Gardner v. Allen's Ex'r , 6 Ala. 187 ( 1844 )

COLLIER, C. J.

It has been often stated, as .an acknowledged principle, if a factor sells goods in his own name, the purchaser, without a knowledge of any other person being a party to the contract, in the absence of collusion, is entitled to regard the debt as due to the factor, so as in an actioh brought by the principal, to set-off a debt due from the factor to himself. [Paley’s Agency, 326 to 335.] Mr. Justice Story, in his treatise on ’ the Law of Agency, says, if the agent is the only known or supposed principal, the person dealing with him will be entitled to the same rights of set-off as if the agent were the true and only principal, [p. 432.] And in such case, the set-off is equally good, whether a suit be brought in the name of the principal, or of the factor or agent, for the price of the goods. [Id. 452; see, also, id. 417-8-9, and cases there cited.] In Mitchell v. Bristol & Powell, [10 Wend. Rep. 492,] the law is laid down in equivalent terms, and the court, after citing several English decisions, say, in these cases it is held, that it makes'no difference whether the sale by the agent is under a del credere commission or not; the reason of the law is the same in both cases. But it is needless to elaborate the point at greater length. The authorities cited very fully show that it is quite immaterial whether the principal or his agent is the plaintiff. If the latter sue, the defendant may avail himself of any set-off,'which he has against the former; or, if the former be the actor in the suit, the purchaser may set-off’ a claim which he has against the latter, if he purchased under a just belief authorized by the fads of the case, that the agent was ■ the"real owner of the goods. [Story’s Agency, 417-8.] And this seems to be the current of decision, both in England and the .United States, without regard to the extended or restricted terms of the statutes of set-off. [Caines v. Brisban, 13 Johns. Rep. 9.] This being the law, it is .clear, that the court should have permitted the defendants to show that they shipped the cotton on account of Messrs. Labuzan & Pollard, under such circumstances as might well induce them to believe that it was their property. The sufficiency of this evidence was a question of fact to be considered by the jury, under the direction of the court; but, being admissible, its rejection is an error, for which the judgment is reversed, and the cause remanded.