PRESUMPTION OF DROVER's AUTHORITY TO SELL. 2;J9 



AiJcrson who is entrmicd Juj f/tc o/riier fo falce caftle to a salesman for 

 the market, has no implied authoritij {in the absence of proof of a custom to 

 pay the servant) to receive the proceeds of the sale {Letiice v. Judkins). 

 What is a reasonable presumption that a drover has authority to sell, 

 appears from Metcalfe v. Lumsden, which was a case of trover for 

 thirteen heifers. The plaintiff brought the heifers to Morpeth market ; 

 but not being able to sell them, entrusted them, without any direct 

 authority to sell, to a common drover, to take them to some land of 

 defendant's, ordinarily used for that purpose by farmers and cattle- 

 jobbers frequenting Morpeth market, to graze till the next market-day. 

 They were brought there on September 6th, and on the next day the 

 drover offered them for sale at a fair price to the defendant, stating 

 that he had authority from the plaintiff to dispose of them, and 

 absconded with the purchase-money. In a week's time the plaintiff 

 went to demand his cattle, and tendered the money due for agistment; 

 but the defendant refused to give them up, alleging that he had bought 

 them from the drover. The drover had sold cattle for the plaintiff in 

 Morpeth market on former occasions, and had also stood in the market 

 with the cattle in question. It was customary for drovers to sell cattle 

 in the market for their employers ; but there was no evidence that the 

 drover had ever sold cattle for the plaintiff except in the market, nor 

 was there any evidence that drovers had by custom an implied authority 

 to sell cattle on the road. 



Rolfe B. said : " An authority to sell may be either express, as when 

 an actual order to sell is given, or it may arise from ordinary usage, as 

 in the case of a servant in a shop or market, or where the master has 

 been in the habit of sending his servant to sell at a particular place. 

 Had the defendant purchased the cattle on the 6th of September on the 

 market, he might have been protected ; but with regard to the autho- 

 rity which the drover had on the 7th of September, the only evidence is 

 that he was ordered to take the cattle to depasture, and this, indeed, 

 appears at first to have been the defendant's own opinion. Afterwards, 

 however, on the drover representing to the defendant that he had 

 authority from the plaintiff to sell, the defendant buys the cattle from 

 him ; and who, then, is to suffer by the drover's dishonesty ? Clearly 

 the party who was guilty of incaution. The defendant might have 

 ascertained whether the drover had, in fact, authority to sell or not ; 

 but not having done so, and having afterwards refused to give up the 

 cattle to the real owner, on the ground of a purchase from a party 

 who, it turns out, had no authority to sell, he has been guilty of a 

 conversion." 



In Goode v. Jones it was settled that there is a privittj between the 



