SECTION III.

Whether the Third Party can hold the Agent.

SIMON v. MOTIVOS.

KING'S BENCH. 1766.

[3 Burr. 1921.]

THIS action was brought against the defendant, who had bought goods at an auction, which were not taken away according to the conditions of sale, but put up again and resold.

There was a verdict for the plaintiff; and the defendant moved for a new trial.

The defendant was a broker; and bid for one Durant; but did not name his principal, till some days after.

The auctioneer, when he knocked down the lots to the highest bidder, put down his name, in the usual manner, as the purchaser of those goods. The defendant came, the next day, and saw the goods weighed.

The objection now made was, "That this contract, not being in writing, was void by the Statute of Frauds."

But the Court were all clearly of opinion, that the auctioneer must be considered as agent for the buyer (after knocking down the hammer) as well as for the seller; and that his setting down in writing the name of the buyer, the price, etc., was sufficient to take it out of the statute; and that the buyer's coming the next day, and seeing the goods weighed, was an additional circumstance that deserved attention. And they inclined to think "That buying and selling at auctions was not within the Statute of Frauds."

Upon the whole (though no earnest was actually paid), they discharged the rule which had been made upon the plaintiff, for him to show cause why the verdict which he had obtained against the buyer should not be set aside, and why there should not be a new trial.1

1 Acc.: McComb v. Wright, 4 Johns. Ch. 659 (1820); Royce v. Allen, 28 Vt. 234 (1856); McClellan v. Parker, 27 Mo. 162 (1858); Pierce v. Johnson, 34 Conn. 274 (1867).

It is settled that sales at auction are within the Statute of Frauds. Kenworthy v Schofield, 2 B. & C. 945 (1824). — ED.

S. DAVENPORT & CO. v. RILEY AND O'HEAR.

CONSTITUTIONAL COURT OF SOUTH CAROLINA.

[2 McCord, 198.]

1822.

In the City Court, April Term, 1822. Process to recover $57, the difference between the value of sound and damaged cotton.

"The fact of the damage and the quantum of the injury were clearly proved. It was further shown by a witness for the plaintiffs, that the cotton was purchased from the defendants, who were well known to be factors in Charleston; that when the defendants were informed by the witness that the cotton was damaged, they said that it belonged to a planter, and not to them, they having sold it as factors. The sales were made out in the manner which is customary with factors, and the bags were stated in the bill to be marked L; previously to bringing the suit, the attorney of the plaintiffs wrote a letter to the defendants, who, in their answer to it, replied that the cotton was the property of a Mr. Lapeine, in King Street, and that they had disposed of it as factors. The plaintiffs' counsel insisted that, as the defendants had sold without disclosing the name of their principal, they were personally responsible. The defendants contended that, the sale having been made by them in their character of factors, the principal was exclusively liable. I decreed for the defendants, upon the ground that it was manifest that the sale had been made by them as factors, consequently that they could not be rendered individually liable unless they had entered into some special assumpsit or undertaking. Notice was served upon me that a new trial would be moved for upon the grounds which are enclosed. "WM. DRAYTON, Recorder."

RICHARDSON, J., delivered the opinion of the Court: In the case of Rabone v. Williams, 7 T. R. 356, Lord Mansfield says: "Where a factor dealing for a principal, but concealing that principal, delivers goods in his own name, the person contracting with him has a right to consider him, to all intents and purposes, as the principal; and though the real principal may bring an action, yet the purchaser may set off any claim he may have against the factor." This has been long settled. In the case of Mauri v. Hefferman, 13 Johns. 58, it is decided that to excuse an agent he should have communicated his agency. See also 2 Str. 1182 and 2 Camp. 24 and 341, where the same rule is fully recognized. Without such a rule, the opportunity of committing frauds would be infinite, and the greatest caution in contracts utterly vain. For instance, a country trader, who had purchased goods of a respectable and responsible merchant, upon discovering that they were unsound, might be turned over for his remedy to an unknown foreigner. A citizen who purchased a horse in the same situation

might be sent to Kentucky for the restoration of his money, thongh he had contracted with a livery stable keeper resident here. A foreign trader who has purchased our produce, upon the character of an established factor or other vendor of known responsibility, might be referred to an insolvent debtor.

It cannot be doubted that strangers coming to purchase of us will not only deal more readily, but even give higher prices to known factors, because of their responsibility. And such a reliance is a part of the contract not to be trifled with. The rule, then, that every man is liable upon his own contracts unless he lets the opposite party know that he is a mere agent for another, must be preserved. Men depend pon those with whom the contract is made; and are not to be supposed as confiding in mere strangers. To say that the authority of a factor's employment is of itself notice to a purchaser, would be too ausafe. Factors of every description often sell for themselves. With our factors, selling rice or cotton, it is often that they are the planters, and may be speculators in the produce too.

The motion therefore is granted.

Dunkin & Campbell, for the motion.

Hamilton & Petigru, contra.

HENRY J. CHASE, APPELLANT, v. DEBOLT, APPELLEE.

THIS was a suit originally brought before a justice of the peace of Peoria County, by the appellee against the appellant, when judgment was rendered for the plaintiff below, for $75.933.

The case was appealed to the Circuit Court, and heard before the Hon. John D. Caton and a jury, at the October term 1845. Verdict and judgment for the plaintiff, for the amount recovered before the justice.

A summary of the evidence will be found in the opinion of the Court.

E. N. Powell and W. F. Bryan, for the appellant.

A. Lincoln and H. O. Merriman, for the appellee.

SCATES, J. Debolt sued Chase before a justice of the peace for $75.933 on an account for work and labor done upon Jubilee College...

1 WILSON, C. J., and LOCKWOOD, J., did not sit in this case.—

- REP.

2 The omitted passages hold that there was no error in admitting certain evidence to which objection had been made as hearsay. - ED.

The refusal of the Court to grant a new trial is also assigned for error. All the evidence is set out in the bill of exceptions. The plaintiff's whole bill of items amounted to $75.932, which was all allowed by the jury. From the evidence, it appears that Chase was the agent of Bishop Chase in hiring labor and superintending the work on Jubilee College. Debolt asked Bennett, a clerk in the store at Jubilee, if he could get work on the college. Bennett answered that he supposed he could, but that Henry J. Chase was the agent who employed all hands. He went to Chase, who employed him, but he did not tell him that he was agent for the bishop. Debolt frequently received pay from the bishop. The account of labor was always returned to Bennett to the store, and he gave orders upon the bishop for the pay; when he had not the change, he would send to the store, and Bennett would pay. One order for eight dollars given Debolt on the bishop for work, had been returned receipted by Debolt; and also another receipt had been given by Debolt for one dollar received of Bishop Chase. Witness supposed that when Debolt was receiving pay for his labor, he knew he was receiving it of Bishop Chase. He further testified that Henry J. Chase had had no work done for him by Debolt.

Daniel Blucher, another witness, testified that he had worked on Jubilee College; that Debolt commenced in the fall and worked until spring, during the time witness worked; that witness had been employed by H. J. Chase; that he knew he was working for the bishop, and Debolt also knew that he was working for Bishop Chase; that witness had always received his pay from the bishop, and never from H. J. Chase, although he had worked some days on the College farm. The admissions of the plaintiff, Chase, proven by the justice, were, that he had employed the defendant, Debolt, to work on the college, as the agent of Bishop Chase, but did not inform defendant at the time that he was only an agent, but the work was done for the bishop; that defendant never worked for him, and he owed him nothing, and that defendant had received from the bishop the greater portion of his pay. The Court never interferes with verdicts upon facts, for any slight preponderance of testimony. But where there is a strong preponderance of testimony it will set verdicts aside, especially where apparent injustice has been done.

Agents may become liable for contracts made for their principals, where they conceal or do not disclose their character of agent, and it is unknown to the party with whom they contract, and they may also by the nature and character of the contract entered into. But it is quite immaterial whether the agent disclose his character or his principal, himself, if it be actually known at the time to the other party. In such case the agent will not be bound, unless he enter into such a contract as will bind him at all events.

In this case, we cannot doubt that Debolt knew at the time he was employed, that plaintiff was merely an agent, for he had before been

so informed by Bennett, and he afterwards took orders to, and received payment of the bishop. The fact of plaintiff's agency was known to a co-laborer, and from these circumstances, the preponderance of testimony to establish these facts is clear, strong, and irresistible upon the record. And establishing this fact discharges the plaintiff from all liability, as there is nothing in the nature of this simple hiring to charge him. In another particular the verdict is manifestly against the weight of evidence. The jury have allowed the plaintiff's whole account, although two receipts were in evidence, showing that he had been paid nine dollars.

Upon the facts in the record, we feel compelled to reverse the judg ment and award a new trial. Judgment reversed with costs, and cause remanded with directions to award a venire de novo.

Judgment reversed.1

PIKE, SONS, & CO. v. ONGLEY AND THORNTON.
QUEEN'S BENCH DIVISION AND COURT OF APPEAL. 1887.
[18 Q. B. D. 708.]

MOTION for a new trial or to enter judgment for the defendants on the ground of misdirection and misreception of evidence.

The action was brought against the defendants, who were hop brokers, to recover damages for the non-delivery of hops equal to sample sold under a written contract in the following terms: "Sold by Ongley & Thornton to Messrs. Pike, Sons, & Co., for and on account of owner, 100 bales, Hallertau Bavarian hops, at 52s. per cwt. Delivery in October. (Signed) for Ongley & Thornton, S. T." At the trial before MANISTY, J. and a special jury, the plaintiffs contended that the defendants were personally liable on the contract, and evidence was tendered to show that, by the custom of the hop trade in such a contract, if the principal be not disclosed at the time of making the contract, the broker is in fact regarded as the principal and is held liable. The evidence was admitted by the learned judge. It was admitted by the parties that the plaintiffs had not asked the defendants for the name of their principal, but there was evidence to show that the plaintiffs in fact knew that he was a foreigner. The jury found a verdict for the plaintiffs, and judgment was entered in accordance with the finding.

Winch, for the defendants.

Murphy, Q. C., and Pyke for the plaintiffs.

DAY, J. The document upon which this action was brought is a sale note of the defendants, who purported to sell thereby certain Acc. Boston & Maine Railroad v. Whitcher, 1 Allen, 497 (1861); Warren v. Dickson, 27 Ill. 115 (1862). — ED.