Defendants in error sued plaintiffs in error for the price of certain wool sold to them, which they refused to accept and pay for. It was claimed, by plaintiffs in error, that they were exonerated from default, because the wool had not been delivered to them within a reasonable time after notice was mailed directing it to be forwarded. The court charged that, unless the jury found the notice was to be given by mail, the time of the receipt, and not of the mailing, would govern.
This • ruling was correct. There appears on the record no evidence tending to prove any agreement for a notice other than personal, and the negotiations for purchase were all verbal. A party can be in no actual fault who proceeds to comply with a notice as soon as he receives it; and to hold him guilty of a constructive default, when he has always been willing to do his duty, can only be allowed where he has consented to run the risk of the safe transmission through a given channel. The ruling was in conformity with this principle, and was all that plaintiffs in error could have asked.
Another ground of error alleged, depends upon a claim, set up on the trial, that the actual contract of sale embraced the wool of one Anne Sunderlain, as well as that of' defendants Corey and Babcock, it being asserted that there was a defect arising out of the non-joinder of Anne .Sudderlain as a plaintiff.
It appeared, without dispute, that Mrs. Corey made the bargain in question with an agent of plaintiffs in error. Smith, the agent, saw Mrs. Corey, and endeavored to purchase the wool owned by, her and Babcock, he being fully *286informed concerning this ownership. She referred him to Babcock, who was then absent some distance at his mother’s.
Smith’s recital of the matter is this: “Mrs. Corey said that she and Babcock had concluded to sell their wool together, and that I must go and see him. I went and saw Babcock, and told him the same things I had Mrs. Corey, and he said first he did not wish to sell; but finally said if Mrs. Corey wants the money she might sell the wool; any bargain she might make he would abide by, and that he would deliver the wool by the time I wanted it. I went back and told Mrs. Corey what Babcock had said. I spoke of Ann’s wool and said I wished to buy her’s also; did not see Ann; she was in another room. Mrs. Corey went and saw her, and came back and said I could have all the wool on the place, Ann’s and Babcock’s, at $1 per pound. I bought it at that price, and paid $30 to bind the contract for all the wool.”
The court was asked to charge the jury that the statement made by Babcock to Smith, and by him conveyed to Mrs. Corey, was sufficient to authorize Mrs. Corey to sell their wool and Ann’s in one contract. This was refused, and we think correctly. Babcock had not had his attention called by Smith to any wool but that in which he had an interest with Mrs. Corey, and no allusion was made to Anne at all. The mission of Smith was only to get Babcock’s consent to the terms proposed to Mrs. Corey. To allow his language, called forth by this state of things, to be applied to another and very different thing, which would have involved him in liabilities for a third person in whose concerns he had no interest, would be in violation of fairness and of good sense. There is no ambiguity in his expressions, and they can only apply to the property in which he was a joint owner, and concerning which alone he had been applied to.
The court was also asked to charge that if plaintiffs purchased all the wool owned by Mrs. Corey, Babcock, and *287Anne Sunderlain, tbe amount of the wool or the number of pounds to be subsequently ascertained in one entire contract, and that the $30 were paid to bind the bargain for tbe whole, there was a non-joinder of plaintiffs, aud plaintiffs could not recover.
This the court refused, and said there was no evidence that Babcock authorized any suck joint arrangement.
We think there is nothing in any of the testimony tending to prove any such contract. Smith made all his arrangements knowing that there was no common interest in all the wool and that it was owned in severalty. There is nothing in the remotest degree tending to show air attempt to combine them. The wool was sold by tbe pound, and not for a round sum, and the transaction is in no respect ■ different from that where one agent sells at the same time and for a similar price the goods of several known principals. It would he absurd to hold that they thereby became jointly liable for any breach of such an arrangement. And under such circumstances the earnest money would belong to them all ratably.
There was no error in the proceedings, and the judgment must be affirmed, with costs.
The other Justices concurred.