CH. 30. the bill of lading, and reject the insurance, the same if the Art. 6. defts. had limited the broker to too small a premium, and hence no insurance. So if the factor make a blunder in the 2 T. R. 188, policy by which it is void; but he is not liable if he act diligently, and in the usual mode of doing business. But if a merchant direct his factor to insure, and he charges him with it as if done, and a loss happens, he is liable as insurer, but not as his agent.

Wallace v.
Tellfair.
Smith v. Co-
logan.-

2 Vesey 239,
Tubal v.
Short.

Mal. Lex

Mer. 82.

ART. 5. Factor answerable when he saves his own debt. If my factor sell his goods to A, payable at a future period on his own account and is paid at the time, and in the mean time Reeves' D. R. lets my monies lie in A's hands unpaid, for goods such factor formerly sold, he shall answer for my monies, though he never receive them; for it is a fraud in him to neglect my debt when he collects his own. If he run his principal's goods or makes a false entry, he is answerable.

350.-Ca. Ch. 25, 76.

2 Vesey 39.Malloy 423.

Mal. Lex

-Chan. Ca.

76.

When a factor may sue in his own name for the use of the principal, see post, art. 11.

ART. 6. Where liable or not, on account of duties saved. Mer. 83, 103. 1. If a factor unawares or of purpose save the duties, and thereby the goods are forfeited, and this without the privity of the principal, he shall answer the value of them to the principal; otherwise, if the factor enter according to his letter of advice, or invoice. So if the factor take usury, he is liable if

3 Salk. 235.

5 Com. D. 50.

the debt be lost.

2. A factor of the East India company carried £1200 in gold to India, and there saved the duties due on it, and it was held, that this was at his peril, and that he and not the company should have the benefit of saving the duties, for they were bound to pay them, and therefore cannot make title to them against one who has the possession.

§ 3. But it is otherwise if the factor does not pay the duties -Ca. Ch. 30. to his own government. And if he falsely enter his principal's goods at the custom-house, or run them, whereby they are seized, the factor must make good all the principal suffers, though the factor's commission be general.

Cro. J. 265,
Lawson v.
Kirk.

3 Mass. R.

admr.

§ 4. In this case the court decided, that if a factor abroad 436, Welman runs goods of his principal, and loses them by seizure, he v. Nutting, must answer for them to him, unless, first, he conforms to the law of the place; or second, he was specially authorized by his principal to do as he did; or third, the property could not be otherwise managed, and that this fact was known to his principal when he made the consignment.

4 Mass. R.

§ 5. Held, that if one at his own risk engage to transport 115, Bridge v. goods against all dangers but those of the sea, and they are stolen ashore, he is liable to account to the consignor for the

Austin.

value at the place of shipment, deducting the agreed commis

sion.

Where a third person is discharged of his promise to account for goods to the factor, by accounting for them to the owner, Ch. 9, a. 5, s. 10.

CH. 30.
Art. 8.

Paterson v.

ART. 7. A factor cannot pawn for his own debt his princi- Stra. 1178, pal's goods, or goods entrusted to him for sale, 5 Vesey jr. Tash.-5 T. 211. Agent cannot pledge his principal's stock.

R. 614, Dau

val.-7 East

1 Bos. & P.

1. In the year 1792, the plts. consigned goods to a broker bigny v. Duto be sold by him as their factor. In 1793, he pledged these 5, M'Combie with the defts. for £325. Judgment for the plts. ; and held, v. Davies. that they need only tender to the factor what they owed him; 648.1 H. Bl. but need not tender his debt to the pledgee in order to re- 362. cover the goods, for the factor's power was to sell, not pledge his principal's goods.

East 335.6 East 17,

538. Secus as to bills en

Bos. & P. .

648, Collins v. Martin.

4 Johns. R.

103.-2 East

2. In this case the plts. put into the hands of A. Carter, 2 Mass. R. 398, Kinder a retail shopkeeper, the goods in question, under an agreement v. Shaw.between him and the plts., that all goods so put into his hands should be sold on their account and risk, and should all be distinctly marked with a large K, and kept separate from Carter's own goods. When any of them should be sold, the bills dorsed blank. of parcels were to be so marked to shew they were the plt's. goods, so all monies or notes were to be immediately paid to them, and Carter was to be allowed a commission of five per cent., and an additional allowance in case a certain profit speci- 523fied was made. Carter borrowed monies on his own account of 1 Maule & the defts., and pawned these goods as collateral security, and Sel. R. 140. delivered them, and the pawnees were to sell them if the terms of the loan were not complied with. The defts. were ignorant of the plt's. interest in the goods. Carter failed, and the plts. demanded these goods of the defts., the pawnees, and recovered in trover; though it was urged that the defts. bad reason to think the goods were Carter's, who kept an open shop in which these goods were exposed to sale with his own.

Newsom v.

3. Nor can the factor pledge the goods by pledging the 6 East 17, 44, bill of lading, but see 1 Bos. & P. 648, 651, as to endorsed Thornton. bills pledged, and to the amount of his lien.

ART. 8. Where the price of goods sold is the factor's or the principal's.

408, Scott &

§ 1. Assumpsit, money had and received. Plts., partners 7 East 5 beyond sea, consigned tar to Scott, (other than the plt.) the Willes 400, bankrupt, as their factor. He sold it to C. & J. Owen, agreed al. v. Surman to deduct £31 he owed them, and took their notes for the & al defts. balance, payable in four months. He became a bankrupt five assignees. A. D. 1742. days after the sale of the tar, and delivered the notes to his assignees, the defts., who received the monies due on them, and confirmed his sales; also received the bounty money allowed to importers.

Сн. 30.
Art. 8.

Gurrall v.
Cullum.

2 W. Bl. 1154. Jink r. Wal

ler & al., assignees of Jenner.

5 T. R. 215.-Reeves D. R.

Judgment for the plts. for £327. 10s. the proceeds of the tar, deducting freight and charges, and £31. This off-set for £31 being the same as if Scott had received £31 in money before he became a bankrupt. Also held,

First. If the price of the tar had been paid to the bankrupt before his bankruptcy, and had not been laid out by him in any specific thing to distinguish it from the rest of his estate, the plts. could not recover in this action, but must come in as creditors, for money has no ear mark.

Second. If the goods had remained in specie unsold in the bankrupt's hands at the time of his bankruptcy, the plts. might have recovered them, for they may be distinguished from his, and said notes are within the same reason.

Third. The rule is, if I receive money to pay to another, or to apply to a particular purpose, and do not, I am liable to this action. The money received on the notes, and bounty by the defts., belonged to the plts. and ought not to be applied to pay the bankrupt's debts.

Fourth. Cites Gurrall v. Cullum. Plt. in Ireland employed B. & M. as his factors in London to sell his goods; they sold a parcel to J. S. for £20. The plt. did not know to whom the goods were sold, nor J. S. whose goods they were, but they were delivered to him as the goods of B. & M., and so charged. Before this £20 was paid, B. & M., the factors, became bankrupts, and the deft., their assignee, received this £20 of J. S. the buyer. The plt. sued for money had and received, and recovered against the deft., the factor's assignee, for the £20 was not due to him, but his principal, the owner of the goods. And a factor has no lien as to debts accrued before he becomes factor.

$2. In this case for money had and received, the court held that bills remitted to a factor or banker, while unpaid, are in the nature of goods unsold; and if the factor become a bankrupt, they must be returned to his principal, subject to such lien as the factor may have on them. The question made was, whether the bills remitted to Jenner, the bankrupt, were to be considered as money paid to him, or as goods, merely deposited in his hands, as factor or agent to the plt., who sent to him the bills. Adjudged to be as goods so deposited.

3. The principal sent gold to his factor for a particular 350-1 Salk. purpose; he failed and the principal recovered it back and the same principle holds as to monies, if identified by some mark.

160.

1 Ves. 509,

Cornwallis v.
Wilson.

§ 4. A in London ordered his factor at Ostend, to buy him goods, at a stated price, which he exceeded, and sent them. A refused the contract, but sold the goods as his own, and at a

risk. A is not a factor in this, but having accepted and sold them as his own, he was held liable to his factor abroad, at the price he gave, and that this factor might have assumpsit for the price of the goods.

Cн. 30.

Art. 8.

7T. R. 359, George v. Claggett.

5. If a factor who sells under a del credere commission sells goods as his own, and the principal is not known to the buyer, he may off-set any demand he has on the factor, in part 7 D. & E. 359. pay for the goods, when sued by the principal. In this case the factor has the price, so far only as he owes the buyer. 299. And this off-set operates as payment as far as it goes.

-2 Bos. & P. 489.-1 Bac.

'Drinkwater

Win.

$6. Dowding, a clothier, employed Jeffries as his factor, Cowp 251, and borrowed £3000 on the credit of A, and got Jeffries to & al. assignjoin, as surety in the bonds for this sum, on agreeing to vest ees of Dowsaid monies in cloths and to send them to Jeffries, his factor, ding, v. Goodwho, as factor, sold the cloths marked J. Dowding, to the deft. before Dowding committed any act of bankruptcy, but did not receive the money for them until after the action was brought. The deft. knew Jeffries to be factor. He sold in his own name, and in the usual course of business. Dowding's assignees, the plts., gave notice to Goodwin not to pay the monies to Jeffries, but Goodwin paid them to him, after this notice.

Assumpsit for goods sold &c. was brought, and judgment for the deft. The plts. argued that Jeffries, the factor, was not a creditor to Dowding, the principal, when the action was commenced, as the factor had not paid as such security, and that he had no lien on the price, which is a tye on the thing, and holds only, while it is in the custody of the party; but here the factor has sold the goods, and parted with the possession, and so has lost his lien; but

Lord Mansfield and the court decided that the deft., the buyer, held the money; the factor and assignees of the principal were disputing about it. After notice to the deft., and indemnity offered, he was bound to hold his hand, and became liable to the true owner. The factor" claims the money as having a lien upon it." "We think a factor who receives cloths, and is authorized to sell them in his own name, but makes the buyer debtor to himself, though he is not answerable for the debts, yet he has a right to receive the money: his receipt is a discharge to the buyer, and he has a right to bring an action against him to compel the payment." The principal can sue the buyer for the price, only "where the factor has nothing due to him." Here the factor had a lien by agreement. And after stating some other matters, the court said, "therefore, we are all most clearly of opinion, that the factor has a lien on the price of goods in the hands of the buyer."

Сн. 30.
Art. 9.

Mass. S. Jud.

Court, June

1796, Essex,

Allen v. Pierce, jr.

Mal. Lex.
Mer. 82, 83.
-5 Com. D.
Merchant B.

-2 Mod. 100. -10 Mod.

144.

§ 7. In this case Allen brought two hhds. of sugar from the West-Indies, and stored them in Gloucester, and then sent them by one Bishop, a coaster, to Boston, to be sold by Bishop, as a factor. He not immediately finding a market, January 25, 1795, put the sugars into the deft's. store, on the long wharf in Boston. February 3, 1795, he sold them and received the money, and passed it to Bishop's credit, who owed him the amount. Allen sued Pierce for money had and received; and the court held,

First. Where a factor, or one trusted with my property to sell, sells it to A and receives the money, A is not afterwards liable to pay me, the real owner of the goods, though my factor misapply the money, or converts it to his own use.

Second. If one, so being factor, sell my goods to A, and before A has paid the factor, I give him notice the goods were mine, and demand payment; after that A pays the factor at his peril; and if he pays him, he will be held to pay me also.

Third. It is not material whether A, on buying the goods of my factor, pay him the money, or take them at an agreed price, in payment of the factor's debt, or take them in payment of such debt, at a price afterwards to be fixed.

Fourth. The main point: if A, who buys the goods of my factor, when he buys, or has reason before he pays him to believe the goods are mine, and not the factor's property, and afterwards passes the proceeds to the factor's credit, in discharge of his debt, yet A shall pay me, and may take back his credit given to the factor.

Bishop was admitted as a witness, and testified that when he delivered the sugars into Pierce's store, he told him they belonged to Allen. Judgment for him; for if Pierce bought them of Bishop, the fact was proved that he (Pierce) was informed they were Allen's property before they were sold, and the buyer cannot set-off with the factor, when the buyer knows the goods are his principal's. 2 Cain. Er. 341, Brown & al. v. Robinson & al.

ART. 9. Where the factor will be deemed to have acted on his own account.

1. If a factor by order of a merchant buy goods above the price set to him, or not of the quality directed, the merchant may disclaim them, and the factor must keep them on his own

account.

2. So if he buy according to his orders, but ships them to another place than the one directed. So if he sell an article below the price directed to him, he must make good the loss, unless he can give a good reason for his conduct.