QUEENSLAND LAW REPORTER. JULY, 1910. can be supported by the evidence-it is admitted that the appellant appointed Campbell his agent for the purpose of inspecting, and purchasing the property, with a view to afterwards cutting it up, and re-selling it in lots; and that, subject to the appellant's supervision and approval, Campbell was to act as his agent in making all arrangements for or in connection with the subdivision and re-sale of the property, and was to be remunerated for his services by receiving one-third of the net proceeds of re-sale. It is admitted also that the appellant authorised Campbell to give £1 18s. to £2 per acre for the property; and that, as a fact, Campbell (the appellant's agent to inspect the property), did not take much notice of the timber, but after inspecting, came to the conclusion it was the land which he wanted, and that he did not care about the timber. Indeed, the evidence seems to me to indicate clearly that the appellant left everything in Campbell's hands. It does not even appear that the appellant ever saw Exhibit 1. And it is observable that if Campbell had bought this property of 3652 acres at a price of £1 17s. per acre for the land alone, and had agreed to give an additional sum of £125 16s. 4d. as the price of the timber, the appellant could not have complained that Campbell had exceeded the limits of his express authority. Under these circumstances, this Court cannot, in my opinion, judicially hold that there was no evidence to warrant the jury in finding that the agreement by Campbell to the term relating to the respondent's right to remove the timber was within the scope of his authority and employment as the appellant's agent to purchase; and cannot hold that the learned Judge was wrong in refusing to tell the jury that they could only come to a contrary conclusion. As, in my opinion, the findings of the jury must stand, and no case of misdirection has been established, it remains only for me to consider whether the judgment entered on the findings of the jury is open to objection. I think the findings amount to this-That the only documentnamely, Exhibit 1-signed by both parties to the contract (the respondent by his own hand, and the appellant by the hand of his authorised agent), did not embody, and was not intended to embody, the whole of the contract, and that the real contract F. C. CRIBB V. DWYER. Cooper C.J. F. C. CRIBB v. DWYER Cooper C.J. included the term which the respondent said was embodied in his written offer. No objection was taken to the evidence given by the respondent as to the terms specified in his written offer, or as to Campbell's statement that this offer had been accepted by the appellant. And if objection had been taken to this evidence, I do not think that it would have been sustainable. There does not seem to me to be any contradiction between the terms of Exhibit 1—that the respondent should sell and the appellant should buy the property for £1 17s. per acre-and the terms of the written offerthat, after this sale, the respondent should for a period of four months have the right to remove the timber included in the sale ; and as the Statute of Frauds was not pleaded to the contract set up by the respondent's defence, I think it was open to the respondent to prove that, besides the terms embodied in Exhibit1, the contract included the additional, but not inconsistent, terms embodied in the respondent's offer, and accepted by Campbell on the appellant's behalf. The distinction between Campbell's acceptance, on behalf of the appellant, of the respondent's offer, and Campbell's statement that this offer had been accepted by the appellant, is too fine for me to appreciate. And even if the respondent is to be pinned to the terms embodied in Exhibit 1. I think the findings of the jury show that it was Campbell's fraudulent statement which induced the respondent to sign Exhibit 1, and that the appellant, although morally blameless, is legally responsible for that fraudulent statement. To quote the words of Willes J. in Barwick v. English and Joint Stock Bank (1)" The general rule is that the master is answerable for every such wrong of his servant or agent as is committed in the course of his service, and for the master's benefit, though no express command or privity of the master be proved." These words have been constantly referred to in subsequent cases as adequate and satisfactory, and were cited with approval by Lord Selborne in Houldsworth v. City of Glasgow Bank (2), in which case it was held incidentally that a person purchasing goods concerning which the vendor's agent made a fraudulent (2) 1880, 5 A.C. 317, at p. 326. (1) 1867, L.R. 2 Ex. 259, at p. 265. F. C. Cooper C.J. representation might, on finding out the fraud, elect to retain the goods, and still have an action for damages against the CRIBB v. DWYER. vendor. See also Mackay v. Commercial Bank of New Brunswick (1), George Whitechurch Ltd. v. Cavanagh (2), Citizens Life Assurance Co. v. Brown (3), and Kettlewell v. Refuge Assurance Co. (4). It seems to me that as rescission of the sale and purchase of the property is admittedly out of the question, it would still be open to the respondent to claim from the appellant any damage sustained by him by reason of the fraudulent misrepresentation of the appellant's agent, which induced the respondent to enter into the alleged contract, of which the appellant is seeking to get the benefit. And in that aspect of the case it would, I think, be absurd to hold that the appellant was entitled to recover damages on the strength of the terms of contract embodied in Exhibit 1 alone, when, in that case, the respondent would, I think, be entitled to recover from the appellant an exactly similar amount in respect of the damage sustained by him by reason of the fraudulent statement by which he was induced to sign Exhibit 1, and so to abandon his right to remove the timber. I think, therefore, that the judgment of the learned Judge was right, and that the appeal should be dismissed, with costs. Appeal dismissed, with costs. Solicitors for appellant: Walker & Walker, Brisbane and Ipswich. Solicitors for respondent: McGrath & Hunter. (1) 1874, L.R. 5 P.C. 394. (2) [1902], A.C. 117. (3) [1904], A.C. 423. (4) [1908], 1 K.B. 545; [1909], A.C. 243. Full Court 1909. 17. [IN THE FULL COURT.] WHITE v. LONSDALE & CO. Insolvency-Fraudulent preference-Bona fides-Intention to prefer -Trustee and cestui qui trust—Creditor and debtor—Restitution of misappropriated trust property by insolvent—Estoppel— Fraud by agent-Benefit to principal-The Insolvency Act of 1874 (38 Vic., No. 5), 88. 105, 107, 108, 109, 112, subsec. 3. The appellants, who were butter merchants in London, appointed V. as their agent to buy butter, and for that purpose to draw cheques upon their Brisbane bankers under a letter of credit for the invoice value of the butter he purchased. Before drawing on this account, he had to deliver the invoices, certified as correct, to the bank, together with cold storage warrants or bills of lading, which constituted the documents of title. V. on various occasions obtained from S. documents February 15, 16, which purported to be cold storage warrants for butter stored on S.'s premises. These documents were fictitious, and the butter which they purported to represent was not in existence. V. deposited these fictitious storage warrants with the tank, and paid to S., by cheques drawn, under the appellant's letter of credit, the invoice value of the butter purported to be represented by the warrants. Both V. and S. had full knowledge of all the circumstances. Being pressed by the appellants to ship the butter they had paid for, S., by representing to various Brisbane merchants that he was buying butter for cash on delivery of shipping documents, induced these merchants to accept his cheques in exchange for bills of lading for 2378 case of butter belonging to them on board a vessel which was sailing from Brisbane to London. By this means he obtained the bills of lading for this butter. These he gave to V., and they were given by V. to the bank in exchange for the fictitious warrants. The cheques given by S. in exchange for these bills of lading were all dishonoured. The dishonesty which he had practised was not discovered, however, until after the vessel had sailed. The bank forwarded these bills of lading to London, when the butter was realized for the benefit of the appellants. At the time of these transactions, S. was hopelessly insolvent, and ten days after he thus obtained the 2378 cases of butter he was adjudicated insolvent on his own petition. Cooper C.J. Held, that the handing over of this butter was a fraudulent preference within the meaning of ss. 107, 108, and 109 of The Insolvency Act of 1874. Copies of exhibits to be referred to in the argument on an appeal should be furnished for the use of each of the Judges. APPEAL FROM A JUDGMENT OF REAL J. The respondent White was the trustee in insolvency of A. F. Springall, who at all material times carried on the business of a butter merchant under the name of The South Brisbane Butter Coy. The appellants were an English company carrying on business as butter merchants in London, and one, W. H. Vagg, was the duly appointed agent of the appellants. In an action brought by the respondent against the appellants to recover the value of certain butter delivered by the insolvent to the appellant's agent, W. H. Vagg, Real J. declared that certain assignments, deliveries, and transfers of the butter made by the insolvent, Springall, were fraudulent and void as against the respondent under ss. 107, 108, and 109 of The Insolvency Act of 1874 (1). The following statement of the facts is taken from the judgment of Cooper C.J.:— The appellants are a company carrying on business as merchants in London, and appointed an agent named Vagg in Brisbane to buy butter on their account, and for that purpose to draw cheques upon the Brisbane branch of the Commercial Bank of Australia, Ltd., under a letter of credit, of which the terms were arranged between the appellants and the Bank's London office. According to the terms of this arrangement, Vagg was to draw money under the letter of credit for the invoice value of the butter purchased by him. But before the money was drawn by him the invoices, certified by him as correct, were to be handed by him to the Bank, together with the documents of title (either cold storage warrants or bills of lading), for the butter specified in the invoices. These documents of title were to be hypothecated by the appellants to the Bank to secure the repayment by the appellants to the Bank of the moneys drawn by Vagg under the letter of credit. The Bank, however, was not to be bound to ascertain the correctness of the quantity, quality, or value of the butter, as represented in the invoices or documents of title, or that all or any of the butter specified in these documents was actually in existence. (1) On the opening of the case, Real J. raised the question, whether the proceedings should not have been brought before the court on motion made under The Insolvency Act of 1874. After some argument, during which Ex parte Brown, In re Yates (11 Ch. D. 148), and Ex parte Reynolds, F. C. WHITE V. 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