Agents. nor delivered up to him, the said plaintiff, the residue of the said chaises, gigs, and other carriages, being of great value, to wit, dollars, which remained unsold by him the said defendant as aforesaid, but hath wholly neglected and refused, and still doth neglect and refuse, so to do, to wit, at said county. [Add common counts, ante p. 216.] 6. Declaration against an Auctioneer for selling on Credit.(c) For that, whereas, before, and at the time of the promise next mentioned, the defendant carried on the business of an auctioneer, and thereupon heretofore, to wit, on [&c.] at [&c.] in consideration that the plaintiff, at the request of the defendant, would retain and employ him in his said business to sell and dispose of certain goods of the plaintiff, to wit, [Describe them as in trover,] of great value, to wit, dollars, for the plaintiff, for reward to the defendant in that behalf, the defendant promised the plaintiff that he, the defendant, would not sell or dispose of the said goods otherwise than for ready money. And the plaintiff avers, that he did then and there retain and employ the defendant in his said business on the terms aforesaid, yet the defendant disregarded his said promise in this, to wit, that he did afterwards, to wit, on [&c.] at [&c.] sell and dispose of the said goods otherwise than for ready money, to wit, on credit, without the plaintiff's consent, whereby the plaintiff hath hitherto lost, and is likely wholly to lose the price and value of the said goods, to wit, at said county. 7. Against the Captain of a Ship or an Agent, at the suit of the Owner, for not procuring a sufficient Cargo. For that, whereas, before and at the time of the making of the promise of the defendant hereinafter in this count mentioned, the plaintiff was the owner of a certain ship or vessel, then in the river Maumee, to wit, at [&c.] waiting for a cargo, to be conveyed therein for and upon freight and reward, to be therefore paid to the plaintiff, and bound from thence upon a certain voyage; and thereupon heretofore, to wit, on [&c.] at [&c.] in consideration that the plaintiff had then and there, at the request of the defendant, retained and employed him to obtain and procure a cargo on freight for the said ship or vessel, for reward to the defendant in that behalf, he, the defendant, then and there promised the plaintiff to use due diligence, care and attention in and about the endeavoring to procure a full, sufficient, and proper cargo on freight for the said ship or vessel, upon her said intended voyage, and although the defendant then and (e) An auctioneer cannot, without express authority, sell goods by auction on credit, unless the general custom be otherwise. 18 Eng. C. L. Rep. 36-4. When customary to sell on credit, an agent has implied authority to sell on such terms; Willes 406; 3 B. & P. 489; 6 Johns. 69; 5 Cowen 473; 3 Johns. 319; 15 Pick. 179. Agents. there accepted the said retainer, yet the defendant, not regarding his said promise, did not use due diligence, care or attention, in and about the endeavoring to procure such cargo on freight for the said ship or vessel as aforesaid; but on the contrary thereof, the defendant then and there so carelessly, negligently and improperly behaved and conducted himself in and about the premises, that by and through the mere carelessness, negligence, and improper conduct of the defendant in that behalf, the plaintiff was afterwards, to wit, on [&c.] at said county, obliged to despatch the said ship or vessel on her said intended voyage with a much less cargo or quantity of goods, to wit, tons weight of goods less than the said ship or vessel was capable of receiving and containing, and the defendant might and ought to have procured for the same, on freight as aforesaid, before the said ship sailed as aforesaid; and thereby the plaintiff, so being the owner of the said ship or vessel, hath lost and been deprived of divers great gains and profits, which would otherwise have accrued to him, amounting in the whole to a large sum of money, to wit, dollars, and was, and is, by means of the premises, otherwise greatly injured and damnified, to wit, at said county. 8. Second Count for not properly Stowing the Cargo. And whereas, also heretofore, to wit, on [&c.] at [&c.] in consideration that the plaintiff had then and there retained and employed the defendant, at his request, to superintend and direct the loading and stowing of a cargo of a certain other ship or vessel of the said plaintiff, bound on a certain voyage, in and on board the said ship or vessel, for reward to the defendant, he, the defendant, then and there promised the plaintiff to use due care and attention, skill and diligence in and about the loading and stowing the cargo of the said last mentioned ship on board the same; and although the defendant then and there accepted and acted upon the said last mentioned retainer, yet the defendant, not regarding his said last mentioned promise, did not use due care or attention, skill or diligence in and about the loading and stowing the cargo of the said last mentioned ship or vessel, in and on board the same, on the occasion aforesaid, but on the contrary thereof then and there so carelessly and negligently, unskillfully, and improperly superintended and directed the loading and stowing of the freight or cargo of the said last mentioned ship or vessel, and caused the same to be loaded and stowed on board the same in so careless, unskillful and improper a manner, that by reason thereof the said last mentioned ship or vessel could not contain or hold as much freight or cargo as the same would otherwise have been reasonably capable of holding and containing, and otherwise might and would have held and contained; and the said plaintiff was then and there compelled to despatch the last mentioned ship or vessel on her said voyage with a much smaller cargo than he otherwise might and would have had on board the said last mentioned ship, and was then and there obliged to Agents. tons weight of goods decline to receive on board thereof divers, to wit, which he otherwise might and would have taken on freight in the said last mentioned ship or vessel; and the plaintiff, so being the owner of the said last mentioned ship or vessel, thereby then and there lost and was deprived of the gains and profits which would have otherwise arisen to him from having a full cargo in and on board of the said last mentioned ship or vessel, amounting, in the whole, to a large sum of money, to wit, dollars; and was and is by means of the said last mentioned premises, otherwise greatly injured and damnified, to the plaintiff's damage of dollars, and therefore he brings his suit, &c. 9. Against a Shipping Broker, the Proprietor of a Warehouse, for not forwarding Plaintiff's Goods by a Vessel proceeding to another port. For that, whereas, the said defendant, before, and at the time of the making of his promise hereinafter mentioned, to wit, at said county, was a forwarding. agent, and was the proprietor of, and kept a warehouse, for the reception of goods intended to be forwarded and sent from a certain place, to wit, the port of Cleveland, to a certain place, to wit, Buffalo, by a vessel proceeding from the port of Cleveland to Buffalo, and for keeping such goods until the same should be delivered by the defendant, within a reasonable time then following, to the master or crew of such vessel, to be shipped on board such vessel for the purpose of the same being forwarded and conveyed thereby as aforesaid, for reward, to the defendant in that behalf; and thereupon heretofore, to wit, on the 16th day of November, A. D. 18-, at [venue] in consideration that the said plaintiff, at the request of the defendant, would cause to be delivered to the defendant, at his said warehouse, certain goods, to wit, 1 packing case, 4000 plants, 4000 shrubs, and 4000 roots, of the plaintiff, of great value, to wit, of the value of 100 dollars, to be by the said defendant kept in the said warehouse until the same should be delivered by him within a reasonable time then following, to the master or crew of a ship or vessel about to proceed from the port of Cleveland aforesaid, to Buffalo, for the purpose of the same being therein carried and conveyed from the port of Cleveland to Buffalo, for reward to the defendant in that behalf, the defendant undertook, and then and there promised the plaintiff, that he, the defendant, would, within a reasonable time next after his receipt of the said goods as aforesaid, deliver the same to the master or crew of such vessel for the purpose aforesaid; and although the defendant then and there received the said goods, and such ship or vessel did, within a reasonable time then and there following, proceed from the said port of Cleveland, to Buffalo, and the said defendant could, and might, and ought to have delivered the said goods to the master or crew of such ship or vessel for the purpose aforesaid, and such reasonable time hath elapsed, yet the said defendant, not regarding his said promise, did not, nor would, within such Agents. reasonable time, deliver or cause to be delivered, the said goods to the master or crew of such ship or vessel for the purpose aforesaid or otherwise, and wrongfully and carelessly kept and detained the same in his said warehouse for a long and unreasonable time, to wit, two months, and by reason of the premises the said goods, being of the value aforesaid, were not carried in or by the said ship or vessel, and perished, and became, and were of no use or value, and the said plaintiff thereby lost divers gains and profits which otherwise might and would have accrued to him from the sale thereof, and was and is otherwise damnified, to wit, at said county, to the damage of the plaintiff of 100 dollars, and therefore he brings his suit, &c. 10. Declaration against the Payee of a Bill of Exchange (drawn by the plaintiff on a third person, and indorsed by defendant) for not taking up the Bill with Money paid to him by the plaintiff for that purpose, whereby the plaintiff was sued on the Bill. For that, whereas, heretofore, to wit, on [&c.] at [&c.] in consideration that the plaintiff, at the request of the defendant, had then and there delivered to him a certain sum of money, to wit, the sum of dollars, of the plaintiff, for the purpose of taking up and discharging a certain bill of exchange in writing, bearing date [&c.], and made and drawn by the plaintiff upon, and accepted by one J. W., whereby the plaintiff required the said J. W. to pay, two months after the date thereof, to the said defendant or order, the sum of dollars, value received, and which said bill of exchange had been, and was indorsed by the defendant, he, the said defendant, undertook, and then and there promised the said plaintiff to take up and discharge the said bill of exchange, the said sum of dollars, so delivered to the defendant, being sufficient for that purpose, when the same bill should become due and payable; and although the said bill of exchange afterwards, to wit, on [&c.] became due and payable, whereof the defendant then and there had notice, yet the defendant, not regarding his said promise, did not, nor would then and there take up or discharge the said bill of exchange when the same so became due and payable, or at any time afterwards, although often requested so to do, but wholly refused and neglected so to do, and by reason thereof, the said plaintiff afterwards, to wit, on [&c.] at [&c.] was sued in an action brought by the holder of the said bill, to wit, one against the plaintiff in the said court here, upon the said bill for the recovery of the said sum therein specified, and was obliged to pay the same, together with the costs of the said action, in the whole amounting to a large sum, to wit, plaintiff incurred a great expense, to wit, dollars, and thereby also the dollars, in defending the said action, to wit, at [&c.] [Add common counts as ante, p. 216.] Agents. 11. Declaration against an Agent, on his implied promise that he had authority from his Principal to sell goods to the plaintiff.(d) For that, whereas, heretofore, to wit, on [&c.] at [&c.] in consideration that the plaintiff, at the defendant's request, would agree to purchase from one E. F., through the agency of the defendant, the defendant then and there representing to the plaintiff that he, the defendant, was the agent of the said E. F. in that behalf, certain goods, to wit, [&c.] at a certain price, to wit, [&c., stating the terms of contract,] the defendant then and there undertook and promised the plaintiff that he, the defendant, had full and competent power and authority from the said E. F. to sell and dispose of the said goods to the plaintiff on the said terms; and the plaintiff avers, that he, confiding in the defendant's promise, did then and there agree, through the defendant's agency, to buy the said goods of the said E. F. on the terms aforesaid, and was always ready and willing to accept and pay for the same on the terms aforesaid, and then and there requested the said E. F. to deliver to him, the plaintiff, the said goods upon the said terms, yet the defendant disregarded his promise, and deceived the plaintiff in this, to wit, that the defendant had not, at the time of his said undertaking, or afterwards, power or authority from the said E. F. to sell the said goods to the plaintiff on the said terms, whereby the said agreement became, and was void, and by reason thereof, and of the said E. F.'s refusal to deliver the said goods to the plaintiff on the terms aforesaid, the plaintiff hath been deprived of the advantages that would otherwise have accrued to him from the completion of the said agreement, to wit, at said county. [State any other special damage that may have accrued to plaintiff.] 12. Declaration by a Principal against his del credere Agent, on his guaranty.(e) For that, whereas, heretofore, to wit, on [&c.] at [&c.] in consideration that the plaintiff, at the request of the defendant, would retain and employ him, for commission and reward to him in that behalf, to sell and dispose of certain goods, to wit, [&c.] of the plaintiff, of great value, to wit, dollars, for the plaintiff, he, the defendant, then and there promised the plaintiff to endeavor to sell and dispose of the said goods for the plaintiff, and to be responsible to him for the price of the same when the same should become due on such sale thereof, as aforesaid; and the plaintiff avers, that he did then and there retain and employ the defendant, upon the said terms, to sell and dispose of the said goods for the plaintiff, and the defendant then and there sold and disposed of the said goods for the plaintiff, [to wit, to one E. F.,] for a large sum of money, to wit, dollars, and although the credit and time of payment for (d) See form, &c. 25 Eng. C. L. Rep. 514. (e) See Chitty, jr., Contract, 2d ed., 171; Theob. Pr. & S. 64; 4 M. & Sel. 566. |