The opinion of the court was delivered by
Royce, J.It is first objected to the plaintiff’s right of recovery, that an officer, selling goods upon execution, is not authorized to give credit, or part with the goods until the money is paid. But it is not perceived how, under the circumstances of this case, such an objection can be made to avail the defendants. The property was received under the purchase, and it does not appear that the purchaser’s title has ever been questioned. It is therefore needless to discuss the strict powers of the officer, as a mere servant or minister of the law; for if any assent of the parties in interest was necessary to render the sale valid, the case furnishes sufficient ground for implying that such assent was given.
The remaining inquiry is, whether the plaintiff was entitled to prove that Houghton, who bid off the property, was but the agent of the defendants, and made the purchase for *403them. In reference to an ordinary sale, it has long been settled, that, unless the seller is apprised, at the time of the sale, that the ostensible purchaser is acting as the agent of another, he has an election, upon learning that fact, to resort for payment either to the principal or the agent. Nor is he deprived of such election by a mere notice that the buyer is purchasing for another, if the notice does not disclose the principal’s name and place of residence. Thompson v. Davenport, 9 B. & C. 78. And I am aware of no recognized distinction, in this respect, between a sale at auction, whether under public or private authority, and ordinary sales.
In this instance the plaintiff had no intimation, until after the sale, that Houghton was püchasing for the defendants. Hence he was entitled to claim the benefit of the rule just laid down, unless he had precluded himself, by his return upon the execution, from proving that Houghton acted as an agent. It is held in this state, as in Massachusetts, that an officer’s return of his doings, so far as it relates to acts which are strictly official, is conclusive, as between the parties to the process, and as against himself; it being thus far regarded in the nature of record evidence. But we think that no just application of the rule can extend it beyond the facts certified in the return. It has never, to our knowledge, been held to render the return conclusive as to mere inferences or presumptions upon which it was silent, though they were such as might properly arise from the facts returned. These are left to the operation of the common rules of evidence ; and if, from their nature, they might ordinarily be explained or rebutted by evidence, they remain liable to be so met, notwithstanding the return. This is not to contradict the return, but merely to obviate an inference from it. We consider that, upon this ground, the evidence offered at the trial was admissible. Its object was not to disprove an ostensible sale of the property to Houghton, (and that was all that the return expressly alleged) but to show the capacity in which he acted in relation to these defendants. It would be inferred from the return, in the absence of other proof, that Houghton purchased in his own right; and to repel that inference the evidence was offered.
If it be said that the effect of the evidence would be to *404make out a contract of sale between the plaintiff and these defendants, and that this is inconsistent with the language of the return, it may be answered, that such is the effect, and seeming inconsistency, in every case of sale to the agent of an unknown principal, against whom the seller afterwards seeks redress. In such a case there is never any credit originally given to the principal, nor any contract intentionally made with him ; for the very statement of such a case excludes the possibility of either. Yet, for the sake of justice, the law permits the seller to transfer the credit, and the obligations of the contract, from the person who actually contracted, to him for whose use and benefit the contract was made. The election of the seller to do this is justified, as against the principal, by the legal maxim, that what a man does through the instrumentality of another is deemed to be his own act; and his election not to do it, but to hold the agent liable, is justified, as against the latter, on the ground that in making the contract, he wrongfully concealed his principal.
As, in our opinion, the county court erred in rejecting the evidence offered, the judgment below must be reversed.