Esteban De Comas, - Appellant; Jacobus Cornelus Prost and George Charles Adolphus Kohler, - Respondents
| Jurisdiction | UK Non-devolved |
| Judgment Date | 13 March 1865 |
| Date | 13 March 1865 |
| Court | Privy Council |
English Reports Citation: 16 E.R. 59
ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.
Mews' Dig. tit. Principal and Agent; C. Duration of Agency; 3. S.C. 11 Jur. (N.S.) 417; 12 L.T. 682; 13 W.R. 595.
158] ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES. ESTEBAN DE COMAS,- Appellant; JACOBUS CORNELUS PROST and GEORGE CHARLES ADOLPHUS KOHLER,-Respondents * [March 13, 1865]. Mere advances made by a Factor, whether at the time of his employment as such, or subsequently, cannot have the effect of altering the revocable nature of an authority to sell, unless the advances are accompanied by an agreement that the authority shall not be revocable [3 Moo. P.C. (N.S.) 179]. Whether such an agreement has been made, or may be properly inferred, is a question upon the evidence for the jury [3 Moo. P.C. (N.S.) 177, 180]. So held in an action for damages for an alleged improper sale by the Defendants of certain sugars placed in their hands by the Plaintiff. The Judge directed the jury that, by the mere relationship of Factor, the Factor did not by making advances, acquire any right in derogation of the rights of his principal to give directions as to the time and manner of sale, and that any such right on the part of the Factor must be made out by an agreement which might be inferred from the evidence, or might be implied by the proof of usage. Held that there was no misdirection [3 Moo P.C. (N.S.) 179]. * Present: Lord Kingsdown, Sir Edward Ryan, and Sir Edward Vaughan Williams. 59 Ill MOORE N.S., 159 DE COMAS V. FROST [1865] This was an action brought by the Appellant, a Spanish Merchant at Manilla, who traded at Sydney in New South Wales, against the Respondents, Dutch merchants and brokers, carrying on business at Sydney, to recover damages for an alleged improper sale by the Respondents of certain sugars belonging to the Appellant. The declaration contained four counts. The first count stated, that the defendants were employed by the Plaintiff to sell certain sugars, and promised to [159] do so with due care and diligence, and alleged as a breach, unreasonable delay in the sale. The second count stated, that the Defendants undertook to obey the Plaintiff's orders, and alleged as a breach that they sold the sugars contrary to such orders, and at prices below those named by the Plaintiff. The third count was in trover; and the fourth count for money had and received. The Defendants pleaded to the first count, a traverse of the breach; to the first and second counts, non assumpsit, and to the second count, a special plea that the sugar was delivered to the Defendants as Factors, and that at the time of delivery and before the orders were given, the Plaintiff authorised the Defendants to sell at their discretion; that thereupon, in consideration of the Defendants making payments and advances, the Plaintiff promised not to revoke the authority to sell; that the Defendants made certain advances, and before the orders were given, required repayment, and the Plaintiff not paying within a reasonable time, the Defendants sold the sugars, and that the amount realized was insufficient to repay the advances. To the third count they pleaded, not guilty and not possessed; and to the fourth count, never indebted. The Defendants pleaded a further plea to the second count, alleging that the agreement not to revoke the Defendants' authority to sell was made after delivery, and while the sugar was in the possession of the Defendants as Factors for sale; but the other averments, were similar to the third plea. It was agreed at the trial that both these pleas should be taken as having been also pleaded to the trover count. [160] The action was tried before Mr. Justice Wise and a jury of four. The leading facts given in evidence, were these:--The Appellant, as before stated, was a Spanish Merchant, residing at Manilla, and the Respondents were Dutch Merchants, carrying on business at Sydney, in New South Wales. On the 26th of September, 1860, a correspondence was opened between the Appellant and the Respondents by a letter from the Respondents with regard to certain consignments which they recommended the Appellant to make from the Philippine Islands for the Sydney market. They mentioned sugar as the principal article, and one which they had peculiar facilities for disposing of. In the same letter they offered their services to the Appellant, and pressed him to send them a consignment. In subsequent letters quotations were made of the prices of the day, and the Respondents informed the Appellant that from 150 to 200 tons of sugar per month would find buyers at prices that would leave a good profit. Accordingly in the month of June, 1861, the Appellant shipped a quantity of sugars at Manilla and Iloilo in the Philippine Islands on board the American barque Rosette, for Sydney, and sailed in the same vessel as supercargo. That vessel having received damage in the course of her voyage, put into Batavia in distress about the end of September, 1861. The cargo was there unloaded and placed in store. A portion of the sugars that had been damaged was sold, but the greater part was finally reshipped on board the Dutch ship Voornit. To pay the expenses of repairs and of the unloading and reloading of the cargo, the latter was hypothecated by the Captain of the Rosette to certain Dutch Merchants at Batavia [161] for the sum of 1,070. The Captain delivered' to them, at the same time, the Bills of lading of the cargo by the Voornit, together with the hypothecation bond, and also a draft by himself upon their agents at Sydney, Messrs. Griffiths, Pfenning, and Co., for the sum of 1,074. These documents were transmitted direct to Sydney, with instructions to obtain payment of the amount from the owners of the cargo there, and to retain the bond and Bills of lading as security for the repayment. The Voornit arrived at Sydney with the cargo of the Rosette on the 1st of May, 1862, when Messrs. Griffiths, Penning, and Co., having received the above instructions with the draft for 1,074 and the hypothecation bond and Bills of lading, demanded payment from the owners of the cargo of the amount of the advances. The Plaintiff, 60 DE COMAS V. PROST [1865] III MOORE N.S., 162 who also arrived in the same ship with the sugars, was at this time the holder of the original Bills of lading by the Rosette of the sugars which had been shipped by him, and the proportionate share of the advances falling upon his sugars amounted to 231. He, however, disputed his liability to pay this sum, and made counter claims against the master and owners of the Rosette. The owners of the residue of the cargo admitted their liability, and paid their share of the amount. A discussion then arose between the Plaintiff and the parties making the above claim, respecting the Plain-tiif's rights and liabilities generally in relation to the transaction, the result of which was that those parties refused to deliver the sugars to him without payment of the sum of 231. The Plaintiff thereupon applied to the Defendants for assistance; and it was then verbally proposed by the Plaintiff to the Defendants, that they [162] should advance the necessary moneys to release the sugars from the hypothecation, and should also pay the freight and other charges, and that the Defendants should act as his Agents for the sale of his sugars. It was not perfectly clear from the evidence what were the precise terms of these verbal communications, as neither of the parties was familiar with any language spoken by the other. It appeared, however, from the evidence of one of the Defendants, Prost, that he required the Plaintiff to reduce them to writing; and accordingly, before anything was done by either party, on the third of May, 1862, a letter in the Spanish language, of which the following was the translation, and which was given in evidence, was delivered by the Plaintiff to the Defendants at Sydney:-"Prost and Co. According the offer I have made to your to consign on yours the portion I shipped in Iloilo on board of the American barque Rosette, which in Batavia was transhipped to...
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Bailey v Angove's Pty Ltd
...but so far as authority is required, it is supplied by the decisions of the Privy Council in Esteban de Comas v Prost and Kohler (1865) 3 Moo PC NS 158 and Frith v Frith [1906] AC 254. The second condition was established in Walsh v Whitcomb, supra, where the exception was said to apply in ......