Verdell v. Ketchum

McCay, Judge. 1, 2. For myself, I am disposed to the opinion that Mr. Verdell’s letter to Tate was an authority to buy for him, and on his credit, two hundred bushels of corn. A-letter is not to be interpreted so strictly as what purports to be a power of attorney, and if the person to whom it is directed acts upon it as an authority, the courts will interpi-et the letter very liberally in favor of the agency. A fair and liberal rule for interpretation is to examine the paper in the light of the circumstances, especially of the situation of the parties. Tate was one of a firm of commission merchants; their business was to buy and sell for others on commission. Tate had no corn to sell. Even his firm was avowedly engaged in filling orders by buying from others. It is, therefore, a fair construction that Tate was to buy the corn. The sale was not to be cash, since the letter itself promises to settle for it in the future. Under the authorities I have referred to, if Tate so 140 understood the letter and acted, he would be treated as the agent, and Verdell be liable to the plaintiffs for the corn. In such a case the vendor would not be affected by the state of accounts between the principal, Verdell, and his agent, Tate. Even a positive agreement between Tate and Verdell that Tate should pay for the corn would not protect Verdell, unless he had paid before he knew that the plaintiff was unpaid and looked to him: See Kymer vs. Suercrap, 1 Campbell, 109; Spearing vs. DeGrave, 2 Vern., 643; and this is true even if the vendor did not know he was selling to the agent at the time of the sale, but gave the credit solely to the agent: Paley on Agency, 243. But we do not put our judgment on this ground of the construction of the letter. Assume all the defendant, Verdell, insists on, admit that Tate was not his agent, that he not only did not intend to make him his agent, but that there is nothing in the letter which, under the rule alluded to, would protect Tate and the plaintiff, from the folly or the crime of acting on it, what, then, is the state of the case? The -corn was obtained from plaintiff by Tate, by false statements ; the sale was void and no title passed out of Ketchum to anybody. It remained Ketchum’s corn. In Tate’s hands he could bring trover for it. And if he could bring trover he could waive the tort and sue in assumpsit. Had Tate stolen the corn this right of action in favor of the plaintiffs would be unquestioned. In this state, even a sale by Tate in mai’ket overt would not defeat the right: Code, section 2639. The rule is different if the article be obtained by fraud, and has got into the hands of a bona fide purchaser : Code, section 2650. And this not on the ground that the fraudulent vendee can convey a better title than he has got, but, as the Code says, the third person "will be protected.” The true owner will be estopped because, by his folly in allowing himself to be deceived, he has put into the power of a cheat to injure third persons. And that is just the point on which this case turns. When Verdell'got this corn was he led to act, to take and consume the corn, so as that if the plaintiff recovers he, Verdell, will be made to do 141 something more than he must have done, any way. It is said yes, because he thought he was buying the corn from. Tate, and Tate being insolvent and in his debt, he did not expect to pay anybody for the corn. I am not sure that this fact, even if it were true, would protect him against the true owner whom Tate had defrauded out of the corn. There are many authorities that one who takes property in payment of a precedent debt, is not a bona fide purchaser for value, so as to protect him against the true owner. Even a purchaser before due, of a promissory note without notice, ii: he takes it in payment of a precedent debt, has, by very high authority, been held not to be protected against equities in favor of the maker. This court has held differently, and so our Code provides. But this is on tSie ground that it is a high public policy to favor the negotiability of such paper. The ease presented by the defendant does not address itself very powerfully to the sense of justice of a court. He is no worse off than he was before he got this corn. True, it is suggested now, in argument, that perhaps he would never have given the order had he not intended to set-off his debt against it; but he said nothing of that in his letter. Indeed, both in that first letter and subsequently, he indicates the contrary. He well knew when he got the corn that it did not come to him as the corn of his debtor, and has no equities growing out of the transaction. To bring his case within the rules of law, and it is upon these rules only he can stand, since there are no equities in his favor, he must make it appear that this was his debtor’s corn. Clearly, this is not so; and he knew this when he got it and used it. True, he may not have known it was the plaintiff’s, but he did know, by the very papers that went with it, that it was not his debtor’s. 3, 4. Upon the whole, we think the verdlet right, and though the charge of the judge on a point upon which there was no evidence cannot be defended, yet, in this case, it did the defendant no harm, and there was clearly no evidence that the defendant had bona fide bought the corn from Tate. Judgment affirmed.