the referee upon offers of evidence, and were properly held by the General Term to be without merit. "The judgment should be affirmed.” William Hildreth Field for appellant. M. W. Divine for respondent. DANFORTH, J., reads for affirmance. All concur. Judgment affirmed. SECTION V. (4) IN AN ACTION BROUGHT BY THE PRINCIPAL AGAINST THE THIRD PARTY. RABONE, JUN., v. WILLIAMS. NISI PRIUS. 1785. [7 T. R. 360, n. (a).] ACTION for the value of goods sold to the defendant by means of the house of Rabone, Sen., and Co. at Exeter, factors to the plaintiff. The defendant, the vendee of the goods, set off a debt due to him from Rabone and Co., the factors, upon another account, alleging that the plaintiff had not appeared at all in the transaction, and that credit had been given by Rabone and Co., the factors, and not by the plaintiff. Lord MANSFIELD, C. J. 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 pur、 poses as the principal; and though the real principal may appear and bring an action upon that contract against the purchaser of the goods, yet that purchaser may set off any claim he may have against the factor in answer to the demand of the principal. This has been long settled.1 Upon this opinion the rest, being a mere matter of account, was referred. 1 In Bayley v. Morley, London Sittings after Mich. 1788, Lord KENYON recognized the law of this case. REP. GEORGE v. CLAGETT AND ANOTHER. KING'S BENCH. 1797. [7 T. R. 359.] On the trial of this action, which was assumpsit for goods sold and delivered to the amount of £142 1s. 9d., before Lord KENYON at the Guildhall Sittings, the case appeared to be this: The plaintiff a clothier at Frome employed Messrs. Rich and Heapy in London, BlackwellHall factors, as his factors under a commission del credere, who besides acting as factors bought and sold great quantities of woollen cloths on their own account, all their business being carried on at one warehouse. The factors sold at twelve months' credit, and were allowed two and a half per cent. On the 30th of September, 1795, Delvalle, a tobacco broker, and who had been in habits of dealing with the defendants, bought several parcels of tobacco of them, and gave them in payment a bill of exchange for £1,198 16s. drawn by one Fisher on Rich and Heapy, on the 24th of September, 1795, payable two months after date to J. Stafford who indorsed to Delvalle, who indorsed it over to the defendants, it having been previously accepted by Rich and Heapy. On the 12th of October, 1795, the defendants bought a quantity of woollen cloths for exportation of Rich and Heapy, amounting to £1,237 18s. 3d. at twelve months' credit; the goods were taken out of one general mass in Rich and Heapy's warehouse; Rich and Heapy made out a bill of parcels for the whole in their own names, and the defendants ⚫did not know that any part of the goods belonged to the plaintiff. Early in November, 1795, Rich and Heapy became bankrupts; and afterwards, on the 20th of the same month, the plaintiff gave the defendants notice not to pay Rich and Heapy for certain cloths specified, part of the above, amounting to £142 18. 9d., they having been his property, and having been sold on his account by Rich and Heapy on commission. The question was whether the defendants were or were not entitled to set off their demand against Rich and Heapy on the bill of exchange, on the ground that the defendants dealt with them as principals; Lord KENYON was of opinion that they were, as well on principle as on the authority of Rabone v. Williams; and a verdict was accordingly found for the defendants. A rule having been obtained, calling on the defendants to show cause why the verdict should not he set aside, and a new trial had, on the authority of the case of Estcott v. Milward, Co. Bank Laws, 236. Gibbs and Giles were now to have shown cause against that rule. Erskine and Walton were called upon to support it. The Court were clearly of opinion that the directions given by the learned judge on the trial of this cause were right; and that this case was not distinguishable from that of Rabone v. Williams. Therefore they Discharged the rule.1 ASSUMPSIT for goods sold and delivered, money lent, money paid, money had and received, and on an account stated. Plea, general issue. On the trial at the London sittings after Trinity term, 1814, a verdict was found for the plaintiffs for £132 148. 6d., subject to the opinion of the Court on the following case: which it was agreed should be turned into a special verdict if the Court should think proper so to direct. The action is brought to recover the price of two parcels of linens sold to the defendant, who resides and carries on business in London, under the firm of Hamley & Lacy, by Messrs. Duckham & Lankester of London. The goods belonged to the plaintiffs, who are linen manufacturers at Bentham, Yorkshire, and were, with others, consigned by them to Duckham & Lankester, as their factors, for sale. The first parcel was sold on the 25th of April, 1810, for £26 18s., at four months' credit from the 1st of June, 1810, and the last on the 25th of May, 1810, for £105 16s. 6d., at four months' credit from the 1st of July, 1810. The plaintiffs were in the habit of sending goods to Duckham & Lankester, to dispose of as their factors and paid them a del credere commission. Duckham & Lankester transmitted to the plaintiffs monthly accounts of the sales, made up from the 24th of one month to the 24th of the following month, but in these accounts the names of the purchasers were not stated. The general course of dealing between Duckham & Lankester and the defendant was for them to draw on him, for the goods purchased by him, at the end of two months from the time the credit began to run, bills at two months; that between Duckham & Lankester and the plaintiffs was for the latter to draw upon Duckham & Lankester for the amount of such sales, at the expiration of two months from the first day of the month succeeding that for which the account was rendered, bills at two months; so that it was in regular course for the plaintiffs to draw, and they did draw on Duckham & Lankester on the 1st of August for the goods sold to the defendant on the 25th of April, and on the 1st of September for those sold on the 25th of May. Duck 1 Acc.: Montagu v. Forwood, [1893] 2 Q. B. 350 (C. A.). ham & Lankester dealt as factors for many other persons besides the plaintiffs, and had been for some time accustomed to sell goods to the defendant; and they did not communicate to him the names of the persons to whom the goods belonged, but the defendant knew they were only factors. The invoices were entitled, "Messrs. Hamley, Lacey, and Co. bought of Duckham, Lankester & Co., cotton and linen factors;" and in them it was stated that no short measure or damages should be allowed unless agreed to within three days after the sale. The invoices of the two parcels in question were so entitled, and Duckham & Lankester also on one occasion acted as factors to the defendant. On the 11th of September, 1810, before the credit at which either of the two parcels of goods was sold had expired, and before the bills which had been drawn by the plaintiffs according to the usual course became payable, Duckham & Lankester stopped payment, and in January following became bankrupt. The plaintiffs not having been paid by Duckham & Lankester for these goods, on the 23d of November, 1810, gave notice to the defendant that the goods sold in May were theirs, and required him to pay them and not Duckham & Lankester for them. Duckham & Lankester, besides selling goods to the defendant as above stated, had a bill-account with him for their mutual accommodation, and kept two separate accounts, the one of the goods, the other of the bill transactions. The defendant kept only one account of the goods and bills. At the time of Duckham & Lankester's stopping payment, there was a balance due to them from the defendant, as appeared upon Duckham & Lankester's books, of £1,945 11s. 5d. on the goods account, and at that time there also appeared a balance in their favor on the bill-account; but in consequence of the defendant having afterwards taken up some returned bills, Duckham & Lankester were debtors upon the two accounts together at the time of the action brought in the sum of £8 5s. The plaintiffs have not been paid for the goods, nor has the defendant paid Duckham & Lankester formally for them. The question for the opinion of the Court is, Whether the plaintiffs are entitled to recover? If they are, the verdict to stand; if not, a nonsuit to be entered. Gaselee, for the plaintiffs. Littledale, contra. Lord ELLENBOROUGH, C. J. I own I cannot think that a commission del credere is to have an effect attributed to it beyond that which regards the benefit of the principal who gives the commission. The commission imports, that if the vendee does not pay, the factor will: it is a guarantee from the factor to the principal against any mischief to arise from the vendee's insolvency. But it varies not an iota the rights subsisting between vendor and vendee. A somewhat different doctrine seems to have originated with Grove v. Dubois. A kind of magic effect was there given to a commission del credere, changing the relative position of the owner and buyer; and what is reported to have fallen from Chambre, J., in a later case, is referable to the same authority; but this was set right, as I think, in the judgment in Morris v. Cleasby, M. & S. 574, which was given after much consideration, and, I may add, with the concurrence of two of our learned brethren on this bench, now, unhappily, no more. The ulterior effect given to this commission in the above cases has created the confusion. As to the argument founded on the drawing of bills, if it had amounted to payment, or to a case of mutual credit, George v. Clagget, 7 T. R. 359, the argument would have been good. This was very recently considered by us in Graham v. Dyster, 6 M. & S. 1. BAYLEY, J. It is important that the relative position of principal and factor should be understood and kept distinct. The factor is agent, the parties to be considered as principals are the owner and buyer. The owner has a right to look for payment to the buyer, unless by some act in which he has concurred he has deprived himself of that right. When he gives a del credere commission, he means to obtain an additional security; that is, the security of the factor; and it would be extremely hard if, instead of having an additional security, he should find that he had only substituted one for another, that he had shifted the responsibility from the buyer to the factor. In Morris v. Cleasby the effect of such a commission was much considered, and it was held that it could not have any such effect. If the vendee pay the factor for the purchase in due course, and according to the contract, he will be protected; but if otherwise, he pays on the credit of the factor. ABBOTT, J. A del credere commission is in the nature of a private agreement between factor and principal, and, therefore, cannot vary the rights of third parties. The present is the case of a sale by a factor, the purchaser knowing him to have been such. Acceptances given, or payment made at the time, according to the usual course of trade, would have discharged the purchaser. No such payment having been made, the principal had a right to step in and require payment to himself. The circumstance of there being a bill-account between the parties does not vary these rights, these being founded on the del credere commission. HOLROYD, J. I am of the same opinion with respect to the effect of a del credere commission and the sale transaction. Where the party selling is known to be a factor, if the vendee pay the price to him, according to the usual course of his authority to receive, this will dis charge him; but it is not by a course of drawing bills between the principal and factor, as stated in the case, that he can be discharged. Judgment for the plaintiff |