The opinion of the Court was drawn up by
Shepuey J.The lease from the defendants to Wood is referred to as part of the case. And it appears, that the lessee, among other things, was to'purchase “ all-the glass, crockery, silver', and plated ware,” and to give his note therefor; and on the determination of the lease, the lessors were obliged to ■ repurchase the same, or what might remain of them, at a fair value. The lessee was to replace all things broken, lost, or injured ; and the articles, which they were obliged to repurchase would hot therefore necessarily be the same articles, which they sold. The lessee, after he had executed the lease and taken possession of the house, purchased of the plaintiffs articles of the description before mentioned and represented himself as purchasing for the defendants. These he received and may have placed them among other articles of like character already in the house. A difference having arisen between .the parties to-the lease, their rights and claims appear to have been adjusted by reference; and the furniture in the house to have been restored to the possession of the defendants. And they might thus have become possessed of the articles purchased of the plaintiffs. Before this took place, they had knowledge of the plaintiffs’ claim, and had denied the authority of Wood to purchase on their account. The plaintiffs contended, that the defendants had received and appropriated to their own use the articles purchased of them. But their counsel contend, that there was no evidence in the case, that they were received from the lessee in payment of his note by a repurchase provided for in the lease. And that there was not therefore any testimony authorizing the counsel for the defendants to call upon the presiding Judge to instruct the jury as he was re*439quested to do. If the report does leave this doubtful, yet it appears, that the Judge proceeded to instruct the jury upon the legal effect of such a state of facts. And whether those instructions were correct, is a question reserved and presented in the report; and the defendants are entitled to have a decision upon it.
It does not appear from the lease, that the lessee was deprived of the right to purchase and use in the house other articles similar to those procured by the defendants. When they came to the knowledge, that he had made these purchases claiming to be their agent, they could do no more, while the lease operated, than deny such agency. If on the determination of the lease they knowingly received the goods so purchased as their own properly, that would amount to a ratification of the agency. A purchase of them from Wood would be an admission of his title to them and a practical denial of their having obtained a title by the original purchase through their agent. It might be regarded as unfair, or perhaps fraudulent voluntarily to make a purchase of him knowing, that the plaintiffs had been deceived, when they parted with the goods. And this may perhaps have occasioned the instructions, which were given to the jury. The remedy however in such a case would not be by a suit against the defendants as the original purchasers of the goods. But if the defendants purchased them because they conceived, that they were obliged to do so by the stipulations in the lease, and thus received them in payment of a note due to them, they could not be justly charged with dealing unfairly. Whether they came to the possession of the defendants in this manner, or whether they received them as a part of their own furniture was one of the questions apparently presented to the consideration of the jury. The instructions on this point do not distinctly state, but leave the jury to infer, that the defendants knowing in what manner Wood came by the goods could not receive them of him by the decision of a tribunal selected by the parties in payment of Wood’s note without a ratification of the original purchase. A purchase from Wood assumes, that he and not they became the owner by the original purchase, and tends, as before stated, rather to deny than to admit, that he purchased for them. If the schedule referred to in the requested instruction was not received in evidence, the defendants were not entitled to have *440the requested instruction given. If that paper was not m the case the instructions which were given, left the jury to draw an incorrect inference from such other facts as might shew, that the defendants received the goods by purchase under the lease.
Verdict set aside and, a new trial granted.