VOL. VII.] AND PRIVY COUNCIL.

345

[HOUSE OP LORDS.]

BENJAMIN SCARF APPELLANT; H.L.(B.)

AND 1882
June 13
ALFRED GEORGE JARDINE RESPONDENT. -
Partnership—Dissolution—Liability of retiring Partner—Election to charge
old or new Firm.

A firm of two partners dissolved; one retired and the other carried on the
business with a new partner under the same style. A customer of the old
firm sold and delivered goods to the new firm after the change but without
notice of it. After receiving notice he sued the new firm for the price of
the goods, and upon their bankruptcy proved against their estate; and after­
wards brought an action for the price against the late partner:—
Held, reversing the decision of the Court of Appeal, that the liability of
the late partner was a liability by estoppel only, and not jointly with the
members of the new firm; that the customer might at his option have sued
the late partner or the members of the new firm but could not sue all
three together; and that having elected to sue the new firm he could not
afterwards sue the late partner. >

APPEAL from a judgment of the Court of Appeal.

The action was brought by the respondent against the appellant
for the price of goods sold in January and delivered in February
1878 to a firm trading under the name of W. H. Rogers & Co., of
which firm the appellant was a member until July 1877. On the
trial before Denman J. at Guildhall on the 30th of May 1879 the
facts were proved which are stated in the judgment of the Lord
Chancellor, and it was agreed that the only question to be sub­
mitted to the jury should be the date on which the respondent
first received notice of the appellant's retirement from the firm,
and that all the other questions arising in the action should be
tried by Denman J. without a jury. The jury found that the
respondent first received notice on the 25th of February 1878,
after the goods had been delivered. Denman J. gave judgment
for the appellant with costs. The Court of Appeal [Lord Cole­
ridge C.J. and Brett L.J. Baggallay L.J. doubting] reversed
this and gave judgment for the respondent for £45 2s. 3d. with
costs.
346 HOUSE OP LORDS [VOL. VII.

H. L. (E.) June 9, 12. Forbes Q.C. and G. E. S. Fryer for the appel-
1882 laut:—
SCARF The case is either one of novation or of election. If of
JARDINE. novation very slight circumstances are sufficient to make the
" new firm liable: Ex parte Bivolta, In re Conner ( 1 ) ; Bolfe v.
Flower (2). If not a case of novation the respondent was put to
his election and elected. He could not sue Scarf, Eogers, and
Beech together, as they were not jointly liable, but must elect
whether to sue Scarf as liable by estoppel, or Eogers and Beech
(the new firm) as really liable. No authority on the point can be
found. The nearest analogy is that of undisclosed principal and
agent; if the creditor with knowledge of the facts chooses to
sue the one he discharges the other and cannot afterwards sue
him. If the respondent had got judgment against the new firm
lie could not have afterwards sued Scarf: Kendall v. Hamilton (3);
Priestly v. Fernie (4). Proof in bankruptcy is equivalent to
judgment: Bankruptcy Act 1869 s. 54. The respondent's affi­
davit in bankruptcy is conclusive evidence against him: In re
Smith Knight & Co., Exparte Gibson (5); Bilborough v. Holmes (6).
The proof against Eogers and Beech would not have been ad­
mitted in their bankruptcy unless the respondent had agreed
to give up his claim against Scarf: Ex parte Appleby (7). If
Scarf had been sued alone before the Judicature Act he might
have pleaded in abatement the nonjoinder of Eogers. The
question whether an election has been made is one of fact not
law, and there is ample evidence here : Calder v. Dobell (8).

Finlay Q.C. and C. A. Russell for the respondent:—

The liability of Scarf, Eogers, and Beech was not alternative
but joint. The effect of not giving notice on the retirement of a
partner is to create a partnership by estoppel between the retir­
ing member and the new firm as regards old customers, because
they give credit on the faith of his being a partner. But if the
liability is not joint but alternative, there was here no election.
(1) Weekly Notes (1882) p. 76. (5) Law Rep. 4 Ch. 662.
(2) Law Rep. 1 P. C. 27. (6) 5 Ch. D. 255.
(3) 4 App. Cas. 504. (7) 2 Dea. 482.
(4) 3 II. & C. 977 ; 34 L. J. (Ex.) 172. (8) Law Rep. 6 0. P. 486.
 VOL. VII.] AND PRIVY COUNCIL. 347

The notice of dissolution was that the debt3 would be paid by H. L. (B.)
Kogers alone and the respondent corresponded with .Rogers alone. 1882
Issuing a writ is not an election : the plaintiff must sue to judg- SCABF
rnent: Priestly v. Fernie (1). Filing an affidavit of proof against j "•
the estate of an insolvent agent to an undiscovered principal after —
the undiscovered principal is known to the creditor, is not a con­
clusive election by the creditor to treat the agent as his debtor :
Curtis v. Williamson (2); Bottomley v. Nuttall (3) ; Keay v. Fen-
wick (4). Proof in bankruptcy is not equivalent to judgment
except for the specific purpose and in the case mentioned by the
Bankruptcy Act 1869 s. 54. The effect of filing an affidavit in
bankruptcy appears from the General Eules 1870 rr. 67-73.
The respondent never thought of electing, he was only pursuing
the ordinary course of business.
[They also referred to the Digest lib. 14 tit. 1 § 17.]

Forbes Q.C. replied.

June 13. LORD SELBOBNE L.O.:—

My Lords, the facts in this case are few and simple, but they
raise a question which may be of some general importance, and
which seems, from what has been stated at the Bar, to be as yet
undetermined by authority.
There was a firm carrying on business, under the name of
VV. H. Bogers & Co., in Manchester, with which the plaintiff,
Mr. Jardine, had dealings. I t consisted at first of two partners,
the defendant, Mr. Scarf, and Mr. W. H. Bogers. On the 27th of
July 1877 those two persons dissolved the partnership between
them, and another person, named Beech, joined Mr. Bogers, and
they carried on the same business, under the same name and at
the same place, from that time forward. Of this the Plaintiff,
Mr. Jardine, knew nothing until the 25th of February 1878. In
the meantime, in January 1878, goods were ordered from him on
behalf of the firm carrying on business under the name of W. H.
Bogers & Co., according to the ordinary course of business—which

(1) 3 H. & C. 977; 34 L. J. (Ex.) (3) 5 C. B. (N.S.) 122; 28 L. J.

172. (C.P.) 110.
(2) Law Eep. 10 Q. B. 57. (4) 1 C. P. D. 745.
VOL. VII. 3 2 B
348 HOUSE OF LOEDS [VOL. YII.

H. L. (E.) I presume was the same as had prevailed before the dissolution of
1882 partnership in the previous month of July—goods were ordered of
SOAHP the plaintiff, and were delivered by him in February 1878 at the
ace
JAEWNE. pl of business of the firm. At the time when they were
~— ordered, and at the time when theyJ were delivered, he was
Lord Sclliorne, ' '
LC
- ignorant of the dissolution of partnership which had in fact taken
place, and of the fact that the business was then being carried on
not by Mr. Scarf and Mr. Rogers but by Mr. Rogers and Mr.
Beech. He became aware of those facts upon the 25th of Feb­
ruary 1878 on receiving a circular dated on the 21st of the same
month of February, by which notice was given to him, and by
which the date of the dissolution of partnership was mentioned
as having taken place on the 27th of July 1877; and it was at
the same time stated that all debts owing to or by the old firm
would be received and paid by Mr. Rogers alone, who would con­
tinue to carry on the business as theretofore, in partnership with
Mr. Beech, under the same style and firm. •
The plaintiff afterwards supplied other goods to the new firm.
He made no break in the accounts in his books. He rendered an
account consisting of the old and the new debts—by " the old " I
mean the debt which had been incurred before he became aware
•of the dissolution of partnership: by " the new " I mean that
which had been incurred afterwards—he rendered that account to
the new firm. He had some correspondence with them, looking
to them as the persons from whom he might expect payment of
the whole of that demand; and they on the other hand replied
in the correspondence as being prepared to liquidate the debt;
they made some payment on account, and they gave a cheque for
the balance on the 22nd of July 1878, which was post-dated a
week. That cheque when presented was dishonoured; and on
the 7th of August 1878 the plaintiff commenced an action against
Rogers and Beech for the balance, which included the present
demand, that is to say included the demand for the goods which
had been ordered in January and supplied in February before
notice of the dissolution of partnership.. That action was stopped,
not by any discontinuance on the plaintiffs part, but by the
failure of the new firm, which went into liquidation on the 16th
of August 1878. Under this liquidation the plaintiff proved as a
VOL. VIL] AND PRIVY COUNCIL. 349

creditor of the new firm, by an affidavit in which he swore that H. L. (E.)

Bogers and Beech were justly and truly indebted to him in the 1882
sum of £125 19s. Id. for goods sold and delivered by him to SOABP
Bogers and Beech, that sum including the goods in question. JABMNE
Tour Lordships, I think, must take it upon the facts as they ■-—
L
appear that no objection was made to that proof; that it was -°-
never retracted; that it was admitted; and although it does not
appear upon the proceedings that a dividend has been paid under
it, yet at all events, for anything that your Lordships know
to the contrary, that may be the case, or may be the case here­
after.
Now after the liquidation and after the proof the present action
was brought by the plaintiff against Mr. Scarf, who in point of
fact had ceased to be a partner in July 1877, who in point of fact
had given no authority to order the goods in question upon his
credit, and who as between himself and the persons who did order
the goods was at the time when they were supplied a stranger to
the business. On the other hand, the persons who actually
ordered those goods and to whom they were supplied were Bogers
and Beech. They were the persons alone interested in the
business, and they were undoubtedly, upon ordinary principles,
liable for what they so ordered. The defendant also might be
held liable—about that there can be no doubt; because the
principle of law, which is stated in Lindley on Partnership (1) is
incontrovertible, namely that" when an ostensible partner retires,
or when a partnership between several known partners is dissolved,
those who dealt with the firm before a change took place are
entitled to assume, until they have notice to the contrary, that
no change has occurred;" and the principle on which they are
entitled to assume it is that of the estoppel of a person who has
accredited another as his known agent from denying that agency
at a subsequent time as against the persons to whom he has
accredited him, by reason of any secret revocation. Of course in
partnership there is agency—one partner is agent for another;
and in the case of those who under the direction of the partners
for the time being carry on the business according to the ordinary
course, where a man has established such an agency and has held
(1) Vol. i. p. 429, 3rd Ed.
3 2B 2
350 HOUSE OF LOEDS [VOL. TIL

H. L. (E.) it out to others, they have a right to assume that it continues until
1882 they have notice to the contrary.
SOABF There was therefore in this case undoubtedly a state of circum-
s ai
JABDINE. t >ces which would have entitled the plaintiff, if he had thought
urcfsdiTorne ^*> *° ^ ° ^ ^Tl Scarf liable, the credit being given to him and to
i:,C-
Eogers, there being no knowledge on the part of the plaintiff of
the dissolution of partnership; no knowledge of any revocation of
the agency at the time when these goods were delivered. On the
other hand, if you look not to the estoppel but to the fact, the
plaintiff was entitled to hold the persons who actually gave the
order and received the goods, and were interested in the profit
and loss of the firm which ordered them, liable to him; those
persons being not Scarf, Eogers, and Beech, or Scarf and Eogers,
but Eogers and Beech alone.
Now it appears to me that the real question which your Lord­
ships have to determine is not as it was treated in the Court
below—in I think both the Courts below—namely, the question
of what is called " novation;" but it is this, whether in that state
of circumstances there was a concurrent joint liability of the
three persons, Scarf, Eogers, and Beech, upon the principles
which I have stated; or whether the plaintiff had a right to make
his choice whether he would sue those who were liable by
estoppel, or sue those who were liable upon the facts. Put it as I .
can I am unable to understand how there could have been a joint
liability of the three. The two principles are not capable of
being brought into play together: you cannot at once rely upon
estoppel and set up the facts; and if the estoppel makes A and
B liable, and the facts make B and C liable, neither the estoppel
nor the facts, nor any combination of the two can possibly make
A, B, and C all liable jointly.
Therefore it appears to me that if the plaintiff chose to go
upon the facts and to make the persons who actually ordered and
got the benefit of the goods his debtors (which he had a plain
and certain right to do), he entirely disavowed the estoppel and
could no longer set it up. If on the other hand he chose to go
upon the estoppel, then Beech being a stranger to the liability
upon that footing, he could only sue Scarf and Eogers. One way
of testing it would be by inquiring what was the rule under the
VOL. VII.] AND PRIVY COUNCIL. 351

old system of pleading. If at that time Scarf and Eogers had H. L. (E.)
been sued, could they have pleaded in abatement that Beech 1882
ought also to be joined as being also liable ? I think most clearly SCARF
they could not. And upon the other hand if Rogers and Beech jAKo'INE
had been sued, still more impossible would it have been for them
L
' Lord Selborne,
Lc
to plead in abatement that Scarf ought also to be joined, for he --
was neither a partner when the goods were ordered, nor as
between him and themselves could any liability possibly have
attached to him.
I t seems to me therefore that the plaintiff was necessarily put
to his election. He might hold either Rogers and Scarf, or
Rogers and Beech, liable: he could not hold Rogers, Scarf, and
Beech all liable together. That makes it unnecessary for me to
say much upon the question of novation, except that if your
Lordships should differ from the Court of Appeal in this case you
will have the satisfaction of feeling that you do so on grounds
which do not seem to have been clearly or fully presented, if
they were presented at all, to the Court of Appeal. In the Court
of first instance the case was treated really as one of what is
called "novation," which as I understand it means this—the term
being derived from the Civil Law—that there being a contract in
existence, some new contract is substituted for it, either between
the same parties (for that might be) or between different parties;
the consideration mutually being the discharge of the old con­
tract. A common instance of it in partnership cases is where
upon the dissolution of a partnership the persons who are going
to continue in business agree and undertake, as between them­
selves and the retiring partner, that they will assume and dis­
charge the whole liabilities of the business, usually taking over
the assets; and if in that case they give notice of that arrange­
ment to a creditor, and ask for his accession to it, there becomes
a contract between the creditor who accedes and the new firm, to
the effect that he will accept their liability instead of the old
liability, and on the other hand that they promise to pay him for
that consideration.
Now if this case had rested upon that ground (on which it
appears to have been put in the Court of first instance), 1 could
not myself have agreed in the decision at which the Court of first
352 HOUSE OP LOEDS [VOL. VII.

H. L. (E.) instance arrived; because there is really only one act done upon
1882 which a serious argument, as it seems to me, could be founded in
SCAB* favour of novation, if the circumstances had required that the
case 8
JAKDINE h° u ld be put upon that ground. I mean the giving of the
cheque which I have alreadyJ mentioned, on the 22nd of July J
Lord Selbomc, ^ '
kc. 1878 by the new firm. Down to that time it was, as it seems to
me, merely in the natural and ordinary course of things that
when the notice of dissolution referred to Mr. Kogers (who was
continuing to carry on the business of that firm with Beech), as
the person who would receive and pay all debts owing to or by
the old firm, either Mr. Eogers or his firm should act in the
liquidation of the affairs and debts of the old concern; and the
mere corresponding with them, the mere sending in the account to
them, would not, as it seems to me, make Beech liable unless he did
something to make himself liable beyond carrying on that kind
of correspondence. Then, upon the other hand, is there sufficient
evidence of the intention which would be necessary on the part of
the plaintiff to relinquish these original debtors? The fact of
this cheque being given, which as I have said is the only thing
which can be relied upon as shewing that Beech was willing to
make himself liable, is perfectly consistent with the plaintiff's not
relinquishing the original debtors. If it results in payment he is
perfectly entitled to take it. If it does not result in payment it
will not fulfil its original object. It did not result in payment,
and the action followed. The proof in bankruptcy afterwards
being in invitos, though it might be some evidence of the intention
of the plaintiff to get what he could out of Eogers and Beech, yet
certainly would be no evidence of any accession on the part of
Beech to the liability, which was not upon him at all.
I therefore should not have differed from the opinion of the
Court of Appeal if I had thought (as the Court of Appeal seem to
have treated it) that the case depended upon what is called the
doctrine of novation. I am inclined to say that the facts which
have taken place were susceptible of an interpretation consistent
with an intention on the part of the plaintiff to retain his original
debtors, at all events at the time of action brought, and that
on the other hand there was nothing to make Beech a debtor if
he had not been so before. But as Beech was really a debtor,
VOL. Vn.] AND PRIVY COUNCIL. 353

the whole doctrine of novation disappears from the case, and H. L. (E.)
the question is which I originally stated, namely whether it is 1882
is possible, after choosing to hold those who actually gave the gCARP
order and received the goods liable, and proceeding against them - "•
as debtors in such a way as to amount to a distinct election to
Lord Selborno,
Lc
take their liability, to retract that and to fall back upon the --
liability which, on a different principle, might have been asserted
against the other two, that is to say against Scarf and Rogers, to
the exclusion of Beech. I think that the plaintiff was bound by
his election, and that after approbating the liability according to
the facts, and taking as his debtors those who had actually given
the order, he could not when it suited his convenience retract it,
reprobate it, and go back upon the liability, by estoppel, of the
man who never gave the order at all.
Then did the plaintiff do that which was, and ought to be held
as, an election of liability ? I think that he did, with full know­
ledge of all the facts from the 25th of February. He not only
carried on the correspondence to which I have referred—which
might have been entirely consistent with his reserving his right
to elect; he not only received the cheque—upon which I am dis­
posed to make the observation that taking it would not have
been a conclusive election—but he brought his action against
Eogers and Beech; and not only did he bring his action, but
when the action was stopped by the liquidation he carried in his
proof, swearing that they were justly and truly indebted to him
for the goods as sold and delivered by him to them. Eogers and
Beech were in point of fact the debtors, and he had the benefit
of that which really (without going into any technical distinc­
tions) for this purpose appears to me to be a sufficient ground of
judgment.
I do not think it necessary to go into any of the cases which
have been mentioned, because I think that the principle is per­
fectly distinct. The case, which was relied upon by the respon­
dent, of Curtis v. Williamson (1) simply held that the mere act of
making and filing in bankruptcy an affidavit of the kind which
was made was not one as to which the party would have no locus
penitentiae under any circumstances, where he had been desirous,
(1) Law Rep. 10 Q. B. 57.
354 HOUSE OF LORDS [VOL. VII.

[H. L. (E.)J when he had fully considered the matter, of withdrawing it before
1882 it was put upon the file; and nothing was done, so far as appears,
SCAIIF after it was put upon the file. There was nothing to bind him to
ms
JARDINE election except that inadvertent and (at the time when it was
done) unintentional act of his agent: and the Court were quite
l
Lord Selborno, ' °
Lc
- '- right in holding that that ought not to be regarded as an election
by him.
I need not refer particularly to the facts of Bilborougli v.
Holmes (1), but a proof, under circumstances similar to the pre­
sent, was held, upon the principle of election, to bind the party
who made it. In Bottomhy v. Nuitall (2) an acceptance had been
given, which was evidence of a successive obligation, and proof of
it would by no means extinguish or destroy any right which the
party might have upon the original debt and the original con­
sideration.
There is, therefore, as was frankly admitted at the Bar, no
direct authority upon this point. Your Lordships are obliged to
determine it upon principle; and on principle I think your Lord­
ships ought to hold that the Plaintiff was put to his election, that
he made it when he brought the action and proved in the liquida­
tion, and that he cannot now, consistently with the election which
he has made, hold Mr. Scarf liable.
I therefore move your Lordships, that the order under appeal
be reversed; which will have the effect of restoring the judgment
of the Court of first instance ; and that the defendant (the appel­
lant here) have his 'costs in the Court of Appeal and in this
House.

LOBD BLACKBURN:—

My Lords, I am of the same opinion. This was an action

against Scarf to recover the price of goods sold and delivered.
It is admitted that on the 30th of January 1878 the goods were
ordered from the plaintiff Jardine by Eogers, he sending the
order in the name of the firm of VV. H. Eogers & Co., which was
the name under which he and Scarf had traded, and under
which name they had dealt with the plaintiff; that the plaintiff
well knew that he and Scarf had been the persons so trading;
(1) 5 Oh. D. 255. (2) 5 C. B. (N. S.) 122 ; 28 L. J. (C.P.) 110.
VOL. VII.] AND PEIVY COUNCIL. 355
that those goods thus ordered upon the 30th of January were H. L. (B.)
afterwards supplied, part upon the 1st of February, part upon 1882
the 16th and part upon the 20th. One question of fact was, gCABF
when had the plaintiff, Jardine, notice of what was the fact,. , »•
namely that Scarf had ceased to be a partner, and that at the
time when the goods were ordered and at the time when the —
goods were supplied, the firm of Eogers & Co. consisted not of
Eogers and Scarf but of Eogers and Beech, who had not been
formerly a partner but had come into partnership with Eogers
afterwards and not till Scarf had retired ? Now on that, I
understand, the question went to the jury.
The fact was plain that on the 5th of February 1878 this
notice was printed in the Gazette: " Notice is hereby given that
the partnership heretofore subsisting between us, the undersigned
Benjamin Scarf and William Henry Eogers, carrying on business
as merchants at 32 Church Street, Manchester, under the firm of
W. H. Eogers & Co., was dissolved by mutual consent on the 27th
day of July last. All debts owing to or by the said firm will be
received and paid by the said W. H. Eogers alone, who will con­
tinue to carry on the business as heretofore, in partnership with
the undersigned James Beech, under the firm of W. H. Eogers
& Co." If Mr. Jardine, the plaintiff, had not been a person^who
had dealt with the former firm, the notice in the Gazette would
have given him notice as from that 5th of February which was
after the order had been given upon the 30th of January. The
goods were delivered at different times, as I have stated, substan­
tially after the 5th of February; and it was material to ascertain
when it was that Mr. Jardine got actual notice. As soon as he
was aware of this notice being published in the Gazette it is quite
plain that he would know that the authority which had originally
belonged to Eogers to bind himself and Scarf had been revoked.
But he was not bound to read the Gazette ; and in point of fact it
appears, according to the finding of the jury, that he did not read
it; and it was not until the 25th of February that he received a
circular, at the bottom of which was appended the Gazette notice,
and which circular was in these terms: " Sir, I beg to call your
attention to the annexed notice of dissolution of partnership
lately existing between Mr. Benjamin Scarf and myself, and I
356 HOUSE OP LOKDS [VOL. VII.

H. L. (E.) have the pleasure to inform you that Mr. James Beech has joined
1882 me in the business, and will take an active part. The style of
SOABP the firm will not be altered. Undernoted are the signatures of
!3ac
JABDINE. k P a r t n e r - Yours truly, W. H. Eogers ;" then the signatures
were given, and below that was a copy of the notice which had
Lord Blackburn. .
been previously published in the Gazette. The finding of the jury
was that this notice came to Mr. Jardine on the 25th of February,
and not sooner.
Now that being the case, the question then arose, what defence,
if any, was proved. I t was agreed that this should be deter­
mined by the Court without asking any further question of the
jury, but taking the evidence and drawing the inferences of fact,
whether there was a defence or not. On that Denman J. who
tried the case thought (it was apparently put to him in that way)
that the question was whether or not there was novation; which
the Lord Chancellor has just said (and I quite agree with him)
is another word for accord and satisfaction by giving in substitu­
tion the liability of another person upon another contract in lieu
of the contract for which the former partners were liable; and
Denman J. thought that there had been a novation proved.
When the case came before the Court of Appeal the majority
of the Court of Appeal (Baggallay L.J. seems to have doubted
about it) thought that the novation in that sense was not proved.
I do not feel quite certain whether if I knew all the evidence (for
it has not been brought fully before usj—if I thought the question
was whether there was novation or not—I should have agreed with
them that on the evidence brought before us it was not in this
case proved. I need not, however, enter into the question how
that was; because my opinion, which leads me to concur in the
judgment which has just been moved, is that that was not the real
question—that there was a mistake and a misapprehension on the
part not only of the counsel who argued it, but of the Judges who
heard the case, when they thought that the question was that of
novation, the defence really depending upon a prior question.
Though the amount now in dispute is very small, the question
is an important one. I do not think there can be any doubt (it
is very old law indeed) that where a person has given authority
to another (it is not peculiar to partnership) the authority being
VOL. VII.] AND PRIVY COUNCIL. 357

such as would apparently continue, he is bound to those who act H. L. (E.)

upon the faith of that authority, though he has revoked it, unless 1882
he has given the proper notice of the revocation. In this case I SOABF
think there can be no doubt that Rogers having been partner with j ^ m E
Scarf had authority, and apparently continuing authority, to bind ——
Scarf as to all matters concerning the partnership, and that Mr.
Jardine being an old customer had a right to believe that that
authority continued until he was told that it was revoked. But
then I do not think that the liability is upon the ground that the
authority actually continues. I think it is upon the ground, as
has been very well put and explained in Freeman v. Cooke (1)
that there is a duty upon the person who has given that authority
if he revoke it, to take care that notice of that revocation is given
to those who might otherwise act on the supposition that it con­
tinued ; and the failure to, give that notice precludes him from
denying that he gave the authority against those who acted upon
the faith that that authority continued. I put rather an emphasis
upon those last words " against those who acted upon the faith
that that authority continued," for I think that no man has a
right to say " I know now that the authority was in fact revoked,
but I will continue to go on, and will do things subsequently, and
act upon the supposition that I hold this person liable, though I
am not actually acting upon the faith that he has given authority,
but I am acting upon the ground that I find another is really
liable, and I will only come on him if that other does not pay."
I do not think he can do that. The question therefore is t h i s v
was Mr. Jardine acting upon the faith that it was so ?
Now Mr. Jardine upon the 30th of January, as far as appears
upon the evidence, had never so much as heard of Mr. Beech.
Mr. Jardine when he received the order from W. H. Eogers & Co.
had every reason to think that he was contracting to supply these
goods to Eogers and Scarf, and he did supply the substantial part
of the goods on the 1st, 16th, and 20th of February, before he had
any notice that he was not supplying them to Bogers and Scarf.
Therefore clearly at that time he was in the case of a person who
had acted upon the faith that W. H. Rogers's authority when he
gave the order still continued when he supplied the goods; and
(1) 2 Ex. 654.
358 HOUSE OF LORDS [VOL. VII.

H. L. (E.) he therefore certainly had a right to hold Scarf liable on that

1882 ground. But it is quite clear from the notice, and the circular
SCARF which I have already read, that on the 25th of February he
JARDINB became aware that though Eogers had apparent authority, and
though he having acted upon that apparent authority had a
right, if he pleased, to hold Scarf liable, yet in point of fact
Scarf was not really a principal, and had not given real autho­
rity; that in point of fact Rogers was not acting by Scarf's
authority but by Beech's authority, and that Rogers and Beech
were the real persons who had ordered the goods and who had
received them, and were the persons who were therefore liable ;
because in fact Bogers had authority from Beech and had not in
fact authority from Scarf.
The first question therefore which arises is, could a person who
knew that he held both Beech and Bogers liable, and had very
rightly the power to say " I will treat this as being a joint liability
of Bogers and Beech " say " I will treat it not only as the joint
liability of Rogers and Beech, but as the joint liability of Rogers,
Beech, and Scarf," treating them all three as jointly liable ?
And certainly, though counsel could not [produce any precise
authority upon the point, I should myself, unless I had seen
what the Judges of appeal had here said, never have entertained
the slightest doubt that he could not. I should not myself
have entertained a doubt that in old times a plea in abatement,
in an action against Rogers and Beech for not joining Scarf,
would have been bad; nor could I have doubted that in old times
if an action had been brought against Rogers, Scarf, and Beech
. jointly, there would have been a nonsuit entered, upon the ground
that there was a variance in the proof—that there was no proof
that the three were liable. I say, I should not have doubted
that at all if I had not found (unless there has been some mis­
print, or some inaccuracy in the shorthand note) that that was
not the view of the Court of Appeal. Lord Coleridge is reported
to have said, " The three partners are all primarily liable clearly."
I think that at the moment when he said that he could not have
had the facts before him. The three never were partners at all—
I cannot see how he could possibly say that that was the case if
he remembered the facts. Brett L.J. does not say that in terms,
VOL. TIL] AND PBIVY COUNCIL. 359

but he does say what almost involves the same thing. When he H. L. (E.)
treats it as a novation he says " I cannot infer from the fact of his 1882
making a claim against people with respect to whom he had a SCARP
valid claim " (by that he means Rogers and Beech) "that he had JAKMNE.
given up his claim against another person who was liable to him." J^[ b n r n
Now I do not think that that other person (Scarf) was as I have
said before, liable to Jardine. Scarf was precluded or estopped
from denying that he had given the authority which would have
made him liable, if the fact had been so, but I do not think that
it was so; and I agree with what the Lord Chancellor has said,
that the difference is an important one.
There seems not only to be no distinct authority upon the
subject, but there really seems to have been a doubt in the minds
of these able Judges (at least it is quite clear that they do not
seem to have perceived the point clearly) whether or no the
Plaintiff could consider all three persons jointly liable. I think
it important to say distinctly that in my opinion he could not,
and to say that the right which the Plaintiff had when he got
the notice on the 25th of February was to sue either at his option,
but he was not bound to sue Scarf. He might very reasonably
and properly say " I think that I have a legal right to hold
Mr. Scarf liable because he did not give notice to me in time;
but I am not going to do so. I find now that I have a right
to hold Rogers and Beech liable and will do so;" and if he had
communicated that to the parties, there could be no doubt at
all that when he had elected thus to charge Rogers and Beech
and Rogers and Beech only, there would have been no question
whatever that it was a final and conclusive election and that he
could in no way after that charge Scarf. But he had also a right
if he pleased to say " I will proceed upon the ground that Scarf
has made himself liable to me. I will hold Scarf liable." But in
that case I think he could not hold Beech also liable. I t seems
to me that he had his choice between the two: he had his choice
whether he would hold Rogers and Beech liable as in fact they
were, or Rogers and Scarf liable as he had supposed they were,
though Scarf was not liable in fact; but he could not hold both
sets of persons liable. And then comes the question which ought
to have been decided, not whether there was a novation (upon
360 HOUSE OF LORDS [VOL. VII.

H. L. (B.) which probably if I had thought that that was the question I
1882 should have agreed with the majority of the Court of Appeal)
SCABF but whether the Plaintiff had before the 30th of September, the
a e a
JABDIME. ^ * * which he for the first time made a claim against Scarf,
made a final determination of the election by which he had to
J
Lord Blackburn.
choose which of the two sets of parties he would hold liable.
' ■ Nk>w on that question there are a great many cases; they are
collected in the notes to Bwrnpor's Case (1), and they are uniform
in, this respect, that where a man has an option to choose one or
other of • two inconsistent things, when once he has made his
election it cannot be retracted, it is final and cannot be altered.
"Quod semel placuit in electionibus, amplius displicere non
potest." That is Coke upon Littleton (2), and I do not doubt
that there are many older authorities to the same effect; but that
rule has been uniformly acted upon from that time at least down
to the present. When once there has been an election to do one
of the two things you cannot retract it and do the other thing;
the election once made is finally made.
. But upon that comes the question which is the one that now
arises, whether there was evidence here on which your Lordships
should find as a fact that there was an election. In Clough v.
London and North Western Railway Co. (3) the Exchequer
Chamber had to consider that question a good deal in a case of
some importance in which the judgment was carefully considered.
I wrote it myself and I say nothing further about it than this,
that i t had the full assent of all the other Judges. The result of .
what is there said is that where there is a right to elect the party
is not .bound to elect at once ; he may wait and think which way
he will exercise his election, so long as he can do so without
injuring other persons, and accordingly in that particular case
if was.held that he had not lost his right to elect by a reasonable
waiting under rather peculiar circumstances; but when he has
once fully elected it is final.
I may also refer to the case of Jones v. Carter (4) as most
neatly stating the point. The principle, I take it, running
through all the cases as to what is an election is this, that where
:
"' ' (1) 1 Sm. L. 0. 8th ed. 47, 54. (3) Law Rep. 7 Ex. 34.
(2) 1'46 a. (4) 15 M. & W. 718.
VOL.VIL] AND PEIVY COUNCIL. 361
a party in his own mind has thought that he would choose one of H. L. (E.)
two remedies, even though he has written it down on a memo- 1882
randum or has indicated it in some other way, that alone will not SCABP
bind him ; but so soon as he has not only determined to follow one j *•
of his remedies but has communicated it to the other side in such
Lord Blackburn. •
a way as to lead the opposite party to believe that he has made
that choice, he has completed his election and can go no further;
and whether he intended it or not, if he has done an unequivocal
act—I mean an act which would be justifiable if he had elected
one way and would not be justifiable if he had elected the other
way—the fact of his having done that unequivocal act to the
knowledge of the persons concerned is an election. In Jones v.
Carter (1) (the principle is general though the particular appli­
cation is peculiar) the question was whether a man who had a
right to avoid a lease had avoided it or not. He had at first
brought a writ of ejectment for the purpose of avoiding it, by
which in modern times you do not actually enter; but it had
proceeded so far that the defendant had entered into a consent
rule; and the defendant having entered into a consent rule by
which he had admitted the entry, the Court held that it must be
taken as if the plaintiff bad entered, and that inasmuch as the
entry to avoid a lease was unequivocal in its nature he could not
. afterwards say " The lease was not void."
Now that is the question which I think the Court below ought
to have decided and which I think your Lordships now, having
power to find all the facts, have to decide upon the evidence.
Was there, before the 30th of September, which was the date
when the plaintiff first came upon Scarf, an unequivocal election
to take Beech as his debtor ? I do not think that at first there
was. I do not think that the mere fact of his having continued
to enter in his books these goods along with others which he had
undoubtedly contracted to supply after the 25th of February,
when'he had full notice (entering them in one account), would
preclude him; because I think as I said before, that it was
merely an expression of his own private intention and opinion,
which did not bind the matter until it was communicated to the
other side, which it never was. I do not think that his having
(1) 15 M. & W. 718.
362 HOUSE OP LOBDS [VOL. YIL

H. L. (E.) demanded money from Bogers after he knew that Eogers was
1882 carrying on the new firm of Eogers & Beech will do, for the
SCAMP reasons given by Brett L.J., that the notice of dissolution dis-
JAEDIKB. tinctly said " Whatever Bogers & Scarf owe, go to Bogers, and
LordBkdjbDm -^°g e r s w ^ l P a v &•" But then the evidence goes further. I am
not sure that taking a cheque from Bogers & Beech as payment
was enough to make an election, because I think that in acting
on the authority given by Scarf to Bogers to pay the debts for
him and Scarf, Bogers might pay money by the new firm's cheque
or otherwise as he pleased. But then the plaintiff goes on and
issues a writ against Bogers & Beech—he sues Beech. I am
unable to conceive a more unequivocal act; he has thereby
adopted Beech as his debtor at that time. I do not think its
going to judgment or not going to judgment is material. How
he could possibly do a more unequivocal act than issuing a writ
against Bogers & Beech I cannot imagine. The result of his
issuing the writ was that Kogers & Beech not being able to get
time to obtain terms went into liquidation, and then the plaintiff
sent in his affidavit claiming to prove against Eogers & Beech for
this sum which is now in dispute, and also for the subsequent
debts, treating them all as one. I think that also is an unequi­
vocal act. And taking the whole together I can bring myself in
no way to doubt, that upon the facts we ought to find that Mr.
Jardine having the right of election between holding Beech
liable and holding Scarf liable, had, before he ever came upon
Scarf, finally determined his election and taken Beech as liable,
and that he could not hold both Scarf and Beech liable.
I am consequently of opinion that the judgment should be for
the defendant, though not upon the ground on which it was
originally put, namely that there was a novation, but upon the
ground that Scarf never was liable, for this reason, that before
any step was taken to make him liable, a final and conclusive
election had been made to hold Beech liable, which involved
impliedly that Scarf was not.

LORD WATSON : —

My Lords, this case has been disposed of by the Court of Appeal

upon the assumption that the position of the appellant is, in law,
VOL. VII.] AND PEIVY COUNCIL. 363

precisely the same as if he had been in fact a partner of the firm H. L. (E.)
by which the debt sued for was contracted. Had the appellant 1882
actually been a member of the firm of W. H. Eogers & Co. on SCARF
the 30th of January 1878 when the goods, the price of which is J ^ I N E
now in question, were ordered, he would thereby have become the L o r d ~^ s
debtor of the respondent, and it would in that case have been
necessary for him to satisfy your Lordships that the facts, admitted
or proved, are sufficient to sustain the inference that the respon­
dent has agreed to discharge his claim against the appellant, and
to accept the new firm of W. H. Eogers & Co. as his debtors. In
such circumstances the original debtor must continue to be liable
unless there has been payment or novation of the debt.
The appellant had in point of fact, ceased to be a partner of the
firm of W. H. Eogers & Co. before the goods were ordered or
supplied to the new firm. Notwithstanding that fact he was
■estopped from asserting as against the respondent, who had been
one of his customers, that the contract was not made with the old
firm, because notice had not been given to the respondent of its
•dissolution by his ceasing to be a partner. In other words,
although the goods were ordered and received by the new firm, it
was the right of the respondent, if he chose to assert it, to insist
that the old firm, and not the new, must be held to have con­
tracted with him, and to be liable for the price of goods supplied
under the contract before he received the notice of the 21st of
February 1878. He had the undoubted right to select his debtor,
to hold either the old firm or the new firm responsible to him for
the fulfilment of the contract; but I know of no authority for the
proposition that the respondent could hold his contract to have
been made with both firms, or that having chosen to proceed
against one of these firms for recovery of his debt he could there­
after treat the other firm as his debtor.
I am accordingly of opinion that the facts of the present case
raise no question of novation, and that the only question to be
determined is whether the respondent did or did not elect to take
the new firm of W. H. Eogers & Co. as his debtors for the price
of the goods furnished by him prior to the 25th of February
1878 under the order given by that firm upon the 30th of
January.
VOL. VII. 3 2C
364 HOUSE OP LOBDS [VOL. "VII.

H. L. (E.) In this aspect of the case it becomes unnecessary to dispose of

1882 the question discussed and decided in the Courts below, namely
SCARF whether the transactions of the respondent with the new firm
*• subsequent to the notice of February sufficiently establish the
appellant's plea of novatio debiti. I am of opinion, with your
r r r r
Lord Watson.
Lordships, that the legal proceedings to which the respondent
resorted in August and September 1878 fully warrant the infer­
ence that he did elect to take the new firm as his debtors, and
consequently that he has no right to recover the debt for which
he sues from the appellant.
LOKD BEAMWELL : —

My Lords, I am entirely of the same opinion. In this case the

plaintiff had the right to maintain an action against Eogers and
Scarf or against Eogers and Beech; and indeed, subject to what
would have been a plea in abatement formerly, and now is the
addition of a party by order, he had the right to maintain an
action against each one of the three; but he would have been
compelled to join one of the two with the other—he would have
been compelled to join Eogers with Scarf if he had sued Scarf
alone, or Eogers with Beech if he had sued Beech alone, or Beech
or Scarf with Eogers if he had sued Eogers alone. For I imagine
that under the Judicature Act and the rules he could be com­
pelled to sue the two jointly and not severally; otherwise the-
effect of the Judicature Act would be to turn every joint con­
tract into a joint and several contract, which I imagine was not
intended. I t results therefore that the right of the plaintiff was
to sue either Eogers and Scarf jointly, or Eogers and Beech
jointly. I am very clearly of opinion that he had no right to sue
all three jointly. I t is impossible to say that there was any joint
contract by the three, either in fact or by estoppel.
Now that being the condition of things, when the truth was
known to the plaintiff, I do not think that he was bound to elect
at any particular time ; but I am satisfied that when he did elect
he was bound, and that after seeking to enforce his remedy, or
indeed enforcing his rights, against one pair, that is to say Eogers
and Beech, he had not the right to maintain another action against
Scarf separately. He could not maintain a second action against.
VOL. VII.] AND PRIVY COUNCIL. 365

Scarf unless he joined Kogers with him, and the result would be H. L. (E.)
that there would be two actions against Sogers for the same debt. I t 1882
seems to me demonstrable, therefore, that if the plaintiff elected SCARF
to sue any two he could not maintain an action against the third j AB p INE
man either separately, or jointly with one of the two whom he —■
had originally sued.
That being so, the plaintiff was not bound to elect, but if he did
elect he was concluded by his election; and without occupying
your Lordships' time further I have only to add that it is to my
mind absolutely plain that in this case his conduct was an election
to sue and maintain his action against Eogers and Beech, and con­
sequently that he has lost his right to maintain any action against
Scarf.
Order appealed from reversed ; judgment of Denman J.
for the defendant (the appellant) restored, with
costs in the Court of Appeal and in this House ;
catise remitted to the Queen's Bench Division.

Lords' Journals 13th June 1882.

Solicitors for appellant: W. & J. Flower & Nussey, for Killieh,

Eutton, & Vint, Bradford.
Solicitors for respondent: Buchanan & Sogers.

3 2 C 2