delivered the opinion of the court, April 17th 1882.
To maintain the-issue on their part, the plaintiffs offered a paper purporting to be a shipping receipt given to them by the railroad company for a box of goods directed to Joseph Stephenson. This offer was received against the defendant’s objection, though the receipt, if genuine, was the mere admission of a stranger to the alleged contract, and its genuineness was not proved. It was competent to prove that the goods were shipped to the defendant by any person who knew the fact, whether the witness was plaintiff, drayman, or agent for the carrier. The oral or written declaration of the person who received the goods for shipment, was as incompetent as that of another man. Not a witness was called who was present when the goods were delivered to the carrier, or who knew the name or handwriting of the agent. The receipt was not so proved as to bo admissible as part of the transaction.
In the instructions to the jury the court remarked that the first question is, whether the goods were shipped in the usual and ordinary way to the defendant, and that the direct evidence on this point stops with the receipt. Having thus directed attention to an essential point in the -plaintiffs’ ease, the receipt was treated as material evidence for its establishment. The first and third assignments of error must be sustained.
Henry Grim, one of the plaintiffs, testified that on the 31st of December 1879, they sold the defendant a bill of goods. But on cross-examination he said that he did not know the defendant, had never seen him, and had had no previous dealings with him. He further said that J. W. Stephenson selected the goods, *74telling the witness that ho had a woolen mill at Berwick, and could not fill his orders and was buying these goods to fill his orders, and the goods were sot apart at his dhection. J. W. Stephenson then gave the witness references, and after inquiry they again met, when J. W. Stephenson said, “ Charge them to Joseph Stephenson; he is my father; it is the same thing”— or words to that effect. He then charged the goods to Joseph Stephenson and shipped them to his address.
At the time of the sale, J. W. Stephenson was doing business for himself and had no authority to purchase on his father’s credit. Both wore strangers to the plaintiffs and nothing was known to them, which warranted belief that the son was an agent or partner of his father. Had the evidence of the fact been submitted, the jury would likely have found that the goods wore actually received and disposed of by the real purchaser, and that the defendant had no knowledge of the transaction until after the purchaser had left the country. It appears that the son had been in the habit of taking his father’s team and receiving goods shipped to his father, from the common carrier.
The learned judge charged that the circumstances of the purchase did not preclude the plaintiff's recovery, “the rule being that if a man receives goods and appropriates them to his own use, ho is bound to pay for them, although he may not have made any bargain or contract for their purchase.” There can be no doubt of the correctness of this rule, nor of the maxim that what a man does by another he does by himself. Then followed the instruction that if James W. Stephenson was in the habit of receipting goods for his father and received and receipted these particular goods, thus discharging the carrier from responsibility to the shipper, the verdict should be for the plaintiffs. This we think was error. It took from the jury all consideration of the plaintiffs’ conduct in dealing with the agent, though the agency was only that of a teamster who could receive and receipt goods from the carrier, that he might cart them to the consignee. If a man wittingly sells goods to a teamster for his own use and agrees with the teamster to charge them to his employer, the employer will not be liable for goods so sold and used, though his teamster may receipt for them, and thus discharge the carrier from liability to the seller. Generally, a man is bound by what bis agent does when acting within the apparent scope of liis authority. But when a man sells goods to another for his own use, and they agree upon a device to make a third person pay for them, the mere fact that the buyer obtains possession because of his employment by such person is not enough to render him liable. Charging the goods to the defendant and shipping them to his address, without this consent, was a fraudulent act, and if the jury found from the *75evidence that the plaintiffs knew or had reason to believe that J. W. Stephenson was buying them for himself, the defendant was not responsible, unless he actually received them. And the jury should have been so instructed. We think the facts stated by Henry Grim would warrant the inference that he did not sell the goods to the defendant and that he was negligent, if not culpable, in following the direction to charge them to him. Not until after the bargain was struck, the goods set apart, and inquiries made with unsatisfactory answers as to his solvency, did the purchaser intimate that it was the same thing to charge them to his father as to himself.
Judgment reversed, and venire facias de novo awarded.