admits that the goods are the plaintiff's, but alleges that the
contract was entered into with a person who, though he
might be the agent of the plaintiff, did not disclose that
fact. The simple relation of consignor and consignee does
not raise any presumption that the goods belong to the
consignee. It is not alleged in the declaration that the
contract was made with the plaintiff, and the plea shews
that it was made with the consignor of the goods,
without notice to the defendants that he was not the
owner of them. The case, therefore, falls within the rule
of law, that where an agent is allowed to deal in his own
name with his principal's goods, the party with whom he
deals has the same rights against the principal as he might
have exercised against the agent, if he had really been a
principal: Smith's Mercantile Law, p. 168, 5th ed.; Sims
v. Bond (a). [Martin, B.-The plea does not say that
Avery delivered the goods to the defendants, as consignor.
It is consistent with every allegation in it, that the plaintiff,
being owner of the goods, may have delivered them to a
porter to take to a receiving office of the railway Company,
and that after they were lost the porter, pretending to be
the real owner of them, got paid for them.] Where goods
are merely sent on approval, the consignor is the proper
party to bring the action: Swain v. Shepherd (b). So,
where by the bill of lading the goods are to be delivered
for the consignor, and in his name, to the consignee:
Sargent v. Morris (c). Also where the bill of lading is
special to deliver to A. for the use of B.: Evans v. Mar-
lett (d). [Martin, B., referred to Dunlop v. Lambert (e).]
In Maude and Pollock on Shipping, p. 149, it is said:
"The general rule with respect to the party to sue in case

(a) 5 B. & Adol. 389.

(b) 1 Moo. & R. 223.

(d) 1 Ld. Raym. 271.
(e) 6 Cl. & F. 600.

1858.

COOMBS

v.

BRISTOL AND
EXETER
RAILWAY CO.

(c) 3 B. & Ald. 277.

1858.

COOMBS

V.

BRISTOL AND
EXETER
RAILWAY Co.

of the loss or of damage to goods carried in a general ship, is that the action should be brought in the name of the person who has employed the carrier. For the right to compensation flows from the contract of carriage, and can only be enforced by the party with whom that contract was made."

MARTIN, B.-I am of opinion that the plea is bad. It only states that the goods were delivered to the defendants by the hand of Avery, and being lost, he claimed compensation as the consignor of them, which was paid to him. The declaration states that the plaintiff delivered his goods to the defendants, to be carried by them from Bristol to Exeter, and there to be delivered by them for him: therefore he was the consignor of the goods. The plea states that the goods were delivered to the defendants, and received by them from Avery; but that is nothing more than a statement that Avery's was the hand which brought the goods to the office of the defendants. It is not stated that Avery was the consignor; but only that, as consignor, he claimed compensation for the loss, and, as consignor, he was paid. The plea carefully avoids alleging that Avery was the party who made the contract; and therefore the authorities, collected in the note to Wms. Saund., vol. 2, p. 47 b, as to whether the consignor or consignee should sue, do not apply. Avery could not maintain any action for the loss of the goods, because, upon all that appears upon the pleadings, he was the mere hand which delivered them to the defendants. The plea only discloses that the plaintiff employed Avery to deliver his goods to the defendants, and that the defendants paid for their loss to Avery, who had no right whatever to receive the compensation.

BRAMWELL, B.-I am of the same opinion. If the declaration be read as upon a contract by the defendants to

not.

carry, the plaintiff saying that the contract was with him,
the plea, not denying that, but saying that it was with some
one else, would clearly be bad. Perhaps the defence in-
tended to be set up is this:-"we contracted with Avery as
principal, not knowing that he was agent, and not supposing
that you were the principal, and we have paid him for the
loss; we should therefore be prejudiced if you could sue on a
contract made by him as your agent." If the plea contained
such a statement, the case might be different; but it does
Even then it might be doubtful whether it would
afford any answer to the declaration, and for this reason.—
I can well understand, that if the defendants had made the
contract with Avery as principal, and Avery had afterwards
said, "I have changed my mind, keep the goods at the
office till I call for them," the plaintiff would be wrong in
suing the defendants for their non-delivery, after having
allowed them to deal with Avery as principal. But here
the declaration states that the contract was with the plain-
tiff: the defendants, by their plea, say that, “having broken
a contract entered into with Avery, upon the supposition
that he was the principal, we do not pay you because we
have paid him." There is no case like that. It has been
held that there is a right of set-off against an unknown
principal, though it has been doubted whether the same
rule applies where the action is for unliquidated damages.
But certainly the rule has no application to a case like this,
where a person says,
"I am entitled to sue, give me com-
pensation,”—and it is given, whether he is or is not entitled
to it. As already pointed out by my brother Martin, the
plaintiff states that the contract was made with him, and
that the defendants have broken it: the defendants do not
deny that; but only say that some one who delivered the
goods to them claimed compensation, and they paid him.

1858.

Соомва

0.

BRISTOL AND
EXETER
RAILWAY Co.

1858.

COOMBS

v.

BRISTOL AND EXETER RAILWAY CO.

WATSON, B.-I concur in the view of my brothers Martin and Bramwell. The declaration is on a contract by the defendants with the plaintiff; the goods are the plaintiff's, and they were lost. Now, if goods are delivered to a carrier to be forwarded to their place of destination, that may or may not be a contract with the consignee. In the case of vendor and vendee, the consignor does not act as the agent of the consignee, but on his own behalf; and up to the moment of the delivery of the goods to the carrier, the property is in him. Upon the delivery, the goods become the property of the vendee, subject to the vendor's right of stoppage in transitu. Therefore, if the goods are damaged or lost, before the carrier pays the consignor, he should ascertain whether the property is in him; otherwise he would pay in his own wrong if it should turn out that the property was in the vendee; for in that case the contract is with him alone. I not only concur in the view of my learned brothers, but I take this broader ground, that, unless it be shewn that Avery was the owner of the goods, the contract arising from the delivery was with the plaintiff; therefore he alone is entitled to sue.

Judgment for the plaintiff.

1858.

THIS

HILL V. LEVEY and Another.

Feb. 25.

HIS was a special case, stated for the opinion of this Disputes

Court.

Malcolm Kerr argued for the plaintiff (Feb. 12), Joyce argued for the defendants. The facts of the case arguments fully appear in the judgment.

having arisen between compositors and master printers

for printing

and

as to payment

to the former

and

Cur. adv. vult.

The judgment of the Court was now delivered by

advertisements

on wrappers, the following rules were made by a

committee of each body

46

:

Wrappers. The composi

WATSON, B.-This is an action to recover the sum of tor on a maga

zine or review

be entitled to

the first or title

3s. Id., for work done. The plea was "never indebted." to The cause came on for trial before the Lord Chief Baron, page of the

wrapper of the magazine or

review, but not to the remaining pages of such wrapper or to the advertising sheets which may accompany the magazine or review. Standing advertisements or stereo-blocks forming a complete page, or when collected together making one or more complete pages in a wrapper or advertising sheet of a magazine or review, not to be charged. The compositor to charge only for his time in making them up. The remainder of the matter in such wrappers or advertising sheets, including standing advertisements or stereo-blocks not forming a complete page, to Le charged by the compositor and cast up according to certain articles of the scale referred to, as they may respectively apply." In the November number of a Monthly Magazine there was composed and printed on one page two advertisements which occupied the entire page, and the type of which was left standing. In the December number, the same two advertisements were printed, but on different pages: and each occupied about half a page and the remainder of the page was filled up by other advertisements. The plaintiff, who was a compositor, insisted that, under the latter part of the rule, he was entitled to charge for the composing; the defendant, who was the master printer, contended that the case was within the first part of the rule, and that the plaintiff was only entitled to charge "for his time in making up." In the year 1856, a similar dispute arose between a compositor and a master printer, and the matter having been referred to arbitration in pursuance of certain rules which were still in force, three arbitrators awarded in favour of the master. The plaintiff entered the defendant's service with knowledge of that decision, and that the defendant had been one of the arbitrators; nothing, however, was said as to the terms of payment; but both parties understood that it was to be made according to the rules.

Held: First, that the decision of the arbitrators was not, at the time of the employment of the plaintiff, binding between the parties as an interpretation of the rule; and that notwithstanding their decision it was competent for the Court to entertain the question of its

construction.

Secondly, that the plaintiff was entitled to recover for the composing; the true construction of the rule being that the compositor may charge according to the scale when any advertisement not standing is inserted in the same page with a standing advertisement, but that when standing advertisements are printed in the same page so as completely to fill it, the compositor is only entitled to charge for his time in making up.