little further, and decided, that, where the broker states that he has a principal, but does not disclose who he is, the seller, on discovering such undisclosed principal, may have recourse to him. Assuming him to be a principal, he is the real buyer, and ought to pay, unless there be something in the transaction which makes it inequitable or unjust that he should pay. The court there intimated, that there was a question which might have been raised, viz. whether, since Thomson, the party for whom the goods were bought, resided in Dumfries, and the sellers in Liverpool, the credit might not have been given exclusively to the agent. But it was assumed that Thomson was the buyer of the goods; and the argument was, that, inasmuch as the seller knew that the goods were bought for an undisclosed principal, whose name he did not choose to ask, he must be taken to have contracted with the broker only. That was the only question raised. Had it been insisted there, that there was no principal at all other than the actual buyer, the decision might have been in favour of the defendant. That case, in effect, decides, that, if the principal is not named, it is the same as if none exists. There are, however, dicta there which seem to sustain the ruling upon the present occasion. Bayley, J., observes: "It is said that the seller ought to have asked the name of the principal, and charged him with the price of the goods. By omitting to do so, he might have lost his right to claim payment from the principal, had the latter paid the agent, or had the state of the accounts between the principal and the agent been such as to make it unjust that the former should be called upon to make the payment." In the opinion, therefore, of that learned judge, the right of the seller to sue the principal, is limited, not by payment only, but by the state of the accounts between the agent and the principal, making it unjust that recourse should be had 1849. SMYTH v. ANDERSON. 1849. SMYTH V. against the latter. Something to the same effect is said by Sir James Mansfield, C. J., in Railton v. Hodgson, and Peele v. Hodgson, which are cited in a note in 2 Smith's ANDERSON. Leading Cases, 207. Sir James Mansfield there said: "If Hodgson (the assumed buyer, who was really the principal, though he pretended to be an agent,) had really paid Smith, Lindsey, & Co. (upon whom he had directed the sellers to draw bills for the goods), it would have depended upon the circumstances, whether he would be liable to pay for the goods over again: if it would have been unfair to have made him liable, he would not have been so." These two dicta,- and I find nothing in any other case to detract from their authority, seem to me to afford a sensible rule on the subject. But here it is said, that, as the remittance made by Anderson & Co. to Melville & Co., to put them in cash, amongst other purposes, to meet these bills upon which they had so incurred a liability, was made before the expiration of the credit for the goods, the payment could not, according to the decision in Kymer v. Suwercropp, have the effect contended for. Payment, however, is only put, in the dicta to which I have adverted, as one instance of its being unjust or unfair that the seller should enforce the contract against the principal. Kymer v. Suwercropp was a case in which four specific quantities of coffee were sold upon certain terms which are mentioned in the report in Campbell, but which are not alluded to in some of the books in which that case is cited. The coffees were sold on the 10th, 17th, and 24th of June, and 1st of July, not upon a month's credit, but they were sold by public auction, to be weighed and taken away within a month from the day of sale, and to be paid for on delivery. The purchaser, therefore, was bound to pay for them within a month: but he was at liberty, at any time within the month, to take them away and pay for them. What 1849. SMYTH บ. was done was this: The coffees were bought by Kenyon & Co., as brokers for the defendant; which was not known to the plaintiffs until the 8th of July, on which day Kenyon & Co. became insolvent. A great ANDERSON. part of the coffee had previously come to the defendant's hands, the warrants for the delivery of it from the West India Docks having been given him by Kenyon & Co., who had received them from the plaintiffs. For so much he paid Kenyon & Co., by accepting a bill, dated the 15th of June, drawn by them upon him, for 7514, at one month after date, which was satisfied when it became due. The residue of the coffee was stopped by the plaintiffs in transitu. However, at the expiration of one month from the respective sales, the plaintiffs sent a clerk to demand payment of the defendant. The clerk, on one of these occasions, offered, on being paid, to give the defendant the remaining warrants (although he had them not at that time about him); but the defendant refused to pay. Here, then, is a purchaser who had no right to receive the coffee without paying for it, which he was bound to do within a month. If he obtained it within the month without paying for it, he obtained it contrary to the contract. It is not at all. probable that Kenyon & Co., who were upon the verge of bankruptcy, would be in advance by paying for the coffee when they were not bound to do so. It is much more probable that what was done was done by Kenyon & Co. and the defendant in fraud of the plaintiffs, the defendant getting possession of the coffee without paying ready money for it, which he had no right to do, and Kenyon & Co. getting a bill, which in their then circumstances might be of service to them. In that state of things, — Kenyon & Co. having stopped payment, before the expiration of the month, the sellers, on the day on which the month expired, tendered the warrants for the rest of the coffee to the defendant, and 1849. SMYTH บ. ANDERSON. demanded the money. With respect to this portion of the coffee, it was a clear case of goods bargained and sold. As to the other portion of the coffee, which had come to the defendant's hands, the defendant said "I will not pay you (the sellers); I have already paid Kenyon & Co." To which the plaintiffs replied “ If "If you had paid Kenyon & Co. in cash, we might have been bound by that payment. But, as you have not done so, but have given a bill for the amount. You have not paid for the coffee according to your contract. You have, therefore, obtained it under circumstances which do not entitle you to set up that payment." That probably was the view which Lord Ellenborough took of the case; and it would clearly sustain the right of the plaintiffs to recover the price of the coffees, assuming the facts to be as I have stated them. I have already observed that that case has been treated as the case of a sale upon credit. It was not so in fact: the vendee at no time had a right to obtain possession of the goods without paying the price. Lord Ellenborough says: “A person selling goods is not confined to the credit of a broker who buys them, but may resort to the principal on whose account they are bought; and he is no more affected by the state of accounts between the two, than I should be, were I to deliver goods to a man's servant pursuant to his order, by the consideration of whether the servant was indebted to the master, or the master to the servant. If he lets the day of payment go by, he may lead the principal into a supposition that he relies solely on the broker; and if in that case the price of the goods has been paid to the broker, on account of this deception the principal shall be discharged. But, here, payment was demanded of the defendant on the several days it became due, and no reason was given him to believe that his broker alone was trusted. He has received a great part of the coffee, and enjoyed the benefit of it; the right of the vendors is entire, unless he has paid them, or some person authorised by them to receive payment; Kenyon & Co. had no such authority; therefore he is still liable. The rest of the coffee was stopped only to prevent its getting into the hands of the insolvent brokers; and, as payment was to precede the delivery, it was enough, if the plaintiffs, on being paid, were ready to have delivered it." That decision is clearly supported by the facts. In a subsequent page of the same volume of Campbell's reports (a), the following note appears: "In Kymer v. Suwercropp, a rule for a new trial was discharged, on the ground that the defendant had not properly substantiated the fact that he had paid the broker for the coffee delivered to him; but the court did not give any decided opinion as to the effect of payment by the vendee to the broker before the day of prompt, when the warrants for the delivery of the goods have been parted with by the vendor, and passed to the vendee." The court, therefore, seems to have adverted to the case of a payment to the broker, according to the terms of the contract, though without giving any opinion as to the effect of such a payment. Lord Ellenborough must, however, be considered as having decided, and properly decided, that, under the circumstances of that case, the defendant had no right to set up a payment accepted by the brokers contrary to their duty, and not made by him in conformity with the obligation which the contract imposed upon him. That is all that the decision amounts to; and it seems to me to be quite consistent with the doctrine of Sir J. Mansfield, C. J., and of Bayley, J., in the cases I have before adverted to. Kymer v. Suwercropp is stated as if it established this, — that, in no case, shall a transaction between broker and principal have the (a) 1 Campb. 180 (c). |