Dean v. International Tile Co.

Headnote

A broker, employed to sell property, is not authorized to receive payment unless cmthorized by his principal — when thepwrchaser will be oha/rged with notice of the owners title by the terms of the insbrument directing the (delivery of the property to him by a warehouseman.

Appeal from a judgment entered on tbe verdict of a jury directed by tbe court in favor of tbe defendant.

Tbe defendant entered into an agreement witb Tben & Carden for tbe purchase of 100 barrels of cement for tbe price of $235. Tbe cement at tbe time was in tbe possession of William Beard & Go. and it never was either delivered to or in tbe possession of Tben & Carden; they were in fact no more than brokers for tbe sale of merchandise, and made tbe agreement for the sale at tbe ■instance and request of Alexander Keiller, another broker in tbe employment of tbe plaintiffs, who were tbe owners of tbe cement, which was held in store for them. And after tbe contract of sale was entered into witb tbe defendant, they made an order for its delivery in tbe following form:

MEMORANDUM.

November 30, 1885.

To William Beaed & Co., Erie Basin.

From R. J. Dean & Co., Bankers and Warehousemen, 302 Greenwich street, New York.

Please deliver to tbe International Tile Co. one hundred (100) bbls. Gillingham cement........................ 418- 5 419-45 481-15 504- 5 505-20

R. J. DEAN & CO.

which was delivered to the defendant, and under its authority it obtained tbe cement from tbe warehousemen mentioned in tbe

order. After tbe defendant bad so obtained tbe cement it paid tbe purcbase-price to Then & Carden by a check payable to tbeir order.

Tbe court at General Term said: “ These brokers, as they were at no time intrusted with tbe possession of tbe cement or any other evidence of its ownership than tbe order, bad in fact no authority either actual or apparent, to receive this payment; for a broker employed in tbe sale of property, without authority from bis principal, is not entitled to demand or receive payment for tbe commodity sold. (Higgins v. Moore, 34 N. Y., 417 ; Hcvrrison v. Ross, 44 Supr. Ot. [12 J. & S.], 230.)

“ By tbe order issued by tbe plaintiffs and received by tbe defendant for tbe cement, tbe fact was made to appear that tbe plaintiffs, and not Then & Carden, were tbe owners of the cement, and that tbe defendant was to receive it under the contract of sale from them as such owners. And tbe inference was plainly to be drawn, as Then & Carden were not in tbe possession of tbe cement, that it was held by tbe warehousemen for and as tbe property of tbe plaintiffs, and that the defendant was to receive it from them and under tbeir authority in fulfilment of tbe contract of sale. They were admonished in this manner that tbe plaintiffs were tbe vendors of tbe cement and entitled to tbe payment of tbe purchase-price agreed upon in tbe terms of tbe sale. And tbe defendant accordingly made payment to tbe brokers, selling tbe property at its own risk and peril. If they bad paid over tbe price to the plaintiffs, that would of course have been a satisfaction of tbe debt. But as they did not, and were not authorized by tbe plaintiffs to receive tbe money, payment to them did not discharge tbe defendant’s liability. And although tbe contract for tbe sale was made by tbe brokers without disclosing who tbe principals were in tbe sale, tbe plaintiffs, as tbe principals, bad tbe right to bring and maintain their action against tbe defendant for tbe purcbase-price of tbe property. (Ludwig v. Gillespie, 105 N. Y., 653 .)

“ When tbe sale came to be completed under tbe order for tbe goods, the defendant was apprised of the fact that tbe owners and sellers were tbe plaintiffs and not Then & Carden, tbe brokers with whom tbe defendant dealt. Tbe evidence failed to warrant tbe direction of a verdict in favor of tbe defendant, and tbe judgment

should be reversed and a new trial ordered, with costs to abide the event.”