*309The opinion, of the Court was delivered by
Cutting, J.In this case, the exceptions disclose no objection to the form of the action, or to the instructions of the presiding Judge; but only that certain testimony was illegally admitted.
The action is brought to recover back money paid to the defendants for certain logs, which, although embraced in a bill of sale, the plaintiffs say they have never received. It appears from the bill of sale, dated May, 1854, that “Bragg & Moor bought of Haynes & Rice” (the defendants) a certain specified number of logs and feet, “ to be delivered at North Twin Dam.” And it further appears, from another bill of sale of same date, that “ Messrs. Cushing & Co. (the plaintiffs) bought of Bragg & Moor, at North Twin Dam,” the same lumber, since both bills contain the same number of logs, quantity and marks. The plaintiffs then further offered parol testimony, tending to show that the lumber was purchased of the defendants by Bragg & Moor, while acting as their agents, which was ruled to be admissible, against the defendants’ objection.
In 1 Am. Lead. Ca. 643, where many authorities on this point are collected, it is held that, “ In case of a purchase or exchange of goods, by an agent, even if the principal be not disclosed, or the bill of sale be made to the agent himself, the property, immediately upon the execution of the contract, vests in the principal; and the right of action upon an implied warranty, or on fraudulent representations made to the agent, is in the principal; for the damages, which ground the action, follow the property.” In addition to the authorities referred to on this point by plaintiffs’ counsel, vide Eastern Railroad Co. v. Benedict, 5 Gray, 561, and the cases there cited.
Exception, in the second place, is taken to the admission of testimony as to false and fraudulent representations made by the defendants to Bragg & Moore, as irrelevant, and because it explained or contradicted the bills of sale. If Bragg & *310Moor were acting as the agents of the plaintiffs, any representations made to them would be as material as though they were made to the principals. And whether such representations were introduced for the purpose of explaining or contradicting the bill of sale, it does not appear; however that might be, a party to a contract obtained by his fraud, can never shut out such testimony and shield himself under such a pretence. It is not the case, where a bill of sale made in good faith excludes parol evidence of warranty, as in Lamb v. Crafts, 12 Metc. 353. Randall v. Rhodes, 1 Curtis, 90, and other cases cited by defendants’ counsel.
Again, it is contended that this action cannot be maintained, because, prior to its commencement, there was no offer on the part of the plaintiffs to rescind the contract or to restore the lumber to the defendants. It appears, from the first bill of sale, that the defendants received payment for the lumber by drafts on the plaintiffs, and this action is not brought to recover back the whole consideration, but only a part proportional to the logs not “ delivered at North Twin Dam.” It is founded on a failure of consideration in part only; it seeks to recover only the contract price paid for as many logs as were not so delivered. Whether the jury found that there had been fraudulent representations in making the sale, or otherwise, the case nowhere discloses, or upon what grounds the verdict was returned. The words, “ to be delivered at North Twin Dam,” create an obligation executory on the part of the defendants, to deliver the quantity of lumber mentioned in the bill of sale at that place, and if not all delivered, such circumstance did not prevent the plaintiffs from receiving what was delivered. The plaintiffs do not seek to rescind the contract, but to enforce it, and the authorities, therefore, cited by the excepting counsel on this point, have no very material application.
We perceive, from an examination of all the evidence reported to sustain the motion, that it was somewhat conflicting, and came appropriately within the province of the jury *311to weigh and consider, and we cannot discover any sufficient reason to disturb the verdict; consequently the
Exceptions and motion are overruled.
Tenney, 0. J., and Rice, Hathaway, Appleton, and Goodenow, J. J., concurred.