Open main menu

Page:Harvard Law Review Volume 2.djvu/279

This page needs to be proofread.


SO received and appropriated.^ The business of such agents is uniformly conducted on the theory that they have such a right, and it would not be practicable for them to conduct it on the op- posite theory ; for if they were bound to regard the proceeds of all goods sold by them as belonging to the owner of the goods, it would be necessary for them to open a separate bank-account for every customer. This right, however, is strictly personal to the agent, and he n(iay refrain from exercising it if he choose. It can- not be said, therefore, as matter of law, that the proceeds of every sale made by such agent become ipso facto the property of the agent the moment they are received by him. Still, there is a presumption that they do, because there is a presumption that the agent exercises his right of making them his own. Consequently the principals of such agents have a choice of two remedies for recovering the proceeds of their property sold by their agents ; namely, a bill in equity for an account of the property sold, or an action of debt or indebitatus assumpsit for the recovery of the debt.^ If there is a controversy as to the amount which the prin- cipal is entitled to receive, the former is the proper remedy ; if there is not, the latter is abundantly sufficient.

What is said in the preceding paragraph, however, has no ap- plication to an agent who is specially employed to sell property^ and not as a part of his regular business ; for such an agent is ac- countable for the proceeds of the property sold as well as for the property itself.*

A stock-broker who is employed to buy stocks, shares, or securities is not accountable to his customer for the money re- ceived by him for the latter ; for the course of business is for the broker to buy in his own name and on his own credit and respon- sibility, and to debit his customer with the price ; and then, when the money is received from the customer, the latter is credited with the amount received. And even if the customer furnish the money in advance of the purchase, yet the course of business is the same, />., the broker credits the customer with the amount

1 Scott V. Surman, Willes, 400 ; Dumas, ex parte^ i Atk. 232, 234 ; Kirkham v^ Peel, 44 L. T. Reports, N. s., 195; Commonwealth v, Stearns, 2 Met. 343. A different view was expressed by Lord Cottenham, in Foley v. Hill, 2 H. L. Cas. 28, 35, but it was entirely obiter.

  • Wells V, Ross, 7 Taunt. 403.

< Commonwealth v, Foster, 107 Mass, 221.