Consignor and Consignee.

consideration-money has not been paid. Taggart v. Stanbery, 2 M'Lean's C. C. R. 543.

42. So far as regards the effect of the deed, the consideration named cannot be controverted. Ibid.

43. A compromise of an outstanding claim, without the consent or knowledge of the grantor, can give no claim to an offset, in an action for the consideration-money. Ibid.

44. The liability of the grantor must depend upon the validity of the claim purchased in, and not upon the sum paid for it. Ibid.

45. A precedent debt constitutes a good consideration, on the assignment of a note. Riley v. Anderson, 2 M'Lean's C. C. R. 589.

CONSIGNOR AND CONSIGNEE.

1. Upon a shipment of goods, to be sold on joint account of the consignee and shippers, or of the latter alone, at the option of the consignee, the right of property does not vest in the consignee until he has made his election under the option given him. The Venus, Rea, Master, 8 Cranch, 253; 3 Cond. Rep. 109.

2. Where goods are sent upon the account and risk of the shipper, the delivery to the master is a delivery to him as agent of the shipper, not of the consignee; and it is competent to the consignor, at any time before actual delivery to the consignee, to countermand it, and thus prevent the consignee's lien from attaching. The Frances, Irvin's Claim, 8 Cranch, 418; 3 Cond. Rep. 189.

3. If a British merchant purchase, with his own funds, two cargoes of goods, in consequence of, but not in exact conformity with the orders of an American house, and ship them to America, giving the American house an option, within twenty-four hours after receipt of his letter, to take or reject both cargoes; and if they give notice, within the time, that they will take one cargo, but will consider as to the other, this puts it in the power of the British merchant, either to cast the whole on the American house, or to resume the property, and make them accountable for that which came to their hands. The right of property in the cargo not accepted, does not, in transitu, vest in the American house, but remains in the British subject, and is liable to condemnation, he being an enemy. The Frances, Dunham & Randolph's Claim, 9 Cranch, 183; 3 Cond. Rep. 349.

4. Goods purchased by British merchants, before the war between the United States and Great Britain, in pursuance of orders from American citizens, shipped to the agent of the British merchant in the United States, also an American citizen, "on account and risk" of an American citizen, and no circumstances of fraud or unfairness in the transaction, were vested in the American at the time of the shipment, and are not liable to condemnation; although the vessel sailed from England after the declaration of war was known there. The Merrimack, 8 Cranch, 318; 3 Cond. Rep. 145.

5. But if goods be purchased as stated, though the accompanying invoices, bills of lading, and letters be addressed by the British consignors to the American citizen for whom the purchase was made, and all concur to show the property to be in him; yet, if these documents are enclosed in a letter from the consignors to their agent in the United States, directing him not to deliver the goods in case of the existence of certain circumstances, nor until he should have received payment from the consignees in cash, the property in said goods remained in the consignees, and they were subject to capture and condemnation. Ibid.

6. Goods purchased as stated, and consigned to the same agent, in whose name also the bill of lading is made out, but the bills of parcel and invoice in the name of the American merchants for whom the purchase was made, the shipment also being expressed to be on their account, though the goods are spoken of in the letters of the consignors as American property, vested in the American merchants at the time of shipment, and are not subject to condemna tion. The circumstance that the goods continue during the voyage at the risk of the shippers is immaterial. Ibid.

7. Goods were shipped by D. B. of Liverpool, on board a vessel bound to Rio de Janeiro, which was captured and brought into the United States for adjudication; the invoice was headed, "consigned to Messrs. D. B. by order and for account of J. L." In a letter accompanying invoice, the shippers wrote to the consignees, "for Mr. J. L., we open an account in our books here, and debit him, &c. We cannot yet ascertain the proceeds of his hides, &c., but find his order for goods will far exceed the amount of these shipments, therefore, we consign the whole to you, that you may come to a proper understanding with him " Held, that the goods, during the voyage, re mained the property of, and at the risk of th enemy shippers, and therefore subject to oo! demnation. The San Jose Indiano, 2 Wheat. 20› 3 Cond. Rep. 548.

8. In the ordinary course of mercantile trans actions, a delivery to a ship-master is a delivery to a consignee; but this delivery may be absolute or qualified, and the effect of it may vary accordingly. A voluntary agent has the option to enter upon his agency in strict conformity with the instructions of his principal, or with such reservations or conditions as he may think proper to prescribe; and the only consequence is, that in the latter case he leaves his principal at liberty to adopt or repudiate his acts. The Frances, Dunham & Randolph's Claim, 9 Cranch, 183; 3 Cond. Rep. 349.

9. A. shipped a cargo of cotton to his agent abroad, and inclosed an invoice, directing him to dispose of the cargo on arrival, provided the price should be such as to cover the cost and charges. Held, by the circuit court of Pennsyl vania, that the first cost was to be ascertained by reference to the invoice, and that the consignee was liable for breach of orders, in selling below that value. Loraine v. Cartwright, 3 Wash. C. C. R. 151.

Consignor and Consignee.

10. Every shipment remains on the account and risk of the shippers, unless there be an express or implied authority to change the proprietary interest, and put the shipment at the risk of the consignee. The San Jose Indiano, 1 Mason's C. C. R. 38.

11. Where goods were consigned to an agent or factor to sell, and he refuses to render any account of their sales, the most unfavourable presumptions which the evidence admits, ought to be made in respect to the amount and value of the goods sold and unaccounted for. Pope et al. v. Barret, 1 Mason's C. C. R. 117.

12. Where a consignee sells the goods of his principal on credit, and includes the amount in a bond taken to himself from the purchaser, with a private debt of his own, he is personally responsible to his principal for the amount of the sales. Jackson v. Baker, 1 Wash. C. C. R. 445. 13. A factor, having goods consigned to him, is bound to good faith and reasonable diligence. He cannot pledge his principal's property for his own debts; but he may for the payment of the duties accruing on the goods. Evans v. Potter, Gallis. C. C. R. 13.

signee may sell on credit, unless in special cases, or he is otherwise directed; an order by the principal to sell to the best advantage, implies such authority to sell on credit. Gerbier v. Emery, 2 Wash. C. C. R. 413.

18. If a consignor accepts a consignment, he does it on the terms prescribed by the shipper. He might have rejected it; but he cannot, after accepting it, refuse a compliance with the orders accompanying it. Loraine v. Cartwright, 3 Wash. C. C. R. 151.

19. Questions between principal and agent, consignor and consignee, frequently occur in courts of justice, as to the construction of the orders, which are alleged to have been violated; whether they are positive or unqualified, or leave a discretion to the agent. If they are so ambiguous that two constructions may fairly be given to them, every principle of justice demands that the want of precision in the writer should fix the loss upon him, rather than on his correspondent. If the order leaves him a discretion, the law requires nothing but the exercise of a fair and honest judgment. But if the order be free from ambiguity, and is positive and 14. A consignee of goods may lawfully do unqualified, it must be rigidly obeyed, if it be whatever the course and usage of trade re- practicable: and no motive connected with the uis; and, indeed, unless his orders restrict interest of the principal, however honestly enhim, he is bound to conform to the course of tertained, or however wisely adopted, can excuse trade. In no case can he wantonly sacrifice the a breach of it. This is a general and well estaproperty, without being answerable to the ship-blished principle of law. Courcier v. Ritter, 4 per. If he can advantageously sell the property, Wash. C. C. R. 549. and he neglects to do so, he is answerable in damages. But if the markets be low, or new and unexpected difficulties present themselves, he is not obliged to sell at all events, and under every disadvantage. Neither the interests of Commerce or good faith require this. Ibid.

20. A factor, a consignee, to whom a general shipment has been entrusted as security for advances, expenses and commissions, has a special property only in the shipment; and subject to his lien for these charges, the owner may dispose of them as he pleases, and his conveyance will carry the right. The Packet, 3 Mason's C. C. R. 334.

15. By the well-settled principles of commeral law, the consignee is the authorized agent the owner, whoever he may be, to receive 21. If a factor, a consignee, with a del cree goods; and by his endorsement of the bill dere commission, sells the goods of his principal, of lading to a bona fide purchaser for a valuable and takes negotiable securities in payment, and consideration, without notice of any adverse in- fails before they become due, having assigned terest, the latter becomes, as against all the these securities to his assignees, in favour of his world, the owner of the goods. This is the re-creditors, and the assignees, when the notes fall sult of the principle, that bills of lading are ransferable by endorsement, and thus may pass he property. Conard v. The Atlantic Insurance Company, 1 Peters, 445.

16. Strictly speaking, no person but the consignee can, by any endorsement on the bill of lading, pass the legal title to the goods. But if the shipper be the owner, and the shipment be on his own account and risk, although he may not pass the title by virtue of a mere endorsement of the bill of lading, unless he be the consignee, or the goods be deliverable to his order; yet, by an assignment on the bill of lading, or by a separate instrument, he can pass the legal title to the same; and it will be good against all persons, except purchasers for a valuable consideration, without notice, by endorsement on the bill of lading itself. Such an assignment by the owner, not only passes the legal title as against his agents or factors, but also against his credit ors, in favour of the assignee. Ibid.

17. The general rule is, that a factor or con

due, receive the money; the principal may recover the amount from such assignees, subject to a deduction of the lien of the factor for his commissions and charges. Thompson v. Perkins et al., 3 Mason's C. C. R. 232.

22. The principal is entitled to recover, wherever he can trace his own property and distinguish it or its proceeds, from the mass of the property of his factor. Ibid.

23. If it has been sold, and notes taken in payment, and these can be specifically ascertained, they remain the property of the principal, and he has a right to receive them, discharging at the same time any lien of the factor. Ibid.

24. It makes no difference whether the factor be with or without a del credere commission. Such a guarantee is not a direct, original liability to the principal, in the same way as if the factor was himself the purchaser, excluding the liability of the original purchaser; it is merely an undertaking to pay, in case there should be a failure of payment by the buyer. Ibid.

Consignor and Consignee.

Consignor and Consignee.

management of the ulterior voyage. The freight tiles, and the residue, after paying disburse could not be obtained, nor the vessel sold for the ments, in wrapping-paper. B. & Co. undertook price limited; and W. purchased in Amsterdam, to execute these orders. Instead, however, of with the concurrence of the master, a return investing two thousand two hundred petsos in cargo of Russian goods, partly with the money marble, they invested all the funds which came of H. and partly with money advanced by him into their hands in wrapping-paper, which was self. On the return of the vessel to Baltimore, received by the captain of the ship, and was H. objected to this purchase at Amsterdam, as carried to Havana, and there sold on account of being contrary to orders, and gave notice to W. C. & Co., and produced a loss, instead of the of his determination to hold him responsible for profit which would have resulted had the investall losses sustained in consequence of the breachment been made in marble tiles. As soon as of instructions, but received the goods and sold information of the breach of orders was rethem. W. brought assumpsit against H. to received, C. & Co. addressed a letter to B. & Co., cover the money advanced: Held, 1st, that W. expressing in strong terms their disapprobation had a demand against the defendant, which of the departure from their orders, but did not could be maintained in this form of action. signify their determination to disavow the trans2d, That whether or not the plaintiff could be action entirely, and consider the paper as sold made responsible in any form of action for the on account of B. & Co. Held, that C. & Co. possible loss resulting from the breaking up of were entitled to recover damages for the breach the intended voyage to St. Petersburgh, the de- of their orders; that their not having given fendant could not deduct from the plaintiff's de- notice to B. & Co. that the paper would be conmand, in this action, the amount of such loss. sidered as sold on their account, did not injure Willinks v. Hollingsworth et al., 6 Wheat. 240; their claim; and that the amount of the da5 Cond. Rep. 79. mages may be determined by the positive and direct loss arising plainly and immediately from the breach of the orders. Bell et al. v. Cunningham, 3 Peters, 69.

37. A factor, who was a consignee, in making sales of goods on consignment, is bound not only to good faith but to reasonable diligence. It is not sufficient that he has been guilty of no fraud, or of no gross negligence which would carry with it the insignia of fraud. He is required to act with reasonable care and prudence in his employment. Burrill v. Phillips, 1 Gallis. C. C. R. 360.

42. Where, by mistake, fraud, or accident, the tonnage and light duties, payable by law, are not paid by the owner of a vessel, an action of debt lies against him to recover them. But not against a mere consignee of the vessel, for he has no interest or special property in the vessel. United States v. Hathway, 3 Mason's C. C. R. 324.

38. He shall not be permitted to sell his own goods and take security, and at the same time sell the goods of his principal to the same party 43. Where bills of lading consign the prowithout security; he is bound to exercise, at perty to a consignee for sales and returns, he least as much care and diligence as to his fac-alone can endorse them, so as to convey the torage, as to his own private concerns. Ibid.

title. But subject to such an endorsement to a purchaser, the consignor may, by a legal conveyance, assign a legal title to them, so as to be good against his own creditors. D'Wolf v. Harris, 4 Mason's C. C. R. 515.

39. An agent or factor, who is ordered by his principal to ship goods in his possession, has no right to retain more than enough to secure such lien as he may have. He may do this, and obey the order as to the balance; or he may 44. The second proviso of the sixty-second send the whole to his consignee at the place di- section of the collection act of 1799, ch. 128, rected, with orders to deliver them to the prin- makes the consignee of goods liable as owner cipal, on being paid. But if he retain the whole, for the duties thereon; but it does not prevent because of a lien to a small amount, and any the consignee from passing, by sale or other'oss results from his breach of orders, he is re-wise, a good title to the same goods, subject sponsible. Jolly v. Blanchard, 1 Wash. C. C. R.

252.

40. If an agent or factor, a consignee, sell the goods of his principal, and has not received payment; or having received it, invests it in property for the use of his principal, or marks and puts it away as his, the latter has a right to it, and is entitled to all the profits made from it, either as against the factor or his general creditors. Aliter, if the factor applies the money to his own use, charging himself with the same in account with the principal. Hourquebie v. Girard, 2 Wash. C. C. R. 202.

41. C. & Co., merchants of Boston, owners of a ship proceeding on freight from Havana to the consignment of B. & Co., at Leghorn, and to return to Havana, instructed B. & Co. to invest the freight, estimated at four thousand six hundred petses, two thousand two hundred in marble

only to the payment of the duties thereon. If the consignee owes other bonds for duties, which are due and unpaid, he is entitled to no credit for duties at the custom-house: but the goods themselves may pass by sale, and are liable only for the duties payable thereon, and not for other duties on other goods, due and unpaid. Howland v. Harris, 4 Mason's C. C. R. 499.

45. Where a voyage was undertaken to Havana, and thence to Leghorn and back, and the owners ordered the consignees at Leghorn to apply their funds, estimated at four thousand six hundred petsos, to the purchase, first, of two thousand two hundred petsos' value of tiles, and the residue to invest in paper; and the consignees, accepting the orders, invested the whole funds in paper, because they fell short of the estimated sum, although a sum of one thousand seven hundred and fifty petsos might have been

Consignor and Consignee.

so invested: it was held, that the consignees | tain trover for them against the pawnee. Van were liable in damages for the breach of orders. Cunningham v. Bell, 5 Mason's C. C. R. 161. 46. The damages in such case are not to be confined to the transactions at Leghorn, but are to be calculated upon the actual injury to the plaintiffs, in the events of the voyage; taking into consideration the markets at Havana, and all other circumstances. Ibid.