3 Wend. 83 | N.Y. Sup. Ct. | 1829
By the Court,
This case turns on the nature and extent of the authority of Bailey and Voorhees, as agents of the defendant. If they were his general agents ; if they were special agents, and the act done by them was within the scope of their powers; if in any instance they had in fact pledged his credit, and he had recognized their right to do so; or if he had, subsequent'to the purchase, in any way, however slight, indicated his assent to the pledge of his credit, in this particular case he is liable to the plaintiffs on the demand for which this action is brought.
The nature of this agency is to be gathered from the connection existing between the defendant and Bailey and Vorhees. ■ It appears the defendant was in the practice of consigning to them whatever produce he had for the New-York market. They sold it and gave him credit therefor. He purchased of them the goods which he required for his store at Waterford. He often sent to them for articles which he knew they did not usually keep, and was aware that .they had to purchase them to supply his order ; but these purchases were uniformly made in the name and on the responsibility of Bailey and 'Voorhees. Although Mr. Bailey states his house were the general agents of the defendant in New-York, and-were known to be such, this part of his testimony is to be taken in connection with what he had before said in relation to the agency. He had previously declared that the article in question was purchased on his own responsibility for the defendant; that he had never used, or had authority
Their mode of doing business is one that is very common. The merchant in the country sends what articles and produce he has on hand to a merchant in New-York to sell, and transmits to him his orders for such goods as he may re-' quire. He is probably aware that there are articles on his order which the merchant to whom it is directed does not usually keep; but he expects, as the correspondent has his funds, that he will make out the assortment by purchasing on his own account, and perhaps on credit, such articles as his own establishment cannot supply. No country merchant, under such circumstances, supposes that he is committing his fortune to his correspondent, by giving him an unlimited power to use his credit in purchasing goods. From the testimony in this case, taking it altogether, Bailey and Yoorhees appear to me to have been special agents, without the power to pledge the credit of the defendant.
If a special character can be given to their agency, consistently with well established principles of law on this subject, it appears to me that it should be done. Prudence on the part of principals requires that they should often make restrictions limiting their responsibility ; and when made in good faith, they should be recognized and upheld with all necessary safe guards for their support, and cautionary regulations to preserve them from perversion or abuse.
If the fact was clearly made out, that the salt was purchased by Bailey and Yoorhees on the credit of the defendant, restricted as the agency was, I should consider it an act beyond the scope of their authority, for which the defendant would not be liable. I arrive at this coricltision from a VieW
It is proper to examine more minutely and critically the facts and circumstances relative to the sale of the salt, to see if there is any thing to vary the character of the transaction. The plaintiffs were informed that the salt was purchased for the defendant, and the defendant actually received it. Whether the credit was given to the defendant or to Bailey and Voorhees, is a matter left in some doubt. It would seem, from the entries in the books of the plaintiffs, that the credit was given to the defendant; another quantity sold at the same time, at the instance of Bailey and Voorhees, to Stewart, under somewhat similar circumstances, was charged to him, and not to B. and V. Bailey, however, says he gave no direction to have the salt in question charged to the defendant. He intended to buy it, and supposed he had bought it, on his own credit; he had often bought the same article of the plaintiffs for the defendant; and the previous purchases had always been on the responsibility of his house. From a conversation of the plaintiffs with one of the witnesses, after the failure of B. and V. it is quite evident they doubted the liability of the defendant. It is not so material to know to whom the plaintiffs charged the salt, as it is to ascertain to whom the facts warranted them to make the charge; for the rights of one party are not to be affected by the misapprehension of the other. If the facts relative to the sale are all before us, and there is no reason to suspect they are not, it would seem that in making the charge, on the supposition it was made against the defendant, the plaintiffs looked more to his ability to pay than to these facts. The circumstance that the salt was purchased with a design to be sent to the defendant, and that this was made known to the plaintiffs, does not, in my opinion change the features of this case. There is some ambiguity in the witness’ expression that he purchased the salt for the defendant. He undoubtedly meant to be understood that he purchased it for the use of, or to be sent to the defendant, but not on his account; for he follow
But the defendant had the property, and it is therefore urged that he is liable to pay the plaintiffs for it. The answer to this is two told. It appears, m the first place, that the plamtins diet not sell the property to the defendant, but to Bailey and Yoorhees: if, however, upon the question.of fact, there was any doubt, the other answer is conclusive—Bailey and Yoorhees had funds furnished by the defendant, and his order to them was to procure it with these funds. So they understood it, and nothing was then or had been previously done to authorise the plaintiffs to understand it otherwise. If the facts will at all warrant the position that the defendant sent his agents to the plaintiffs to buy the salt, it was with money to pay for it. He can therefore avail himself of the principle, that where money is given to the agent or servant to purchase goods for his principal or master, and he retains the money, and purchases on the credit of his employer, the latter is not liable, unless it can be shewn that sometimes the agent or servant has' been permitted to buy on credit, (1 Show. 95. 5 Esp. N. P. Rep. 76. Peake’s N. P. 74. Paley on Agency, 140.)
I see no reason to question the correctness of the judge’s charge to the jury, or his refusal to charge as the plaintiffs' requested. The motion for a new trial must therefore be denied.