business or address of the person to whom they intended to sell. A warehouseman who uses due diligence is not liable to the consignor as for a conversion, in case of misdelivery, where the misdelivery is superinduced by the laches of the consignor, and the question of diligence is one for the jury Bush v. St. Louis, etc., 3 Mo. App. Rep., 62. See ante, p. 295 note. Where a box, improperly directed, was delivered to a railroad company for transportation, and was safely carried to its destination, and there, after having been securely kept for two months and due diligence exercised to ascertain the consignee, was delivered by reason of the improper direction to the wrong person, the company was not liable for the loss: Lake Shore and Mich. South. R. R. Co. v. Hodapp, 83 Penn. St. R., 22. Defendant was captain of one of plaintiff's barges, and by mistake delivered a load of coal to the wrong person. The general agent of plaintiffs discovered the error and undertook to (C.A.) Q.B.D. collect the price from the person who received the coal, but failed and sued defendant. Held, that if defendant was thrown off his guard, or suffered by the acts of the general agent or by his delay in informing him of the error plaintiffs could not recover: Philadelphia, etc., v. O'Donnell, 34 Leg. Int., 194, 12 Phila. Rep., 213, Com. Pl. An allegation that a common carrier agreed to deliver to E. T. Learned” certain goods, is supported by evidence that the carrier clearly understood him to be the person for whom the goods were intended, although the name marked thereon was "E. D. Learned:" Mahon . Blake, 125 Mass., 477. While property remains in possession of a fraudulent vendee, the sale may be avoided by the vendor, but if the fraudulent vendee sell and transfer the same to an innocent third person, for valuable consideration, such sale will vest the purchaser under it with the title which the claim of the original vendor cannot defeat: Hawkins v. Davies, 8 Baxter (Tenn.), 500. 5161 [6 Queen's Bench Division, 516.] Feb. 28, 1881-(C.A.), Q.B.D. *MCCOLLIN V. GILPIN and Others. Company, Loan to- —Agreement signed by Directors-Whether Directors personally liable. By agreement between the T. Company and the plaintiff, the defendants, describing themselves as "we the undersigned, three of the directors," agreed to repay £500 advanced by the plaintiff "to the company," and assigned to the plaintiff as security for the advance certain “machines and tools," which were the property of the company: Held, after hearing parol evidence to explain the ambiguity of the agreement, that the defendants were personally liable to repay the £500. APPEAL by the defendants from the decision of Lush, J., on further consideration ('), that the defendants were personally liable to the plaintiff upon the following agreement: "Agreement between the Tunbridge Iron and Boiler Works Company, Limited, of the one part, and William (') 5 Q. B. D., 390; ante, p. 348. McCollin v. Gilpin. 1881 (C.A.) Q.B.D. McCollin, Esq., of Hull, on the other part. In consideration for the advance of the sum of £500 paid by the said William McCollin, Esq., to *the said company, we, [517 the undersigned, three of the directors of the said company, hereby agree to repay the said sum of £500, with interest at the rate of 5 per cent. per annum, in six calendar months from the date hereof. And we do hereby assign to the said William McCollin, as security for the said advance of £500, the machines and tools as invoiced to him 3d June, 1878, the machines to be delivered in the same condition for working as they are now. And the said William McCollin hereby agrees not to remove the said machines and tools from their present position, except in default of the repayment of the said sum of £500, with interest at the rate of 5 per cent. per annum, at the expiration of six months from the present date. "As witness our hands this 5th day of June, 1878." This document was signed by the defendants and by the plaintiff, but not sealed with the seal of the company. The machines and tools therein mentioned were the property of the company. The plaintiff having sued the defendants for money lent, the action was tried before Lush, J., without a jury, at the Leeds spring assizes, 1880, and he, after further consideration, gave judgment for the plaintiff, from which the defendants appealed. Wills, Q.C., and Lockwood, for the defendants, cited Magee v. Atkinson ('); Hall v. Ashurst (); Agar v. Athenæum Life Insurance Company(); Burrell v. Jones ('); Lindley on Partnership, vol. i, p. 263; Brice on Ultra Vires, pp. 637, 639. Cave, Q.C., and Dodd, for the plaintiff, cited Paice v. Walker (); Miller v. Thompson ('); Lindus v. Melrose ('); Kay v. Johnson (); Des Landes v. Gregory ('). THE COURT (Bramwell, Baggallay, and Brett, L.JJ.,) referring to Macdonald v. Longbottom (") and Acebal v. Levy ("), observed *that parol evidence was admissible [518 and desirable to explain the ambiguity of the agreement. In preference, however, to ordering a new trial, they directed certain witnesses on either side to attend for examination (1) 2 M. & W., 440. (2) 1 C. & M., 714. (7) 3 H. & N., 177; 27 L. J. (Ex.), 326. (*) 2 H. & M., 118. 1881 Bowyear v. Pawson. Q.B.D. before the court itself, and after hearing such witnesses, gave judgment for the plaintiff. Appeal dismissed. Solicitor for plaintiff: E. Jukes, for Laverack, Hull. Solicitors for defendants: Torr & Co., for Wells & Hind, Nottingham. See ante, pp. 351, 567 notes. He is not liable upon the contract, but only for fraud, or upon an implied warranty of authority: Noe v. Gregory, 7 Daly, 283. The plaintiff must show affirmatively his want of authority: Noe v. Gregory, 7 Daly, 283; Algie . Wood, 43 N. Y. Super. Ct. R., 46. 540] [6 Queen's Bench Division, 540.] *BOWYEAR V. PAWSON. Set-off-Liability of Surety-Debt due to Principal. Action on a covenant to pay all liabilities which the plaintiff might incur under a deed of assignment made between the plaintiff and other parties. The defendant pleaded that the covenant was the joint and several covenant of himself and one Wilson, and that before action the plaintiff was indebted to Wilson in an amount exceeding the plaintiff's claim against the defendant; and that Wilson had assigned the plaintiff's debt to himself and the defendant in equal shares as tenants in common. As to one half of the plaintiff's claim the defendant claimed to set off one half of the debt so assigned, and as to the other half, the defendant said that he was entitled to be exonerated by his co-surety Wilson, and to call upon him to contribute in equal shares to the payment of the plaintiff's claim, and was entitled to set off the share remaining vested in Wilson against this part of the plaintiff's claim: Held, by Watkin Williams and Mathew, JJ., that the defence was no answer to the plaintiff's claim. DEMURRER to a statement of defence by way of set-off and counter-claim. The statement of claim alleged that by deed of the 6th of June, 1879, the defendant covenanted with the plaintiff to pay and discharge all liabilities which the plaintiff had incurred, or might thereafter incur or be liable for, under a deed of arrangement of the 20th of August, 1878, made between Myers Brothers and the plaintiff. It alleged that the plaintiff had incurred such liabilities and a default by the defendant in paying and discharging the same. The material parts of the statement of defence were as follows: 2. The deed of the 6th of June, 1879, mentioned in paragraph 1 was made between the plaintiff and the defendant, together with Samuel Wilson and John Vowler, and was for the purpose, amongst other matters, of releasing the plaintiff from certain liabilities incurred by him on behalf of a partnership then existing between him and Vowler. The Q.B.D.. Bowyear v. Pawson. 1881 consideration for this release was that the plaintiff had agreed to retire from the business, leaving the same to be carried on by Vowler alone. 3. The defendant accordingly, with Wilson and Vowler, entered into a joint and several covenant to pay and [541 discharge all the claims and liabilities of the plaintiff as men tioned in the statement of claim. 8. By way of set-off and counter-claim the defendant says that before the commencement of this action the plaintiff was indebted to Wilson in the sum of £811 paid by him for the plaintiff at his request in respect of a debt due from the plaintiff to the Royal Exchange Assurance Company. And by an indenture made on the Sth day of November, 1880, Wilson, in consideration of the payment to him by the defendant of the sum of £371 6s. 2d., assigned the said sum of £811, with interest, to himself and the defendant in equal shares as tenants in common. 9. In respect of a moiety of the plaintiff's claim, the defendant says that the share of the said sum of £811 with interest so assigned to him, is in excess of a moiety of the plaintiff's claim. In respect of the other moiety of the plaintiff's claim, the defendant says that he is entitled to be exonerated by his co-surety, Wilson, and to call upon him. to contribute in equal shares to the payment of the plaintiff's claim, and says that the share of the sum of £811 and interest remaining vested in Wilson is in excess of the other moiety of the plaintiff's claim. 10. The defendant claims, therefore, to set off the two moieties of the said sum of £811 with interest, against the two moieties of the plaintiff's claim, if any. March 15. Gore, for the plaintiff: This is an attempt made after action to set off claims due from the plaintiff to another person against the plaintiff's demand, and there is no authority, either in law or equity, for such a course. Castle, for the defendant: The debt due from the plain-. tiff has been assigned to the defendant and Wilson. As to one moiety of this, the defendant could, on notice of the assignment, bring an action, but he could plead an equitable set-off without notice. As to this half, Wilson is in the position of a trustee for the plaintiff, and Cochrane v. Green () is an authority that where the defendant, through a trustee, has a money demand against the plaintiff, which but for the intervention of the trustee would have constituted a good legal set-off, he can plead it as an [542 (1) 9 C. B. (N.S.), 448; 30 L. J. (C.P.), 97. 1881 Bowyear v. Pawson. Q.B.D. equitable set-off. As to the other half, suppose the defendant pays in this action the demand, he will lose his remedy against Wilson, who will claim that the action should have been defended on the ground of Wilson's set-off against the plaintiff Bechervaise v. Lewis ('). The surety when sued is entitled to shelter himself behind his principal: In re Moreley Green Coal and Coke Co., Limited, Barrett's Case (No. 2) (2). Gore, in reply: In Bechervaise v. Lewis (') there were three elements which are wanting here. The plaintiff there withdrew the very money which was intended to meet the liability for which the defendant made himself surety. The claim and set-off arose out of the same transaction, and in this case it is not a question of set-off, as the release may contain something which raises a claim to unliquidated damages: Hardcastle v. Netherwood (); Morley v. Inglis ("); Pellas v. Neptune Marine Insurance Co. (†). Cur. adv. vult. March 18. The judgment of the Court (Watkin Williams and Mathew, JJ.,) was delivered by MATHEW, J.: In this case, the plaintiff, by his statement of claim, sought to recover from the defendant the sum of £684 14s. 5d. with interest, under the covenant of the defendant contained in a deed of the 6th of June, 1879. The defendant by his statement of defence, which has been amended by consent in the course of the argument, alleged that the deed of the 6th of June, was made between the plaintiff and the defendant, together with Wilson and Vowler, and was for the purpose, amongst other matters, of releasing the plaintiff from certain liabilities incurred by him on behalf of a partnership then existing between him and Vowler, under the name of the Canning Town Ironworks Company, the consideration for the release being that the plaintiff had agreed to retire from the business, leaving the same to be carried on by Vowler alone; and in another paragraph, that the defendant accordingly, with Wilson and 543 Vowler, entered into a joint and several covenant to pay and discharge all the claims and liabilities of the plaintiff as mentioned in the statement of claim. Then, by way of set-off and counter-claim, the defendant said that before the commencement of the action the plaintiff was indebted to Wilson in the sum of £811, paid by him for the plaintiff at his request to the Royal Exchange Assurance (1) Law Rep., 7 C. P., 372; 2 Eng. Rep., 684. (*) 4 De G. J. & S., 756. (3) 5 B. & Ald., 93. |