Moore v. Thompson , 32 Me. 497 ( 1851 )

Wells, J.

The plaintiff contended that his'agent, John M. Thompson, had no authority to sell his goods to the defendant in the manner in which the sale was effected, and so far as they had been converted into money by the defendant, he had a right to recover, although the defendant had paid the agent for them. The authority to sell was denied upon the ground, that it was made by an entire sale of the whole stock at one time and to the same person. The power to make it in that mode must depend upon the language used in the instrument by which the authority was given. The contract between the parties of Dec. 27, 1842, provides that the agent is “..to sell said goods for cash or produce,” &c. There is nothing in it .that requires they should be sold at retail or to different persons, and no terms employed from which such inference can be drawn. The mode of selling is left altogether to the agent. If it had been intended to restrict the mode of sale, the intention should have been expressed in the contract. The agent sold a large amount of his own goods with those belonging to the plaintiff, but received in money a sum equal to the value of the plaintiff’s goods. It is contended in argument that the money ought not to be considered as having been paid for the plaintiffs goods, but in part for the price of all the goods sold, and that the sale was authorized only to the extent of the plaintiffs, proportion of the money received. No such- question was raised at -the trial, but if it did arise properly, the position is not admitted to be correct. In the absence of all proof to the contrary, the presumption would be that the agent acted properly, and that the money was received for the goods of his principal, and not for his own. But if payment had been made in part only for the. plaintiff’s goods, that circumstance would not enable him to recover in this action; for denying the right of the agent to sell, he claimed on the ground that the defendant had obtained possession of his goods and had converted them into money. He could only recover so far as the defendant had realized money from them, and it does not appear.that he had sold them for money, or that he had sold them at all. It is not shown that the defendant sold any of the goods which had belonged to the plaintiff between the 23d of May and the 9th of June, 1843, while he was in trade, nor was the mortgage of the goods to Eliab P. Mclntire a conversion of them into money. The goods would be released from the mortgage by the payment of the debt, and the mortgager would be entitled to them. There is not evidence in the case upon which to base an instruction that, it is contended in the argument, should have been given.

The plaintiff further contends that the sale to the defendant was made by John M. Thompson to defraud his creditors, and therefore it is void as to him, and he has a right to regard it as if it had not been made. But the sale was valid between the parties to it, and as to all other persons who were not prejudiced by it. The plaintiff does not claim the goods sold as a creditor or purchaser. The only fraud that could have been committed, if there were any, was in relation to the agent’s own goods, and it could not in the least degree have affected those belonging to the plaintiff. Because the plaintiff’s goods were sold with the agent’s, and the agent intended to defraud his creditors in the sale of his own goods, no detriment could possibly accrue to the plaintiff. If the agent did not transcend his power, and sold the plaintiff’s goods for cash or produce according to the authority given him, the plaintiff has no reason to claim any thing of the defendant. No third person can impeach the validity of a sale made to defraud creditors unless it operates as an injury to him.

There does not appear to be any error in the instructions given, and the requested instruction was properly witheld.

Exceptions overruled and judgment on the verdict.