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that the defendant guaranteed the payment of Discharge £200 by J. S. for goods to be furnished to the latter, to which defendant pleaded, that, after the making of the promise, and before breach, it was agreed between plaintiff and defendant that the goods should be paid for at the end of three months by a joint bill at four months, accepted by the defendant, which agreement the plaintiff accepted in full discharge of the former undertaking, the plea was held good on demurrer(A). And the second agreement, being in fact substituted for the former, and not by way of accord and satisfaction, discharged the former agreement, without allegation or proof of performance (/).
(k) Tay/or v. Hilary, 5 Tyrwh. 373; S. C. 1 C. M. & R. 741. (/) Id. See per Parke, B., 5 Tyrwh. 376. Secus if it had been after breach. Bac. Abr. Accord (A).
RIGHTS AND LIABILITIES OF VENDOR IN RESPECT OF
Section I.—Rights and Liabilities of Vendor in respect of his own Agents.
I. Rights of Vendor. Liability of The liability of brokers and factors, in the L8»s"&c!r event of the loss or destruction of goods, seems not to be on the same footing with that of innkeepers and carriers; the liability of the latter is greater, because it is founded upon a notion of public trust and employment (a). A factor is not liable for any accidental loss, and is discharged by such caution, in keeping the property entrusted to him, as a prudent man would exercise in the preservation of his own(i). He is justified if he exercise reasonable caution in delegating the goods to another (c).
(a) Paley, Pr. & A. 16; Jones Bailm. 75; Coggs v. Bernard, 2 Ld. Raym. 909.
(b) Anon. 2 Mod. 100; Rol. Abr. 124; Maltby v. Christie, 1 Esp. 341.
(c) Gonvell v. Dunklcy, 1 Str. 681; Bromley v. Coxwell, 2 B. & P. 438.
Where a special authority has been given, the in case of
i n • "i •/■ i i special au
agent ought to adhere to it strictly, and it he de- thom^. parts, he will be liable though he acted bond fide and for the good of his principal(d). But he is justified, if the compliance would have been a fraud upon third parties (e), or illegal (/). And the law exonerates him where he has followed the ordinary usage of trade (g), or where he has done everything in his power to comply with the instructions (A). In the absence of proof to the contrary, everything necessary will be presumed (i).
If the act of the agent has made the principal when he is liable to a third party, the agent will be liable over La«. to the same amount (A). So, where, by omitting to do something which he ought to have done, a loss has been entailed on the principal(/). It is the duty of the agent to give early notice to the principal of any loss or casualty, or other circumstance which may render it necessary for particular steps to be taken by the latter for his own security; such as the dishonour of a bill given in payment for goods by the purchaser (m), or the insolvency
(<f) Catlin v. Bell, 4 Carapb. 184. (e) Bexwell v. Christie, Cowp. 395. (/) See Glaser v. Cowie, 1 M. & S. 52. (g) Paley, Pr. & A. 9. (/*) Smith v. Cadogan, 2 T. R. 188, n. (0 Bovillev. Bradbury, 1 Stark. N. P. C. 136. (A) See Green v. New River Company, 4 T. R. 589. (0 Wallace v. Telfair, 2 T. R. 188, n.; Lemon v. Kirk, Cro. Jac. 265.
(m) Beawes, 131.
Liability of of the underwriters with whom an insurance had
been effected in behalf of the principal (n). in cases Where there is no price fixed, and the factor or
where no *'
price is general agent has a discretionary power, he ought to sell to the best advantage (o). If he has made interest on a balance remaining in his hands, he is liable for it(p); and a custom to make a profit by retaining a premium paid on his principal's account cannot be supported(q).
selling on The agent is justified in selling, according to the ordinary usage of trade, upon credit, if there be no express direction to the contrary (r); but he is liable if the vendee was notoriously an irresponsi
Liabiiity ble person (s). Unless the agent has given improper credit, or has been otherwise guilty of laches, he will not be liable for more of the price than he has himself actually received (t). But if it is through the neglect or mismanagement of the agent himself that the price has not been received, he will be liable; as, where an auctioneer, without authority, suffers the purchaser to remove the Liability of
(n) Jameson v. Swainslone, 2 Campb. 546, n.
(o) Beawes, 43; Paley, Pr. & A. 25.
(p) Rogers v. Boehm, 2 Esp. 704, per Lord Kenyon, C. J.
(q) Diplock v. Blackburn, 3 Campb. 43; Massey v. Davies, 2 Ves. Jun. 317.
(»•) Anon. 12 Mod. 514, 515; 2 Mod. 100; Scott v. Surman, Willes, 404, 407. Per Chambre, J., Houghton v. Matthews, 3 B. & P. 489.
(*) Sadock v. Burton, Yelv. 202; S. C. Bulstr. 103. Molloy, 328.
(0 Vardcn v. Parker, 2 Esp. 710; Alsop v. Sylvester, 1 C. & P. 107.
goods without full payment (u). Where an agent transfers property under a forged order he is liable in all cases (a?). And he may become liable by his c own act, where he would not otherwise have been so, as by drawing a bill to be accepted by the vendee (j!/); or, by taking a security payable to himself, without disclosing the purchaser's name (z).
A del credere agent is liable at all events: be- Liability of
# del credere
cause, in consideration of an additional premium, agent. he engages to guarantee the solvency of the debtor (a). 'And such an agent is at the risk of the remittance of the sale money; he cannot, without special authority, invest the proceeds in bills for his principal's account (b). If he has taken bills, he is
(«) Brown v. Staton, 2 Chit. Rep. 353.
(£) Forster v. Clements, 2 Campb. 17. See Marsh v. Keating, 1 Bingh. N. S. 198.
(y) Le Fevre v. Lloyd, 5 Taunt. 749. See Goupy v. Harden, 7 Taunt. 159; S. C. Holt, N. P. C. 342.
(z) Simpson v. Swan, 3 Campb. 291.
(a) Grove v. Dubois, 1 T. R. 112; Morris v. Cleashy, 4 M. & S. 566; Gall v. Comber, 1 B. Moore, 279; S. C. 7 Taunt. 558. "The commission imports, that, if the vendee does not pay, the factor will; it is a guarantee from the factor to the vendor against any mischief to arise from the vendee's insolvency;" see 6 M. & S. 171. But it does not alter the relative situation of the vendor and purchaser: for, " by giving the commission, the vendor means to obtain an additional security, and not to shift the responsibility from the buyer to the factor;" id. 172.
(b) Lucas v. Groning, 2 Marsh. 460; S. C. 7 Taunt. 164.