Winchester v. Howard
97 Mass. 303
Mass.
1867
Check Treatment
Chapman, J.

The court are of opinion that it should have been left to the jury in this case to determine whether the minds of the parties really met upon any contract; and if so, what the contract was.

It is true that an agent may sell the property of his principal without disclosing the fact that he acts as an agent, or that the property is not his own; and the principal may maintain an action in his own name to recover the price. If the purchaser says nothing on the subject, he is liable to the unknown principal. Huntington v. Knox, 7 Cush. 371. But on the other hand, every man has a right to elect what parties he will deal with. As was remarked by Lord Denman in Humble v. Hunter, 12 Q. B. 311, “ You have a right to the benefit you contemplate from the character, credit and substance of the person with whom you contract.” There may be good reasons why one should be unwilling to buy a pair of oxen that had been owned or used or were claimed by a particular person, or why he should be unwilling to have any dealings with that person; and as a man’s right to refuse to enter into a contract is absolute, he is not obliged to submit the validity of his reasons to a court or jury

*306In this case it appears that Smith, the plaintiffs’ agent, told the defendant that he had a pair of oxen for sale, (referring to the oxen in question,) and that another pair belonging to one Blanchard were in bis possession, which pair he was authorized to sell. A jury might properly find that this amounted to a rep.resentation that the oxen in question were his own. The defendant then made inquiries; in answer to which Smith affirmed that the oxen had never been hurt; that the plaintiffs had no mortgage upon them, and that there was no claim upon them except the claim which Smith had. A.jury might properly find that this was, in substance, a representation that the title to the oxen was exclusively in Smith; and that, as the defendant was unwilling to deal with the plaintiffs, he made proper inquiries on the subject, and was led by Smith to believe he was not dealing with the plaintiffs. The defendant took the cattle home with an agreement that he might return them “if he did not find things as Smith had told him.” In the course of the evening he was informed that the cattle belonged to the plaintiffs, and being unwilling to buy oxen of them, he returned them to Smith the next morning before any bill of sale had been made. The jury would be authorized to find that he returned them within the terms of the condition upon which he took them, because he did not find things as Smith had told him. It is thus apparent that upon the whole evidence they would be justified in finding a verdict for the defendant. Exceptions sustained.