Leask v Pole
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1860 |
| Date | 01 January 1860 |
| Court | High Court of Chancery |
English Reports Citation: 54 E.R. 481
ROLLS COURT
Affirmed, in House of Lords, 33 L. J. Ch. 155; 8 L. T. 645; 9 Jur. (N. S.) 829.
[562] pole v. leask. leask v. pole. May 23, 24, 25, 28, 29, 30, 31, June 1, July 17, 1860. [Affirmed, in House of Lords, 33 L. J. Ch. 155; 8 L. T. 645; 9 Jur. (N. S.) 829.] The extent and nature of the authority of an agent may be defined by writing, by oral instruction, or by the course of dealings between the parties. E, vii.-16 482 POLE V. LEASE. 28 BBAV. M3. When the authority to an agent is general, it will be construed liberally, but according to the usual course of business in such matters. When the authority is given by parol and is ambiguous, it is to be construed according to the course of trade in such matters, and where it is unexpressed, it is to be ascertained by investigating the course of dealing pursued between the several parties to the transactions. Where an express authority is given, an authority is implied combined with it, to do all acts which may be necessary for the purpose of effecting the object for which the express authority is given. A general parol authority may be enlarged by parol, or even an additional authority superadded to it, by the employment of the parties, known to and acquiesced by them. For instance, a merchant may authorize a clerk to accept or indorse bills of exchange for him; but this will not, of itself, authorize his paying or receiving money due on such bills. But if, in the course of his employment, the clerk has, with the knowledge of the merchant, been allowed to do so, this will constitute a sufficient authority for that purpose and will discharge the holders of the bills. An agent, employed to negociate and conclude contracts, is not thereby authorized to pay or receive money which becomes due under such contracts, but the course of employment may justify the agent in so paying or receiving the money, if known to the principal and not objected to by him. The Plaintiffs, Messrs. P., authorized L., a fruit and colonial broker, to purchase and sell goods for them upon instructions to be given by A., their agent. The Plaintiffs insisted that the authority to A. was limited to one article, namely, currants, but L. insisted that the authority was general. The authority being by parol only, and there being a conflict of evidence, the Court, from the practice and conduct of the parties, came to the conclusion that the authority of A. was general; that it extended to all such articles as the broker was in the habit of dealing in, and that it authorized A. to settle accounts with the broker and receive the balance due in respect of the transactions. The alteration of account books post litem motarn is a most serious and reprehensible circumstance. The Plaintiffs Messrs. Van Notten Pole (under the name of Van Notten & Co.) carried on business at No. 2 Lime Street Square, as merchants and commission agents; this branch of their business was managed by Henry Schmidt, their principal clerk. They also carried on business at the next house (No. 3 Lime Street Square) as drysalters and banking and commission agents; this branch of their business was managed by Charles Hill, their principal clerk. [563] The Defendant Leask was a sworn fruit and colonial broker of the City of London. Anderson, whose name will presently occur in the case, was the principal clerk of a custom house agent; but he also carried on business on his own account. In August 1852 Anderson introduced Leask to Messrs. Pole, with a view to his employment in a projected speculation, and in order to make purchases and sales of certain articles for Messrs. Pole. A meeting took place between these three parties on the 17th of August 1852, when the matter was discussed, and it was agreed that Leaak should make the purchases and sales on behalf of Messrs. Pole, under the superintendence and management of Anderson. This arrangement was not in writing, and the extent of the authority given to Anderson to act on behalf of Messrs. Pole was a matter of contest between the parties (see post, pp. 565 and 573). It appeared that although the purchases and sales were to be in the names of Messrs. Pole, yet, by arrangement between them and Anderson, the latter was to share in the profits of the speculation. Leask accordingly purchased and sold large quantities of currants, dried fruits, and tartaric acid, under directions given by Anderson. Leask sent in all his accounts to Anderson, who settled them with him, and he paid over to Anderson the balances of the moneys arising out of these transactions, in all of which Leask communicated solely with Anderson. This went on without any settlement, as regarded Messrs. until the 20th of December 1853. On that day Anderson was taken into 28 HEAT. BM, POLE V. LEASK 483 custody for obtaining money on bills of exchange to which he had forged the acceptance of Messrs. Pole, [564] and he was shortly afterwards declared bankrupt on a declaration of insolvency which he signed in Newgate. In March 1854 he was tried and convicted and sentenced to eight years' penal servitude for his forgery, and it was then discovered that he had committed many other forgeries and frauds. Upon this, disputes arose between Messrs. Pole and Mr. Leask as to the transactions in which the latter had been engaged with Anderson, on behalf, as he alleged, of Messrs. Pole. Messrs. Pole insisted that many of these transactions ware unauthorized, that the authority given by them to Anderson was limited, that the contracts ought to have been sent to and sanctioned by them, that the authority to Anderson extended to currants only and not to any other species of goods, and that he had no authority to settle the accounts as between Leask and themselves, or to receive money payable to them in respect of these transactions. Mffisrs. Pole filed their bill in August 1854, praying a declaration that they were not liable to Leask in respect of the tartarie acid, or any dealings therein, nor for or in respect of any of the goods delivered by Leask to Anderson, nor for any goods purchased by Leask, except those thereinbefore mentioned as authorized and purchased before or on the 13th day of November 1852, nor for any advances of money or payments made by Leask to Anderson. It prayed also that the accounts between the parties might be taken and the balance paid to the Messrs. Pole. Leask filed his cross-bill in February 1855 against Messrs. Pole, and it prayed a declaration that Anderson was the agent of the Defendants, for the purpose of commissioning the Plaintiff to effect, for and on behalf of the Defendants, the several purchases and sales of [565] currants, figs, raisins, prunes, and tartarie acid, by the Plaintiffs books appearing to have been effected for and on behalf of the Defendants' house No. 3 Lime Street Square, and also for the purpose of receiving the several moneys, by the said books appearing to have been paid on account of the Defendants, and the several goods by the same books appearing to have been delivered to Anderson, or that otherwise the Defendants ought, under the circumstances therein stated, to account with the Plaintiff on the footing of Anderson having been such agent. It also prayed an account. The causes now came on for hearing, the evidence was exceedingly voluminous, but the material portions of it, and the points raised and argued at length, will be found sufficiently stated in the judgment of the Court. Mr. R. Palmer, Mr. G. Simpson, and Mr. Pollock, for Messrs. Van Notten Pole. Mr. Selwyn and Mr. Ferrers, for Mr. Leask. Mr. R. Palmer, in reply. Re Stantva, Iron Company (21 Beav. 164); Hickman v. Cox (18 Com. B. Eep. 617 ; 3 Com. B. Rep. (N. S.) 523); Smith v. Watson (2 Barn. & Cr. 401); Meyer v. Sharpe (5 Taunt. 74), were cited. July 17. the master of the rolls [Sir John Romilly]. The questions in these causes depend on the scope and extent of the authority given by the Messrs. Van Notten & Co., the Plaintiffs in the original cause, to William Burnett Anderson with respect to his dealings and transactions with Mr. Leask, the Defendant in the [566] original cause. There is a cross-cause in which Mr. Leask is Plaintiff and Messrs. Van Notten & Co. are Defendants; but I have, throughout this judgment, designated Messrs. Van Notten & Co. as the Plaintiffs and Mr. Leask as the Defendant. The authority, whatever it was, was given verbally, there is a contest in the evidence as to what passed on that occasion, it occurred on the 17th August 1852. The Plaintiffs Van Notten & Co. had long known William Burnett Anderson, and had, as well as the Defendant Mr. Leask, and as well as many other persons who knew him, placed great confidence in his ability and his integrity. The Defendant was, at that time and still is, a sworn fruit and colonial broker of the City of London. Anderson carried on business on his own account, but he was also the clerk of Mr. Major, a custom house agent of great respectability, and he was so highly esteemed and trusted by Mr. Major, that he gave a power of drawing cheques on his bankers to Anderson. Anderson introduced the Defendant to the Plaintiffs, for the purpose of making purchases and sales of certain articles on speculation. The introduction 484 POLE V. LEASK 28 BEAV. 867. took place 011 the 17th August 1852, the details of the interview are stated in the 8th paragraph of Plaintiffs'affidavits, p. Ill et seq. It is admitted, on both sides, that no written authority was given, and that all the verbal authority which was given took place at this interview. The Plaintiffs say it took place in the private room of their office, that they and William Burnett Anderson and the Defendant were the only persons present, but that the doors were open into the outer office, and that by reason thereof, Charles Hill, their principal clerk and manager, could and did hear what took place. This is the account given- "And we all respectively...
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