Construc

bolical.

A constructive, or symbolical, delivery of the Delivery. goods is sufficient to change the property, as tive or symmuch as the actual transfer of possession; as, by the giving of a halfpenny to the purchaser, where the goods are bulky, and not easily capable of removal (b); or, by the delivery to, and acceptance by, the purchaser, of part of the goods sold (c). On the same principle, the delivery of the grand bill of sale transfers the property in a ship at sea (d); and the indorsement of the bill of lading vests the property in the cargo in the indorsee (e). So, the property in goods may be transferred, by the indorsement or delivery of West India Dock warrants (ƒ); or, of London Dock warrants (g); or, of delivery orders, and transfer tickets in general (h), where the goods are in the custody of a warehouseman, or wharfinger: and, if any accident afterwards happens to the goods, it is at the

(b) Manton v. Moore, 7 T. R. 67.

(c) Hinde v. Whitehouse, 7 East, 558; supra, p. 58.

(d) Atkinson v. Maling, 2 T. R. 462.

(e) Wright v. Campbell, 4 Burr. 2046; Evans v. Martlett, 1 Ld. Raym, 271. See above, p. 194, and post. If the consignee indorses the bill of lading over, although he had no intention of accepting the consignment, such indorsement makes him liable to the vendor for the price; Corlett v. Gordon, 3 Campb. 472.

(f) Spear v. Travers, 4 Campb. 251; Lucas v. Dorrien, 7 Taunt. 278; S. C. 1 B. Moore, 29. Supra.

(g) Davenport, ex parte, 1 Deac. & Chit. 397. See Wilkinson v. Reay, Dan. & Lloyd, Merc. Ca, 202.

(h) Tucker v. Ruston, 2 C. & P. 86; Ridout v. Alder, 1 Mont. 103. Per Mansfield, C. J., Elmore v. Stone, 1 Taunt. 460.

S

Delivery. risk of the purchaser (i). So, the goods may continue, by the agreement of the parties, on the premises of the seller, and yet be in law delivered into the purchaser's possession, and remain at his risk, so as to enable the plaintiff to sue for goods sold (k); as, where warehouse-rent is paid by the purchaser(); or, where from any other stipulation it may be presumed that the parties contemplated an immediate and not a future sale. So, it is laid down in Blackstone (m), that, "by a regular sale, without delivery, the property is so absolutely vested in the vendee, that if A. sells a horse to B. for £10, and B. pays him earnest, or signs a note in writing of the bargain; and afterwards, before the delivery of the horse, or money paid, the horse dies in the vendor's custody; still he is entitled to the money, because, by the contract, the property was in the vendee."

Delivery to agent.

Proof of delivery of the goods to an authorized

(i) Greaves v. Hepke, 2 B. & A. 131. By recovering the value of the goods in an action against the ship-owner or other bailee, or even by bringing such an action as trover which presupposes a transfer of the property and right of possession, the vendee affirms the delivery to himself, and cannot afterwards dispute it in an action by the vendor for the price; Groning v. Mendham, 2 Stark. N. P. C. 299; (and the Court afterwards refused a rule, ib. 302).

(k) Phillimore v. Barry, 1 Camp. 513; Tarling v. Baxter, 6 B. & C. 360. See Knight v. Hopper, Skinn. 647.

(1) Hurry v. Mangles, 1 Campb. 452.-Post. See 6 B. & C.

(m) 2 Comm. p. 448; Noy's Max. c. 42.

agent, or to any third party in the character of Delivery. agent at the request of the defendant, is equivalent to delivery to the defendant himself, and will support an averment of a delivery to the latter (n): and an acknowledgement by the agent, that he has received the goods, is evidence to charge the principal (o). The authority by the defendant may be implied, to enable the third party, as agent, to receive the goods (p); as, in the case of delivery of necessaries to a wife, which in general makes the husband liable (q); or, in the case of delivery of goods to a bankrupt carrying on the business for the benefit of the creditors, and with the sanction of the assignees, which makes the latter liable for the price (r). And a subsequent ratification of the authority is equivalent to previous assent(s).

rangement

A private agreement between the principal and Private arthe agent, that the latter only shall be liable, can between never affect the seller without notice (t); thus, and agent where the agent had undertaken to provide for his

(n) Per Curiam, Bull v. Sibbs, 8 T. R. 328; Paley, Pr. & A. 293.

(0) Biggs v. Lawrence, 3 T. R. 454.

(p) Kirby v. Bannister, 5 B. & Ad. 1069; Davies v. Halton, 5 C. & P. 69. See Pickering v. Busk, 15 East, 38.

(q) Etherington v. Parrott, 1 Salk. 118. See above, pp. 26, 27,

et seq.

(r) Kinder v. Howarth, 2 Stark. N. P. C. 354. See Brewer v. Sparrow, 7 B. & C. 310.

(s) See Maclean v. Dunn, 4 Bing. 722; Soames v. Spencer, 1 D. & R. 32.

(t) Rich v. Coe, Cowp. 636.

principal

ineffective.

Delivery. principal certain articles, which were not to exceed a certain price, the principal was still held liable, as the plaintiff had no notice of the agreement (u). So, if the purchaser has given money to his broker to pay for the goods, and the money is not so applied, the purchaser is not discharged, unless the vendor does something from which his assent may be implied to the release of the principal (r); such as giving credit to the broker. On the same principle, the purchaser cannot set-off against the claim for the value of the goods any balance which may be due to him from his broker (y). If, indeed, the credit was in fact given to the agent alone, the vendor has no claim except against the agent (x). However, even where the agent has been debited with the price, if the vendor was ignorant of the principal at the time, he may elect, upon discovering the latter, to hold him liable (a). And it is not sufficient to defeat the vendor's right of election that he was aware that the party dealing with him was an agent, unless he also knew who the principal was; for otherwise he could not exercise

(u) Precious v. Abel, 1 Esp. 350; Rimell v. Sampayo, 1 C. & P.

254.

(x) Powel v. Nelson, cited 15 East, 65; Kymer v. Suwercropp, 1 Campb. 109; Speering v. Degrave, 2 Vern. 643.

(y) Waring v. Favenc, 1 Campb. 85.

(z) Bramah v. Ld. Abingdon, cited 15 East, 66.

(a) Nelson v. Powell, 3 Dougl. 410; Railton v. Hodgson, 4 Taunt. 576, n.; Peale v. Hodgson, ibid.

the right (b). But if the vendor, after the real Delivery. principal is disclosed, elects to make the broker his debtor, he will not be allowed afterwards to turn round and charge the principal (c).

servant.

The delivery of goods to a servant will not Delivery to make the master liable, unless there is proof of express or implied authority given by the latter (d). Even where the master has commissioned his servant to buy, but has at the same time given him money to pay the price, he will not be liable, if the servant embezzle the money instead of applying it in payment; for the tradesman in such case sells at his own risk (e). But, where the master has once given authority to his servant to buy on credit, he will be liable for his subsequent contracts (f). Nor is this liability discharged even if, in such subsequent cases, the master has

(b) Thomson v. Davenport, 9 B. & C. 78; S. C. Dan. & Lloyd, Merc. Ca. 278.

(c) Patterson v. Gandassequi, 15 East, 62; Addison v. Gandassequi, 4 Taunt. 574.

(d) Pearce v. Rogers, 3 Esp. 214; Maunder v. Conyers, 2 Stark. N. P. C. 281; Boulton v. Arlsden, 3 Salk. 234; Boulton v. Hillersden, 1 Ld. Raym. 224; Anon., 1 Show. 95.

(e) Stubbing v. Heintz, Peake, 47; Southby v. Wiseman, 3 Keble, 625.

(f) Hazard v. Treadwell, 1 Str. 506; Rusby v. Scarlett, 5 Esp. 76; Todd v. Robinson, Ry. & Moo. 217; Gilman v. Robinson, id. 226. See Barber v. Gingell, 3 Esp. 60; Haughton v. Ewbank, 4 Campb. 88; Watkins v. Vince, 2 Stark. N. P. C. 368; Miller v. Hamilton, 5 C. & P. 433.