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![handle is hein.slavery/ssactsengr0557 and id is 1 raw text is: 886
WARING V. FAVENCK
1 CAMP. 86.
Garrow and Pooley for the plaintiff.
The Attorney-General and Park for the defendants.
[Attornies, Glynes and Gatty.]
WARING AND OTHERS v. FAVENCK AND OTHERS.
(If goods are bought by a broker, who does not mention his principal until he himself
has become insolvent, the principal cannot set-off the price of the goods against
a debt due to him from the broker, but is still liable to the vendor.)
[Explained, Armstrong v. Stokes, 1872, L. R. 7 Q. B. 598.]
Assumpsit for goods sold and delivered. Plea, the general issue.
In June last the plaintiffs employed Messrs. Kymer and M'Tagart as brokers,
to sell for them 62 bags of coffee. They [86] sold the whole of it, accordingly to
Messrs. Kenyon and Son. The latter were likewise brokers, and actually bought
this coffee for Messrs. Favenck and Co. the defendants. At the time of the sale,
however, Kenyon and Son did not mention that they were purchasers for other
persons ; and until after they had become bankrupts, it was not known who their
principals were. Kymer and M'Tagart had at first entered in their books, Bought
of Waring and Co. 62 bags of coffee, &c. on account of Kenyon and Co.-they then
added, For Favenck and Co. Kenyon and Son, at the time of their bankruptcy,
which happened before the sum to be paid for the coffee was due, were indebted to
the defendants to a greater amount.
The Attorney-General contended, that under these circumstances, the plaintiffs
had no right to recover in the present action, as the defendants were entitled to set-
off the price of the coffee against the debt due to them from Kenyon and Son. Had
the credit been originally given to the defendants, or had they been mentioned as
the principals before the insolvency of Kenyon and Son, he allowed they would have
been still responsible ; but, in fact, they were left to suppose, as no further enquiries
were made by the plaintiffs or their brokers, that Kenyon and Son alone would be
looked to for payment, and were thus induced to allow a large balance to remain
in their hands, which they would otherwise have withdrawn.
[87] Park, for the plaintiffs, denied that the doctrine of set-off had ever been
carried further than in George v. Clagget (7 T. R. 359), where it was held, that if a
factor sells goods as his own, and the buyer knows nothing of any principal, the
buyer may set-off any demand he may have on the factor against the demand for
the goods made by the principal. But it was impossible that there should be any
right of set-off as between the buyer and his own broker.
Lord Ellenborough considered, that as the purchase had been made for the
defendant by their agents, it was the same as if it had been made directly by the
defendants themselves; and that this was, therefore, the common case of goods
sold and delivered.
Verdict for the plaintiffs.*
Park and Richardson for the plaintiffs.
The Attorney-General and Garrow for the defendants.
[Attornies, Sherwood and Winter and Co.]
[88] EDMISTON V. WRIGHT, BART.
(From a general power of attorney granted to one of two partners, the other can
derive no authority. If an order is given to an agent to deliver up anything
of which he had the management, his agency respecting it ceases as soon ais
he has delivered it up : and if he afterwards lays out money upon it for the
benefit of the owner, this is a voluntary payment.)
Assumpsit for money paid. Plea, the general issue.
The defendant had a gang of negroes let out in Jamaica. A Mr. Leckey, the
plaintiff's partner, was his attorney on record in that island, and he had the manage-
board a ship, to be carried to a foreign port, the receiving the goods being a sufficient
consideration to found a promise to pay the freight immediately ; but decided, that
such money cannot be sued for, or recovered, by the name of freight.
* Vide Rabone v. Williams, and Stracey v. Day, 7 T. R. 360, 361 ; Scrimshire
v. Aldertov, 2 Stra. 1182; Escot v. Milward, sittings after M. T. 24 Geo. TII.; 1 Esp.
Ni. Pri. 106 ; Kyrner v. Suwercropp, post.](ViewImageLocal?handle=hein.slavery/ssactsengr0557&div=1&collection=&method=preview&ext=.png&size=3)