CHAPTER VIIL

DELEGATION BY AN AGENT.

SECTION L

The Rule.

PALLISER v. ORD.

NISI PRIUS. 1724.

[Bunbury, 166.]

DEBT was brought upon the certificate of the commissioners for stating the debts due to the army pursuant to the Stat. 6 Geo. for one hundred and five pounds eighteen shillings and seven pence farthing, certified to be due to the plaintiff, for which the statute gave an action of debt upon a demand made and refusal. In proving the demand, it was of one hundred and five pounds eighteen shillings and six pence farthing, instead of seven pence farthing, which varied from the sum certified. Lord Chief Baron EYRE (before whom this cause was tried) was of opinion that this certificate was in the nature of a judgment; that it being a debt thereby reduced to a certainty, and the demand being of a different sum it was fatal; and thereupon the plaintiff was nonsuited.

NOTA, The plaintiff gave an authority to Moore, his attorney, to make the demand, or to authorize any other person to do it, who accordingly executed a letter of attorney to another to do it; so it was objected, for the defendant, that a naked authority could not be delegated. But the Chief Baron was of opinion it might by express authority for that purpose, otherwise not.1

1 Acc. Doe d. Rhodes v. Robinson, 3 Bing. N. C. 677 (1837).

See Cropp's Case, Godbolt, 38 (1557-58); Combes' Case, ante, p. 33; Southerne v. Howe, 2 Rolle's Rep. 5, 6 (1617-18), s. c. Cro. Jac. 468.- ED.

THIS was an action of assumpsit for not accounting for goods deliv ered by the plaintiff to the defendant, to be sold on her account.

The defendant is master of a ship trading from this country to the West Indies, and the plaintiff intrusted to him a quantity of millinery goods, which he undertook to sell for her there.

The first defence was that these goods had paid no duty on exportation; and it was proved that the defendant's ship, in which they were carried, cleared out at the custom-house in hallast. It was contended, therefore, that the adventure was illegal, and that no action could arise out of it.

Lord ELLENBOROUGH. You do nothing unless you show that it formed part of the agreement between the parties to defraud government of the duties. This would contaminate the contract on which the action is founded; but it cannot be affected by the simple circumstance of the ship clearing out in ballast.

It was then stated that the defendant, not being able to sell the goods in the island to which they were destined, had sent them to the Caracas in search of a market, where they had been destroyed by an earthquake; but

Lord ELLENBOROUGH clearly held that there being a special confidence reposed in the defendant, with respect to the sale of the goods, he had no right to hand them over to another person, and to give them a new destination. The plaintiff had a verdict.

Park and Barnewall, for the plaintiff.
Topping, for the defendant.

STEPHENS v. BADCOCK.

KING'S BENCH. 1832.

[3 B. & Ad. 354.]

ASSUMPSIT for money had and received, &c. Plea, the general issue. At the trial before TAUNTON, J., at the Cornwall Lent assizes, 1831, the following facts appeared. The plaintiff was rector of Ludgvan near Penzance; the defendant had been clerk to Mr. Samuel John, an attorney, whom the plaintiff had for several years employed to receive his rents and tithes. On the 10th of August, 1829, John, being in embarrassed circumstances, left his home; he had not returned, and a commission of bankrupt had issued against him, when this action was

brought. After his departure, and before the cause of it was known in his office, Reynolds, his principal clerk, who had occasionally received payments for him in his absence, went to attend Bodmin assizes, leaving the defendant behind. At the assizes, at some time from the 18th to the 20th of August, Reynolds first heard that John was not likely to return. In Reynolds's absence one of the plaintiff's parishioners called at the office to pay £9 0s. 2d., on account of a composition for tithes. The defendant said that Mr. John was absent, but he would receive the money (which he was, in fact, authorized by Reynolds to do); it was paid to him, and he gave a stamped receipt for the sum as follows: "Received 20th August, 1829, of Mr. H. T., £9 0s. 2d., for half a year's composition for tithes due to Rev. J. S. at Lady-day last past, for Mr. S. John, John Badcock." On Reynolds's return the defendant accounted to him for other sums received during his absence, but said nothing of this; nor did Reynolds know of this payment till the end of the year. Reynolds stated that at the time of these transactions John was indebted to the plaintiff on the balance of account between them. It did not appear that the defendant had any claim upon John. The defendant having refused to pay the plaintiff the £9 (which he had not paid over to John or his estate), this action was brought to recover it. Two objections in point of law were taken at the trial: first, that, as the defendant acted only as clerk to John in receiving the sum in question, the action should have been brought against his principal; to which point Sadler v. Evans, 4 Burr. 1984, and Miller v. Aris, 1 Selw. N. P. 92, n., 8th ed., in which Lord Kenyon recognized the principle of the former case, were cited: secondly, that the plaintiff could not recover the money as had and received by the defendant to his use, there being no privity of contract between them; as to which Williams v. Everett, 14 East, 582, was referred to. TAUNTON, J., thought the money was recoverable, as having been paid to the defendant under a mistake, and not paid over by him to his principal before notice. He therefore directed a verdict for the plaintiff, giving leave to move to enter a nonsuit. A rule nisi having been obtained for that purpose, Praed, on a former day of the term showed cause.1 Follett, contra.

Cur. adv, vult.

Lord TENTERDEN, C. J., now delivered the judgment of the Court. After stating the facts of the case, his Lordship proceeded as follows: "Under these circumstances my learned brother who tried the cause thought that the sum in question might be recovered from the defendant as money paid to him in a mistake. But we are of opinion that it cannot be so recovered. It is perfectly clear that the defendant received it as the agent or servant of John, and must have paid it over to him if he had returned. The receipt given was the receipt of John, and (if he had not been bankrupt) would have been evidence against

1 Before Lord Tenterden, C. J., Littledale, Taunton, and Patteson, JJ. — REP.

him in an action brought by the present plaintiff. This differs from the case decided in the former part of the term, where a party was held to have received money belonging to a bankrupt's estate, on behalf of the general body of creditors, and not for an assignee who had become lunatic. There the defendant could have no authority to receive it for the lunatic assignee; here Badcock was clearly the agent of John when he received the money, and did receive it in that capacity. On the ground then that there was no privity of contract between the defendant and plaintiff, but that the privity of contract was between the defendant and John, and between John and the plaintiff, we think the rule for a nonsuit must be made absolute. Rule absolute.

LOOMIS, CONGER, & CO. v. SIMPSON.

SUPREME COURT OF IOWA. 1862.

[13 Iowa, 532.]

APPEAL from the Dubuque City Court.

This action was brought to recover of defendant a sum of money which plaintiffs allege to be due for goods delivered to be sold on commission, for which he has failed to account. Defendant insists that he was instructed to sell a portion of the goods in Dubuque - to ship the other east and south that he had accounted for all those sold either in Dubuque or elsewhere, for which he (defendant) has received payment. Trial, and judgment for plaintiffs.

John L. Harvey, for the appellant.

Cooley, Blatchley & Adams, for the appellee.

WRIGHT, J. The points made arise upon certain instructions, given and refused.1

Two instructions were asked and refused, as follows:

1. If the jury believe that Simpson asked plaintiffs whether he should send the goods to Memphis for sale, and they replied that he should do with them as he would with his own, and he thereupon sent them to a factor of good credit, defendant is not liable for the default of such factor.

2. If the employment of a sub-agent was necessary, and that fact was known to plaintiffs, and if defendant selected an agent of capacity and credit, he is not liable for the default of such sub-agent.

If the testimony showed that Morris (the merchant at Memphis) was substituted as the agent or factor of plaintiffs with their consent, express or implied, these instructions were correct, and should have

1 A passage as to practice has been omitted.-ED.

been given. As a rule it is true that where the employment of a subagent is necessary, the agent, if he makes a fit and proper selection, is not responsible. And it is equally true as a rule that in the case of a factor or broker, the authority cannot be delegated. (Cochran v. Islam, 2 M. & S. 301; Solly v. Rathbone, Id. 298; Catlin v. Bell, 4 Camp. 183; 1 Pars. Cont. 71, 84.) But we suppose that the principal may confer the power of delegation or substitution, and that this may be done in writing, as by the letters conferring the power upon the agent, by words, or by acts, which acts or words may by implication give the authority or ratify the substitution after it is made. It must be remembered, however, that there is a wide difference between the employment of a servant or sub-agent by the factor, and the delegation of authority or a substitution. The factor may act through or by the hand of another, and yet there be no pretence that there has been a substitution in such a sense as to bind the principal. And until the fact of substitution, with the consent and approbation of the principal, is once established (or his subsequent ratification or confirmation), there can of course be no ground for claiming that his remedy is against the substitute, instead of the original agent.

In this case the instructions refused were predicated upon two facts. These were, that if plaintiffs told defendant "that he should do with the goods as he would with his own," or if "the employment of a subagent was necessary, and that fact was known to plaintiffs," then, in either event, defendant had a right to send the goods to a factor of good credit, to whom, and not defendant, plaintiffs should look for their proper disposition. We do not think, however, that if the jury had found both of these facts in favor of defendant, it necessarily followed that he would not be liable for the default of the person so selected. The inquiry still remained, was this person selected as the servant of the agent or factor, or did he become the agent of the prin cipal? It by no means follows, where produce, for instance, is intrusted to a commission merchant in Dubuque, and sent forward by him to his correspondent or agent at Chicago or St. Louis, that a privity of contract exists between such correspondent and principal, to the extent that the original factor is released and the sub-agent only is liable. Nor does it make any difference that the principal or consignor knows that it must and will be sent forward to find a market. He has a right to, and is presumed to repose confidence in, the financial ability and business capacity of the person so employed, and if such factor employs other persons, he does so upon his own responsibility; and having greater facilities for informing himself and extending his business relations, upon him, and not upon the principal, should fall the loss of any negligence or default. If, however, another person has been substituted who, with the knowledge and approbation of the principal, takes the place of the original factor, or if such substitution is necessary from the very nature of the business, and this fact is known to the principal, the liability of the substitute may be direct to the