Folsom v. Batchelder

22 N.H. 47

• Court: Superior Court of New Hampshire
• Decided: December 15, 1850
• Status: Published

Opinion

Perlex, J.

Were the statements made by Brown to Benjamin M. Folsom, competent evidence against the defendant ?

Benjamin F. Folsom went in behalf of the plaintiff, with his bill of the potatoes, to demand and receive payment. In this he acted as the plaintiff’s agent, and any statement made to him on the subject of his agency, would affect the defendant, precisely as if the same statement had been been made to the plaintiff himself; and in going to Brown and making the inquiries suggested by the defendant, he also acted as the plaintiff’s agent; and the answer of Brown to his inquiries, will have the same effect, as if they had been made to the plaintiff.

The defendant declined to pay on the ground, that he had furnished money to Brown, and Brown had already paid; and referred the plaintiff’s agent to Brown, saying that Brown could tell him the same story. The agent of the plaintiff then went to Brown and inquired accordingly; and, in answer to his inquiries, Brown made certain statements relating directly to the subject, respecting which the reference to Brown had been made by the defendant.

This reference to Brown made him the agent of the defendant to explain the matter referred to him. His statements on that subject are to be considered as the statements of the defendant. They are not conclusive, but are to be received as competent evidence, like the declarations and admissions of the party himself. Williams v. Jones, 1 Campbell, 364 ; Garnet v. Ball, 3 Starkie’s Rep. 160; Hood v. Reeve, 3 Carr. & Payne, 532 ; Duval Covenhoven, 4 Wendell, 561.

As to the instructions moved for by the defendant, they assume the ground that if West, who carried and delivered the potatoes, said, at the time of the delivery, he brought them for Brown, and the defendant, supposing this to he the fact, reeeived them as coming from Brown, this statement of West would be conclusive on the plaintiff, although the potatoes were his, and West was employed to carry and deliver them for the plaintiff, without any authority to sell or otherwise dispose of them.

The evidence was conflicting, tending on the part of the plaintiff to show that Brown, acting as the agent of the defendant, had made a bargain with the plaintiff for the potatoes ; that the potatoes under this bargain were sold by the plaintiff to the defendant, and that West was employed by the plaintiff to carry and deliver them to the defendant. In the plaintiff’s view of the case, and according to his evidence, West had no authority to sell or deliver to any person but the defendant, or on account of any person but the plaintiff.

The defendant, in this part of the case, takes the ground that though the facts were as the plaintiff contended, though the potatoes belonged to the plaintiff, and West was employed to carry and deliver them for him to the defendant, yet if West, when he delivered the potatoes, told the defendant he brought them for Brown, the plaintiff will be concluded by this false and unauthorized statement of Brown.

As a general rule, the possession of goods by a bailee or servant, gives him no power to make any disposition of them, except by virtue of actual authority received from the owner. In England an unauthorized sale in market overt binds the owner. So the property in things which are said to have no ear-mark, such as cash, and bank-notes, passes by delivery in the usual course of business. And so, where the possession of the bailee, from the nature of his employment, implies an authority to sell; as when goods are left with an auctioneer or factor, a sale by such bailee, though he had no actual authority, will bind the owner. In such cases the owner has allowed the bailee in possession, to hold out the appearance of an authority to sell, which would deceive and defraud the fair purchaser, if the law allowed the validity of the sale to be questioned. Com. Dig. Biens, D. 3, and Market, E. Pickering v. Busk, 15 East, 41 and 42 ; Hartop v. Hoare, 1 Wilson, 8 ; s. c. 2 Strange, 1187; s. c. 3 Atkyns, 44; Bacon’s Use of the Law, vol. 13 of his works, 243.

This case docs not fall within any of these exceptions to the general rule. West, being employed by the plaintiff to carry and deliver the potatoes to the defendant, had no authority, express or implied, in law, to sell and deliver them as the property of another. His sale and delivery, as the property of Brown could not divest the title of the plaintiff. Nor could his declaration have any higher effect. The question was, whether Brown bought the potatoes on his own account or as agent for Batchelder. If they were in fact bought by Brown as agent, with due authority from the defendant, and the plaintiff sent and delivered them to Batehelder, according to the bargain made with his agent, the defendant would be bound to pay the plaintiff, and the plaintiff could not be concluded by the unauthorized statement of West.

The evidence that Batehelder and Brown, after they had conferred together, agreed that the money for the potatoes should be sent up to Lovering’s, in Exeter, was competent to be submitted to the jury as an admission of Batehelder, that he was liable to pay for the potatoes. If it is to be looked on in the light of an agreement, it tends to show a joint undertaking to pay; and on such an agreement, Batehelder would be liable alone in this suit, as there is no plea for nonjoinder of Brown.

Judgment on the verdict.