delivered the opinion of the court.
We state.such circumstances in this case as may be necessary for the application of our opinion to other cases of a like kind.
Martin & Franklin were manufacturers of tobacco in Richmond, Virginia. They were in the habit of shipping the article to Charles Esenwein in New York, as their agent and factor. In April, 1841, they made the first shipment upon a new account to Esenwein, and at intervals during the summer made other consignments to him. It was their practice to draw upon Esenwein, payable in four months, for an estimated portion of the proceeds of sale; among other drafts were the following: —
1841, May 27, at four months, due Sept. 30, for $ 800.
“ June 12, “ “ “' Oct. 15 “ 700.
“ ■ July 3, “ “ “ Nov. 6, “ 300.
“ July 29, « “ “ ■ Dec. \ “ 850.
These drafts were not paid by Esenwein. The consignments during the period when the drafts were drawn were one hundred and sixty-two half, and one hundred and sixty whole boxes of tobacco. Esenwein’s entry of the consignment is, “ Statement of tobacco received by Charles Esenwein & Co. from Messrs. Martin & Franklin of Richmond, Virginia, to sell for their account.”
• The business relation between them in this transaction was that of principal and factor, unaffected by any particular instructions from the principals, or by any right or power acquired by the factor, beyond his general commission to sell the tobacco, according to the usages of trade in "the place to which it had been sent for sale.
In August, 1841, Esenwein became embarrassed and sailed for Europe. ' He left his business under the management of his clerk, Engelbert Caprano. On the 3d of September Esen *221 wein failed. Among his creditors was John A. Warner of Philadelphia. A short time before the failure, Mr. Warner, between whom and Esenwein there had been much previous dealing, went to New York. He then obtained from Caprano, the clerk, from the store of Esenwein, a quantity of tobacco, cigars, and other merchandise. The proof in the case is, that the tobacco was a part of the consignments which had been -made within the dates before mentioned by Martin & Franklin, to Esenwein. Warner says in his answer to the bill of the complainant, that the same was purchased by him for a full consideration and price, in like manner as he had frequently purchased from Esenwein; and that he did not know that the tobacco belonged to Martin & Franklin. But he admits, “.the insolvency of Esenwein was believed,” In his amended answer he says, he purchased the tobacco bona fide, in manner as-had been -before stated by him. That it was .paid for after the purchase, by his paying and adjusting thirty thousand dollars of his own notes, which he had loaned to Esenwein, by his paying' and redeeming them. Subsequently, in three days after Esenwein’s failure, Heald, Woodward, & Co. of Philadelphia bought from Warner two hundred and fifty-eight boxes of tobacco, known as Martin’s tobacco. The proof in- the ease is, that it was a part of that which Warner had obtained from Esenwein’s clerk, which had been consigned to Esenwein by Martin & Franklin, as already stated. They aver, and there is no reason qr cause to doubt it, that they purchased from Warner fairly,'and for full.value; that they had no knowledge whatever at the time, that the tobacco or any part of it belonged to the complainants; nor had they any reason to believe or know it. Their contract, however, with Warner, was rescinded in part. They received from him only one hundred and twenty-four boxes, instead' of the two hundred and fifty-eight which had been sold to them.
From some other dealing between Heald, Woodward, & Co. and Martin & Franklin, the-latter have drawn an inference of an agency of the former for them in this transaction. We think there was no such agency. At the same time we wall say, that there was an unbecoming and apprehensive reserve in their reply to the letter of Martin & Franklin, making inquiries concerning their tobacco, which Warner had’ received from the clerk of Esenwein, a part of which Heald, Woodward, & Co. had bought from Warner find was then in their possession. It was, however, not a concealment, from which it can. be inferred that Heald, Woodward, & Co. meant to commit either a legal- or moral fraud upon their correspondent. It appears that they, had nothing to do with the transfer of the *222 .tobacco to Warner, nor any other than a fair connection withhim in the sale of it by Warner to them.
From this statement, we have no doubt of the law of the case. It may be applied, too, without any imputation upon the integrity of either of the parties concerned. The defendants have misapprehended the principles which govern the rights of themselves and the plaintiff; but there is nothing in their proceedings which impairs mercantile character. They have been much mistaken, without meaning premeditated unfairness. If some temper had not been thrown info the case at first, there probably would not have been any charge of fraudulent intention. No one will be surprised from the proceedings in the cause, and the argument made upon it in this court, that its merits were lost sight of, in the effort made on the one side to establish fraud, and on the other to resist it.
Theexact questions raised by the record are, 'whether or wot the transfer of the tobacco to Warner divested the plaintiff’s ownership of it; and whether or not Warner’s sale -of a part of it to Heald,. Woodward, & Co., for a full consideration, without any knowledge upon their part of the plaintiff’s interest when they bought from Warner, gave -to them' a property in it.
Warner’s account of dealings with Esenwein we believe to be true. In his answer, however, he puts his right to retain the tobacco upon a footing not applicable to it. He says he bought without knowing that Martin & Franklin had any interest in the tobacco, and that he believed Esenwein was the owner. . His infe'rehce practically was, that he might therefore set off against the price his liability for the notes which he had lent to Esenwein as a debt due by Esenwein to him. This can only be done upon the principle that, where two persons equally innocent are prejudiced by the deceit of a third, the person who has put trust and confidence in the deceiver should be the loser. He discloses in his answér his knowledge of a fact which takes him out of any such relation to the plaintiff. It is his knowledge, at the time of the delivery of the tobacco to him, , of the failure of Esenwein.
• In all of those cases in which it has been ruled that the buyer who, at the time of the sale, knows nothing of the relation between the factor with whom he deals and the principal by whom that factor has been employed, is protected by the _ law, in case of .a misadventure occurring by the’default of the factor, it is admitted that the risk which a principal runs* through the inadvertence or misconduct of his agent, may be avoided, by the purchaser having notice, at any time before the completion of the purchase or delivery of the goods, of the *223 agent’s commission. Peake, 177. Among the instances which the law terms notice enough for such a purpose is the insolvency of the factor known to the buyer. Eastcott v. Milward, 7 Term Rep. 361; Ibid. 366. "Warner says in his answer, that, at the time he made his purchase, “the insolvency of Esen'wein was believed.” Those are his words, and according to all that class of cases asserting the principle under which his answer puts him, such knowledge was sufficient to entitle the plaintiff to avoid the sale.
Again, a transfer to him, by way of sale, by the clerk of Esenwein, of property trusted to the latter as a factor, could not pass the title or right in it from the real owner.
It made no difference, that Caprano had been left to transact Esenwein’s business whilst he was in Europe. - A factor cannot delegate his trust to his clerk. The law upon tins point is well settled.' It has been repeatedly ruled. The first example in the first paragraph of Paley on Agency, upon the'“ execution of authority,” is, if an agent be appointed to sell, he cannot depute the power to a clerk or under agént, notwithstanding any usage of trade,-unless by express assent of the principal.
The utmost relaxation of the rule, Potestas del'egata non potest delegare, in respect to mercantile*persons, is, that a consignee or agent for the sale* of merchandise may employ a broker for"the purpose, when such is the usual course of business. Trueman v. Loder, 11 Adolph. & Ell. 589. Or wheré the usual course of the management of * the principal’s concerns in the employment of a sub-agent has' been pursued for a length of time, and been recognized by the owners of property, they will be taken to have adopted the acts of the sub-ágent as the acts of the agent himself. Blore v. Sutton, 3 Meriv. 237; Combes’s case, 9 Co. 75 - 77; Roll. Abr. 330; Palliser v. Ord, Bunb. 166. Lord Eldon, in Coles v. Trecothick, 9 Ves. jr. 236, reprobates the notion, that, if an auctioneer is authorized to sell, all his clerks are, during his absence, in consequence of any such usage in that business. It was ruled by the Master of the Rolls in Blore v. Sutton, 3 Meriv. 237, that an agreement for a lease, evidenced only by a memorandum in writing, entered in the book of an authorized agent, signed by his clerk and not by the agent himself,, was not a sufficient agreement in writing, it not- being signed by .an agent properly authorized, notwithstanding the entry was shown in evidence to have been approved by, and that it was made under the immediate direction of, the authorized agent, and in the usual course of the business of his office. A factor cannot delegate his employment to another, so as to raise a privity between that other and his principal. Solly v. Rathbone, 2 Maule & Selw. 299; Cock- *224 ran v. Irlam, Ibid. 301. The reason of the rule in all these mercantile agencies is, that it is a trust and confidence reposed in the "ability and integrity of the person authorized. An agent ordinarily, and without express authority, or a fair presumption of one, growing out of the particular transaction or the usage of trade, has not the power to employ a sub-agent to do the business, without the knowledge or consent of his principal. The agency , is a personal trust for a ministerial 'purpose, and cannot be delegated; for the principal employs the agent from the opinion he has of his personal skill and integrity, and the latter has no right to turn his principal over to another, of whom he knows nothing. 2 Kent’s Comm. 633. No usage of trade anywhere permits a factor to delegate to his clerk the commission trusted to himself. In this case, there, was a transfer of-the plaintiffs’ property to Warner, by a clerk of th'eir factor. He knew when it was done that he was giving their property to a creditor of his employer in payment of his debt; and both himself and the purchaser knew that. Esenwein was in failing circumstances, or, as Warner expresses it, “ that his insolvency was believed.” It must be admitted that such a transfer passed- no property in the thing transferred, and that it may be reclaimed by the owner, as well from any person to whom it has been sold by the first buyer as from himself. It is the cáse of property tortiously taken from the owner or his agent, without any fault .of the owner, and as such cannot take away his right"to it.
On either of .the. grounds already mentioned, the plaintiff wrould be entitled to recover from the defendants in this case. But there is a third...which shall be stated in connection with other points respecting principals and factors, which it-will not be out of placé to notice.' A factor or agent who has power to sell the produce óf his principal has no power to affect the property by tortiously pledging it as a security or satisfaction for a debt o’f his oWn, and it is of no consequence that the pledgee is ignorant of the factor’s not. being the owner. Paterson v
.
Tash, Str. 1178; Maans
v.
Henderson, 1 East, 337; Newson
v.
Thornton, 6 East, 17;
But it was said, though a factor may not pledge the merchandise of his principal as a security for his debt, he may sell to his creditor, in payment of an antecedent debt. No case can be found affirming such a doctrine. It is a misconception, arising from the misapplication of correct ptinciples to a case, not belonging to any one of them. The power of the factor to make such a sale, and the right of the creditor to retain the property, has been erroneously put upon its being the usual course of business between factors to make a set-off of balances as they may exist in favor of one or the other of them against the price of subsequent purchases in "their dealings.. The difference between such a practice and a sale for an antecedent debt must be obvious to every one when it is stated. In the one, the mutual dealing between mercantile persons who buy and sell on their own account, and who also sell upon commission for others, is according to the well-known usage of trade. Its convenience requires that such a practice shall be permitted. But it must be remembered it is an allowance for the convenience of trade, and for a readier settlement of accounts between^ factors for their purchases from each other in that character. It does not, however, in any instance, bind a principal in the transfer of merchandise, if there has been a departure from the usages of trade, or a violation of any principle regulating the obligations and rights of principal and factor.
Again, it has been supposed that the right of a factor to sell the merchandise of his principal to his own creditor, in payment
*226
of an antecedent'debt, finds its sanction in the fact of the crecli.tor’s belief that his debtor is the Owner of the merchandise, and his ignorance that it belongs to another-; and if in the last he has been deceived, that the person' by whom the delinquent factor has been trusted shall be the loser. The principle does not cover the case. "When a contract is proposed between factors, or between a factor arid any other creditor, to pass property for an antecedent debt, it is not a sale in the legal sense of that word or in any sense in which it is used in reference to, the commission which a factor has to sell. See Berry
v.
Williamson,
Courts of law and courts of equity, in a proper case before either, will look at such a transaction as one in which both principal and creditor have been, deceived- by the factor, so far as the deceit is concerned-; but it will-also be remembered in favor of the principal, that the creditor has acquired the prin *227 cipal’s property from his factor, with the creditor’s knowledge, out of the usual course of trade, and.will reinstate him in his former relation to his debtor, rather than that the creditor should .be permitted to keep the property of another, who is altogether without fault, in payment of his debt. ' As to a factor’s power to bind his principal by a disposition of his goods, the common law rule is, “ that, to acquire a good title to the employer’s property by purchasing it from his agent, such purchase must have been, either in market overt and without knowledge of the seller’s representative capacity, or from an agent acting according to his instructions, oi from one acting in- the usual course of his. employment, and whom the buyer did -not know to be transgressing his instructions,” or that he. had not such notice as the law deéms equivalent to raise that presumption. “ The reason of this is clear, for unless the transaction took place boná fide in a market overt, (in which casé a peculiar rule of law in England steps in for its protection,) an agent selling without express authority must, that his acts may be supported, have sold under an implied one. But an implied one thereby always empowers the person authorized to act in- the usual course of his employment; consequently, if he sells in an unusual mode, he could have no implied authority to support his act, and, as he had no express one, his sale of course falls to the ground.” Smith’s Mercantile Law, 111, 112.
The defendants are not within the compendious summary' just stated. There has been a transfer of property, which was consigned to a factor for sale, by his clerk, to a creditor of his employer, who knew his debtor to be in failing circumstances, just as well as the clerk himself did; and of property, too, which the clerk knew to be the property of the plaintiff, and which the creditor bargained for knowingly out of the usual course of trade. Nor should we omit-to say, that Esenwein’s opinion and disapproval of wrhat had been done by his clerk with his principal’s tobacco are significantly disdpsed' by the fact,' that, upon his return from Europe, he redeemed so much of it as had been assigned to Mr. Conolly by his clerk in payment of a debt, and sold and remitted the proceeds to his principals.
By the common law, the transfer of the plaintiff’s tobacco to Warner cannot be maintained.' He is responsible to them for the value of so much of it as was not transferred by him to Heald, Woodward, & Co. Heald, Woodward, & Co. are responsible for so much of it as Warner transferred to them, because Warner, having no property in it, could not convey any to'them.. But Warner is answerable to them for that amount, and he is replaced for the whole as a creditor of Esenwein, just as he was before the transaction occurred.
*228 The application of these principles of the common law to these parties, if it needed confirmation, would receive it from the statute of New York of April, 1830, for the amendment of the law relative to principals and factors or agents. The transfer to Warner was a New York transaction. The third section of that act very distinctly provides for those cases when the ownership, by the factor, of goods which he contracts to sell, shall be said to exist, to give protection' to purchasers against any claim of the factor’s principal. It is when he contracts for. any money advanced, or for any negotiable instrument or other obligation in writing given for merchandise, upon the.faith that the factor is the owner of it. The concluding words of the section are, “ given by such other person upon the faith thereof.” Three misconstructions of that act have been prevalent, but they have -been corrected by the courts of New York. We concur with them fully. One was,-that the statute altered the common law, so as to give validity to a sale made by the factor for an antecedent debt due by him to the person with whom he contracts; another, that the statute gave to a purchaser protection, whether he knew or not that the goods which the factor contracted to sell him were not the factor’s, and belonged to his principal; and the other, that the concluding words,upon the faith thereof,” related to the advance made upon the goods, and not to the property which the factor had in them. Similar misconceptions were prevalent, and perhaps still prevail, concerning the corresponding section in the English factor’s act, Geo. 4, ch. 94,1825. The alterations of the common law, in this particular, by the English and the New York statutes, were suggested by practical and experienced merchants in both countries, to meet the exigencies of internal trade and its extension between nations. They are believed by their operation to be improvements in the law merchant. It may be owing to a misapprehension of those acts, that the defendants denied to the plaintiffs their rights. Fortunately the law secures them, and the case settled now as it is may prevent other controversies like it.
We shall direct the decree of the Circuit Court to be affirmed ; and also order a decree to be entered against the defendants, that each of them shall pay to the plaintiffs the value of the tobacco which the defendants respectively retained, with interest upon the same as from' the dates of the transfers of it to them.
Order. -
This cause came on to be heard on the transcript of the record from the-Circuit Court of the United States for the Eastern *229 District of Pennsylvania, and was argued by counsel. ' Oil consideration whereof, it is the opinion of this court, that there is no error in the decree of the said Circuit Court, “ that the defendants do pay to the complainants the sum of $ 2,869.14, with interest from, the 25th of September, 1848,” and that the same should be affirmed, with costs; and that the complainants are entitled to recover from Warner & Co. $ 1,376.92^ (part of the aforesaid sum of $ 2,869.14) with interest thereon from the 25th of September, 1848, together with $ on account of the costs of the complainants in this court, and to have execution against them for the said several sums, amounting to $ ; • and also that the said complainants are entitled to recover from the said Heald, Woodward, & Co. $ 1,492.21| (the residue of the said sum of $ 2,869.14) with .interest thereon from the 25th of September, 1848, together with $ in full of the balance of the costs of the complainants in this court, and to have execution against them for the said several sums, amounting to $ Whereupon it is now here ordered, adjudged, and decreed by this court, that this cause be, and the same is hereby, remanded to the said Circuit Court, with directions to enter a decree in conformity to . the opinion of this court, and to proceed therein accordingly.