been informed of B.'s position and ownership till after the goods had been consumed, so that they could not be returned or refused, the defendant was not liable on a contract express or implied. Boulton v. Jones, 2 H. & N. 564; 27 L. J., Ex. 117. In some cases where goods have been wrongfully taken, the plaintiff may waive the tort, and sue on the implied contract. Thus, where the defendant by fraud procured the plaintiff to sell goods to an insolvent, and afterwards got them into his own possession, he was held liable in an action for goods sold. Hill v. Perrott, 3 Taunt. 274. Accord. Abbotts v. Barry, 2 B. & B. 369. But see B. N. P. 130; Bennett v. Francis, 2 B. & P. 554. So, where a father fraudulently represented that he was about to relinquish his business in favour of his son, to whom (being a minor) goods were, upon such representation, supplied, which the father took into his own hands, he was held liable for goods sold and delivered. Biddle v. Levy, 1 Stark. 20. Where the owner of property, which has been taken away by another, waives the tort, and seeks to raise an implied assumpsit, it is incumbent on him to show a title to the property; and mere possession is not sufficient. Per Abbot, C.J., Lee v. Shore, 1 B. & C. 94. A carrier misdelivered teas to the defendant of more value than the teas which he had really ordered. The defendant kept them in ignorance, and mixed and sold part. On the discovery of the error, defendant offered to pay the carrier for tea of the price really ordered: held, that this was some evidence of goods sold and delivered by the carrier to the defendant. Coles v. Bulman, 6 C. B. 184. Where goods are lent, and if damaged to be taken by the bailee at a certain price, if they are damaged, an action for goods sold lies; Bianchi v. Nash, 1 M. & W. 545; so if goods are delivered on terms of approval or return, and they are retained an unreasonable time. Beverley v. Lincoln Gas Co., 6 Ad. & E. 829; Moss v. Sweet, 16 Q. B. 493; 20 L. J., Q. B. 167; see also Ray v. Barker, 4 Ex. D. 279, C. A.; and the cases of Lyons v. Barnes, 2 Stark. 39, and Iley v. Frankenstein, 8 Scott, N. R. 839, probably misreported, are not law. But where they are destroyed without the fault of the bailee before the lapse of such reasonable time, no action lies against him. See Elphick v. Barnes, 5 C. P. D. 321, ante, p. 440. The value of fixtures cannot be recovered under a claim for goods sold and delivered; Lee v. Risdon, 7 Taunt. 188; 2 Marsh. 495. But the value of trees, which the defendant has purchased and carried away, may be recovered under a claim for trees sold and delivered. Bragg v. Cole, 6 B. Moore, 114. The value of growing crops may be recovered on a claim for crops bargained and sold; Parker v. Staniland, 11 East, 362; and the value of crops, taken by an incoming from an outgoing tenant, may be recovered under a claim for goods sold; per Holroyd, J., in Mayfield v. Wadsley, 3 B. & C. 364. Poulter v. Killingbeck, 1 B. & P. 397. The price of railway shares may be recovered under a claim for "goods and chattels sold and delivered." Lawton v. Hickman, 9 Q. B. 563. A builder is not entitled to recover the value of the building materials employed by him in building a house for the defendant, under a claim for goods sold and delivered; Cotterell v. Apsey, 6 Taunt. 322; nor can one who contracts to make and erect a steam-engine on the defendant's premises recover the contract price in this form. Clark v. Bulmer, 11 M. & W. 243; see Atkinson v. Bell, 8 B. & C. 277, 283, cited post, pp. 524, 525. Where the contract was, that certain goods should be paid for partly in money and partly in buttons, Buller, J., held that the plaintiff could not recover under a count for goods sold, but should have declared specially. Harris v. Fowle, cited 1 H. Bl. 287; Talver v. West, Holt, N. P. 179. But see Hands v. Burton, 9 East, 349. And generally, a contract of barter must be declared upon as such, and the mere neglect or omission of the defendant to send his goods will not make it a contract of goods sold. Harrison v. Luke, 14 M. & W. 139. However, where A. agreed to give a horse in exchange for a horse of B. and a sum of money, and the horses were exchanged, but B. refused to pay the money, it was held that A. might recover for a horse sold and delivered. Sheldon v. Cox, 3 B. & C. 420. So, in an action to recover the value of a gun, for which the defendant was to give another gun and 15l. 15s., Ld. Ellenborough held that, upon the refusal of the purchaser to pay for the gun in that mode, a contract resulted to pay its value in money. Forsyth v. Jervis, 1 Stark. 437; accord. Ingram v. Shirley, Id. 185. An auctioneer may maintain an action in his own name against the buyer of goods sold and delivered by him in the course of his employment, though known to be the principal's, for he has possession, and an interest in respect of his lien, and is not a mere servant. Williams v. Millington, 1 H. Bl. 81. Therefore, payment to his employer is no answer to an action by the auctioneer. Robinson v. Rutter, 4 E. & B. 954; 24 L. J., Q. B. 250. But the auctioneer has only the same right as the party employing him to sell, and the defendant may therefore show that the rightful owner has claimed the value. Dickenson v. Naul, 4 B. & Ad. 638 ; see also Grice v. Kenrick, L. R., 5 Q. B. 340. As to the power of corporations to sue and their liability to be sued on parol sales of goods, vide post, Part III., Actions by and against companies— Contracts by Corporations. Proof of delivery.] A party cannot maintain this action unless he has either delivered the goods or done something equivalent to delivery. Smith v. Chance, 2 B. & A. 755. It has been contended (Smith's Mercantile Law, 9th ed., 497, n.) that facts constituting a delivery, sufficient to sustain an action for goods sold and delivered, ought also to constitute an acceptance and actual receipt under the Statute of Frauds, and è converso. It would perhaps have been convenient if this had been the established rule, but no such rule is to be deduced from the decided cases. There may be a delivery and receipt without "acceptance," though there can hardly be an "actual receipt" without a delivery, and the difficulty has rather been to determine what amounts to an acceptance, than what amounts to a delivery or receipt. The cases on the statute have been already digested at pp. 470, et seq. A delivery to a carrier may be enough to support this action, though not to dispense with a written contract; for he has no authority, as carrier, to accept; Meredith v. Meigh, 2 E. & B, 364, 373; 22 L. J., Q. B. 401, cited ante, p. 473. See also Boulter v. Arnott, 1 Cr. & M. 333, per cur. and Curtis v. Pugh, 10 Q. B. 114. So, an acceptance and receipt of part satisfies the statute as to the whole, but is not a delivery of the whole for the purpose of this action. Where A. agreed to sell to B. certain goods, an earnest was paid, and the goods were packed in cloths furnished by B. and deposited in a building belonging to A., till B. should send for them, A. declaring at the same time that they should not be carried away till he was paid,--it was held that this was not such a delivery as to entitle A. to maintain an action for goods sold and delivered; for there must be a transfer of possession as well as property; Goodall v. Skelton, 2 H. Bl. 316; see Simmons v. Swift, 5 B. & C. 857. So where goods sold for ready money, were packed up in boxes of the vendee for him and in his presence, but remained at his request on the premises of the vendor, it was held that a count for goods sold and delivered would not lie. Boulter v. Arnott, supra. Where there is an entire contract to deliver a large quantity of goods consisting of distinct parcels, within a To whom delivered-Carrier, Agent, or Servant. 495 specified time, and the seller delivers part, he cannot before the expiration of that time bring an action to recover the price of the part delivered, because the purchaser may, if the vendor fail to complete his contract, return the part delivered; but if he retain the part delivered after the seller has failed in performing his contract, the latter may recover the value of the goods so delivered. Oxendale v. Wetherell, 9 B. & C. 386; Shipton v. Casson, 5 B. & C. 383. If the delivery deviate from the mode pointed out by the buyer, yet if notice is sent to him and he does not repudiate it, he is liable; Richardson v. Dunn, 2 Q. B. 218. Sale and delivery by an agent of an intestate between the time of the death and grant of administration will support an action by the administrator, as such, for goods sold. Foster v. Bates, 12 M. & W. 226. A symbolical delivery of goods, if sufficient to enable the vendee to take possession and to divest the seller's lien for the price, is a sufficient delivery; as the delivery of the key of the warehouse, or of a delivery order on a wharfinger, or of other indicia of property, so as to put it under the control of the vendee. See Chaplin v. Rogers, 1 East, 192, 194; Elmore v. Stone, 1 Taunt. 460. And this species of constructive delivery is particularly applicable to ponderous goods not capable of ordinary delivery, as timber; or which the vendor has not engaged to deliver in any other way. Where a ship, or goods at sea, are sold, the delivery is by delivery of the documentary proofs of title, as the bill of sale or lading, &c. 2 Kent's Comm. 500, 501. An order by seller, for delivery to defendant, of a rick of hay, made on a third person who has consented to let it remain on his land, is a sufficient delivery as between the seller and buyer, the latter having undertaken to carry it away himself. Salter v. Woollams, 2 M. & Gr. 650, 654. Other cases applicable to this head of constructive delivery will be found under the head of Action for not accepting, ante, p. 470, et seq. To whom delivered Carrier, agent, or servant.] Proof of a delivery to a third person, at the defendant's request, will support a count for goods sold and delivered to the defendant. Bull v. Sibbs, 8 T. R. 328. And where a purchaser orders goods to be sent by a carrier, though he does not name any particular one, or where that is the usual course of business between the plaintiff and defendant, a delivery to a carrier operates as a delivery to the purchaser; B. N. P. 36; Dutton v. Solomonson, 3 B. & P. 584; King v. Meredith, 2 Camp. 639; Shepherd v. Harrison, L. R., 5 H. L. 116, 127; or, on board ship with the bill of lading indorsed so as to make the goods deliverable to the vendee or his assigns; Groning v. Mendham, 5 M. & S. 189 ; Meredith v. Meigh, 2 E. & B. 364; 22 L. J., Q. B. 401, cited ante, p. 473. But, delivery on board ship is not a delivery to the vendee, if the bill of lading be for delivery to order of the consignor or his assigns, and the consignor does not indorse it to the vendee. Wait v. Baker, 2 Exch. 1. Gabarron v. Kreeft, L. R., 10 Ex. 274; Ogg v. Shuter, 1 C. P. D. 47, C. A. But, though the bill of lading be to the consignor's order, if it be indorsed at the time of shipment to the consignee's order, the property passes, and the consignee must pay for the goods, though lost on the voyage; especially since the Act 18 & 19 Vict., c. 111, ante, p. 428; Brown v. Hare, 3 H. & N. 484; 27 L. J., Ex. 372; 4 H. & N. 822; 29 L. J., Ex. 6, Ex. Ch. Shepherd v. Harrison, supra, cited ante, p. 417. Where the written contract required by the Stat. of Frauds, s. 17, provides that the goods shall be sent by a particular route, and they are sent by another route, it may be shown that the buyer ratified this change of route, and such ratification need not See See be in writing. Leather Cloth Co. v. Hieronimus, L. R., 10 Q. B. 140; Hickman v. Haynes, L. R., 10 C. P. 598. and see The master of a ship has a general authority to bind the shipowner for goods sold or money lent; but in an action by the creditor against the owner the plaintiff must show that they were necessaries. Mackintosh v. Mitcheson, 4 Exch. 175. See further, as to liability of shipowner on contracts of the master, post, pp. 525, 526. The members of a club managed by a committee are not, merely as such, personally liable for goods supplied on the order of the committee for the use of the club; it appearing that the committee are supplied with funds by the members, who are subject only to annual subscriptions, and to other ready money payments, and that the committee has no express authority to bind the members by contracts. Flemyng v. Hector, 2 M. & W. 172. And it seems that such committees are not generally authorised to deal on credit; therefore the person who supplies goods on credit can only sue those members of the committee who were privy to the contract, unless he can prove that such dealing was in furtherance of the purposes for which the committee was appointed. Todd v. Emly, 7 M. & W. 427; In re London Marine Assur. Assoc., L. R., 8 Eq. 176. Nor are the members of the committee liable, as such, on the contract of their servant, the house steward, unless there be some proof of an authority from them. Todd v. Emly, 8 M. & W. 505. But where the secretary of a club, for supply of coals to each member, was authorised to deal on credit with the coal merchant, each member was held liable though there existed particular rules of the club for collecting and paying over the money from its members. Cockerell v. Aucompte, 2 C. B., N. S. 440; 26 L. J., C. P. 194. A master is not responsible for goods ordered by his servant in his name, but without his authority, unless he accepts and adopts them, or has accredited the servant by paying for goods so ordered before. Maunder v. Conyers, 2 Stark. 281; Pearce v. Rogers, 3 Esp. 214. And, when the master has been always used to give his servant money to pay for commodities as he buys them, and the servant buys them without paying, and embezzles the money, the master is not liable. Stubbing v. Heintz, Peake, 47; Anon., 1 Show. 95. But, if even in one instance the master has employed the servant to buy on credit, he will be liable for any goods which the same servant subsequently orders, until the authority is distinctly withdrawn by notice; Hazard v. Treadwell, 1 Stra. 506; Rusby v. Scarlett, 5 Esp. 76 ̊; Anon., supra; and see Gilman v. Robinson, Ry. & M. 226; Filmer v. Lynn, 4 Nev. & M. 559; post, p. 508; though he has given the servant money to pay for the goods in some instances. Wayland's case, 3 Salk. 234; Bolton v. Hillersden, Ibid.; 1 Ld. Raym. 225; Rusby v. Scarlett, supra. Where the contract has been made with an agent, and delivery to him, the seller may in some cases resort to the principal. As to suing the principal on a sale to his agent, the following cases are important. Where the principal is unnamed or unknown at the time of sale, the following has been laid down as the rule" If a person sells goods supposing at the time of the contract he is dealing with a principal, but afterwards discovers that the person with whom he has been dealing is not the principal in the transaction, but agent for a third person, though he may in the meantime have debited the agent with it, he may afterwards recover the amount from the real principal; subject, however, to this qualification, that the state of the account between the principal and the agent is not altered to the prejudice of the principal. On the other hand, if, at the time of the sale, the seller knows not only that the person who is nominally dealing with him is not principal, but agent, and also knows who the principal really is, and, notwithstanding all that knowledge, chooses to make the agent his debtor, dealing Action for Goods Sold and Delivered. 497 with him and him alone, then, according to the cases of Addison v. Gandassequi, 4 Taunt. 574, and Paterson v. Gandassequi, 15 East, 62, the seller cannot afterwards, on the failure of the agent, turn round and charge the principal; having once made his election, at the time when he had the power of choosing between the one and the other." Thomson v. Davenport, 9 B. & C. 78, 86, per Ld. Tenterden, C. J. The seller who has given credit to an agent believing him to be the principal, cannot recover against the undisclosed principal, if the latter has bona fide paid the agent, when the vendor still gave credit to the agent, and knew of no one else as principal. Armstrong v. Stokes, L. R., 7 Q. B. 598. See, however, the observations of the C. A. on this case in Irvine v. Watson, infra. The knowledge at the time of the contract that there is a principal, his name not being disclosed, does not enable the seller to make his election, and will not prevent him, although he has debited the agent, from afterwards resorting to the principal; Thomson v. Davenport, supra; even although the principal has in the meantime bona fide paid the agent, unless there has been conduct on the part of the seller which has misled the principal into the belief that the agent had already settled with the seller, and the payment was made in consequence of such belief. Irvine v. Watson, 5 Q. B. D. 414, C. A.; Davison v. Donaldson, 9 Q. B. D. 623, C. A. Mere delay in enforcing payment from the agent is not sufficient. S. CC. The fact of the principal's name being disclosed at the time of the sale, does not, until the seller has elected to charge the agent, prevent his resorting to the principal; such disclosure merely enables the seller to charge the principal in the first instance, if he so desire. Calder v. Dobell, L. R., 6 C. P. 486, Ex. Ch. A., as agent of the defendant, a foreign merchant, bought goods of the plaintiff, and the plaintiff made out invoices describing them as bought by A. "on account of" the defendant, and drew for the amount on A., who accepted; the defendant remitted the amount to A. to meet the acceptances, but A. became insolvent before they were due: held that defendant was not liable. Smyth v. Anderson, 7 C. B. 21. When the seller elects to sue an undisclosd principal, it is a good defence if the defendant show that he has paid his agent; S. C.; and the books of the seller cannot be admitted as evidence for him that he always debited the principal. S. C. And it is now clearly established, that where an agent contracts on behalf of a foreign principal, whether disclosed or not, he has, in the absence of express authority to that effect, no authority to pledge his principal's credit, or to establish privity between him and the person in this country entering into the contract, and the agent alone is liable thereon. Armstrong v. Stokes, L. R., 7 Q. B. 605, per cur.; Ireland v. Livingston, L. R., 5 H. L. 408, per Blackburn, J.; Elbinger Actien Gesellschafft v. Claye, L. R., 8 Q. B. 313; Hutton v. Bulloch, Id. 331, Ex. Ch. ; L. R., 9 Q. B. 572. See also New Zealand Land Co. v. Watson, 7 Q. B. D. 374, C. A.; Kaltenbach v. Lewis, 24 Ch. D. 54, C. A., and Maspons v. Mildred, 9 Q. B. D. 530, C. A.; 8 Ap. Ca. 874, D. P., cited post, p. 539. Where the seller has sued the agent to judgment, he cannot, although he has not received satisfaction, afterwards proceed against the seller. Priestly v. Fernie, 3 H. & C. 977; 34 L. J., Ex. 172. But, mere proof in bankruptcy against the estate of the agent will not amount to a binding election. Curtis v. Williamson, L. R., 10 Q. B. 57. Where the contract is in writing, signed by the agent in his name, the result of the authorities seems to be, that oral evidence is admissible to charge the undisclosed principal, but not to discharge the agent. See ante, p. 25, and notes to Thomson v. Davenport, 2 Smith's Lead. Cas., 8th ed., 401, et seq., and the cases there cited. It may be shown that a party professing to be acting as agent is the real principal, and he will be then liable to be sued VOL. I. K K |