Upton v. Gray , 2 Me. 373 ( 1823 )

Mellen C. J.

delivered the opinion of the Court.

The only question is whether the plaintiffs are entitled to retain their verdict for the amount of that part of the goods which were charged to Lakeman at the time they were delivered to him. — It does not appear that at that time Lakeman stated to the. plaintiffs in what capacity he was acting, nor that they knew him to be the authorized agent of Gray, though such agency was a matter of public notoriety; — and in the present case we apprehend that these circumstances are not material.- The. goods when received by Lakeman were all applied to the defendant’s use. If the plaintiffs knew him to be the defendant’s agent, and dealt with him as such, it seems to be of little consequence whether the charge was made against the agent or the principal. If they did not know it, there seems to be no inconsistency in making their claim on the defendant, having discovered, since the delivery of the goods, that he was liable in consequence of his having constituted Lakeman his general agent. Suppose that the plaintiffs had ascertained, since the sale, that Gray at that time was a dormant partner of Lakeman ; they could surely, in such case, have maintained an action against them both as partners; — and yet the charges in the plaintiffs’ books would not correspond with the allegations in their writ, and would seem to negative the idea that credit was given to any one but Lakeman. Still that circumstance would not prejudice their right of action against the newly discovered copartnership ;• — nor does it impair their rights in this action against Gray alone, as it now is apparent that Lakeman was authorized to bind him as his principal. Lakeman considered himself as contracting in that capacity, because, it is proved* he never charged the goods over to Gray.

The opinion and reasoning of the Court in Williams & al. v. Mitchell, 17 Mass. 98 and the principle of that decision, have a direct bearing on the present case ; and the same train of reasoning which led the Court in that case to the opinion they formed* lead us to overrule the motion for a new trial.

Judgment on the verdicts