with them as owner, might, even at common law, and independently of the Factors Acts, confer a good title upon a vendee or pledgee,-Pickering v. Busk (1); that the fair inference from the facts stated in the special case was, that Slee was intrusted with the wools in question as a wool-broker, and not as a mere warehouse-keeper (the making of a valuation and report being no part of the duty of a warehouse-keeper), and, though his principals reserved to themselves the right to dispose of them themselves, still it was his usual course of business to sell the sheep's wool at all events and to receive the proceeds, and therefore he appeared to the world as the consignee and owner of the wools, notwithstanding any secret orders to await instructions as to the disposal of them; and that, at all events, he was an agent "intrusted with the possession" of the wools, within the Factors Act, 5 & 6 Vict. c. 39; for, that, if one who ordinarily sells as agent is intrusted with the possession of goods for any purpose, he would have authority to pledge them, and his principals would be bound by his act. And, after an elaborate review of the general policy of the earlier Factors Acts, 4 Geo. 4, c. 83, and 6 Geo. 4, c. 94, and of the progressive changes from time to time effected in the law with regard to the relations between principal and factor, and a criticism of the various decisions which led to those changes, he submitted that the only inference that could reasonably be drawn from the statements in the case was, that Slee's position was such at the time of the pledge made by the letter of the 5th of April, 1872, as to make such pledge valid as against his principals, the plaintiffs. He referred to Phillips v. Huth (2); Hatfield v. Phillips (3); Monk v. Whittenbury (4); Fuentes v. Montis (5); Baines v. Swainson (6); Lamb v. Attenborough (7); Navulshaw v. Brownrigg (8); relying especially upon the judgment of Lord Westbury in the case of Vickers v. Hertz. (9) As to the second point argued in the Court below, viz. that, at the time of the pledge, Slee had not posses 1875 COLE บ. NORTH WESTERN BANK. 1875 COLE v. NORTH WESTERN BANK. sion of all the wools, Langton v. Waring (1) and Portales v. Tetley (2) were cited. Feb. 5. Herschell, Q.C. (W. G. Harrison with him), contrà, contended that an agent had no authority at common law to bind the property of his principal by a pledge; that the present case was neither within the mischief nor the words of the Factors Acts; that the defendants were not induced to advance the money upon the faith of Slee's possession or ostensible ownership of the goods, but acted upon his representation that he had them in his hands; that the fact of the wools having been deposited with Slee as a warehouseman did not give him authority under 5 & 6 Vict. c. 39 to bind his principals by a pledge of them; that, to give him such authority, it must appear that he was intrusted with the possession of the goods as agent for sale, or at least that it was the course of his business as such agent to sell; that the slightest inquiry on the part of the defendants would have disclosed the limited authority under which Slee held the wools; that the transaction of the 5th of April, 1872, did not amount to a pledge, but at the most to a mere contract or agreement to pledge, which might have been defeated by the principals getting back their goods before the transaction was completed; that the defendants could gain no title as against the plaintiffs by their wrongful act in forcibly possessing themselves of the wools in the manner disclosed by the case; that, as to the goats' wool, Slee was clearly never intrusted with them as broker at all; and that, as to the 114 bales of sheep's wool ex Grecian, they could not be the subject of a pledge by Slee, inasmuch as they were not in his hands at the time, and he did not profess to pledge the bills of lading, which were. He cited and commented upon the provisions of the Factors Acts, and also the following authorities,-Wilkinson v. King (3); Pickering v. Busk (4); Monk v. Whittenbury (5); Baines v. Swainson (6); Fuentes v. Montis (7); and contended that the dictum of Lord Westbury in Vickers v. Hertz (8) was founded upon a mistaken notion of the effect of the judgment of Willes, J., in the last-mentioned case. Benjamin, Q.C., in reply, referred to Higgons v. Burton. (1) Cur. adv. vult. Feb. 12. BLACKBURN, J. This is a special case on which the Court of Common Pleas gave judgment for the plaintiffs for the sum of 66617. 1s. 7d. The defendants brought error on that judgment, and the case was argued in the Exchequer Chamber on the 4th and 5th of February last, by Mr. Benjamin for the defendants (the plaintiffs in error) and Mr. Herschell for the plaintiffs (the defendants in error), before my Brothers Bramwell, Mellor, Lush, Cleasby, Pollock, and Amphlett, and myself, when we took time to consider. The case was stated without pleadings. It did not as originally drawn give express power to the Court to draw inferences of fact: but, on that being pointed out during the argument, it was agreed that it was so intended, and that, if necessary, an amendment should be made, to give that power. The plaintiffs, merchants in London, were the owners of two parcels of sheep's wool, and two parcels of mohair or goats' wool. All four parcels were received for the plaintiffs by one Slee, a warehouseman and sheep's wool broker at Liverpool, and were by him deposited in his warehouse at Liverpool. From thence they were taken on the 13th of April, 1872, by the defendants, who claimed right so to do under a contract made by Slee on the 5th of April, 1872, by which he pledged, or agreed to pledge, the whole four parcels to the defendants for 70007. then advanced to him by the defendants on that security. At the time when this contract was made, the two parcels of goats' wool and one of the parcels of sheep's wool were in Slee's warehouse. The other parcel of sheep's wool was still on board the vessel (the Grecian) by which it had come: but Slee held the bill of lading, which had been sent to him by the plaintiffs to enable him to land and deposit the wool in his warehouse; and (after the making of the contract of the 5th of April) on the 9th of April this sheep's wool also was actually deposited in the warehouse. VOL. X. (1) 26 L. J. (Ex.) 342. 2 E 2 1875 COLE V. NORTH WESTERN BANK. 1875 COLE v. NORTH WESTERN Slee absconded with the 70007. thus obtained, and then the defendants, having notice that Slee had committed this act of bankruptcy, but not having any further notice that he had not been so intrusted with the possession of the goods as to be able to pledge them, took forcible possession of the whole goods against the will of Slee's clerks. The great question was whether Slee was, under the circumstances, so intrusted with the possession of the goods as to have been able on the 5th of April (supposing he had then delivered actual possession to the defendants) to make a pledge to the defendants good against the plaintiffs. As to this, there is a distinction between the sheep's wool and the goats' wool; for, Slee never sold goats' wool at all, and was clearly intrusted with the goats' wool as warehouseman, and as warehouseman only. But he did sell sheep's wool as a broker. A broker, who, without being intrusted with the goods, makes a contract between two principals, has no opportunity to pledge the goods at all. But we know (though it is not stated in the case) that brokers often are capitalists who make advances on the goods and have them transferred into their names as a security for such advances. And sometimes, especially where the principal is resident at a distance, the goods are transferred into the broker's name for the purpose of facilitating a sale by him, although there has been no advance made by him upon them. The agent thus intrusted is something more than a mere broker. A pledge by a person thus intrusted with the possession of goods as broker would no doubt be good. And if, as is sometimes the case, the broker had warehouses of his own in which the goods so intrusted to him were stored, they would be equally in his possession as broker as if they had been stored in the warehouse of another in his name. But we are all agreed that we must understand from the statement in the case that Slee had not warehouses as merely ancillary to his business as broker, but that he carried on two distinct and independent businesses, the one being that of a warehouseman, the other that of a sheep's wool broker: and this raises the first question of fact, viz. whether the goods in question were intrusted to him merely as warehouseman, or also as broker. It is stated in the case that the bills of lading of the plaintiffs' wool (whether goats' wool or sheep's wool) were in the ordinary course of business sent down to Slee for the purpose of his receiving the wool from the ship and warehousing it. Slee, after the wool had been so received and warehoused, sent up a report and valuation thereon, and then awaited the plaintiffs' further instructions as to disposal. Two sample letters are set out in the Appendix, one relating to goats' wool, the other to sheep's wool; and they bear out the statement in the case that both kinds of wool were treated in exactly the same way. But there is the further statement that, "as to the sheep's wool, Slee had no general authority from the plaintiffs to sell, but always awaited instructions, and acted only under specific authority given to him from time to time in each case; and, when such last-mentioned sales were effected, Slee received the proceeds.' We draw the inference of fact that, as between the plaintiffs and Slee, Slee was intrusted with the sheep's wool and goats' wool alike, solely for the purpose of warehousing them. But, as it appears that he was sometimes authorized by the plaintiffs to sell and receive payment for sheep's wool deposited in his warehouse, the question arises whether he could make to the defendants a good pledge of any wool (either goats' wool and sheep's wool, or of sheep's wool only, or of neither,) deposited by the plaintiffs in his warehouse, though not intended to be sold. The Court of Common Pleas decided that the pledge (even supposing it to have been executed by delivery on the 5th of April) would not have been good either as to the sheep's wool or the goats' wool and we are of opinion that they were right, and that their judgment should be affirmed. This renders it unnecessary for us to express any opinion on two subsidiary points raised by Mr. Herschell,-first, that the taking forcible and (as he argued) wrongful possession on the 13th of April could not better the defendants' position, who therefore remained in the position (provided for in the 4th section of 5 & 6 Vict. c. 39) of a person who has made a contract for a pledge with an agent, but has not actually received the goods contracted to be pledged,-and, secondly, as to the parcel per Grecian, 1875 COLE v. NORTH WESTERN BANK. |