1831. BOWER v. JONES. which guaranty the Plaintiff employed the said Benjamin Tupling to sell goods for him on commission, according to the terms of the aforesaid agreement. That it was not the custom of the trade to which the Plaintiff belonged to allow a commission to agents upon bad debts, but that B. Tupling did from time to time credit himself in his account with the Plaintiff with certain sums for commission on certain sales effected by the said B. Tupling on behalf of the Plaintiff, which afterwards turned out to be unproductive through the insolvency of the purchasers, and which commission on such bad debts amounted to 147. 8s. That if Tupling had no claim to place this 147. 8s. to the credit side of his account with the Plaintiff, there was a balance due to the Plaintiff of 8l. 11s. 3d. exclusive of the sum of 277. 4s. 10d. paid into Court by the Defendant on ac count of the action; and exclusive also of the further sums thereinafter mentioned. That B. Tupling transmitted from time to time, at intervals of about three months, returns of the amount of sales made and cash received by him on account of the Plaintiff. That in the return sheet dated the 30th of June 1828, there was an entry amongst others of certain goods there specified, amour ting to 16l. 2s. 3d. as having been sold by B. Tupling to himself on the 17th of May 1828, which goods were subsequently paid for by B. Tupling in due course. That in the return sheet dated the 29th of September 1828, there was a similar entry of goods amounting to 38l. 6s. 3d. as having been in like manner sold by the said B. Tupling to himself, on the 28th of August 1828, for which he accepted a bill drawn by the Plaintiff on the 9th of October 1828, which bill was twice renewed, the last time on the 24th of March 1829; but neither the original nor either of the renewed bills was ever paid. That in the return sheet dated the 10th of December 1828, there was a similar entry of a sale a sale of goods by the said B. Tupling to himself, on the 21st of November 1828, amounting to 137. 2s. 6d., for which no payment was ever made. That at the close of the year 1828 the Plaintiff came to town, and personally investigated the said B. Tupling's accounts, but could not agree with him in balancing them. That the said B. Tupling in his return sheet, dated the 29th of December 1828, debited himself in the sum of 687. 14s. 6d. for goods sold by him, B. Tupling, to himself, which he entered in one gross sum under the designation of "sundries,” and without any particular date or dates, there having been before no entry of sales made by him without specifying the details of the articles alleged to have been sold. That in the last return sheet furnished by the said B. Tupling on the 30th of March 1829, there was an entry of goods, the particulars of which were specified as having been sold by B. Tupling to himself on the 31st of January 1829, amounting to 19%. 14s.; and another entry of a similar alleged sale to himself on the 20th of February 1829, amounting to 23l. 16s., the particulars of which were not specified. That for some time previously to the date of the last-mentioned return, the said B. Tupling was in embarrassed circumstances, and shortly afterwards took the benefit of the insolvent act, having previously, however, in pursuance of the Plaintiff's directions, returned to him the remainder of the goods then in his possession unsold, amounting in value to upwards of 600l. That no part of the amount of the said several alleged sales from the said B. Tupling to himself was ever paid or settled for, either in cash or by securities, except the two first as before mentioned. That the Plaintiff never remonstrated with the said B. Tupling upon his debiting himself with the said alleged sales or any of them, nor ever expressed any objection thereto. That considering the state of the said B. Tupling's circumstances at that period, F 2 1831. BOWER บ. JONES 1831. BOWER V. JONES. period, and the form in which the entry of the 29th of December 1828 was made, the arbitrator was of opinion that that entry or alleged sale, and those of the 31st of January 1829 and 20th of February 1829, were expedients to which the said B. Tupling, deeming the former alleged sales to himself to have been sanctioned by the Plaintiff, had recourse, in order to enable him to meet deficiencies in his accounts with the Plaintiff, and not for the purpose of re-selling the goods to customers of his own for a profit in the regular way of his trade. That the Plaintiff, in a letter addressed to B. Tupling on the 19th of February 1829, when referring to the general state of the accounts between them, included the amount of the alleged sales to Tupling under the head of accounts owing." That in another letter addressed to B. Tupling on the 31st of March 1829, the Plaintiff used the words "You can surely send me 207. on your own account." And a subsequent letter dated the 7th of April 1829, and addressed to B. Tupling by the Plaintiff, contained the following passage: "I am sorry to hear that your health will not permit you to follow your business: although we have been hitherto unfortunate in our business, I should have felt much pleasure in keeping up a correspondence and doing a little business with you. As for the agency business it does not answer; that I need not tell you; therefore the sooner it is given up the better." - The arbitrator then awarded and adjudged that the Plaintiff was entitled to recover of and from the Defendant under and by virtue of the said guaranty, exclusive of the said sum of 271. 4s. 10d. paid into Court as aforesaid, the said sum of 87. 11s. 3d., if the Court should be of opinion that the Plaintiff was by law entitled to disallow as between him and the Defendant all those sums for which credit was taken by Tupling as commission on sales which subsequently turned out to be unproductive, owing to the the insolvency of the purchasers: and further awarded and adjudged that the Plaintiff was entitled to recover of and from the Defendant, under and by virtue of the said guaranty, the said several sums of 131. 2s. 6d., 68l. 14s. 6d., 197. 4s., and 237. 16s., in addition to the said sum of 87. 11s. 3d., if the Court should be of opinion that the conduct observed by the Plaintiff in reference to the said alleged sales by B. Tupling to himself, did not amount in point of law to a sanction of the said transactions, so as to discharge the Defendant's liability in respect of the amount thereof, which said several sums amounted altogether to 133l. 8s. 6d., — and then directed that a verdict should be entered for the Plaintiff for the said sum of 1337. Ss. 6d., subject to the opinion of the Court; but if the Court should be of opinion that the Plaintiff could not, in point of law, disallow the said credits for commission on the bad debts as aforesaid, and by his conduct had discharged the Defendant from all liability in respect of the amount of the said alleged sales to B. Tupling, in that case he directed that a verdict should be entered for the Defendant. - Wilde Serjt. having obtained a rule nisi to enter up a verdict for the Plaintiff pursuant to the award, Jones Serjt. shewed cause. The Defendant is entitled to the verdict. First, by the express terms of the agreement Tupling is entitled to commission on bad debts; for he is to have the commission on all goods sold; the Plaintiff is to be responsible for bad debts; and Tupling is to draw his commission monthly. The custom of the trade cannot prevail against an express agreement.. Secondly, the loss upon the sales made by Tupling to himself is not within the scope of the Defendant's guaranty. Tupling has transmitted all the money he received, F 3 1831. BOWER V. JONES. 1831. BOWER V. JONES. received, and has returned all the stock on hand; and the Defendant's guaranty extends to no other matters. The course of dealing between the parties, and the Plaintiff's letters, shew that the Plaintiff never objected to the sales made by Tupling to himself; and as he permitted those sales to go on after Tupling had been under the necessity of renewing his bill for payment, the Plaintiff must take the consequence of his own remissness, and not cast it on the Defendant. In Bartlett v. Pentland (a) Lord Tenterden says, "If the plaintiffs had by their neglect, even though that neglect had been induced by the misrepresentation of their agent, placed the defendant in a situation different from that which he might have been in if no such neglect had taken place, there might be ground for contending that, in point of justice, they, and not the defendant, ought to be losers." Wilde. The parties must be presumed to have been dealing according to the custom of the trade, which would exclude the 147. 8s. claimed for commission on bad debts. It could never be the intention of the parties that the Plaintiff should lose his goods and pay commission for the loss. Then, with respect to the sales alleged to have been made by Tupling to himself, the Plaintiff may be admitted to have recognized the three first, having received payment on one, having consented to renew a bill on the other, and the third standing unimpeached on the award; but the three subsequent sales, styled in the award expedients, are in effect admissions that the amount of them, 68l. 14s. 6d., 197. 14s., and 231. 16s., was so much money had and received by Tupling to the Plaintiff's use, under sales made to others, and falsely ascribed to himself; money (a) 10 B. & C. 770. |