maintain an action against the defendant, who had had the goods. The defendant here has had the goods, and in justice ought to pay for them, unless the plaintiff has done any thing to preclude himself from suing, or unless it be shewn that by suing the defendants he is altering the rights of other parties, and neither of those things can be shewn.

[86] Lord Tenterden C.J. I am of opinion that the direction given by the learned recorder in this case was right, and that the verdict was also right. I take it to be a general rule, that 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 mean time 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 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. The present is a middle case. At the time of the dealing for the goods, the plaintiffs were informed that M'Kune, who came to them to buy the goods, was dealing for another, that is, that he was an agent, but they were not informed who the principal was. They had not, therefore, at that time the means of making their election. It is true that they might, perhaps, have [87] obtained those means if they had made further enquiry; but they made no further enquiry. Not knowing who the principal really was, they had not the power at that instant of making their election. That being so, it seems to me that this middle case falls in substance and effect within the first proposition which I have mentioned, the case of a person not known to be an agent; and not within the second, where the buyer is not merely known to be agent, but the name of his principal is also known. There may be another case, and that is where a British merchant is buying for a foreigner. According to the universal understanding of merchants, and of all persons in trade, the credit is then considered to be given to the British buyer, and not to the foreigner. In this case, the buyers lived at Dumfries; and a question might have been raised for the consideration of the jury, whether, in consequence of their living at Dumfries, it may not have been understood among all persons at Liverpool, where there are great dealings with Scotch houses, that the plaintiffs had given credit to M'Kune only, and not to a person living, though not in a foreign country, yet, in that part of the King's dominions which rendered him not amenable to any process of our Courts? But, instead of directing the attention of the recorder to any matter of that nature, the point insisted upon by the learned counsel at the trial was, that it ought to have been part of the direction to the jury, that if they were satisfied the plaintiffs, at the time of the order being given, knew that M'Kune was buying goods for another, even though his principal might not be made known to them, they, by afterwards debiting M'Kune, had elected him for their debtor. The point made by the defendant's counsel, [88] therefore, was, that if the plaintiffs knew that M'Kune was dealing with them as agent, though they did not know the name of the principal, they could not turn round on him. The recorder thought otherwise: he thought that though they did know that M'Kune was buying as agent, yet, if they did not know who his principal really was, so as to be able to write him down as their debtor, the defendant was liable, and so he left the question to the jury, and I think he did right in so doing. The judgment of the Court below must therefore be affirmed.

Bayley J. There may be a course of trade by which the seller will be confined to the agent who is buying, and not be at liberty at all to look to the principal. Generally speaking, that is the case where an agent here buys for a house abroad. There may also have been evidence of a course of trade, applicable to an agent living here acting for a firm resident in Scotland. But that does not appear to have been made a point in this case, and it is not included in the objection which is now made to the charge of the recorder. In my opinion, the direction of the recorder was right; and K. B. XXXVIII.—2

it was, with the limits I have mentioned, perfectly consistent with the justice of the case. Where a purchase is made by an agent, the agent does not of necessity so contract as to make himself personally liable; but he may do so. If he does make himself personally liable, it does not follow that the principal may not be liable also, subject to this qualification, that the principal shall not be prejudiced by being made personally liable, if the justice of the case is that he should not be personally liable. If the principal has paid the agent, or if the state of accounts between the agent here and the principal [89] would make it unjust that the seller should call on the principal, the fact of payment, or such a state of accounts, would be an answer to the action brought by the seller where he had looked to the responsibility of the agent. But the seller, who knows who the principal is, and instead of debiting that principal, debits the agent, is considered, according to the authorities which have been referred to, as consenting to look to the agent only, and is thereby precluded from looking to the principal. But there are cases which establish this position, that although he debits the agent who has contracted in such a way as to make himself personally liable, yet, unless the seller does something to exonerate the principal, and to say that he will look to the agent only, he is at liberty to look to the principal when that principal is discovered. In the present case the seller knew that there was a principal; but there is no authority to shew that mere knowledge that there is a principal, destroys the right of the seller to look to that principal as soon as he knows who that principal is, provided he did not know who he was at the time when the purchase was originally made. It is said, that the seller ought to have asked the name of the principal, and charged him with the price of the goods. By omitting to do so, he might have lost his right to claim payment from the principal, had the latter paid the agent, or had the state of the accounts between the principal and the agent been such as to make it unjust that the former should be called upon to make the payment. But in a case circumstanced as this case is, where it does not appear but that the man who has had the goods has not paid for them, what is the justice of the case? That he should pay for them to the seller or to [90] the solvent agent, or to the estate of the insolvent agent, who has made no payment in respect of these goods. The justice of the case is, as it seems to me, all on one side, namely, that the seller shall be paid, and that the buyer (the principal) shall be the person to pay him, provided he has not paid any body else. Now, upon the evidence, it appears that the defendant had the goods, and has not paid for them either to M'Kune or to the present plaintiffs, or to any body else. He will be liable to pay for them either to the plaintiffs or to M'Kune's estate. The justice of the case, as it seems to me, is, that he should pay the plaintiffs who were the sellers, and not any other person. I am, therefore, of opinion that the direction of the recorder was right.

Littledale J. The general principle of law is, that the seller shall have his remedy against the principal, rather than against any other person. Where goods are bought by an agent, who does not at the time disclose that he is acting as agent; the vendor, although he has debited the agent, may upon discovering the principal, resort to him for payment. But if the principal be known to the seller at the time when he makes the contract, and he, with a full knowledge of the principal, chooses to debit the agent, he thereby makes his election, and cannot afterwards charge the principal. Or if in such case he debits the principal, he cannot afterwards charge the agent. There is a third case; the seller may, in his invoice and bill of parcels, mention both principal and agent: he may debit A. as a purchaser for goods bought through B., his agent. In that case, he thereby makes his election to charge the principal, and cannot afterwards resort to the agent. [91] The general principle is, that the seller shall have his remedy against the principal, although he may by electing to take the agent as his debtor, abandon his right against the principal. The present case differs from any of those which I have mentioned. Here the agent purchased the goods in his own name. The name of the principal was not then known to the seller, but it afterwards came to his knowledge. It seems to me to be more consistent with the general principle of law, that the seller shall have his remedy against the principal, rather than against any other person, to hold in this case that the seller, who knew that there was a principal, but did not know who that principal was, may resort to him as soon as he is discovered. Here the agent did not communicate to the seller sufficient information to enable him to debit any other individual. The seller was in the same situation, as if at the time of the contract he had not known that there was any principal besides

the person with whom he was dealing, and had afterwards discovered that the goods had been purchased on account of another; and, in that case, it is clear that he might have charged the principal. It is said, that he ought to have ascertained by enquiry of the agent who the principal was, but I think that he was not bound to make such enquiry, and that by debiting the agent with the price of the goods, he has not precluded himself from resorting to the principal, whose name was not disclosed to him. It might have been made a question, whether it was not a defence to this action that the principal resided in Scotland. But that was not a point made at the trial, nor noticed in the bill of exceptions; we cannot, therefore, take it into our [92] consideration. For the reasons already given, I think the plaintiff is entitled to recover. Judgment affirmed.

Parke J., having been concerned as counsel in the cause, gave no opinion.

SINCLAIR AND ANOTHER against BOWLES. Friday, February 6th, 1829. Where A. undertook, for a specific sum of money, to repair and make perfect a given article, then in a damaged state, and did repair it in part, but did not make it perfect; it was held, that he could not, in an action of assumpsit, recover for the value of the work done and materials found.

[S. C. 4 Man. & Ry. 1; 7 L. J. K. B. O. S. 178. 1867, L. R. 2 C. P.

Principle applied, Appleby v. Myers, 661.]

This was an action of assumpsit for work and labour done, and materials found and provided, and goods sold, &c. brought by the plaintiffs, who were glass-cutters and benders, against the defendant, who was a tavern-keeper. At the trial before Parke J., at the London sittings in this term, the plaintiffs proved that they had repaired three glass chandeliers for the defendant, and that 101. was a reasonable price for the work done, and materials provided. On the part of the defendant it was proved, that in April last one of the plaintiffs called upon him, and asked if he wanted any new chandeliers; the defendant said he did not, but that he wanted some old ones repaired he desired the plaintiff to look at them minutely, and to say what he could do them for. The plaintiff at first said he would do them for 81. The defendant observed, that a great deal must be done to them, that three arms were wanting, and that if the plaintiff would do them complete, so as to look well, he would give 101. The plaintiff then looked at them again, and said he would make them complete for that sum. On the following day the [93] plaintiff came to take them away; and the defendant then told him not to take them away unless he would make them complete for the 101. The plaintiff took them away. They were brought back in a few days. They had been cleaned, and some icicles and drops supplied, but they were not in a perfect state. One of the arms, which was perfect when it was taken away, was broken, and several of the spangles and icicles damaged; and, in one of the chandeliers, the scroll, which had been sent damaged, was brought back in the same state. Upon this the defendant refused to give the plaintiff an order for the money. It was contended, on the part of the plaintiffs, that even if the jury believed the evidence given on the part of the defendant, the plaintiffs were entitled to recover for the work actually done, and materials provided for the chandeliers. The learned Judge was of opinion that the contract between the parties was entire, and that the plaintiffs were not entitled to recover at all, unless they had made the chandeliers perfect, according to the contract; but in order to save expense to the parties, he left it to the jury, upon the evidence, to say, first, whether the contract had been substantially completed, according to the intention of the parties? And, if it had not, secondly, whether the defendant had derived any benefit, and to what amount, for the work done? The jury found first, that the contract had not been performed; and, secondly, that the defendant had derived benefit from the work done, to the amount of 51. The learned Judge then directed a nonsuit, but reserved liberty to the plaintiffs to move to enter a verdict for 51.

[94] Gurney now moved accordingly. The defendant, having derived benefit from the work done by the plaintiffs, is in justice bound to pay for it. [Bayley J. The contract was entire the defendant having never been discharged from his obligation to complete it.] Where an entire contract for goods is performed in part, and some of the goods have been delivered, and the vendee does not return them upon the

failure of the vendor to perform his part of the contract, the vendor may bring an action for the value of the goods delivered, although he is liable to a cross action for the breach of his contract. Here the plaintiff not only cleaned the chandeliers, but he provided icicles and drops: the things so provided ought to have been returned.

Lord Tenterden C.J. The plaintiff ought to have demanded those articles. The contract between the parties was, that the plaintiff should make the chandeliers perfect for 101. The plaintiff has not performed his part of the contract, and cannot, therefore, recover any thing in this form of action.

Rule refused (a).

[95] THE KING against THE COMPANY OF PROPRIETORS OF THE MERSEY AND IRWELL NAVIGATION. Saturday, February 7th, 1829. By an Act of Parliament, certain persons were authorised to make the rivers Mersey and Irwell navigable from L. to H., and to maintain such navigation; and, for those purposes, to clear, cleanse, scour, open, enlarge, or straighten the river, and to dig and cut the banks, and to make new cuts, trenches, or passages for water through lands adjoining, and to build bridges, sluices, locks, &c., and to do all other things necessary for making and maintaining the navigable passage, first, giving satisfaction to the owners of lands; and, in consideration of the expenses to be incurred, the undertakers were authorised to take for their own proper use and behoof certain tolls. The undertakers made the river navigable, scoured and cleansed the same, and purchased lands for towing-paths and cuts: Held, that they were not liable to be rated to the poor for land taken for the purpose of the navigation, because they were not occupiers of that land, but had a mere easement in it; secondly, that they were liable to be rated for the new cuts; thirdly, that they were liable to be rated for the wears, locks, and dams erected on their own lands. [S. C. 4 Man. & Ry. 84; 7 L. J. M. C. O. S. 70. See Holywell Union v. Halkyn Drainage Company, [1895] A. C. 132; Doncaster Assessment Committee v. Manchester, Sheffield and Lincolnshire Railway, [1895] A. C. 133, n.]

Upon appeal against an assessment made by the churchwardens and overseers of the poor of the township of Barton-upon-Irwell, in the county of Lancaster, for the relief of the poor of the said township, whereby the defendants were rated as owners and occupiers on an annual charge of 29081. 7s. 6d., for land taken and used for the Mersey and Irwell Navigation, towing-paths, locks, and tonnage arising therefrom. The sessions amended the rate, by reducing the sum of 29081. 7s. 6d. to 26001., upon the ground that the amount of tonnage was overvalued, subject to the opinion of this Court on the following case:

By an Act of 7 G. 1, entitled "An Act for Making the Rivers Mersey and Irwell Navigable from Manchester to Liverpool, in the County of Lancaster," certain persons therein nominated as undertakers, their heirs and assigns, were authorized, at their proper costs and charges, to make the rivers Mersey and Irwell navigable and passable for boats, barges, lighters, and other vessels, from Liverpool to Hunt's Bank, in Manchester; and to maintain and use such navigation by themselves or others, in such manner in, by, through, and upon the said rivers, as they should think fit; and for those purposes [96] to clear, scour, open, enlarge, or straighten the riversMersey and Irwell, and to dig or cut the banks thereof; and to make any new cuts, trenches, or passages for water, in or through the lands and grounds adjoining or near unto the said rivers, or either of them, as should be necessary for the navigation of boats and other vessels, and any way necessary for the convenient carrying on and effecting the said undertaking, were it the soil or ground of His Majesty, or of any other person whatsoever; and, if necessity required, to cut and remove trees, gravel beds, &c. which might hinder the navigation; and to build and erect on or over the said rivers or lands adjoining or near to the same, or the said new cuts, trenches, or passages so to be made, such and so many bridges, sluices, locks, wears, and other works as should be necessary, where they should think fit, and to alter, repair, increase, enlarge, and amend the same; to make and use necessary ways and passages for carrying goods, &c. upon, to, or from the said rivers,

(a) Shipton v. Casson, 5 B. & C. 378.

passages, trenches, or cuts; to amend, heighten, or alter any bridges, or to turn or alter any highways in, upon, or near to the said rivers, cuts, &c.; and to pull down, alter, or demolish any mill, wear, or other obstruction upon or contiguous to the rivers, cuts, &c.; to set out and make towing-paths for towing boats and other vessels passing in or upon the said rivers or cuts, &c.; and to do all other things necessary for making and maintaining the navigable passage of the rivers, or for the improvement thereof, the undertakers or their heirs doing as little damage as might be; first giving satisfaction to the respective owners of such mills, wears, lands, tenements, or hereditaments as should be pulled down, demolished, altered, dug up, cut, re-[97]-moved, or otherwise made use of or damaged by carrying on or maintaining the navigation. And it was further enacted, that in consideration of the great charges and expenses the undertakers, their heirs or assigns, would be at, not only in making the rivers navigable, but also in making, erecting, repairing, cleansing, maintaining, keeping up, and continuing the wears, works, locks, dams, sluices, bridges, and other matters necessary to be made as aforesaid, it should be lawful for them, &c. and no others, at all times thereafter to demand, receive, recover, and take for their own proper use and behoof, in respect of their charges and expenses aforesaid, for all and every such coal, cannel, stone, timber, and other goods and commodities whatsoever, as should be carried or conveyed in any boat, barge, lighter, or other vessel in, upon, to, or from any part of the said rivers Mersey and Irwell, between Bank Key and the said place called Hunt's Bank, in Manchester aforesaid, such rates and duties for tonnage, over and besides what should be paid for freight or carriage of the said goods, as the undertakers, &c. should think fit, not exceeding 3s. 4d. for every ton of such coal, cannel, &c.; and so proportionally for every greater or less quantity or weight, the same rates and duties to be paid at such places near to the said river, and in such manner as the undertakers, &c. think fit. And, after reciting that it would be necessary in some places to haul and tow, up and down the said rivers, boats and other vessels by the strength of men, horses, engines, and other means, it was further enacted, that it should be lawful for the undertakers, &c. to set up, and for their boatmen, &c. passing or navigating in or upon [98] the said rivers, or in or upon any cuts, streams, or passages that should be made use of as aforesaid, winches and other engines in convenient places; and by and with the same, by strength of men, horses, or beasts going upon the said banks or lands near to the said rivers, streams, cuts, or passages in convenient manner, without the let or hinderance of any persons whatsoever, to draw, tow, or haul, up or down the said rivers, barges, boats, lighters, and other And it was thereby further enacted, that they should (where wanting), at their own costs and charges, make, set up, and from time to time maintain, convenient gates and bridges, passages, and stiles in all the hedges and fences in the towing-paths to be set out as aforesaid, and over the new cuts, trenches, and passages for water so to be made, where necessary for the occupiers of lands, tenements, and hereditaments thereunto adjoining, to come at their lands for the use and occupation of the same, in such manner as the commissioners appointed by that Act should order and direct. And it was further enacted, that if they, &c. should, in pursuance of the powers given by the said Act, raise the water in the rivers Mersey and Irwell above its ancient or usual height, whereby the adjacent lands might be more liable to be overflowed or damaged than they had formerly been, that then they should, at their own proper costs and charges, from time to time cause the banks of the said rivers, and of all such streams, trenches, or brooks as come into the said rivers, or either of them, to be proportionally raised, heightened, and strengthened where need should require, so as the two banks should be able to contain the water at such its raised height; and also should main-[99]tain and repair the banks as often as occasion should require; and if they, in pursuance of the powers aforesaid, should make any cuts, trenches, or passages for water, by reason whereof, or if by means of the navigation to be made as aforesaid, any persons should not have convenient ingress or egress into or out of their lands, tenements, or other hereditaments, as they before that time had, or as occasion should require, then the undertakers should, at their own proper costs and charges, make, erect, and maintain such sufficient bridges or other sufficient passages over or near to every such new cut, &c. as by the said commissioners should be directed. And it was further enacted, that the said rivers Mersey and Irwell for ever thereafter should be esteemed navigable from Liverpool to Hunt's Bank in Manchester, and that all the King's subjects, with their goods and merchandize, might have their free passage upon the said rivers,