Cleveland v. I. L. Pearl & Co.

The opinion of the court was. delivered by ROWELL, J. It not having been found how it was in fact, this was in law a sale for cash o_n delivery. And it is manifest that the parties so understood it; for the defendants put Hoyt in funds wherewith to pay on delivery, and the plaintiff called for payment in money when he delivered. And when ha found that he could not get cash in full according to his right,, he had au option not to deliver at all. But he chose to deliver' notwithstanding, and to take Hoyt’s check, payable to himself,, for the unpaid balance, in the giving of which, Hoyt was not defendants’ agent, for he was acting outside the scope of liis authority, which was, to pay cash down, and the plaintiff ought to have known it; but if he did not, the law will treat him just as though he did, for he who deals with an agent having only a special and limited authority, is bound at his peril to know the; extent of his authority. White v. Langdon, 30 Vt. 599; Sprague v. Train, 34 Vt. 150. By taking the check in the circumstances disclosed, agreeing for his own convenience for delay in presenting it, and subsequently parting with it in payment of his debt, the defendants having been prejudiced, if liable here, by paying their debt to Hoyt in the meantime, when, had they known how it was they could have paid the plaintiff and saved themselves, — the plaintiff must be deemed to have made the check his own, and to have accepted the credit and responsibility of Hoyt instead of that of the [132] defendants, and to have discharged the latter. In other words, Hoyt’s eheek paid the debt as between these parties. The plaintiff stands no better than he would had he taken the check in preference to the money, or had given a receipt acknowledging payment, when he would certainly have discharged the defendants, for so are all the authorities. The case is not like those in which the plaintiff had no option and could do no better than to take a bill or a note, and no injury resulted to the defendant in consequence of. taking it. In such case the check is a conditional and not p,n absolute payment. Robinson v. Read, 9 B. & C. 449, is of that class. But here was no antecedent debt, and the plaintiff had the staff in his own hands, and might have kept his wool; but he chose to deliver it and to take Hoyt’s check for it, without authority from the defendants or notice to them, and he has no standing to claim that the check was only conditional payment. Judgment reversed and cause remanded. Royce, C. J., being indisposed, did not sit.