Court Of Common Pleas, Gu...
ffefore L.Ord C/4ief Justice BEST, and a Co)nnzwn Jurui. zills was an action tor goods sold and delivered. The plaintiff is a woollenclothnimanufacturer, living in Basinghall-streer.- Thede/. tend,:nts are also manufacturers. The action wa7sbroght to 'reeover the valae of several pieces of cloth sold to a person nameA Dake, for. and on accouitofSniithamiil Co., whose agent Duke waa alleged to be. The defence was, that the defedannt were not liable, as Duke was not their agent at tihe time of-the purchase, and was not autho. rizedI by theist to make it. Mr. Sergeant PELT. stated the plaintiff's case to tihe jury. antl in the course of his remarks observed that he would'put't'he aiency of Duke beyond a doubt. This transaction toook place' In November last, andi he would produce a letter from the defendants, addressed to the plaintiff late in last month,. in which they gave him notice that Duke, their late agent, was no longer an agent of theirs. It iwould be for them to sibow' that he was not seo-at the time of this, He then callcd- _ larsham,clerk toplaintiff,who proveAd tliatDuke came to his (plaintiffs) warehouse, and stating that the defendantqs; whose agent they knew Duke'to be had got an order from a MIr.: Gilmore, of Glasgow, fora certain quantity oflow black cldth,wvhich he.ordered in their name. The goods were sent, and an invoice of them left at Smith's counting-house.. This invoice;ivas in the name Of the defendants. In th'emonth of March after, witness called on Messrs. Smiths for ihe amount. The invoice had been delivered to aclerk of Smith's, not to -Duke. One of the Merssrs. Staiths said he knew itothing about it. 'v Oo rhe cross-examinatimn of thin witness bv -Mr. Sergeant- VAU GRAN, he admitted that he had heard of Duke's insolvency- gince. Hecould notsav whetherhe-hadheardof-itat the time he called on the Smithsi He' nmight have heard of it at ths tinie. Duike had had some dealings on hiitownm account-with the plain- tiff before this. I-lad never ;agked- ,Thke. for tjie money before thle appltcation to Messrs. Smiths,> He knewr of no instance before i this in. which Duke had purchgsed' goods for" tle defendants. Duke lived im the aue. honse wh the defendanb, could not Fsy Whether his (Duke's) name was on the inner door_ never saw it;'if - Kay, warehousenman to the plaintiffl, gave'nearly a hsimilar'tes. timpny. Ott his cross.examination he said, that the plaintiff sold. some wo61 and some cloth"for waistcoating to the defendants. Mir. Cape, o'f the house of Borradaile and Cape, proved1that Duke had, in November lhst, bouighttsome woollen ctoths'*f thathouse for the efendants, for whichi a bill was given, anfd since became due, and wvas paid. - - -.. . Mr. Brody; another cloth.merchaut,'gave a similar tetti'i'ohy. This was the pllaintiff's case.. lr. Sergit.VAUsGtAF, for the.defendaut,.now alled upon the laintitff to prove the delivery of-the goots to the defendints by tliE ca-man or the plaintiff. rNr. Sergeant PELL said it was lunnecessary to call te catmans, as there was already sulficient evidence ofdelivery to go to the jury. * The C1IEF JUSTICE thought-there w4.a evidence to go to. the jury of the delivery. Iiwassgtted by thefirstawitneas,that go nian " lengths" were seat to defendants, and so many were returned. It might, however, be as weU to have the carman called, if the plain- tiff had noobjectlon,. ' ' Thlis AMr. Sergeant PELL' declinei, ibserving, that the deliiery wasalreadymin snificient ptoofbefese the jury. Mfr. Sergeant VAUGHAN ndw ad4i*ste4'the jury, and observed, thbat thtey w ould easily perceive thenature oftheplaintiffs case, from the o - ions made to call the carman who delivered the goods. What was -thc cause' of" this objeetion ?- Ho would state to them. ltie fact was, the canspan, if called, would prove that the goods. were never delivered to Messrs. Smithi, but had gone directly from the warehouse of- Hughes to that of a Mr. Fell, to whom Duke, who was the real puat!haser, had sold them, It would, no doubt, be a very convenient thing if the plainelit could fasten the purchase upon the- defendants, who were solvent rather than upon Duke, who was now known to be insolient. ie, however, would put the matter. beyond doubt, andc show that the sale was inade by plaintiff, not ro the Messrs. Smiths, but to Duke himself. For this purpose he would put lUr. Duke into the witness-box, and from bis mouth the jury would leam the nature ot the transarion. ie woujld also ctall the carman who delivered the goods, (whonli the plaintiffs had not the courage to call), who would tell' them to whom they were dielivered. John Duke examined by ;lfr. Sergeant AbAMs.--t know the de- fendants: they carry on businestas'Tnanufacturersof-wQoLen:clotls in Glocestershire. Their warehouse in town is in Basinghall-street. I was their agent, and became so ir -1819. I was so urder a written agreement. (The agreement was here ut tP and read; from which itagpeared, t at witness 'was the defeniantsa gelt forx selling their clot Si &c.; but it was distinctly soiecified th?t he should not, for himself or emplovers, buy or be eoh"mcrd in the purchase of any woollen cloths, without the written consent of the defendants, upder a penalty of Il . per pieci, for every piece so bought.) Witness contnuted.-I entered on miy commiseion -of selling under this agrec- ment.. The names of the Mlessrs. Smith-were on'the oater dobr of theirliouse in -Basinghal1 street. Mine was on the ini'er door. I sold goods for defendants to the olaintiff several times. I had Se-' verai transactions in buying and sellng'with the plaintif-in my own name. I had never anv authority to buy from the r)aintiff fox de- fendants. I became *enibarrassed in Fabruary last. 'I bought some goods in November last from the plaintid! -It was not by order of defendants. They. had To knowledge ot the transaption. The goods were taken to lAtr. Fell's. Only fturisam; ple ends went to the defendanits' warehouse. I said when I went to - Hughesl that I had an opportunity of selling some cloths. I bad.. books ot my own at the time. The Messrs. Smith had nothing to do with my books. I purchased some goods from Borradaile and Cape, for hMr. Smith. I had alto some dealings with them on my own account. I had purchased some cloths frori t1r.. 8rod7 fr Mr. Smith. I gsaw the samples, and 'Mr. Smnith approved of tnem. Orsss,exatnined.-I'ar notnow in Mr_'ifiithli employ. I ceased to be his agent in March. I sold:'forh1t'nmuto the 29th of June. I will swear that Inever represented to Mir. Hug les, that the elothi were wanted by defendants, who had got an order from a -customer of theirs--a nIr. Gilmrnre of' Glasgow. I have- becr ip pecu- niary difficulties. MIr. Smith is one of my assignees. I have not got my certifieate, I might havesaid to htr. Hughes, '1 I want somoe cloths, send t'hem to-Smith"s.'" - I am indebtecl to'the Alemsrs. Smiths..tperhaps the amaount is three or four thousand pounds. - fle-exan inedh._-I bad some trantactiQns with tilmort long before Win. Fell._I purciasat ednime gogds frQm DukbAn N3ovember last. I bought the cloths in questign fromlJakle dthis own acdount. I bad also made some pu choes from the Smiths through the me. dittm of Duke. The goo purchased fror Duke wetirougkt to orissevaiiin'ed ---ordeied tie carman to bring them. I have, not yet paid for themn I was never a pnplied Wt by the Simitts for Spah ment for t hosii goo'ds. The- Smlt's-nrever toidme that they ~oti an~ assignmentoft .jg debt from Duke.- I bavebetid ia bankrupt' Since.; Ihave got an invoice of the yooe~. (Tenoiewt prottiei alid 17a.R Tnarked An"' bon hbfrJohhnUk?e-."1-* 'Mlatthew l3owerbn,.4n I-t r~6of thebltesr Smaiths.1 I was at the tithe of this transaCtion in t irt of 'Mlr. puke. jIfr. Mlarsham onte called on me, and-told me to myake oiutth6 lenths- (f the cloths deltvered), and I told, him the cloths beloiged the '!VV.- Duke, Snd that hie vould nakde th'e ngfihs:oiut. When 'MArsham afteward preetitd eb'accudt,'haded'it to Mr jSmiqth. Cross.examined..i'never keard that-Duke assigned-over thedebt The arntauwhodelivered iac goode wtat next ca1fe6 H dli verd tem-to ilr.'Fll:Th plaihi4ff l1aud told -Nqi to talce.ehem.t to the Messssh Smith. '--- 'he This was- the defendant ~tustut '' ' , . d-t" e. Mr.l S ne anPn.r aid bont or,e tlt-e ,Ju iv fo'r th lentl' ' The CiIEr 'Juari; mmed up the evldee,and left stto the Jury tosatfir5tw teehertheybelievedthaitatheFoodshadbeen soldto- they believedwn'itccouut~ 'orF6il that of ,ithe,esr,S'ih I tlc eivdthe first1 undoubtedly theplmnti -could nlot feco'ert-,' bOutilf- they-belieVed-thatathe oodii weirdsold,t Dik~(oni~otounr of' the Smit is,then'anier tietiom knuwt afls'^r.W'4Dukeat tb 'fff4 ' rity to soil, ; ,i t ot'to buy- *ten; howeyer3hone,tIy,the :tislamtiff might havemeknt-isi~i~1iitr~ as'f~-same P . vr bo ,uBd,tti Seraai,4 patty, a ht . eig_4 he' Wvopld' nay7 tlja if;a ,man sendslsh1'-aervnnt-:too,rh'e'sh6pi. of aiiotlie'to- purchassd ~&d anfld';ie ift tcraldsFrecikleiiths pia.' chats-" y aying2 lft*,h lad notii,iirer the servant au'0iWttjnk t I wi b 'i l:able' i, h,e, did aoigs?,ntu6ice ,to,e'unskety; ha ticitiads ceAsed to act for him. This iability, hovwovcr, would bnIy.apply to the one party, dnd:not extend a8 if'he wvas a general agent. Thc.jurVr, after a lrnomcnns consideration. returned a verdict for .iat~ CAfand thne irw iscbnot-4ftargep;.,<ie` !nttiigs termi.- * . ;., . , . . .. .~. r .. ., * COURT OF COMIvON PLEAS. al1TT.nTi.Ty-.T,rv9O Hl(UIfES V. SMfITH ANn nf Txlrnq-