Smith v. Perry & Howell

Van Dyke, J.,

(dissenting.) This suit is brought to recover the price of two bills of goods, amounting to the sum of $268.48, alleged to have been sold by the plaintiffs to the defendants. That the goods went from the plaintiffs’ store, and were received by the defendants, or one of them, is conceded, nor is there any question as to the price. But the defendant, Smith, who alone defends the suit, sets up as a defence that the goods were not purchased of the plaintiffs, but of one John Boylan, who traveled about the country selling articles of the kind, and who sometimes added the letters “ag’t” to his name when signing bills, receipts, &c., and sometimes did not; but who never, until long after the delivery of the goods in question, made known to the defendants that he was the agent of the plaintiffs, or of any one else, further than the letters “ag’t” added to his name would indicate. That some time after the delivery of the goods, the defendants became embarrassed in their business, and on the 26lh day of , 1856, they made an assignment to Phineas F. Tuttle of all their property for the benefit of their creditors, pursuant to the statute; that in the list of cred*80itors annexed to such assignment the said John Boylan was made a creditor, the defendants knowing of no one else to whom they were indebted for the bills of goods referred to; that some time afterwards, and before much had been done by the assignee, two papers were signed by all the creditors, one requesting the assignee to reassign and reconvey all the property of the firm to the defendant, Banta, alone, and the other was a release discharging and exonerating the defendant, Smith, from all liability to pay these debts of the firm; that in consequence of the execution and delivery of the paper by the creditors releasing Smith from the payment of the debts, he, Smith, agreed that the property of the firm should be so conveyed by the assignee to Banta, which was done, he, Banta, undertaking to pay such debts, and the creditors agreeing to receive him alone as their debtor; that the said John Boylan signed both these papers, and that, as a consequence, Smith became discharged from all obligation to pay for these two bills of goods.

This is briefly and substantially the defence offered by Smith, the defendant, and which the papers offered and the questions asked by the defendants’ counsel were intended to prove; but all these papers, and all, or nearly all of these questions were overruled by the court, and no part of this defence was allowed to be proved. The questions were put in a variety of forms, and the papers were offéred at different stages of the proceeding, but all were overruled. I am not able to sustain this ruling on the part of the court. It seems to me that if the defendant could have proved these facts, which he offered to do, and which we are now bound to presume he could have done, they should have operated as a perfect defence to the action, and he should have been permitted to do so, and the denial of this right and privilege was consequently wrong.

The reason for overruling this defence, so far as I can discover it, is because it appeared on the trial, by the evi*81dencc of Nebemiab Perry, one of the plaintiffs in the ease, that the goods in question in fact belonged to them, and were sold by John Boylan as their agent, and that they, the said plaintiffs, had never signed either of the said papei's referred to nor authorized it to be done. Admitting these facts to have been sworn to, I do not think the court was at liberty to assume, as a settled question, that they were so certainly true as that no evidence could be received to explain, qualify, or contradict them ; but if it is admitted to be all true, and proves the agency of Boylan, which does not yet appear to be discontinued, it was certainly proper to prove all what that agent said and did in relation to the safe of the goods and the collection of the money, the agency never having been revoked, and the principals never having interfered to prevent the arrangement, although they were aware of all that was going on, the agent, in fact, signing the papers after consulting with them on the point, and after Banta was aware that such consultation had taken place.

If the agent was authorized to sell the goods, he was authorized to collect the money; to collect it in piecemeal, to grant further time, to take other securities, and make new arrangements for its payment. This he did. The parties had assigned, and the debt was rendered doubtful. He and the other creditors arranged to have the property all returned to the active partner only, and to release the other. This arrangement was not fraudulent, was in good faith toward his principals, was acquiesced in by all the other creditors as probably advantageous, and as the plaintiffs knew of the proposition, and did not interfere to prevent it, I think they are and should be bound by it.

But, without intending to express a very definite opinion on the merits of the case — for I cannot well do so in the ab-.cuoe of the defendants’ evidence — I am quite satisfied, iu any aspect of the case, whether it was offered to conflict with the evidence of the plaintiffs, or to establish *82such a slate of things as to make the alleged agent a partner, or to make him such an agent as that his acts would certainly bind his principals, the plaintiffs, that the evidence ought to have gone to the jury under a proper and discriminating charge from the court.

I think, therefore, that the verdict should be set aside, and a new trial ordered.