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the tenant;(a) and the principle of this decision holds whenever lands are let by a mere agent.(b)
66. Where goods are consigned by A. to B., the *former is considered in law as the agent of the latter, for the purpose of contracting for the carriage ; and therefore B., the consignee, must in general sue the party taking charge of the goods, and responsible for their safe delivery; and the reason of this is, that the delivery to the carrier is in law a delivery to B., in whom the property thereupon becomes impliedly vested (subject to the vendor's right of stoppage in transitu), except under special circumstances.(C) It must, however, be remembered that acceptance by the carrier is not an acceptance by the consignee.(d)
67. The above rule obtains in cases where the carrier is to be paid by the vendor and consignor (who is at law liable for the carriage) (e), the property being in the vendee. But where a bill of lading stated that the goods were shipped, and their freight paid by the consignor, it was held to establish a privity of contract between the consignor and shipowner, which would entitle the former to recover against the latter for non-delivery of the goods—the damages so recovered being held by the plaintiff' in trust for the consignee ;(g) and so, if there be a special agreement between the consignor and carrier, although payment of carriage or for booking the goods by the former would not be evidence of such *agreement ;(h) and where the goods are stated in the bill of lading to be shipped by
[ *50 ] order and on account of the consignor, and the freight is not paid by the shipper, it is clear that the former only is entitled to sue,
for the law recog. nizes the property as recognized by the bill of lading ;(i) and this is equally true if the goods were ordered by the consignee on an insurance being effected, and on the terms of three months' credit from the time of arrival, such arrival not constituting a condition precedent to the payment.(k)
68. We have seen that the reason why the consignee must in general sue the carrier in respect of goods delivered to him is, that the property therein vests by such delivery ; but delivery to the carrier cannot be held to be a delivery to the consignee, unless the latter party has expressly directed the sending of the goods by some particular conveyance, or at least
(a) Evans v. Evans, 3 A. & E. 132.b (b) Pigott v. Thompson, 3 B. & P. 147; Bowen v. Morris, 2 Taunt. 374; Israel v. Simmons, 2 Stark. R. 356. (c) Dawes v. Peck, 8 T. R. 330; Brown v. Hodgson, 2 Camp. 36; Per Lord Ellenborough, C. J., Griffin v. Langfield, 3 Camp. 254; Fragano v. Long, 4 B. & C. 219.0
(d) Per Parke, B., Johnson v. Dodgson, 2 M. & W. 656. (e) Moore v. Wilson, 1 T. R. 659; Coleman v. Lambert, 5 M. & W. 502; see Domett v. Beckford, 5 B. & Ad. 524, 525.e
\) Per Lawrence, J., in King v. Meredith, 2 Camp. 639 : and Dawes v. Peck, 8 T. R. 334.
(9) Joseph v. Knox, 3 Camp. 320. (h) Davis v. James, 5 Burr. 2680 ; Dawes v. Peck, 8 T. R. 333, 334; Per Gaslee, J.,
v. Hart, 4 Bing. 487. In Moore v. Wilson, 1 T. R. 659, such a contract must have been proved; see per Lord Denman, C. J., Gilbart v. Dale, 5 A. & E. 546;- Jacobs v. Nelson, 3 Taunt. 423, supra, n. (f).
(1) Brown v. Hodgson, 2 Camp. 36; 3 Id. 322, n. (a). (h) Fragano v. Long, 4 B. & C. 219.h. Eng. Com. Law Reps. 30. •Id. 3. JId. 10. Id. 29. (Id. 33. $Id. 31. hid. 10.
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the sending by some conveyance or other.(!) So, where a special property remains in the consignor as bailee ;(m) or the general property is not to pass until performance of some condition by the consignee, which is not per
formed by him ;(n) or if goods be sent for approval;() or the
*transaction be bottomed in fraud, so that there was no valid sale or transfer of property as between consignor and consignee;(P) in all these cases the former has the right of suit and not the latter.
69. The terms of the bill of lading will in general determine who is the proper party to sue the shipowner or carrier; the general rule being that the party to whom the goods are by that instrument appropriated should be plaintiff, so that, where the consignment by bill of lading is to A. for the use of B., the latter should sue ;(9) but, if the bill of lading express that the goods are to be delivered to the consignee for the consignor, and in his name, (the consignee having no property in them at the time of shipment), the consignor is the proper party to sue ;(n) and it must be observed, that there is nothing final and irrevocable in the nature of a bill of lading.(8) So that where the consignor, under such circumstances, indorses over and delivers the bill of lading, the indorsee thereupon acquires a property in the
goods as against the consignee ;(t) and a power to *transfer such [ *52 ]
property to a bonâ fide purchaser for a valuable consideration ; though, as between the consignor and consignee the question, whether the property passed will depend upon what the real contract was ;(u) and even where the right of property does pass by the indorsement, the contract is not transferred so as to enable the indorsee to sue upon the bill of lading in his own name.(x)
70. Where the agent of the shipowner, instead of a bill of lading, gave a receipt stating the goods to be received from the consignor for the consignee, it was held that the shipowner, having given his consent to treat the goods in his hands as the property of a particular party, was estopped from disputing that party's property in them;(y) but, in such a case, no appropriation can be complete so as to vest the property in the consignee, when the articles referred to are not on board the vessel in which they are intended to be consigned.(2)
(l) Coats v. Chaplin, 3 Q. B. 483;' Dutton v. Solomonson, 3 B. & P. 582 ; Hart v. Sattley, 3 Camp. 528.
(m) Freeman v. Birch, 1 Nev. & Man. 420.k (n) Brandt v. Bowlby, 2 B. & Ad. 932.? (0) Swain v. Shepherd; 1 Moo. & Rob. 223.
(P) Per Park, J., Duff v. Budd, 3 B. & B. 183;m but see Stephenson v. Hart, 4 Bing. 476. In both these cases the declarations were framed in case for the negligence, and not in assumpsit for the breach of contract.
(1) Per Best, J., Sargent v. Morris, 3 B. & Ald. 282 ;o Evans v. Marlett, 1 Lord Ray. mond, 271.
(r) Sargent v. Morris, 3 B. & Ald. 277; and see Coxe v. Harden, 4 East, 211. (s) Haille v. Smith, 1 B. & P. 563 ; Walley v. Montgomery, 3 East, 585 ; Coxe v. Harden, 4 East, 211; Ogle v. Atkinson, 5 Taunt. 759.P
(1) Mitchell v. Ede, 11 A. & E. 888. 903 ;9 Bruce v. Wait, 3.M. & W. 15. See Barrow v. Coles, 3 Camp. 92.
(u) Judgment, Jenkyns v. Usborne, 8 Scott, N. R. 521. (1) Thompson v. Dominy, 14 M. & W. 403; Sanders v. Vanzeller, 4 Q. B. 260." (y) Evans v. Nichol, 4 Scott, N. R. 43. (z) Bryans v. Nix, 4 M. & W.775; cited per Tindal, C. J., 4 Scott, N. R. 52. Eng. Com. Law Reps. 43. *Id. 28. 'Id. 22.mid. 7. Id. 13. oId. 5. ”Id. 1.
qId. 39. Id. 45.
71. If on the face of a charter-party under seal the master appears as owner, the remedy on such instrument must be in bis name, though not if he be expressed to be and execute as an agent merely.(a) Where a charter-party, not under seal, entered into with the captain of a vessel, contained a clause similar to that in ordinary bills of lading, for payment of freight generally, and *without specifying to whom ; it was held that the captain could not recover the amount thereof after demand by and pay
[ *53] ment to the owner.(b) But although the principal has in such cases always a right to interfere, the agent may, if this right be not exercised, sue in his own name on the bill of lading, or on the implied assumpsit to pay freight; and recovery in such action will bar the owner.(C). But the latter alone can sue on the contract implied by law for payment of demurrage, in the absence of any express stipulation relating thereto ;(d) and in order to give this right of action to the master, a special clause for such purpose must be inserted in the bill of lading.(e) The mortgagor and not the mortgagee of a ship is to be deemed the owner:(8) whilst the mortgagee has a distinct interest from the mortgagor to the extent primâ facie of the value mortgaged ;(h) but it has been held that accruing freight nevertheless passes to the mortgagee, who takes possession before the conclusion of the voyage.(i)
72. Lastly, exceptions to the general rule that the principal and not the mere agent should sue on a *contract, occur under the express provisions of different statutes ; by which commissioners of roads, cor
[ *54 ] porate bodies and companies chartered or otherwise,(k) are empowered to sue and
may be sued by their secretary, clerk or clerks for the time being, or by one of the directors named in the deed of settlement; but this power is limited to such contracts as they are authorized to make ; and the clerk, or other party empowered to sue, cannot, in such a case, resort to his public capacity to recover for work done by him in his private capacity (1)
(2) Ante, s. 55 ; Horsley v. Rush, cited 7 T. R. 209.
(c) Atkinson v. Colesworth, 3 B. & C. 649;s Shields v. Davis, 6 Taunt. 65 ;t Chitt. Jun. Plead. 93, n. (n).
(d) Evans y. Foster, 1 B. & Ad. 118;4 Brouncker v. Scott, 4 Taunt. 1. (e) Jesson v. Solly, 4 Taunt. 52. (g) Stat. 6 Geo. 4, c. 110, s. 45. (h) Per Parke, J., Irving v. Richardson, 2 B. & Ad. 196. See per Best, C. J., Dean v. M'Ghie, 4 Bing. 45.
() Dean v. M'Ghie, 4 Bing. 45 ;* Kerswill v. Bishop, 2 Cr. & J. 529, and cases there cited; Chinnery v. Blackburne, 1 H. Bla. 117, n.
(k) Stat. 3 Geo. 4, e. 126, s. 74. See Stat. 5 & 6 Will. 4, c. 69, s. 7; Per Bayley, J., Guthrie v. Fisk, 3 B. & C. 183 ;y Goody v. Penny, 11 Law Journ., N. S., Exch. 289; Skinner v. Lambert, Id. C. P. 237. See Í'imms v. Williams, 11 Law Journ., N. S., Q. B. 210.
(1) Curling v. Johnson, 10 Bing. 89.2
General Rule as between the Parties themselves, s. 73. Exceptions to the above rule, ss.
74–78. When the same Person is a Partner in several Firms, s. 79. Rule as to the Joinder of Partners in suing a Stranger to the Firm, ss. 80–82. When the Directors or Trustees of a Company may sue, s. 83. Whether a nominal or a dormant Partner should be joined, ss. 84, 85. Who should sue after a change in the Firm, ss. 86, 87. As between a corporate Body and a Member thereof, ss. 88, 89. As between a corporate Body and a Stranger, ss. 90, 91. How chartered and banking Companies may sue, ss. 92, 93.
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73. First, as between themselves :-The general rule is, that between partners, whether they are so in general or for a particular transaction only,
no account can be *taken at law ;(m) and therefore a partner can
not maintain an action against his copartner for goods sold,(n) work done,() for money had and received in connexion with a partnership transaction, (p) or for contribution towards a payment made under compulsion of law ;(9) and this disability exists, provided the party seeking redress be the real though not the nominal or ostensible partner ;(r) but the partnership must be actually formed and set agoing.(s) In accordance with the above, it has been held, that an attorney, who had been member of a dissolved company and employed subsequently to its dissolution, in defending actions brought against other members, could not recover from the latter his costs and charges so incurred, being himself liable to contribute thereto :(t) nor can a shareholder in a company recover on bills drawn by him on and accepted for the directors, for this is the case of one partner drawing on the
partnership concern, including himself ;(u) but if *a partner were [ *56 ]
to draw on other partners by name, and they were individually to accept, he might recover against them, because, by such an acceptance, a separate right is acknowledged to exist.(2)
74. The first exception to the above rule arises where there is an express covenant or special agreement between partners, independent of the partnership accounts :(y) as, where plaintiff and defendants being members of a
(m) Per Abbott, C. J., Bovill v. Hammond, 6 B. & C. 151,- and infra. As to what does or does not constitute a partnership between the parties themselves, see the cases collected, Chitt. Cont. 3rd ed. 231 et seq.; Elgie v. Webster, 5 M. & W. 518.*
(n) Harvey v. Kay, 9 B. & C. 356.6
(s) Nockells v. Crosby, 3 B. & C. 814;: Gale v. Leckie, 2 Stark. N. P. C. 107;5 Fox v. Frith, 11 Law Journ., Ñ. S., Exch. 336.
(1) Milburn v. Codd, 7 B. & C. 419.j
(x) Per Best, C. J., Neale v. Turton, 4 Bing. 151 ;m Collyer, on Partnership, 147; Fox v. Frith, 11 Law Journ., N. S., Exch. 336.
(y) Per Parke, B., Brown v. Tapscott, 6 M. & W. 123 ;* Per cur., Thimblethorpe v. Hardesty, 7 Mod. 116. See a form in Covenant, Partner v. Copartner, Chitt. Jun. Pleading, 480, and n. (c). a Eng. Com. Law Reps. 13. bId. 17. Id. 8. dId. 14. Id. 13. Id. 27. $Id. 10.
Lid. 3. jId. 14. kId. 13. 'Id. 15. mId. 13. *Reprinted at $2.50 per vol.
joint-stock company, plaintiff agreed to demise land to defendants as trustees for the company, defendants covenanting to pay rent, and by a separate deed plaintiff and the other members of the company covenanted to indemnify defendants for acts done by them as trustees ; it was held that plaintiff might sue defendants on their covenants, for the damages so recoverable were not in the first instance to be borne out of the common fund in which plaintiff was interested, but by the defendants, who were at some future and uncertain period to be indemnified in such manner as the society should direct.() In like manner if partners by the deed of partnership, covenanted to advance each a certain sum at first,(a) or if by deed on dissolving partnership an express covenant not relating to the partnership accounts is entered into,(6) *the covenantee may sue for breach of such covenant ; and so he may for [ *57] breach of a covenant to account. (c) But where a partner in a house of trade, being indebted to the partnership on his individual account, covenanted with himself and the other partners for repayment of the debt ; such debt could not, it was held, be pleaded as a specialty debt, or by way of retainer in an action against his executors, two of whom were partners in the firm ; nor could the testator himself, while living, have been sued on this deed in a court of law, or his executor after his decease, though strangers to the firm.(d)
75. In the cases just considered, the claim was founded on an express covenant or agreement; but a state of circumstances may exist, in which a debt, arising out of partnership transactions, may be due to and recoverable by one partner from his co-partner :(e) thus money, wrongfully carried to the partnership account, may be recovered by the partner to whom.it is due ;(g) and if a final balance be struck between partners, whether they are so generally or for one particular adventure, and whether the balance be ascertained by the parties themselves, or through the medium of the court or of an arbitrator,(h) an action lies for such balance by the party *entitled to it, nor in such a case is an express promise necessary,
[ *58 ] if the account stated was meant to be a final account ;(i) and this exception extends to the case where such balances are struck monthly but kept distinct from each other and not carried forwards, so as to form a running
(3) Bedford v. Brutton, 1 Bing. N. C. 399;" Andrews v. Ellison, 6 Moore, 199.
(h) Foster v. Allanson, 2 T. R. 479; Moraira v. Levi, Id. 483, n. (a); Winter v. White, 1 B. & B. 350 ;p Wray v. Milestone, 5 M. & W. 21 ;* Smith v. Barrow, 2 T. R. 476 ; Fromont v. Coupland, 2 Bing. 170;4 and an action lies on the decree of a colonial court for payment of a balance on partnership accounts: Henley v. Soper, 8 B. & C. 16.
(i) Wray v. Milestone, 5 M. & W.21 ;* Collyer v. Partnership, p. 153, 154; Rackstraw v. Imber, 2 Holt, N. P.C. 368; but see Fromont v. Coupland, 2 Bing. 172;: Foster Allanson, 2 T. R. 479 ; Cited Green v. Beesley, 2 Bing. N. C. 113.' a Eng. Com. Law Reps. 27. oId. 8. PId. 5. Id. 9. "Id. 15. SId. 9. 'Id. 29. *Reprinted at $2.50 per