1863. HUGHES v. GRÆME and Another. 8. If there was no authority to enter into this contract, was the plaintiff aware that there was not? The jury answered all the questions so as to result in a The plaintiff DECLARATION for the price of horses sold and de having sent horses to a licensed horse dealer for sale in the horse dealer's own name, the dealer sold the horses, in his own name, to the defendant. The plaintiff, unknown to the defendant, revoked the dealer's authority to sell, or receive the price: and the defendant afterwards paid the dealer. Held, that unless he had re ceived notice of the revoca tion of autho livered by the plaintiff to the defendant. Second count, for their conversion. Pleas: 1. (To first count.) Never indebted. 2. That the defendant satisfied the plaintiff's claim by payment. 3. (To the second count.) Not guilty. 4. Not possessed. Issue. Edward James, Q. C., and H. T. Cole for the plaintiff. This was an action by a tailor, against a member of the firm of Gurney, Overend & Co., for the price of two hunters-one sold for 225l., the other for 1507. The defence, in substance, was, that he bought them of one Toynbee, who kept livery stables and sold horses, and had paid him. He had in fact so paid him, and the question was, good as against whether, to the knowledge of the defendant at the time of the plaintiff, he having allowed payment, the horses were Toynbee's or the plaintiff's? The horses were, in fact, the plaintiff's; and Toynbee rity (which he denied) the payment was the dealer to appear as the owner. was, in fact, his agent, but had sold as the ostensible Toynbee kept livery stables, and had a horse dealer's licence to sell horses; and as so licensed his name was over the stables, "Licensed dealer in horses;" and the plaintiff in no way appeared. He had, however, entered into an agreement with the plaintiff, by which he was to sell horses for plaintiff according to certain terms, the expenses being deducted and the net profits divided; the plaintiff having power at any time to determine the agreement by notice. The two horses in question had been sent to Toynbee's stables by the plaintiff for sale; and, in December, 1862, without knowing that they were the plaintiff's, the defendant there saw them, and bargained for them; but they were not, at the time, delivered. On a former occasion, when Toynbee had bought a horse of the defendant, the latter received in payment a cheque drawn by the plaintiff. The sale was on the 24th December. On the 27th December the plaintiff gave Toynbee a notice to terminate the agreement, and not to sell any more of his horses, nor receive any monies on account of any such sales. The plaintiff was occasionally at the stable, and after the bargain, having heard of it, he, on the 31st December, and before payment, gave one Nevin, a "helper" at the stables, a letter to give to the defendant when he did next call. The defendant not calling, Nevin was sent to his house; but, instead of taking the letter, merely made some verbal communication, the terms of which, it will be seen, were in dispute. On the 1st January the horses were delivered, and payment made by the defendant to Toynbee. Payment was after defendant had seen Nevin. The plaintiff's notice described Toynbee as "my servant and foreman." 1863. CURLEWIS V. BIRKBECK. 1863. CURLEWIS บ. BIRKBECK. There had been a demand and refusal before action, but after payment. The case for the plaintiff was, that the real sale was after notice to defendant, and was after express withdrawal of authority to Toynbee to sell or receive payment; or that, at all events, the payment was after notice to the defendant of such withdrawal of authority; and in support of this case Nevin was called, but as he had not delivered the letter it was not allowed to be produced, and he could only state the purport of his verbal communication, which, according to him, was, that the defendant was not to pay Toynbee. The defendant was called to contradict this; and stated that Nevin did not mention the plaintiff at all. He was cross-examined as to the previous transaction, in which he saw the plaintiff's cheque, but swore that it conveyed no idea to his mind that the plaintiff had any connection with the business. Toynbee was not called as a witness on either side. The case for the defence was, that Toynbee was allowed by the plaintiff to all as the apparent owner, and that this being so, the payment to him was valid. No particular notice was taken of the pleadings (a). COCKBURN, C. J. (to the jury).-Whether there was express notice to the defendant, before payment, of the revocation of plaintiff's authority to receive payment is a question for you; if you think there was such notice, you must find for the plaintiff. But if you think that there was not, then, as the plaintiff allowed Toynbee to appear to the world and to the defendant as owner of the horses, and so put him in a position of apparent authority to receive the price, the payment was valid. (a) As to which, it will be observed, that there was no plea of Verdict for the defendant. payment in satisfaction to the count in trover, and therefore, as to that, the case would have rested had that count been pressed on the doctrine of Tollit v. Sherstone, 5 M. & W. 283; Russell v. Bell, 10 M. & W. 340, and Valpy v. Gibson, 4 C. B. 837; that even where there has been a wrongful sale to the defendant, a notice requiring payment of the price waives the tort and remits the owner to an action of debt; or on the similar doctrine of Gregg v. Wells, 10 A. & E. 90, and Pickard v. Sears, 6 A. & E. 475; confirmed in Freeman v. Cook, 2 Exch. 654, that a man standing by and allowing another to deal with his goods as owner, is estopped from afterwards claiming them from a bona fide purchaser, and that the estoppel arises on not possessed. Of course, if the case had been pressed upon this count, the question would have been for the jury, and of course, also, upon this count, if the property had passed prior to payment, then payment would have been immaterial, which was probably the reason why it was not pleaded to that count. The case, however, was not rested so much upon that count as on the count in debt for the price, and especially on the question of authority to receive payment. Now the actual revocation of Toynbee's authority to receive payment was not disputed, and the plea, it will be observed, was in the common form, not indeed alleging a payment to the plaintiff, for the com. mon form does not so allege it, but merely that the plaintiff's claim was satisfied by payment, which would be of course good to a count alleging a sale by the plaintiff, and would be proved by any payment valid in law as against him. It did not appear to be disputed that in law the sale was by the plaintiff, or, in other words, that he had a right to intervene after notice that he was principal; but then, as although an agent of course cannot sell without authority, such authority may be implied from circumstances, and it is for the jury whether the principal has not, by his conduct, enabled his agent to hold himself out to the world as having authority to sell (Dyer v. Pearson, 3 B. & C. 38); so it would be as to authority to receive payment; and even when a security has been taken instead of money, if the owner has allowed the agent to appear as if he had authority to accept such security, and the purchaser has dealt with the agent on that footing and altered his position, the owner cannot recover, although the security fails. Wyatt v. Marquis of Hertford, 3 East, 147. This was on the same principle of estoppel in pais, which is far older than has been supposed, and had been applied even to commercial matters, long before the cases above alluded to. Here the case was of course infinitely stronger, for there had been an actual payment in money before (as the jury must be taken to have found) actual notice to the buyer of revocation of the agent's authority. The agent having once been put into a position of authority, and, in this very transaction, mere actual revocation of his authority would not suffice as against a bona fide purchaser. An owner allowing an agent to deal as owner may be liable even to a set-off due from the agent; (Carr v. Hinch 1863. CURLEWIS V. BIRKBECK. 1863. CURLEWIS v. BIRKBECK. cliffe, 4 B. & C. 547; S. P. Gordon v. Ellis, 7 M. & G. 607;) ordinarily, however, an agent for sale has authority to receive payment in money; and thus an auctioneer may sue for the price in his own name, and a plea of payment to the owner is not prima facie good. Robinson v. Rutter, 4 E. & B. 954. No doubt where, in fact, there is no authority to receive payment, as where there was no authority except to receive money over the counter, and there has been no holding out of the agent as having authority, the payment does not bind. Kaye v. Brett, 5 Exch. Rep. 209. And a clerk employed by his master only to obtain orders for goods is not authorized, by reason thereof, without a special authority, to receive payment for those goods so ordered; (Puttock v. Warr, 31 L. T., Ex. 86;) but the rule of law as to holding out, which binds the real owner by the sale, of course must equally bind him as to the payment. Hence, under either count that was the principle on which the case turned, and so, it is conceived, no other specific question being raised, that alone was the substantial question to put to the jury. Everything, therefore, turned on the holding out, and that the direction was right appears from the following case, which very much resembles the present: "In an action by an undisclosed principal for goods supplied to the defendants by his clerk N., it appeared that N. was indebted to the defendants, and upon B., one of the defendants, applying to him for payment, he represented himself to be the sole proprietor of a business called The Continental Wine Company,' and got him to take some wine and spirits in part payment of the debt; there was no evidence to show that the defendants knew that N. was only clerk to the plaintiff. The Judge's direction to the jury was, that if they believed that the Continental Wine Company was at the time of the contract being entered into carried on by the plaintiff, he was entitled to recover, notwithstanding that N. represented himself to be the Continental Wine Company, and to be the principal in the contract: |