The plaintiff in error objects to the proceedings below, that Silas E. Weir, who was admitted to be' sworn. as a witness; was interested and incompetent; and that there is. error in the charge of the Court.
It is certain that Weir, with whom the goods had been deposited as an auctioneer, was liable to Hinkle, and it is probable the money recovered in this suit will be paid directly into his hands : so far his credibility is directly affected. But has he a vestedJegal interest in what may be recovered? I think not. Weir% an auctioneer, having sold .the goods for which this suit is brought, to the defendant below, commits them to the custody of .the plaintiff, his servant, with instructions to deliver them to the defendant on his performing certain conditions. The defendant, by artifice, and without having complied with the conditions, prevails with the plaintiff to part with the possession. The result is, that the plaintiff and defendant are both liable to Weir — the plaintiff for a breach of his instructions, and the defendant in an action of trover or replevin, founded on . Weir’s right of property. He can sue either or both; but he. is legally unconcerned in any suit between the present parties. Á case has been read to shew that an action to recover the price of goods.sold at auction, can be sustained in the name of the auctioneer only; and hence it is inferred, the witness has a legal interest in what may be recovered in this suit, and is to be considered as the real party., This case, even if it were law (which I very much doubt) is inapplicable ; for the action, here, is not brought for the price of the goods, but in express disaffirmance of the sale.
As to the charge, the error alleged is, that the facts proved Were insufficient to shew such a special property in the plaintiff as to enable him to sustain an action; that at most he had a mere charge of the property that could give no right; and,that even if he had been a bailee, his property, as such, was divested by the delivery to the defendant.
On the evidence, I admit it is questionable whether the plaintiff had a sufficient right of property. But the error, if any, lay with the jury. They were instructed that a mere servant, who, as such, has only the charge or custody of goods, has not a special property in . them, but that the property remains in the master, and the action for their recovery must be brought in his name; and that unless the *24goods in question had been delivered by Weir to the plain'tiff as a bailee, and under a particular responsibility, this action could not be sustained. This was a direction as favourable to the defendant as the law would warrant. The judge left the application of the rule to the jury, whose business it was to apply it to the facts.
As to the delivery to the defendant, it is very clear the property was not changed by it. If a vendor rely on the promise of the vendee to perform the conditions of the sale, and deliver the goods absolutely,.the right of property will be changed, although the conditions be never performed. But where performance and delivery are understood by the parties to be simultaneous, possession obtained by artifice and deceit will not avail: the fraud will vitiate the whole transaction. To this effect the jury were instructed; I am of opinion, therefore, there is no error in the record, and the judgment must be affirmed.
Note.- — This cause was argued before Yeates and Gibson Justices, in the absence of the Chief Justice, who was prevented from attending Court by domestic affliction. It was held under.advisement, and during the ensuing vacation^ Judge Yeates died; but the opinion of the Court having been formed on consultation immediately after the term, was now delivered by Judge Gibson.