to see if the smaller samples v,ere 
as nearly as possible like the big sample retained. Some 
of the nuts were a little brown and rusty. There were 
only one or two mouldy ones. One of tne marks of the 
goods were not so good as another, 
Mr. Steel : — We look a less price for these. 
Oross-examined ; — The sample I took was .a 
selected sample from a _ large sample. I was 
about ton minutss over it. If I had made a 
mistake the bulk would not have corresponded' 
with the large sample. The p'aiutiffs’ business was 
in fibre, oils, kc. Ho never saw the bulk of the nuts. 
His Honor: Are the samples improved by handling ? 
Witness : No. sir. 
Mr. Steel : If you rub a nut you iuiprovc its colour 
Witness: Yes; bat there was only a little mould on 
some. I took every pains to see that the small 
samples was similar to the large one. 
This was the plaintiffs’ ca'-e. 
Blr. Fickford, fur the defence, said he would call 
evidence to show that the nuts were not up to sample. 
Ho submitted that the only question was whether the 
deduction they hud made wa.s correct. Besides tlii.s, 
ho failed to see how the plaintiffs who acted as brokers 
were entitle'! to sue as principals. Tuo defendants 
knew more about kola nuts than anybody else in 
England. Tliey had practically made the trade in kola 
nuts in this country. They had called in Messrs. Lam- 
bert & Strong, who had great experience in these nuts, 
to see the nuts. Mr. Lambert would teil them that 
the bulk of the luPs did not coi respond with the 
sample. 
The defendant, Thomas Christy, was called, _ and 
said : I have had nine cr^ ten years’ expmieuce 
in kola nuts. Until a year ago ail the kola uuis which 
came into Europe passed through my hands, f pointed 
out to the plaintiffs when they offered the nuts for 
sale that mouldy nuts were useless, and that I must 
have them fresh. The nuts are used medicinally, 
alio for refining beer. The nuts prevent people going 
on drinking. (Laughter.) 
Mr. P.ckford : How does it do that ? 
Witness: It makes people nauseate. If a man is 
lying insensibly drunk on. the floor, or under the table, 
and a nut were put into his mouth, in fifteen minutes 
the man w< aid rise, and one would not know he 
had drink. Ho 7 /ould not even have a headache. Even 
if within four or fivo days ho went to take spirits 
again, the effects of the nut would still produce a 
nausea in his throat and month. (Laughter.) This 
was a well-known scientific fact. As the nuts arc 
used medicinally, it is en important matter not 
to have them mouldy. The samples of nuts I 
received from the plaintiffs looked very nice. I 
was attracted by the nice appearance of the nuts, 
and I entered into negotiations for them. When 
the bulk came forward, I found they did not agree 
with the sample at all. The day after the nuts ar- 
rived I telegraphed repeatedly to the plaintitt's about 
them, in order to come to some arrangement. A kola 
nut, whou once it becomes mouldy, changes its char- 
acter, and becomes a fungus. They are then o no 
use. The bulk of the nuts were turned out in Mr. 
Lambert's presence, and they were wet, slimy, and 
mouldy in lutiiiy instances. The keeping of tho nuts 
a fortnight in tho barrels would have a tendency to 
deteriorate them. Tho top of the barrels would bo 
bolter than the bottom and centre. Tho nuts on ex- 
amination had turned out not to bo worth as much as 
the sum sent for tliem. I sent a letter to the plaintiffs 
to examine each bag as to their couditiou, and to see 
that there was no palm oil upon them. 
Mr. Steel i There was none in fact. 
Cross-oxamiiied ; It was not until seven days 
ago, when tho nuts came hick from the drier, 
that I found that they were not of tho value 
of Mr. L'lmbert’s certificate. I know my soli- 
tors have paid the .sum of 2'il 'L lOd irto 
court. X sent the mouldy nuts to the driers. Messrs. 
Lambert & l3:roug, when they examined the nuts, 
gave it as their opinion that the nuts were worth 
the amount certified, i could have bought nuts 
equal to the sample sent to me for 3d per lb. in 
London. I gave the higher price for the nuts in 
Liverpool because I wanted them for growing pur- 
po.ses. I send them all over the world. At the time 
I purchased the uuts I looked upon the plaintiffs as 
my brokers. The money I sent was returned. If 
kola nuts are bruised or expressed to tho atmo- 
sphere any time they deteriorate. 
Mr. Lambert (of tho firm of Lambert & Strong, 
London) said he bad examined the nuts at the 
request of tho defendant, and gave him a certificate 
of the v.alue. Ho thought he was called in by 
both sides as an arbitrator. 
Some .argura'suta by the counsel en.sucd, Mr Pick- 
ford ma'utaiuiug that Ihe plaiutiffa were not entitled 
to sue, as tlm plaiuiiffs could not be brokers and 
principals at the same time. 
Mr. Steel raid that the defendants, in paying the 
money which bad been returned to them, admitted 
that the plaintiffs were the right people to sue. 
Plaintiffs had the good.s consigned to them for sale. 
Ho would ask his honor to say that there was 
no tender. 
Mr. Pickford said the defence of tender was no 
good uulcis the money w.is paid into court. 
Mr. Steel : The defendants having paid the money 
into court, we could non get it uulil there had been 
a judgment. 
His Honor remarked that he thought- the coa- 
teutiou of Mr. Pickford about the plaintiffs not being 
able to sue came too late. 
Mr. Pickford said that money which was paid into 
court was paid to the plaintift's. 
His Honor s.sid he must toke time to consider 
the question whether the plaintiffs were entitled to 
sue or not. He would also require time to consider 
the question of tender, and would therefore reserve 
judgment. 
By permission of his honor plaintiff was recalled, 
and, in answer to Mr. Steel, said he received com- 
cii'siou from Messrs. Plenty & Co. of per cent for 
selling on their account. 
His Honor; I will consider my judgment, and 
deliver it on a laterday. 
Judgment. 
{^Delivered on Friday, Jan. 3, 1S91) 
His Honor said : I find that the nuts delivered 
were not equal to sample, and that the sum of 23/. 
5s. 10(/. is the sum which the plaintiffs are entitled 
to recover. The tender of 22/. 4s. lOd. was, therefore, 
insufficient, and my juelgment must be for the plain- 
tiffs for 23/. 5.S. lOd. But, except as to the costs paid 
into court, I direct that the judgment shall not carry 
oostr, the defendants being practically successful in 
the notion. A point was raised at the hearing, and 
left for my decision, as to whether the iilaintilfs were 
entitled to recover at all from the defendants, inas- 
much as they had acted as defendants’ brokers in 
the transaction. This contention rested on a bought- 
note dated November 17, which was (so far as is 
material) in the following terms: — “We have this 
day bought for you the following goods. Customary 
allowances and Liverpool general-brokers’ condi- 
tions of sale. Payment (before delivery if required), 
cash, in fourteen days, less 2 ^- per cent., brokerage 
1 per cent. Signed, Broadbndge & Co.” Prompted 
I suppose, by the desire to get a commission from 
both parties (for Mr. Howard admitted that he 
received commission from his selling principal), 
Messrs. Broadbridge were induced to represent tliem- 
selves in this note as the brokers for Messrs. Christy 
A Co. If they were really so, of course they could 
not recover in this action, but 1 think that tlia 
correapondence shows that they wore acting ag 
