18 Johns. 363 | N.Y. Sup. Ct. | 1820
delivered the opinion of the Court,
2. Whether the second execution in favour of Morris was a subsisting one ; and if so, then,
3. Whether the sale of the goods by the defendant, though the proceeds were applied toward satisfying an execution received subsequent to the sale and delivery of the goods to the plaintiff, was justifiable and legal ?
I am of opinion, that the law was laid down incorrectly to the jury. Dey was merely a temporary clerk, and acted entirely under the instructions given to him by Grieve. At first he refused, altogether, to act, but on receiving advice, conformed to those instructions. Grieve has slated the extent of his authority, as Lowthrop’s agent. He was a clerk in his store at Geneva, to keep his accounts and books, and to sell and retail his goods to his customers. He had no authority to sell goods by the quantity, or to deliver goods in payment, or security for debts. The transaction between Dey and the plaintiff’s agent, can never be considered an ordinary sale and delivery of goods. The plaintiff did not apply to Grieve as a purchaser of goods. He stated, that he had sold goods to Lowthrop, and that he was informed executions had been, or were about to be, put into the hands of the sheriff. He applied fo get security for his debt, which he was willing to take in the goods he had sold, as far as they would go, and the balance in other goods. The position laid down by Comyn, (1 Com. on Con. 240.) is fully warranted by the cases : “ There is a wide distinction,” he says, “ between a general, and a particular agent. A general agent, as a factor for a merchant residing abroad, binds his principal by his ads ; but an agent constituted for a particular purpose, and under a limited and Ciicumscribed authority, cannot bind the principal by any act in which he exceeds his authority,” (3 Term, Rep. 757. 1 Esp. N. P. Rep. 111.) It is, indeed, an elementary principle, that no man can be bound by the act of another, in relation to his property, unless he has deputed him to act for him ; nor can he be bound then, if his agent acts beyond the scope of his authority. This is the genera
It appears to me, that Kibbe must have been mistaken in saying, that the sheriff informed him, that both the first and second execution had been withdrawn. The first certainly was; but it was shown, that the second had not been withdrawn, and that, in January, 1018, Lowthrop1 s real property was sold under it. By this execution, the defendant was directed to levy 10,000 dollars debt, and 16 dollars and 45 cents costs, and interest from the 13th of July, 1816, and it was received by the sheriff on the 24th of September, 1817.
These goods, then, were clearly bound by the execution, so that a sale of them by Lowthrop himself would not have devested the sheriff’s right to take them. The goods were bound by this execution from the time it was put into the defendant’s hands,
The learned judge was, in my apprehension, incorrect, in considering the defendant as having failed in his justification, because the sale was under the last execution. The defendant had a right to sell under the second execution. In the case of Sandford v. Roosa, (12 Johns. Rep. 162.) it was decided, that if a sheriff sell under an execution last delivered, the sale is good; but the party who delivered the
A new trial must be granted, with costs to abide the event of the suit.
Vide Lambert v. Panulding. Ante. p. 311.