FACTORY PROPRIETOR v. AGENT.

Otago Witness, Issue 3004, 11 October 1911, Page 8

FACTORY PROPRIETOR v. AGENT.

JUDGMENT FOR PLAINTIFF. Mr W. R. Hascldcn, S.M., gave the following judgn ent in the case of Jonas Diimbleton, factory proprietor at Otajruta, v. J. B. Mao Ewan and Co.' (Limited), in the Magistrate's Court on Monday, Ist inet. Mr Inder appeared for the plaintiff, and Mr Woodhouse for the defendant.

The plaintiff saya that during the year 1910-1911 the defendant company acted as his agents in consigning and selling his output of cheese. That he delivered to the defendants 199 cwt of cheese for, consignment j to London and sale there, per s.s. Arawa. i That en the 17th January, 1911, the plaintiff instructed the defendants to " stop the sale of the» next shipment, "meaning the shipment by the sa Arawa. That the defendants neglected to carry out such instructions, and sold the cheese at 57s 6d per cwt.. whereas if the plaintiff's instructions had been carried out the cheese would have realised 61s per ewt. The plaintiff therefore claims £34 16s 6d. There was no written contract - or agreement between the parties. I gather from the evidence that the practice was for the plaintiff to deliver cheese to the defendants, and the defendants advanced to the plaintiff 90 per cent., or thereabout, of the estimated value; shipped the cheese in their own name to their Ijondon agent for sale, and drew on the London house for the amount of the advance and all expenses. If the chees9 realised less than the amount of the advance and the expenses the defendants would claim the shortage from the plaintiff. . The defendants had all the documents of title in their own name, or that of their; a gents. They had no doubt a lien upon the goods for the amount of their advance and expenses, but in the absence of a special agreement to that effect they had no absolute right of disposal irrespective of the instructions of the plaintiff. On the 17th January, 1911, the plaintiff wired from Otamita to the defendant in Dunedin: " Not satisfied Ruahine return, stop sale next shipir-ent." On the same day the defandants wrote in reply to the plaintiff: " We have your wire reading 'not satisfied Ruahine return, stop sale next "shipment." Before cabling this Home we should be glad to have your confirmation,' andi also to-know how long you wish us to have the sale of the next shipment held up. Immediately on receipt of this information we will send a cable, and presume you will be prepared to accept our debit for same" The plaintiff, who lives three miles from the post office, did not get this letter until the 20th January, and he at once wrote: "I now confirm wire sent ' not satisfied Ruahine return. Stop sale next shipment.' After receiving your letter of the 4|jb>January I was very much surprised that Clements had sold our first shipment, as you know everything points to a rise at Home... I am quite prepared to pay cost of cable, and I think you ran no risk in cabling after yoa received my wirfe, as I am not in the habit of sending faked telegrams. Please arrange with Clements to hold next shipment a fortnight." The defendants received this letter on the 21st January, and- at once cabled to stop sale, but received a reply that the cheefefc had been sold on the 19th January. A fortnight later another shipment of the plaintiff's cheese was sold in London by another firm at an advance of 3d per cwt. In April and May there was some evidence that other cheese said to be of a similar quality was sold at an advance of 3s- 6d per cwt. I think 1 may assume that there was a rise in price in April and May, but the precise increase in value of plaintiff's cheese it is impossible now to ascertain. The defence is threefold: —First, that there was an absolute and irrevocable right vested in the defendants to sell the cheese as and when they pleased. Second, that if not, and if the plaintiff had a right to give instructions as to time of sale, or delay such sale he did not give reasonable and definite instructions, and the defendant took reasonable precautions in asking for confirmation of the telegram and for definite time of postponement of sale. Third, that the damages proved are infinitesimal, and cannot exceed 3d per cwt, which was the advance in price obtained by plaintiff a fortnight later for his cheese. As to the first point the law is very plainly laid down in the cases Smart v. Saunders, 17 L.J.C. p 258; De Comas v. Prost, 3 Moore P.C., N.S. 158. A factor for sale cannot sell the goods of his principal in the exercise of a sound discretion, contrary to his principal's order for the purpose of re-imbursing _ himself for advances made to the principal after the consignment. There is not in such # a case an authority coupled' with an interest, which is irrevocable, although advances made subsequently to the consignment

might be a good consideration for an agreement that the original revocable authority to seW should become irrevocable. In Bowstead on AJrtncy (443446) these cases and also the caseTSal'eighi v. Atkinson (6 M and W, 670) are cited for the rule that the authority of an agent is not irrevocable merely because- he has an interest in the. exercise of it or has a special property in or lien for advances upon the subject matter thereof, the authority not being given expressly for the purpose of securing such interest or advances. „.'.. ' In De Comas v. Prost the judgment of the Privy Council says: "It appears to their Lordships that mere advances made by a factor whether at the time of his employment as such, or subsequently, cannot according to the doctrine of that case, have the effect of altering the revocable nature of the authority to sell, unless such advances are accompanied by and mad© the consideration for an . agreement that the authority shall not be revocable." This ground of defence must therefore fail. As to the_ second point, I think the defendants did not act promptly and reasonably in the matter. i Suoh instructions and busi-' ness generally are conducted .on the faith in telegrams, and there is little more reason in suspecting the genuineness of a telegram than there is in suspecting the genuineness of a . letter. With a fluctuating market promptness is the very essence of such business, and to reply as defendants did 1 by post to such a telegram as the plaintiff sent.does not seem to me to be businesslike or reasonable. The absence of the defendants' manager at the time is probably the reason, but a city business man may be expected to know that his country correspondents letters may be for days in -a country post office, while a telegram would be specially delivered, if instructions were given. It is true that the plaintff's instructions were to stop sale, and no definite time was mentioned, but that need not have hindered 1 the defendants from cabling. to London stopping sale till further instructions. The excuse as to cost of caibiing seems paltry in a transaction of- such magnitude. The defendants must have known that the sale in London might take place any moment and that • promptness was necessary. I think this second line of defence, therefore fails.

As to damage, there is nothing by which I can measure the aimount, except that a fortnight later the plaintiff's cheese brought 3d a cwt advance. This fact indicates also that the plaintiff would. hay 9 sold the Arawa shipment in a'fortnight if his instructions to the defendants; had been carried 1 out, but in any event I cannot calculate the damages evidence that iri the following April and May other people's cheese fetched 3s 6d a cwt more. , .The plaintiff's cheese was first grade, but it was just 88 per cent., which barely admitted it into that grade. There must have been other first grade cheese in the market "'-ft' a better quality. I cannot assess the damage at aMiighel" scale than 3d per qwt, and as against this there would be insurance on advance storage and insurance. • I give judgment for plaintiff for 40s and costs, as on a claim of that amount. Tf either side desire to appeal leave will be granted.