James Henry Lewis against Nicholson and Parker

[503] james henry lewis against nicholson and parker. Friday, May 7th, "i 1852. Assurapsit on a promise that, if the assignees of a bankrupt would permit the sale of his goods, defendants would pay plaintiff the net proceeds to the amount of his debt secured on such goods. Plea : rion assumpsit. On the trial it was proved that defendants, being solicitors to the assignees, wrote to plaintiff's solicitor, saying, "in consideration of" plaintiffs "consenting to the sale" "we hereby, on behalf of the assignees, consent that the net proceeds " shall be paid to plaintiff. This offer was accepted ; the goods were sold ; but the net proceeds were not paid over. The letter was written by the authority of the trade assignee, but not known to nor ratified by the official assignee. Other subsequent letters were in evidence. Nonsuit with leave to move.-Held : that subsequent letters were not admissible to aid in construing the contract in the first letter. That, on the true construction of the letter, defendants did not contract themselves, but made the contract for the assignees : that the trade assignee had no authority to bind the official assignee personally : but that this absence of authority did not make defendants liable on the contract as principals; and that the nonsuit; was right.-Semble : that in such cases there is an implied undertaking by the: professed agent that he has the authority he professes to have. [S. C. 21 ! J. Q. B. 311 ; 16 Jur. 1041. Distinguished, Tanner v. Christian, 1855, 4 El. & Bl. 596. Adopted, Gotten v. Wright, 1857, 8 El. & Bl. 662; Cherry v. Colonial Sank of Australasia, 1869, L. R. 3 P. C. 32 ; Royal Albert Hall v. Winchelsea, 1891, 7 T. L. R. 364; Starkey v. Bank of England, [1903] A. C. 119.] Declaration stated that Messrs. Arless & Tucker had assigned by bill of sale to (a) See Tress v. Savage, 4 E. & B. 37. UQ. B.BM. LEWIS V. NICHOLSON 191 plaintiff by way of security for 2681. 7s. certain goods; and that whilst the debt was unsatisfied Arless & Tucker became bankrupts. That the goods were seized by their assignees, who were about to sell them ; and plaintiff gave notice that he claimed the goods and would forbid the sale. That, in consideration plaintiff would consent to the sale, defendants promised that the net proceeds of the effects included in the bill of sale should be paid to plaintiff to the extent of the balance then due to him. Averments of consent by plaintiff, and that the sale took place. Breach, that the net proceeds were not paid to plaintiff. There were also counts for money had and received, and on accounts stated. Plea: non assumpserunt. Issue thereon. On the trial, before Lord Campbell C.J., at Guildhall, at the sittings after last Hilary term, the material facts appeared to be that the defendants were solicitors to the [504] assignees of Messrs. Arless & Tucker, who had become bankrupts. The trade assignee bad ordered a sale by auction of goods seized as the property of the bankrupts, when the plaintiff's solicitor gave notice that the plaintiff' claimed part of the goods under a bill of sale by way of mortgage. The following letters were then proved. Defendants to plaintiff's solicitor, 26th August 1851. " Re Arliss and Tucker. Sir,-In consideration of Mr. James Henry Lewis, for whom you act, consenting to the sale, by Messrs. Lewis & Son, of the bankrupts' printing materials and other effects (part whereof is included in a bill of sale to Mr. J. H. Lewis by way of mortgage, dated the Kith of March 1850), we hereby, on behalf of the assignees, consent that the net proceeds of the effects included in the said bill of sale shall be paid over to you or your client to the extent of the balance now remaining due under the bill of sale for principal and interest. We shall feel obliged by your sending us immediately a consent to the sale accordingly.-Yours faithfully, Nicholson & Parker." Plaintiffs solicitor to defendants, 27th August 1851. " Re Arlias and Tucker. Dear Sirs,-In compliance with the undertaking given by you herein, and contained in your letter of tho 26th instant, I hereby, on the part of Mr. James Henry Lewis, consent to the sale by Messrs. Lewis & Son of the bankrupts' printing materials and other effects (part of which is included in the bill of sale to Mr. J. H. Lewis by way of mortgage, dated the 16th of March 1850).-I am, Gentlemen, your obedient servant, J. H. F. Lewis, solicitor to the said J. H. Lewis." The sale took place accordingly. The trade assignee of the bankrupts had authorized the writing of the letter [505] of 26th August 1851. The official assignee was absent at the time...