There seems to be no question between the opposing counsel as to the general principles of law applicable to cases of sales of property to agents. The authorities are uniform in maintaining the doctrine, that when the principal is un known to the vendor at the time of the sale, he may, upon dis covering the principal, resort to him, or to the agent with whom he dealt, at his election ; and on the other hand, where the vendor, at the time of the sale, knows the principal and understands that the buyer is the mere agent of another, and elects to give credit to the agent, making him the debtor, he cannot afterwards resort to the principal. Paterson v. Gandasequi, 15 East, 62. Story on Agency, 291.
This general principle, it is conceded, was properly stated to the jury, in the present case. But it was contended, that if the plaintiffs had, at the time of the sale, the means of knowing that the goods were purchased on account of the defendants and for their benefit, and yet debited them to the account of Rogerson, this should bar the claim of the plaintiffs against the defendants, although they had no actual knowledge who the principal was. Such a principle as is suggested would present great practical difficulties in its application, and might do great injustice. The question at once arises, to what extent are the means of knowledge to exist, to justify its application ? Is it necessary that the vendor should avail himself of every possible means to learn whether the individual he is dealing with be principal or agent ? If so, the mere neglect by the vendor to inquire of the person with whom he was actually dealing, whether he was acting as principal or agent, and if agent, the name of the principal, would be, in most cases, not using the means of knowledge which were at hand. We do not understand the rule to be applied with this strictness ; but that, on the contrary, there must be actual knowledge, on the part of the vendor, of the relation of the parties, and their interest in the matter, to exonerate the principal by giving the credit to the agent. If, with such knowledge, *325the vendor chooses to give credit to the agent as his debtor, he discharges the liability of the principal. It is not however enough that there might exist circumstances, that would, in the minds of some men, have awakened suspicions and led to further inquiries. Nor is it enough, (if we adopt the decision in the case of Thomson v. Davenport, 9 Barn. & Cres. 78,) to exonerate an unknown principal, that the agent declared, at the time of the sale, that he was dealing for another, if he did not disclose the name of his principal. That case, while it fully recognizes the general rule already stated — that if one, knowing the name of the principal, elects to credit the agent, he cannot afterwards resort to the principal — denies its application to cases where the name of the principal was unknown, although the fact of the agency of the one dealing with him was disclosed, and the vendor must have been apprized that another party might be made the debtor.
It was further objected, that the ruling of the judge was erroneous in the instruction to the jury that the statement of Roger-son to the plaintiffs, “ that the goods were for the Crown & Eagle Mills, and that he wanted them marked so,” was not of itself conclusive evidence of the knowledge of the plaintiffs that Rogerson was agent, and the Crown & Eagle Mills the principal. But we think the instruction was correct. The language used by Rogerson was ambiguous. The goods might very naturally have been described as wanted for the Crown & Eagle Mills, without conveying the idea of another party, or a responsibility distinct from Rogerson’s. They might well thus be designated, although in fact the property of an individual; and Rogerson might very naturally say the articles were for the Ciown & Eagle Mills, having in view the subject of the place of their destination, tod for this purpose request the articles to be so marked. It certainly was not conclusive as indicating t ie purchase to have been made for the Crown & Eagle Milla, as a corporation ; and it was therefore open to explanation as to the manner in which it was understood by the plaintiffs. If therefore the plaintiffs could satisfy the jury, that from the manner and the circumstances in which the name of the Crown & Eagle *326Mills was introduced, at the time of the sale, by Rogerson, it did not fully disclose to the plaintiffs that Rogerson was a mere agent, and the Crown & Eagle Mills the real parties in interest; then they may properly insist that it was not sufficient to require them to make that election which would discharge the real principal, by debiting the agent with the goods and treating him as the purchaser. This matter was properly left to the jury, and under instructions sufficiently favorable to the defendants.
It was further insisted, that if the plaintiffs discovered that the Crown & Eagle Mills were the real parties in interest, after the issuing of the writ against Rogerson, and before the service of the same, then they, by continuing further to prosecute the action against Rogerson, as a co-defendant with the Crown & Eagle Mills, whose names they had also inserted, had by so doing elected to charge the agent, and thus lost the right of resorting to the defendants as the principals in the purchase.
The argument urged here is, that when the fact came to the knowledge of the plaintiffs, that the Crown & Eagle Mills were liable to be charged, they must at once have abandoned their claim on Rogerson, or be held to have elected to make him alone their debtor. The objection to the continuance, for a certain period, of the name of Rogerson as well as the Crown & Eagle Mills, may be explained ; and, as it seems to us, was satisfactorily answered. It might have arisen from an erroneous impression that they could charge both agent and principal; or it might have been the mistake of the attorney ; and it was clearly open to any reasonable explanation consistent with the purpose of relying upon the liability of the principals at all times after their liability was fully discovered. The fact that the plaintiffs introduced into their writ against Rogerson the name also of the Crown & Eagle Mills, is certainly quite as strong evidence that the plaintiffs, from that time had determined and elected to charge the Crown & Eagle Mills, as the subsequent continuance of the name of Rogerson as a defendant is to indicate that they had elected to rely upon him, and to waive their right to recur to the present defendants. It seems to us that it was one of those cases where the narty, intending to retain all *327his lega, rights, was yet uncertain upon whom the legal responsibility might be fixed, and he therefore set forth his claim in such a manner as seemed to be best adapted to secure his legal rights Before the plaintiffs could be required to make their election whether they would look to the agent or the principal, they had a right to know, with reasonable certainty, the liability of the newly discovered principal. The original introduction and the subsequent continuance of the name of Rogerson for a time, as a party to the present action, do not, in our opinion, operate per se as a waiver of the right of the plaintiffs to recur to the Crown & Eagle Mills.
Upon the whole matter, the court are of opinion that there should be
Judgment on the verdict.