accord and satisfaction. Defence of he intended to make a claim against the defendants arising out of the said collision, and it was there and then agreed between the plaintiff and the said officer acting for and on behalf of the defendants that in consideration that the defendants would pay to the plaintiff a sum of £3 38. in full satisfaction and discharge of all cause of action which he then had, or at any time or times thereafter might have, against the defendants, on account of or in any way incidental to or connected with the said collision, he the plaintiff would accept such sum from the defendants in full satisfaction and discharge of such cause of action. Reply was ob- 3. Thereupon the said officer, acting for or on behalf of the defendants, paid to the plaintiff the sum of £3 3s., and the plaintiff received the same in full discharge and accord and satisfaction of the aforesaid cause of action. Reply-fraud (a). 1. The said officer procured the plaintiff to accept the said accord and satisfaction by fraudulently representing to him for that purpose that his injuries were of a trivial and temporary nature, and that if they should afterwards turn out to be more serious than he then anticipated, he would still be in a position to obtain, and would obtain, further compensation from the defendants in respect thereof. 2. The plaintiff, fully believing in the said representations and acting upon the faith thereof, was induced thereby to accept the said accord and satisfaction, and then accepted the same upon and subject to the express condition that he should not thereby exclude himself from further compensation from the defendants if his injuries should turn out to be more serious than he then anticipated. 3. After the acceptance of the said accord and satisfaction, the injuries suffered by the plaintiff in the collision did turn out to be of a more serious nature than was anticipated by the plaintiff at the time of his accepting the accord and satisfaction. aforesaid, and thereupon the plaintiff commenced the present action against the defendants. (a) Where a sum of money was paid in satisfaction of unliquidated damages and a discharge in full signed, it was held it would not be binding if it appeared that the plaintiff was not aware of the effect of the paper he signed. (See cases cited in Lee v. Lancashire & Yorkshire Railr. Ca L. R. 6 Ch. 537.) Account Stated (a). Claim upon an Account Stated. an account stated. 1. During the months of February, March, and April, 1877, Claim on the plaintiff supplied to the defendants various quantities of groceries, and the defendants supplied to the plaintiff several tons of coal; and invoices and accounts were delivered between the parties with reference to the said groceries and coal. 2. On the 28th of April, 1877, the plaintiff and the defendant went through the items of the accounts aforesaid, and an account was thereupon stated between the parties showing a balance of £32 to be due and owing by the defendant to the plaintiff. 3. The defendant has not paid the same. The plaintiff claims Another form of Claim on Account Stated. an account stated. 1. Between the 1st of January and the 28th of February, Another 1875, the plaintiff supplied to the defendant various articles of claim on drapery; and accounts and invoices of the goods so supplied, and their prices, were from time to time furnished to the defendant, and payments on account were from time to time made by the defendant. 2. On the 28th of February, 1875, a balance remained due (a) The action on an account stated applies to the case where there have been various dealings between the parties, and finally a balance is struck, and so much found to be due from the one to the other. When this balance is agreed on, an account is said to be stated, and upon it an action can be founded. The account must have been stated to the creditor himself or his agent, and it is not sufficient if made to a stranger. (Tucker v. Barrow, 7 B. & C. 623); but it is not necessary that the statement should be in writing: it may be by word of mouth. (Singleton v. Barrett, 2 C. & J. 368). An account stated is not conclusive in the sense that the parties may never go into the items which make it up. (Thomas v. Hankes, 8 M. & W. 140.) On the contrary it has been held that it may be shown that an item therein is not a good debt for want of consideration (French v. French, 2 M. & G. 644); or generally the defendant may show that the account was stated under a mistake, or that certain items were miscalculated or founded on error, provided the correction is promptly made before the other party has innocently acted upon the faith of the correct ness of the account, and altered his previous position, so as to render it inequitable to call upon him to refund the money. (See Addison on Contracts, 7th edit., pp. 1072-3). But it is no objection to an item that has been allowed in an account stated that it arose upon a contract, which was bad for want of writing within the Statute of Frauds. (Cocking v. Ward, 1 C. B. 858.) An infant cannot state an account. (Trueman v. IIurst, 1 T. R. 40.) What an account stated is. Need not be in writing. Not conclusive as to the items that make it up. Action on account stated. to the plaintiff of £75 9s., 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. Against agent for selling Principal and Agent. Agents (b). 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. (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. (b) Where no fixed time of service has been agreed upon, a principal 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. (Hunter v. 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 instrucagents 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 tions. Del credere 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 v. Charter, 9 Beav. 140.) An ordinary agent is not liable to his principal merely, because the person to whom he sold the goods became insolvent 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 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 credere 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 of agent, afterwards say that he did not do so, and did not receive it for the benefit of his principal but for some other person, unless indeed there has been some mistake, and a void payment ab initio, so that the money 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 auctioneer 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. Maniere, 34 L. J. Ch. 142. As to agents' commission, see post, p. 247.) Effect of accounting to princi pal. Agent selling against instructions. Alternative claim against as del credere agent. Denial of structions. plaintiff expressly directed the defendant not to sell the said coal at a less rate than that of 18s. per ton, and not to sell any quantity of the said coal except for ready money, and to remit 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 paragraph, nor any portion of the same. 8. In the alternative, the plaintiff will contend that the rate of commission charged by the defendant, and the course of dealing between the plaintiff and the defendant, were such as to make the defendant the del credere agent of the plaintiff, and 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. 1. The defendant denies the allegations contained in the alleged in 3rd paragraph of the statement of claim. He says that it 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 agree |