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judgment of the Court, said, "The principal question "is, as to the meaning of the second section of the "6 Geo. 4, c. 94, commonly called the Factors' Act. "Before the passing of this act, or rather of the "previous Factors' Act, the 4 Geo. 4, c. 83, it was "clearly settled, that a factor or agent for sale, had "no power to pledge, whether he was in possession of "the goods themselves,•or of the symbol of the goods, "and even though the symbol might bear on the face "of it some evidence of the property being in himself, "as in the case of a bill of lading, in which he was the "consignee or indorsee. This was in accordance with "the general rule, that he who deals with one acting "ex mandate, can obtain from him no better title "than his mandate enables him to bestow.
"But this rule was thought by some to be attended "with hardship on merchants and others dealing with "factors, on the faith of their being principals, and "the Legislature, by the 4 Geo. 4, first relaxed this "rule, and by the 6 Geo. 4, extended that relaxation. "* * * * It is very clear that the second sec"tion of the 6 Geo. 4, relaxes the rule of the common "law, only with respect to those who deal with per"sons who are not merely in possession of, but are "also intrusted with the symbol of property. However "great the hardship may be on innocent persons, and "whatever they may have supposed from finding "another in possession of a document bearing the "indicia of property in himself, still the statute does "not apply, and they can acquire no title by virtue
"of it, unless the document has been intrusted to that "person."
Philips v. Huth, was compromised, but Philips v. Hatfield (a), was tried before Lord Abinger, who directed the jury to consider whether an intrusting of the document was proved. He expressed a very strong opinion, that there could not, in fact, be an intrusting of a document, the very creation of which was a breach of trust, but declined to define intrusting as a matter of law, further than that it implied privity and consent. Under this direction, the jury found for the plaintiff. The cause was taken by writ of error into the Exchequer Chamber, and the Judges there expressed their concurrence in the doctrine of the Exchequer in Philips v. Huth, and affirmed the judgment. The case was taken into the House of Lords, and is now (June, 1845) standing for argument. In the meantime the Legislature passed the 5 & 6 Vict. c. 39, which is prospective only, but makes such pledges as that in Philips v. Hatfield, valid. The enactments, however, of 5 & 6 Vict. are all in express words confined to "agents intrusted with possession," a word which excludes a purchaser, and, consequently, prevents that last statute from having any effect on the vendor's rights. The 6 Geo. 4, c. 94, uses the words "person intrusted," and though there seems good reason for contending, that the object of that statute, and the evil which it was meant to remedy,
confine the enactment to persons intrusted, somewhat in the nature of agents for sale, so as to give the act the same meaning as if the word agent had been used instead of person, yet that is not clear. Philips v. Huth, however, shews that the words of that section, are not to be taken in a very liberal sense, and if the Legislature did mean to enact, that a purchaser who had not taken possession of goods, might defeat the vendor's rights by the indorsement of a document of title, they have not used language very well adapted to express their intention. A purchaser who has not taken actual or constructive possession, is, nevertheless, the owner of the goods, and so long as he continues solvent (if there be unexpired credit),,he is complete owner. If, therefore, he holds a document of title, he does not hold it as a trustee at all, but in his own right. He holds it not in consequence of the vendor's confidence in him, but because he is entitled to the possession of the goods in spite of the vendor. It is, therefore, scarcely accurate to call him a person "intrusted" with a document of title. And it is still less accurate to enact, that "he shall be taken to be the true owner, so as to give validity to his contracts," for he actually is the owner, and his contracts are valid at common law. If the Legislature meant to touch the case of stoppage in transitu, they should have said, that he was to be taken to be the " absolute owner, so as to give indefeasible validity to his contracts."
OF THE EXTENT OF THE VENDOR'S RIGHTS WHILST IN POSSESSION.
The last subject of discussion, viz., the extent of the unpaid vendor's rights whilst he is in possession of the goods, is one on which the law is more unsettled than any person not practically acquainted with the subject could anticipate. The vendor has a right in the goods whilst he retains possession, and the right comes into operation when the purchaser is solvent, but in default. It also exists when the purchaser is insolvent, whether the purchaser be in default or not, and it exists when the vendor has resumed possession by a stoppage in transitu. The position of the unpaid vendor in the three cases is not precisely the same, and though it is probable that his rights in each are of a similar nature, it is not to be assumed that they are the same, so that it must not be taken for granted that a decision as to the vendor's right in one of the three cases is an authority equally applicable to the vendor's rights in the other two.
The decided cases seem to establish, that in all three positions the right exceeds a mere lien, that is to say, it interferes not only with the purchaser's right of possession, but also with his right of property.
And it seems also the better opinion that the vendor's right does not in any one of the cases amount to a right to resume a complete right of property, so as to devest totally the purchaser's right of property, or in other words, that the vendor cannot treat the contract of sale as rescinded, so as to resume his property as if the sale had never been made. But this point has never been solemnly decided in cases of insolvency, and in the last cases in which it arose the Judges were inclined to differ in opinion.
The precise extent of the vendor's right between those limits is very much a matter of conjecture. It would seem that, viewing it as a practical question, the most convenient doctrine would be to consider the vendor as entitled in all cases to hold the goods as a security for the price, with a power of resale to be exercised, in case the delay of payment was unreasonably long, in such a manner as might be fair and reasonable under all the circumstances. If the resale was conducted by the vendor in a fair and reasonable manner, the original purchaser who was in default would have no right to complain; if the resale produced a sum greater than the unpaid portion of the price, he would be entitled to the surplus; if there was a deficiency, he would still remain indebted to the vendor for that amount. If the purchaser, previously to the resale, tendered all that was due, he would be entitled to consider the resale as altogether tortious, and to maintain trover against the vendor for it, (see