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The questions in the case arise upon exceptions to the refusal to nonsuit, to parts of the charge of the judge, and to the refusal to charge certain propositions as requested by the defendant. The leading facts on which the questions arise were mainly undisputed on the trial, and may be briefly repeated. In August, 1858, the plaintiff and one Eli Doolittle made an agreement, by which the plaintiff was to ship and consign lumber from Wellsville, in the county of Allegany, to Doolittle, at New York or Brooklyn. Doolittle was to advance the freight and charges, and sell it in that market, and out of the proceeds to retain the amount of his advances for freight, and then to pay the plaintiff what the lumber cost him at Wellsville, and the balance, if any, to be divided equally between them. This one-half of
the net profits was the compensation that Doolittle was to receive for making such advances and sale. Under this agreement, the plaintiff, in the fall of 1858, shipped and consigned to Doolittle 320,000 feet of lumber, in four boat loads, of about 80,000 feet each. Two boat loads, containing 165,000 feet, were received by Doolittle at Brooklyn, the lumber "stuck up" by him on his dock, and was there in December, 1858. It was the plaintiff's interest only in this lumber that was sought to be recovered. This lumber cost the plaintiff, at Wellsville, from $7 to $7.50 per thousand feet; and Doolittle, before the 24th of December, 1858, had paid the freight on it, amounting to $6.87½ on each thousand feet. Previous to the 24th of December, 1858, Doolittle had become indebted to the defendant, who resided in Allegany county, in the sum of $1,000, for which he had given his note, and which note the defendant had transferred to Rushmore, Cone Co., of New York; and Doolittle and his partner, one Carle, had also become indebted to him in the sum of $2,796.72, as appeared by a settlement made that day. In the early part of December, the defendant sent his clerk and agent to New York to settle with Doolittle and get his pay; and after considerable negotiation, he obtained a bill of sale from him of the plaintiff's lumber at Brooklyn, a boat load of Doolittle's own lumber at Port Jackson, on the Erie canal, his interest in the plaintiff's lumber at that point, and a quantity of lumber at Scio, Allegany county. The sale was an entire transaction, amounting to $5,090, and in which the 165,000 feet of plaintiff's lumber at Brooklyn was included, at the valuation of $2,640. It was made with full knowledge, by the defendant's agent, as to the plaintiff's interest in the Brooklyn lumber, and the terms on which Doolittle had acquired the possession. The defendant, by his agent, paid Doolittle, by assuming his note for $1,000; agreeing to pay J. R. Wright $200; Doolittle Carle's indebtedness, $2,796.72; and Rushmore, Cone Co.'s check for $1,300, leaving Doolittle in debt $206.72, for which sum he gave his due bill. The $1,300 check of Rushmore Co. Doolittle required that day, by two o'clock, to pay a memorandum
check of his own. This appeared pretty plainly from the testimony. The defendant's agent testified, that after speaking to Doolittle about the Brooklyn lumber, the latter stated that he had the lumber, but had to have $1,300 in cash to pay a memorandum check that day by two o'clock, and that he, the agent, went to see if he could get the money for him. He got the $1,300 check, and delivered it to Doolittle. Upon the consummation of the sale, the 165,000 feet of lumber at Brooklyn, and all the lumber included in the instrument of transfer, was delivered, and the defendant subsequently disposed of it. The plaintiff afterward made proper demands; the defendant claimed that he had purchased the lumber in good faith, and refused to recognize any claim or right in the plaintiff.
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The questions in the case arise upon exceptions to the refusal to nonsuit, to parts of the charge of the judge, and to the refusal to charge certain propositions as requested by the defendant. The leading facts on which the questions arise were mainly undisputed on the trial, and may be briefly repeated. In August, 1858, the plaintiff and one Eli Doolittle made an agreement, by which the plaintiff was to ship and consign lumber from Wellsville, in the county of Allegany, to Doolittle, at New York or Brooklyn. Doolittle was to advance the freight and charges, and sell it in that market, and out of the proceeds to retain the amount of his advances for freight, and then to pay the plaintiff what the lumber cost him at Wellsville, and the balance, if any, to be divided equally between them. This one-half of
the net profits was the compensation that Doolittle was to receive for making such advances and sale. Under this agreement, the plaintiff, in the fall of 1858, shipped and consigned to Doolittle 320,000 feet of lumber, in four boat loads, of about 80,000 feet each. Two boat loads, containing 165,000 feet, were received by Doolittle at Brooklyn, the lumber "stuck up" by him on his dock, and was there in December, 1858. It was the plaintiff's interest only in this lumber that was sought to be recovered. This lumber cost the plaintiff, at Wellsville, from $7 to $7.50 per thousand feet; and Doolittle, before the 24th of December, 1858, had paid the freight on it, amounting to $6.87½ on each thousand feet. Previous to the 24th of December, 1858, Doolittle had become indebted to the defendant, who resided in Allegany county, in the sum of $1,000, for which he had given his note, and which note the defendant had transferred to Rushmore, Cone Co., of New York; and Doolittle and his partner, one Carle, had also become indebted to him in the sum of $2,796.72, as appeared by a settlement made that day. In the early part of December, the defendant sent his clerk and agent to New York to settle with Doolittle and get his pay; and after considerable negotiation, he obtained a bill of sale from him of the plaintiff's lumber at Brooklyn, a boat load of Doolittle's own lumber at Port Jackson, on the Erie canal, his interest in the plaintiff's lumber at that point, and a quantity of lumber at Scio, Allegany county. The sale was an entire transaction, amounting to $5,090, and in which the 165,000 feet of plaintiff's lumber at Brooklyn was included, at the valuation of $2,640. It was made with full knowledge, by the defendant's agent, as to the plaintiff's interest in the Brooklyn lumber, and the terms on which Doolittle had acquired the possession. The defendant, by his agent, paid Doolittle, by assuming his note for $1,000; agreeing to pay J. R. Wright $200; Doolittle Carle's indebtedness, $2,796.72; and Rushmore, Cone Co.'s check for $1,300, leaving Doolittle in debt $206.72, for which sum he gave his due bill. The $1,300 check of Rushmore Co. Doolittle required that day, by two o'clock, to pay a memorandum
check of his own. This appeared pretty plainly from the testimony. The defendant's agent testified, that after speaking to Doolittle about the Brooklyn lumber, the latter stated that he had the lumber, but had to have $1,300 in cash to pay a memorandum check that day by two o'clock, and that he, the agent, went to see if he could get the money for him. He got the $1,300 check, and delivered it to Doolittle. Upon the consummation of the sale, the 165,000 feet of lumber at Brooklyn, and all the lumber included in the instrument of transfer, was delivered, and the defendant subsequently disposed of it. The plaintiff afterward made proper demands; the defendant claimed that he had purchased the lumber in good faith, and refused to recognize any claim or right in the plaintiff.
The judge charged the jury, in substance, that, if the entire lumber was one purchase, and the entire price was paid in the account against Doolittle, and Doolittle Carle, and in the cash advanced, and the defendant had notice of the plaintiff's interest, and that the cash advanced was to be used by Doolittle in paying his own debt, and not in paying the plaintiff, the defendant was liable for the plaintiff's claim; or if, with the view of obtaining payment of his debt, he purchased all the lumber, and paid $1,300, with knowledge of the plaintiff's interest, and that Doolittle wanted the $1,300 to pay his own debt, and intended so to use it, and not to pay the plaintiff, he is not protected, and the plaintiff may recover. This, I think, was not error. It is to be considered that the jury found all the facts assumed in the charge in favor of the plaintiff by their verdict. The point that there was no evidence authorizing the judge to submit the question to the jury, whether the defendant had knowledge that Doolittle wanted the $1,300 to pay his own debt, and intended so to use it, is not tenable. There was quite enough in the testimony of Doolittle and the defendant's agent, who negotiated the sale, to justify the submission of the question. The transaction, then, was a sale of the entire lumber, including the plaintiff's and other lumber belonging to Doolittle, for $5,090. The payment was for the entire lumber, without specific
application of any part of it to any portion of the lumber, and consisted in satisfying Doolittle's debt and that of Doolittle
Carle, amounting to $3,996, and in money, $1,300, which exceeded the amount of the purchase price by $206.72; but as Doolittle required $1,300 to pay his own debt, that day maturing, the defendant advanced him the amount and took his due-bill for the $206.72. So that, in fact, the defendant paid but $1,093.28, while the plaintiff's interest amounted to over $1,330. The purchase was with knowledge on the part of the defendant of the plaintiff's interest in and ownership of the lumber in Brooklyn, and also with knowledge that the cash paid on such purchase ($1,300) Doolittle wanted to pay his own debt, and intended so to use it, and not to use it in paying the plaintiff. The question is, whether this purchase protects the defendant against the claim of the plaintiff to his property. Doolittle, by the contract with the plaintiff, was to make advances, c., to sell and apply the proceeds — first, in payment of himself; second, to pay the plaintiff the prime cost of the lumber; and, third, to divide the net profits between himself and the plaintiff equally. This constituted him an agent or factor of the plaintiff to sell in the usual way. He could not bind his principal by a disposition of the property in any other way than by a sale in the usual course of trade. (Story on Agency, § 60.) He was not authorized to exchange it in barter or pledge it, because there is no usage of trade to that extent; nor could he transfer it by way of security for his own private debt. (Story on Agency, §§ 92, 113.) It is well settled that, when the transfer of property is made in a mode which is not within the scope of the authority confided to an agent, or with which the agent is not apparently clothed, or held out to the public to be clothed, no title to the property passes, and it may be reclaimed by the owner. The purchaser is bound to take notice whether the agent is departing from the usage of trade. He is presumed to understand the restrictions and limitations imposed by the usage of trade upon a general agency (Story on Agency, §§ 224, 225); and when, in making the sale, the agent has departed therefrom, the principal may repudiate the act.
(State of Illinois v. Delafield, 8 Paige, 527.) I do not think the sale was in accordance with the authority of Doolittle as the factor of the plaintiff; and if not, the defendant was not protected by his purchase. It was not the contract of the plaintiff, because not in the usual course of trade, but was a contract for the sale of all the lumber in payment of a debt of the factor to the vendee, the assumption of other debts of the factor, and the delivery to him of a check for $1,300 (being $206 in excess of the purchase price) to be used immediately in payment of another debt of the factor. Why pay $1,300 in cash, being $206 in excess of the purchase price, taking Doolittle's due-bill for such excess, unless that amount of money was required by Doolittle for his own immediate use? Why not have limited the cash payment to an amount requiring no due-bill for any excess of payment? Simply because Doolittle must have $1,300 in money to pay a check of his, due at two o'clock that day.
The defendant did not agree to pay the money, nor did he pay it, to and for the use of the plaintiff. By the agreement he was to pay the money to Doolittle, for Doolittle's own use. Doolittle told him he must have the money by two o'clock to pay a memorandum check: procure the money for me, and you shall have all the lumber. It will hardly be claimed that the plaintiff would have made such a contract. The consideration was never paid to Doolittle, as the agent of the plaintiff, for the plaintiff. The defendant dealt with him as principal, knowing and disregarding the rights of the plaintiff. It was never the contract of the plaintiff, and it must have been, to have bound him. It was the contract of Doolittle and the defendant, and they united in converting the plaintiff's property. A purchaser from an agent intrusted with property for the purpose of sale, with knowledge of such agency, and that the agent is selling to raise money for his own purposes, and intending to apply it to his own uses, acquires no title as against the principal.
The case was not tried or submitted upon the theory that the defendant was liable as for a conversion of the whole lumber. Hence, I think the exception on that ground in the
motion for a nonsuit, and to the refusal of the judge to charge, is not well founded. The complaint truly stated the facts upon which the cause of action arose, and the claim was only for the value of the plaintiff's interest. This was clearly proved on the trial; and the defendant simply occupied Doolittle's place, retaining his interest. The action was not necessarily for the tort. There was an unauthorized sale of the property, by which, if the plaintiff should so elect, no title passed, and for which he might have maintained replevin or for a conversion, without a demand or tender of advances. But he had an election of remedies. He might waive the tort, and maintain his action for the proceeds of the sale. (Story on Agency, § 439.) So he might rely upon the sale of the property in question by the defendant as a conversion of it, in connection with the manner by which he obtained the possession, and recover the value of his interest, upon the ground that such disposition of the property was unauthorized, and was a fraud upon him.
I think the judgment should be affirmed.