8 Me. 38 | Me. | 1831
The opinion of the Court was read at the ensuing September term, as drawn up by
Under the instructions given to the jury, they have, by their verdict in favor of the plaintiff, decided that Read
If a man should sell another’s horse without any authority, the sale or act is merely void. If he is authorized to sell him to a particular person or at a limited price, can he sell him to another person for one half the limited sum ? It is said the purchaser has been deceived ; so has the plaintiff. It is said the plaintiff Iras reposed that confidence, which has been abused to the defendant’s injury; true, and has not the defendant also reposed confidence unwisely ? The mere possession of the horse gave Read no right to sell him; and therefore the defendant should have ascertained what authority had been given to Read by the plaintiff. To adopt the reasoning of the counsel for the defendant, would be to deprive a principal of the power over his own property, if entrusted to the hands of an agent for sale ; 'and leave him at the mercy of those who are disposed to injure him. The grounds of public policy, as applicable to tbe commercial transactions to which we have alluded, cannot be considered as supporting the defendant’s motion. In the case of Fenn al. v. Harrison & al. 3 D. & E. 757, the distinction between a general and a special agent is clearly stated. Ashurst J. says : “ If a person, keeping a livery stable, and having a horse to sell, directed his servant not to warrant him, still the master would be liable on tbe warranty, because the servant was acting within the goubral scope of his authority; and the public cannot be supposed to be conusant of any private conversation between the master and tbe servant; but if the owner of the horse were to send a stranger to a fair, with express directions not to warrant the horse, and the latter acted contrary to the orders, the owner would not bo liable on the warranty, because the servant was not acting within the scope of his employment.” Buller and Grose Justices, rely on the same distinction. See also Ward v. Evans, 2 Salk. 442; East India Company v. Hensley, 1 Esp. 112; Hicks v. Hankin, 4 Esp. 114; Sugden, 27; Batty v. Carswell, 2 Johns. 18; Hooe v. Hancock, L Wash. 23. Under the instructions which the jury received, they have found that Read was a more agent, specially authorized to sell
Judgment on the verdict*