Edmond v. Caldwell , 15 Me. 340 ( 1839 )

After a continuance for advisement, the opinion of the Court was drawn up by

Weston C. J.

It appears, that in July, 1836, William Smith, as the agent and factor of the plaintiff, sold to the defendant a gig, and in a few days afterwards a harness, the property of the plaintiff. When payment is not made at the time, a sale by a factor creates a contract between bis principal and the purchaser. Titcomb & al. v. Seaver, 4 Greenl. 542, and the cases there cited. And in Kelly v. Munson, 7 Mass. R. 319, Sewall J. says, “ this rule applies, whether the factor has or has not named his principal, at the time of the sale.”

It is insisted, that the express promise to pay to the factor, excludes the contract, which the law would otherwise imply, between his principal and the purchaser. But we are not aware, that such would be the effect of an express promise to the factor. Bad the latter taken a negotiable note, which had been duly transferred, it would have been tantamount to payment; and to hold the purchaser still liable to the owner or the factor, might subject him to be twice charged. His promise to the factor, was subject to the control of the owner. If he chose to require payment to himself, he had a right so to do.

It is said, the note received was payable on time, and that the defendant is, for that reason, liable only upon that contract. No such fact however appears in the case ; and it is therefore unnecessary to consider what might have been its effect. It is further contended, that the defendant bought under an express protestation, that he wrould not bo liable to the plaintiff. He declined giving a note running to him, but he did not disclaim any liability, which the law would imply. Ho knew the gig belonged to the plaintiff, and that the note was to be passed to him, and he must have understood, that to him payment was to be made.

It appears, that the plaintiff, when apprized of what was done, received the note and made no objection. But there is no evidence, that he did at any time consent that Smith should receive payment, or that he waived his right to insist upon receiving himself the price, for which his gig and harness sold. If by the appointment of the owner, a note had been given to a third person, to bo received ibr his own use, the liability would be transferred by his consent, and the purchaser would be holden only to the appointee. But in this case the plaintiff had the evidence of the express promise to Smith, wdficli the defendant knew was not made for his benefit. Upon payment to the plaintiff, the collateral promise to Smith would be discharged; and the defendant was in no danger of being twice charged. The plaintiff might ratify the sale to the defendant, without being bound to acquiesce in his express promise to pay Smith. The law gave him a right to interpose, as the real vendor of the property, -which could not be defeated by any collateral promise, he might choose to make to his factor.

It is urged, that the contract, into which the defendant entered, is to be found only in the note ; and that it was not given on account of a prior debt or obligation. The sale of the plaintiff’s gig, and the giving of a note running to Smith, are parts of one transaction; but the plaintiff is not precluded from showing, that he sold the property to the defendant through his agent, and the legal result is, that his right to look to the defendant for the price is- not taken away, by his mere promise to pay the agent.

In the case of the West Boylston Man. Co. v. Searle & al. 15 Pick. 225, the court held that the legal title in a note given to a factor, for goods sold on account of his principal, is in the factor, and the principal, who has the beneficial interest, is the cestui que trust, and if he sues on the note, he must do it in the name of the factor, or if as indorsee, would do so, subject to any fair matter in offset or discharge. But the court say further, “ if the principal is in a condition, to declare on the contract for goods sold, treating the note as a nullity, or as a mere collateral security, not amounting to payment, he might probably recover in his own name.” And this does appear to us to be the condition of the plaintiff. We are therefore of opinion, that the presiding Judge was right in refusing to order a nonsuit.

The counsel for the defendant, attempts to distinguish the plaintiff’s claim for the harness from that of the gig. It does not appear, that he took any such distinction at the trial, or that he did, upon this ground, request any instructions or ruling from the Judge. If the defendant had paid Smith for the harness, or had been adjudged his trustee therefor, without being apprized of any interest in the plaintiff, payment thereupon may have been equivalent to payment to Smith; and if the purchaser has paid the factor without notice, he does not remain liable to the principal. But this assumes, that he had no such notice, which is not found, nor is it de-ducidle from the evidence. Smith does not testify, that he notified the defendant, the harness was the plaintiff’s, but as it was put into the same note, which was given for the gig, which he knew did belong to the plaintiff, the jury might have been warranted in finding, that the defendant was apprized that Smith sold both in the same character.

The defendant had paid the amount to an attaching creditor of Smith, upon being adjudged his trustee. This would discharge him from all claim on the part of Smith, but not on the part of the plaintiff, at least unless payment to Smith, at the lime of the disclosure, ought to have that effect. And he would not have been justified in paying Smith, having no reason to believe that he was the holder of the note, and knowing also, that the interest was in the plaintiff If he disclosed all the facts, and was adjudged trustee, that judgment was erroneous. If he did not disclose all the facts, he omitted to do so at his peril. In either case, it could afford him no defence against the plaintiff, who was not a party to that judgment, the evidence of which was therefore properly rejected.

.Exceptions overruled.