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Campbell, S. G.-The case of Baring v. Corrie (a) decides that a factor is substantially a broker.

Sir J. Scarlett.-That was a peculiar case. Corrie was a broker at Liverpool, and the goods were also at Liverpool, and consequently he had the power over them. I speak of the general distinction. Peculiar circumstances may arise, as in the case referred to; but, I say in this case, that Gibson was really a factor. He sent his own clerk for the sample, and signed the delivery-order in his own name. How were we to know whether he was an agent or not? I agree, that an agent cannot vary the contract without his principal's consent; but, not so when he sells in his own name, and the buyer knows nothing about the principal. With respect to the custom, I admit, that when there is a precise contract in writing, it cannot be qualified by evidence of usage, unless it is ambiguous. There is no limit of time in the contract, it rests upon usage, which must be taken altogether. I say, the usage is, that payment under the contract is not demandable before the end of the two months; but, the buyer has a right to pay sooner if he wishes it, or if the factor wishes it, and he assents. If these words were in a contract, it could not be said to be against law; and the custom, therefore, cannot be said to be illegal. The factor himself says, that the practice is so. It is proved, that the plaintiff himself has acted on this practice, and paid within the two months, and been allowed the discount; and it has been done in other cases too. It is also clear, that the factor is in the habit of paying the money to his principal within the two months; and three instances have been proved, in which, when the plaintiff was a seller, he got his money within the two months. There was an instance where the factor, not being satisfied with the responsibility of the buyer, sent to him for, and obtained 10007., which he paid to the plaintiff. The

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1833.

HEISCH

V.

CARRINGTON.

1833.

HEISCH

ย.

CARRINGTON.

factor has paid more than 1000%. to the plaintiff since the 26th of December, which he would not have been able to do without this money of the defendants. I do not say that makes him receive the money for this particular corn; I say, first, that the factor, as far as the buyer knew, was a principal; if he was not a principal, yet, if he acted as a principal, he, by the late act, having been intrusted with goods, may receive payment for them. But, I say further, that he had the right as factor; for, if the note is not controlled by the usage, there is no time for payment mentioned; and, if it is so controlled, then the usage, taken altogether, is in the defendant's favour.

But,

DENMAN, C. J.-The question in this case is, whether in your opinion the plaintiff has been paid for this barley; and that will depend upon whether you are satisfied that there is a custom in the corn market by which the party has a right to pay within the time upon discount; whether any person dealing with a factor there would know, from the prevalence and universality of the custom, that he would have the right of paying within the two months. unless that custom is proved to your satisfaction, it is clear there is no answer; as, although the money got into the plaintiff's hands, yet it would not be received as payment for the particular articles. As to the custom, it seems to me, the witness does not speak very distinctly. There may have been some instances every day, and yet the practice may not be universal. Perhaps he may be speaking of an usage where the factor stands del credere, which, he says, he did not. If the custom is generally and universally understood, I do not think it matters for whose accommodation the payment is made.-[His Lordship read the evidence of Mr. Gibson, and observed] -The question for you upon this evidence will be, whether you think it has been satisfactorily proved, that when a party authorizes a factor, in the manner in which this plaintiff authorized Mr. Gibson, he gives him also an authority to receive payment

within two months, and to allow a discount. Whether the
plaintiff gave Mr. Gibson authority during the two months'
credit to accept payment and allow a discount? Whether
you think the practice relied on is proved to be a general,
I should rather say, an universal custom, on the Corn Ex-
change? If that is made out to your satisfaction, then the
plaintiff will have received payment through Gibson, al-
though Gibson has not paid the money over to him. If
you think that the custom is not made out, then the plain-
tiff will not have been paid, and you will give your verdict
for him.

The jury found their verdict for the defen-
dants, saying, that they thought the cus-
tom had been established.

Campbell, S. G., and J. H. Lloyd, for the plaintiff.

Sir J. Scarlett and R. V. Richards, for the defendants. [Attornies-Haddon & G., and Baxendale & Co.]

1833.

HEISCH

v.

CARRINGTON.

FREEMAN V. BAKER and Another.

Feb. 27th.

A party bought

a ship under a representation

that she was

copper-fastened. He ascertained,

THE first count of the declaration stated, that before and at the time &c., the defendants were possessed of a certain ship or vessel, called the Leslie Ogilby, which was not copper-fastened, as they well knew; yet the said defendants contriving &c. to deceive and injure the plaintiff in that respect, and to induce him to purchase the said ship or vessel at and for a large sum of money, on the 23rd any complaint

in the course of

a

few days, that

she was not, but did not make

to the seller till several months

afterwards, when she had been on a voyage and returned:-Held, that this delayould not prevent his recovering in an action for the misrepresentation, provided the action was in other respects maintainable:-Held, also, that "Lloyd's Register of Shipping" was not admissible in evidence to shew that the vessel was considered as copper-fastened. The contract stated that the vessel was to be delivered with all her stores, according to the inventory: the inventory was at the end of the advertisement for the sale:-It was held, that this did not import into the contract the representation contained in the advertisement, as the vessel itself was not mentioned in the inventory, but only the stores. The questions for the jury, in such a case, are, whether the vessel was in fact copperfastened; and if it was not, did the seller know that it was not?-and if he did, did he use any means to conceal the fact from the buyer?

1833.

FREEMAN

v.

BAKER.

of August, 1831, falsely, fraudulently, and deceitfully represented to him that the said ship or vessel was a copperfastened ship or vessel: and then averred, that the defendants further contriving &c., then and there kept the said ship or vessel afloat in a certain dock, called the West India Dock, so that it could not be inspected or examined by him, and used and employed divers other subtle arts and devices for the purpose of preventing an inspection and examination by the plaintiff, and thereby afterwards induced the plaintiff to purchase the said ship or vessel as a copper-fastened ship or vessel,with divers stores, for the sum of 1300, and then and there falsely, fraudulently, and deceitfully sold the said ship or vessel as a copperfastened ship or vessel, with the stores, to the plaintiff, for the said sum of 13007. then and there paid by the plaintiff to the defendants; by means whereof the said ship or vessel became and still was of little or no use or value to the plaintiff, whereby he was cheated and defrauded by the defendants of the said sum of 13007.

The second count was similar, except that it contained no averment that means were used to prevent examination. The third count was similar, but it charged a false representation only. The fourth count was on a representation that the vessel shifted without ballast. It contained a scienter, and averred special damage. The fifth and sixth were similar to the fourth, but without special damage. The seventh count was on a warranty that the ship was copper-fastened, and particularised iron-fastenings as in fact there. The eighth count omitted the part relating to iron-fastenings. The ninth count was on a warranty that the ship would shift without ballast, and contained special damage. The tenth was similar, but without special damage. Plea-Not Guilty.

It appeared that the vessel was sold under the following advertisement:" For sale, the fine brig Leslie Ogilby 193 tons; British built; coppered and copper-fastened;

shifts without ballast; takes the ground well; stows a large cargo for her tonnage; was coppered in August, 1829; is well adapted for general purposes, and requires little more than provisions to send her to sea.-Now lying in the West India Docks. The vessel, with all stores, to be taken with all faults as they now lie, without any allowance for weight, length, quantity, or quality." An inventory of the stores followed this description.

The contract for the sale contained a provision that a legal bill or bills of sale should be made out, and stated that the vessel was to be taken with all her stores according to the inventory.

The bill of sale did not contain either a warranty or a representation.

On the part of the plaintiff, a surveyor from Lloyd's, who examined the vessel in January, 1832, swore that she was not copper-fastened: he described "copper-fastened" as meaning that all the bolts should be of copper which go through the keel and kelson, stern-box, stern-post and stem. He considered the vessel as only partially copperfastened.

The person for whom the vessel was originally built, and who superintended the sheathing of her with copper, in the year 1825, proved that the description copper-fastened was not a correct description of the vessel in the state to which he brought her at that time. The captain was also called, and stated that the vessel would not shift without ballast; and added, that having a considerable quantity of ballast in her, yet, in a gale of wind beyond Yarmouth, she laid down, and he was obliged to put back and take in several tons more. He admitted that he saw the vessel the day after she was bought, and discovered the iron bolts in her, when he had only got half way down the ladder leading to the hold; and that he told his owners of it in the course of a few days. The broker, who purchased the vessel for the plaintiff, stated, that he

1833.

FREEMAN

v.

BAKER.

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