(dissenting). The plaintiff sues for the agreed price of liquors'alleged to have been sold and delivered to the defendant. The defendant admits that the liquors were delivered to him, and admits the agreed value, but claims that he bought the liquors from a man named Lopacki, and paid Lopacki for them before he learned that the plaintiff claimed that Lopacki was their agent.
The plaintiffs showed at the trial that they delivered the liquors to the defendant, pursuant to an order received from a salesman named Lopacki, and that the defendant’s wife signed a receipt for them. This receipt was made out on a printed form, containing plaintiff’s name, and not Lopacki’s name. It further appears that the bottles of liquor also bore the plaintiff’s name. To meet this proof, the defendant produced evidence to show that he had dealings with Lopacki for four years, and had always paid him, and that he paid Lopacki for the liquors, which are the subject of the present suit, before he received notice that the plaintiff claimed to be entitled to payment for the goods. He introduced in evidence Lopacki’s receipted bill, which describes him as “import and export broker.” Upon this testimony the trial justice gave judgment for the defendant on the merits.
It does not appear clearly in the record what Lopacki’s relations in the sale actually were. There is certainly no proof, however, that Lopacki was anything more than a salesman or broker. The judgment on the merits cannot be sustained on any theory that the goods were sold to Lopacki by the plaintiff, and that therefore the defendant is liable only to Lopacki. There is also no evidence that the plaintiff ever held out Lopacki as being the owner of the goods or intrusted him with the indicia of title. On the contrary, it clearly appears that the goods were delivered by the plaintiff to the defendant, with a receipt in their own name, and Lopacki’s billhead shows that he only claimed to be a broker. Of course a broker has not implied power, under such circumstances, to receive payment for his principal, and payment to the agent is a defense only if the principal has given him actual or apparent power to collect the bill.
I think that the judgment for the defendant undoubtedly rests upon a finding that the agent had such apparent power. The only evidence, however, to establish apparent power is the testimony that for four years the defendant has dealt with Lopacki and made payments directly to him. In order to make this testimony material, it must be shown that these payments were made .to Lopacki when he was acting for the *23plaintiff, and not for some other principal, and there is no such evidence in this case.
Judgment should therefore be reversed, and a new trial ordered, with costs to appellant to abide the event.