Highway V. BAINBRIDGE. 1866. the Act (which have been discharged); secondly, in WEARDALE defraying the expenses of management, not exceeding in any one year 3007; thirdly, in maintaining and repairing the roads, &c., but so that the amount expended for these purposes shall not exceed 16007. in any one year, and then in paying off a large debt owing by the trustees; so that it is clear that the Legislature intended that to the extent of 19007. the management and repairs should be a charge on the trust funds prior to the debt. The facts are that the revenue of the trustees exceeds 19007., and the expenses of management and maintaining the roads fall short of that sum, so that there is a surplus, though a small one, applicable to the reduction of the debt; but the trustees think it proper to apply a larger sum to reducing the debt, and they have obtained an order from the justices requiring the appellants to defray part of the expenses of the maintenance of the road, on the ground that the funds of the turnpike trust (which are sufficient to repair the road if the trus tees obey the Act of Parliament and apply their funds primarily to those purposes to the extent of 19002.) will not be sufficient if they disobey that Act, as they propose to do, and apply the funds to reduce the debt. Reg. v. White (a) was very properly relied upon by the counsel for the respondent. If the present case were not distinguishable we should probably have required it to be reargued before the Court when more full before dissenting from a decision in point; but we think that that case is very different from the present. The terms of the local Act were hardly so express as those of the present Act; and it might (a) 4 Q. B. 101. be thought that the subsequent general Act repealed, For this reason we give judgment for the appellants. costs. 1866. WEARDALE V. BAINBRIDGE. DRAKEFORD against PIERCY. Declaration for goods sold. Plea: that the plaintiff sold the goods by D. his agent, and that the defendant purchased them of D. not as the agent of the plaintiff, but as himself being the vendor on his own account, and the defendant had no notice or knowledge that D. was an agent until after he had paid for the goods, and the defendant paid for them bona fide believing that D. was the vendor of the goods on his own account, and entitled to receive payment. Held, no answer. ECLARATION for goods sold and delivered, and on accounts stated. Pleas. First. Never indebted. Second. That before action the defendant satisfied and discharged the plaintiff's claim by payment. Third. As to the claim for goods sold and delivered: that the plaintiff so sold and delivered the goods by one D. E. Davies his agent in that behalf, and that the defendant purchased and received the goods of and from D. E. Davies not as the agent of the plaintiff or otherwise as an agent, but as being himself the actual vendor of the goods on his own Thursday, May 10th. Sale of goods. Plea. Payment to agent. 516 1866. V. PIERCY. account. The plea then alleged that D. E. Davies so DRAKEFORD Sold and delivered the goods as the actual vendor thereof on his own account, and that the defendant had no notice or knowledge that he was an agent in the sale or in the delivery, or sold or delivered the same otherwise than as the vendor thereof on his own account, until after he had paid for the goods; and that he paid D. E. Davies for the goods, bonâ fide believing that he was the vendor of the goods on his own account, and entitled to receive the payment. And that he so paid to D. E. Davies the whole of the price at and for which he so bought the goods. Issue on all the pleas. Demurrer to the third plea, and joinder. Charles Russell, in support of the demurrer.-The precedents do not support the plea; 3 Chitt. Pl. by Greening, 122, 123, Bullen & Leake Precedents of Pleadings, 559, 560, 2nd ed. (a). It does not state that the plaintiff in fact authorized Davies either to sell the goods in his own name or to receive payment for them, nor does it state anything to shew that he clothed Davies with such authority. The plea assumes as matter of law that an agent employed to sell goods is authorized to receive payment from the purchaser, but that is not so; Mynn v. Joliffe (b), per Littledale J. [He referred to J. A. Russell on Factors, pp. 68, 87, Story on Agency, § 102, 4th ed.] There is no allegation in the plea that the plaintiff was guilty of carelessness or of conduct (a) See Semenza v. Brinsley, 18 C. B. N. S. 467, where a plea following the precedent in Bullen & Leake was held bad, (b) M. & Rob. 326. 1866. V. PIERCY. by which the defendant was misled as to the extent of the authority of Davies, or that Davies had possession of DRAKEFORD the goods, or that he had authority to sell for cash. [Lush J. It is consistent with the plea that Davies sold at three months credit, and that the defendant paid him the day after the sale.] If the defendant relies on the plaintiff having ratified the sale by suing for the price, the plea should have shewn that the plaintiff knew either that Davies sold as apparent principal or that he had received payment; a mere ratification of the sale does not, as matter of law, involve a ratification of the payment. Hindmarch (C. Crompton with him).-It is consistent with the plea that Davies, having authority to sell, sold in his own name without authority, and that the defendant not being aware of the absence of that authority paid him the price; that is primâ facie a good defence. The plaintiff should reply that Davies had not authority to sell in his own name. [Lush J. The plea in order to be good must assert a sound legal proposition: this plea asserts that an agent employed to sell goods has authority to receive payment.] In Capel v. Thornton (a) Lord Tenterden said that if Ellsworth as agent of the plaintiffs "had authority to sell goods, so had he (in the absence of advice to the contrary), an implied authority to receive the proceeds of such sale.” [Blackburn J. That would be right in respect to the particular class of agents there referred to, but is not generally true it appeared that the defendant always received bills of parcels in the name of Ellsworth and (a) 3 C. & P. 352. 1866. V. PIERCY. paid him for coals, Ellsworth giving receipts in his own DRAKEFORD name.] In George v. Clagett (a), decided upon the authority of Rabone v. Williams (b) before Lord Mansfield, the principal brought an action against the defendant for the price of goods sold on commission, and the defendant was allowed to set off a demand which he had on the factor. [Blackburn J. Factors commonly sell in their own name. The fact of custody of the goods is only evidence of authority. In Carr v. Hinchliff (c) the plea alleged that the goods were, with the knowledge, privity and consent of the plaintiff, sold and delivered to the defendant by the agent and factor of the plaintiff in his own name as the owner thereof. Lush J. In Fish V. Kempton (d) the plea was larger than this.] In Coates v. Lewes (e), where the owner of goods allowed a broker in London to sell them as principal, the purchaser was held to be discharged by payment to the broker; and it being suggested that the defendants must have known that he was not acting on his own account, as they knew him to be a sworn broker of the city of London, Lord Ellenborough said, p. 445, "A breach of his duties in that capacity could not affect the rights of third persons." [Lush J. Suppose Davies had no authority to sell.] The plaintiff would bring trover: and if he waives the tort he ratifies the contract. [Shee J. referred to Ramazotti v. Bowring (f).] Charles Russell was not called upon to reply. BLACKBURN J. Since The Common Law Procedure Act, (a) 7 T. R. 359. (c) 4 B. & C. 547. (e) 1 Camp. 444, (b) 7 T. R. 360, note (a). (d) 7 C. B. 687. (f) 7 C. B. N. S. 851. |
