given, might perhaps come to the same conclusion. I lay out of consideration the fact of the trustees being carriers, because their occupation only is to be considered. The profits of carrying goods are the profits of their trade. The tonnage is the profit of the land occupied by them. The other sums received by them constitute the profits of their trade. The principle of our decision in this case is, that the same rule is to be applied to all occupiers, and that the rent [73] or sum at which the land will let, is the criterion of the value of the occupation. We think this case, therefore, ought to go back to the sessions, in order that the rate may be amended. Rate to be amended.

OLDFIELD against LowE. Tuesday, February 3d, 1829. A., a silk-throwster, contracted with B. and C. for certain machinery to be made for him, and while the work was in progress, paid money on account. Before the machinery was finished, B. and C. assigned it to D. This circumstance was communicated by D. to A., who said he must go on with the work, and he (A.) would see him paid. The machinery having been completed and delivered: Held, that D. might sue A. for the price of such parts of it as had been made by him after the assignment.

[L. J. K. B. O. S. 142.]

Debt for goods sold and delivered, work and labour done and performed, materials found and provided, money paid, laid out, and expended, money lent and advanced, money had and received, and upon an account stated. Plea, the general issue. At the trial before Holroyd J., at the Summer Assizes for Nottingham 1827, a verdict was found for the plaintiff, subject to the opinion of this Court upon the following case:-The defendant, who is a silk-throwster, in December 1825, agreed with Messrs. Hickson and Stringer, of Macclesfield, machine-makers, to make part of the machinery necessary for carrying on his business. Some time after the work was begun upon, Hickson and Stringer, by deed, bearing date the 5th of February 1826, assigned all such work and machinery to the plaintiff for a valuable consideration. At this time the work was in an unfinished state, but money had been paid to Hickson and Stringer on account. The plaintiff, immediately upon the execution of such assignment, entered upon the work and finished it in the month of April following. Before the plaintiff entered upon the work, the assignment was shewn by him to the defendant, who desired him to get on with the work, and told him [74] that he would see him paid. From the time that the plaintiff entered upon the work, the wages of the workmen were regularly paid by him, and such parts of the machinery as had not been prepared by Hickson and Stringer were provided by him. In the month of May 1826, a commission of bankrupt issued against Hickson and Stringer, under which they were found bankrupts. The act of bankruptcy upon which the commission was issued, was alleged to have been committed on the 2d of February 1826, but no evidence was offered to prove an act of bankruptcy, except the depositions taken under the commission. During the time the plaintiff was finishing the work left unfinished by Hickson and Stringer, he also performed other work for the defendant, on his, the plaintiff's, own account. And after the whole was finished, the plaintiff delivered to the defendant two bills, one for the work so done on his own account, headed "Mr. Lowe to Matthew Oldfield," amounting to 91. 12s. ; the other headed, "Mr. Lowe to Matthew Oldfield, assignee of Stringer and Hickson," amounting to 5281. 44d. On the 16th May 1826, the defendant received from the plaintiff the following letter, dated Macclesfield, May 15th, 1826. "Sir, I once more take the liberty of writing respecting my own account with you, to a bill delivered, 91. 12s. 5 pullies 31. 10s., runners, &c. 3s., 31. 13s. The cleavers I sent you were on my own account, as they were entered to your own account in my book, although Mr. Clarke erred in putting them down in the wrong bill. I particularly charged my brother to deliver them to you on my account, which he has a letter to that effect. N.B. I hope you will take into consideration the state your machinery was in when I engaged in it, as the [75] parties had then drawn more considerably than what then actually was on the premises, as you well know yourself, and as I am likely to be a great sufferer in the end, being compelled as soon as I arrived home to pay the men their wages; therefore, I hope, sir, you will not fail in remitting me the above, as the creditors have nothing whatever to do with that.-I remain, &c. Matthew Oldfield.".

The defendant not having answered the above letter, he received the following letter from the plaintiff's attorney:-"Sir, unless the money you owe to Mr. Oldfield, of this place, is immediately paid into my hands, together with the costs of this application, I have positive instructions to proceed against you forthwith, for the recovery thereof, without further notice. Thomas Parrott, Macclesfield, 25th May

1826."

The money not being paid, an action was soon after commenced by the plaintiff against the defendant, and the sum of 281. 5s. 7d. paid to the plaintiff's attorney, Mr. Parrott, for the debt therein. The costs were afterwards paid. On the 5th May 1826, notice was given by the assignees under Hickson and Stringer's commission to the defendant, not to pay the money for the work done by the plaintiff in completion of that begun by Messrs. Hickson and Stringer to any person but them, and the balance due for the work, materials, and wages, done, found, and paid, in the execution of the work and machinery, as well by the plaintiff as by Hickson and Stringer, was in July 1826 paid by defendant to their assignees.

Fynes Clinton for the plaintiff. At the trial, an attempt was made to shew an act of bankruptcy committed by Hickson and Stringer on the 2d of February, [76] before the assignment, but there was no evidence of that, except the proceedings under the commission. Such evidence was insufficient, the assignees not being parties to the action, Doe d. Mawson v. Liston (4 Taunt. 741). The case must therefore be considered as if no bankruptcy had intervened. There can be no doubt, that, as against Hickson and Stringer, the plaintiff is entitled to the money in dispute; the only question is, whether he could sue for it in his own name? He might do so, for this was not an assignment of a chose in action, but an agreement that the plaintiff should finish certain work which they, Hickson and Stringer, had commenced. The defendant, by allowing the plaintiff to complete it, adopted him as the contractor, instead of H. and S., and must therefore pay him. The promise to see the plaintiff paid, is not within the Statute of Frauds, s. 4, for the defendant was the principal debtor, and not a party promising to be answerable for the debt or default of another

The

Reader contrà. The defendant was no party to the assignment by H. and S. to the plaintiff. If the work had been improperly done, or not done in time, he might have sued them. Neither was the defendant discharged by them from his obligation to pay them for the machinery. [Lord Tenterden Č.J. Could they claim against their own act?] As against the defendant, who was no party to it, they might. The plaintiff merely became their agent to execute the work, and derived from that arrangement no legal claim upon the defendant. If so, H. and S. were primarily bound to pay him, and the defendant's promise to see him paid, was a collateral undertaking to pay, if H. and S. failed [77] to do so; it was, therefore, within the fourth section of the Statute of Frauds, and void for want of a memorandum in writing. The separate accounts delivered by the plaintiff shew, that he thought he had no right to claim payment for the machinery except as assignee of H. and S. Lord Tenterden C.J. I am of opinion that the plaintiff is entitled to recover. alleged act of bankruptcy may be laid out of the question. The case then stands thus; H. and S. entered into an agreement with the defendant to make certain machinery for him. Part of the work was performed, and part of the money paid. Finding that they were not in a situation to complete their undertaking, H. and S. assign the work and machinery to the present plaintiff. By law that was not valid, so as to enable the plaintiff to recover for that part of the work which had been previously done. The defendant, however, was made acquainted with the assignment. He might have insisted that he would look to H. and S. for the completion of their contract, but that was not his language. On the contrary, he says to the plaintiff, "Go on with the work, and I will see you paid," clearly meaning, "and I will pay you." The legal effect of that was, to make a contract with the plaintiff for all the work that remained to be done. Reliance has been placed on the defendant's letter, distinguishing his own account from this claim, which he seems to think doubtful. But his doubts as to the legality of the claim cannot prevent his recovering, any more than his confidence in the justice of it could have aided him.

Littledale J. concurred.

[78] Parke J. Until the machinery contracted for was completed and delivered, the property remained in the makers; and, therefore, until it had been so completed and delivered, Hickson and Stringer could have no legal claim upon the defendant.

On the 5th of February they assigned the machinery in an unfinished state to the plaintiff. He applied to the defendant, who desired him to go on with it. The property in the machinery was then the plaintiff's; at the defendant's desire that machinery was completed and delivered to him; he is, therefore, clearly bound to pay the plaintiff for it.

Postea to the plaintiff (a).

THOMSON against DAVENPORT AND OTHERS. (In Error.) Friday, February 6th, 1829. At the time of making a contract of sale, the party buying the goods represented that he was buying them on account of persons resident in Scotland, but did not mention their names, and the seller did not enquire who they were, but afterwards debited the party who purchased the goods: Held, that the seller might afterwards sue the principals for the price.

[S. C. 4 Man. & Ry. 110; 7 L. J. K. B. O. S. 134. Adopted, Smyth v. Anderson, 1849, 7 C. B. 34. Dissented from, Heald v. Kenworthy, 1855, 10 Ex. 745. Referred to, Courtauld v. Saunders, 1867, 16 L. T. 563. Distinguished, Calder v. Dobell, 1871, L. R. 6 C. P. 494. Applied, MacClure v. Schemeil, 1871, 20 W. R. 169; Armstrong v. Stokes, 1872, L. R. 7 Q. B. 607; Elbinger Actien-Gesellschaft v. Claye, 1873, L. R. 8 Q. B. 317; Curtis v. Williamson, 1874, L. R. 10 Q. B. 59. Referred to, Southwell v. Bowditch, 1874, 1 C. P. D. 105, 374. Inapplicable, Eastman v. Harry, 1876, 33 L. T. 802. Referred to, Gadd v. Houghton, 1876, 1 Ex. D. 360; Concordia Chemische Fabrik v. Squire, 1876, 34 L. T. 824; Ogden v. Hall, 1879, 40 L. T. 751. Dicta dissented from, Irvine v. Watson, 1880, 5 Q. B. D. 418. Referred to, Maspons v. Mildred, 1882-83, 9 Q. B. D. 541; 8 App. Cas. 874; Darlow v. Shuttleworth, [1902] 1 K. B. 732. Observations adopted, British Homes Assurance Corporation v. Paterson, [1902] 2 Ch. 410.]

This was a writ of error, brought upon a judgment obtained in the Borough Court of Liverpool against the plaintiff in error. The plaintiff below declared for goods sold and delivered. Plea, general issue. Upon the trial before the mayor, and bailiffs, assisted by the recorder, a bill of exceptions was tendered to the direction given by the mayor, bailiffs, &c. by the said recorder to the jury. The bill of exceptions stated, that one Thos. M'Kune was produced and examined upon oath as a witness by the counsel for the plaintiffs, to maintain the issue on their parts. And M'Kune stated in evidence, that he, M'Kune, was established in Liverpool as a general Scotch agent, and, amongst others, acted as agent for the defendant, who resided in Dumfries; that, [79] in March 1823, he received from the defendant a letter, containing an order to purchase various goods, and, amongst others, a quantity of glass and earthenware; which letter, with the order, was produced by the plaintiffs' attorney, and was read in evidence as follows:-"Dumfries, 29th March 1823. Annexed is a list of goods which you will procure and ship per 'Nancy.' Memorandum of goods to be shipped: twelve crates of Staffordshire ware, crown window glass, ten square boxes," &c. &c. That he, M'Kune, provided himself with the goods mentioned in this letter, and that he got the glass and earthenware from the plaintiffs, who were glass and earthenware dealers in Liverpool; that at the time he ordered the glass and earthenware, he saw the plaintiff, Mountford Fynney, himself, and, to the best of his recollection, told him, that he, M'Kune, had an order to purchase some goods, and that they were the same house for whom he had purchased goods from the plaintiffs the preceding year; and he also stated, to the best of his recollection, that as he was a stranger to the nature of the goods, he hoped that the plaintiffs would let him have the same as before, to save him from blame by his employer; but he, M'Kune, did not shew the plaintiffs the letter containing the order, nor did he mention the name of any principal; that he then either gave the plaintiff, Mountford Fynney, a copy of the order, or produced to him the original order, that Fynney might himself take a copy, but he rather thought the former was the fact, and that the plaintiff Fynney did not see the original, though he could not say positively; that the plaintiff accordingly furnished the glass and earthenware, the amount of which, deducting the discount, was 1931. 7s. 8d., but adding the discount, 2191. 10s., [80] and rendered invoices thereof to M'Kune, headed

(a) See Atkinson v. Bell, 8 B. & C. 277.

thus: "Mr. Thomas M'Kune bought of John and James Davenport" (which was the plaintiffs' firm); that M'Kune entered the net amount (1931. 7s. 8d.) to the credit of the plaintiffs in an account with them in his books, and charged the same sum, with the addition of 2 per cent. for the commission, to the debit of the defendant in an account with him, which was according to his invariable course of dealing; and that he sent to the defendant a general invoice of all the goods purchased, comprising the glass and earthenware, but not mentioning the plaintiffs' names; that afterwards, in April 1823, and before the credit for the goods had expired, M'Kune became insolvent, though up to the day of his stopping payment he was in good credit, and could have bought goods on trust to the amount of 20,0001.; whereupon the said mayor and bailiffs, by the said recorder, after stating the evidence, told the jury that, from the distance of time since the sale took place, there was some uncertainty in the evidence of M'Kune as to the precise words used by him to the plaintiffs at the time he gave them the order for the goods; but it appeared to them (the said recorder) upon the evidence, that the name of the defendant as principal was not then communicated or known to the plaintiffs; and directed the jury, that if they were of opinion that the defendant's name as principal was mentioned by M'Kune to the plaintiffs at the time the order was given, or that the plaintiffs then knew that the defendant was the principal, their verdict ought to be for the defendant; but if they were of opinion that the defendant's name as the principal was not mentioned by M'Kune to the plaintiffs at the time of the order being given, and that the plaintiffs did not [81] then know that the defendant was the principal, and they did not think, upon all the said facts of the case, that the plaintiffs at the time of the order being given knew who the principal was, so that they then had a power of electing whether they would debit the defendant or M'Kune, they ought to find a verdict for the plaintiffs; and that, although the plaintiffs at the time of the sale might think that M'Kune was not buying the goods upon his own account, yet if his principal was not communicated or made known to them, that circumstance ought to make no difference in the case. The jury, after finding as a fact that the letter containing the order was not shewn and made known to the plaintiffs, gave their verdict for the plaintiffs below for 2191. 10s. It was contended, that the mayor and bailiffs, by the recorder, ought to have directed the jury that if they were satisfied that Davenport, &c. at the time of the order being given knew that M'Kune was buying the goods as an agent, even though his principal was not communicated or made known to them, they, by afterwards debiting M'Kune, and so rendering the said invoices, had elected to take him for their debtor, and had precluded themselves from calling on Thomson.

Joy for the plaintiff in error. Davenport and Co., the sellers of these goods, knowing that M'Kune was an agent, and electing to take him as their debtor, cannot now resort to Thomson. The two following propositions will not be disputed. Where the seller of goods, knowing that the buyer, though dealing in his own name, is, in truth, the agent of another, elects to give the credit to such buyer, he cannot afterwards recover [82] their value from the principal. On the other hand, if the seller be ignorant at the time of the sale that the purchaser is buying for another person, that person may be sued, unless where the seller may have abandoned his right to resort to him. Of these two propositions, the first is absolute; the second conditional. It will be contended, that this is an intermediate case, and altogether new. But it clearly falls within the first of the above propositions; or, if it can be said to range between them at all, it is not equidistant, but approximates to the first more nearly than to the second. Or, thirdly, if it were practicable to force it nearer to the second, this case would clearly fall within the condition. Here the sellers were distinctly informed, that the buyer was in truth the agent of another, and yet they elected to give credit to such agent. They have, therefore, thus precluded themselves from recovering over against the principal. They chose to treat the agent as their debtor, with a full knowledge that the goods were for another. They were so satisfied to have the agent for their debtor, that they did not even ask the name of his principal. It was natural they should prefer him to a house at Dumfries, the members of which resided out of the reach of the laws of England. It will be said, that they could not elect to take him as their debtor, because the name of the principal was not mentioned. But that was the fault of the sellers: they did not ask the name. They were told the goods were for a house at Dumfries. There was no attempt at concealment on the part of the buyer. If they had not fully decided, at the time of making the contract, to

prefer M'Kune to any house in Dumfries, they would surely have enquired for what house he was acting. [83] This omission made their preference of him manifest. They knew not only that M'Kune was buying for another, but they knew also the description of that other, viz. a house in Dumfries. Beyond this, what was there in the name? Or, if any thing worth their knowing, their ignorance of it was solely imputable to their own laches. Caveat venditor. If they wilfully closed their eyes against further light then, they cannot now complain that it was imperfect. But they had abundant information whereon to exercise an election, and by their conduct they have shewn that they preferred to take M'Kune as their debtor. The name of the principal is wholly immaterial, if the sellers, knowing that there is a principal, elect to take the agent as their debtor. If this case, therefore, come nearer to the second proposition, the sellers must be held to have abandoned their right to resort to the principal. This doctrine is fully established by Paterson v. Gandassequi (15 East, 62), and Addison v. Gandassequi (4 Taunt. 574); and partially confirmed by Maanss v. Henderson (1 East, 335), where it was held to be a sufficient intimation of the agent's character, that he, in time of war, described a ship as neutral. It is consonant to the general principle of the law merchant, as evinced by its admission in the case of foreign principals. And as, in respect to the difference of Courts and the difficulties of executing process, a Scotchman domiciled in Dumfries stands much in the same position as a foreigner, the same rule should hold as to both. In point of law, therefore, this doctrine is consistent with the decisions in analogous cases; in point of commercial [84] policy, it is expedient; and in point of equity, between these parties, it is just.

Patteson contrà. It is undoubtedly established by the authorities, that if the seller knows that there is a principal, and also who that principal is, and afterwards gives credit to the agent, he thereby makes his election, and abandons his right to resort to the principal. But, in this case, the seller did not, either at the time of the sale or at the time when he gave credit to the agent, know the name of the principal; he had not, therefore, the power of making any election. This case, therefore, does not fall within the authorities cited. On the other hand, it is clearly established, that if the seller does not at the time of the sale know that the buyer is an agent, he may when he discovers the fact, sue the principal, although in the meantime he has given credit to the agent. The present is an intermediate case, for here the seller knew at the time of the sale that the buyer was an agent, but did not know for whom he was agent. The seller was not bound to enquire the name of the principal; and therefore this case belongs to the latter, rather than the former class. The seller cannot make his election between the agent and principal until he knows who the principal is; for the election implies a comparison of their individual credit. The right to resort to the principal could be determined only by reason of the seller having exercised an election, and that right was not put an end to in this case, because no election was or could be exercised. Neither is the buyer injured by the seller suing the principal; the credit had not expired when the action was commenced, nor had the buyer settled any account with his principal. The [85] buyer, therefore, is not in a worse situation than he was before. Wilson v. Hart (7 Taunt. 296), and Seymour v. Pychlau (1 B. & A. 14), shew that the rule, as to discharging the principal, is not to be extended. As to the argument from inconvenience, if an unknown principal is not to be liable when discovered, great inconvenience will follow. The majority of contracts are made by agents who are known to be agents, but the names of their principals are not known. In Moore v. Clementson (2 Campb. 22), it was held, that although a factor sells goods as a principal, yet, if, before they are all delivered, and before any part of them is paid for, the purchaser is informed that they belong to a third person, in an action by the latter for the price of them, the purchaser cannot set off a debt due to him from the factor. Lord Ellenborough there says, "A man who is in the habit of selling the goods of others, may likewise sell goods of his own; and where he sells goods as a principal, with the sanction of the real owner, the purchaser, who is thus led to give him credit, shall on no account afterwards be deprived of his set-off by the intervention of a third person. But here there was express notice to the purchaser, before the contract was completed, that Green, in this particular transaction, acted only as a factor." In Railton v. Hodgson (d), the sellers gave credit to Smith, Lindsay, and Co.; but it was held, they might

(d) Cited in Paterson v. Gandassequi, 15 East, 64.