BRAMWELL, B.: ATTEN BOROUGH v. I am also of opinion that the rule ought to be discharged. No doubt, in ordinary conversation, the word "residence THOMPSON. means the place where a man resides; but for certain purposes the word "abide" has received a construction different from its usual meaning, and the question is whether we ought not for similar reasons to put the same construction on the word "residence in this Act of Parliament. I am not altogether satisfied with the reasoning, but I think that this is a case in which the plain meaning of the word may be varied. WATSON, B., and CHANNELL, B., concurred. Rule discharged. BOULTON v. JONES AND ANOTHER (1). (2 H. & N. 564-567; S. C. 27 L. J. Ex. 117; 3 Jur. N. S. 1156.) The defendants, who had been in the habit of dealing with B., sent a written order for goods directed to B. The plaintiff, who on the same day had bought B.'s business, executed the order without giving the defendants any notice that the goods were not supplied by B. Held, that the plaintiff could not maintain an action for the price of the goods against the defendants. ACTION for goods sold. Plea. Never indebted. At the trial before the assessor of the Court of Passage at Liverpool, it appeared that the plaintiff had been foreman and manager to one Brocklehurst, a pipe hose manufacturer, with whom the defendants had been in the habit of dealing, and with whom they had a running account. On the morning of the 13th January, 1857, the plaintiff bought Brocklehurst's stock, fixtures, and business, and paid for them. In the afternoon of the same day, the defendants' servant brought a written order, addressed to Brocklehurst, for three 50-feet leather hose 2 in. The goods were supplied by the plaintiff. The plaintiff's bookkeeper struck out the name of Brocklehurst and inserted the name of the plaintiff in the order. An invoice was afterwards sent in by the plaintiff to the defendants, who said they knew nothing of him. Upon these facts, the jury, under direction of the assessor, found a verdict for the plaintiff, and leave was reserved to the defendants to move to enter a verdict for them. Mellish having obtained a rule nisi accordingly, M'Oubrey now showed cause: It is not denied by the defendants that the goods, for the price of which this action is brought, were the goods of the plaintiff. No one but the plaintiff could have sued for the price (1) British Waggon Co. v. Lea (1880) 5 Q. B. D. 149, 152, 49 L. J. Q. B. 321. 1857. Nov. 25. [ 564 ] BOULTON t. JONES. [ *565] [ *566 ] of them. By keeping the goods after notice that the plaintiff was the owner, the defendants must be taken to have adopted the contract with him. Bickerton v. Burrell (1) turned on the point that notice had not been given, before action brought, that the plaintiff was the party really interested. In that case the plaintiff represented himself as agent for another *person. In Humble v. Hunter (2) the plaintiff had allowed her son to represent himself as owner. Here the defendants may have known of the change of name in the orders. In Rayner v. Grote (3) the plaintiff had represented himself to be merely the agent, but, being really the principal, he was held entitled to maintain the action. (He referred also to Skinner v. Stocks (4).) Mellish, in support of the rule: This is not a case of principal and agent. In Rayner v. Grote (3) there was evidence that, at the time of the delivery of the first parcel of the goods, the defendant had notice that the plaintiff was the principal. (MARTIN, B.: Here there was some evidence of acceptance, the invoice was sent in and the goods were not returned.) They may have been destroyed, and, in fact, were probably used at the time they were ordered. No set-off could be pleaded to the present action in respect of any debt which might be due from Brocklehurst to the defendants: Isberg v. Bowden (5). The question is not to whom the goods belonged, but with whom the contract was made. Humble v. Hunter (2) and Bickerton v. Burrell (1) are authorities in favour of the defendants. POLLOCK, C. B.: The point raised is, whether the facts proved did not show an intention on the part of the defendants to deal with Brocklehurst. The plaintiff, who succeeded Brocklehurst in business, executed the order without any intimation of the change that had taken place, and brought this action to recover the price of the goods supplied. It is a rule of law, that if a person intends to contract with A., B. cannot give himself any right under it. Here the order in writing was given to *Brocklehurst. Possibly Brocklehurst might have adopted the act of the plaintiff in supplying the goods, and maintained an action for their price. But since the plaintiff has chosen to sue, the only course the defendants could take was to plead that there was no contract with him. 5 M. & S. 383. 76 R. R. 291 (12 Q. B. 310). (4) 23 R. R. 237 (4 B. & Ald. 437). (5) 8 Ex. 852. MARTIN, B.: I am of the same opinion. This is not a case of principal and agent. If there was any contract at all, it was not with the plaintiff. If a man goes to a shop and makes a contract, intending it to be with one particular person, no other person can convert that into a contract with him. BRAMWELL, B. as The admitted facts are, that the defendants sent to a shop an order for goods, supposing they were dealing with Brocklehurst. The plaintiff, who supplied the goods, did not undeceive them. If the plaintiff were now at liberty to sue the defendants, they would be deprived of their right of set-off as against Brocklehurst (1). When a contract is made, in which the personality of the contracting party is or may be of importance, a contract with a man to write a book, or the like, or where there might be a set-off, no other person can interpose and adopt the contract. As to the difficulty that the defendants. need not pay anybody, I do not see why they should, unless they have made a contract either express or implied. I decide the case on the ground that the defendants did not know that the plaintiff was the person who supplied the goods, and that allowing the plaintiff to treat the contract as made with him would be a prejudice to the defendants. CHANNELL, B.: In order to entitle the plaintiff to recover he must show that there was a contract with himself. The order was given to the plaintiff's predecessor in business. The plaintiff executes it without notifying to the defendants *who it was who executed the order. When the invoice was delivered in the name of the plaintiff, it may be that the defendants were not in a situation. to return the goods. Rule absolute. RIDD. BETTY MOGGRIDGE, EXECUTRIX OF WILLIAM MOGGRIDGE. (2 H. & N. 567–569.) [Pleading demurred to for disclosing only evidence.] AITH BARNES v. BRAITHWAITE AND NIXON. (2 H. & N. 569-570.) Where a party to an arbitration is compelled to pay to a lay arbitrator an exorbitant sum in order to take up the award, he may maintain an action for money had and received to recover the excess beyond what is a proper remuneration for the arbitrator's services. DECLARATION for money had and received. indebted. Plea: Never (1) The Law Journal report states as a fact that there was a set-off.-F.P. 1857. Nov. 4. [569] At the trial, before Pollock, C. B., at the London sittings after last Trinity Term, the following facts were admitted: The plaintiff having brought an action against one Hayward, the cause was referred to the defendants, who were civil engineers. The defendants proceeded with the reference, which resulted in an award in favour of the plaintiff for 1087. The plaintiff in order to take up the award was compelled to pay to the defendants 4361. Os. 9d. The Master, on taxation of the plaintiff's costs of the reference and award, ultimately struck off from the arbitrators' *fees the sum of 2391.; and for that, under the circumstances above stated, no action would lie refused to refund the amount. The defendants' counsel objected that, under the circumstances above stated, no action would lie against the arbitrators. The learned Judge directed a verdict for the plaintiff with liberty to the defendants to move to enter a verdict for them, if the Court should be of opinion that the action was not maintainable. Lush now moved accordingly, and contended that the action would not lie. WATSON, B.: This Court, in the case of Re Coombs (1), intimated a strong opinion that under such circumstances an action was maintainable; and in Fernley v. Branson (2), a county court appeal, heard before Wightman, J., and Erle, J., that doctrine was acted upon. Lush requested time to consider the cases, and afterwards admitted that he was not entitled to a rule. Rule refused. DAVIES v. UNDERWOOD (3). (2 H. & N. 570-574; S. C. 27 L. J. Ex. 113; 3 Jur. N. S. 1223.) The defendant, an under-lessee, who had covenanted with the plaintiff, his lessor, to keep, and at the expiration or sooner determination of the term, to leave and deliver up the premises in repair, allowed them to become out of repair. While they remained in this condition, the plaintiff having committed a forfeiture by non-payment of rent, the superior landlord brought ejectment, and evicted the plaintiff and defendant: Held, that the plaintiff was entitled to recover against the defendant substantial damages for the non-repair of the premises. COVENANT. The declaration stated that on the 25th of April, 1842, by indenture between the plaintiff and defendant, the plaintiff let to the defendant a piece of *ground with the messuage thereon erected, &c., to hold for 21 years from Lady Day, 1) 4 Ex. 839. 20 L. J. Q. B. 178. Referred to Morgan v. Hardy, (1886) 17 Q. B. D. 770; Joyner v. Weeks [1891] 2 Q. B. 31, 60 L. J. Q. B. 510. 1842; and that the defendant covenanted with the plaintiff that the defendant, his executors, &c., would at his and their own costs and charges, from time to time and at all times during the term, well and sufficiently uphold, support, sustain, &c., amend and keep in good order and condition the messuage, &c., with all proper reparations, &c.; and the said premises being in all things well and sufficiently repaired, upheld, supported, &c., should, and would at the end or other sooner determination of the term thereby granted, peaceably and quietly leave surrender and yield up to the plaintiff his executors, Averment: that defendant entered and was possessed for the term. Breach: that the defendant did not during the term well and sufficiently repair, &c.; but permitted the demised premises to become ruinous, &c., for want of needful repair. &c. Pleas. First, that the defendant did repair. Secondly, that after the making of the indenture and before the breaches, one Arthur Wells, who was entitled as against the plaintiff and defendant to the possession of the premises, by reason of certain breaches by the plaintiff of certain covenants entered into by him before the making of the said indenture, in a certain lease under which the plaintiff held the premises, commenced an action of ejectment against the plaintiff and one Paxon, for the recovery thereof in the Court of Queen's Bench: that it was adjudged that A. Wells should recover possession, &c., that thereupon, before the breaches of covenant in the declaration mentioned, A. Wells caused a writ of habere facias possessionem to issue, &c., which was delivered to the sheriff, &c.; and under and by virtue of which writ possession of the said premises was given by the sheriff to A. Wells, and the defendant and the plaintiff were evicted, *&c.; and the possession and all the estate, &c., of the plaintiff and of the defendant in the premises thereby ended and determined. The plaintiff replied, taking issue on the pleas; and also new assigned breaches of covenant before the determination of the term. The defendant traversed the breaches mentioned in the new assignment. Whereupon issue was joined. At the trial, before Pollock, C. B., at the London sittings after last Trinity Term, it appeared that in May, 1839, one Filor demised the premises in question to the plaintiff for 72 years at the yearly rent of 42l. 10s. In 1842 the plaintiff demised the same premises to the defendant for 21 years at the yearly rent of 50l., subject to the covenants mentioned in the declaration. In 1848 the defendant assigned to one Parker, who in the same year assigned to Paxon. In March, 1855, |