Irving and Others v Motly and Another
| Jurisdiction | England & Wales |
| Judgment Date | 05 May 1831 |
| Date | 05 May 1831 |
| Court | Court of Common Pleas |
English Reports Citation: 131 E.R. 210
COURT OF COMMON PLEAS
S. C. 5 Moo. & P. 380; 9 L. J. C. P. (O. S.) 161. Commented on, Dantec v. Ashworth, 1866, 14 L. T. 489.
[543] irving and others v. motly and another. May 5, 1831. [S. C. 5 Moo. & P. 380; 9 L. J. C. P. (0. S.) 161. Commented on, Dantec v. Ashworth, 1866, 14 L. T. 489.] The Plaintiffs sued in trover for goods, of which they alleged they had been deprived by fraud in the Defendants' agent: Held, that they might prove the contract made by the agent, without calling him as a witness, although the Defendants were not privy to the fraud. Trover for nineteen bags of wool which, as the Plaintiffs alleged, had been obtained of them by fraud. At the trial before Gaselee J., London sittings after Hilary term, it appeared that the wool in question had been ostensibly purchased of the Plaintiffs on the 18th of August 1829, by one Dunn, as agent of Wallingtori and Co., and by Wallington and Co. pledged, the next day, to the Defendants, as a security for 14001. advanced that day by the Defendants to Wallington and Co., through the intervention of Dunn, who was also agent to the Defendants. In order to shew that Wallington and Co. had obtained the wool in question 7 BINS. 5. IRVING V. MOTLY 211 without any intention of paying for it; that they had long been in a state of irretrievable embarrassment; and that Dunn was privy to their design; the Plaintiffs, after an objection to the evidence, which was overruled, proved the signature of Dunn to a letter addressed to the Defendants, December 13, 1828, inclosing an invoice of forty-seven bags of German wool stated by him (Dunn) to have been bought on Defendants' account, but without naming the sellers:- Amount . . . . . . . 2756 15 11 Discount 5 per cent. . . . 137 16 9 Ditto 3 per cent, additional . . 82 14 0 220 10 9 Bill at two months . . 2536 5 2 [544] And the same letter stated that Dunn had sold the same wools to Timothy Wallington and Co. at the same prices, payable by their acceptance at six months, 2| per cent, discount. It was then proved that the Defendants drew a bill on T. Wallington and Co. for these wools, dated December 13, 1828, at six months, for 26831. 17s. 6d.: due, therefore, June 16, 1829. Duthoit, Wellingtons' clerk, proved that Wellingtons were sellers of these wools, as well as buyers, and that it was a mere nominal transaction to raise money for Wallingtons' house at a loss of about 10 per cent.; but it was not proved that the Defendants had any knowledge of whom the wools were bought. It was further proved that the bill becoming due in June was renewed by the Defendants in two bills, one of them at two, and the other at three months; the first for 13541. 15s. Id., falling due August 19, and the other for 13601. 9s. 6d., due on the 19th September. Duthoit also proved from entries in Wallingtons' books that in five instances in the year 1829, wools were bought by Wallingtons, through Dunn, of merchants, upon credit, and sold again the same or following day for the same prices at which they had been bought; but with an allowance of discount in consequence of being sold at short credit, making a loss upon each transaction of about 10, or in one or two cases 12| per cent. And that Wallingtons' house and Dunn, and several other houses, were mixed up together in very extensive accommodation transactions. The Defendants being requested to advance the 14001. the day on which the first of Wallington's renewed bills for the purchase of December 13,1828, became due, and thereupon suspecting the stability of the firm, required a deposit of wools by way of security; whereupon Dunn, who acted for both parties, obtained and transferred the wools as before stated. [545] Wallington and Co. stopped payment August 29, 1829, and a commission of bankrupt issued against them September 5. A verdict was given for the Plaintiffs, the jury finding, That the transaction in question was fraudulent; That the Defendants knew nothing of the fraud, but that Dunn was the agent of the Defendants as well as of Wallington and Co. Taddy Serjt. obtained a rule nisi for a new trial, on the ground that Dunn himself ought to have been called as a witness by the Plaintiffs; that the evidence of his signature ought not to have been received; and that the verdict was against evidence, as a trader was not to be presumed guilty of fraud because he occasionally purchased upon credit, and sold again immediately; for which he referred to Noble v. Adams (2 Marsh. 366). Wilde and Eussell Serjts. shewed cause. The paper signed by Dunn was properly received in evidence. It was not produced to prove the...
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