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by a foriegn attachment, at the suit of a creditor of the insolvent vendee (m); or by the carrier's lien against the latter for a general account unconnected with the particular goods (n); or by the circumstance of the vendee's agent having the bill of lading, indorsed to order, in his hands, and being under acceptances to the vendee on a general account (o). And, as a mere claim by the vendor is sufficient, if the goods are in transitu, a subsequent delivery thereof by the carrier to the vendee will not entitle even the assignees of the latter to hold them (p).

Who to be considered the Vendee.-It sometimes becomes a difficult question for a jury, in actions for goods sold, whether or not the defendant, in purchasing them, was a mere broker or principal. The general rules upon this subject have already been noticed (q). Where the defendant was in fact the buyer, and has had the goods, &c., he is liable, though the plaintiff credited a third person, the defendant's agent, who received from him a commission for which the agent lent his credit (r). But where A., a merchant, purchased goods of B., for the use of C., who was present, and selected the goods, and stipulated with B. the price and other terms of the purchase; and A. credited B. with the amount, and debited C. with the amount and a commission, and B. credited A. in his books and invoices; it was held that B. could not recover the price of the goods against C. (s). It is in general necessary that the relation of seller and buyer should exist, in order to maintain an action for goods sold; therefore, a mere agent, employed to buy goods for the defendant, cannot sue him as for goods sold; although he, the agent, pledged his credit to the original vendor, for a commission from the defendant (t).

In Rose and others v. Edwards (u), the facts were these: A. a dealer in china, being insolvent, assigned his business and his stock in trade to his brother B., who was a carver and gilder, and entered

(m) Smith v. Goss, 1 Camp. 282. (n) Oppenheim v. Russell, 3 B. & P. 42; see Butler v. Woolcott, 2 N. R. 64; and per Tindal, C. J., in Jackson v. Nichol, 5 New Cases, 518; 7 Scott, 577; and Leuckart v. Cooper, 3 New Cases, 107; 3 Scott, 512, S. C.

(0) Patten v. Thompson, 5 M. & Selw. 350.

(p) Litt v. Cowley, 7 Taunt. 169; 2 Marsh. 457.

(4) Ante, 224, 225.

(r) Addison v. Gandassequi, 4 Taunt. 576, a; ante, 224. Sale to an agent who had money in hand of his principal, and was not authorised to buy on credit; Edwards v. Smith, 12 Moore, 59.

(s) Addison v. Gandassequi, 4 Taunt. 574; ante, 224.

(t) Seymour v. Pychlau, 1 B. & Ald. 14; see, however, ante, 230. (u) 1 Mee. & W. 734.

A.

into a composition with his creditors to pay them five shillings in the pound, his brother B. undertaking to pay two shillings and sixpence in the pound, and he himself the remainder. A. continued to manage the business in the shop for his brother, B.'s wife occasionally going there, and B.'s name appearing over the door. One of A.'s creditors applied to him at that shop, and pressed for payment of his share of the composition. offered a bill of exchange in payment, on which the brother's name had been put without his authority as indorser; and as the amount exceeded the amount due for the composition, A. and B.'s wife, who was then in the shop, proposed that goods should be supplied to the shop for the amount of the balance, which was agreed to, and the goods were accordingly sent to the amount of the balance. The bill having been dishonoured, B. was sued, and pleaded that he never indorsed the bill, and that no notice of the dishonour had been given to him, and the jury found both those issues in his favour. Evidence was given that B. had held himself out as responsible for all orders given at that shop. The jury found that A. had a general authority to buy goods for B., and that the plaintiff did not sell the goods on the credit of the bill alone, but on the credit of B.; and it was held that the value of the goods sent was recoverable on a count for goods sold and delivered in the action against B.

The general rule is, that the vendor can only consider as his vendee the party to whom the goods were originally and actually sold by him; and a person who is afterwards permitted by the vendee to have a share in the adventure, is not liable to the original vendor for the price (x). And although two persons, not partners, concur in giving an order for one undivided parcel of goods, yet they are not jointly liable to the seller, if, upon the whole transaction, the intention of the parties appears to have been that they should be severally responsible for the amount of their respective interests in the goods (y). But where A. sold goods to B., who, being unable to pay, transferred them to C., who promised A. to pay for them, the Court held that this was

(x) Addison v. Gandassequi, Young v. Hunter, 4 Taunt. 582; where there is a sale by a wrongful possessor, we have seen that the true owner may come

forward and sue the vendee for the price; ante 225, 385.

(y) Gibson v. Lupton, 2 M. & Scott, 371; 9 Bing. 297, S. C.

a new sale to C., and not a mere promise by C. to pay the debt of B. (z).

In the case of goods supplied for the use of an institution or society, formed for charitable or other public purposes, as a hospital, whether supported by voluntary contributions or otherwise, it seems that the members of a committee of management, taking an active part in its concerns, are liable to the tradesman; although he did not furnish them on any contract with the committee, but having first furnished goods on the credit of an individual, who, previously to the formation of a committee, had the sole management, continued to send them in afterwards, on orders given, as before, by the servants of the institution, without any inquiry, or even specific knowledge, what particular persons were liable to pay him. If the tradesman were distinctly informed that he was to look for payment only to the funds of the institution, and did not dissent, it seems the rule might be otherwise (a).

We have already noticed the case of a supply of goods to a club house, and the liability of the members of the club (b).

Where several persons dine together at a tavern, they are jointly liable for the whole expence, and not merely each for his own share (c); though officers of a regimental mess appear to be severally liable for their individual shares.

Delivery to a Carrier.-We shall hereafter have occasion, in considering the liability of carriers, to notice the rule that the delivery of goods by the vendor to a carrier (d), to be conveyed to the purchaser, is in general a good delivery to the purchaser, so as to place the goods at his risk; and that consequently, though the goods be lost in the course of the conveyance, he must pay the price; although the particular mode of carriage adopted were not chosen by the consignee (e).

(z) Browning v. Stallard, 5 Taunt. 450; Oldfield v. Lowe, 9 B. & C. 73. A carrier who mistakenly delivers goods to a wrong person, cannot, on paying the consignor, sue such person as for goods sold, though he may for money paid; Brown v. Hodgson, 4 Taunt. 189.

(a) Glevester v. Hunter, 5 C. & P. 62; Pink v. Scudamore, id. 71; and see Bulls v. Smith, 7 Bing. 705; 5 M. & P. 735, S. C. The Western Hospital was the institution in question in

these cases.

Effect of crediting a particular person only, in the first instance; Leggat v. Reed, 1 C. & P. 16. (b) Ante, 212, 245. (c) Ante, 246.

(d) Or on board a ship chartered by vendee; Acebal v. Levy, 10 Bing. 376; 4 M. & Scott, 217; ante, 392.

(e) Per Parke. B., Johnson v. Dodgson, 2 M. & W. 656; Alexander v. Gardner, 1 New Cases, 671; 1 Scott, 218, 630, S. C.; Dawes v. Peck, 8 T. R. 330; Dutton v. Solomonson, 3 B. &

And the delivery is complete, and goods sold and delivered lies, although the carrier tortiously refuse to resign the actual possession of the goods to the purchaser; and this more particularly if the latter recover in trover against the carrier for the wrongful detention (f).

However, the delivery to a carrier is incomplete to charge the vendee for the price of the goods, if lost, unless the vendor, in so delivering them, exercise due care and diligence, so as to provide the consignee with a remedy over against the carrier, in those instances in which some precaution is the duty of the seller; as if he neglect to book, or take a receipt for the goods (g); or do not insure, in pursuance of the carrier's well-known notice, limiting his responsibility, &c. (h).

By the usage of Liverpool, the vendor of goods was to pay warehouse rent for two months after the sale, if the goods remained there so long; held, however, that where the vendor of such goods had, within the two months, given the usual order for delivery to the purchaser, the property in the goods, from that time, vested in the latter, and that he became responsible for all accidents which might happen to them; and that the circumstance of the goods having, within that time, been distrained for warehouse rent, was an accident, the consequences of which must fall on the purchaser (i).

The Pleadings.-The usual remedy to recover the price of goods sold and delivered, is an action of assumpsit, or debt, on the common indebitatus count, which alleges that the defendant was indebted to the plaintiff in a named sum (accuracy in stating the amount is not material, provided a sum sufficient to cover

P. 584; King v. Meredith, 2 Camp. 639, 36; Cooke v. Ludlow, 2 New R. 119; Hervey v. Liddiard, 1 Stark. 123; and this although the goods were to be paid for one month "after arrival;" if other parts of the contract shew they were intended to be at the vendee's immediate risk; Fragano v. Long, 4 B. & C. 219; 6 D. & R. 283, S. C. Whether such delivery is sufficient within the Statute of Frauds, see ante, 392. As to the delivery of goods in general; ante, 390 to 396; and 3 Chitty Com. Law, 120. Dock Warrant; Keyser v. Suse, Gow, 58; Lucas v. Dorrien, 7 Taunt. 278.

(f) Groning v. Mendham, 5 M. &

Selw. 189; Pattison v. Robinson, id. 112. If the goods be once actually delivered to the vendee, a tortious retaking does not destroy a right to sue on a bill for the price; although the vendee might maintain trover; see ante, 431.

(g) Buckman v. Levi, 3 Camp. 414; 2 Saund. 47 k, note («).

(h) Clarke v. Hutchins, 14 East, 475. In Cothay v. Tute, 3 Camp. 129, where the order was to send down more goods, Lord Ellenborough held that the vendor was not bound to insure, unless he had done so before.

(i) Greaves v. Hepke, 2 B. & Ald. 131; and see unle, 429.

the real debt be mentioned,)" for the price and value of goods sold and delivered by the plaintiff to the defendant at his request (k)." A count for goods bargained and sold (not alleging a delivery) should be adopted where the goods have become vested in and the property of the vendee, but the vendor has retained them in his possession, as a lien for the price, and there is no act equivalent to an acceptance thereof, although the contract is in other respects perfect (1). Or where the goods have been delivered to a carrier or on board a ship chartered by the vendee, and have been lost on their journey (m).

In some instances it is essential to declare specially in order to recover the price or value of goods.

1st. The declaration should be special where the action is not against the vendee, but a party who guaranteed the price (n).

2dly. Where there has been no delivery of the goods, or any act equivalent thereto, and the property in the identical goods has not become vested in the vendee (o), he should be sued specially for not accepting them (p).

3dly. Where, by the terms of the contract, the goods are to be paid for by a bill of exchange or promissory note, and the vendee refuse to give either, it is necessary to declare against him specially for such default (q); but the price of the goods and interest on such price (r) may be recovered, in such case, on the common count for goods sold, if, at the time the writ was issued (which is now the commencement of the action in all the courts), the credit to be given by the bill or note had expired (s).

(k) See in general 1 Chit. Pl. 6th ed. 345; 2 id. 43, and notes. No arrest is allowed for the price of goods not delivered; Hopkins v. Thorne (or Vaughan), 12 East, 398. Interest is not recoverable on the price, unless there be an express contract, or under the S & 4 Will. 4; post, Index, Interest; or a bill have not been given for the price according to the terms of the contract; Farr v. Ward, 3 M. & W. 25.

(1) Boulter v. Arnott, 1 C. & M. 333. As to whether vendor can sue for goods bargained and sold where he has resold them on the vendee's refusal to accept them, see Acebal v. Levy, 10 Bing. 376; 4 M. & Scott, 217, S. C.

(m) Acebal v. Levy, 10 Bing. S76;

4 M. & Scott, 217, S. C.; Alexander v. Gardner, 1 Scott, 218, 630; 1 New Cases, 671, S. C.; ante, 392, and 439. (n) 1 Saund. 211 a, b; Mines v. Sculthorpe, 2 Camp. 215.

(0) See ante, 374 to 384.

(p) See 1 Chit. Pl. 6th ed. 347; 2 id. 159, and note. As to the measure of damages, see Philpotts v. Evans, 5 Mee. & W. 475; and post, 445, and Index tit. Damages.

(q) Mussen v. Price, 4 East, 147; Dutton v. Solomonson, 3 B. & P. 582. As to recovering interest, Marshall v. Poole, 13 East, 98.

Farr v. Ward, 3 M. & W. 26. (s) Swancott v. Westgarth, 4 East, 75; Hall v. Odber, 11 East, 118; Brooke v. White, 1 New R. 330; Helps v. Winterbottom, 2 B. & Ad.

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