Ruan v. Gunn

Hall, Justice, The evidence sustains this verdict, and the judge did not abuse his discretion in reí using to set it aside. If the de [54] fendant’s testimony is to be credited, and the jury had a right to do so, it is apparent that the defendant dealt with C. D. Anderson & Son, in their individual capacity, and not as plaintiff’s agents, in the purchase of the fertilizer for which this suit was brought; he did not know them as plaintiff’s agents in ihe transaction; the sale was made by them for cash, but none was paid, they being at the time indebted to plaintiff for the premises they occupied, and such having been, for the two previous years, the course of dealings between these parties in reference to the sales of fertilizers by them to the defendant. The law seems to be well settled, however, that if a factor sells in his own name as owner, and does not disclose his principal, and acts ostensibly as the real owner, although the principal may afterwards bring his action upon the contract against the purchaser, yet the latter, if he Iona fide dealt with the factor as owner, will be entitled to set off any claim he may have against the factor in answer to the demand of the principal. 2 Kent Comm., 632, and citations in note. So our own Code, §2204, declares,If the agency has been concealed, the party dealing with him may set up any defence against the principal which he has against the agent.” Judgment affirmed.