FROM GRAFTON CIRCUIT COURT. I am of opinion that the defendant's exceptions in this case must be sustained, and that judgment should be entered in his favor upon the report of the referee. The general rule, that the possession of goods by a bailee, or servant, gives him no power to make any disposition of them, except by virtue of actual authority received from the owner (PERLEY, J., in Folsom v. Batchelder, 22 N.H. 51), is so well settled as to be quite elementary. But there are several exceptions to this rule, quite as well settled, and quite as well understood as the rule itself. One relates to money, bank bills checks, and notes payable to the bearer, or transferable by delivery. The cases establishing this exception, commencing, perhaps, with Miller v. Race, 1 Burr. 452, are very numerous, and quite uniform. Another exception, in England, relates to sales in market overt. But as we have no markets overt in this state (Bryant v. Whitcher, 52 N.H. 158), that exception has no existence here. Another is where the possession of the bailee, from the nature of his employment, implies an authority to sell, — as, when goods are left with an auctioneer, or factor, a sale by such bailee, though he had no actual authority, will bind the owner. PERLEY, J., in Folsom v. Batchelder, supra, p. 51, and cases cited. The reason given for this last exception is, that the owner has allowed the bailee in possession to hold out the appearance of an authority to sell, which would deceive and defraud the fair purchaser if the law allowed the validity of the sale to be questioned. This statement of the reason, thus clearly and succinctly given by the late Chief Justice PERLEY, suggests the ground of my decision in this case. The facts, specially stated by the referee, show most clearly to my mind that the plaintiff allowed Mason, while he retained possession of the horse, to hold out the appearance *Page 36 of ownership in himself, and so of an authority to sell, which would deceive and defraud a fair purchaser if the law permitted the validity of the sale to be questioned.
The plaintiff's counsel undertakes to avoid the application of this just and wholesome rule by saying that the taking of the bill of sale by Mason in his own name was not the plaintiff's act; and this is true. Mason bought the horse for the plaintiff, and paid for it with the plaintiff's money. Why he concealed the fact of his agency from Hubbard, and why he took a bill of sale in his own name instead of that of his principal, does not appear; but inasmuch as this was all contrary to the truth of the transaction, it is fair to presume that it was part of the scheme of fraud which he then had it in his mind to perpetrate. So far there was certainly no act of the plaintiff, and nothing to prevent the application of the general rule, which Chancellor Kent says is a maxim alike of the civil and common law, that nemo plus juris in alium transferre potest quam ipse habet. 2 Kent's Com. 324.
But the report states, that after the purchase "Mason informed the plaintiff that he had made the purchase, and showed him the bill of sale, and told him he could give him a bill of sale, and that would make it all right, but did not do so; and it was then arranged that Mason should bring the horse to the plaintiff on the following Monday — this being on Saturday; and it was further arranged that Mason, after he had brought the horse to the plaintiff, should take him and keep him, and drive him to better break him," c. What was the meaning of this talk about Mason giving the plaintiff a bill of sale of his own horse? Why did he not hand over the bill of sale he took from Hubbard? True, it is not expressly stated by the referee that the plaintiff assented to this proposal of Mason, which if it had been carried out would have left Mason with the highest evidence of ownership still in his possession. But the inference is irresistible that he did assent to it, at least so far as to permit Mason to go away with Hubbard's bill of sale, having the horse still in his possession. Why did not the plaintiff take from his agent either the bill of sale or the horse? Counsel say he could not do it, perhaps, without a breach of the peace. Did he make the effort? That does not appear. Suppose he had demanded the bill of sale, and his agent had refused to give it up to him, would he have suspected then that there was anything unusual or wrong in Mason's conduct? If Mason had refused, upon demand, to give up either the horse or this evidence of title in himself, what was there to hinder the plaintiff from taking the animal upon a writ of replevin in the detinet, under our present statute? A refusal by Mason to hand over both the horse and the bill of sale upon demand, would amount to a conversion in law, and would in fact be evidence of the most conclusive character that he intended to appropriate the animal to his own use, regardless of the plaintiff's rights.
Even if the plaintiff's suspicions were not aroused by the extraordinary circumstance that Mason had taken the bill of sale in his own name, a demand of this sort would either have disarmed his agent of *Page 37 the power to deceive and defraud innocent purchasers, or would have developed a purpose to appropriate the property, which would call for immediate action by the plaintiff to secure himself, as against the rapacity of a thief. Why did the plaintiff suffer Mason to go away with the bill of sale and the horse both in his hands? No answer to this question appears in the case, and no answer at all sufficient to my mind has been suggested in the argument. That act of the plaintiff was, as it seems to me, little if at all less significant than if he had himself executed a bill of sale of the horse, and delivered it to Mason along with the animal. At any rate, I see no just reason why, so far as regards the rights of an innocent purchaser, it should not be followed by the same legal consequences.
At the argument Mr. Carpenter put this supposed case: — A, having sold his horse to B, delivers the animal, together with a bill of sale running to B, to his servant or agent, to be carried to the vendee. But the servant on the way, finding a customer for the horse, produces the bill of sale, represents himself to be the person there named as purchaser, and sells the horse to an innocent third person. Of course there could be no question of the right of the owner to recover his property, under that state of facts, against such innocent purchaser. The cases covering, this point are numerous, of which Saltus v. Everett, 20 Wend. 267, is a good example. In that case it was held that the purchaser of part of a cargo of a vessel was not protected against the claims of the real owner, although the purchase was made under a bill of lading, regular and fair on its face, — it appearing on the trial of the cause that the master of the vessel, in which the goods were originally shipped, had fraudulently, at an intermediate port, transshipped the goods into another vessel, and procured a bill of lading in his own name, which he transferred to his agents, the vendors.
If the plaintiff had not been informed of the fact that Mason had taken a bill of sale of the horse in his own name, and with that knowledge permitted him to go forth clothed with all the indicia of ownership, and so completely armed for the commission of a fraud, the case supposed in argument, and that class of cases of which Saltus v. Everett has been referred to as the type, might have application. As it is, I think they do not apply at all. I regard this act, or omission, if it should be called an omission, of the plaintiff as decisive of the case, and I am therefore of opinion that there should be judgment on the report for the defendant.