Elliott v. Walker

The opinion of the court was delivered hy Rogers, J. The payment of the-balance of an account by a factor or commission merchant, to his principal, after the sales made,- and for the purpose of closing the aecounts between the parties, is an assumption of outstanding debts. And this is the principle of the case of Oakley v. Renshaw, 4 Cow. 205. After the final settlement, the principal has the-best grounds, to suppose that the agent has been actually paid, or that he is content to take upon himself the responsibility of the purchaser. Where there is nothing in the transaction to rebut the inference, this is undoubtedly a fair presumption. To subject the principal, at any distance-of time, when he has reason to suppose the business finally closed, would be a deception upon him, attended with danger and great inconvenience, and particularly in the case of a foreign creditor, who has no means of knowing the debtors, or guarding against imposition. In the absence of fraud or mistake, it wouíd be unsafe to unravel such a transaction; for after final settlement, the principal, -gives himself no further concern, as he has a right ,to suppose [129] that the money has been received, or that the.-factor agrees to take upon himself the risk of the solvency of the purchaser. The difficulty in this case; arises not from any uncertainty in law, but in determining the .nature of the settlement, or in other words, whether this was a'final Settlement, and so understood by the parties. In the letter of the 20th of April, Wilson informs the shippers, that he-had sold part of the consignment on a short credit) but neither states the names of the purchasers .no.r mentions thé term of credit) and we are left to conjecture whether short credit means sixty or ninety days, six months or a year. In the letters of the 26th of April and 5th of May, he advises-Nieici, that he had not .sold his nankeens, .but informs Ch'eever and Fates, that he had been moré fortunate with theirs, as the-remainder of them-had been disposed of at a short credit; ■ but in the letter of the 1 Sth of June, he says, lie will ship the nett proceeds of sales in coffee, but-that not having received the Government expenses, he cannot.exactiy state the sum, which by the next opportunity to America, will be done, enclosing the bill.of lading at the same time. On the 19th oí June, the accounts of sales and bills of lading of .the coffee were duly rendered to the shippers, in which I remark this difference. In the account of sales of Field’s shipment, the names of the purchasers are not given, but it is expressly stated, in the usual mercantile manner, errors, omissions, and outstanding debts excepted. In the account of sales rendered to Cheever and Fates, the names of the purchasers are given, and it is stated, errors and omissions excepted. In the absence of all proof to the contrary, the inference-is, that at the time the balance was paid, it was done with those accounts before them, and with express reference to them. There is then, no room for presumption, that the shippers supposed the debts had been paid; for it appeared in the accounts rendered that they, had not. Nor Tan it be reasonably supposed, that' Wilson intended to take upon himself the risk óf their collection; for .it is not pretended, -he charged, or was allowed a del credere commission. If the shippers were aware that the debts were outstanding, what injury had they sustained? They were not lulled into a false security, nor were they in any way deceived, and why should they wish to' throw the'loss on an agent, who, it is acknowledged acted-in conformity to his instructions, and with the strictest regard to the' interest of his employers. When a principal has reason to suppose.that-the business is finally closed, and a payment of the balance is made for that purpose, then he should be protected; but I cannot agree, that the mere payment of the balance of the account, without any.accompa'nying circumstance, can have that effect. The case states, that money to the amount of seventeen thousand five hundred dollars, was taken up by Wilson, from Messrs. David Corry and Co., with a view of closing the sales at Port-au-Prince; but it is no where found,, that the balance of the money was paid with the intention of closing the ac [130] count between the principal and agent, which is the turning point in Oakley v. Renshaw. It has been truly said, by the counsel for the plaintiffs in error, that if an agent sell on credit, it is his duty, within a reasonable • time, to inform his principal'of the names of the purchasers, and the terms of' sale. In such a case the, agent would be answerable to his principal, in damages for any loss which may have been sustained by reason of his omission to giye the necessary information. I,t does not,,-however, follow, that for this neglect, he shall' at all events be made responsible for the solvency of the purchasers. The cases relied upon were Edgar v. Bumstead, 1 Campb. 411. Bousfield v. Creswell, 2 Campb. 545. Simpson v. Swan, 3 Campb. 391, and Wilkinson, Assignee of Gwynne, v. Clay, 4 Campb. 170, are cases of insurance brokers, who enter into bonds, and by statute are bound to make, kno.wn, upon every contract or bargain, the names of their principals. 1 Liv: on Agency, 73. They depend upon the well known course of dealing between the insurance broker, the merchant, and underwriter, and do not touch on the common course of trade, or agencies which have no such usages. - ,' _ _ There is no doubt an obligation on the principal,..(which the civilians call obligatio mandato contraria,) to repay his agent such sums of money, as the latter has necessarily expended in the execution of his commission; and to indemnify him for losses sustained by reason of his employment.. To give rise to this obligation, it is necessary that the agent should have sustained some loss, on account of the agency, ex causa mandati, and that the loss should not have been caused by the agent’s fault. These principles are recognized to the fullest extent in D’Arcey v. Lyle, 5 Binn. 441. The statement of the casé clearly shows that the loss has been sustained on account of the agency, without any blame imputable to the agent, but from one of those accidents which the utmost vigilance of the plaintiff could not have prevented. Judgm.ent affirmed»