The following opinion was filed February 23, 1886:
Cassoday, J.Upon the facts stated was the court justified in directing a verdict against the defendants on their counterclaim, and in favor of the plaintiffs for the full amount of their claim? The cattle had been stolen by Eddy, alias Sherman, prior to the sale to the defendants, and that fact was unknown to both parties until after the plaintiffs had paid Eddy, and the defendants had paid the plaintiffs, and the cattle had been shipped to Chicago, where they were reclaimed by the true owner. The plaintiffs contend that they were mere middle-men, brokers, or. agents for Eddy, who was present, to the knowledge of the defendants, during the negotiations, and assented to the price agreed upon; and hence that they are not liable upon an implied warranty of title. The defendants insist that the plaintiffs took the cattle from Eddy into their own possession, negotiated the sale to them in their own name, procured the weighing and yarding of the cattle and the. weigh-master’s ticket for the same, advanced to Eddy the full price the defendants agreed to give, less the yardage . and their commissions, when Eddy disappeared, and then that the plaintiffs retained the cattle until two days after-wards, whén they delivered the ticket to the defendants and received from them the full contract price; and that these things taken together made the plaintiffs factors or commission men for the sale of the cattle. We think the evidence was sufficient to have justified the jury in finding the facts as claimed by the defendants. U pon such facts were the plaintiffs in the transaction factors, commission men, or mere middle-men — brokers — agents ? .
*130An agent employed to sell personal property intrusted to bis possession by or for his principal, for a compensation commonly called factorage or commission, is a factor. As such he may sell on credit unless contrary to instructions or custom. He may sell for his principal in bis own name, and then sue in his own name for the price. He is intrusted with the possession, management, control, and disposal of the goods to be sold, and has a special property in them and a lien upon them. He may retain possession until his advances, expenses, and commissions are paid. 1 Story on Agency, §§ 33, 34a, 110-113; Price v. Wis. M. & F. Ins. Co. 43 Wis. 276, 277; McGraft v. Rugee, 60 Wis. 409, and cases there cited; 58 Am. Dec. 159-171.
On the other hand, a broker is an agent, employed to make bargains and contracts between other persons, in matters of trade, commerce, or navigation, for a compensation commonly called brokerage. He is not authorized to buy or to sell property in his own name, but only in the name of his principal. He is not intrusted with the custody or possession of the property bought or sold, and consequently has no special property or lien upon it. He is strictly, therefore, a middle-man, or intermediate negotiator between the parties. Ordinarily he has no authority merely by virtue of his agency to receive payment for property sold by Mm. Story on Agency, §§ 28, 34, 109; Price v. Wis. M. & F. Ins. Co., supra.
We are clearly of the opinion that the evidence given upon the trial would have justified the jury in finding that in the transaction jm question the plaintiffs acted as factors, and not merely as brokers or middle-men. Treating them as factors, as we must on this appeal, they must be held to all the responsibilities of factors selling property in their own name for a disclosed principal. The fact that the plaintiffs-fully paid Eddy for the cattle some considerable time prior to delivering the weigh-master’s ticket to the de*131fendants and receiving from them pay for the cattle, makes the case partake very much of a purchase by the plaintiffs, and then a resale by them to the defendants. It is well settled in this country that the sale of chattels acquired from one who had stolen them passes, no title even to an honest purchaser, and the true owner may maintain an action for the property without any previous demand. Dame v. Baldwin, 8 Mass. 518; Heckle v. Lurvey, 101 Mass. 345; Hoffman v. Carow, 22 Wend. 285. The same is true of chattels sold by one who is not the owner and has no authority to sell. Coombs v. Gorden, 59 Me. 111; Bryant v. Whitcher, 52 N. H. 158; Gilmore v. Newton, 9 Allen, 171; Quinn v. Davis, 78 Pa. St. 15; Ventress v. Smith, 10 Pet. 161; Black v. Jones, 64 N. C. 318; Fawcett v. Osborn, 32 Ill. 411; Wheelwright v. Depeyster, 1 Johns. 471.
The question whether an implied warranty of title attached to the sale from the plaintiffs to the defendants does not seem to be definitely and conclusively settled as a matter of law. Undoubtedly, the civil law annexed such a warranty on the part of the vendor to every sale of a chattel. The earlier English cases indicated a contrary doctrine. Morley v. Attenborough, 3 Exch. 500. The later English cases indicate that such a warranty may be inferred from the mere fact of sale under certain circumstances. Thus in Eichholz v. Bannister, 112 E. C. L. (17 C. B. N. S.) 708, it was held: “ In the case of goods sold in an open shop or warehouse, there is an implied .warranty on the part of the seller that he is the owner of the goods; and if it turns out otherwise, as where the goods are claimed by the true owner from whom they have been stolen, the buyer may recover back the price as money paid upon a consideration which has failed.” The general rule in this country undoubtedly is that where there is a sale of chattels in the vendor’s possession at the time, at a fair price, there is always an implied warranty of title, unless the facts and circumstances are *132such as to warrant a different conclusion. Eor discussions of the question and authorities bearing upon it, see Lane v. Romer, 2 Pin. 404; Costigan, v. Hawkins, 22 Wis. 74; Shattuck v. Green, 104 Mass. 42; Patee v. Pelton, 48 Vt. 182; People's Bank v. Kurtz, 99 Pa. St. 344; 2 Schouler on Pers. Prop. §§ 375-379; 2 Benj. Sales, §§ 948-964; Scott v. Hix, 62 Am. Dec. 458 and notes, 460-468; Fawcett v. Osborn, supra; Burt v. Dewey, 40 N. Y. 283; Defreeze v. Trumper, 1 Johns. 274; 22 Am. Law Reg. 85.
The case was not submitted to the jury at all, and, of course, was not determined upon the theory indicated. There certainly is no conclusive presumption of law in a case like this, but rather a mixed question of law and fact. ■As the case now stands, we refrain from any further discussion.
By the Court. — The judgment of the circuit court is reversed, and the cause is remanded for a new trial.