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his principal, and receiving money as agent, he cannot afterwards say that he did not receive it for the benefit of his principal, but for that of some other person (g). So where a ship originally belonged to one of the partners, and had been conveyed to A. for securing a debt, and A. became sole registered owner of the ship, and afterwards as agent for both partners insured the ship and freight and charged them with the premiums, the court held, on a loss happening, the money being paid to A. by the underwriters, that he was accountable to the assignees of the surviving partners for the surplus, after payment of his own debt, and not to the executors of the deceased partner, to whom the ship originally belonged (g). The same rule applies in the case of brokers (h), warehousemen, and wharfingers (¿).

This rule, however, is not of universal application, for the estoppel ceases when the bailment on which it is founded is deter

tracts. Plaintiffs did not furnish the gold to fulfill their contracts, but defendant furnished and delivered it, receiving the currency agreed to be paid therefor. Plaintiffs thereafter tendered to defendant the amount of gold so delivered, and demanded the currency received, which the latter refused to pay. In an action to recover the same, held, that while the defendant was not bound to perform the contract on behalf of plaintiffs, as they did not furnish the gold, yet, having done so, it was estopped from denying plaintiffs' right to the benefit of the contract; that plaintiffs by asserting their claim to the money received, adopted and ratified defendant's act, and the rights and obligations of the parties were to be determined by the rules governing the relation of principal and agent. Fowler v. N. Y. Gold Exchange Bank, 67 N. Y. 138.

Where, during a delay occurring between the date of the sale and the conveyance of the real estate of the defendant to a third person, the plaintiff, being a tenant of the defendant on such real estate, makes certain improvements

thereon without authority from any one, and the defendant undertakes with the plaintiff to collect, and does collect of such third person the value of such improvements, for the plaintiff, the defendant thereby becomes the agent of the plaintiff, and is liable to the latter for the amount so collected, in an action therefor, and cannot introduce evidence on the trial to show that such improvements were made without authority. Reed v. Dougan, 54 Ind. 306.

Where an agent receives money from his principal to be invested in goods for him, and uses the money so furnished (with his own money) in making the purchase, but takes the title in his own name, and repudiates the trust, a court of equity will enforce the trust against him, and will not allow him to set up the Statute of Frauds in his defense, on the ground that his agency was without written authority. Firestone v. Firestone, 48 Ala. 128.

(g) See per Abbott, C. J., Dickson v. Hamond, 2 B. & Ald. 310.

(h) Roberts v. Ogilby, 9 Price, 269. (i) Betterley v. Read, 4 Q. B. 511.

mined by what is equivalent to an eviction by title paramount (). A bailee has no better title than the bailor, and consequently, if a person entitled as against the bailor to the *prop- [251*] erty claims it, the bailee has no defence against him (7).1

This exception to the rule must in its turn be distinguished from those cases where the estoppel proceeded on a representation by the agent, which was analogous to a warranty of title for good consideration to the purchaser (m).

Although an auctioneer has a right of action for goods sold by him in the course of his business, yet when the right of a third person intervenes, and such right is established, and the person employing the auctioneer is proved not to be the owner, it then becomes clear that the auctioneer, who can have no interest in the goods but what he receives from his employer, has no longer any claim upon the property against the right owner (n).

The proposition, that wherever the relation of a principal and agent for sale exists, there a bill for an account will lie, appears to have been first laid down by Vice-Chancellor Sir John Leach in 1819 (o). In the case then before him it was contended that the plaintiff might file a bill for discovery only, but not for relief, as there was only one article to account for, viz., a cargo of earth

enware.

A question which has been much debated is, whether the mere relation of principal and agent entitled the former to come into equity for an account, if the matter could be fairly tried at law.3

(k) Biddle v. Bond, 34 L. J., Q. B. 137, and cases there cited; Dickenson v. Naul, 4 B. & Ad. 638.

(1) Wilson v. Anderton, 1 B. & Ad. 450; Biddle v. Bond, supra.

'The bailee will not be excused from his duty to restore the property bailed, to his bailor, unless he shows that it was taken from him by one possessing a paramount title, or by due process of law, or that the title of his bailor is ended. See Burton v. Wilkinson, 18 Vt. 186; McKay v. Draper, 27 N. Y. 256; Bliven v. Hudson R. R. R. Co., 36 id. 403; Bates v. Stanton, 1 Duer, 79; Van Winkle v. U. S. Mail Steamship Co., 37 Barb. 122; Marvin v. Elwood, 11 Paige, 365.

(m) See Stonard v. Dunkin, 2 Camp. 344; Gosling v. Birnie, 7 Bing. 339; Howes v. Watson, 2 B. & C. 540.

(n) Dickenson v. Naul, 4 B. & Ad. 638, per Curiam.

(0) Mackenzie v. Johnston, 4 Mad. 373.

See ante, p. 249.

In Makepeace v. Rogers, 34 L. J. (N. S.) Ch. 396, Lord Justice Turner said: "As to the matter of the accounts, I think that principal and agent are in a relation of trust to each other; and I never heard of a case of general agency where a bill would not lie, although there may be a difference in cases of agency in single transactions only."

A number of authorities and dicta may be cited to negative this proposition. Thus Lord Redesdale has stated the jurisdiction of equity to rest upon the ground, "that the account has become so complicated that a court of law would be incompetent to examine it upon a trial at Nisi Prius with all necessary accuracy" (p). To the same effect Lord Langdale said, in Darthez v. Clemens (q), that "if the account can be fairly taken in a court of common law, this court will not interfere, even in the case of merchants' accounts consisting of mutual dealings." So Lord Justice Turner observed in another case (r), that "the circumstance that a

party may have been agent of the other in receipt of a [252*] certain sum of money, or in *one particular matter, does not necessarily render the case one in which a bill in equity may be brought for an account. This is the view taken at common law (8).

In Barry v. Stevens (t), decided by Lord Romilly in 1862, an author had agreed with a publisher for the publication of 500 copies of his work. The work was published and an account rendered, presenting no intricacy. After action brought by the publisher to recover the balance, the author filed a bill to have an account taken. No error was specified or fraud alleged. A demurrer was allowed. In support of the bill it was contended that an account will be granted, first, where the accounts are mutual; secondly, where they are complicated; and, thirdly, where the parties stand in a fiduciary relation. The plaintiff's claim was based upon the third ground. The Master of the Rolls thought that such action could not be sustained where the matter is comprised within certain specified limits, and the account as it stands a mere money account, for which an action at law may be well brought and tried. In a subsequent case (u), Lord Justice Tur(p) O'Connor v. Spaight, 1 Sch. & where it was held that a land owner Lef. 309.

(q) 6 Beav. 165.

(r) Phillips v. Phillips, 9 Hare, 474; and see per Lord St. Leonards, Navulshaw v. Brownrigg, 2 D., M. & G. 441. (8) See per Alexander, C. B., King v. Rossett, 2 Yo. & Jer. 35.

(t) 31 Beav. 258.

(u) Makepeace v. Rogers, 34 L. J., Ch. 396. [S. C., 4 De G., J., & S. 649,

may maintain a suit in equity against the agent and manager of his estates, if the object of such suit is either to obtain an account (and in that case allegations of fraud or special circumstances are unnecessary), or to obtain the delivery up by the agent of documents in his hands belonging to the land owner.]

and cases

ner drew a distinction between cases of general agency of agency in single transactions only. See Moxon v. Bright (x), where a bill for an account of royalties was dismissed.

Where a bill is brought for an account, and the defendant sets forth a stated one, the latter is primâ facie a bar (y). If it appears that there are only mistakes and omissions in the stated account, the party objecting will be allowed no more than to surcharge and falsify; but if it is apparent to the court that there has been fraud and imposition, the whole account will be opened (2). Where there is fraud the account may be opened after an indefinite time. In Vernon v. Vawdry the stated account was of twenty-three years' standing.

An agent cannot be compelled to account for profits which were made by him before the relation of principal and agent existed. Thus, where contracts were entered into by a person who knew that it was intended to incorporate a company to take them over, and who subsequently upon the formation and incorporation of the company became a director of the company, the *Master of the Rolls held that the company was not enti- [253*] tled to claim the profits so made by the director previous to the incorporation of the company (a). This class of cases must be distinguished from those in which shareholders may proceed against the officers of a company under sect. 38 of the Companies Act, 1867 (6).

'The same distinction was made in Coquillard v. Suydam, 8 Blackf. 24.

See the general subject of account as between principal and agent full considered in 1 Story's Eq. Jur., § 462 et seq.; Willard's Eq. Jur. *104.

(x) L. Rep., 4 Ch. 292.

(y) Dawson v. Dawson, 1 Atk. 1, and

cases cited in note 2.

(z) Vernon v. Vawdry, 2 Atk. 119, and cases in note.

(a) Albion Steel and Wire Company v. Martin, 1 Ch. Div. 580.

(b) 30 & 31 Vict. c. 131; see Twycross v. Grant, 2 C. P. Div. 469.

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