ically, now, the plaintiff ought to be awarded the goods. But Lord Justice Brett gives judgment as follows:1

"In a similar manner a person may be estopped from denying that certain goods belong to another; he may be compelled by a suit in the nature of an action of trover to deliver them up, if he has them in his possession and under his control; but if the goods in respect of which he has estopped himself really belong to somebody else, it seems impossible to suppose that, by any process of law, he can be compelled to deliver over another's goods to the person in whose favor the estoppel exists against him; that person is entitled to maintain a suit in the nature of an action of trover against him; but that person cannot recover the goods, because no property has really passed to him; he can recover only damages. In my view estoppel has no effect upon the real nature of the transaction; it only creates a cause of action between the person in whose favor the estoppel exists and the person who is estopped."

The warehouseman is not liable for damages in deceit for the innocent misrepresentation; but he is liable for damages because of the deceit in round-about and artificial fashion.

In such cases as the two just dealt with, there seems to be no escape from the conclusion (while Derry v. Peek stands) that if the facts are stated naturally and in support of the real ground of complaint the plaintiff will be beaten; whereas he will succeed if he state the case artificially asserting as his grievance that of which he cannot complain. His grievance is the misrepresentation. Of misrepresentation he must say nothing. To the shares, or to the goods, he has no right. These he must assert to be his. Damages for the deceit (if anything) are what he is entitled to. Of such claim he must not say a word. Damages for not giving him the shares or goods he ought not to get (because such damages are given in lieu of specific delivery, and to delivery he is not entitled). damages are awarded him.

PRINCIPAL AND AGENT.

Such

There is another point at which the orbits of deceit and estoppel intersect, and there too a third factor must be taken into account. The ensuing problems will be merely stated here. Their solution will be suggested in a later chapter.

The law of principal and agent supplies many cases in which the act of the agent, being admittedly unauthorized, the question is whether or not the principal is bound by it. Answer of general sort is sometimes made to the effect that the prin

1 Simm v. Anglo-American (1879), 2 Ch. XXVI

5 Q. B. D. 207; 49 L. J. Q. B. 392.

cipal is bound if the act was "for the master's benefit." But this statement is of course much too loose; for according to it liability would depend upon the mere intent of the agent, apart altogether from the nature of his authority. More narrowly it is said that if the agent is employed to perform "a class of acts," liability for an act within the class is to be determined by a consideration of master's benefit or agent's benefit.

But we must distinguish. The case may arise in three ways: (1) In an action of pure tort; (2) in an action of deceit; (3) in estoppel.

(1) Pure Tort.-An omnibus driver, in defiance of instructions, upsets a rival omnibus, or runs over a pedestrian; the master is liable

"provided that what was done, was done not from any caprice of the servant, but in the course of his employment."1

(2) Deceit. A secretary of a company made a false reply to questions relating to certain debenture stock of the company; he had been authorized by the company to answer such questions, and the company was held not to be liable because he "did not make the statements for the defendant but for himself" that is, for his own fraudulent purposes.2

(3) A secretary of a company, not having been intrusted with the seal, got possession of it and affixed it to a certificate of shares, forging also the signatures of the necessary directors. He was acting entirely for his own benefit; but the company was held to be estopped by his action.3

The form of the remedy ought not to require such anomalons conclusions.

1 Limpus v. London (1862), 1 H. & C. 526; 32 L J. Ex. 35; Bayley v. Manchester (1872), L. R. 7 C. P. 420; 42 L. J. C. P. 78; Weir v. Bell (1878), 3 Ex. D. 245; 47 L. J. Ex. 708; Barwick v. English (1867), L. R. 2 Ex. 259.

2 Reg. v. Charnwood (1887), 18 Q.

B. D. 714; 56 L. J. Q. B. 449. And see cases cited with this one in ch, XXVI.

3 Shaw v. Port Phillip (1884), 13 Q. B. D. 108; 53 L. J. Q. B. 372. And see cases cited with this one in ch. XXVL

CHAPTER XVII.

OSTENSIBLE OWNERSHIP AND AGENCY.

Having now some clear understanding of the principles of estoppel by misrepresentation, let us carry them into the various departments of the law to which they are applicable.

Observe first that it is (1) title to property, and (2) liability upon contract, with which we have to deal; or rather the preclusion of the assertion of (1) rights to property, and (2) nonliability upon contract. And next, that all the cases arise in one of two ways; either

1. Some person has appeared to be the owner of property, when in reality he was not. This class may be referred to the title "Ostensible Ownership;" or

(2) Some person has appeared to have authority to do something, when in reality he had not. Such cases will be dealt with under "Ostensible Agency."

Application of estoppel to such cases might be thought to involve little difficulty. Twenty years prior to the leading case upon estoppel by misrepresentation,1 Bayley, J., in Boyson v. Coles had said with reference to ostensible ownership: "

"It is laid down as a general rule that the pawnee cannot have a better title than the pawner. And so it is of vendor and vendee, except in the case of a sale in market overt. But this rule will certainly not apply where the owner of goods has lent himself to accredit the title of another person by placing in his power those symbols of property which have enabled him to hold himself out as the purchaser of the goods."

Lord Herschell, in a recent case, uses similar language:

"If the owner of a chose in action clothes a third party with the apparent ownership, and right of disposition of it, he is estopped from asserting his title as against a person to whom such third party has disposed of it and who received it in good faith and for value."

The law of ostensible agency, too, has upon many occasions been more or less accurately laid down:

"If a man by his conduct holds out another as his agent, by permitting

1 Pickard v. Sears (1837), 6 A. & E. 469.

2 (1817) 6 M. & S. 23, 38.

3 Colonial Bank v. Cady (1890), 15 App. Cas. 267; 60 L. J. Ch. 131. See also Ontario Bank v. McTaggart

(1896), 27 Ont. 166; Moore v. Metropolitan (1873), 55 N. Y. 47; Mott v. Clark (1848), 9 Pa. St. 399.

4 Colonial Bank v. Cady (1890), 15App. Cas. 285; 60 L. J. Ch. 141.

him to act in that character1 and deal with the world as a general agent, be must be taken to be the general agent of the person for whom he so acts, and the latter is bound though in a particular instance the agent may have exceeded his authority. It is even so in the case of a special agent."

"2

"The general rule of law is that where a person has obtained the property of another from one who is dealing with it without the authority of the true owner, no title is acquired as against that owner, even though full value be given and the property be taken in the belief that an unquestionable title thereto is being obtained; unless the person taking it can show that the true owner has so acted as to mislead him into the belief that the person dealing with the property had authority to do so. If this can be shown, a good title is acquired by personal estoppel against the true owner."3

CONFUSION.

Although these doctrines seem to be sufficiently clear and manifestly just, yet much confusion exists concerning them, due largely to the following considerations: (1) Ostensible ownership and ostensible agency are frequently confounded the one with the other; (2) other principles, to the exclusion of those of estoppel, are in vogue in various branches of the law, notably in the law of real property and choses in action; (3) instead of ostensible agency, unfounded distinctions between general and special agents and various other considerations are frequently invoked.

Ostensible Ownership and Ostensible Agency.— That the distinction between ostensible ownership and ostensible agency is sometimes overlooked may be noted in a judicially indorsed paragraph from such a substantial work as Chitty on Contracts: 5

"It is said that if the real owner of goods suffers another to have possession thereof, or of those documents which are the indicia of property therein, thereby enabling him to hold himself forth to the world as having not the possession only, but the property, a sale by such a person without notice will bind the true owner. But probably this proposition ought to be limited to cases where the person who had the possession of the goods was one who, from the nature of his employment, might be taken prima facie to have had the right to sell.”

But, with submission, it is difficult to see that the nature of the employment of an ostensible owner has anything more to do with the case than has the style of his clothes. If the owner of goods represents (or assists some other person to represent) that a clergyman owns them, and thereby induces an innocent

1 Or in any other way.

4 Higgins v. Burton (1857), 26 L. J.

2 Smith v. McGuire (1858), 3 H. & Ex. 342; Johnson v. Credit (1877), 2 N. 562; 27 L. J. Ex. 465. C. P. D. 224; 3 C. P. D. 41; 47 L. J.

Simmons v. London (1892), A. C. C. P. 241.

215; 61 L. J. Ch. 723,

5 See 10th ed. 355, and 12th ed. 442.

purchaser to pay over his money, can the result be different from a case in which the ostensible owner was a lawyer, a broker, a judge, or a footman?

Probably the learned writer never intended to say that it would; and the explanation of his use of the language quoted is to be found in inattention to the distinction between ostensible ownership and ostensible agency. The two things are in the passage confused together. If an owner represents that somebody else is the owner, the nature of the employment of that other person is clearly immaterial. Estoppel by ostensible ownership, therefore, has nothing to do with nature of employment.

But it may have something to do with ostensible agency. Suppose that I hand over a bill of lading of my goods to a factor with instructions not to sell the goods, and he does sell them; I am estopped from setting up my title against the purchaser. But why? Not because the factor appeared to be the owner of the goods, for being a factor he did not so appear (every one knew him to be an agent merely); but because being a factor and having possession of indicia of title to my goods with my assent, he appeared to have authority to sell. Note that if the person who had the bill was not "one who from the nature of his employment might be taken prima facie to have the right to sell," there would have been no appearance or authority to sell, and no estoppel. There might of course be ostensible ownership.'

"Nature of his employment" may therefore be a factor in cases of ostensible agency, but can have nothing to do with ostensible ownership with a case in which the owner has enabled another "to hold himself forth to the world as having not the possession only but the property."

Confusion in Factors Act.-Some of the provisions of the English Factors Act proceed upon the principle of ostensible ownership, and others upon the principle of ostensible agency. Some of the clauses provide that sales and other dispositions of goods, made under certain circumstances by persons intrusted with goods or documents of title to goods, shall be as valid "as if such person were the owner of the goods;" while others declare that sales shall be "as valid as if he (the person selling)

1 See the point referred to in ch. XXII.