Perkins v. Cady

111 Mass. 318

• Court: Massachusetts Supreme Judicial Court
• Decided: January 15, 1873
• Status: Published

Opinion

Wells, J.

The instructions to the jury, that if they were satisfied that the “ transaction with Osgood, including the account and bill of sale and note given by him, was not a sale to Osgood, the plaintiff may recover notwithstanding those transactions, unless they are satisfied that the defendant, after having been shown or made acquainted with the account and bill receipted to Osgood and note made by him, in good faith, believing the lathe to belong to Osgood, purchased it of him,” were wrong.

If the plaintiff, knowing Osgood to be the agent of the defendant, accepted his note in payment for property sold to the defendant, intending to receive it as payment and to give exclusive credit to Osgood, it would operate as payment; and he could not thereafter faU back upon the defendant for the price of the property, although the note of Osgood "should be dishonored. This proposition was distinctly presented by the defendant’s prayers for instructions. It fairly arose from the testimony. The instructions given, as above recited, excluded it from the consideration of the jury. On this ground, therefore, the

Exceptions must be sustained.