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Deliver), 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 (&); 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 Proof of delivery of the goods to an authorized 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^); 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).
(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).
(/c) Philllmore v. Barry, 1 Camp. 513; Tarling v. Baxter, 6 B. & C. 360. See Knight v. Hopper, Skinn. 647.
(/) Hurry v. Mangles, 1 Campb. 452.—Post. See 6 B. & C.
(?«)' 2 Comm. p. 448; Noy's Max. c. 42.
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. (o) 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. Parrolt, 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.
(0 Rich v. Coe, Cowp. 636.
Ddivery. 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^). 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^); 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 (z). 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
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).
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 (J). 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
Delivery, supplied money to the servant to pay for the goods, unless he has also given notice to the tradesman: for the seller will not be affected by private transactions between the master and servant (g).
Delivery to Where the purchaser has appointed a particular carrier to receive the goods, a delivery to the carrier will be sufficient to support the action (A); and, as the property vests in the purchaser immediately upon such delivery, the goods thenceforth remain at the risk of the vendor, and he may maintain an action for the price, although the goods should be subsequently lost or destroyed before they arrive
implied ap- in the purchaser's possession (*). Even if the purchaser has not named a particular carrier, the appointment may be presumed; as, where he has given a general order that they should be sent by some carrier (k); or, even where he has given no directions whatever about the carriage, provided that he has been accustomed to receive goods
(g) Wayland's case, 3 Salk. 234; S. C. 1 Ld. Raym. 225; Rusby v. Scarlett, 5 Esp. 76; Nichson v. Brohan, 10 Mod. 109, 111 ; Rimell v. Sampayo, 1 C. & P. 254; Precious v. Abel, 1 Esp. 350; Great land v. Freeman, 3 Esp. 85; Paley, Pr. & A. 170.
(A) Vale v. Bayle, Cowp. 294; Groning v. Mendham, 5 M. & S. 189; Fragano v. Long, 4 B. & C. 219; S. C. 6 D. & R. 2S3; Haynes v. Wood, Bull. N. P. 36; Selw. N. P. 1370, (8th Ed.).
(i) Alexander v. Gardner, 1 Bingh. N. S. 671. See Griffin v. Langfield, 3 Campb. 254; Honeyuoodv. Stone, 2 Chit. Rep. 142.
(k) Button v. Solomonson, 3 B. & P. 582, 584; Coptland v. Lewis, 2 Stark. N. P. C. 33; Godfrey v. Furzo, 3 P. Wrns. 186.