Page images

agentas one “who, in the customary course of his business as agent, has authority either to sell goods, or to consign goods for the purpose of sale, or to buy goods, or to raise “ money on the security of goods,” provides (in effect) as follows :-(1) That where a mercantile agent is, with the consent of the owner, in possession of goods or of the documents of title to goods (that is to say, of the bill of lading, delivery order, or the like), any sale, pledge, or other disposition of the goods made by him in the ordinary course of his business shall be as valid as if he were expressly authorized by the owner to make the sale, pledge, or disposition, in favour of third persons taking under the disposition in good faith (sect. 2); (2) That a pledge of the documents of title to goods shall be deemed to be a pledge of the goods (sect. 3) ; but (3) That where the pledge is for an antecedent debt, the pledgee shall acquire no further right than the pledgor bad at the time (sect. 4). And with reference to the consideration necessary for the validity of any such sale, pledge, or other disposition, the Act provides, (4) That it may be either a payment in cash, or the delivery or transfer of other goods (or of the documents of title to other goods), or the delivery or transfer of a negotiable security, or (in fact) any other valuable consideration ; but where the consideration is the delivery or transfer of other goods (or of the documents of title to other goods), or of a negotiable security, the pledgee shall acquire no right or interest in the pledge beyond the value of the consideration (sect. 5). And with regard to consignors and consignees, the Act provides, (5) That where the consignor has so parted with the possession as aforesaid, for such purposes of disposition by or through a third party as aforesaid, the consignee shall, in respect of advances made by him to or for the use of such third party on pledge of the goods, have the same lien on the goods as if such third party were the owner of the goods, and may transfer such lien accordingly (sect. 7). With regard to sellers and buyers generally, it is provided by sections 8 and 9 of the Factors Act, which are now re-enacted by the Sale of Goods Act, s. 25, first, that where the seller (after a sale thereof) continues in possession of the goods (or of the documents of title thereto), any delivery. or transfer made on a purported sale or pledge by the seller (or by his mercantile agent) of the goods (or of the documents of title thereto) to any person receiving the same in good faith, shall have the same effect as if the delivery or transfer were fully authorized ; and, secondly, that where a person having bought or agreed to buy goods obtains, with the consent of the seller, possession of the goods (or of the documents of title thereto) before payment, any delivery or transfer made on a purported sale or pledge by the buyer (or by his mercantile agent) of the goods (or of the documents of title thereto) to any person receiving the same in good faith, shall have the same effect as if the delivery or transfer were fully authorized (s). The Factors Act further provides (sect. 10), that where the lawful transferee of a document of title to goods transfers the document to any person receiving the same in good faith and for value, such second transfer shall defeat any lien or right of stoppage in transitu which the first transferor would have had, or would have been entitled to exercise over the goods (t). But all these provisions, being designed merely for the protection of bonâ fide purchasers and pledgees, and only to the extent of their purchases or pledges, it follows of course (and the Factors Act also expressly provides) (sect. 12), that (subject always to the purchase or pledge being treated as valid) the principal (or owner) may (1) recover the goods from the agent (or from his trustee in bankruptcy) at any time before the actual sale or pledge thereof; or (2) redeem the goods at any time (before the sale thereof) on satisfying the pledgee for the

[ocr errors][merged small]

amount of the pledge, or (after a sale of the pledge) recover from the pledgee the surplus sale proceeds ; or (3) recover from the buyer (subject to any right of set-off between him and the agent) the price remaining unpaid in the hands of the buyer. But, save in cases to which the Act applies, the common law rule is still applicable ; so that, e.g., an agent intrusted with jewellery to sell on commission could not make a valid pledge thereof, for he is not a “mercantile agent” within the meaning of the Act (u).

(u) Hastings v. Pearson, [1893] 1 Q. B. 62.



Derinition and meaning.–Bailment (from the French bailler, to deliver) is a delivery of goods for some purpose, upon a contract, express or implied, that, after the purpose has been fulfilled, the goods shall be re-delivered to the bailor, or be otherwise dealt with according to his directions, and in the meantime be kept till he reclaims them. [Thus, if cloth be delivered to a tailor, to make a suit of clothes, he has the cloth upon an implied contract to render it again when made ; and if moneys or goods be delivered to a common carrier, to convey them from Oxford to London, he is under a contract to carry them to the place appointed (a); and if goods be delivered to an innkeeper, he is bound to keep them safely, and to restore them when his guest leaves the house ; and if a man take in a horse, ox, or other cattle to graze and depasture in his grounds, which the law calls agistment, he takes them upon an implied contract to return them, on demand, to the owner (6). And if a debtor bail goods to his creditor by way of pledge or pawn, the pawnee has them on the condition of restoring them on the debt being discharged ; and a pawnbroker who receives plate or jewels as security for the repayment of money lent, has them upon a contract or condition to restore them if the borrower redeem them in due time,—which he may do at any time while the goods still remain in the hands of [the pawnbroker unsold (c). Again, if one should deliver anything to his friend to keep for him, the friend is bound to restore it on demand, this being the contract of deposituml; and if you lend any chattel (e.g., your readingdesk) to your friend, although for your friend's use in the meantime, he is bound to return it when the period of the loan is expired, this being the contract of commolatum ; and these two contracts, namely, depositum and commodatum, are both of them gratuitous, that is to say, without fee or reward. So, if a chattel be let out on hire for a stipulated time, or for a particular service, the hirer is under an obligation to restore it when the time is run out, or the service peformed, this being the contract of locatio rei, which is always for payment. There may also be a locatio operarum, which is in fact simply a contract for services to be rendered ; and a locatio operis faciendi, which is merely a contract for the construction of some building or other work.

(a) Black v. Baxendale (1847), i (6) Corbett v. Packington (1827), 1 Exch. 410

16 B. & C. 268.

Duties of bailee.—There is a difference in the degree of the responsibility attaching to different classes of bailments,

-For, First, upon a bailment which is for the mutual benefit of bailor and bailee, the latter is liable for negligence, viz., for the omission of that degree of diligence which a man of common prudence takes of his own concerns : Secondly, upon a bailment from which the bailee derives no benefit, nothing short of gross negligence will make him responsible ; and, Thirdly, upon a bailment for the bailee's own exclusive benefit, he will be chargeable even for slight negligence. But in no case is an ordinary bailee, without some negligence on his part, liable for a robbery or other casualty (d). A bailor is under some duty to his bailee ; for example, if the bailment is of a chattel to be used by the bailee for some particular purpose, the bailor will be

(e) Walter v. Smith (1822), 5 B. & Ald. 139.

(d) Cogge v. Bernard (1704), 2 Ld. Raym. 909 ; Gillin v. McMullen (1868), L. R. 2 P. C.

317; Ultzen v. Nicols, (1894) 1 Q. B. 92. (For the special liability of innkeepers and carriers, see post, pp. 122–127.)

« EelmineJätka »