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The photographic news
- Bandzählung
- 7.1863
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- 1863
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- Hochschule für Grafik und Buchkunst Leipzig
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- Hochschule für Grafik und Buchkunst Leipzig
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- Bandzählung
- No. 257, August 7, 1863
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Zeitschrift
The photographic news
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Band 7.1863
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- Register Index 619
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Band 7.1863
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THE PHOTOGRAPHIC NEWS. August 7, 1863.] 375 The action stood on the case list as Fry v. Bimstingl, and was brought to recover the price of goods “ sold and delivered,” although a verdict was eventually obtained on a different issue. The defendant pleaded “ never indebted.” The facts of the case, as stated by the plaintiff’s counsel, Mr. Serjeant Parry, assisted by Mr. J. C. Matthews, were as follows:—In the summer of 1861, Mr. Birnstingl, a dealer in fancy goods, in the course of some speculations in photography, entered into an arrangement with Mr. Samuel Fry, whose name is well known to our readers, to take fifty negatives, instantaneous sea views, to be paid for at the rate of a guinea each. They were intended for the printing of transparencies, and it was understood that Mr. Fry was to have the printing, and that his name should appear on each. A somewhat loosely worded contract or memorandum of agreement was drawn out, signed with the initials of each party to the bargain, who each received a copy of the document. We may remark, in passing, that this agreement was not stamped, which was nearly fatal to all the proceedings. Mr. Fry's copy was unfortunately lost by having been placed in the hands of a person, to bring an action on the case, who turned out to be an unqualified practitioner, and from whom it was never recovered. The defendant's counsel put in his copy, and, pointing out that it was unstamped, submitted that the action must be based upon it, and that, being un stamped, it was invalid. If this had been ruled, we appre hend there would have been an end to the action, and whilst each party would have been fined ten pounds, the plaintiff would not only have lost his cause, but have been mulcted in all the costs besides. Mr. Fry’s legal advisers were proceeding, however, for goods sold and delivered, apart from this contract, and the judge decided that a contract for goods sold and delivered did not need a stamp. Amongst the clauses contained in the agreement was one to the effect that the negatives were subject to the approval of Mr. Birnstingl, and a sentence followed abo ut the reading of which some doubt at first existed, as to whether it was “ any part of the negatives not approved to be destroyed by Mr. Birnstingl,” or, “ any print of the negatives, not approved, to be destroyed by Mr. Birn stingl.” It was eventually agreed in court that the latter was the real reading. Mr. Fry proceeded to Ramsgate, and produced about seventy instantaneous negatives, which he delivered to Mr. Birnstingl, and then received from him the sum of twenty- five pounds on account, and a commission to proceed to the Continent to take other negatives. This was done, but as Mr. Fry could not obtain any settlement of the first transaction, he never delivered any more negatives. He made application, however, from time to time to Mr. Birnstingl to select fifty negatives from those delivered, return the remainder, and pay the balance of the amount due. For some inexplicable cause, Mr. Birnstingl always refused to come to any settlement, alleging that he was quite at liberty to keep the negatives for twenty years, and then, if he did not approve ot them, break them all. No settlement having been obtained, nor any negatives having been returned, this action was brought to recover forty-eight pounds ten shillings, the balance of the amount due for seventy negatives, at a guinea each. As we chanced to be at Ramsgate when Mr. Fry took the negatives in question, and saw many of them, we were called to depose to their general excellence and the moderation of the charge for them. Mr. Sydney Smyth, having been in Mr. Birn- stingl’s office when the negatives were delivered, was called to prove their delivery, and to express an opinion of their excellence as instantantaneous negatives. He was cross- examined as to whether he had not, at the time, pronounced them bad, but denied that he expressed any opinion on the subject, alleging that as he was engaged on similar work at the time for Mr. Birnstingl, he did not feel called upon to give an opinion of the productions of others. The defence was to the effect that the negatives were not satisfactory; that the twenty-five pound paid to Mr. Fry was not on account of the negatives delivered, which were de clared to be bad at the time, but a payment in advance, to enable Mr. Fry to go to France to get others in their place ; and that, as no others had been delivered, the faulty nega tives were retained as some security for the repayment of the money advanced. In support of this there was no evidence but the defendant’s statement, and the production of the receipt for the twenty-five pounds, which was in the form of an I.O.U., and stated that the money was in advance for negatives ordered. Some of the negatives and some transparent positives were produced in court, and a good deal of amusing blundering occurred both at the bar and bench from the misapprehen sion and misuse of technical terms. Mr. Serjeant Parry was interrupted in the course of an able closing speech for the plaintiff by the Judge, to point out that as the contract was for fifty negatives the action could not be brought for seventy ; and as no especial fifty had been selected, the action for goods sold and delivered could not be sustained. To prevent a failure of justice, how ever, he would permit the plaintiff to amend. A special court was then prepared, bringing the action for damages for non-acceptance of the negatives. Mr. Joyce, on behalf of the defendant, declining to plead to this new count, the learned Judge said the case became virtually an undefended action, and must go to the jury on the general plea on the record. The learned Baron, in summing up, pointed out that it was absurd to suppose that the defendant had given Mr. Fry twenty-five pounds as an advance on a new commission, if he were convinced that the negatives already delivered were worthless, and suggested that, although the receipt was singularly worded, a person receiving a sum like twenty-five pounds was not always very particular as to the wording of the receipt he was called to sign. If the jury believed the plaintiff’s statement, that the money was received on account of the negatives already delivered, and that no objection was taken to them at the time, the only question which remained for them was the amount of damages to be awarded for the non-acceptance or rejection of the negatives in a reasonable time, and for their detention until now. The learned judge endeavoured to gain some data as to the depreciation suffered in consequence of the decreased de mand for instantaneous stereoscopic views. He asked our opinion, but we were unprepared to name at a moment’s notice any definite sum. Other witnesses were unable to throw light on the question. The defendant’s counsel in cautiously said they would willingly take five shillings each for the negatives; upon which his lordship said, in that case the negatives had suffered a depreciation of sixteen shillings each, and after some further observations, left the matter to the jury. After retiring for about three minutes, the jury returned with a verdict for the plaintiff, damages twenty-five guineas. By this verdict we understand that the negatives, not having been accepted, become again the property of Mr. Fry, toge ther with the sum of twenty-five guineas, in addition to the amount already received, as damages for non-acceptance, or rejection, of the negatives delivered, within a reasonable time. We ought here to add, that the attorney for the plaintiff in this action was Mr. W. W. King, an enthusiastic amateur photographer, and member of each of the three photographic societies in London. In concluding, we cannot help urging upon photogra phers the importance in all cases of contract of having the terms clearly stated in writing, and of having the document stamped. These precautions are necessary in all agreements, but in the case of commercial contracts relating to an art like photography, which may eventually come for decision before persons entirely unacquainted with the details of the I art, it becomes doubly imperative. We scarcely remember
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