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![handle is hein.slavery/ssactsengr0649 and id is 1 raw text is: CORNWAL V. WILSON
CORNWAL V. WILSON, July 23, 1750.
Plaintiff, a factor abroad, having exceeded the price limited for a purchase of hemp;
the defendant, who objected to the contract, but afterwards reshipped, and disposed
of some of it on a new risk, was ordered to account for the whole at the cost price.
(See the pleadings and decree, Supplement, p. 214.)
The defendant a merchant in London, sent orders to the plaintiffs merchants in
Riga, as his factors to buy him some hemp at a limited price: the plaintiffs exceeded
their bounds by the difference of £25, 2s. 6d. ; the hemp coming to England, the defend-
ant refuses the contract; but however disposes of it. The question was in what
manner the defendant should be accountable to plaintiffs 7
Lord Chancellor. There are some things in this case very particular. It is the
first case ever before me here arising between two merchants upon a contract of value,
to the amount of £3000 in the whole, including commissions, insurances, and charges,
to be heard on a question and dispute at first of about £25, and I hope, it will be the
last; they [510] being a valuable set of men, of an advantage to the nation; running a
risk for their own profit indeed, but greatly for that of their country; and it is hard
they should run a risk for such trifles. Though the price was limited, there was a
latitude left with regard to the freight; which the plaintiffs contract for immediately,
and ship immediately for England; and it is proved that the captain with whom they
contracted, might have had a greater freight than what he had agreed for with the
plaintiffs; which if the plaintiffs had been obliged to give, it would have made about
£50 difference. Defendant insists, the plaintiffs exceed their orders as factors, in which
they are not warranted; so that he is justified in refusing the contract, and turning it
on the plaintiffs themselves, making them principals: to prove which, merchants
have been examined, as they have been on both sides : and the result is, that if a factor
has not a general, but a limited authority to purchase at a certain particular price,
if he exceeds that, his principal is not bound to accept of that contract, and take those
goods; and reason agrees therewith. But it is sworn to be frequent among merchants,
that where the factor exceeds a small matter, the principal does not refuse that, but
takes it on himself, where there is a correspondence between them. But however
what merchants think fit to do in point of good nature, or to avoid a difference with a
factor long employed, that perhaps cannot make a rule among merchants : but possibly
there may be something that may make a rule, if on one part of the contract a factor
makes an exceeding of his orders, and on another part relating to the same goods a
saving, it will be just, not only for the merchant or principal to take the whole; but a
court of equity ought also to consider it so, and it would be very mischievous if other-
wise ; which is the present case ; the saving on the freight more than balancing the
excess on the prime cost of the purchase. But it is said, that these things are not to be
set against each other ; for that it is equally the duty of plaintiffs to get the freight
at as low a rate, even if they had pursued the orders as to the price ; which indeed
they ought: but that is not ad idem, nor an answer to the true state of the
transaction on the evidence ; for the plaintiffs seeing the price of the freight was
rising more than the price of the hemp was falling, had a right to take advantage
of the low freight : so that if it stood singly on that between a merchant and a factor
in a foreign country, the factor did right. But though I could incline to that, yet
the present case turns on the latter part of the transaction, what defendant himself
has done by taking these goods to himself, treating them as his own, not as factor for
plaintiffs, as he would have himself considered by the custom of merchants: as to
which it is sworn (and it is very true and reasonable) that a merchant here refusing
the goods sent over by his factor in a foreign country who exceeded the authority,
having advanced and [511] paid his money on these goods, may be considered as having
an interest in the goods as a pledge, and may act thereon as a factor for that person
who broke his orders, and may therefore insure these goods, as he has done; which
might be reasonable, as it was war-time. But what does he do afterward 7 The time
of arrival of the goods does not certainly appear ; for though Lloyd's list is of credit
among merchants, I cannot take it as evidence of this. The defendant unshipped
them : it is sworn, he acted with them as his own : he sells them : not by an absolute
sale, but the defendant should be at the expence of transporting these goods from
London to Portsmouth, and of the commission for delivering them, and of the insurance
1173
I VES. SEN. 510.](ViewImageLocal?handle=hein.slavery/ssactsengr0649&div=1&collection=&method=preview&ext=.png&size=3)