goods, and undertaking to deliver them at the end of the voyage (sub- Chap. IV. ject to such conditions as may be mentioned in the bill of lading). The bill of lading is sometimes an undertaking to deliver the goods to the shipper by name, or his assigns; sometimes to order or assigns. not naming any person, which is apparently the same thing; and sometimes to a consignee by name, or assigns, but in all its usual forms it contains the word assigns.

The bill of lading is, therefore, a written contract between those who are expressed to be parties to it, on behalf of their principals if they be agents, that is, generally speaking, between the master of the ship on behalf of his principals the shipowners, on the one part, and the person named as shipper of the goods on the behalf of the person who, at the time of shipment, was his principal, on the other part, by which it is agreed that the shipowner is to deliver the goods to the person who shall fill the character of assign.

Indorsement and delivery of bill of

lading may

Goods shipped are physically incapable of delivery during the voyage; but it is a rule of the law merchant that the property in the goods may pass, not (as is sometimes said) that it necessarily passes,1 by indorsement and delivery of the bill of lading. Bills pass property. of lading are usually drawn in sets of three. If the bills are Sets of bills. transferred to different bonâ fide purchasers for value, the goods pass to the purchaser who is first in point of time; but the shipowner may safely deliver the goods to the person who first presents either of the set, in the absence of notice of any prior claim. By the common law, although the transfer of a bill of lading might pass the property in the goods, it did not operate as an assignment of the contract expressed in the bill of lading, and therefore no right was conferred on the assignee to sue upon that contract. This, however, was altered by the Bills of Lading Act, 18 & 19 Vict. 1855, by which, after reciting that:

"By the custom of merchants a bill of lading of goods being transferable by indorsement, the property in the goods may thereby pass to the indorsee, but nevertheless all rights in respect of the contract contained in the bill of lading continue in the original shipper or owner, and it is expedient that such rights should pass with the property,"

it was enacted:

Sect. 1. "Every consignee of goods named in a bill of lading, and every indorsee of a bill of lading to whom the property in the

1 Sewell v. Burdick, 10 App. Cas. 74; Sale of Goods Act, s. 19 (3), ante, P. 49.

2 Barber v. Meyerstein, L. R. 4 H. L. 317; Sanders v. Maclean, 11 Q. B. D. 327.

Glyn v. E. & W. Ind. Docks Co., 7

App. Cas. 591. As to the effect of the
transfer of a bill of lading upon the
right of stoppage in transitu, see ante,

P. 64.

4 18 & 19 Vict. c. 111. See Freedom

v. Simmonds, L. R. 3 P. C. 594.

c. 111.

Chap. IV.

Delivery

orders-Dock warrants.

goods therein mentioned shall pass, upon or by reason of such consignment or indorsement, shall have transferred to and vested in him all rights of suit, and be subject to the same liabilities in respect of such goods as if the contract contained in the bill of lading had been made with himself."

Delivery Orders-Dock Warrants.

1

Delivery orders, dock warrants, and wharfingers' receipts are generally written authorities to deliver the possession of goods, so framed that the right to possess the goods passes by indorsement and delivery of the documents. It will be noticed that, as the goods are on land, there is no reason why the indorsee should not at once produce the document to the bailee in whose possession the goods are, and take possession of the goods or require the bailee to attorn to him, i.e., become his bailee. The common law, while, as we have seen, it allowed the transfer of a bill of lading to pass the property in the goods on the ground of the physical impossibility of a purchaser acquiring possession, did not attribute the like effect to a transfer of a document of the nature under consideration.

A man does not acquire possession of the goods merely by receiving a delivery order; in order to do so he must either have the goods delivered to him, or, if they are in the possession of a bailee, must procure attornment by the bailee to him,3 and this may be effected by merely lodging the delivery order with the bailee, provided the bailee does not dissent.*

It should be observed that, as the transfer of a delivery order effected by indorsement and delivery only transfers the right to possess, as distinguished from possession itself, the mere fact of a person taking such a transfer does not amount to acceptance and receipt of the goods within s. 4 of the Sale of Goods Act, 1893, until the person in whose possession the goods are consents to hold them as bailee for, or attorns to, the transferee."

1 The form may run as follows:-"To A. B., I hereby undertake to deliver to your order endorsed hereon" (description of goods). (Signed) C. D. Farmiloc v. Bain, 1 C. P. D. 446.

2 Gunn v. Bolckow, 10 Ch. 499.

3 Farina v. Home, 16 M. & W. 119; McEwan v. Smith, 2 H. L. C. 309.

4 Pearson v. Dawson, E. B. & E. 448. 5 Farina v. Home, sup.; Bentall v. Burn, 3 B. & C. 423; 27 R. R. 391, ante, p. 54.

CHAPTER V.

SALES, PURCHASES, AND PLEDGES BY AGENTS.1

1

Chap. V.

Agency, how created:

THE relation of principal and agent may be created— (1) By express contract, which may be either written or without writing, even if the agent be appointed to sign a contract under the 4th section of the Statute of Frauds,3 (1) by express or the 4th section of the Sale of Goods Act, 1893.4

An agent appointed to execute a deed for another must be appointed by deed (called a power of attorney).5

contract:

(2) By implication, where a person is placed in such a position (2) by implithat, according to the ordinary usage of mankind, he

would be understood to act for and represent the
principal.

For example, if a man puts goods into the custody of another whose common business is to sell such goods, he gives him implied

authority to sell them, unless he limits his authority.7

cation.

Also, a wife has in many cases an implied authority to pledge Husband and her husband's credit.8

(3) From the necessity of the case.

wife.

(3) from necessity. Master of

On this principle, where the master of a ship cannot communicate with the owner or his agent,10 he may contract ship. for the necessary repairs of the ship" and other necessaries for the ship, and may raise money necessary for the prosecution of the voyage,12 and for these purposes may pledge the credit of

7 Pickering v. Busk, 15 East, 38; 13 R. R. 364.

8 See Debenham v. Mellon, 6 App. Cas. 24, and notes to Manby v Scott, 2 Sm. L. C. 450.

9 See Chap. VIII., p. 118.

10 Gunn v. Roberts, L. R. 9 C. P. 331. 11 Webster v. Seekomp, 4 B. & Ald. 352; 23 R. R. 307.

12 Beldon v. Campbell, 6 Ex. 886; Arthur v. Barton, 6 M. & W. 138; The Mariposa, [1896] P. 273.

Chap. V.

(4) by ratifi cation.

"General" and "special" agent.

the shipowner. A wife living apart from her husband may in some cases pledge his credit for necessaries.1

(4) By ratification. If A., unauthorized by B., makes a contract on his behalf with C., which contract B. subsequently adopts, A. becomes B.'s agent ab initio. In this case, if C. entered into the contract believing that he was contracting with B., and B. subsequently admits that such is the case, C. is precisely in the position in which he intended to be. If C. intended to contract with A., he retains his remedy against him, and is not injured by the ratification.2 B. may ratify an acceptance by A. of an offer by C., even though C. has endeavoured to withdraw the offer before the ratification.s B. cannot, however, ratify a contract which A., without authority, intended to make on his behalf, if A. did not at the time of making the contract profess to act on behalf of a principal.*

There is a distinction between an agent who has a general authority to do things of a certain nature and one who is employed pro hac vice, who is, in other words, a special agent.

An agent of the former class has the right to do all acts which are incident to his general authority; and, unless the person dealing with him has notice that his authority is limited, i.e., that he has no authority to do some of these acts, the principal is bound by such acts of the agent. On the other hand, a special agent with only a limited authority cannot bind his principal by an act beyond the scope of his authority.

For example, if a horse-dealer having a horse to sell directs. his salesman to sell it, but not to warrant it, and the salesman warrants it, the master will be bound by the warranty, because the salesman is acting within the general scope of his authority; and the public cannot be supposed to be cognizant of any private communication between his master and him. But if a private person, being the owner of a horse, directs his servant to sell the horse, but not to warrant him, and he does warrant him, the

1 See notes to Manby v. Scott, 2 Sm. I. C. 450.

2 Bird v. Brown, 4 Ex. 786; Maclean v. Dunn, 4 Bing. 722; 29 R. R. 714.

Bolton v. Lambert, 41 Ch. D. 295;

Re Portuguese Mines, 45 Ch. D. 16.
4 Keighley v. Durant, [1901] A. C.
240.

Collen v. Gardner, 21 Beav. 540; Smith v. M'Guire, 3 H. & N. 554; Watteau v. Fenwick, [1893] 1 Q. B. 346. 6 Fenn v. Harrison, 3 T. R. 757; Attwood v. Munnings, 7 B. & C. 278; 31 R. R. 194.

7 Howard v. Sheward, L. R. 2 C. P. 148.

owner is not bound, because the servant was not acting within the scope of his authority."

Chap. V.

Agent to sign

When an agent, either general or special, has authority to sell, he has authority to make the contract for sale binding; and therefore, contract. in cases falling within s. 4 of the Sale of Goods Act, 1893, he can sign a note in writing of the contract so as to bind his principal. Authority may be given to sign a note of a contract already made, without giving authority to make a contract, or to vary one already made. This distinction is of importance where an error is made in reducing the contract into writing. In such cases, if the agent has authority to make a contract, the writing containing the mistake is the note of a contract within the authority of the agent, and the principal is bound by it; but where the authority is only to sign the note of a particular contract, the writing containing the mistake is not one that the agent is authorized to sign, and therefore the principal is not bound by it. One of the parties to a contract cannot be the agent of the other for the purpose of signing it.+

Agent contracting in his own

Where a man who is in fact an agent contracts in his own name without qualification he is a contracting party; but, if words are used which plainly show that he is contracting not for himself but for name. someone else, effect will be given to them whether they are contained in the body of the instrument or are annexed to his signature.6

An auctioneer is a person employed by the vendor as his agent Auctioneer. to sell, and therefore to sign the contract for sale, on his behalf. The highest bidder at the sale by the act of biddings constitutes the auctioneer his agent for the purpose of signing the contract contained in the written conditions of sale. The auctioneer's clerk may be, and very often is, the agent of the purchaser to sign for him.". The signature must be at the time of the sale and not afterwards.10

1

Brady v. Todd, 9 C. B. N. S. 592.

256 & 57 Vict. c. 71. Formerly s. 17

of the Statute of Frauds.

3 Blackburn on Sale, 73.

Sharman v. Brandt, L. R. 6 Q. B. 720. See the rule doubted in Blackburn on Sale, 72.

Higgins v. Senior, 8 M. & W. 844; 58 R. R. 884.

Fairlie v. Fenton, L. R. 5 Ex. 169; Gadd v. Houghton, 1 Ex. D. 357; Repetto v. Millar's, [1901] 2 K. B. 306.

See notes to Thomson v. Davenport, 2
Sm. L. C. 389.

7 Ante, p. 58.

8 Emmerson v. Heelis, 2 Taunt. 38; 11 R. R. 520; White v. Proctor, 4 Taunt. 209; 13 R. R. 580.

9 Peirce v. Corf, L. R. 9 Q. B. 210; Sims v. Landray, [1894] 2 Ch. 318; Bell v. Balls, [1897] 1 Ch. 663.

10 Mews v. Carr, 1 H. & N. 484; Bell v. Balls, sup.