In this action no material facts are in dispute. The court allowing certain alleged payments directed a verdict for the balance, to which order the plaintiff excepts on the ground that no part of such payment should be allowed.
The action is assumpsit upon an account annexed. The defendant admits that he received from the plaintiff the goods charged and makes no question as to the prices. This makes a prima facie case against him, and though technically it does not change the burden of proof it devolves upon him, if he would avoid this responsibility, to give some reason why. The explanation offered by the defendant is that, though he received the goods from the plaintiff, he received them by virtue of an express agreement with an agent or traveling salesman of the plaintiff, one element of which was that certain goods, of a like kind which the defendant then had should be taken in payment. This agreement with the agent is not questioned, but the answer to it is twofold; first, that the agent had no authority to make such a contract, and secondly, that the contract under which the action is sought to be maintained was made directly with the plaintiff, though in some degree through the instrumentality of the agent.
Assuming under the first, that the agent had no authority to make the contract he did, and the evidence is quite conclusive upon that point, still it does not change the conceded fact, that he not only assumed the authority to do so, but did actually make such a contract. Waiving for the moment the second point raised, this was the only contract having the assent of the defendant, the contract under which he acted and by virtue of which he obtained the goods. It is quite clear that the plaintiff cannot hold him upon a contract he did not make, or repudiate the contract in part and hold the remainder valid. Brigham v. *499Palmer, 3 Allen, 450-452. Nor can he be holden upon an implied contract, for that is excluded by the express.
The second point relied upon by the plaintiff must fall with the first. True, the order for the goods was sent to the principal, presumably by the agent, with the consent of the defendant. But as to the nature of the order received there is a singular absence of testimony, though we have the evidence of the-plaintiff’s business manager. Whether it was accompanied witb a statement of the contract does not appear. It is certain the-agent had no authority to send any other, aud by no other would, the defendant be bound. He had a right to suppose that the-plaintiff’s own agent would send the order correctly and that when he received the goods, they were sent according to the-contract. If such were the case, the contract of the agent would be affirmed by the principal, in sending the goods. If sucb were not the case the defendant would certainly be no more-bound than the plaintiff,' who first gave credit to the agent. This case differs materially from that of Clough v. Whitcomb, 105 Mass. 482, in which an order in writing signed by the defendant was sent to the plaintiff; nor is it like that of Finch v. Mansfield, 97 Mass. 89, in which the agent did nothing more-than solicit an order and forward it as received for the action of" his principal. But in the principle involved this case is like that of Wilson v. Stratton, 47 Maine, 120, in which the agent, assumed to make the contract of sale with some conditions and. it was held that the contract was not completed till the conditions, were complied with.
It is not, however, now a question as to the validity of the-contract made, but what was that to which the defendant, assented. He can be held to that and to no other. In any view we can take of the ease there seems to be no doubt as to the terms of the agreement to which his assent was given. If that was a valid contract the ruling was clearly correct. If it was not, the ruling was more favorable to the plaintiff than it was entitled to in this form of action. In either case the exceptions must be overruled.
Peters, C. J., Libbey, Emery, Foster and Haskell, JJ., concurred.