107. If, after tender and refusal of the of the unsoundness of A.'s horse, but is amount of a debt, the money is lost confined to his action against the agent. through the insolvency of the agent em- Symonds v. Carr, 1 Campb. 361. Elployed to make the tender, the creditor lenborough, C. J. 1808. is not chargeable with the loss. Dent v. Acc. Selw. 98. Dunn, executrix, &c. 3 Campb. 296. Ellenborough, C. J. 1812. 115. An agent selling goods after notice that they are not the property of his employer, is personally liable to the vendee for the purchase money. Hardacre E. LIABILITY OF AGENT TO THIRD V. Stewart, 5 Esp. 103. Ellenborough, PERSONS. C. J. 1804. And see 5 Burr. 2639. 116. An attorney who signs a condi108. A son who conducts the business tional undertaking to give up bills which of a superannuated father, and appears he holds on account of his client, is perto be the proprietor, is personally liable sonally liable, unless it appear upon the for goods bought by him. Turrel v. instrument that he entered into the enCollet, 1 Esp. 320. Kenyon, C. J.gagement merely as agent. Kendray v. Hodgson, gent. one, &c. 5 Esp. 229. Ellenborough, C. J. 1805. 1795. And see Saunders v. Vincent, 6 Bac. Ab. 638. 109. An agent who orders goods from a tradesman without stating at the time that they are for his principal, is liable for the amount. Owen v. Gooch, 2 Esp. 568. Kenyon, C. J. 1797. 110. If the tradesman refuse to deliver the goods on the credit of the principal and require the credit of the agent, the latter is alone liable. Ibid. S. P. Per Ashhurst, J. in Macbeath v. Haldimand, 1 T. R. 181; Woodhouse v. Bradford, 1 Roll. Abr. 593, 4 acc. 117. A receipt signed A. for B.,' A. being in fact only clerk to B., is not sufficient to charge A. in an action for money had and received. Edden v. Read, 3 Campb. 339. Ellenborough, C. J. 1813. And see ante D. 104; Coles v. Wright, 4 Taunt. 198. 111. Where the goods are ordered expressly on the account of an unnamed 118. An agent who guarantees that principal, and after delivery the agent the shipment will be found to be in conrefuses to give up his principal, the 'formity with the revenue laws of Great agent is liable. Ibid. 112. But if the order be given in the name of a third person, and the goods be delivered accordingly, the agent cannot be charged. Ibid. And see Graham v. Stamper, 2 Vern. 146. 113. Where money has been received by an agent upon a contract founded in corruption, oppression, or immorality, he is not discharged by paying it over to his principal. Miller v. Aris, 3 Esp. 233. Kenyon, C. J. 1800. Britain, so that no impediment shall arise from the importation thereof, or that in default, the consequences shall rest with his employers, renders himself personally liable for an impediment, arising from a non-compliance with the navigation act. Redhead and another v. Cator, 1 Stark. 14. Ellenborough, C. J. 1815. 119. In a declaration upon such a guarantee it is unnecessary to state an application for an indemnity to the principal. Ibid. S. C. Selw. 88 n. 120. An agent, at the request of his And see Sadler v. Evans, 4 Burr. principal, promises to pay a sum of mo1985; Buller v. Harrison, Cowp. 565; ney to a third person at a future day, Snowdon v. Davies, 1 Taunt. 359; -As-provided he receives money on account of SUMPSIT E. (f); BASTARDS A. (b). his principal. This is a contingent ap114. A. and B. severally employ a propriation of such sum; to meet which, person to sell their horses. The agent the agent is bound to retain any money sells them at an entire price to C. and he may afterwards receive. Stevens v. warrants both horses sound; C. cannot Hill, 5 Esp. 247. Ellenborough, C. J: ever the contract, and sue A. in respect 1805. Acc. F. N. B. 121 F. 121. And he cannot discharge himself by shewing that, subsequently to the promise, he has made other payments on account of his principal. Ibid. S. P. Maber v. Massias, 2 Bla. 1072. And see Clark v. Adair, cited 4. T. R. 343. PERSONS. A. How CONSTRUED. A. (a) Where agreement affects the con tracting parties only. 1. Upon the settlement of accounts between A. and B. the balance is 81. in favour of A. who agrees to take 41. down, and to receive the remainder at the end F. RIGHTS OF AGENT AGAINST THIRD of a month. B. gives A. a draft upon ar improper stamp for the last 41. A. cannot sue until the month is expired. 122. A factor may sue in his own Swears v. Wells, 1 Esp. 317. Kenyon, name for goods sold, though the name C. J. 1795. of the owner be declared at the time of sale. Atkyns and Batten v. Amber, 2 Esp. 493. Eyre, C. J. 1796. Sed vide Pothier, Traité de l'action condictio indebiti, part 3, sect. 2, art. 4, num. 163; Dig. 12, 6, 6; ibid, 12, 6, 53; ibid, 12, 6, 57; post, BANKRUPT, C; Moore v. Hopper, 2 N. R. 411. Sed vide post ASSUMPSIT A. (a) 1. PLEADING H. (b) 23. 2. An indemnity against debts specified in a schedule, though one of the debts be underrated is available pro tanto Hancock v. Clay, 2 Stark. 100. Ellenborough, C. J. 1817. Ellen 3. A. engages not to open a shop 123. An executor employs A. to con- within one mile of B's. shop; the shortest tinue the testator's trade for the benefit access by the foot-path is to be taken. of the estate in A.'s own name; A. may Woods v. Dennett, 2 Stark. 89. sue upon a contract made by him in re-borough, C. J. 1817. spect of such trade. Wilkes v. Lister, 6 Esp. 78. Ellenborough, C. J. 1806. 124. In assumpsit against consignee for not accounting, also for goods sold and money had, the sale by defendant need not be proved; after a reasonable time it will be presumed, or plaintiff may proceed for not accounting. Hunter v. Welsh, 1 Stark. 224. Ellenborough, C. J. 1816.mas, Holt. 236. Gibbs, C. J. 1816. AGREEMENT. (And see STAMPS, B.) A. How CONSTRUED. (a) Where agreement affects the ing parties only. 4. Where a builder contracts for à particular sum, and additions are made to the original plan, the contract remains binding as far as it can be traced, and the excess only is recoverable on a quantum meruit. Pepper v. Burland, Peake, 103. Kenyon, C. J. 1791. 5. S. P. Robson v. Godfrey and Tho 6. Where, in answer to an attorney's bill, the defendant sets up an agreement by which the plaintiff undertook to conduct his suits without charge, in con sideration of having his conveyancing business, the defence is not met by proving that the defendant has employed other persons to draw his leases. The plaintiff should either have given notice to the defendant to discontinue the agreement, or have resorted to a special action. contract-Parker and Rich v. Harcourt, 5 Esp. 249. Ellenborough, C. J. 1805. 7. Where an agreement for the sale of (b) Agreement in respect of third persons. leasehold lands, contained a stipulation B. VALID OR ILLEGAL. C. BREACH OF AGREEMENT. (a) What shall be. (b) How waved. that the purchaser should take the crops at a valuation, which valuation being made, the purchaser entered and took the crops, but the vendor did not make a good title to the lands, it was held, that the vendor could not sever the con tract and recover in indebitatus assumpsit for the crops. Neale and others v. Viney, declared as soon as known, and to arrive 1 Campb. 471. Ellenborough, C. J. Guildford, 1808. before the 31st December. A. is not bound to deliver the whole quantity from And see Kirtland v. Pounsett, 2 Taunt. one ship, although he had first given no145; Corder v. Drakeford, 3 Taunt. 382. tice to that effect, and although the ves8. Contract for goods "free on board sel contained a larger quantity, which a foreign ship." The seller cannot be was delivered to previous purchasers. required to give an order for transferring Thornton and others v. Simpson and them into the purchaser's name in the others, Holt. 163. Gibbs, C. J. 1816. warehouse. Wackerbarth v. Masson, 3 Campb. 270. Ellenborough, C. J. 1812. 9. S. P. Ruled in Wetherell v. Coape, A. (b) Agreements in respect of third Campb. 272 n. Mansfield, C. J. 1812. persons. D. MERGER. 10. On a sale in London of goods at sea, it is agreed that if they shall not And see post 1, FRAUDS, Statute of arrive on or before 31st December, the bargain shall be void. The parties must be understood to have had in contemplation an arrival at London only. Idle and others v. Thornton and others, 3 Campb. 274. Ellenborough, C. J. 1812. 17. Where A. undertakes to pay for goods to be shipped on account of B. at nine months from the date of the shipment of the goods, no notice need be given to A. of the shipment. Oxley v. Young, et alt. 1 Esp. 424. Eyre, Č. J. 1795. 11. The assured agrees to repay the loss to the underwriter in case the property detained by the Russian government 18. A specific contract for the purchase shall be restored: it is sufficient to shew of a ship and goods cannot be controlled a yielding up of the goods quasi in integro, by a prior contract for the latter only. notwithstanding some spoliation during Lano v. Reale, 2 Stark. 105. Ellenthe detention. Jordaine v. Cornwall and borough, C. J. 1817. others, 1 Stark. 6. Ellenborough, C, J. 1814. 12. An agreement that the tenant shall be at liberty to quit at L. D. 1814, in which case the landlord engages to take the fixtures at a valuation, or permit the tenant to let the house, vests an option in the latter in the event of his so quitting. Cotton v. Lingham, 1 Stark. 39. Blanc, J. 1815. 19. If an heir, without consideration, bind himself to execute a voluntary conveyance of lands descended, he cannot be required to covenant for the acts of his ancestor. Chapman v. Ladbroke, 4 Esp. 149. Lawrence, J. 1802. 20. Drawee of a void check, tells the payee that he will pay it, as he is indebtLeed to the drawer in a larger sum. This is not a promise to pay the debt of another, but an appropriation of part of the sum due from the drawee to the drawer, to the discharge of the debt owing from the latter to the payee. Ardern v. Rowney, 5 Esp. 254. Ellenborough, C. J. 1805. 13. A letting to an under tenant till L. D. 1814, is not an exercise of this option. Ibid. 14. An unstamped agreement by way of defeasance indorsed upon a note by the payee, does not affect his right of action. Stone v. Metcalf, 4 Campb. 217. 1 Stark. 53. Ellenborough, C. J. 1815. 15. The payce of a note indorses upon "it my will and desire is, that the money "shall not be called in for two years, And see Yeates v. Groves, 1 Ver. 280. 21. But if the drawee can shew that he was mistaken in supposing that he was indebted to the amount of the check, the payee can only recover the balance due to the drawer. Ibid. 22. A. being indebted to B. assents tò the assignment of the debt to C.; C. may sue A. in his own name. Surtees et alt. v. Hubbard, 4 Esp. 204. Ellenborough, &c. and that if the said C. S. shall "wish for further time, he shall have it "without suit at law until three years next after my decease." Semble, these are words of mere indulgence and favour, and do not operate as a defeasance. Ibid. C. J. 1802. 16. A. contracts to deliver to B. 50 And see post Baron and Feme, B. (b) tons of hemp, the ship's name to be F. N. B. 122, K. Y. B. P. 44, E. 3, Mayson v. Pritchard, 2 fo. 21, pl. 28. M. 9, H. 5, fo. 14, pl. 23. fand paid for. Forth v. Stanton, 1 Saund. 210, 211, n. Campb. 436. 2. Fenner v. Mears, 2 Bla. 1269. 1810. Master v. Miller, 4. T. R. 340. Innes And the court of K. B. refused a rule v. Dunlop, 8 T. R. 595. Israel v. Dou- for a new trial, after a verdict for the glas, 1 H. Bla. 239. Johnson v. Col-vendor. Ibid, and 12 East, 227. lings, 1 East, 98. Williams v. Everett, N. Qu. whether this guarantee was 14 East, 582, 7. Flewellin v. Rave, 1 valid with respect to the price of the Bulst. 68. goods previously supplied; it not being expressed, (5 East, 10,) that these goods were supplied at B.'s request (1 Saund. 264, n.) 23. A. being indebted to B. requests C. to pay B. the amount. This C. undertakes to do "provided he receive money on account of A." Money of A. which subsequently comes into the hands of C. is money received to the use of B. Stevens v. Hill, 5 Esp. 247. Ellenborough, C. J. 1805. 24. S. P. said to have been ruled by Lord Kenyon. Ibid. And see ante, AGENT, 119, 120. 29. So an undertaking to be answerable to the extent of 3007. for any goods supplied to B. remains in force as long as the parties continue to deal on the same footing. Baston v. Bennett, 3 Campb. 220. Ellenborough, C. J. 1812. 30. Semble, that B. might relieve himself from further liability by giving notice to discontinue his guarantee. Ibid. 25. But where A. having accepted a bill payable at B.'s banking-house, re- 31. An agent remitting the bills of his mits funds to B. after the bill has become principal in payment, writes "I promise due, with directions to pay the amount to see that the bills be honored." Reto the indorsee, and B. tenders the ceiving the bills in payment is a sufficient money accordingly to the indorsee, who consideration for this promise. Morris v. states that the bill is returned to the Stacey, Holt. 153. Gibbs, C. J. 1816. indorser in Ireland: the indorsee cannot sue B. on getting the bill again into his possession, A. having, in the mean time, countermanded the payment. Stewart and another v. Fry and Chapman, Holt. 372. Gibbs, C. J. 1816. 32. A. guarantees to B. the amount of goods to be supplied to C.; in payment of these goods, A. indorses a bill to C., which the latter indorses to B.: before the bill becomes due, A. is bankrupt; the debt is barred by the certifi26. Indebitatus assumpsit will not lie cate. Gaskell and another v. Lindsay on a collateral undertaking for the pay-and another, Holt. 212. Le Blanc, J. ment of goods sold to a third person. Lancaster, 1816. The declaration must be special. Mines v. Sculthorpe, 2 Campb. 215. Ellenborough, C. J. 1809. And see 1 Saund. 211. a. b. Plowd. 183. any Merle and others v. B. VALID OR ILLEGAL. (And see ASSUMPSIT A. (a) 4, A. (b). 33. A. agrees to allow B. poundage 27. Defendant guarantees to plaintiffs upon goods sold by A. to customers debts which J. S. may contract with recommended by B. The agreement is them for goods not exceeding 1001. This a fraud upon the customers, and cannot is a continuing guarantee, not confined be enforced. Wyburd v. Stanton, 4 Esp. to one dealing of 100%. but extending, 179. Ellenborough, C. J. 1802. within that amount, to successive renew- See Bunn v. Guy, 4 East, 190. als of the debt. 34. An agreement by which a party John Wells, 2 Campb. 413. Ellenbo-who had been defrauded of goods under rough, C. J. 1810. false pretences, undertook not to proceed Vide Vinn, Sel. Jur. Quæst. lib. 2 against a person who had received the cap. 41. goods at an under price, was held to be 28. An undertaking by B. to be re-valid. Drage v. İbberson, 2 Esp. 643. sponsible to A. for any goods he hath Kenyon, C. J. 1798. supplied or may supply W. P. to the Acc. Johnson v. Ogilby, 3 P. Wms. amount of 1007. remains in force after 279. Sed vide Collins v. Blantern, 2 goods to that amount have been delivered Wils. 347. And see post, BILLS, B. (b): And see COVENANT, B. 1. 35. But an agreement by the payee of a bill to discharge the acceptor in 42. A provision in a lease for an adconsideration that the drawer will forego vanced rent in case the lessee should an intended motion in K. B. calling upon discontinue purchasing his beer of the the payee to answer the matters of an lessor was strongly censured by the affidavit is corrupt and invalid. Pool v. court. Cooper v. Twibill, 3 Campb. Bousfield, 1 Campb. 55. Ellenborough, 286. Ellenborough, C. J. 1808. C. J. 1807. 43. And a plea in bar to an avowry for such additional rent, stating that the beer supplied was of a bad quality was considered as a meritorious defence. 36. An agreement to pay money in consideration of putting off the trial of an indictment is legal. Harvey and others, assignees of Harvey, v. Morgan and ano-Ibid. ther, 2 Stark. 17. Ellenborough, C. J. 1818. And see H. 2, H. 7, fo. 8, pl. 1. F. N. B. 121, F. Fitz. Bar. 124, Plowd. 36, 186. 1 Finch, 148, 2 Finch, 181. Smith v. Everett, 4 Bró. C. C. 64. 44. But where premises are described in the conditions of sale as a "free public house," the bargain may be avoided by the purchaser, if it appear that the lease contains a clause of this nature. Jones v. Edney, 3 Campb. 285. 37. An allegation that "the parties en-Ellenborough, C. J. 1812. tered into a certain agreement," though 45. Although the lease be produced merely inducement to a declaration for a and read at the auction. Ibid. libel, is not supported by proof of agree-| And see Gunnis v. Erhart, 1. H. Bla. ment executed when the defendant was 289. Jenkinson v. Pepys, 6 Ves. 330. in a state of intoxication. Pitt v. Smith, Powell v. Edmunds, 12 East, 6. 3 Campb. 33. Ellenborough, C. J. 1811. Vide post. 28, § 2. C. (b) How waved. 38. Such an agreement need not be produced in an action for work and 46. Where a bankrupt promised to labour done in pursuance thereof. Fen-pay a creditor 18s. in the pound, in conton v. Holloway, 1 Stark. 126. Ellen-sideration that the latter would not prove borough, C. J. 1815. 39. An agreement which contains a stipulation void by the statute of frauds, is void in toto. Lea v. Barber. Exch. H. T. 1794; 2 Anst. 425, n. So ruled on the authority of Cooke v. Tombs. 2 Anst. 420. Acc. Chater v. Beckett, 7 T. R. 201. C. BREACH OF AGREEMENT. C. (a) What shall be. under the commission, a petition preferred by the creditor to the lord chancellor against the allowance of the certificate, was held to be a waver of the agreement. Colls v. Lovell, 1 Esp. 282. Kenyon, C. J. 1795. 47. A. undertakes to guarantee the payment of goods to be manufactured for B. by C. A. wishing to withdraw his guarantee, writes to C. to inquire whether the goods are prepared. Not receiving an immediate answer, he gives up a counter-security. A. is not discharged, if it appear that C.'s silence was occasioned by his absence from home. Oxley v. Young et alt. 1 Esp. 424. Eyre, C. J. 1795. 40. An agreement between a brewer and a publican that the latter shall take all his beer of the former, or pay an advanced rent, cannot be enforced, unless 48. And the court of C. P. discharged the publican be supplied with good beer. a rule for a new trial, 2 H. Bla. 613. Holcombe v. Hewson, 2 Campb. 391. 49. Goods are sold to be paid for on Ellenborough, C. J. 1810. delivery, and the vendor suffers part to 41. And the quality of the beer can-be removed without payment, this is onnot be proved by shewing what sort of ly a dispensation pro tanto, and he may a commodity the plaintiff furnished to retain the remainder until the price is other publicans during the same period. paid. Payne v. Shadbolt, 1 Campb Ibid Ellenborough, C. J. 1808. 427. |