1 See Benjamin on Sale, 205 et seq. (2d ed.).
2 Rucker v. Cammeyer, 1 Esp. 105; Hinde v. Whitehouse, 7 East, 558; Kemble v. Atkins, 7 Taunt. 260; Rowe v. Osborne, 1 Stark. 140; Henderson v. Barnewall, 1 Y. & J. 387; Beal v. M'Kiernan, 6 La. 407; Clason v. Bailey, 14 Johns. 484; Davis v. Shields, 26 Wend. 341.
3 Ibid.; Thornton v. Kempster, 5 Taunt. 786; Mitchell v. Lapage, Holt, N. P. 253; Cumming v. Roebuck, Holt, N. P. 172; Bird v. Boulter, 4 B. & Ad. 443; Davis v. Shields, 26 Wend. 341.
4 Aguirre v. Allen, 10 Barb. 77.
5 Henderson v. Barnewall, 1 Y. & J. 387; Story on Agency, § 29, 109; Magee v. Atkinson, 2 M. & W. 440.
6 Campbell v. Hicks, 4 H. & N. 851 (1858).
§ 431. So, also, he cannot act as agent of both parties where he is intrusted with authority to conclude the sale and to fix the terms himself, in behalf of each, for such a power would enable him to effect frauds. Thus, if A. employ him to buy certain goods at the lowest price, and B. employ him to sell similar goods at the highest price, he would not be autliorized to make a sale of such goods between those parties.1 So, also, a broker cannot, ordinarily, buy or sell on credit, unless he be justified in so doing by the usage of trade.2 So, also, a broker has, ordinarily, no authority to receive payment for property sold by him; and if the purchaser make payment to him, he does so at his own risk, unless from other circumstances an authority to receive it can be inferred.3 Insurance brokers are, however, considered to have acquired by usage an authority to adjust losses, and to receive payment of them; but they can only receive payment in money.4 But a broker may be authorized to receive payment, either in express terms, or by necessary implication from the circumstances; as, if he be empowered to sell as a principal; or, if he have been in the habit of receiving payment for the principal in previous dealings; and, in such cases, a payment to him will discharge the purchaser from all liability.5 A usage among stock-brokers that on the purchase of one broker of another, the buyer may within a certain time substitute another party-the real principal - as buyer, unless he can be reasonably objected to by the seller, is a reasonable and valid usage.6
1 It is no part of the ordinary duty or power of a broker to cancel engagements once properly made. Xenos v. Wickham, Law R. 2 H. L. 296 (1866), a very interesting case on this subject.
2 Baring v. Corrie, 2 B. & Al. 148.
3 Paley on Agency, by Lloyd, 362; 3 Chitty on Com. and Manuf. 210; Baring v. Corrie, 2 B. & Al. 147; Story on Agency, § 109.
4 Baring v. Corrie, 2 B. & Al. 148; Johnston v. Usborne, 11 Ad. & EL 557. 5 Kemble v. Atkins, Holt, N. P. 434.
6 And the buyer may sue the broker in such case for a breach of the contract. Reid v. Dreaper, 6H. &N. 813 (1861).
7 Dale v. Humfrey, El. B. & E. 1004 (1860); s. c. 7 El. & B. 266.
8 Humphrey v. Lucas, 2 Car. & Kir. 152.
1 Story on Agency, § 31; Wright v. Dannah, 2 Camp. 203. See also Walker v. Osgood, 98 Mass. 349 (1867); Farnsworth v. Hemmer, 1 Allen, 494; Lloyd v. Colston, 5 Bush, 587.
2 Henderson v. Barnewall, 1 Y. & J. 387; Paley on Agency, by Lloyd, 212; Story on Agency, § 60.
3 Baring v. Corrie, 2 B. & Al. 137; Campbell v. Hassel, 1 Stark. 233; Paley on Agency, by Lloyd, 279, 280; Story on Agency, § 109. See Hig-gins v. Moore, 34 N. Y. 417; 6 Bosw. 344.
4 Todd v. Reid, 4B.& Al. 210; Scott v. Irving, 1 B. & Ad. 605; Bous-field v. Creswell, 2 Camp. 545 and note; Richardson v. Anderson, 1 Camp. 43, note; Story on Agency, § 103, note, § 109; Russell v. Bangley, 4 B. & Al. 395; Bartlett v. Pentland, 10 B. & C. 760. A general usage that an insurance broker, instead of collecting the amount of a loss in money, may set it off against a claim which the insurance company has against such broker for other matters, is not binding upon the party insured, if unknown to him; and he may collect the amount of the loss of the company. Sweeting v. Pearce, 9 C. B. (n. s.) 534 (1861). See also Gabay v. Lloyd, 3 B. & C. 793; Scott v. Irving, 1 B. & Ad. 606.
5 Coates v. Lewes, 1 Camp. 444; Favenc v. Bennett, 11 East, 36; Whitehead v. Tuckett, 15 East, 400; Pickering v. Busk, 15 East, 38.
6 Grissell v. Bristowe, Law R. 4 C. P. 36 (1868), in the Exchequer Chamber, reversing the decision below, in Law R. 3 C. P. 112.
§ 432. The vendor is bound by all acts done by the broker within the limits of his authority. If, therefore, he have authority to sell without any limitation as to price, he may sell at any price which he himself thinks is reasonable and fair, under the circumstances.1 And knowledge on the part of the principal that it is the ordinary course of business for his broker to make a prepayment for goods amounts to a specific permission to the broker to do so; so that, in such case, if the goods should be destroyed before actual delivery to the principal, the loss will be the latter's.2 So, also, if he be employed to purchase goods of a general description, he cannot be made liable for not procuring them of a particular quality, provided they answer to such description. So, also, if there be no restriction as to the mode in which he shall sell goods, or as to the terms of sale, he may sell by sample, or with warranty.3 But it is well established that a broker or agent employed to sell has, prima facie, no authority to receive payment otherwise than according to the usual course of business.4 A person, however, who employs a broker to bargain for him in a particular market, thereby authorizes him to contract in the manner usual there, provided the usage be not of such a nature as to change the employment. But a person who holds himself out to act as a broker, and charges a brokerage, cannot set up, as against a person unconnected with the market, and ignorant of its usages, a usage that he should fill a different character from that of broker.5 A mere broker cannot sue in his own name on a contract made by him, wherein he is described as broker.1
1 East India Co. v. Hensley, 1 Esp. 112; Paley on Agency, by Lloyd, 208, 209.
2 Sentance v. Hawley, 13 C. B. (n. s.) 458 (1863).
3 Andrews v. Kneeland, 6 Cow. 354; The Monte Allegre, 9 Wheat. 643; Randall v. Kehlor, 60 Me. 37 (1872).
4 Per Keating, J., in Catterall v. Hindle, Har. & R. 267 (1866). This case was reversed in the Exchequer Chamber (Law R. 2 C. P. 368); but this general proposition was not disturbed. The reversal was on the ground that the court had undertaken to say, as matter of law, that payment in advance to a broker was ineffectual, - a matter which should have been submitted to the jury.
5 Mollett v. Robinson, Law R. 7 C. P. 84, 94 (1872), Cleasby, B.; s.c. Law R. 5 C. P. 646.
§ 433. It has in England now become settled law that when a contract for the purchase and sale of shares has been made between individuals, through their respective brokers, or with the intervention of jobbers, members of the stock-exchange, the lawful usages and rules of the exchange are incorporated into and become part of all such contracts, and the rights of the parties are determined by the operation of these rules and usages.2 In Bowring v. Shepherd, just cited, Kelly, C. B., said that the substantial effect of all the decisions, as applicable to such transactions, was, that when the dealings of all the parties are complete, by the giving the names of the ultimate buyer and the ultimate seller, and the acceptance by them respectively of the persons so named, the original contractor, the broker or jobber, was discharged, and a contract of sale arose between the ultimate buyer and the ultimate seller, capable of enforcement both at law and in equity.
1 Fairlie v. Fenton, Law R. 5 Exch. 169 (1870). A broker signing a contract note as selling broker for undisclosed principals, cannot sue as principal on the contract. Sharman v. Brandt, Law R. 6 Q. B. 720 (1871).
2 Bowring v. Shepherd, Law R. 6 Q. B. 309, 321; Grissell v. Bristowe, Law R. 4 C. P. 36; Coles v. Bristowe, Law R. 4 Ch. 3. In Mollett v. Robinson, Law R. 5 C. P. 646, 653 (1870), Bovill, C. J., says: " The general rule of law is, that persons who engage a broker to transact business for them in a general market authorize him to do so according to the general and known usages and customs of that market, although they themselves may not be aware of them; and if the business is transacted in the ordinary and usual course, the principals are bound by such usages and customs, whether they had actual knowledge of them or not." See Grissell v. Bristowe, Law R. 4 C. P. 36 (1868), in the Exchequer Chamber, holding the usage of the exchange reasonable, by which the buying broker substitutes another as buyer on the "name day," thus relieving himself from liability, provided he is one who cannot be reasonably objected to. See also, as to customs of the exchange, Cropper v. Cook, Law R. 3 C. P. 194 (1868); Maxted v. Paine, Law R. 6 Exch. 132 (1871); s. c. Law R. 4 Exch. 82, 203; Coles v. Bristowe, Law R. 4 Ch. 3 (1868); Duncan v. Hill, Law R. 6 Exch. 255 (1871); Davis v. Haycock, Law R. 4 Exch. 373 (1869); Allan v. Sundius, 1 H. & C. 123 (1862); Gibson v. Crick, ib. 142 (1862); Graves v. Legg, 9 Exch. 709; 11 ib. 642; 2 H. & N. 210 (1857).