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not, in general, discharge his liability unless the Payment. agent actually pays over the money so received to the vendor (e); for the vendor will not be affected by private dealings between the purchaser and his agent, or the state of accounts between them (f). So, a direction by the debtor to his banker or other agent holding funds belonging to the debtor, to place to the credit of a creditor a sum of money in payment for goods sold as if a bill had been drawn, will not discharge the debtor, where the agent becomes bankrupt before any payment has in fact been made (g).

vendor.

Payment to the authorized agent of the vendor To agent of is good. And payment to a third party will discharge the purchaser, if such party has been allowed to act so as to induce the belief that he is authorized to receive the price of the goods sold (h); as, where an agent entrusted with goods has sold them without disclosing the principal (i).

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

(f) Rich v. Coe, Cowp. 636; Waring v. Favenc, 1 Campb. 85; Rimell v. Sampayo, 1 C. & P. 254.-Supra.

(g) Pedder v. Watts, 2 Chit. Rep. 619; Peake, Add. Ca. 41. See Brown v. Kewley, 2 B. & P. 518.

(h) Barrett v. Deere, M. & Malk. 200; Thompson v. Thompson, 7 Ves. Jun. 470.

(i) Coates v. Lewes, 1 Campb. 444; Capel v. Thornton, 3 C. & P. 352; Townsend v. Inglis, Holt, N. P. C. 278; Crosser v. Miles, Lofft, 593. See Hodgson v. Anderson, 3 B. & C. 842 ; S. C. 5 D. & R. 735. [So, tender to an authorized agent is equivalent to tender to principal; Goodland v. Blewith, 1 Campb.

Payment.

Under
Factor's
Act.

And in such case, although the principal is at liberty to interfere at any time before payment, so as to make the purchaser liable if he pay over to the agent after the notice (k), yet the principal has no power to rescind the previous acts of his agent, but is concluded by the terms sanctioned by the latter (1). Where a special agent has exceeded his authority as to the mode of taking payment, it will be good if the principal afterwards adopt it (m).

The rules of common law, in respect of payments made to agents, are confirmed by the Factor's Act (n); the 4th section of which provides, that any person may contract for the purchase of goods with any agent entrusted with the possession of them, or to whom they may be consigned, and pay for the same to the agent, notwithstanding he may have notice that the person with whom he contracts is an agent (o), if such con

(k) Scrimshire v. Alderton, 2 Str. 1182; Mann v. Forrester, 4 Campb. 60; Pratt v. Willey, 2 C. & P. 350; Hornby v. Lacy, 6 M. & S. 166. The principal has the same power if the factor acts under a del credere commission: "a del credere commission does not alter one iota the right subsisting between vendor and vendee;" per Lord Ellenborough, C. J., 6 M. & S. 171. And see post.

(1) Blackburn v. Scholes, 2 Campb. 343; Favenc v. Bennett, 11 East, 36.

(m) Howard v. Chapman, 4 C. & P. 508, 510.

(n) 6 Geo. IV. c. 94. See Abb. Shipp. p. 382; Paley, Pr. & A. p. 223.

(0) See Campbell v. Hassell, 1 Stark. N. P. C. 233.

tract and payment be made in the usual course of Payment. business, and without notice, at the time of the contract or payment, that the agent is not authorized to sell or to receive the price. It has been decided, that a wharfinger (who was also a flourfactor) is not an agent within the meaning of this section (p). Lord Tenterden, C. J. observed," It is difficult to say precisely what is meant in this section by an agent entrusted with goods;' but if a wharfinger was so considered, it would be impossible to say that a carter, warehouseman, or packer was not" (q). It would seem to be confined to agents for the purposes of sale, and not to extend to mere bailees.

Of Set-off.

The defendant may reduce the amount of Set-off. damages claimed by the plaintiff in an action for goods sold, by setting off a debt due from the latter (r), provided he has either pleaded, or (where the general issue is pleaded alone) given notice of, such set-off (s). And the defendant is not pre

81.

(p) Monk v. Whittenbury, 2 B. & Ad. 484; S. C. 1 M. & Rob.

(q) 2 B. & Ad. 486. See 2 Campb. 335.

(r) Dunmore v. Taylor, Peake, 41. See 2 Geo. II. c. 22, s. 13, (made perpetual by 8 Geo. II. c. 24, s. 4).

(s) Tidd Pract. 721; Fothergill v. Jones, 1 C. & P. 133. Where there is a special plea as well as the general issue, the set-off must be pleaded; Duncan v. Grant, 1 Cr. Mees. & R. 383. It would seem that now, under the New Rules, the defence

Set-off.

cluded from setting off an adverse claim subsequently accruing, although by the express agreement the goods were to be sold on ready-money terms(t). But the debt set off must have been due at the time of the action brought, and not In sale by merely at the time of the plea pleaded (u). The

factor.

purchaser is entitled to set off a debt due to him from the factor from whom he has bought the goods, where the factor has acted in his own name and represented himself as principal (r). Otherwise, if collusion can be proved (y). And if the purchaser ascertains at any time before the contract is completed that the party, with whom he is dealing, acts in a representative character only and not as principal, his right of set-off will be In sale by barred (z). The character of broker differs materially from that of factor: the former has more

broker.

of set-off must always be pleaded. See Rules Hil. T. 4 Will. IV.; Assumpsit, 3.

(t) Cornforth v. Rivett, 2 M. & S. 510; Eland v. Carr, 1 East, 375. See M'Gillivray v. Simpson, 9 D. & R. 35; S. C. 2 C. & P. 320; Taylor v. Okey, 13 Ves. Jun. 180; Lechmere v. Hawkins, 2 Esp. 626.

(u) Braithwaite v. Coleman, 4 Nev. & Man. 654; Evans v. Prosser, 3 T. R. 186.

(x) Carr v. Hinchcliffe, 4 B. & C. 547; S. C. 7 D. & R. 42; George v. Claggett, 7 T. R. 359; Rabone v. Williams, 7 T. R. 360, n.; Bayley v. Morley, ibid.; Ross (or Stracey) v. Decy, 2 Esp. 469, n., and 7 T. R. 360, n. But the purchaser cannot set off a debt due to him from his own agent; Waring v. Favenc, 1 Campb. 85.

(y) Escot v. Milward, 7 T. R. 361,n.
(z) Moore v. Clementson, 2 Campb. 21.

limited powers, and if he sells in his own name he Set-off. acts beyond his authority; therefore, if one buys goods from a broker, who sells in his own name, even without notice, it is at the risk of the buyer, and no right of set-off is acquired against the vendor-principal (a).

Of Interest.

A question often arises whether interest is re- Interest. coverable on the price of the goods sold. In general, interest is not allowable in any case where

(a) Baring v. Corrie, 2 B. & A. 137. The decision proceeded upon the ground that, according to the usual mode in which sales by brokers are effected, the purchaser by using reasonable care and diligence may ascertain in what character the party selling appears. Abbott, C. J., said, "the distinction between a broker and a factor is not merely nominal. A factor is a person to whom goods are consigned for sale by a merchant residing abroad, or at a distance from the place of sale, and he usually sells in his own name without disclosing that of his principal; the latter, therefore, with full knowledge of those circumstances, trusts him with the actual possession of the goods, and gives him authority to sell in his own name. But the broker is in a different situation; he is not trusted with the possession of the goods, and he ought not to sell in his own name. The plaintiffs in this case have only reposed the usual confidence which every merchant must place in his broker, and if the defendants should succeed, it would not be safe for any merchant hereafter to employ a broker." See 2 B. & A. 143, 144. If, however, the principal should so act as to mislead purchasers, by conferring on the broker the indicia of property, and enabling him to hold himself out as principal, the rule would not apply, and the principal would no longer be protected. See the judgment of Bayley, J., id. 146, 147.

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