The General Term have sustained the judgment on the ground that on the sale the credit was exclusively given to Harvey. In delivering the opinion of the court, MULLEN, J., uses this language: "The referee has not *Page 302 found that credit was given exclusively to Harvey, but such is to be taken to be the intention of the referee, and thus construing the report, I am in favor of affirming the judgment." I am not able to concur in this inference of the intended finding of the referee. The undisputed facts point to a contrary conclusion.
It is proved without question that Harvey Kilmer carried on this business in the name of Chauncey, for the reason that he was himself so much in debt that he could not do business in his own name. Goods were purchased in the name of C. Kilmer for the store, and the sales from the store were made in the name of C. Kilmer. The purchases thus made for the store in the name of C. Kilmer were there paid for. All this was by the express authority of Chauncey. Business in this form had been several times transacted by the plaintiff with this establishment, and on the 27th of August the butter in question was bought in the name of C. Kilmer, and delivered at the store, where business was thus carried on in his name. The report corresponds with this evidence.
Upon this precise state of facts, what would have been the result if a creditor of Harvey had levied on this butter after it had reached the store? If the butter was the property of Chauncey the levy would not have held it. If it was the property of Chauncey it was because he was the purchaser from the plaintiff. If he was the purchaser he is liable for the purchase-price.
That a creditor of Harvey could not seize this butter was decided by this court in September last, in the case of Smith v. Van Olinda.* There the plaintiff Evaline Smith brought an action against the defendant for levying upon a wagon by virtue of a judgment against her relative, James H. Smith. It appeared that James H. carried on the business in the name of Evaline, and that the wagon was built at her shop from materials purchased in her name and upon her credit. On the trial Van Olinda offered to show that Evaline had no interest in the business; that it was the business of James *Page 303 alone, carried on for his sole benefit, and that the name of Evaline operated as a cover merely. This evidence was rejected and the plaintiff recovered. Upon appeal to this court the judgment was affirmed, and the rejection of this evidence held not to be error. This decision established the proposition, that the person furnishing the credit, and in whose name the business is carried on, is the legal owner of the property, although the beneficial interest is in another. Upon this decision Chauncey Kilmer was the purchaser and owner of this property, and the action was well brought against him. James H. in that case and Harvey in this was the agent of the person whose name was used and who furnished the money or credit.
It need not be denied that an owner of goods has the power to sell them to a man he knows to be insolvent, and without security. Until a man reaches the condition of mind which justifies an application for a commission of lunacy, he cannot be restrained from making foolish and imprudent bargains. He may even give away his property at his pleasure. The plaintiff was at liberty to sell his butter without security to Harvey Kilmer, whom he knew to be insolvent, rather than to Chauncey Kilmer, whom he knew to be responsible. I am, however, quite unable to comprehend how the law will adjudge that he has so done, when the butter was purchased in the name of Chauncey, when the bills were made out in the name of Chauncey, when it was delivered at the store of which Chauncey was, by his agent, the occupier; and when the seller knew that the person giving the order for the butter, in the name of Chauncey, was the authorized agent of the latter, and when there is not a single circumstance found showing or tending to show that he actually intended to sell to Harvey. In my opinion, the law does not pronounce a judgment so absurd. The cases of Palmer v. Stephens (1 Denio, 471), and Brown v.Butchers' Drovers' Bank (6 Hill, 443), cited to sustain the decision, are quite wide of the present question.
The fact that the plaintiff knew the real situation of the *Page 304 parties strengthens rather than weakens his claim. He knew that Chauncey was the principal and that Harvey was the agent. From the activity of Harvey and the absence and indifference of Chauncey, a stranger might have been deceived into the belief that Harvey was the principal and the owner. Should such an one part with his property, his claim against the real owner would be less prominent than that of one who knew, when he parted with his goods, who was the real purchaser.
Upon the undisputed facts in the case, Chauncey Kilmer was the purchaser of the butter in question, and liable to the purchaser for its price.
The judgment should be reversed and a new trial ordered, costs to abide the event.
* See ante, p. 169.