Daly, Chief Justice.
The finding of facts excepted to : 4. That Chapman "was the agent and employee of Stokes. 2. That The Sterling Oil Works was simply a name used by Stokes, that no other person bat Stokes carried on the business under that name, and that no such property as that specified in the receipt had ever been warehoused or placed on storagein charge of any third person—that is, that it was in charge of Stokes himself, being in charge of his superintendent Chapman. 3. That he had previously made a transfer of the business to his mother, with the intent to hinder and delay his creditors. 4. That the [426]*426warehouse receipt was fraudulent, and made by him with an intent to deceive the defendants in procuring the loan, and that they made the loan on the faith of its being a genuine receipt of some third party having the quantity of oil and barrels on store for him, as the terms of the receipt purported. 5. That the defendants, ignorant of the fraud practiced upon them, made and delivered the written order of the president of the bank, authorizing Stokes to sell. 6. That Stokes applied the money received by him from the plaintiffs to his own use, are all fully sustained by the evidence, and our judgment will proceed upon the conclusion that the facts of the case are astound by the judge.
I am unable to see how upon the facts found by the judge, the bank can be held answerable for the loss which the plaintiffs incurred by the purchase of the property from Stokes. The complaint in substance, avers that the bank through their agents and servants, claimed to be the owner and holder of the property; that they offered it for sale through their authorized agents for and on their behalf, as their property; that the plaintiffs, relyi?ig upan such representation and statements, purchased it; that upon Stokes producing the gauger’s return and the lighterman’s receipt, the plaintiffs, for the purpose of ascertaining the true owner of the property and the authority of Stokes to sell it, demanded the evidence of his authority; upon which he stated that the oil was the .property of the bank; that he acted as its authorized agent, and that he delivered to the plaintiffs an instrument signed by the president of the bank, authorizing him to sell it for the bank, upon which the plaintiffs paid him the purchase money and received the property.
The complaint then avers that the property having been taken from them by the sheriff, as property which had been levied upon by him previously to the sale of it to the plaintiffs, under an execution upon a judgment recovered against Stokes, they notified the defendants ofwhat had occurred, and requested them to defend and protect the plaintiffs’ title; that the defendants then asserted that they were at the time of the sale, the Iona fide owners and holders of the property, and that the plaintiffs had acquired a valid title to it, by the sale of it to [427]*427them ; that they, the defendants, required the plaintiffs to assert and maintain their title to it in law, and that the plaintiffs, at the special instance and request of the defendants, brought an action of replevin against the sheriff for wrongfully taking it, in which action a verdict was rendered in favor of the sheriff. That the plaintiffs thereupon requested the defendants to pay the damages they had sustained by reason of the failure of the title, which the defendants refused, and the plaintiffs then at the instance of the defendants, upon the defendants’ belief and at their’ request, appealed to the Court of Appeals where the judgment of the court below was affirmed, and the plaintiffs were compelled to pay the judgment and the costs of the appeal.
The plaintiffs failed to prove this state of facts. They did? not show that the oil was offered for sale to them as the property of the defendants, and that they purchased it relying upon any such representation or statement; but, on the contrary,. the written memorandum of sale shows that it was sold to them on account of the Sterling Oil Works, and that the memorandum was signed by Stokes with the affix of agent / that is, agent of the Sterling Oil Works—the Sterling Oil Works being, in fact, Stokes himself. And they did not prove that the action of replevin was brought at the defendants’ request, or that the appeal to the Court of Appeals was upon the defendants’ behalf, and at their request.
It may be assumed that the bank acquired any title which Stokes had to the property, by the indorsement to them of the petitioners’ warehouse receipt. That both he and Chapman would be estopped as against the bank from setting up that the íeceipt was fictitious, and not based upon a real transaction, and that this estoppel would be equally effectual against all claimants under Stokes, upon a title subsequently acquired. That although it was not—as the Court of Appeals held when this transaction was before them, upon the appeal from the judgment—a warehouse receipt within the meaning of our statute, it was an instrument, the indorsement of which with an intention to transfer the property, would by the law merchant transfer it independent of the statute. That as between Stokes [428]*428and the bank, it was a mortgage, which was void as against Stokes’ creditors, as there had been no immediate delivery of the property under it, or change of possession, and the mortgage had never been filed. All this, I say, may be assumed; hut it in no way helps the plaintiffs’ ease.
In the very able argument of this case on the part of the appellants, it was claimed that the bank put in motion the agencies which resulted in the sale to the plaintiffs, and the loss of the money which they paid for the oil. This was not-the fact. The bank, under the impression that they held a regular warehouse receipt, authorized Stokes to sell the oil, upon his informing them that it was declining in value in the 1 market. But he did not assume to act under this authority, j He could have done all that he did if no such authority had becu given. He sold it, not as the property of the defendants, but as purporting to be the property of the Sterling Oil Works, and delivered it himself, the pretended warehouseman Chapman being his superintendent and servant. When he made the sale, he knew what the defendants did not, that the property was then levied upon under an execution against him. With this knowledge, he went to the works, carried it away, and delivered it to the plaintiffs, receiving from them the purchase money, part of which he gave to his mother, the pretended owner of the oil works, and the residue he applied to his own use. He testified that he told the broker, when he employed him, that he had authority from, the hank to sell the oil; but this statement is inconsistent with the written memorandum of the sale, and is in conflict with the testimony of the broker, who says, that he did not tell him until the oil was sold, upon whose account he sold it. There is no finding by the judge upon ¡this point; but we must assume, so far as that may be necessary in support of his judgment, that he relied upon the memorandum and the testimony of the broker. Stokes, in fact, perpetrated a fraud upon the plaintiffs, by selling and delivering to them property to which he knew that neither he nor the defendants had then any claim, it having been levied upon by the sheriff, as he had previously perpetrated a fraud [429]*429upon the defendants, by borrowing §5,000 of them upon the security of a fictitious warehouse receipt.
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Daly, Chief Justice.
The finding of facts excepted to : 4. That Chapman "was the agent and employee of Stokes. 2. That The Sterling Oil Works was simply a name used by Stokes, that no other person bat Stokes carried on the business under that name, and that no such property as that specified in the receipt had ever been warehoused or placed on storagein charge of any third person—that is, that it was in charge of Stokes himself, being in charge of his superintendent Chapman. 3. That he had previously made a transfer of the business to his mother, with the intent to hinder and delay his creditors. 4. That the [426]*426warehouse receipt was fraudulent, and made by him with an intent to deceive the defendants in procuring the loan, and that they made the loan on the faith of its being a genuine receipt of some third party having the quantity of oil and barrels on store for him, as the terms of the receipt purported. 5. That the defendants, ignorant of the fraud practiced upon them, made and delivered the written order of the president of the bank, authorizing Stokes to sell. 6. That Stokes applied the money received by him from the plaintiffs to his own use, are all fully sustained by the evidence, and our judgment will proceed upon the conclusion that the facts of the case are astound by the judge.
I am unable to see how upon the facts found by the judge, the bank can be held answerable for the loss which the plaintiffs incurred by the purchase of the property from Stokes. The complaint in substance, avers that the bank through their agents and servants, claimed to be the owner and holder of the property; that they offered it for sale through their authorized agents for and on their behalf, as their property; that the plaintiffs, relyi?ig upan such representation and statements, purchased it; that upon Stokes producing the gauger’s return and the lighterman’s receipt, the plaintiffs, for the purpose of ascertaining the true owner of the property and the authority of Stokes to sell it, demanded the evidence of his authority; upon which he stated that the oil was the .property of the bank; that he acted as its authorized agent, and that he delivered to the plaintiffs an instrument signed by the president of the bank, authorizing him to sell it for the bank, upon which the plaintiffs paid him the purchase money and received the property.
The complaint then avers that the property having been taken from them by the sheriff, as property which had been levied upon by him previously to the sale of it to the plaintiffs, under an execution upon a judgment recovered against Stokes, they notified the defendants ofwhat had occurred, and requested them to defend and protect the plaintiffs’ title; that the defendants then asserted that they were at the time of the sale, the Iona fide owners and holders of the property, and that the plaintiffs had acquired a valid title to it, by the sale of it to [427]*427them ; that they, the defendants, required the plaintiffs to assert and maintain their title to it in law, and that the plaintiffs, at the special instance and request of the defendants, brought an action of replevin against the sheriff for wrongfully taking it, in which action a verdict was rendered in favor of the sheriff. That the plaintiffs thereupon requested the defendants to pay the damages they had sustained by reason of the failure of the title, which the defendants refused, and the plaintiffs then at the instance of the defendants, upon the defendants’ belief and at their’ request, appealed to the Court of Appeals where the judgment of the court below was affirmed, and the plaintiffs were compelled to pay the judgment and the costs of the appeal.
The plaintiffs failed to prove this state of facts. They did? not show that the oil was offered for sale to them as the property of the defendants, and that they purchased it relying upon any such representation or statement; but, on the contrary,. the written memorandum of sale shows that it was sold to them on account of the Sterling Oil Works, and that the memorandum was signed by Stokes with the affix of agent / that is, agent of the Sterling Oil Works—the Sterling Oil Works being, in fact, Stokes himself. And they did not prove that the action of replevin was brought at the defendants’ request, or that the appeal to the Court of Appeals was upon the defendants’ behalf, and at their request.
It may be assumed that the bank acquired any title which Stokes had to the property, by the indorsement to them of the petitioners’ warehouse receipt. That both he and Chapman would be estopped as against the bank from setting up that the íeceipt was fictitious, and not based upon a real transaction, and that this estoppel would be equally effectual against all claimants under Stokes, upon a title subsequently acquired. That although it was not—as the Court of Appeals held when this transaction was before them, upon the appeal from the judgment—a warehouse receipt within the meaning of our statute, it was an instrument, the indorsement of which with an intention to transfer the property, would by the law merchant transfer it independent of the statute. That as between Stokes [428]*428and the bank, it was a mortgage, which was void as against Stokes’ creditors, as there had been no immediate delivery of the property under it, or change of possession, and the mortgage had never been filed. All this, I say, may be assumed; hut it in no way helps the plaintiffs’ ease.
In the very able argument of this case on the part of the appellants, it was claimed that the bank put in motion the agencies which resulted in the sale to the plaintiffs, and the loss of the money which they paid for the oil. This was not-the fact. The bank, under the impression that they held a regular warehouse receipt, authorized Stokes to sell the oil, upon his informing them that it was declining in value in the 1 market. But he did not assume to act under this authority, j He could have done all that he did if no such authority had becu given. He sold it, not as the property of the defendants, but as purporting to be the property of the Sterling Oil Works, and delivered it himself, the pretended warehouseman Chapman being his superintendent and servant. When he made the sale, he knew what the defendants did not, that the property was then levied upon under an execution against him. With this knowledge, he went to the works, carried it away, and delivered it to the plaintiffs, receiving from them the purchase money, part of which he gave to his mother, the pretended owner of the oil works, and the residue he applied to his own use. He testified that he told the broker, when he employed him, that he had authority from, the hank to sell the oil; but this statement is inconsistent with the written memorandum of the sale, and is in conflict with the testimony of the broker, who says, that he did not tell him until the oil was sold, upon whose account he sold it. There is no finding by the judge upon ¡this point; but we must assume, so far as that may be necessary in support of his judgment, that he relied upon the memorandum and the testimony of the broker. Stokes, in fact, perpetrated a fraud upon the plaintiffs, by selling and delivering to them property to which he knew that neither he nor the defendants had then any claim, it having been levied upon by the sheriff, as he had previously perpetrated a fraud [429]*429upon the defendants, by borrowing §5,000 of them upon the security of a fictitious warehouse receipt.
The president of the bank testified that it was his impression that he gave Stokes a verbal authority to sell, when the bank loaned him the $5,000, which was on the 10th of December. The sale by Stokes to the plaintiffs was on the 8th of January following. The giving of this verbal authority in no way affected the sale made to the plaintiffs. They were in no way influenced or misled by it in making the purchase, and as respects them or the broker, Stokes, as I have already said, | could have done all that he did without any such authority. I After the sale was made, Stokes procured from the president a written authority. The precise time when he procured it does not appear. The instrument is simply dated January, 1867. All that the president could say was that he gave Stokes a verbal authority when the $5,000 was loaned to him, and that he came subsequently and the president gave him a written order. Stokes testified that he got the written authority after the oil was sold ; that he did not know whether he sot it before the plaintiff's gave him their check or not. And in answer to a direct inquiry, said that he did not recollect whether or not he got it after the sheriff of Kings county had gone to the plaintiffs and claimed the property. That the plaintiffs up to that time knew nothing about this written authority appears by the testimony of one of them, Willard Gregory, who says that he did not know who Stokes was acting as agent for when the sheriff came and took the property from them, and that he did not receive or see the written authority until after that seizure ; so that, up to this time, the plaintiff’s knew nothing of any interest which the defendants had in the oil, or of the authority given by them to Stokes to sell it. There was nothing in that circumstance, therefore, that induced or led to the purchase.
I think it very plainly appears when and why this written authority was obtained. There is first the suspicious circumstance that the date is given generally in January, the day of the month being omitted. Stokes was asked if anything was said at the time the order was given about omitting the day, [430]*430and he answered, “Not a word ; ” but when afterwards asked ' if it'was not unusual for men of business to give orders without dating them, he replied that he thought that something was said about putting January, because the oil had been sold a day or two previous. It appears by the complaint, that the sheriff of Kings county took the oil from the plaintiffs on the 17th of January, nine days after the plaintiffs bought it. Now Stokes had previously testified that when he applied for the written authority, he told the president that he was sorry the way things was / that some of the oil had been taken out of the works ; that he had intended the proceeds to go to him, but they had gone to another channel ¡ that he was sorry about il, but that his mother would pay the deficiency, and that the president told him if he would do that, it would.be satisfactory, to which he answered that he would sell the oil and aoGOunt for it, and that the president replied, “All right; do so.” Now by his own showing, he had then sold the oil, and the written authority in fact, so states. He told the president that some of the oil had been taken from the works. This was true. He had taken 168 barrels himself, and delivered them to the plaintiffs. He also told the president that he had intended the proceeds (that is, of what had been taken away) to go to him, but they had gone to another channel. What was this other channel ? Evidently the taking of the 168 barrels by the sheriff from the persons to whom he had sold them, the plaintiffs, showing very plainly, to my mind, that it was after this event that he went for the written authority. There was a reason for it then, at least in his mind, which did not exist before. It had been sold to the plaintiffs, and as he had a verbal authority from the president, he had nothing to do but to go to the bank and give him the check he had received from the plaintiffs upon the sale of it, which he did not do, but divided the purchase money between himself and his mother. But the sale had proved abortive. The sheriff had followed the property and recaptured it. Willard Gregory, one of the plaintiffs, says that when the oil wras seized, he went immediately to the broker, found out where Stokes’ office was, went there and found Stokes at his lawyer’s. It was after this that the written [431]*431authority was produced and given to the plaintiffs, for Willard Gregory swears they received it immediately after the seizure by the sheriff, and that his impression was that he first saw it in their lawyers’ office, Van Cott, Winslow & Van Cott.
The president of the bank, in the various interviews between him, the plaintiffs and their lawyers, did not request the plaintiffs to bring the replevin suit, or to appeal to the Court of Appeals. When Willard and George Gregory called at the bank, after the seizure, they saw the secretary, and told him of what had occurred. He told them that the bank had advanced money on the oil, and had a warehouse receipt for security, and that he did not see how the sheriff could hold it. They then saw the president. He made the same reply in substance as the secretary, saying, in addition, that the plaintiffs’ title to the oil was good, that he had directed Stokes to sell it, and gave him authority to do so. They asked him what he thought they had better do, and he replied that their title was good, and that they had better defend it. At another interview he referred to the receipt, and said that if that was not a good warehouse receipt, there could not be one ; that they were doing business in that way every day ; that if they could not be protected on that, that it was time the bank should know it. When called upon in respect to the appeal to the Court of Appeels, he was told that the case was decided against the plaintiffs, and the plaintiffs said that they thought he ought to relieve them from the suit and furnish sureties to carry the case to the Court of Appeals, to which his answer was that they had got a good title to the goods, and that he would not do anything about it.
There was nothing in this evidence, and it is all that there is, showing that the bank authorized or requested the plaintiffs to bring the replevin suit or the subsequent appeal. What the president said was said in ignorance of the fact that that warehouse receipt was fictitious. He supposed that the bank held a regular warehouse receipt, duly indorsed ; and under that impression, stated that the title of the plaintiff was good, as the bank had given Stokes authority to sell. In this he was mistaken ; but the mischief was then done. The plaintiffs had [432]*432bought the property, paid for it, and the sheriff had then taken it out of their possession. The president’s mistaken confidence in the validity of the bank’s title may have induced the plaintiffs to bring the action of replevin, but that is no ground for holding the bank answerable for the loss which the plaintiffs sustained by purchasing and paying for the goods. Nor does it affect the question that Stokes’ mother afterwards paid the $5,000 to the bank which Stokes had borrowed. That the bank has escaped from loss is no reason why they should make good the plaintiffs’ loss, both parties being equally innocent.
This is not the case of a principal who is liable for the frauds of his agent, acting within the scope of his authority, for that liability is founded upon the principal’s holding out his agent as fit to be trusted, and who thereby, in effect, warrants his fidelity and good conduct (Story on Agency, 7th ed. §§ 127 and note, 443, and 445 ; 4 Bac. Abm. Master and Servant, K); but here the defendants did not hold out Stokes to the plaintiffs as their agent, nor did the plaintiffs purchase the property with any such understanding or impression. Nor can the defendants be brought within the rule which charges an undisclosed principal upon a contract made by the agent in his own name. That rule is founded upon the justice of holding the undisclosed principal responsible, although the agent made the contract in his own name, or generally as agent, without specifying bis principal, because the contract was made by the principal’s direction and for his benefit. But that rule is never enforced for the advantage of a third party, if it would work injustice to the principal. As the third party contracted with the agent in his own name, or generally as an agent, without any knowledge of the principal, he has no right to look to the principal, if the principal, withóut any default upon his part, would then be prejudiced by being made personally liable. The rule is subject to the correlative rights existing, as between the principal and his agent, and will not he enforced against the principal where it would be inequitable and unjust to do so (Thompson v. Davenport, 9 Barn. & Cres. 78; 1 Bell’s Com. § 418, 4th ed. ; Smith on Mercantile Law, 126, 127, 3d ed.; Story on Agency, § 449, 7th ed.)
[433]*433Such is the case here. All the right which the defendants ever had to this property was such as Stokes conferred by in-o dorsing to them the fictitious warehouse receipt, and they had none whatever when Stokes sold it to the plaintiffs, it having then been levied upon by the sheriff. The levy was made on. the 22d of December, and the sale to the plaintiffs on the 8th of January following by Stokes, was evidently to evade and defeat the levy; a circumstance of which the defendant was ignorant. That Stokes did not then make the sale for the defendant’s benefit appears in the fact that he made it as the assumed agent of The Sterling Oil Works, of which he was the proprietor and not the agent, and from the disposition which he made of the proceeds. To hold the defendant, therefore, answerable for the loss which the plaintiffs sustained in buying from Stokes, as the assumed agent of The Sterling Oil Works, a quantity of oil to which neither he nor the defendant had then any claim or title, a fact of which the defendant was ignorant, would be unjust, and which the plaintiffs have no right to insist upon to the defendant’s prejudice, where Stokes did not assume to act by virtue of the oral authority they gave him to sell, but where he sold it, and the plaintiffs bought it of him, as the supposed agent of The Sterling Oil Works. The defendant gave him authority to sell; but between'the time when that authority was given and the sale, a circumstance occurred which divested the defendant of any right or claim to the-property; a circumstance of which they were ignorant, but of which Stokes had knowledge. It was not a sale, therefore, made by their authority, for it cannot be assumed that they authorized him to sell it after it had been levied upon (Southern v. How, Cro. Jac. 469, 470. See the third proposition, which the court adopted). If the defendant had held out Stokes to the plaintiffs as their agent, it might have been otherwise; but they cannot be held answerable, under such circumstances, as the undisclosed principals. The judgment should be affirmed.
J. F. Daly and Loew, JJ., concurred
Judgment affirmed.