Palmer v. Bagg — 64 Barb. 641

Majority

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Chauncey Palmer and Cyrus F. Palmer vs. Moses M. Bagg.

Headnote

To an action upon a bond given by the defendant to the plaintiffs as security that F., whom the plaintiffs had appointed their agent to sell sewing machines, should account for, and pay over, to them, the proceeds of all sales, it is no defence that F. had partner’s and others interested with him in selling the machines.

■ The fact that F. had partners, will not affect his personal liability (or that of the surety) for machines personally ordered by him; where it appears that the plaintiffs, although they knew that F.. had partners, never recognized the latter as their agents, or delivered machines to any one but F., or upon his order; and his written power of attorney was never revoked or discharged.

APPEAL, by the plaintiffs, from a judgment entered upon the report of a referee, dismissing the complaint, with costs.

The action was brought on a contract of guarantee, in the form of a penal bond signed by Frederick H. Fanning and the defendant, Moses M. Bagg, containing the following conditions:

“Whereas, the said Chauncey Palmer and Cyrus F. Palmer [the plaintiffs] have this day constituted and appointed the'said Frederick H. Fanning their general •agent to take, sell and dispose of their sewing machines in their several varieties, (usually known as the Utica Sewing Machine,) in all or any part of the United States (except the State of California,) and account for and pay over to them the proceeds of all such sales in the way and manner mentioned in a certain power of attorney in writing, executed by the said Chauncey and Cyrus F. to the said Fanning, bearing even date herewith, and to which, or to a copy thereof, reference is hereby made: Now, the condition of the foregoing obligation is such that if thé said Frederick H. Fanning shall and doth well and truly account for and pay over to said Chauncey and Cyrus F. all proceeds of sales of said sewing machines, or else return said machines to

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them as mentioned in said power of attorney, without fraud or unnecessary 'delay, then the preceding obligation to be void, otherwise to remain in full force and virtue. But said Moses M. Bagg is in no event to be held liable under this obligation in any amount, exceeding said fifteen hundred dollars.”

The plaintiffs, by their complaint, claimed that a balance of §442.81 was due to them from the defendant, arising from the sales of machines, and demanded judgment for that sum, with interest.

It was claimed by the plaintiffs, that sewing machines were furnished Fanning under the contract, who had made, default and therefore the defendant was liable.

It was claimed by the defendant, and found by the referee, that after the contract was made, Fanning formed a special partnership with one Cannoll and one Dexter, which was dissolved, and Fanning and Dexter continued on as general partners, and the plaintiffs knew they were such. That while Fanning and Dexter were general partners, the plaintiffs furnished their firm sewing machines and other goods, which were used in their business, and which are the same sought to be recovered for in this action.

The only question here was, whether the defendant could, on his guarantee against the default of Fanning, individually, be held for the default of Fanning and Dexter, because Fanning was a member of the firm.

J. D. Kernan, for the appellants.

C. D. Adams, for the respondent.

The referee, I think, in this case erred in dismissing the complaint. By the written power of attorney given in evidence, the plaintiffs appointed the defendant Fanning their true and lawful agent and attorney to vend and sell the

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sewing machine, of which they had the patent, for them in all and every part or parts of the United States, except California, at snch prices as he should deem judicious and expedient. The plaintiffs were to deliver to him, for that purpose, such machines in good order, ready for sale, from time to time, as he should call for them. The bond upon which this action was brought was given as security that said Fanning would fully account for and pay over to the plaintiffs the proceeds of all such sales. This action was brought to recover a balance unpaid on the first of January, 1870, upon the sale of such machines. The plaintiffs testified, expressly, that the machines embraced in the bill exhibited, on which this balance was struck, and in another bill referred to, were furnished by the plaintiffs upon the order of Fanning.

The transactions had been somewhat large between the parties, and Fanning had, it appears, one or two partners, at different times, interested with him in the sale of the machines, and this fact was known to the plaintiffs; but it does not appear that the plaintiffs appointed or recognized any one or more of them as their agents, or made any new or distinct contract with any person but Fanning. He was appointed their agent by written power of attorney, which was never revoked or discharged. They dealt with him, and filled his orders as their agent. The fact that he had partners and others interested with him in selling the machines furnished, does not, that I can see, affect his personal liability for all the machines and fixings personally ordered by him under said power. It obviously was not a matter of any consequence or concern to the plaintiffs how many partners he had, or when they came in or went out, or whether they were general or special partners. If the plaintiff, Chauncey Palmer, is to be believed, (and he is not contradicted,) the plaintiffs fulfilled their part of the agreement with Fanning, by

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filling his orders and delivering their machines' as he required them. The plaintiffs had appointed Fanning their agent to sell their machines, and taken security from him that he would faithfully account for the proceeds of such sales, and I see no evidence in the case that they ever relinquished the relations of principals to him as their agent, in respect to the machines delivered to him, or that they ever relied upon any other security for the payment of such machines than the security of the defendant’s bond in suit in this action.

[Fourth Department, General Term, at Rochester,

April 1, 1873

Mullin, Talcott and E. D. Smith, Justices.]

The judgment should be reversed, and a new trial granted, with costs to abide the event.