| Superior Court of New Hampshire | Jul 15, 1835
It is well settled that a factor has no authority to pledge the goods of his principal. 1 M. & S. 140, Martini vs. Coles; 1 Starkie’s Rep. 472, Peet vs. Baxter; 2 ditto 21, Graham vs. Dyster; 3 B. & C. 342, Queiroz vs. Truman; 3 Bing. 139, Williams vs. Barton; 2 Mass. 398, Kinder vs. Shaw. In 2 Bro. & Bing. 639, Fielding vs. Kymer, the plaintiffs consigned goods to certain factors, who pledged the goods with the defendants, for the ostensible purpose of raising money to pay bills drawn on them by the plaintiffs, and which were to he provided for-out of the proceeds of the goods consigned. The defendants, who were brokers, afterwards sold the goods, and claimed to retain in payment of their debt, but it was held that they had no right so to do.
Nor has a factor authority to barter. “ And therefore where ‘ a factor bartered the goods of his principal, no property ‘ passed, and the principal may maintain trover against the ‘ party with whom the goods are bartered, although the lat- ‘ ter be wholly ignorant that he had been dealing with a ‘factor only.” 3 Barn. & Ald. 616, Guerreiro vs. Peale.
So a traveller who receives orders for goods from his employer’s customer in the country, is authorized to receive
. ái.-.quantity,pf oats .haying.been consigned -by a merchant abroad, to be sold .by J.' S..,who was a merchant as well;as. factor, he-pjaced. them in the hands of -A,,. who was a corn factor, as security for . advances made by him,.but. the oats; were not to be. sold without the consent of j. .S, They remained in Ads possession, upon these terms, for nine months, when they were transferred to A. by a sale at the market price. No money actually passed, nor was any account of sales rendered, but the amount of the price was allowed in account between J. S. and A., leaving a. balance in favor of the latter. It was held, that no property passed. 4 Barn. & Ald. 443, Kuckein vs. Wilson. Although the. goods were first pledged, they seem, from the statement of the case, eventually to have been sold to the defendant in part payment of his debt.
In 8 Green. 38, Parsons vs. Webb, where one .delivered his horse to a private agent, to be sold for the owner’s benefit, and the agent sold him to his own creditor in payment of his own debt, it. was held that the owner’s property was not thereby devested, and that he might maintain replevin for the horse, even against a-subsequent vendee.
The principles established in these authorities seem sufficient to settle the present case, unless there is something in the contract under which Miller received these goods, which .should make it an exception. ■ . - . .
It is argued that from the particular-terms .of the contract, and the rights of the parties under those terms, Miller must be considered as the vender of the goods, and that he might dispose of. them as he pleased, making himself liable for ..the price stated, if he parted with .the property.
Rut there is-nothing in the bill and receipt to distinguish this case from others where goods are consigned to an agent, or factor, to. sell, and he. is limited to certain prices, except here Miller was to... account at certain prices, and was of
Miller had an undoubted authority to sell the goods; but it was to sell them, not as his own, but as the goods of the plaintiff: and acting as agent of the plaintiff he had no right to exchange them for other goods, or for his own note. By the disposition-lie made of them he treated them as his own, and this disposition was not properly a sale, within the meaning of his authority to sell, but a delivery over, at a certain price, in payment of a demand against himself. . Although in the nature of a sale, it is in fact a payment of his debt with goods instead of money. If it might also be considered as a purchase by himself, at the same time that will not avail, as an agent has no right to purchase of himself 'what he is entrusted to sell. 3 N. H. Rep. 145.
Had Miller'sold, and received the money, he might, to be sure, have squandered it, but that can. make no difference. So it might be said that a factor who' had. pledged to secure a debt from himself, might, have sold and afterwards have paid his debt with the money, and the principal be in no better situation. ■ If a principal may be subjected to loss in such modes, it. is because he has thus far trusted to the fidelity of the agent,, and this furnishes no reason why . the law should permit the agent to defraud him in other cases.
If a factor might dispose of the goods of his. principal, directly, in payment of his own debt, it would, lead to great abuse and fraud, and the. well settled rule that he cannot
Had the plaintiff in truth authorized Miller to act as the owner of the goods, or held him out as such, the argument of the defendant’s counsel might be sustained. 1 M. & S. 147, Martini vs. Coles; 15 East 38, Pickering vs. Busk.
Verdict set aside and judgment for the plaintiff