Majority
p. 375CHARLES BUSH, Adm’r. of ESAU COXE vs. PATRICK DEVINE. offered the books of Esau Coxe in evidence, to prove that a separate account was kept against Davis, and they were objected to. excepted to this opinion.
Headnote
If credit be given to an agent, with knowledge of the principal, the latter cannot be charged. If without knowledge of the principal, he may afterwards be charged before settlement between the principal and agent.Assumpsit for goods sold, &c. Pleas, non assumpsit, &c., &c.
The action was for bricks sold by Coxe, in his life-time, to James Kane, but which were really for defendant. The bricks were charged to James Kane, agent for Patrick Devine.
The defence set up—1. That the bricks were furnished to Kane, as principal; 2. that a part of them were furnished to one Davis, a sub-contractor.
Mr. Bayard
ruled them out for this purpose, saying they were admissible only to charge the party to the suit, and not to show accounts between other persons.
charged:—1. If knowing the principal, a sale be made to an agent, and credit be given to the agent, the seller cannot turn round and sue the principal.
p. 376
Bayard, for plaintiff.
Rogers, for defendant.
2. If a sale be made to an agent, without knowledge of the principal, and the principal be afterwards discovered, the seller may sue the principal, though he charge the goods to the agent; provided he do so at such time as will not disturb any settlement as between principal and agent. [Roscoe Ev., 216,, Bate vs. Burr; 4 Harr. Rep., 130 ; 1 Camp. Rep., 867.)
Verdict for plaintiff.