The question is, whether the alleged contract of sale is proved by the evidence reported. The evidence is, that B. Hathaway, a witness for the plaintiffs, made an agreement with the defendant, on the 21st of October 1846, for the purchase of his fish, and entered a memorandum thereof in his book, as follows : “ Benja. Finney agrees to sell B. Hathaway his fare of Truro fish at §2-50 per quintal, as they lay, or to go on the flakes one good day, at $2-62,|, and to have the refusal of them until Friday evening, 23d instant.” Hathaway testified that he was a broker, and was in the business of buying and selling fish for himself and others, and that he was authorized to purchase fish for the plaintiffs, and that these fish were intended by him to be purchased for .them. But he admits that he did not intimate to the defendant that he was acting for any other person, and not for himself, until after the agreement.
On this evidence, it is contended for the plaintiffs, that this was a contract between them and the defendant, and that, although Hathaway was employed by the plaintiffs only as their agent, yet when the defendant dealt with him, he became his agent also, and that his memorandum of the agreement took the case out of the statute of frauds, which provides that “no contract for the sale of any goods,” &c. “for the price of fifty dollars or more, shall be good or valid, unless ” (among other things) “ some note or memorandum in writing be made and signed by the party to be charged thereby or by some person thereunto by him lawfully authorized.” Rev. Sts. c. 74, § 4. Cases were cited from the English authorities, as to similar contracts made by brokers; but these authorities are not applicable to the' present case. - A broker, in England, is a known legal public officer, governed by statute ; and those who deal with him are to find out who his principals are. He cannot act as principal, without violating his oath; and he is also liable to a penalty, if he does. 1 'iLmiins’s Law Dictionary, 274.
*457Hathaway was engaged in buying and selling fish, as well for himself as for others: and it does not distinctly appear whether this purchase was made wholly for the plaintiffs, or not. But however this may have been, the defendant did not deal with Hathaway as a broker or agent, but as the contracting party ; and if the defendant had himself signed the first memorandum, he would not have been liable in this action by the plaintiffs; for the contract was, in terms, a contract with Hathaway.
Exceptions overruled.