1858. COOMBS v. BRISTOL AND admits that the goods are the plaintiff's, but alleges that the 1858. COOMBS v. BRISTOL AND - for such loss, the defendants before the bringing of this action paid to him as such consignor, and the said C. Avery accepted from them, a large sum of money as the full value of the said goods and in satisfaction and discharge of the said claim. Averment: that the defendants had not, either at the time of the delivery and acceptance of the said goods or afterwards down to and at the time of the payment aforesaid, notice, either from the plaintiff or otherwise, that the said C. Avery, in delivering the said goods to be carried as aforesaid, was acting for or on behalf of the plaintiff, or was his agent for such delivery: and that the payment aforesaid was made by them in the bonâ fide belief that the said goods were delivered to them by C. Avery on his own account, and that he was the person entitled to claim and receive satisfaction for the loss thereof. Demurrer and joinder therein. Prideaux, in support of the demurrer.-The plea admits that the contract was made with the plaintiff, that the goods were the plaintiff's, that they were to be delivered to the plaintiff, and that they were lost; but it sets up as an answer that the goods were received by the defendants from a third person, who, as consignor, claimed compensation for their loss, and that the defendants paid him the value of the goods, they not having had at any time notice that he was the mere agent of the plaintiff. Those facts afford no defence whatever to the action. The only contract disclosed on the record is a contract with the plaintiff, and it is no answer to say that another person has been compensated for the breach of it.-The Court then called on Kinglake, Serjt., to support the plea.-The action is not by the plaintiff, as owner of the goods, for their conversion, but is founded on the contract to carry. The plea 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. Marlett (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. (c) 3 B. & Ald. 277. (d) 1 Ld. Raym. 271. 1858. COOMBS v. BRISTOL AND 1858. COOMBS v. BRISTOL AND 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 intended 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 plaintiff: 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 compensation,”—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. COOMBS 0. BRISTOL AND |