Boston Iron Co. v. Hale

8 N.H. 363

• Court: Superior Court of New Hampshire
• Decided: December 15, 1836
• Status: Published

Opinion

Parker, J.

The goods in this case were purchased by an agent of the defendant, and came to his use. This is prima facie sufficient to charge him with the payment of the value, but it is not conclusive against him.

It appeared in evidence, that prior to the purchase he furnished the agent with money, and directed a purchase of iron for cash. The agent had no authority, therefore, in this particular instance to pledge the credit of the defendant. 1 Shower 95; 5 Esp. N. P. C. 76, Rusby vs. Scarlett; 3 Esp. 214, Pearce vs. Rogers; Peake’s N. P. C. 47, Stubbing vs. Hintz; Payley on Agency 137.

Nor does it appear that the defendant had at prior times authorized Doubleday to deal with the plaintiffs on credit, or that he had ever assented to his doing so. The plaintiffs then had no right to presume an authority in Doubleday to pledge the credit of the defendant, in this instance, on the ground that he had been authorized to do so before, and that such had been the course of dealing between the parties.

Shower 95; 3 Salk. 234, Sir Robert Wayland’s case; Ryan & Moody 217, Todd vs. Robinson; 9 Bingham 19, Prescott vs. Flinn; 1 Esp. 61, Neal vs. Irving.

The case, Hazard vs. Treadwell, 1 Str. 506, is of questionable authority, inasmuch as there had been but one instance in which the master had paid for goods taken by the servant.

That of Boulton vs. Arlsden, 3 Salk. 234, must be received with some qualification. If the master receive and use goods purchased by his servant, on credit, without ait-thority, and the master did not furnish the money to make the purchase, he may be liable. Vide S. C. 1 Ld. Raym. 224, under the name of Bolton vs. Hillersden.

And the reason given for the rule laid down in Sir Robert Wayland's case is not the true foundation of the rule. The master had there given the servant authority to take up goods on credit, and supplied him afterwards with money to pay. It was no concern of the creditor, that the servant embezzled his master’s money, after the debt had been lawfully contracted.

The defendant never having authorized Doubleday to take up goods on credit, or assented to his so doing, and having furnished him with money to make this purchase before it was made, has in fact paid for the goods he received ; and if the plaintiffs have not received the money, it is because they have trusted to the representations of Doubleday, and been deceived by him, without any fault of the defendant.

Nor does the custom to deliver the goods, and wait two or three days for payment, on cash sales, make any difference. It does not appear that the defendant had ever authorized Doubleday to make any purchases without having furnished him the money before the purchase was made. If it had been shown that the defendant had directed Doubleday to purchase for cash, without having placed the money in his hands, and had afterwards furnished him the money within two or three days of the delivery, that might have altered the case. By such a course the defendant would have authorized Doubleday to pledge his credit; for if he had directed the purchase and delivery of the goods before the money was furnished, on the ground that two or three days were allowed for payment on a cash sale, he would in fact have taken a credit for that time, and have authorized the pledge of his credit in that manner; and, in such case, it might well have been contended, that the plaintiffs were authorized by the defendant to deliver the goods without payment, and on the defendant’s responsibility ; and that a conversion of fhe money subsequently furnished, was an infidelity to the defendant, and not to the plaintiffs. But this does not appear ever to have been the ease. If then the plaintiffs delivered goods on the order of Doubleday, without receiving the money, they must be considered as having trusted him thus far. A custom to wait two or three days for payment on cash sales, when the goods are delivered, is a custom to trust the party who is liable, for that period of time, but cannot change the liability in this case.

It appears further from the evidence, that the plaintiffs probably understood, at the time, that Doubleday was the party responsible, as they attempted in the first instance to procure payment from him.

Judgment for the defendant.