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CHAP. III.

EIGHTS AND LIABILITIES OF VENDEE IN RESPECT OF
AGENTS.

I. Rights of Vendee.
Dm, of IT is laid down, that, if an agent, in the execution

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of a commission to purchase, deviate from his orders in price, quality, or kind; or if, after the goods are bought, he sends them to a different place from what he was directed,—the goods must remain to his own account, unless the merchant, on advice of the circumstances, admit them according to his first intention (a). However, the principal must notify his rejection of the contract within a reasonable time, otherwise it will be presumed that he has adopted it(b). The principal may reject the contract, and, instead of returning the goods to his factor, undertake to dispose of them as agent for the latter (c). But it seems that this would be allowable only in cases where it is impossible to return the goods without loss, and where the party acts prudently and for the benefit

(a) Beawes, 43; Malyne, 82; Paley, Pr. & A. 28.

(A) Cornwall v. Wilson, 1 Vez. 509.

(c) Prince v. Clarke, 1 B. & C. 186; S. C. 2 D. & R. 266.

of the consignor (J). And if the principal elect Remedy of to proceed in this manner, he must decisively reject the contract; for he will not be allowed, after endeavouring to turn the goods to account, to return them upon the factor's hands (e).

The factor is not justified in being himself the Factor seller of the goods which he undertakes to pur- seiTbe the" chase for his principal (/), nor in buying on his * er" own account what he ought to have bought for his principal. "If one buy up goods which he ought to furnish as a factor, and instead of charging factorage duty, or accepting a stipulated salary, he take the profits, and deal with his constituent as a merchant, this is a fraud for which an account is due"(g). But it is no objection that the contract note merely mentions the agent's name as the purchaser, if the purchase is in effect on behalf of the principal (A).

As to the rights of the vendee against the Agent of vendor's agent,—the general rule is, that, in the absence of any personal undertaking on the part of the agent, he will not be responsible (i). So it

(d) Kemp v. Prior, 7 Ves. Jun. 240.

(e) Cornwall v. Wilson, 1 Vez. 509. Paley, Pr. & A. 31. (/) Massey v. Davies, 2 Ves. Jun. 217. Vid. ante.

(g) East India Company v. Henchman, 1 Ves. Jun. 289, per Lord Thurlow, Ch. Paley, Pr. & A. 33.

(A) Kemble v. Atkins, 7 Taunt. 260, S. C. Holt, N. P. C. 427,1 B. Moore, 6.

(«) See above, p. 406.

Personal is said in Viner(A): "If the servant of a taverner

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■genu sells wine that is corrupted, knowing it to be so, action of disceit does not lie against the servant; for he did it but as servant." But otherwise if the servant expressly warranted on his own affirmance^). -...,. .

II. Rights of Agent. Agent may Every agent, who has a special property in goods '"""''""•"""' entrusted to him, may bring an action in his own name against the purchaser (m); thus, an auctioneer may bring the action on the contract, though the goods were known to belong to the principal, and the sale took place on the premises of the owner («). And brokers may maintain an action for their own benefit, where the contract of sale was in their own name, but on the account of a principal who subsequently repudiated the contract (o). If the vendor-principal cannot make out a title to the goods, and the true owner asserts his claim, the purchaser is not liable at the suit of the agent(p).

(k) Vin. Abr. Actions (T. b.).

(/) Vin. Abr. Actions (U. b.) 1, Broking v. Came. Bro. Abr. Disceit, pi. 29, cites 11 E. 4. 6. See 1 Campb. 362.

(m) Paley, Pr. & A. 361; Bull. N. P. 130. Gardiner v. Davis, 2 C. & P. 49. See. Sadler v. Leigh, 4 Campb. 195; per Lord Alvanley, C. J., Houghton v. Matthews, 3 B. & P. 495; Atkyns v. Amber, 2 Esp. 493; Joseph v. Knox, 3 Campb. 320.

(n) Williams v. Millington, 1 H. Bl. 81.

(o) Short v. Spackman, 2 B. & Ad. 962.

(p) Dickenson v. Naul, 4 B. & Ad. 638.

As factors and other agents have a particular Lien, lien upon the goods they are appointed to sell, they are entitled to recover such amount out of the price; and the buyer cannot defend himself from the claim on the ground that the vendor-principal is indebted to him in a greater sum, which debt he sets off against the price; because the principal himself can never say that, except when there is nothing due to the factor(y). It is immaterial that, at the time of the contract, the factor dealt expressly as agent, and not as principal(r). If, however, the buyer settles for the price of the goods with the principal, without notice of the agent's claim, he will be discharged absolutely (*).

(y) Drinlcwater v. Goodwin, Cowp. 256: See per Lord Mansfield, C. J.

(r) Athjns v. Amber, 2 Esp. 493.

(*) Coppin v. Walker, 7 Taunt. 237; Coppin v. Craig, 7 Taunt. 243; S. C. 2 Marsh. 501.

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