Smart and Another v Sandars and Others
| Jurisdiction | England & Wales |
| Judgment Date | 12 May 1848 |
| Date | 12 May 1848 |
| Court | Court of Common Pleas |
English Reports Citation: 136 E.R. 1132
IN THE COURT OF COMMON PLEAS
S. C. 17 L. J. C. P. 258; 12 Jur. 751. Adopted, Read v. Anderson, 1882, 10 Q. B. D. 107. Distinguished, Frith v. Frith, [1906] A. C. 261.
[895] smart and another v. sandars and others. May 12, 1848. [S. C. 17 L. J. C. P. 258; 12 Jur. 751. Adopted, Beady. Anderson, 1882, 10 Q. B. D. 107. Distinguished, Frith v. Frith, [1906] A. C. 261.] A factor to whom goods have been consigned generally for sale, and who has subsequently made advances to his principal on the credit of the goods, has no right to sell them, contrary to the orders of his principal, on the latter neglecting, on request, to repay the advances,-although such, sale would be a sound exercise of discretion on his part; his authority to sell not becoming, by reason of the unpaid advances, irrevocable, as an authority coupled with an interest. Assumpsit. The first count of the declaration stated that the defendants, before, &c., were, and still are, corn-factors, and carried on, and continue to carry on, the trade and business of a corn-factor, at Liverpool: that, on, &c., in consideration that the plaintiffs, at the special instance and request of the defendants, had consigned and delivered to the defendants, to wit, as such factors as aforesaid, a cargo of wheat, for and on account of the plaintiffs, to wit, for certain reasonable commission and reward to be paid by the plaintiffs to the defendants in that behalf, they, the defendants, undertook, and then faithfully promised the plaintiffs, to obey and observe the lawful orders and directions of the plaintiffs, to be given by them to the defendants, in regard to the sale and disposal of the said wheat by the defendants for the plaintiffs : Averment, that, although the defendants, as such factors, then had and received the said cargo of wheat for the purpose and upon the terms aforesaid, and although the defendants afterwards, to wit, on, &c., sold and disposed of a certain small quantity, to wit, twenty bushels, parcel of the said cargo of wheat; and although afterwards, to wit, on, &c., the defendants sold and disposed of another quantity, to wit, six hundred bushels, then being other parcel of the said cargo of wheat, at and for a certain price, to wit, at the rate or price of 6s. 4d. for each and every of the said last-mentioned bushels of wheat; and although, afterwards, and after such last-mentioned sale, and whilst the residue of the said cargo of wheat remained in the hands of the de-[896]-fendants, as such factors, unsold, to wit, on, &c., the plaintiffs ordered and directed the defendants, to wit, as such factors as aforesaid, not to sell any more of the said cargo of wheat under 7s. per bushel, and then only to the extent of a small portion thereof, to wit, to the extent of 1600 to 2400 bushels; and although the same order and direction was then a lawful order and direction in that behalf, and the defendants then, and long before any of the sales thereinafter mentioned, had due notice of such order and direction, and could and might and ought to have obeyed and observed such order and direction; yet the defendants, not regarding their said promise and undertaking, but contriving and intending, &c., did not obey or observe the said order and direction of the plaintiffs so given by them to the defendants in respect of the said residue of the said cargo of wheat as aforesaid, but then wholly neglected and refused so to do, and wrongfully and injuriously sold and disposed of the whole of the said residue of the said cargo of wheat, at and after the rate of much less than 7s. for each and every bushel thereof, that is to say, &c. (alleging various sales for lesser prices), and afterwards, to wit, on, &c., the defendants wrongfully and injuriously sold and disposed of divers, to wit, 5375 bushels, being the remainder of such residue, at and after the rate of 6s. for each and every bushel thereof, contrary to the said order and direction of the plaintiffs so by them in that behalf given to the defendants as aforesaid, and contrary to the duty of the defendants, as such factors as aforesaid, in that behalf: and that, although, after the giving of the order and direction aforesaid, and after the- violation thereof by the defendants, and whilst the remainder thereinbefore lastly specified of the said residue of the said cargo of wheat, to wit, the said quantity of 5375 bushels thereof, remained in the hands of the defendants, as such factors, [897] unsold, to wit, on, &c., the plaintiffs ordered and directed the defendants, to wit, as such factors as aforesaid, not to sell the said remainder of the said residue of the said cargo of wheat, or any part thereof, to wit, without further 5 C. B. 898. SMART V. SANDARS 1133 directions from the plaintiffs in that behalf; and that, although the last-mentioned order and direction was then a lawful order and direction in that behalf, and the defendants then, and long before the sale thereinafter mentioned, had due notice of such last-mentioned order and direction, and could and might and ought to have obeyed and observed the same, yet the defendants, further disregarding their said promise, &c., wrongfully and injuriously sold and disposed of the said remainder of the said residue of the said cargo, without any further directions from the plaintiffs in that behalf, contrary to the last-mentioned order and direction of the plaintiffs, &c.; and that, by reason of the several premises the plaintiffs had sustained great loss, &c. The second count, which was similar in form, related to another cargo of wheat. The defendants pleaded several pleas, upon special demurrer to the third and fourth of which, to the first count, and the eighth and ninth, to the second count, the plaintiffs obtained judgment in Trinity vacation, 1846 (ante, vol. iii. p. 380). Having subsequently obtained leave to plead two additional pleas (ante, vol. iii. p. 401), the defendants pleaded as follows :- Thirteenth,-to the first count,-that, after the said cargo of wheat in the said first count mentioned had been so consigned to the defendants as such factors as in the said first count mentioned, and before the committing by the defendants of any of the said alleged breaches of promise in the said first count mentioned, to wit, on the 1st of November, 1842, the defendants, as [898] such factors as aforesaid, became and were under advances to the plaintiffs in respect of the said consignment of the said cargo of wheat in the said first count mentioned, to a large amount, to wit, to the amount of 30001, and which said sum so advanced by the defendants, as such factors as aforesaid, to the plaintiffs, was then due and payable by the plaintiffs to the defendants, and which said advances the defendants had come under by reason of the defendants' having,-after the making of the promise in the first count mentioned, and whilst the defendants, as such factors as aforesaid, had authority from the plaintiffs to sell the said cargo of wheat in the first count mentioned at such times and for such prices as they, the defendants, in exercise of their discretion as such factors, thought it best for the plaintiffs that the cargo should be sold, and before the giving of any of the orders in the said first count mentioned by the plaintiffs to the defendants, to wit, on the 12th of July, 1842,-accepted divers bills of exchange for the plaintiffs, and at their request, against and on the security of the said cargo in the said first count mentioned : that thereupon, afterwards, and before the committing by the defendants of any of the said alleged breaches of promise in the said first count mentioned, to wit, on the 1st of November, 1842, they, the defendants, gave notice to the plaintiffs that they, the defendants, required the said sum of money so advanced by the defendants, as such factors as aforesaid, in respect of the said consignment of the said cargo of wheat in the said first count mentioned, to be repaid to them, the defendants, by the plaintiffs; and that, if the plaintiffs did not repay to them, the defendants, the said sum of money, they, the defendants, would sell the whole of the residue of the said cargo of wheat in the said first count mentioned, and, out of the money to be produced by such sale, would repay [899] themselves the said sum of money so advanced by the defendants as in that plea aforesaid: that, although after they, the defendants, had given the plaintiffs the said notice in that plea mentioned, and before the committing by the defendants of any of the said alleged breaches of promise in the said first count mentioned, a reasonable time for the plaintiffs to have repaid to the defendants the said sum of money so advanced by the defendants, had elapsed,-yet the plaintiffs did not, nor would, repay to the defendants the said sum of money, or any part thereof, but wholly neglected and refused so to do, and the whole of the said sum of money, at the time of the committing by the defendants of the said several alleged breaches of promise in the first count mentioned, remained due and unpaid from the plaintiffs to the defendants : that, at the time when the defendants gave the plaintiffs the said notice in this plea mentioned, and from thence continually until and at the several times when the defendants so sold the said residue of the said cargo of wheat as in the said first count mentioned, the defendants believed it to be, and it was, for the benefit and advantage of the plaintiffs that the said residue of the said cargo of wheat should be sold, and that the sales of the said residue were beneficial and advantageous sales for the plaintiffs, and were made by them, the defendants, in the exercise of a sound discretion, as such factors for sale as aforesaid, for the benefit 1134 SMAET V. SANDARS 5 C. B. 900. of the plaintiffs, and as, and at such times, and for such prices, as...
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