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Action on account stated.

to the plaintiff of £75 98., and an account was on that day sent by the plaintiff to the defendant showing that balance.

3. On the 1st of March following, the plaintiff's collector saw the defendant at his house, and asked for payment of the said balance, and the defendant then paid him by cheque £25 on account of the same. The residue of the said balance, amounting to £50 98., has never been paid (a).

The plaintiff claims

Administrators.
See Executors and Administrators.

Agents (6).
Action against Agent for selling on Credit against Instructions,

and at lower Price than directed.
1. The plaintiff is a colliery proprietor at --, and he has
various agents for the sale of his coal in different towns in
the north of England.

Against agent for selling

(a) This form of a statement of claim upon an account stated is given in Appendix C. to the Judicature Act. It would seem that the defendant's assent to the account stated is to be gathered from his conduct

and the facts stated in paragraph 3. Principal (6) Where no fixed time of service has been agreed upon, a principal and Agent. may at any time revoke the authority of his agent, unless indeed the

agent has, as it is called, an authority, coupled with an interest, as where a debtor hands to his creditor a power of attorney, authorizing him to sell certain lands of the debtor, and pay his debt out of the proceeds of the sale. Here it was held that the agent's authority could not be revoked. (Gaussen v. Morton, 10 B. & C. 731.) The agent must keep regular accounts and vouchers, and if he refuses to account after demand made, he is liable to an action (Topham v. Braddick, 1 Taunt. 571); and if goods have been intrusted to an agent to sell, and he renders no account of them, it will be presumed that they have been sold and the money received. (IIunter ý. Welsh, 1 Stark. 224.) Agents must bring to the discharge of their duty towards their principals a reasonable and ordinary amount of skill and judgment. So that if a broker or commission agent is ordered to buy an article of first-rate quality and he buys an inferior one, he is guilty of such a breach of contract as renders him liable in damages to his principal. (Mainwaring v. Brandon, 2 Moore, 125.) Subject to this responsibility the powers of brokers and mercantile agents of that class are very considerable. They have, generally speaking, an implied authority to sell at such times, places, and prices as they think most to the advantage of their principal, and even to sell on credit, if on the particular market it is customary for agents to do so, but in order that they

2. During the months of January and February, 1876, the against plaintiff employed the defendant, for reward, as one of such instruc

tions. agents in the town of C.

3. The defendant's duty was to sell the quantities of coal that might be consigned to him on such terms as to prices and mode of payment as the plaintiff might from time to time direct in that behalf.

4. Between the 15th of January and the 10th of February, 1876, the plaintiff consigned to the defendant, in various lots, 1000 tons of coal, and the defendant duly received the same ; and at the time of each consignment the

may bring an independent judgment to bear on each matter in which they act, no agent is allowed either to sell his own goods to his principal (Bentley v. Craven, 18 Beav. 75), nor can he himself become the purchaser of his principal's property unless in a very extreme case. (Trevelyan 5. Charter, 9 Beav. 140.) An ordinary agent is not liable to his princi. pal merely, because the person to whom he sold the goods became insol. vent without paying for them, that is to say, where the agent has acted with ordinary discretion in giving him credit, and within his general authority ; but it is otherwise with del credere agents. Every person accepting the commission of a del credere agent in consideration of a higher commission, makes himself responsible for the solvency of the

Del credere persons to whom he sells, and in fact he becomes absolutely liable to the Agents. principal for the payment of the price of the goods he sells. (Mackenzie v. Scott, 6 Bro. P. Č. 291.) It must be noticed that although a del crcdere agent is thus in one sense a person liable for "the debt, default, or miscarriage" of another, yet it has been decided that the agreement between himself and his principal is an independent contract, by which the goods are sold to him, and therefore it is not necessary that it should be evidenced by writing, under the Statute of Frauds. (Couturier v. Hastie, 8 Exch. 40.) It is a well-established rule that an agent shall not, after accounting with his principal and receiving money in his capacity Effect of of agent, afterwards say that he did not do so, and did not receive it for accounting the benefit of his principal but for some other person, unless indeed there

to princihas been some mistake, and a void payment ab initio, so that the money pal. was never really received for the principal. (Edgell v. Day, 35 L, J. C. P. 7; L. R. 1 C. P. 80.) That is the general rule, but still it is manifest there must be exceptions to it; and it has been decided that if an anctioneer has received goods for public sale from a person who is not the owner of them, and has no right to sell them, and the real owner interferes and forbids the sale, or claims the money realised by the sale, the auctioneer may set up the title of such real owner against the claims of the fictitious owner from whom he received the goods. (Biddle v. Bond, 34 L. J. Q. B. 137; Hardman v. Willcock, 9 Bing. 382.) So where a wharfinger received notice that goods deposited at his wharf were marked with a fraudulent imitation of a trade-mark, and that the owner of the trade-mark was about to apply to the Court of Chancery for an injunction to prevent the sale of the goods, and after the injunction had been granted, but before the wharfinger had notice that it had been granted, he refused to deliver the goods to the owner, it was held that he was justified in such refusal. (Hunt v. Manicre, 34 L. J. Ch.

As to agents' commission, see post, p. 247.)

142.

Agent

plaintiff expressly directed the defendant not to sell the said selling

coal at a less rate than that of 18s. per ton, and not to sell any against ins uc- quantity of the said coal except for ready money, and to remit tious.

forthwith to him the sum realised by the sale.

5. The defendant, in violation of his duty in that behalf, immediately upon receiving each consignment of the said coal, sold the same to the River T. Steamboat Company, at a much less rate than 18s. per ton, viz., 14s. 6d. per ton.

6. The plaintiff further says that the defendant did not sell the said coal to the said T. Steamboat Company for ready money, but sold the same on credit.

7. Although a reasonable time has elapsed, the plaintiff has not received from the defendant the price of the coal consigned by him to the defendant as set out in the 4th para

graph, nor any portion of the same. Alternative

8. In the alternative, the plaintiff will contend that the claim rate of commission charged by the defendant, and the course of against defendant dealing between the plaintiff and the defendant, were such as as del

to make the defendant the del credere agent of the plaintiff, and credere agent.

as such, liable to account to the plaintiff for the price of all
goods sold by him, although he may not have received the
price thereof from the purchaser.

The plaintiff claims -
(1.) £900.
(2.) Such further and other relief, &c.

Statement of Defence and Counter-claim. Denial of 1. The defendant denies the allegations contained in the alleged in- 3rd paragraph of the statement of claim. He says that it structions,

was not a term of his employment, that he should receive special instructions as to the price and mode of payment with each consignment of coal.

2. When the defendant was appointed the plaintiff's agent at C., in the year 1870, it was agreed that the defendant should exercise his own judgment and discretion as to the price which he should require for coals of the plaintiff sold by him, and he was also to exercise his judgment and discretion as to giving credit or requiring payment in cash.

3. The said agreement continued in force during the months of January and February, 1876 ; and it was the only agreement ever made or existing between the parties which prescribed the defendant's duty as the plaintiff's agent.

4. The defendant denies that between the dates mentioned in the 4th paragraph of the statement of claim he received 1000 tons of coals. He did receive 955 tons; but, save as herein admitted, he denies the other allegations contained in the said 4th paragraph.

5. The defendant admits that after receiving the said 955 tons of coal he did sell the same to the T. Steamboat Company, at the rate of 148. 6d. per ton, and upon the terms of payment within three months from the date of delivery ; but save as herein admitted, the defendant does not admit the 5th and 6th paragraphs of the statement of claim. 6. The defendant says that the price of 14s. 6d. per ton and That

defendant the terms of three months' credit were the best terms that, exercised under the circumstances, he could obtain, and in selling the a sound said coals to the T. Steamboat Company, the defendant at the in what he

discretion time exercised what was a sound judgment and wise discretion did. in the interest of the plaintiff.

7. After the delivery of the said coals, and before the time when payment thereof fell due, the T. Steamboat Company was, by order of the Chancery Division of the High Court of Justice, ordered to be wound up, under the supervision of the Court. The defendant has sent in a claim against the estate of the said company for the price of the said coals ; but he has not yet received the same, or any part thereof.

8. The defendant denies the allegations contained in the 8th paragraph of the statement of claim.

And by way of set-off and counter-claim the defendant Set-off and says:

claim for 1. That it was agreed between the plaintiff and the de- comnisfendant that the defendant should receive a commission of 6d. sion. per ton for all coal of the plaintiff's sold by his exertions in the town of C.; and the said agreement was in force during the whole of the year 1875.

2. During the said year the plaintiff consigned to the defendant, and the defendant sold on his behalf, in the town of C., over 4000 tons of coal. Particulars of the said sales have been delivered to the plaintiff.

3. The defendant has not received the said commission of

counter

6d. per ton on the said coals so sold by him, or any part
thereof.

The defendant claims :-
(1.) £102 and interest thereon up till judgment.
(2.) Such further, &c.

Reply. 1. The plaintiff joins issue on the statement of defence, save

in so far as it contains admissions. That com- 2. The plaintiff says that it was a term of the agreement mission

mentioned in the 1st paragraph of the counter-claim that the only became defendant should only receive the said commission of 6d. per payable on ton when and after he had remitted to the plaintiff the price of cash remittances. the coals sold by him in respect of which he was to be entitled

to the said commission.

3. The defendant has never remitted to the plaintiff the price of the coals mentioned in the 2nd paragraph of the counter-claim, and the plaintiff denies that any commission is due to him in respect of the same.

Rejoinder.
The defendant joins issue on the plaintiff's reply.

Against agent for not accounting

Action against Agent for not accounting or paying for Goods

consigned to him for Sale. 1. The plaintiffs are manufacturers of artificial manures, carrying on business at

-, in the county of 2. The defendants are commission agents, carrying on business in London.

3. In the early part of the year. -, the plaintiffs commenced, and down to the 187—, continued to consign to the defendants, as their agents, large quantities of their manure for sale, and the defendants sold the same, and received the price thereof, but have not accounted to the plaintiffs therefor, and have not paid the said price less their usual commission.

4. No express agreement has ever been entered into between the plaintiffs and the defendants with respect to the terms of the defendants' employment as agents. The defendants have always charged the plaintiffs a commission at — per cent. on all sales effected by them, which is the rate of commission ordi

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