Rep. 710. But the moneys received are recoverable under the common count for money had and received, supra, 62.

In an action on the common counts, deft. may claim deductions, &c. without a plea or notice of set-off, though it is always safest to give one, and is necessary where he has a set-off for commission.

Precedents.

DECLARATION IN ASSUMPSIT AGAINST AGENT EMPLOYED TO SELL GOODS, &c. FOR NOT

ACCOUNTING FOR THEM.

For that whereas, heretofore, to wit, on, &c. (any day about time of delivery,) at, &c. (venue), in consideration that the said plt., at the special instance and request of the said deft., had delivered to the said deft. divers goods and chattels; to wit (here describe the goods, as in trover, &c. It does not appear necessary to describe them with exact number, &c.), of the said plt., of great value, to wit, of the value of £100 (state a sufficient sum), to be sold and disposed of by the said deft., for the said plt.; he, the said deft., undertook, and then and there faithfully promised the said plt., to render a just, true, and reasonable account of the said goods and chattels to the said plt, whenever he, the said deft., should be thereunto afterwards requested. And the said deft, then and there had and received the said goods and chattels of and from the said plt. for the purpose aforesaid, yet the said deft., not regarding his said promise and undertaking, but contriving and fraudulently intending to

injure the said plt., hath not rendered to the said plt. a just, true, and reasonable [*64]

or other account of the said goods and chattels, or any part thereof, although the said deft., afterwards, to wit, on the day and year aforesaid, at, &c. (venue), aforesaid, was requested by the said plt. so to do; but the said deft. hath hitherto wholly refused, and still wholly refuses, so to do. (It is usual to add a count on an execulory consideration that plt. would deliver, and stating delivery accordingly, and a sale and receipt of proceeds, but this is unnecessary. Add counts for goods sold, money counts, and an account stated.)

THE LIKE FOR NOT TAKING DUE CARE OF THE GOODS.

And whereas, also, heretofore, to wit, on, &c., at, &c., in consideration that the said plt., at the like special, &c. of the said deft., had delivered to the said deft, divers other goods and chattels, to wit, &c., of great value, to wit, of the value of £50, of like lawful, &c., he, the said deft., undertook, and then and there faithfully promised the said plt., to take due and proper care thereof. Yet the said deft., not regarding his said last-mentioned promise, &c., but contriving, &c., did not, nor would take due and proper care of the said last-mentioned goods and chattels, but wholly neglected so to do, and took such bad care thereof, that afterwards, to wit, on &c. the said last-mentioned goods, &c. became and were wholly lost to the said plt., to wit, at, &c. (See directions in preceding precedent.)

THE LIKE FOR NOT RETURNING GOODS WHICH DEFT. DID NOT SELL.

And whereas, also, heretofore, to wit, on, &c., at, &c., in consideration that the said plt., at the like special, &c. of the said deft., had delivered to the said deft, divers other goods and chattels, to wit, &c., of great value, to wit, of the value of £100, of like lawful, &c., to be sold and disposed of by him, the said deft., for the said plt. for a certain reasonable reward, to be therefore paid by the said plt. to the said deft. in that behalf, he, the said deft., undertook, and then and there faithfully promised the said plt., that, in case he did not sell and dispose of the said last-mentioned goods and chattels, or any part thereof, he would return the same, or such as were not sold and disposed of, to him, the said plt., when he, the said deft., should be thereunto afterwards requested. And the said plt. in fact saith, that although the said deft. hath not sold and disposed of the last-mentioned goods and chattels, of great value, to wit, of the value of £50, yet the said deft., although he was afterwards, to wit, on, &c, aforesaid, at, &c., aforesaid, requested by the said plt. so to do, did not, nor would return the said last-mentioned goods and chattels to the said plt., or any or either of them, or any part thereof, but the said deft. so to do hath hitherto wholly neglected and refused, and still doth neglect and refuse so to do, to wit, at, &c., aforesaid. (Add common counts.) 10

VOL. I.

AGAINST AN AGENT ON A PROMISE NOT TO SELL UNDER A FIXED PRICE, AND TO

ACCOUNT FOR SALE, &C.

For that whereas, heretofore, to wit, on, &c., at, &c., in consideration that the said plt., at the special instance and request of the said deft., had then and there retained and employed him, the said deft., in that behalf, to sell and dispose of divers, chaises, gigs, and other carriages, of and for him, the said plt., at and for certain prices respectively, to be therefore stated to him, the said deft., by the said plt., he, the said deft., undertook, and then and there faithfully promised the said plt., not to sell the said chaises, &c. under the said prices, and to render a just and true account of the sales by him made, as agent as aforesaid, and to deliver up to him, the said plt., such of the said chaises, &c., as should remain unsold by him, the said deft., when he, the said deft., should be thereunto afterwards requested; and, although he, the said deft., then and there had and received divers, to wit, fifty chaises, fifty gigs, and fifty other carriages, of and from the said plt., as such agent, as aforesaid, and he, the said plt., stated the prices of the same, respectively, to him, the said deft.; yet the said deft. thereby craftily and subtly deceived and defrauded the said plt. in this, to wit, that he, the said deft., from time to time, and at all times after the making of his said promise and undertaking, without the knowledge and against the will of him, the said plt., sold and disposed of divers, to wit, thirty of the said last-mentioned chaises, &c. at much smaller prices than the said prices so stated to him; and the said deft, contriving and intending, &c., hath not, although afterwards, to wit, on, &c, aforesaid, and often times before and since, to wit, at, &c., aforesaid, requested by the said plt. so to do, as yet rendered a just

[*65] and *true or other account of the said sales, or delivered up to him, the said plt.,

the residue of the said chaises, &c. which remained unsold by him, the said deft., as aforesaid, but hath wholly neglected and refused, and still doth neglect and refuse, so to do, to wit, at, &c., aforesaid. (Add goods sold, money counts, and account stated.)

COUNT AGAINST AGENT FOR NOT SELLING AT THE BEST PRICE.

And whereas, also, heretofore, to wit, on, &c., at, &c., in consideration that the said plt., at the like special, &c., of the said deft., had delivered to the said deft., to sell and dispose of for the said plt., divers other large quantities, to wit, &c., of cloth and kerseymere, of great value, to wit, &c., he, the said deft., undertook, &c., to perform his duty in and about the sale and disposal of the same cloth and kerseymere; and, although the said deft. then and there accepted and received the said last-mentioned cloth and kerseymere for the purpose aforesaid, and it thereupon then and there became, and was, the duty of the said deft. to use due endeavours to sell and dispose of the same for the best prices that could have been obtained for the same; yet the said deft, not regarding, &c., did not, nor would, use due endeavours to sell and dispose of the said last-mentioned cloth and kerseymere, for the said plt., for the best prices that could have been obtained for the same, but wholly neglected so to do; and afterwards, to wit, on, &c., aforesaid, and on divers, &c., so improperly conducted himself with respect to the said last-mentioned cloth and kersey mere, that the same has produced much less, to wit, the sum of £200 less for the use of the said plt., than the same would have produced if it had been duly sold by the said deft. for the said plt., contrary to the said last-mentioned promise and undertaking of the said deft., to wit, at, &c., aforesaid.

AGAINST AN AGENT FOR NOT TAKING DUE CARE OF GOODS DELIVERED TO HIM AT DIFFERENT TIMES, AND SELLING THEM UNDER VALUE, AND BY BARTERING THEM, &c.

For that whereas, heretofore, to wit, on, &c., at, &c., in consideration that the said plt., at the special instance and request of the said deft., would [from time to time] retain and employ him, the said deft., to sell and dispose of cloth and kerseymere of the said plt., to be delivered by the said plt. to the said deft. for that purpose, for commission and reward to the said deft. in that behalf; he, the said deft., undertook, and then and there faithfully promised the said plt., to take due and proper care and diligence in about the selling and disposing of such cloth and kersey mere, and the said plt., in fact, says, that he, confiding in the said promise and undertaking of the said deft., afterwards, to wit, on, &c. aforesaid, and on divers other days and times afterwards, and before the commencement of this suit, to wit, at, &c., aforesaid, did retain and employ him, the said deft., to sell and dispose of divers quantities of cloth and kerseymere for the said plt., and during that time, to wit, on, &c., first aforesaid, and on divers, &c., at, &c., delivered to the said deft. divers large quantities, to wit, fifty pieces of cloth and five hundred pieces of kersey mere, of the said plt., of great value, to wit, of the value of £, for the purpose aforesaid, and the said deft., on those several days and times, accepted and received the said quantities of cloth and kerseymere for the purpose aforesaid; and, although it thereupon became, and was the duty, of the said deft., to use care and diligence in and about the endeavouring to sell and dispose of the said cloth and kerseymere, for good and sufficient prices, and although the said deft. could and might, and ought to have sold the said cloth and kerseymere for good and sufficient prices, whereof he, during all the time aforesaid, bad notice, to wit, at, &c., aforesaid, yet the said deft., not

regarding his said promise and undertaking, so by him in manner and form aforesaid made, but contriving and fraudulently intending craftily and subtly to deceive and defraud the said plt in this behalf, did not, nor would use due and proper care and diligence in and about the endeavouring to sell and dispose of the said cloth and kerseymere for good and sufficient prices, but wholly neglected so to do, and also afterwards, to wit, on the said several days and times, wrongfully and injuriously bartered and exchanged divers large quantities of the said cloth and kersey mere, for other goods, wares, and merchandises, of much less value than the said cloth and kerseymere, contrary to the said promise and undertaking of the said deft., and his duty in that behalf, to wit, at, &c. aforesaid.

FOR SELLING TO PERSONS UNFIT TO BE TRUSTED.

And whereas, also, heretofore, to wit, on, &c., at, &c., in consideration that [*66]

the said plt., at the like special, &c., would retain and employ the said deft. to sell and dispose of divers other quantities of cloth and kersey mere of the said plt., on commission, he, the said deft., undertook, &c., not to sell or dispose of the said last-mentioned cloth or kerseymere, to any person or persons unworthy of credit, in the way of trade and dealing, and unfit to be trusted with goods on credit; and the said plt., in fact, saith, that he," confiding, &c., did afterwards, to wit, on, &c., last aforesaid, and on divers, &c., at, &c., retain and employ the said deft. to sell and dispose of such cloth and kerseymere for the said plt., and during that time, and on divers, &c., and before the commencement, &c., to wit, at, &c., delivered to the said deft. divers large quantities, to wit, &c., of great value, &c., for the purpose last aforesaid, and the said deft., on the several days and times last aforesaid, accepted and received the said last-mentioned cloth and kerseymere for the same purpose; yet the said deft., not regarding, &c., afterwards, to wit, on, &c., last aforesaid, and on divers, &c, at, &c., aforesaid, wrongfully sold and disposed of the said last-mentioned cloth and kerseymere, for divers sums of money, to divers persons respectively, to wit, to Messrs. T., B., and D., and divers other persons respectively, unworthy of credit in the way of trade and dealing, and unfit to be trusted with goods on credit, by means whereof the price of the said mentioned cloth and kerseymere remains, and is, wholly in arrear and unpaid to the said plt., and he is likely wholly to lose the same, to wit, at, &c. aforesaid. (Add money counts and accounts stated, &c.)

AGAINST AN AGENT EMPLOYED TO SELL GOODS ON HIS PROMISE TO USE DUE ENDEAVOURS TO OBTAIN PAYMENT OF PROCEEDS.

Ane whereas, also, heretofore, to wit, on, &c., aforesaid, at, &c, aforesaid, in consideration that the said plt., at the like special, &c. of the said deft., had retained and employed him, the said deft., for reward to him in that behalf, to sell and dispose of certain other goods, wares, and merchandises of the said plt., of great value, to wit, of the value of £100, of lawful money, in certain parts beyond the seas, for the said plt., he, the said deft., undertook, and then and there faithfully promised the said plt., to use due endeavours to obtain payment of the money for which the said last-mentioned goods, wares, and merchandises, should be sold, for the said plt., and, although the said deft. afterwards, to wit, on, &c., aforesaid, at, &c., aforesaid, sold the said last-mentioned goods, wares, and merchandises, for, and on account of the said plt., for a large sum of money, to wit, for the sum of £—, of like lawful money, at, &c., aforesaid; yet deft., not regarding his said promise and undertaking, so by him in manner and form aforesaid made, but contriving and fraudulently intending craftily and subtly to deceive and defraud the said plt. in this behalf, did not use due endeavours to obtain payment of the said moneys for which the said last-mentioned goods, wares, and merchandises were so sold as aforesaid, but wholly neglected and refused so to do; and by means and in consequence thereof, the said plt. hath not as yet received the proceeds of the last-mentioned goods, wares, and merchandises, and is likely to lose the same, to wit, at, &c., aforesaid.

Evidence for Plaintiff.

In General.] Plt. should, in the first place, prove the deft.'s retainer and employment as stated in the declaration: Lopez v. De Tastet, 1 B. & B. 544. If the same was by any written document between them, it should be produced and proved in the usual way. If the damage resulted from a deviation from specific orders, such orders should be

proved, Cowp. 395; and so, if it resulted from not following the usage of trade and dealing: the usage should be proved: Smith v. Lascelles, 2 T. R. 188, Cowp. 488, 4 Burr. 2061; 6 T. R. 12. In general, in order to render an agent liable, plt. may show that he did not exert the same vigilance, care, and diligence, as a prudent person would exert, and which is a question for a jury: see Kilsby v. Williams, 5 B. & A. 820, Paterson v. Gandasequi, 15 East, 62. Even though the agent is bound

to adopt the usual course of trade, plt. may still, to prove deft.'s [*67] liability, show that he adhered more closely to it than a prudent and skilful agent would have done, and thereby occasioned a loss: 2 Wils. 325; Smith v. Lascelles, 2 T. R. 188, Yelv. 202. And, where there are specific instructions, or, in the absence of them, an usage of trade, and plt. sustains a loss by deft.'s departure from them, the circumstance of deft.'s intending a benefit to his principal by such departure will not avail him, Catlin v. Bell, 4 Camp. 183, Dyer, 161, 1 H. Bla. 159, Cowp. 395; though, on the other hand, he will, in general, be safe if he pursue the instructions of his principal: Moll. 329. Any admission made by deft. of his liability, should be proved: ante, "Ad

missions."

In an Action for not accounting for Goods, plt. must, in addition to the foregoing evidence as to retainer, prove the delivery of the goods to deft. in the character of agent, as alleged in the declaration: post, title "Principal and Agent." Proof of the delivery or consignment of goods will vary according to the fact. If there was an invoice, it should be proved, post, "Secondary Evidence." The value of the goods should be proved: if the deft. has sold the goods, or any part of them, the sale should be proved: the plt. should prove a request to account, though it may be proved after a reasonable time, Topham v. Braddick, 1 Taunt. 572, 12 Mod. 444, and also, if possible, the receipt of the proceds of sale: the purchaser will be a good witness for this.

In an action to recover the proceeds of sales or moneys received by the deft., which would be recoverable under the count for money had and received, it will, in addition to proof of the receipt of the money, in general, be necessary to prove the transaction is closed, Varden v. Pasker, 2 Esp. Rep. 710, Lucas v. Groning, 1 Stark. 392; or else show that it is the fault of the agent that it is not: ib. Letters written by the agent to the principal will be evidence against him; and, if he has rendered an account, he will be bound by it. Shaw v. Picton, 4 B. & C. 729. A sale of the goods, and actual receipt of the money for them, will be presumed, when a reasonable time has elapsed after the deft.'s refusal to account, per Ld. Ellenb., Hunter v. Welsh, 1 Stark. 224; and plt. will recover on proving their value: ib. Proof of deft. being an agent under a del credere commission, supersedes the necessity of proving the receipts of the proceeds: Paley, 76, Grove v. Dubois, 1 T. R. 112; Bise v. Dickason, ib. 285. See further, as to the proof against an agent for money had and received, post, "Money Had and Received." If the deft. has been guilty of misconduct, and he seeks to deduct the amount of his commission on the sales from plt.'s claim, plt. should prove such misconduct: White v. Chapman, 1 Stark. 113; ante.

In an Action for selling at an under Price, if the deft. received any specific instructions as to price, they should be proved: Dufresne v. Hutchinson, 3 Taunt. 117, Willes, 407, 3 B. & P. 489. So, if there was any custom or usage of trade. If there were no specific instructions, plt. should prove the value of the goods and the sale of them. Prove retainer of deft. and delivery of goods.

In an Action for selling on Credit, if deft. has received specific instructions, they should be proved; otherwise it should be proved that the usage of trade was against selling on credit: 12 Mod. 514; Scott v. Surman, Willes, 407. As, an usage of this kind in the sale of stock, Wiltshire v. Sims, 1 Camp. 258, Lefevre v. Lloyd, 5 Taunt. 749, 12 Mod. 514; or in a sale by an auctioneer, by auction, Brown v. Staton, 2 Chit. R. 353. Proving deft. bartered the goods would make him liable Guerriero v. Peile, 3 B. & A. 616. Though there be no specific instructions or usage against selling on credit, plt. will render deft. liable by proving the credit given was unreasonable and not customary: Buls. 183. Prove the retainer and delivery of the goods.

*If the agent has taken a security instead of cash, plt. may show [*68] the security was such as would give him unnecessary trouble or risk: Yelv. 202. If a broker employed to sell goods, sell them for a bill at a given date, and draw on the buyer for the amount, he is answerable on the bill to his principal, Lefevre v. Lloyd, 5 Taunt. 749; or if he take a security payable to himself from the purchaser, and give his own security to the principal for the net proceeds, he will be liable, Simpson v. Swan, 3 Camp. 291; and he will be liable for a loss arising from mixing up the proceeds of the sale with his own at his banker's: 11 Ves. 382; R. & M. 382.

In an Action for selling to a Person unfit to be trusted, plt. should show the party was in reputed bad circumstances at the time of the sale, 12 Mod. 514, Wiltshire v. Sims, 1 Camp. 258; or that such was known to deft.: the circumstance of deft.'s selling his own goods for ready money would be a strong inference against him, ib. Prove the retainer and delivery of goods.

In an Action for the Loss of Goods, if the agent did all that by his industry he could for their preservation, Vere v. Smith, 1 Ven. 121, and kept them with the same care he did his own, Coggs v. Bernard, 2 Ld. Raym. 917, Maltby v. Christie, 1 Esp. Rep. 341, he will not be liable, and proof must be adduced accordingly against this. An agent is not liable in case of fire, 2 Mod. 100, robbery, Co. Lit. 88, b., or any other accidental damage happening without his default: ib. and Rol. Ab. 124. However, if the plt. can prove the loss happened by previous neglect, though not the immediate fault of the agent, he will render the deft. liable: as, if goods be burned in a warehouse, in the removal of which there has been an improper delay: 6 Ves. 496. Prove the retainer and delivery of goods.

In Action for Misconduct when employed to purchase.] The re