« PreviousContinue »
third persons have not intervened (e). And after it has been so rescinded, the vendor is in all respects remitted to his former right; therefore he may maintain trover against a third party who has converted the goods, though the conversion have taken place before the goods had revested in the vendor(/).
The vendor may bring trover to recover the Nullity of goods, whenever they have come wrongfully into the vendee's possession without vesting the property in him; as, where the vendee was under terms of paying on delivery, and obtained possession of the goods by giving a check which he had no reasonable expectation at the time would be duly honoured (g). Gibbs, C. J., is reported, in the case of Noble v. Adams (A), to have expressed an opinion, that " unless the representations of the purchaser amounted to the offence of obtaining goods under false pretences, it could not be said that the contract was altogether void." Park, J., however, in commenting upon the case, observed (i), that the remark was made in reference only to the particular circumstances of that case,
(e) Smith v. Field, 5 T. R. 402. See id. 211. Of the right of the vendor to maintain trover after stopping the goods upon the insolvency of the purchaser, see above, Chap. ii. p. 188—209.
(/) Pattison v. Robinson, 5 M. & S. 105.
(g) Hawse v. Crowe, Ry. & Moody, 414.
(h) 2 Marsh. 366; S. C. 7 Taunt. 59. See 2 Marsh. 370; 5 M. & Payne, 390.
(«') 5 M. & Payne, 396, 7; 7 Bingh. 552, 3.
and that the general doctrine was not intended to be so laid down. And if the goods in question be proved to have been obtained by fraud, though the defendant may be acquitted by the verdict of the jury of any actual implication in the dishonest transaction, yet it is sufficient to support the plaintiff's action, if the defendant has been involved in the legal consequences of the fraud. Thus, where the original purchasers procured the consignment fraudulently, and without the intention of making payment, and the agent, who effected the purchase, was also the agent for the defendants (to whom the goods were afterwards bond fide transferred), and was cognizant of the fraud of the original purchasers, it was held that the plaintiffs were entitled to recover in trover (A"); for the defendants must be intended in law to be cognizant of the fraud committed by their agent with the view to benefit them. So the vendor may recover in trover, where the sale was conditional only, and the goods have been accidentally delivered without
(k) Irving v. Motley, 5 M. & P. 380; S. C. 7 Bingh. 543. See Fitzherbert v. Mather, 1 T. R. 12, 16; Paley, Pr. & A. 258, (3d Ed.). But this is not to be understood as laying down the rule, that, where a party purchases articles, which at the time he knows he will not be able to pay for, though those goods may have passed through other hands in the fair way of purchase, the original seller shall have a right to recover them in whose hands soever they may be found. See per Tindal, C. J., 5 M. & P. 393.
the performance of such condition (/); or, where the consignee has prevented the consignment from vesting in him by refusing to perform his part of the stipulated contract (m). But if the property has in fact been altered by the sale, notwithstanding that the vendee may have been guilty of a breach of some undertaking, trover by the vendor cannot be supported (n).
So, the vendor may maintain trover, where the sale by «ngoods have been sold and delivered to the defend- agent."" ant by a third party, acting as agent, who had no authority to sell(o); or, even where the agent had authority to act but exceeds that authority,—as, where a factor, authorized to sell goods, barters (p) or pledges(q) them,—or, where the factor wrongfully delegates his authority to another to sell the
(/) Bishop v. Shillitto, cited in Honiblower v. Proud, 2 B. & A. 329,n. See per Bayley, J., ibid. 333; Shepley v. Davis,
5 Taunt. 617; S. C. 1 Marsh. 252.
(m) See Brandt v. Bowlby, 2 B. & Ad. 932. Shipping to the account of the consignee, and transfer to him of unindorsed bill of lading, does not irrevocably vest the property in him, but only vests it subject to the performance by him of his part of the contract. (And see Trover By Vendee, Part 2, Chap. ii.).
(n) Power v. Wells, 1 Dougl. 24, n.; S. C. Cowp. 818; Emanuel v. Dane, 3 Campb. 299.
(o) Dyer y. Pearson, 3 B. & C. 38; S. C. 4 1). & R. 648.
(p) Guerreiro v. Peile, 3 B. & A. 616; Howard v. Chapman, 4 C. & P. 508.
(q) Paterton v. Task, 2 Stra. 1178; Kuckein v. Wilson, 4 B.
6 A. 443. See next page.
goods (r),—or, where he acts after his authority has been revoked (*).
An important alteration has been made in the
law, in respect of the power of a factor to pledge
Factor the goods of his principal. It had frequently been
pledge at decided (t), that a factor had no right whatever to
common , t
i»w. pledge, because, it was said, the power of a factor
is strictly a power to sell; and although it was admitted to be a hard case that the pawnee should have no claim against the owner, on the ground that the pledgor was a mere factor, whether the pawnee was ignorant or cognizant of his character as such, yet the law was considered too well established to be shaken. For it was held, that, as the factor's lien was a personal privilege, and not transferable, the pledgee (with or without notice) had not a claim even to the extent of the factor's claim against the principal, and that the owner therefore might maintain trover without tendering to the pledgee even the amount due to the factor (w).
(r) Solly v. Rathbotte, 2 M. & S. 298. See Cochran v. Irian, liM.&S. 301, n.; Schmaling v. Tomlinson, 6Taunt. 147.
(*) See Dickenson v. Lilival, 1 Stark. N. P. C. 128; Farmers. Robinson, 2 Campb. 339, n.; Bristow v. Taylor, 2 Stark. N. P. C. 50; Jackson v. Clarke, 1 Y. & J. 216.
(t) Paterson v. Tash, 2 Str. 1178; Daubigny v. Duval,
5 T. R. 604; Martini v. Coles, 1 M. & S. 140; Shipley v. Kymr, 1 M. & S. 484; Boy son v. Coles, 6 M. & S. 14; Pickering v. Husk, 15 East, 44; Feather tonhaugh v. Johnston, 8 Taunt. 237; Gukhard v. Morgan, 4 B. Moore, 36; Duclos v. Ryland, 5 B. Moore, 518, n.; De Bouchot v. Goldsmid, 5 Ves. Jun. 211; Peet v. Baxter, 1 Stark. N. P. C. 472; StierneU v. Ho/den, By.
6 M. 219; Williams v. Barton, 3 Bingh. 139.
By the statute 6 Geo. IV. c. 94 (^r), commonly Factor's called the Factor's Act, it is enacted,— By the 1st section, that the person, in whose Person in
, whose name
name goods are shipped, is to be deemed the true goods are
• ii • shipped, to
owner thereof, so far as to entitle the consignee to be deemed a lien thereon in respect of any money or negotiable &c. security advanced by him to such person to his use, if he has no notice by the bill of lading or otherwise, at or before the advancement or receipt, that such person is not the actual and bona fide owner of the goods; and such person shall be taken for the purposes of the Act to have been entrusted with the goods for the purpose of consignment or of sale, unless the contrary shall be made to appear^).
As to the question what amounts to sufficient what is no. notice, within the meaning of this section, it seems that it is not necessary to show that the pledgee had positive information that he was dealing with a mere agent, but that it is sufficient if the circumstances are shown to be such that this conclusion might reasonably have been drawn. In a
(m) M'Combie v. Davies, 6 East, 538; Newsom v. Thornton, 6 East, 17 ; Daubigny v. Duval, 5 T. R. 604.
(r) This act was passed to alter and amend 4 Geo. IV. c. 83.
(y) See Paley, Pr. & A. p. 222, (3d Ed.); Abb. Shipp. PP.381, 382, (5th Ed.).