Merrill v. Kenyon

Park, C. J. No complaint is made of that part of the charge in which the court instructed the jury that, if the plaintiffs did not know at the time of the sale that Hoyle was acting as agent, and as soon as they discovered that he was so, elected to make his principal their debtor, they had a [318] right to recover, and that they were not obliged to make their election upon a mere rumor, but had a right to have reliable information to act upon; but exception is taken to tha^ part of the charge in which the judge said—“If the plaintiffs knew, while they were furnishing the goods, that Hoyle was an agent, but did not know whose agent he was, the same rule applied as if they did not know he was an agent at all.” The case of Thompson v. Davenport, 9 Barn. & Cress., 78, fully sustains this charge of the court. In that case the party buying the goods represented at the time of making the contract of sale, that he was buying them on account of certain persons residing in Scotland, but did not mention their names, and the seller did not inquire who they were, but debited the agent who purchased the goods. It was holden that the seller might afterwards recover the value of the goods from the principals. Lord Tenterden, C. J., in giving the opinion of the court, said:—“At the time of the dealing for the goods the plaintiffs were informed that McKune, who came to them to buy the goods, was dealing for another, that is, that he was an agent, but they were not informed who the principal was. They had not therefore at that time the means of making their election. It is true that they might perhaps have obtained those means if they had .made further inquiry; but they made no further inquiry. Not knowing who the principal really was, they had not the power at that instant of making their election. That being so, it seems to me that the case falls, in substance and effect, within the first proposition which I have mentioned—the case of a person not” known to be an agent—and not within the second, where the buyer is not merely known to be an agent, but the name of his principal is also known.” In the same case Bayley, J., remarked as follows:—“In the present case the seller knew that there was a principal; but there is no authority to show that mere knowledge that there is a principal destroys the right of the seller to look to the principal as soon as he knows who that principal is, provided he did not know who he was at the time when the purchase was originally made.” In the same case Littledale, J., remarked: [319] “Here the agent did not communicate to the seller sufficient information to enable him to debit any other individual. The seller was in the same situation as if at the time of the contract he did not know that there was any principal besides the person with whom he was dealing, and had afterwards discovered that the goods had been purchased on account of another; and in that case it is clear that he might have charged the principal. It is said that he ought to have ascertained, by inquiry of the agent, who the principal was, but I think he was not bound to make such inquiry, and that by debiting the agent with the price of the goods he has not precluded himself from resorting to the principal whose name was not disclosed to him.” The case of Raymond v. Crown Eagle Mills, 2 Met., 319, is to the same effect. It was there held that “ there must be actual knowledge, on the part of the vendor, of the relation of the parties and their interest in the matter, to exonerate the principal by giving credit to the agent.” Complaint is also made of that part of the charge in which the judge said to the jury that “even if the plaintiffs took the notes as pajunent, hut did not have reason to know at the time that Hoyle was the agent of the defendant, then, unless the notes were paid, on discovering that fact they were still entitled to look to the defendant.” Surely the plaintiffs would not be bound by an agreement to take the notes of Hoyle in payment without any knowledge of the fact that Hoyle was the agent of the defendant, any more than they would be bound by their charge of the goods to him believing him to be the principal. The plaintiffs were entitled to the right of an election to charge the defendant, and no agreement they might make with Hoyle, under a misapprehension of the true character of the party with whom they were dealing, could deprive them of that right. The reason why a party is not bound, when he charges the agent believing him to be the principal, is the want of knowledge that another is the buyer in fact. The same principle must prevail in a case where the agent’s notes are taken without that knowledge. [320] And it is well settled that the talcing of the promissory note of a debtor for an antecedent debt is not of itself payment. Davidson v. Bridgeport, 8 Conn., 472; Bill v. Porter, 9 Conn., 28; Freeman v. Benedict, 37 Conn., 559. The defendant further complains of the refusal of the court to charge the jury, as requested by him, “ that if the plaintiffs knew that Hoyle was an agent, and then received his notes, the presumption is that they were received in payment of the original bill, and ■ that he elected Hoyle as his debtor.” We have already seen that the bare fact that the plaintiffs knew that Hoyle was an agent of some one in the transaction, was not enough to distinguish the case from that class of cases where such knowledge does not exist and sellers deal with agents supposing they are principals. Such being the case, it is clear that the court committed no error in refusing to charge as requested by the defendant. The cases already cited show that the facts stated create no such presumption as that claimed. A new trial is not advised. In this opinion the other judges concurred.