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at law; that it appears, that, before any assent by the plaintiffs to hold the money for the defendant, J. B. Montefiore revoked the authority to credit the defendant with one moiety of the gold dust consigned by Messrs. Montefiore & Co.; that the defendant did not comply with the terms agreed upon, by instructing the plaintiffs to credit Messrs. Mon.

247 tefiore & Co. with one *moiety of the gold dust consigned by D J him; and that the defendant's remedy is by action against Messrs. Montefiore & Co.” Joinder.

Honyman, in support of the demurrer.(a)—The whole foundation upon which this plea rests fails. The defendant claims credit in his account with the plaintiffs for half the net proceeds of the consignment of gold dust made to them by Messrs. Montefiore & Co. But, according to the terms of the agreement entered into between the defendant and Messrs. Montefiore & Co., the defendant was to send written instructions to the plaintiffs to credit Messrs. Montefiore & Co. with a inoiety of the proceeds of the consignment made by him. This condition he neglected to comply with. [ERLE, C. J.-Although the de. fendant omitted to write to the plaintiffs, Messrs. Montefiore & Co, di receive credit for the moiety of the proceeds.] The plaintiffs were entitled to have the instructions in writing. Besides, it was competent to Messrs. Montefiore & Co. to revoke the instructions whieh -- they had given: and this was done *by the letter of Mr. J. B.

voos Montefiore of the 4th of February, 1852, in which he says, ." I have no doubt Mr. Baker has written that half the profits of the 365 oz. of gold dust shipped to you is to go to the credit of Montefiore & Co., in the same way as half the profit of the 728 oz. is to go to his credit. If, however, he should not have done so, you will not pass the half profit of the 728 oz. to his credit.[WILLIAMS, J.-If the consignment was the joint property of the two, viz. Messrs. Montefiore & Co. and the defendant, would a Court of equity allow Messrs. Montefiore & Co. to revoke their authority?] There was no joint property ; but merely a right, in a certain event, to a moiety of the net proceeds. [WILLES, J.—The plea is full of evidence. Is it not money had and received or nothing ?] It was so submitted before Byles, J., at Chambers. [ERLE, C. J.—The invoice shows that the plaintiffs received the consignment on the joint account.] Subject to a condition which was not performed. The plea involves the taking of accounts between the parties, which cannot be done in a Court of law. [WILLES, J.They might be referred under the Common Law Procedure Act, 1854.7

Coleridge, Q. C., contrà.(6) Under the circumstances stated in the

(a) The points marked for argument on the part of the plaintiffs were as follows:

"1. That the fourth plea is bad, as it discloses no ground for unconditional relief in equity against any judgment which the plaintiffs might obtain at law:

“2. That it appears by the plea, that, before any assent by the plaintiffs to hold the money for the defendant, Messrs. Montefiore & Co. revoked the authority to credit the defendant with a moiety of the gold dust consigned by Messrs. Montefiore & Co.:

" 3. That the plea shows that the defendant did not comply with the terms agreed upon, by instructing the plaintiffs to credit Messrs. Montefiore & Co. with the moiety of the gold dust consigned by the defendant, and is therefore not entitled to claim the benefit of the agreement:

“4. That the remedy of the defendant, if any, is by action against Messrs Montefiore & Co." (6) The points marked for argument on the part of the defendant were as follows :

“ That the plea shows a good debt in equity due to the defendant: that, if the debt sought to be set off is upon the facts stated a good debt in equity, the relief is unconditional, all that

consigas to the nt, commune in voice, whastly, the

plea, there was a good equitable assignment by Messrs. Montefiore & Co. to the defendant of *half the proceeds of the gold dustri

[*536 consigned by them to the plaintiffs. First, there was the agree- ! ment as to the course of dealing between Messrs. Montefiore & Co. and the defendant, communicated to the plaintiffs, and their assent thereto: then, there was the invoice, which described the consignment as being on the joint account: and, lastly, there was the letter of Messrs. Montefiore & Co. to the plaintiffs, directing them when the proceeds were realized to carry one moiety to their account and the other moiety to the account of the defendant. That constituted it debt as between the plaintiffs and the defendant, and a good equitable set-off. In Burn v. Carvalho, 4 Mylne & Cr. 690, A., having goods in the hands of B. as his agent at a foreign port, and being under liabili. ties to C., by letter to C. promised that he would direct, and by a subsequent letter to B. did direct B. to deliver over the goods to D. as the agent of C. at that port. Before the delivery of the goods, a commission of bankrupt issued against A., founded upon an act of bankruptcy committed whilst his letter was on its way to B., and the goods were delivered by B. to D. in ignorance of the bankruptcy. And it was held that C. had a good title, in equity, to the goods. Lord Cottenham, in the course of the judgment, there says,- p. 702,—"In equity, an order given by a debtor to his creditor upon a third person, having funds of the debtor, to pay the creditor out of such funds, is a binding equitable assignment of so much of the fund.” And see Hassall v. Smithers, *12 Ves. 119; Watson v. The Duke of r* Wellington, 2 Russ. & M. 602. [WILLES, J.-This case is

[*537 much stronger than that.] In Ex parte Hanson, 12 Ves. 346, Lord Erskine, C., allowed a set-off in bankruptcy of a separate debt from the estate against a joint debt due to it: and that decision was adopted by Lord Eldon, in Ex parte Hanson, 18 Ves. 232. So, in Vulliamy v. Noble, 3 Meriv. 593, 618, it was held, that though a joint debt cannot be set off against a separate debt at law, it may in equity where there is a clear series of transactions in which joint credit has been given. And in Clark v. Cort, Cr. & Ph. 154, it was held, that, where there are cross-demands between two parties of such a nature, that, if both were recoverable at law, they would be the subject of legal setoff, then, if either of the demands is matter of equitable jurisdiction, the set-off will be enforced in equity.(a) [ERLE, C. J.—That will hardly be disputed.] Then it is said that the authority given by Messrs. Montefiore & Co. to the plaintiffs was revoked by their letter of the 4th of February, 1852. Under the circumstances, however, that authority was not revocable: the agents having acted upon it by communicating it to the defendant, it was no longer competent to the principals to revoke it: Chitty on Contracts, 6th edit. 196; Story on Agency, $ 477. Here, the authority was not in fact revoked: this is shown from the letter of the 9th of November, 1852. Then, it is said that the relief granted by a Court of equity would not be final, inasmuch as there must be a taking of accounts. One answer to that is, that the plea shows that the accounts between Messrs. Montefiore & Co. and the defendant are closed, and nothing remains to be done but **90, the payment of this specific sum. Another answer *is, that

remains to be done being to set the equitable debt off against the legal one and so close the transaction as to them: that Messrs. Montefiore & Co. had no power to revoke the authority : that, if they had such power, the money did not by the revocation become the money of Messrs. Montefiore & Co., but was held by the plaintiffs on the joint account of the defendant and Messrs. Montefiore & Co.; and that, by the original agreement, it continued assigned to, and in equity the property of, the defendant, of which the plaintiffs before action had ample notice : and that the plea is good, and that, in equity, a legal and an equitable debt may be set agaiost one another."

(a) And sco Cochrane v. Green, 9 C. B. N. S. 448 (E. C. L. R. vol. 99).

Vood the plaintiffs have nothing to do with the accounts between these parties. The original instructions from Messrs. Montefiore & .Co. to the plaintiffs made them agents for the defendant as to the one moiety. When once they had carried it to his account, they would be under no liability in respect of it to Messrs. Montefiore & Co. This is clearly a case in which the Court would be inclined to afford the defendant redress, if the law allows it.

Honeyman was heard in reply.

ERLE, C. J.-I am of opinion that our judgment should be for the defendant. It appears that Messrs. Montefiore & Co. and Baker entered into an agreement to purchase gold dust on a joint speculation, the purchases of each to be disposed of in a certain manner, and that, if the speculation should turn out out to be profitable, Messrs. Montefiore & Co. should give to Baker half the profits of that which they purchased, and that Baker should give Messrs. Montefiore & Co. half the profits of that which he purchased. I do not stop to consider what interest each of the parties took in the gold dust bought by the other: but they had an agreement under which each had an interest in the profits of the other's speculations. In pursuance of this agreement, Messrs. Montefiore & Co. purchased 728 oz. of gold dust, and Baker purchased 365 oz.; and, these purchases having been made in Australia, a second agreement was come to that the gold dust so purchased should be consigned to the plaintiffs invoiced as property in which Messrs. Montefiore & Co. and Baker were jointly interested, with directions to sell it, and, after payment out of the proceeds of certain bills, to divide the net proceeds between Messrs. Montefiore & **201 Co. and Baker. I do not stop to inquire whether the *parties

Dooj became tenants in common or had a joint interest in the consignments. But the plaintiffs received the 728 oz, consigned by Messrs. Montefiore & Co., with a direction from them to sell the same, and to give a moiety of the proceeds to Baker. But for the letter of Messrs. Montefiore & Co. of the 4th of February, 1852, no question would have arisen as to Baker receiving a moiety of the proceeds of that sale. Baker did consign the 365 oz. of gold dust which he had purchased to the plaintiffs for sale, and this parcel was sold by them, and a moiety of the proceeds of such sale was paid over to Messrs. Montefiore, and the other moiety to himself: so that the whole arrangement made in Australia was substantially carried out, except that the plaintiffs refuse to give Baker half the proceeds arising from the sale of the 728 oz. consigned to them by Messrs. Montefiore & Co. What the plaintiffs now rely on is, that, in Australia, Baker neglected to give them authority to credit Messrs. Montefiore & Co. with a moiety of the proceeds of the sale of the 365 oz. which he had consigned to the plaintiffs, and that, on the 4th of February, 1852 (after the invoice and Baker's letter had been received), one of the partners in the house of Messrs. Montefiore & Co. wrote to the plaintiffs a letter in which he says,—"I have no doubt that Mr. Baker has written that half the profits of the 365 oz. of gold dust shipped to you is to go to Montefiore & Co. in the same way as half the profits of the 728 oz. is to go to his credit. If, however, he should not (in his haste going away to Melbourne) bave done so, you will not pass the half profits of the 728 oz. to his credit.” It is said that that was a revocation of the authority previously given by Messrs. Montefiore & Co. to the plaintiffs as to the disposal of the proceeds of the 728 oz. It seems to me, however, that it was hut a conditional injunction,-an *intima- r:

*540 tion to the plaintiff's that Messrs. Montefiore & Co. had an interest in the 365 oz. consigned by Baker, and a request that, in the event of Baker's having omitted to send instructions to the plaintiff as to the disposal of that consignment, they (the plaintiffs) would protect the interests of Messrs. Montefiore & Co. in respect of the consignment of the 728 oz. The 365 oz. were, however, received by the plaintiff's and were sold, and a moiety of the proceeds handed over to Messrs. Montefiore & Co.: and so the real interest of Messrs. Montefiore & Co. has been protected. I therefore think that the plaintiff's claim to withhold from Baker the moiety of the proceeds of the 728 oz. consigned to them by Messrs. Montefiore & Co. is altogether unfounded and illusory, Montefiore's letter of the 4th of February, 1852, being only a contingent direction to the plaintiffs to protect their interests, which has become unnecessary. But, even if that were not so, and if Baker had any legal interest in the proceeds of the 728 oz. so purchased and consigned by Messrs. Montefiore & Co., still I think, upon the facts stated in the plea, that the direction to the plaintiffs to pay over to Baker half the proceeds of that consignment would give Baker a right to such moiety, and so make this a valid plea of set-off'; and that the letter of the 4th of February, 1852, could not operate to vary a right once vested. As to what has been said about these being partnership accounts, it appears that all the accounts between the parties have been settled and balanced, and that this is the only unsettled item. It appears to me that the plaintiffs have no right, either in law or equity, to retain the sum in question.

WILLIAMS, J.-I am of the same opinion. Although in form an equitable plea, it is competent to the defendant to rely on it as disclosing a legal defence. I *have a difficulty in saying that this

[*541

to could be good as a legal plea. It is conceded that the plaintiffs lo received the consignments of the 728 oz. of gold dust as agents of Messrs. Montefiore & Co. Assuming that there had been no revocation of the first direction by Messrs. Montefiore & Co. as to the disposal of the proceeds of that consignment, I am by no means satisfied that there was such privity between the plaintiffs and the defendant as would warrant the latter in treating the moiety of the proceeds of the sale in the hands of the former as a debt due to him from them. It is, however, unnecessary to consider that, because I think that, under all the circumstances stated in the plea, that which passed between Messrs. Montefiore & Co. and the plaintiffs amounted to an equitable assignment of such moiety as to the defendant, and therefore the plea constitutes a good plea of equitable set-off.

WILLES, J.-I am of the same opinion. This is a transaction which

ceive both: Demselvether ord to have

is not at all of an extraordinary character. Two persons agree that each shall purchase goods and send them to a factor to dispose of and to divide the net proceeds between the two. The result of such an arrangement is, that the two become joint speculators in the particular transactions; and the factor, receiving goods from one of the parties, either receives them as the agent of the person who sends them, or as the agent of both. I should have thought, that, if the contracting parties had asked themselves whether they were to have the mere personal security of each other or the security of the goods, each would have said that they intended to have the joint security of the goods : and, if a jury were to pass a judgment on such a transaction, I should think they would have but little difficulty in coming to the conclusion that the factor held the goods for the two as tenants in 101 *common. I do not, however, propose to rest my judgment on

that point, because it is unnecessary: but, if put to a jury, I apprehend there could be no doubt as to the result. Another construction may be put upon the transaction, viz., that there was an equitable assignment of a moiety of the goods or their proceeds by each party to the other. I am not going to decide which of these two constructions is the correct one, though I incline to the former. Now, in the first state of things, you have two persons, tenants in common of goods employing an agent to sell them and to divide the net pro ceeds between the two. Could each of them maintain an action at law against the agent for his moiety? I apprehend he might. I am quite aware, that, if two or more persons intrust a factor or agent to sell goods on their joint account, their remedy against him for the proceeds is by a joint action. But, where the character of the dealing is this, that, at the inception of the transaction, it is agreed that the agent shall receive the consignments of each, and divide the net proceeds of each consignment between the two, I apprehend that each party might maintain an action for his proportion. Now, what is the state of facts which is disclosed by this plea? A person reading it without some previous knowledge of these transactions would hardly understand the plea. It sets out a great deal of evidence. But, upon the whole, unless there is something to affect the defendant's right to have half the proceeds of the 728 oz. consigned by Montefiore & Co., he is entitled to maintain his set-off. It appears to me that the facts set forth do not affect the defendant's right, because the right having been once vested by the agreement, no act afterwards done, by one of the parties could defeat that right; consequently, the letter of Mr. J. B. Montefiore of the 4th of February, 1852, directing that the proceeds *5427 should not be applied *as originally contemplated could bave

o no effect at all. Assuming, however, upon the other hypothesis, that there was an equitable assignment to each of a moiety of the gold dust shipped by the other, then would arise this difficulty, that he who asks for equity must do equity: and though at law Messrs. Montefiore & Co. might only have a remedy against the defendant by cross-action fur neglecting to consign a moiety of his 365 oz. to them, yet, coming to a Court of equity for relief, the defendant's omission to give such direction is to be explained. You have the fact of the defendant baving neglected to give that direction, and you have Mr. J. B. Montefiore's subsequent letter desiring the plaintiff's not to give the defend

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