The facts are not in dispute. At all the times mentioned plaintiff was doing business as the Ajax Fire Engine Works, having his principal office and place of business in the city of New York. Before any of the transactions referred to occurred a certificate had been duly filed by the plaintiff, authorizing him to do business by and under such name. Without contradiction it appears that the Syracuse Chemical Fire Extinguisher Company was employed as agent for the plaintiff to sell one of its fire engines to the defendant, and that such sale to the defendant was consummated through such agency. The terms of sale having been agreed upon by the defendant through such agency with the plaintiff, the sale was consummated by the shipment of the engine, which is the subject of this litigation, to the defendant, billed to him in the regular way by a regular bill of lading, and at the same time a bill for the purchase price of such engine was sent to the defendant. So that we start with the proposition that the engine was in the possession of 'the plaintiff until shipped to the defendant, and transfer of such possession was made to the defendant through such bill of lading, and also, at the same time the defendant was informed of plaintiff’s claim against him for the purchase price of such engine.
*345Even before the purchase price for such engine became due and payable to the plaintiff, it transpired that the defendant paid one Webb, president of the Syracuse Chemical Eire Extinguisher Company, the purchase price of such engine, and when plaintiff requested payment from the defendant, the plaintiff was notified that the purchase price had been paid to his selling agent. Thereupon concededly the plaintiff by various correspondence, threatening and otherwise, extending over a period of two and one-half months, sought to induce the selling agent, viz., the Syracuse Chemical Eire Extinguisher Company, to turn over to him the money which had been placed in its hands by the defendant, the purchaser of plaintiff’s machine. Such negotiations with the agent came to naught; nothing could be recovered in that regard, and so the plaintiff asks the defendant to pay the purchase price of the machine which he had received and which concededly he had not paid; and the question is, under such circumstances is the seller of goods precluded from recovering therefor ? The law, as I understand it, is well settled that the seller of goods who is not in possession of the same has no actual or implied authority to receive the purchase price of the same, and that the purchaser who makes payment therefor to such selling agent does so at his peril. (Higgins v. Moore, 34 N. Y. 417.) The authority of this case has never been questioned, and if such is the law the defendant is in no better position than as if the plaintiff had said to him, “The Syracuse Chemical Eire Extinguisher Company is our agent to sell, but is not our agent to collect, and you must not pay to it. The remittance must be direct to me.” Of course, under such circumstances, if the purchaser of goods had violated such instruction and paid the price thereof to the seller’s agent, he would not be relieved from again paying to the seller of the goods. The law says an agent to sell is not an agent to collect, where the goods are sent direct to the purchaser from the seller and a bill sent running to the seller for the purchase price. And this has been so decided as.matter of law. Indeed, if it were otherwise it would be unsafe for commercial houses and manufacturers of goods to trust the sale of their products to drummers or sales agents.
*346In this case there is no suggestion that there was any course of dealing between the agent, ■ the plaintiff or the defendant which would have led the defendant to understand, believe or know that he was authorized to pay the agent for the goods, the invoice for which he received direct from the plaintiff with a bill asking for payment accompanying the same.
It is suggested that this judgment of reversal can be sustained because after the defendant had informed the plaintiff that the purchase price of the engine had been paid to his selling agent the plaintiff did not immediately or within two and one-half months repudiate such payment. Instead, it is conceded that the plaintiff sought, having been advised by the defendant that the agent had the money which belonged to the plaintiff, to induce such agent to turn it over to the plaintiff, and after a struggle of two and one-half months, that failing of accomplishment, he brought this action to recover the purchase price of the engine from the defendant, who received it from the plaintiff with a fair statement that the purchase price was due from the defendant to the plaintiff. Notwithstanding, without any authority from the plaintiff, the defendant assumed to pay the selling agent. After the plaintiff had been informed that such purchase price had been paid to its selling agent, he tried for two and one-half months to make his agent refund to him the moneys thus received. Failing in such endeavor, this action was brought. I think there is nothing in the evidence to indicate that the plaintiff intended to accept the agent as its debtor in the premises, and that no action upon his part in attempting to collect from the agent, who the defendant said had his money, for two and one-half .months, effected an estoppel so as to prevent the plaintiff from pursuing his remedy against the defendant as for goods sold and delivered.
There is no suggestion in this case that any change had taken place in relation to the parties, nothing to indicate that the selling agent was not quite as responsible at the time of the trial as he was when the plaintiff was informed that the money had been paid to him.
I think the case of Glor v. Kelly (49 App. Div. 617) is easily distinguishable from this case. There the situation of the *347parties had materially changed. The agent and the purchaser were both dead, and more than two years had elapsed after plaintiff had been informed that the purchaser had paid to the agent the amount of the purchase price. And also it appeared in that case that after having pursued to the utmost the agent and having found that his estate was insolvent, the plaintiff sought then to have recourse to the estate of the defendant. While that case was decided by a divided court, I think even the prevailing opinion cannot be regarded as supporting the contention of the defendant in this case.
Upon the trial before the judge of the Municipal Court, a jury having been waived, the judge was entitled to find any reasonable inference permissible by the evidence as to whether or not the plaintiff had ratified the unauthorized act of his agent in receiving the purchase price of the engine in question, and it must be assumed that the decision of the court was adverse to the defendant upon that proposition, and we think the finding of the Municipal Court judge in that regard is amply justified on all the evidence.
It follows that the judgment of the County Court should be reversed and the judgment of the Municipal Court affirmed, with costs to the plaintiff in this court and the County Court.
Judgment affirmed, with costs.