The Opinion of the Court was delivered by
Trumbull, J.The records in these cases show, that Leonard Dennison, the plaintiff in the Court below, resided in the State of New York; that he furnished a quantity of goods, chiefly hardware, to be sold by his son, Elisha E. Dennison, at Little Fort, Lake county, Illinois; that Elisha carried on the business in his own name, but in fact had no interest in the goods; that after having been engaged in the business some ten months, he exchanged the entire stock of goods with the appellant for lands in Michigan; that the deed for the lands was made to Leonard Dennison, the father, and delivered to Elisha; that a few days after this arrangement Elisha made another trade, by which he agreed to surrender up to appellant the lands in Michigan for twelve shares of copper stock in the Mineral Creek Copper Mining Company, which turned out to be worthless, and in pursuance of this last arrangement he delivered up to appellant the deed to his father, which was destroyed.
Not long after the above transactions took place, the appellee came to Little Fort, claimed the goods as his, and that Elisha had no authority to dispose of the same in the manner it had been done.
H called upon the appellant in company with his son, offered to re-convey the Michigan lands to appellant and to return to him the copper stock, and demanded the goods. Potter refused to give, up the goods, and appellee brought an action of replevin for such portions of them as he could find, and sued in trover for the balance.
The two cases were tried together, by consent of parties, and upon the same evidence.
The Court found the issues for the appellee, and gave judgment that he recover the goods replevied, and damages to the amount of $207-39 in the action of trover.
The appellant moved for new trials, which were denied, and now assigns for error the findings of the Court, and the refusal to grant new trials.
The first point made by appellant is, that the appellee, by suffering his son to hold himself out as the owner of the goods, cannot now deny that he was such owner, and is bound by his acts. . .
There is evidence in the record tending to show that the appellee must have known that his son was carrying on the business in his own name, though there is no positive proof of the fact; but admitting that there was such proof, is he thereby precluded from showing the facts in the case ? We think not. Factors may and often do sell goods in their own names. Story’s Agency, §§ 110 and 134. And yet the principal, whenever his factor has bartered or otherwise disposed of the goods in a manner not within the ordinary and accustomed modes of transacting the like business, may follow and reclaim the property; and in such a case, it is wholly immaterial whether the person dealing with the factor knew him to be such or not. Ib. §§ 224 and 225; Dunlap’s Paley’s Agency, 219.
If the appellee had, by any act of his, been the means of imposing upon the appellant, and inducing him to believe that his son was clothed with authority to barter off the store of goods for Michigan lands, the case would be different ; but there is no such evidence in the record, nor is it even shown, with certainty, that he knew in whose name his son was carrying on the business.
But suppose he did know and permit his son to transact the ordinary business of a merchant in his own name, he would even then be bound by his acts only so far as they were within the ordinary mode of transacting that particular branch of business, provided there were no circumstances tending to show that he permitted him to use his own name with a view of imposing upon others. A sale of goods by the son under- such circumstances for cash, or any other disposition of them in accordance with commercial transactions, would have bound the appellee, but when one deals with a merchant in so extraordinary a manner as to purchase his entire stock of goods for wild lands, he is bound to inquire strictly whether the person with whom he is dealing has authority to make an agreement so unusual, and if he will not do so, he runs the risk of having the goods taken from him by the real owner in case it should after-wards turn out that they did not belong to the person with whom he dealt.
“A factor cannot dispose of goods in the way of barter,” Dunlap’s Paley’s Agency, 213. If he do, the owner may sue the innocent purchaser in trover. 2 Kent’s Com. 625. In the case of Guerreire v. Peile, 3 Barn. & Ald. 616, the plaintiffs, who were merchants resident at Oporto, consigned the wines in question for sale to Bannester & Vidal, merchants in London. Bannester & Vidal employed one White, a broker, to sell the same, and he by their orders exchanged the wines with the defendants for a quantity of rum. White did not know that Bannester & Vidal were only factors in the transaction and there was no evidence that the defendants knew the fact. Bannester & Vidal having subsequently become bankrupts without having accounted to the plaintiffs for the proceeds of the wine, they brought an action of trover against the defendants. At the trial the jury were instructed, “that if they were of opinion that Peile & Co. knew Bannester & Vidal to be factors they should find for the plaintiffs; and supposing they did not know that fact, if the jury thought that this was a transaction^ the ordinary course of trade where parties are dealing with their own commodities they would find for the defendant.” The jury found a verdict for the defendant. Subsequently a rule nisi for a new trial was obtained, and Abbot, C. J. in making the rule absolute said: “my learned brothers think I ought to have told the jury upon these facts, that this was a transaction of barter, and that the plaintiff’s property was not divested, because a factor has no authority to barter; and I am also of that opinion.”
The cases before us are much stronger than that of Guerreire v. Peile. That was a small transaction, the exchange of merchandise for merchandise. This is an exchange of an entire stock of goods, all the man had, and not for goods, but for lands.
There is moreover some evidence in the record to show that Potter had notice before the exchange was consummated, that Elisha E. Dennison was not the owner of the goods. The deed to the Michigan lands was not made to him, but to his father, a circumstance sufficient to have put him upon inquiry when making so extraordinary a trade, and from this circumstance the Circuit Court may have been justified in coming to the conclusion that he knew, or might by the use of ordinary diligence have ascertained, that the goods did not belong to the person with whom he was dealing. Rodriguez v. Heffernan 5 Johns. Ch. R. 417. Notice at any time before the exchange was consummated by the delivery of the deed would have been' in time.
Another objection made to the recovery in these cases is, that the appellee, by the delivery of the deed from Potter became seized of the Michigan lands; that his title was not divested by the surrender up of the deed, and that it was necessary for appellee to re-convey before he could maintain these suits. If such was the law the appllee did all he could to comply with it before bringing suits. He had no means of ascertaining the description of the lands. He applied to the appellant for a description and proffered to re-deed the lands, but the appellant either could not or would not furnish such description, and-having by his own default put it out of the power of the appellee to make a deed, such act is equal to performance. Hastram v. East India Co. 1 T. R. 639.
It is also objected that the appellee had no right to split the cause of action and bring two suits for the same lot of goods. No objection of the kind was taken in the Court below, and without determining whether the objection would have been tenable- even there, as it was impossible to replevy the whole stock of goods, some of them having been disposed of, we are clearly of opinion that it is no ground of error.
Upon the question of the refusal to grant new trials, without attempting to review the evidence in detail, it will be sufficient to remark that we have examined it, and think it justified the findings of the Court.
The motions for new trials were therefore properly overruled and there being no error in the records the judgments by the Circuit Court are affirmed with costs.
Judgments affirmed.