M'Douall v. Brown

Subject_1 Sale—Factor—Authority to Receive Money— Bona Page: 16 ↓

A dealer in farm produce was in the habit for many years of purchasing from the proprietor's factor or factor's clerk, and paying the price to them. The factor was dismissed, the dismissal being intimated to the dealer. The proprietor sueing the dealer for a balance of price of cheese, dealer assoilzied as having bona fide paid the money to the clerk before intimation of the dismissal.

Colonel M'Douall of Logan brought this action in the Sheriff-Court of Wigtownshire against Alexander Brown, dealer in dairy produce, for a sum of £55, as the balance of the price of cheese sold by the pursuer to the defender in October 1861. The principal questions were (1) whether a certain sum of £50 had been paid by the defender to Davidson, clerk to M'Culloch, the pursuer's factor; and (2) whether that was a good payment as against the pursuer.

The first question was not disputed; on the second question the Court adhered, holding that as Davidson had sold the cheese in question, and had for many years been in the habit of buying and selling for M'Douall, the justice of the case required that if the money had not been accounted for by Davidson, and if M'Douall had not received the money (which was not proved), the loss must fall, not on Brown, but on the pursuer, who had not publicly disowned the factor's acting on his behalf.