Peel v. Shepherd

"Warner, Chief Justice. It appears from the record and bill of exceptions in this case, that Peel sued Shepherd in a justice court on an account for $12.00, for making a pair of boots; that the boots were made by one Dolan, who was in the employ of plaintiff, out of materials owned and furnished by the plaintiff; that tire boots made by Dolan were made for him, plaintiff, and were liis boots, and that defendant refused to pay for them; that plaintiff allowed Dolan to contract for work, and receive pay for it; that Dolan was not his agent, but his employee; that he never authorized Dolan to place to his (Dolan’s) credit, any of his work, materials, or effects whatever. This was, in substance, the plaintiff’s evidence before the justice. The defendant testified, in substance, that in June, 1875, he contracted with Dolan to make him a pair of boots for $12.00, which he got in November, 1875 ; that he paid Dolan in part for them, by giving his account credit for $8.40; that at the time he got the boots, he did not know that Dolan was in the plaintiff’s employment, and not until two or three weeks after he got them, when plaintiff asked him for the money; that he then owed a small balance for the boots, some three or four dollars, which he told the plaintiff he was willing to pay him if Dolan was willing, but plaintiff refused to take it. The justice rendered a judgment in favor of the defendant. The plaintiff sued out a writ of certiorm'i and brought the case before the superior court, and after argument had thereon, the court affirmed the judgment of the justice and dismissed the eertiorevri ; whereupon the plaintiff excepted. This is a very small case, but the legal principles involved in it are not any the less important on that account. In our judgment, the payment by the defendant of the sum of $8.40 to Dolan for the boots, by crediting his account therewith, before he had any knowledge that he was the agent and employee of the plaintiff, should have been allowed to him; but the balance that was due by the defendant for the boots, [367] after lie had notice that Dolan was only the agent and employee of the plaintiff in making them, ont of his, the plaintiff’s, materials, should have been paid to the plaintiff by the defendant, and that the plaintiff was legally entitled to recover that balance from the defendant, and the fact that he offered to pay that balance to the plaintiff, who declined to receive it, did not exonerate him from the payment thereof, unless he had paid the same into court when the plaintiff sued him for the price of the boots. The court erred in not sustaining the certiorari and ordering a new trial on the statement of facts contained in the record. Let the judgment of the court below be reversed. Bleckley, Judge, concurred, but furnished no written opinion.