1818. BARING against CORRIE. his broker, and if the defendants should succeed, it would not be safe for any merchant ever hereafter to employ a broker: for the latter might, by delivering to the buyer a false note, defeat the rights of his principal altogether. It is argued, indeed, that there are other facts in this case from which it is to be inferred that the plaintiffs reposed a more than usual confidence in Coles and Co., and for this purpose that part of the case was relied upon which states that they were employed by the plaintiffs as their brokers, not only to sell for them the several goods imported into this country, but also to receive, when due, the price of such goods from the buyers. But inasmuch as this fact applies only to the receipt of the price of goods sold by them as brokers, it seems to me that that fact does not alter the case. But in what situation did the defendants stand in respect to Coles and Co., and what did they omit to do? They knew that Coles and Co. acted both as brokers and merchants, and if they meant to deal with them as merchants, and to derive a benefit from so dealing with them, they ought to have enquired whether in this transaction they acted as brokers or not; but they make no enquiry. They had the name of the ship in which the goods had been imported, and they might have made enquiries into the circumstances of the case, if they had not chosen to remain in ignorance. There is, therefore, a clear omission on their part, and they do not stand in a situation so completely free from blame as the plaintiffs do. There is another circumstance, which shews that if they did not know that Coles and Co. were acting as brokers in this case it was because they chose not to know it. It appears that they received a sale note, and were not required to sign a bought bought note. Now without entering into the question whether or not, under such circumstances, the bargain could be enforced, it is quite sufficient to say, that the ordinary course of dealing was not pursued, and that enough appears to shew that the defendants negligently abstained from making those enquiries which they ought to have made. I think, therefore, that they ought not to be allowed the set-off which is claimed; and my opinion is founded on the difference between the characters of factor and broker, and on the plain distinction between the cases cited and this. For even admitting it to be true that where two persons, equally innocent, are prejudiced by the deceit of a third, the person who has put the trust and confidence in the deceiver should be the loser, I think the defendants are the persons who have in this case placed a more than usual confidence in Coles and Co., and that they must bear the loss occasioned by the act of the latter. BAYLEY J. I am entirely of the same opinion. This is an action brought by a merchant, to recover the price of his own goods, and he ought therefore to succeed, unless payment, or something equivalent to it, appears to have taken place. The demand, however, is resisted on the ground that the defendants, who were buyers of the goods, did not purchase them of the plaintiffs, but of Coles and Co., and that they have a counter-demand against them, which they are entitled to set-off against the price of the goods. A proprietor, generally speaking, is entitled to receive the price of his own goods, unless, by improper conduct on his part, he has enabled some other person to appear as proprietor of the goods, and, by that means, to impose VOL. II. L on 1818. BARING against CURRIE 1818. BARING against CURRIE. on a third person without any fault on the part of that person. That is the true meaning of the rule laid down in Hern v. Nichols. (a) There arise then three questions; first, did the plaintiffs enable Coles and Co. to appear as proprietors of the goods, and to practise a fraud upon the defendants? secondly, did Coles and Co. actually practice a fraud? and thirdly, did the defendants use due care and diligence to avoid such fraud? All these questions must, under the circumstances of this case, be answered against the defendants. It appears that Coles and Co. were both brokers and merchants, and that they on the 27th June, 1815, were empowered to sell the goods in question. They delivered to the plaintiffs a sold note exactly in the proper form, supposing them to have sold in their character of brokers; and they delivered to the defendants a bought note, exactly suited to the case of their having sold as brokers, without having disclosed the name of the seller. If it were even doubtful whether Coles and Co. sold as merchants or not, there was at least enough to have induced the defendants to make inquiry. For, supposing them to sell in their character of brokers, it was not necessary for them to take a counter-note from the defendants; but, if they had sold as merchants, that would be necessary. When, therefore, they delivered only a sale note, and required none in return, that ought to have raised a strong presumption in the minds of the defendants, that the sale was in their character of brokers. And there is nothing inconsistent in that view of the case: for Coles and Co. do not say that they sell the goods as their own, and the defendants ask no questions on that sub(a) Salk. 289. ject. ject. Then, on the 3d of July, comes the delivery order signed by the plaintiffs: at that time, therefore, the defendants must have known that the plaintiffs were parties concerned, and might have satisfied any doubts which they entertained upon the subject. It is besides to be observed that the plaintiffs did not trust the brokers with either the muniments of their title, or the possession of the goods, as was done both in the case of Rabone v. Williams, and that of George v. Clagett. There is another circumstance by which the defendants might easily have ascertained whether Coles and Co. acted as brokers or not. According to the usual course of dealing, a broker is bound to put down in his book an account of the sales made by him in that capacity, and in fact that was done in this case; so that if the defendants had asked to see the book, they would instantly have discovered whether Coles and Co. acted as brokers or not. I think, therefore, that it appears from these circumstances, the plaintiffs did not by their conduct enable Coles and Co. to hold themselves out as the proprietors of these goods, and so to impose on the defendants; that the defendants were not imposed upon, and even supposing that they were, that they must have been guilty of gross negligence. Besides, when Coles and Co. stood at least in an equivocal situation, the defendants ought, in common honesty, if they bought the goods with a view to cover their own debt, to have asked in what character they sold the goods in question. I therefore cannot think that the defendants believed, when they bought the goods, that Coles and Co. sold them on their own account; and if so, they can have no defence to the present action. The course of dealing, it appears, was for the brokers to receive for 1818. BARING against CURRIE, 1818. BARING against CURRIE. the plaintiffs the price when due; if therefore the defendants had remained ignorant of the state of things, till after that period had arrived, the case might have been different; but, before that time arrived, it appears that they were distinctly informed, that the plaintiffs were the proprietors of the goods. There must therefore be judgment for the plaintiffs. HOLROYD J. I am of opinion, that the defendants have not any right of set-off in this case. A factor, who has the possession of goods, differs materially from a broker. The former is a person to whom goods are sent or consigned, and he has not only the possession, but in consequence of its being usual to advance money upon them, has also a special property in them, and a general lien upon them. When, therefore, he sells in his own name, it is within the scope of his authority: and it may be right therefore, that the principal should be bound by the consequences of such sale; amongst which, the right of setting-off a debt due from the factor is one. But the case of a broker is different; he has not the possession of the goods, and so the vendee cannot be deceived by that circumstance; and besides, the employing of a person to sell goods as a broker does not authorize him to sell in his own name. If therefore he sells in his own name, he acts beyond the scope of his authority, and his principal is not bound. But it is said, that by these means, the broker would be enabled by his principal to deceive innocent persons. The answer however is obvious, that that cannot be so, unless the principal delivers over to him the possession and indicia of property. The rule stated in the case in Salkeld must be taken |