In this case the court are of opinion that the facts found by the referee do not warrant the report for the defendant.
When an agent for another sells his principal’s goods, the purchaser may pay the purchase money to the agent, or settle with the agent by any bona fide arrangement by which he parts with money or property upon the faith of the agent’s apparent authority in the matter. But placing the amount to the credit of the agent, against a preexisting indebtedness, is not such a payment, and the principal (the owner of the goods) may recover therefor, notwithstanding such credit, and although at the time of the sale the purchaser was-not informed of the name of the principal; and this is especially true where the purchaser was aware that the goods were held by the vendor as -agent for sale. In this view the defendant, Marvin, is to be regarded, as having purchased the. goods which were disposed of. at his store; and the mere fact that, on the 1st of January, 1849, he placed the $80 which he agreed upon with De Camp as the price,do the. credit of the latter, does not protect him against the plaintiff’s claim.
, While the residue, of . the goods remained in Marvin’s hands, *75the plaintiff disclosed his ownership and demanded the goods. The defendant already knew that De Camp only held them for sale. De Camp had no authority to pledge these goods for an antecedent debt, and the defendant had no right to sell the goods at auction against the plaintiff’s will, and in the face of his demand that they be given up to him, and he is in this view liable therefor.
He would, we think, be clearly liable for the proceeds of the sale, as money had and received for the plaintiff’s use, the plaintiff waiving the tort and suing for the money; and he would have been liable for the value of the goods, had the plaintiff thought proper to sue for the conversion.
Whether in such case a plaintiff may waive the tort and sue as for goods sold and delivered, is by no means clear. The authorities in this State, as well as in England, and other States of the United States, are divided. (See Samine v. Donell, 2 Ld. Raym. 1216; Chit. Pl. 94, 103; Linden v. Hooper, Cowp. 419; Parker v. Norton, 6 T. R. 699; Abbotts v. Barry, 2 Brod. and Bing. 369; Butts v. Collins, 13 Wend. 156, 157; Putnam v. Wise, 1 Hill, 240 and note; Berly v. Taylor, 5 Hill, 583 and note, p. 584; McKnight v. Dunlop, 4 Barb. S. C. R. 42, and cases there referred to.)
The plaintiff would, we think, do well to amend his complaint so as not needlessly to embarrass his case with this question before proceeding to a new trial.
Upon the facts now reported the judgment must be set aside, a new trial ordered, and the case referred back; the testimony already taken to stand, except so far as either party may desire to obviate exceptions, if any, and each party to be at liberty to give further evidence. . Costs to abide event of suit.
Ordered accordingly.