,
188 Sect.
2.
Rights of Principal
against Agent. Action for account.
Taking
of
account.
Interest.
402. Where an agent fails to pay over to his principal on demand moneys received by him, the principal may bring an action for money had and received (q). He may also claim an account [r).
Where
the agent is not in a fiduciary position, or the accounts are simple nature, the account will be taken in an ordinary action in the King's Bench Division (s). But if the agency is fiduciary (t), or the accounts are complicated (a), it is more correct to bring the action in the Chancery Division. Settled accounts cannot, as a rule, be reopened {h), but the principal may obtain leave to surcharge and falsify them (c). On proof of fraud (d), however, or of undue influence (e), the principal is entitled to have them reopened from the beginning of the agency (/). On taking an account, the agent is entitled to deduct expenses authorised by the principal, and all proper expenses (g), even though expended for unlawful purposes (/t). Except where he has been guilty of fraud (?), an action for an account is barred after six years from the time when the right of action accrued (j). of a
403. No interest is payable by an agent in respect of money received by him on his principal's behalf, except under some contract express or implied (k), or where there has been some default on his part (l), such as a dealing with the money in breach of duty or a failure to pay it over at the principal's request (?^), The in which cases interest is payable from the date of default (o) agent must also pay interest in all cases of fraud {p), and on .
See the cases cited Tinder this sub-section generally. for breach of duty {Great
(q) (r)
But the account must not include damages
Western Insurance Co. v. Cunliffe (1874), 9 Ch. App. o2o). (s) FoJeii V. Hill (1848), 2 H. L. Cas. 28 Barry v. Stevens (1862), 31 Beav. 258 myth V. Whifin (1872), 27 L. T. 330 York v. Stowers, [1883] W. N. 174. Fadwick v. Stanley (1852), {t) Makepeace v. Boyers (1865), 4 De G. J. & S. 649
9 Hare, 627. (a) (6) (c)
{d)
W.
Foley v. Hill, supra; Leslie v. Cliford (1884), 50 L. T. 590. Parkinson v. Hanburi/ (1867), L. E. 2 H. L. 1. Mozeley v. Cowie (1877), 47 L. J. (CH.) 271. Clarke v. Tipping (1846), 9 Beav. 284; Walsham v. Stainton (1863), 12
E. 63.
Watson y. Rodiuell (1879), 11 Ch. D. 150. /) Stainton v. Carron Co. (1857), 24 Beav. 346 Williamson v. Barbour {1811) 9 Ch. D. 529. {g) Bale v. Sollet (1767), 4 Burr. 2133, per Lord Mansfield, at p. 2134. {h) Bayntum v. Cattle (1833), 1 Mood. & E. 265. Be {i) North American Land and Timber Co. v. Watkins, [1904] 2 Ch. 233 (e)
(
Lands Allotment (./)
(k)
[1894] 1 Ch. 616. Knox V. Gije (1872), L. E. 5 H. L. 656. As to when interest is payable undei? a contract, see Co.,
title
Money and
Money Lending. {I)
{m)
Empire Mutual Life Assurance Co. (1880), 15 Ch. D. 169. As by employing it in his own business {Rogers v. Boehm (1799), 2 Esp.
Webster v. British
v. Oarrick (1870), 5 Ch. App. 233), but contrast Lord Chediuorth v. (1802), 8 Yes. 46. {n) Edgell v. Day (1865), L. E. 1 C. P. 80; Harsant v. Blaine (1887), 56 L. J. But a mere retaining of money which he ought to pay over, but (q. B.) 5li. which he has never been required to pay, is not sufficient, in the absence of fraud stakeholder is not liable to {Turner v. Burkinshatv (1867), 2 Ch. App. 488). ^dij iwiQTQ^t {Harington v. Hoggart (1830), 1 B. & Ad. 577).
702
Burdick
Edwards
A
Edgell Y. Day, supra. (p) Earl of Hardiuicke v. Vernon (1808), 14 Ves. 504. (o)
