1849. SMYTH v. ANDERSON. Non assump sit. answer would be-You had no occasion (a) to do so pending the time of credit; and you cannot, by doing so, deprive B. of his right to elect you as his debtor."" The fair result of all the authorities, is, that the principal (unknown at the time of the contract, but discovered afterwards,) is discharged by payment to the agent, only where such payment is made at the usual or stipulated time; and that he cannot relieve himself from responsibility by a premature or anticipated payment. [Wilde, C. J. That rule, at all events, cannot apply to foreigners, who must, as a matter of necessity, remit to their correspondents here before the maturity of the bills accepted on their account.] In Paterson v. Gandasequi, Lord Ellenborough refers to a MS. case of Powel v. Nelson (b), as one in which the liability of a principal was carried the furthest that he could remember. There, a factor made purchases for his principal, who made payments to him on account. Afterwards, the factor was pressed for payment, by a letter which came to the hands of the principal, who transmitted it to the factor, and with a knowledge of the fact paid him the residue. It was held by Lord Mansfield, C. J., that the principal was liable over to the sellers for the money he had so paid to his factor after notice. Then, was this defence open to the defendant under non assumpsit? [Maule, J. It would be competent to the defendant, under non assumpsit, to shew that the action is brought before the expiration of the stipulated credit. (c) The defence here is, that, before the credit expired, a state of things existed as between Anderson & Co. and Melville & Co., their agents, which took away the plaintiffs' right to charge Anderson & Co. as the buyers of the goods.] Under non assumpsit, the only (a) i. e. "You had no right, as against B," (b) Cited, 15 East, 65. (c) See Hayselden v. Staff, 5 Ad. & E. 153., 6 N. & M. 659. question was, whether or not the defendant contracted. It is clear upon the facts that he did: for, the moment 1849. SMYTH V. the name of an undisclosed principal becomes known, the contract of the agent is the contract of the principal. ANDERSON. [Cresswell, J. That may or may not be. Maule, J. Nobody contracted on the terms of present payment. If, then, any circumstances prevented a liability from attaching upon the defendant before the expiration of the credit, they would be admissible under non assumpsit. A special plea setting out all the facts would clearly be demurrable.] evidence. As to the rejection of evidence,-It had been insisted Rejection of from the beginning, on behalf of the plaintiffs, that they had all along intended to look to Anderson & Co., knowing them to be the principals: and the plaintiffs' books were offered in evidence, for the purpose of shewing that Anderson & Co. were originally debited by them. For that purpose, it is submitted, that the books ought to have been received. In Addison v. Gandassequi, the seller's books were given in evidence. [Maule, J. By whom?] That does not appear from the report. The books here were offered, not for the purpose of proving a fact against a person not informed of the entry, but simply to shew that the plaintiffs did not at the time elect to abandon their remedy against the principals. [Wilde, C. J. Suppose the plaintiffs had told somebody so, or had written a letter to that effect to a third party, would that have been evidence?] Perhaps not. The verdict was not justified by the evidence. As- Verdict suming that the names of Anderson & Co. were not dence. against evimentioned at the time the order was given by Young to Pender, it is clear that they were known to the plaintiffs before the goods were delivered, for, their names are mentioned in the invoices. [Wilde, C. J. The names 1849. SMYTH V. plaintiffs. Maule, J. Melville & Co. of course informed the plaintiffs on whose account and risk the goods were to be shipped.] In Thomson v. Davenport, ANDERSON. Littledale, J., puts this case (a): "The seller may, in his invoice and bill of parcels, mention both principal and agent; he may debit A. as a purchaser for goods bought through B., his agent. In that case, he thereby makes his election to charge the principal, and cannot afterwards resort to the agent." And he adds: "The general principle is, that the seller shall have his remedy against the principal, although he may, by electing to take the agent as his debtor, abandon his right against the principal." [Wilde, C. J. The invoice here is just as good to charge Melville & Co., as to charge Anderson.] "Per" means "by" or "through," and shews that Melville & Co. were known throughout to have been acting as agents for Anderson & Co. [Maule, J. The form of the invoices seems to shew that the plaintiffs knew Anderson & Co. to be the principals at the time of the contract.] That was the plaintiffs' contention at the trial; but the jury were told that there was no evidence of the fact. [Cresswell, J. The drawing of the bills upon Melville & Co., was a strong circumstance against the plaintiffs' right afterwards to resort to Anderson & Co.] That which occurred between the defendant and Smyth & Co. at Glasgow, amounted to evidence of an account stated: Chisman v. Count. (b) [Maule, J. It was left to the jury to say whether or not Anderson was originally liable. If that question was properly found for the defendant, that which took place at Glasgow was clearly no evidence of an account stated.] (a) 9 B. & C. 90. Cur. adv. vult. (b) 2 M. & G. 307., 2 Scott, N. R. 569. 1849. SMYTH v. MAULE, J. A motion having been made in this case for a new trial on the ground of misdirection, and that the verdict was against the evidence, the court took time to consider whether a rule should be granted ANDERSON, or not. It was an action brought by certain persons trading under the firm of John Pender & Co., at Manchester, against the defendant, a partner in the house of Anderson & Co., merchants at Bombay, for the price of certain goods which had been bought by persons carrying on the business of commission-agents in London, under the firm of Melville & Co. A question arose at the trial, as to whether or not the names of Anderson & Co. had been mentioned at the time of the purchase of the goods; but it appeared that bills were drawn upon Melville & Co., by Smyth & Co., of Glasgow, at the request and for the use of Pender & Co., for the price of the goods. There is no doubt, upon the evidence, that, at the time the bills were drawn, Pender & Co. were aware that the goods had been bought for Anderson & Co.; and the probability is that they knew, at the time the order was given, that the goods were going to Bombay. It certainly appears to me, that, considering that these goods were bought by Melville & Co. for persons residing at Bombay, and that the plaintiffs took for the amount bills accepted by Melville & Co., there can be no reasonable doubt that the sale was a sale to Melville & Co., and not to Anderson & Co. It is well known, in ordinary cases, where a merchant resident abroad buys goods here through an agent, the seller contracts with the agent, and there is no contract or privity between him and the foreign principal. If that question had been specifically put to the jury, there can be no doubt as to what their decision would have been.. It further appeared, that Melville & Co., who had had large dealings with Anderson & Co.,. had sent them an account current, in which they debited them with 1849. SMYTH v. ANDERSON. these bills, as accepted on account of these particular goods; and that remittances had been made by Anderson & Co. to Melville & Co., to a larger amount than the price of these goods, after Anderson & Co. were aware of the bills having been so drawn and accepted on account of them. In the course of the summing up, the lord chief justice is represented to have laid down this proposition of law, putting it as a possible case (though I say the evidence clearly negatived it), that Anderson & Co. were the real buyers of the goods, so that primâ facie the sellers would have a right to resort to Anderson & Co. as soon as they discovered that fact, that the transaction which took place between Anderson & Co. and Melville & Co. with relation to these bills, took away the right of Pender & Co. to sue Anderson & Co. for the price of these goods. The correctness of that proposition of law is impugned by this motion. Several cases have been cited, three of which, viz. Paterson v. Gandasequi, Addison v. Gandassequi and Thomson v. Davenport, form the foundation of all the law upon this subject. In these cases, the rights of a principal, where the purchase is made by an agent, and the rights of the seller, where the purchase has been made by an agent for a principal disclosed or undisclosed, and whether residing in this country or abroad, have been very fully discussed. There can be no doubt, that, where goods are bought on account of a principal unknown at the time, but who resides in this country, and nothing has been done to shew an election on the part of the seller to take the agent as the actual buyer, the seller, on discovering the principal, may sue him for the price. In Paterson v. Gandasequi, and Addison v. Gandassequi, that was ruled or assumed, the seller not knowing that the buyer was dealing for an undisclosed principal. Thomson v. Davenport carried the rule a |