The plaintiff, a manufacturing jeweller, was accustomed to send articles of jewellery to F, a retail jeweller, for sale on the terms of a letter written by F to the plaintiff, in which F, after acknowledging that he had had from the plaintiff ‘on sale or return’ the goods entered up to date in a book in the possession of the plaintiff, and that he was liable to account to the plaintiff for such goods, continued: ‘The goods referred to in that book mentioned are your property, and to remain so until sold or paid for, they being only left with me for the purpose of sale or return, and not be kept as my own stock. The goods I receive from you are to be entered at cost price, and my remuneration for selling them is agreed at one half the profit ‘.
Held: That upon the construction of the letter as a whole F. was employed as agent for sale ; that he was a mercantile agent within the Factors Act, 1889, and as such had implied authority to pledge the goods entrusted to him; consequently that the plaintiff could not recover goods pledged by F with the defendant without express authority from the plaintiff.
Cozens-Hardy MR said: ‘It is quite plain that by the mere use of a well known legal phrase you cannot constitute a transaction that which you attempt to describe by that phrase. Perhaps the commonest instance of all, which has come before the courts in many phrases is this: two partners enter into a transaction and say ‘it is hereby declared that there is no partnership between us’. The court pays no regard to that. The Court looks at the transaction and says ‘is this, in point of law, really a partnership?’ It is not in the least conclusive that the parties have used a term or language intended to indicate the transaction is not that which in law it is.’
Cozens-Hardy MR, Fletcher Moulton LJ
[1910] 1 KB 285, [1908-10] All ER 405, [1909] UKLawRpKQB 189
Commonlii
Factors Act 1889 1 2
England and Wales
Cited by:
Cited – Thames Cruises Limited v George Wheeler Launches Limited, Kingwood Launches Limited ChD 16-Dec-2003
The parties had previously worked to gether to provide ferry services on the Thames. A new tender to operate the services was not submitted. It was alleged that the Defendants had inequitably seized for themselves a business opportunity which the . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 August 2021; Ref: scu.195994
