| Conn. | Feb 15, 1870
Upon the facts found by the auditor the Superior Court rendered judgment for the defendants. The assignment of errors is not sufficiently specific, but the real question involved in the case is easily apprehended. It is this; what effect, under the circumstances, should be given to the receipt, given by William A. Willard, the vendor of the goods ? The answer to that question mainly depends upon another ; whether Foster, in procuring the receipt, and delivering it to the defendants, is to be regarded as the agent of the defendants or of Willard ? If the latter, the- judgment is right; if the former, it is erroneous.
For the purpose of determining this question, we must take the case as it is presented. There is no motion for a new trial, and the motion in error raises no question of evidence. Whether evidence affecting the receipt was or was not admissible, is a question which does not appear to have been made in the court below, and cannot be considered here.
The goods were sold by Willard to the defendants, and have not been paid for. The plaintiff would seem to be entitied to a judgment, unless some act done by himself, or those under whom he claims, precludes him from a recovery. The defendants claim that the receipt given by Willard is a bar to the plaintiff’s right of recovery.
The receipt was obtained by Foster, upon a representation that it was necessary to send a receipted bill to the defendants, in order to obtain the money in payment of it. Up to that time Foster was the general agent of the defendants in New York, and as such had purchased the goods for which the bill was given. The auditor has expressly found that he was authorized to make such purchase. From these facts his authority to pay for the goods thus purchased cannot be doubted. The representation was made by him, while apparently taking measures to make payment, and related to the mode of payment. There is no evidence that his agency had ceased, and we fail to discover any indications of an intention
Had the defendants made the representation in person, or had they been present and heard it made by Foster, no one would deny their responsibility. The case we have under consideration is not distinguishable in principle from the case supposed.
Whether the representation was true or false the result must be the same. If true, he merely stated the mode adopted by the defendants for the transaction of business through their agent. Willard had done all that was required of him, and nothing remained but for the defendants to pay and for Willard to receive the money. They could not have been misled, and not the slightest excuse exists for refusing to pay. If false, it was the misrepresentation of the defendants themselves, through their own agent, and, as-between themselves 'and third parties, they, and they alone, ought to suffer the consequences. Willard had a right to assume that it was true, and to act accordingly. In doing so he may have been too confiding, but we cannot for that reason say that he ought to be subjected to this loss. It seems more reasonable that a party employing an agent should be responsible for his misconduct.
There is undoubtedly a class of cases, in which a party who places a receipt in the hands of an agent, whereby the principal is defrauded, is justly held responsible for the loss. If there is collusion, if the third party knows that the agent contemplates an improper use of the receipt, if it appears
The judgment of the Superior Court must be reversed, and the cause remanded for further proceedings in that court.
In this opinion the other judges concurred.