In this case, the findings of the referee and the facts show that Harvey Kilmer, being insolvent, was permitted to do business in the name of his brother, the defendant. It is true that Harvey was to have the benefit of the business, but it was all done under cover of the defendant's name, as principal, by him as agent. The defendant must be regarded, for all purposes, as the principal, and liable for all the debts contracted by Harvey as his agent.
This butter was bought by Harvey in the ordinary way, and the plaintiff made out the bill, as he had before done upon similar occasions, against the defendant. The butter was delivered at the store where the business was carried on in the name of the defendant.
I do not see how it can make any difference with the rights of the plaintiff that he knew how the business was carried on, and the purposes for which it was thus carried on in the name of the defendant. He knew that the defendant was the principal in the business, and that Harvey was his agent, and he knew that he could hold, and had the right to hold, the principal for payment. Under such circumstances I see no ground for presuming that he meant to trust the insolvent agent exclusively. *Page 305
Where one sells goods to an agent of a known principal, the presumption is that he gives credit to the principal and not to the agent; and, to shift the responsibility from the principal to the agent, the proof should be satisfactory that the vendor sold upon the credit of the agent alone.
I am, therefore, of the opinion that the plaintiff was entitled to recover, and the judgment should be reversed and new trial granted, costs to abide event.
All concur.
Judgment reversed.