The opinion of the court was delivered by
Royce, Ch. J.The plaintiff cannot be entitled to succeed in his present suit, unless the transaction between him and Benjamin Billings can be treated as a direct sale of the wool to the defendant, and to him alone. On no other ground is this action of book account adapted to the case. • And that it was not in fact such a sale, considered as between the defendant and Benjamin Billings, or Parker & Billings, is rendered certain by the finding of the auditor. The defendant did not authorize the purchase, nor did the property go to his use, or enure to his benefit, in such a sense as to render him liable in the character of a purchaser.
But the defendant contends, that he had a right to consider the defendant the real purchaser, though he may not have been such, as between himself and the firm of Parker & Billings. This is claimed on the strength of those numerous facts and circumstances, which are detailed in the auditor’s report. It is apparent, that several of these had a direct and strong tendency to show, that the defendant, for a considerable period, was the owner and principal in the operations of the factory, and, of course, the party for whom purchases of stock for the prosecution of that business would be made. It was not enough, however, that the plaintiff might be justified in regarding the defendant as the principal, unless he also had sufficient grounds for believing, that Parker and Billings were authorized to make the purchase on his credit. Now the only evidence of their authority to buy wool on the defendant’s credit arose from the few instances of their assuming to make such purchases, only one of which had *14come to the plaintiff's knowledge. But these, being unauthorized by the defendant, could not legally affect him, unless it appeared, that he had understandingly sanctioned and adopted them, as purchases made on his account. And if there was any evidence, properly tending to show this, it was not of a character to be at all conclusive. The same remark may be made in relation to any supposed recognition by the defendant of the purchase in question.
But all the facts and attending circumstances, when duly considered in connection, would not seem to have indicated, at any time, that the defendant was the party solely, if even chiefly, interested in the business of the establishment. The entire property and business had previously belonged to Parker & Billings, who continued all the while to prosecute the same business in the same place. And though it was doubtless notorious, that the defendant furnished much of the stock, yet it must have been equally well known, that Parker & Billings also furnished stock; and this they must have done with their own means and credit, as they never, except on a few occasions, and then without his knowledge, or consent, assumed to use the name or credit of the defendant. It also appears, that they not only hired and paid the laborers from the avails of the business, but supported their own families, and paid some of their former debts, from the same source. They would appear, indeed, to have been constantly and openly in the performance of those acts and the exercise of those privileges, which would not properly belong to their character and situation as mere agents. With all these facts within his observation, we think the plaintiff could not reasonably regard the conduct of the defendant as certain or satisfactory evidence of his absolute and sole ownership. And hence we conclude, that such a liability was not fixed upon the defendant by the sale in question, as would be requisite to sustain the present action.
Judgment of county court affirmed.