51 Barb. 244 | N.Y. Sup. Ct. | 1868
Upon the facts clearly proved, on the trial, Stannard, who made the contract for the sale of the bags in question in the suit, was a mere broker. As such he was authorized to make contracts for the sale and delivery of the plaintiff’s bags, but he was not authorized to make such contracts in his own name; nor was he authorized to receive payment for the bags so sold. (Higgins v. Moore, 34 N. Y. Rep. 431. Baring v. Corrie, 2 Barn. & Ald. 138.)
When the defendant made this contract to purchase these bags, he clearly knew nothing of the plaintiff, and doubtless supposed he was purchasing them of Stannard, and expected thereby to get payment of his debt from him. But he knew that Stannard was not a dealer in such bags, but was simply engaged as a clerk in the grocery business for a firm trading in Canandaigua.
The goods were received by the defendant at Canandaigua, to which place they were sent by the plaintiff by express, accompanied by a bill or invoice of the bags, sent to the same address by mail. When the defendant received the goods he knew that they came from the plaintiff, as they were marked with his name. He had not then paid for the goods, nor did he afterwards ever pay for them, in fact. He simply credited the amount of the cost of the bags, in his books, to Stannard.
When he thus received the goods he had notice that Stannard did not own them, and had no right to receive payment for them. The plaintiff did nothing to mislead him. He had not trusted Stannard with the possession of the property or with any evidences of title thereto. The goods came by express directly to the defendant. Stannard had no control over them, and never had any •
E. D. Smith, Johnson and J. C. Smith, Justices.]
•The defendant has received the plaintiff’s property, and has not paid him for it, and he clearly had no right to pay Stannard for property he did not own, and he had not the slightest right to receive payment for said property.
It follows that the plaintiff is entitled to recover the price of such property, as the plaintiff did in the case of Baring v. Corrie, (supra,) and the judgment rendered by the justice therefore was right, and the judgment of the county court reversing the same was erroneous, and should be reversed, and that of the justice affirmed.