cannot recover it back; but he shall have his brokerage 610, Child v. in respect of a contract which the principal has entered 8 Term Reports, into, but afterwards refuses to ratify. Where, however, a memorandum for charter party Morley. was drawn up in a manner so slovenly that no contract could be framed upon it, it was held that the broker 1 Carrington, should not recover any thing for commission. Wharfingers. 384, Hamond v. Holiday. On the liabilities and rights of wharfingers much has Wharfingers, been already said, their rights of lien have been discussed, and their general responsibilities in some measure touched upon. One or two more points relating to them shall close this section. An action was brought for wharfage and cranage due to the plaintiffs, wharfingers, for parcels of malt brought to and unloaded at their wharf. It appeared, that the goods, instead of being actually landed on the wharf, were put on board of lighters, whilst the barge remained fastened to their wharf. And Lord Mansfield said, that wharfage and cranage cannot be due where the party has not had the use of the wharf or the crane. Wharfage is due for landing on the wharf; and cranage, for the assistance of the crane. Anchorage or moorage are very 3 Burrow, 1414. different things. Although a wharfinger, like a warehouseman, is not liable for accidental fire, yet where he insured goods, and on the happening of a fire, received the amount from the insurers, he was held to be clearly liable to pay over the money so obtained. 2 Starkie, 400, Sidaways v. Commercial agreements. OF SECTION III. COMMERCIAL AGREEMENTS GENERALLY; OF RESCINDING CONTRACTS, AND THE REMEDIES FOR ENFORCING THEM. THE Contract for the sale and delivery of goods is certainly the chief engagement in commercial concerns; but some other agreements, deserving of attention, may be shortly mentioned; such, for instance, as undertakings not to carry on trade in particular places, &c. 66 A general engagement not to carry on trade any where is void, being in opposition to the policy of the country. But a partial agreement to that effect will be enforced. As in the surgeon's case, who promised, that, if the plaintiff would take him as an assistant, he would not practise as a surgeon for fourteen years afterwards within ten miles of the place where the plaintiff lived. "A bond "in restraint of trade," said Lord Mansfield, in giving judgment for the plaintiff, "cannot be arbitrarily taken, "and without consideration; some consideration must 66 appear. Neither are the public likely to be injured by an agreement of this kind, since every other person is at liberty to practise as a surgeon in this town" [Thetford]. A bond by an attorney agreeing to relinquish his business, and recommend his clients to two other persons, has also been adjudged valid. Any contracts which have a mischievous tendency—which tend to contravene the fundamental principles of the constitution-which are in opposition to moral principle, cannot be enforced. And if a statute declare any agree1 Henry Black- ment to be illegal, a subsequent repeal of that statute will not give any sanction to the prohibited undertaking. 5 Term Reports, 118, Davis v. Mason. 4 East, 190. Bunn v. Guy. stone, 65, Jaques v. Withy. So again, any attempt by contract to evade the pro visions of an Act of Parliament, is illegal, and any agreement for compensation in order to prevent opposition to a Bill passing through Parliament is also bad, and cannot be sustained; though a convention between two coach proprietors has been held not to be illegal as in Chitty's Rep. restraint of trade. 2 407, Hearn v. Griffith. 1 Term Reports, 227. Where both parties are in fault, or (as the law expresses it) in pari delicto, if one of them seek relief he must do what is just; according to the principle established in the court of equity, that he who asks equity must do equity. It has been held, that if money be given to an agent to be paid over in pursuance of an illegal purpose, and, before the money should be so paid over, a countermand be given, the agent, being in the 9 East, 49, nature of a stakeholder, is bound to return the money, Taylor r. Lendey. and is liable to an action in case of his refusal to do so. There is, in fact, a distinction upon this subject between contracts executed, and such as are executory; and Mr. Justice Heath has said, "I think there ought to "be a locus pœnitentiæ, and that a party should not be "compelled against his will to adhere to the contract." If a party lend or pay money on the account of another, and the borrower or receiver applies it to any purpose prohibited by act of Parliament, a bond given for the repayment of the loan is not void. The lender 2 Bosanquet & Puller, 471. Id. 2069, Faik is not concerned in the use which the other makes of 4 Burrow, 2072the money, and the transaction between lender and borrower is fair and honest: to be sure, if the lender were concerned in the illegal purpose, the bond would be vitiated. And so a bond given for money advanced by a third person to make up differences arising out of ney v. Rey stock-jobbing, is not void. "Where a contract is to be rescinded at all, it must of rescinding "be rescinded in toto, and the parties put in statu quo." So that where the plaintiff paid 107. in consideration that the defendant would execute a lease of some pre nous. 6 East, 452, by Lord Ellenborough. 5 East, 449, Hunt v. Silk. 6 Barnewall & Roper v. mises, and he entered upon the premises, and occupied them for some time, it was held, upon the above principle, that he could not recover back the 10 l., having paid it in confidence before he was bound; he might, indeed, declare upon a special contract, but he could not, by quitting the premises, entitle himself to a return of the consideration money, as he had commenced his occupation. But in the following case the plaintiff's right to rescind his contract was recognised. He agreed to take a lease from the defendant, and pay 1,000l. for it. He paid 10l. at the time, by way of deposit, and it was stipulated that he should pay gol. more in a few days afterwards, and the remainder upon having possession of the premises. When the time for paying the 90 l. arrived, he demanded an abstract of the lessor's title, which being refused, he gave notice that he would rescind the contract, and brought his action to recover the deposit. It turned out that the defendant had no right to grant the lease, and the Court held the plaintiff entitled to recover. recover. Or where this breach of the contract arises from the negligence of the party to whom money is to be paid after the term stipulated for payment, the plaintiff may As where there was an agreement for the sale of so much cord-wood, the money to be paid on the 1st of March; the plaintiff paid twenty guineas on the 8th of March, and then the defendant neglected to cord the remainder of the wood according to his contract. 7 Term Reports, It was held that these twenty guineas might be reco 181, Giles v. Edwards. vered back by the plaintiff. The seller of goods, on the buyer's refusing to complete his contract, requested the buyer to sell them for him; the buyer agreed to do this, but could not; the plaintiff then brought an action, and the Court held that the contract had been rescinded by this request of 3 Maule & Sel wyn, 378, Go mery v. Bond. the plaintiff, and that it was no answer to say that the plaintiff acted under ignorance of the law. The maxim ignorantia juris non excusat, was in point; for it is an established rule, that if a party choose to pay over money with full knowledge of all the facts of the case, he cannot afterwards recover it back, upon finding that he needed not to have made the payment according to law. It is widely different where money is paid under 3 Maule & Sel wyn, 344, Cox a mistake of the fact. As where silver had been as- v. Prentice. sayed at so much, and the plaintiffs had accordingly paid the price, but it afterwards turned out that the assay was incorrect; it was holden that the plaintiffs might receive the difference between the true and the supposed weight: "Our decision," said Lord Ellenborough, "will not clash with the rule, caveat emptor; "for here both parties were under a mutual error, nei"ther of them being to exercise, nor exercising, any Id. 349. judgment upon the subject." The rescision of payments under contracts is almost identified with this subject. If money be specifically appropriated to any particular purpose, it cannot be recalled, if there be an express contract with the persons entitled to receive it that it should be paid to them, but a mere remittance of cash for a particular payment is not necessarily such an appropriation. As where the acceptor of a bill, payable at his bankers in London, remitted them funds to satisfy it, but, on finding the bill dishonoured and sent away, he recalled the remittance; it was held that the bankers were not trustees for the holders of the bill under these circumstances, and that they were not bound to retain the money: Stewart v. Fry. judgment was given for the bankers, the defendants. But it has been held, that where bankers paid a bill with a forged acceptance, without endeavouring to ascertain whether the instrument were genuine, they could not recover the sum so paid from the holder of 7 Taunton, 339, |
