Coxe's Adm'r. v. Devine , 5 Del. 375 ( 1852 )

ASSUMPSIT for goods sold, c. Pleas, non assumpsit, c, c.

The action was for bricks sold by Coxe, in his life-time, to James Kane, but which were really for defendant. The bricks were charged to James Kane, agent for Patrick Devine.

The defence set up — 1. That the bricks were furnished to Kane, as principal; 2. that a part of them were furnished to one Davis, a sub-contractor.

Mr. Bayard offered the books of Esau Coxe in evidence, to prove that a separate account was kept against Davis, and they were objected to.

The Court ruled them out for this purpose, saying they were admissible only to charge the party to the suit, and not to show accounts between other persons.

Mr. Bayard excepted to this opinion.

The Chief Justice charged: — 1. If knowing the principal, a sale be made to an agent, and credit be given to the agent, the seller cannot turn round and sue the principal.

2. If a sale be made to an agent, without knowledge of the principal, and the principal be afterwards discovered, the seller may sue the principal, though he charge the goods to the agent; provided he do so at such time as will not disturb any settlement as between principal and agent. (Roscoe Ev., 216., Bate vs. Burr; 4 Harr. Rep., 130; 1 Camp.Rep., 867.)

Verdict for plaintiff.