paid him 2987., the price for which they were sold. The vendee disco- bonds were them saleable at the Stock Exchange; and he thereupon returned them to the plaintiff, who repaid the purchasemoney, without conferring with the defendant. The plaintiff did not disclose the defendant's sold the bonds, name when he and it appeared A YOUNG . COLE. SSUMPSIT for work and labour as a broker, and for money paid, money had and received, and on an account stated. Plea-Non-assumpsit. At the trial before Tindal, C. J. at Guildhall, at the sittings after Michaelmas Term, the following facts were in evidence: : The plaintiff was a broker on the Stock Exchange, and on the 26th of April, 1836, the defendant requested him to sell on his account four Guatemala bonds for 2507. each, and a sale having been effected to one Briant at 30 per cent., the defendant delivered the bonds to the plaintiff, and received a check for 2987. 15s. The following memorandum was signed by the plaintiff:— Sold for T. H. Cole, Esq. 1000 Guatemala bonds, at 30. £300 0 0 298 15 O On the 29th of April, Briant returned the bonds to the plaintiff, upon the ground that they were unsaleable and good for nothing, by reason of their not having been stamped by the Guatemala government; and the plaintiff, after making inquiries as to the validity of the objection, repaid Briant the money which he had paid for the bonds, without conferring with the defendant before he rescinded the contract. The bonds were issued by the Guatemala government in 1826, and in 1829 an advertisement was inserted in the London newspapers, requiring the holders of the bonds to produce them to an treated as prin- agent of that government to have another stamp affixed; since that period, cipals, and by the course of dealing on the Stock Exchange, all bonds which were sold had been stamped in pursuance of this notification. Inquiries were made, for the purpose of ascertaining if there was any agent of the Guatemala government in this country, who would affix the stamp to the bonds in question, but no agent could be found. that stockbrokers were were liable to be expelled from the Ex change, if they failed in performing their contracts:Held, that the plaintiff was authorized to rescind the contract, and that an action for money had and received was sustainable by the plaintiff, to recover back the 2981., without declaring upon an implied war The practice on the Stock Exchange was proved to be, that if a broker contracted to sell an article of a particular description, and failed to do so, the contractee was entitled to recover back the amount from the broker; and if he made default in paying the money, he was liable to be expelled from the Exchange. Before the sale of the bonds to Briant, the plaintiff and the defendant were both ignorant that an additional stamp was necessary to make the bonds marketable; and the plaintiff did not disclose the name of his principal when he sold the bonds to Briant. The defendant refused to return the 2987. 15s. to the plaintiff, but said in a letter which was in evidence, that if the bonds had defendant, that belonged to him, he would have returned the money; but it did not appear that the bonds did not belong to him. ranty by the he bonds were saleable. action. The plaintiff, thereupon, brought this It was objected, that the declaration was insufficient, inasmuch as it should have been drawn specially, on the implied warranty by the defendant, that the bonds were marketable; also, that the plaintiff was not entitled to rescind the contract with Briant until he had first communicated the facts to the defendant. The jury found a verdict for the plaintiff. Sir F. Pollock, in pursuance of leave reserved, obtained a rule nisi to enter a nonsuit upon the above grounds. Wilde, Serjt., and Ogle shewed cause.—In Child v. Morley (a), it was held that a broker, who contracted with others for the sale of stock at a future day, by the authority of his principal, who afterwards refused to make good the bargain, could not, by paying the difference to such third person, maintain an action on an implied assumpsit against his principal for the amount; but Lord Kenyon, C. J., said, "that if the plaintiff had been bound as guarantee for the defendant, to the purchasers of the stock, there could have been no doubt but that he might have recovered his whole demand." In the present case, it was proved that the plaintiff would have been expelled from the Stock Exchange, if he had not returned the money which he had been paid. In such a case, when a demand is rightfully made upon a broker, he is bound to comply with it, without waiting to communicate with his principal. This is not a case of a voluntary payment, but the plaintiff was under a responsibility and compelled to pay the money. The bonds, in the state in which they were, were mere waste paper, and altogether worthless. This is one of a class of cases in which the courts have considered the article sold, as being of no value whatever; and therefore there was a total failure of consideration. Bridge v. Wain (b), Jones v. Ryde (c). In Lucas v. Worswick (d), it was held that money paid by the plaintiff, through forgetfulness of facts within his knowledge, could be recovered; which is stronger than the present case, because the plaintiff was not bound to know that a stamp was necessary. In Street v. Blay (e), which might be relied upon, the article which was sold was of some value. There are several cases where parties placed in circumstances of responsibility have been held to be entitled to recover back money which they had paid, Austen v. Ward (f), Wilson v. Milner (g), Fisher v. Fallowes (h). Robinson, contrà.—It did not appear that the bonds were not binding on the state which issued them, notwithstanding a stamp was not affixed in pursuance of the advertisement. They were not, therefore, entirely worthless. It was merely proved that they were not saleable on the Stock Exchange. The plaintiff ought to have given notice of the objection to the defendant before he rescinded the contract, to give the latter an opportunity of endeavouring to have the stamp affixed. Nor could Briant have insisted on having the money returned, as he saw the bonds when he purchased them, and no fraud was imputed to the seller. And as the bonds were of some value, the action ought to have been brought upon the implied warranty that they were saleable. This is not a case where there was a total failure in the consideration, as in some of the cases cited; or where the party was compelled to pay over money, as in the cases relating to bailiffs and sheriffs. In Street v. Com. Pleas. YOUNG 7. COLE. Com. Pleas. Blay (i), in speaking of the right of a vendee to rescind a contract altogether by returning an article to the vendor, Lord Tenterden, C. J., says, YOUNG " It is, however, extremely difficult, indeed impossible, to reconcile this doctrine with those cases in which it has been held, that where the property in the specific chattel has passed to the vendee, and the price has been paid, he has no right, upon the breach of the warranty, to return the article and revest the property in the vendor, and recover the price as money paid on a consideration which has failed; but must sue upon the warranty, unless there has been a condition in the contract, authorizing the return, or the vendor has received back the chattel, and has thereby consented to rescind the contract, or has been guilty of a fraud which destroys the contract altogether." And the same rule is recognized in Gompertz v. Denton (k), 1 Wills. Saund. 269, b., Patteshall v. Tranter (1). Therefore the form of this action is misconceived. In Parkinson v. Lee (m), it was held, that upon a sale of hops by the sample, with a warranty that the bulk of the commodity answered the same, the law does not raise an implied warranty that the commodity should be merchantable; and, therefore, if there be a latent defect then existing in it, unknown to the seller, and without fraud on his part, such seller is not answerable though the goods turned out to be unmerchantable. TINDAL, C. J.-It appears to me that this was properly considered as money received to the plaintiff's use. When the plaintiff delivered the 2987. to the defendant, it was his own money, and he was liable to Briant as a principal. It was delivered upon a certain understood state of facts, namely, that the securities were, bond fide, Guatemala bonds, and upon the faith and in consideration that they were properly stamped and saleable in the market. But it seems to me that the consideration has failed, as completely, as if the defen- (i) 2 B. & Ado. 461. () 1 Har. & Wol. 178. (m) 2 East, 314. and ratified every thing which the plaintiff had done, for he did not prove that the bonds were not his own. The rule must be discharged. PARK, J., concurred. BOSANQUET, J.-I am of the same opinion. I agree with the cases which have been eited; but this is not a breach of a warranty, but a case where no con. sideration was given for the money which was paid. The bonds turned out to be but useless paper. Then, was this a voluntary payment made by Young to Briant? In Child v. Morley (n), it did not appear that the broker was under that sort of compulsion, which entitled him to call upon his principal to reimburse him after he had rescinded the contract; but here it was proved that, by the regulations of the Stock Exchange, the plaintiff would have been liable to be expelled if he had not returned the money, and that the broker is treated as a principal in the transaction. As between him and his principal he was still an agent, and was entitled to call upon the latter, for the money which he repaid when he rescinded the contract; and it appears to me that the declaration is sufficient. The defendant has also acknowledged his liability in the letter which he wrote to the plaintiff. COLTMAN, J.-The first question in this case which we have to consider, is whether the plaintiff could rescind the contract, and I think it is clear that he could do so. It was understood between the parties when the contract was made, that Guatemala bonds, as known in the market, should be delivered. The only remaining question is, whether, as the plaintiff was only agent to the defendant, it was necessary that he should communicate with him before he rescinded the contract? I am of opinion that it was not. When the defendant gave the plaintiff authority to go to the Stock Exchange to sell the bonds, he also gave him an authority to rescind the contract. (n) 8 T. R. 610. Rule discharged. VESTRIS'S Bail. April 21. 1 W. 4, s 5, which requires that bail shall not be changed without the ARCHBOLD opposed the justification of the bail; and objected, that the The rule Trin. defendant had previously given notice to justify bail, who were rejected by the judge; and now attempted to justify other bail, without having obtained the leave of a judge, in pursuance of R. T. 1 W. 4, reg. 1, s. 5, which directs that the bail, of whom notice shall be given, shall not be changed without leave of a judge." It has been held, that this rule applies to bail put in by the sheriff, Rex v. The Sheriff of Essex (a); and to bail for prisoners in custody, Stroud v. Kenny (b). Wightman. The rule is only applicable where the bail has been changed, and not where they were rejected after having duly appeared to justify. The (a) 4 M. & Scott, 247; 2 Dowl. P. C. 782. (b) Jervis, New Rules, 3d ed. leave of a judge, applies to cases where other bail jus tify, in consequence of the rejection of the first bail. VESTRIS'S Com. Pleas. parties here had notice that these bail would justify, and therefore there can be no surprise. [Bosanquet, J.-The rule was intended to preventt he practice of putting in sham bail in the first instance.] Here the bail were rejected, not because they were insufficient, but because they had been indemnified. The effect of holding that leave is required in this case, would be to inconvenience the sheriff in putting in other bail. The Court allowed the case to stand over, until the practice of the other Courts was ascertained. TINDAL, C. J.-We find that in both the other courts, after bail is rejected, the leave of a judge to change the bail is required. The bail must, therefore, be rejected. BOSANQUET, J., and COLTMAN, J., concurred. Bail rejected. April 27. A charge by an attorney for searching for an old judg ment, and advising his client as to the propriety of reviving it, is not a taxable item, under Exparte RICE. FV. LEE, moved that an attorney's bill of costs might be referred for taxation, upon the usual terms. The only item which rendered the bill taxable, was a charge made by the attorney for searching for an old judgment in this court, and advising his client upon the propriety of reviving it. In Sandom v. Bourne (a), it was held, that a charge for preparing a warrant of attorney, rendered the bill liable to taxation. So a charge for attending a party, to advise him on an action which had been brought against him. Smith 2 Geo. 2, c. 23. v. Taylor (b). TINDAL, C. J.-The item in this bill is one degree removed from any of of those which have been held to render a bill taxable. Interlocutory costs payable to a plaintiff, may be set off, under Hil. T. 2 W. 4, 93, against the IN HOLLIDAY V. Lawes. Hilary term, a rule was obtained by the plaintiff, calling on the defendant to shew cause, why the bail-bond should not be cancelled; which rule was discharged with costs, taxed at 157., on the 4th of February. On the 21st of February, the defendant was declared a bankrupt, and on the 10th March, the Costs of a judgment of non pros. in the same suit, without being subject to the defendant's attorney's lien. |