(dissenting). It has often been held by this court that the acts of an agent within the apparent scope of his authority bind his principal; and that, where there is any evidence of fact, it must be left to the jury, and is not to be determined by the court, as a matter of law, on a motion for nonsuit. Appellants sent out their agent to sell pianos for them; they gave him possession of their instruments, assigned him certain territory in which he was to represent them, and authorized' him to sell on Gredit. As to the public he ■ was their representative in that territory. The selling of a piano was within the apparent scope of his authority, and they are bound by his sale, unless the circumstances were such as to apprise the purchaser that the agent was exceeding his authority or such as to put a reasonable man on inquiry. It is said that the purchaser was put on inquiry by the fact that the *292piano was sold at $120, and a note taken payable to the agent. No weight is given in the opinion to the amount of the price. Pianos vary much in value, and there is not enough in this case to show that the purchaser was put on notice, by the amount .asked for the piano, that something was wrong. At least, what weight -should be attached to this circumstance is clearly a question for the jury. As to the taking of the note bo himis'elf, the agent having the power to sell on credit and take a note for the price, it was within the apparent scope of this authority to determine the form of the note. The purchaser had a right to assume that the agent took the note according to the course of business between him and his principal. A large part of the business of the country in the selling of sewing machines, pianos, and the like i>s done by agents who go from house to house and sell their wares on credit. It is not uncommon for the principal to require them to take the notes in their own name's and then indorse them, so as to make them personally responsible for the notes. No authority can be found for the proposition, so far as I am aware, that the taking of a note by an agent in Ms own name, is, as a matter of law, conclusive to the purchaser that the agent is exceeding his- authority. None of the authorities cited by the court sustain this conclusion, and it is, at least, remarkable that, if such" is the law, no ca'se so holding can be found, when such a large part of the business of the country has for years been done in this way. As between two innocent persons, one of whom must suffer, the loss should fall on the principal who has armed the agent with apparent authority, and thus enabled him to obtain the advantage of the person with whom he trades, rather than -on the purchaser, where the agent acts within the apparent scope of his authority, and there *293is nothing in the transáction to put the purchaser on notice that he is exceeding his authority. Where authority is conferred by parol the rule is that the apparent iscope of it is a question for the jury. It seems to me the same rule should be applied where the agent is sent to take charge of- his principal’s interest in a territory distant from his principal, and the Secret arrangements between the principal and the agent are unknown to the public dealing' with him.
I am therefore of opinion that the case should be left to the jury, under proper instructions, and that a -peremptory instruction should not be given,, and in this dissent Judges Burnam and Guffy concur