Parsons v. Webb

• Decision Date: 01 June 1831
• Citation: 8 Me. 38
• Parties: PARSONS v. WEBB
• Court: Maine Supreme Court

8 Me. 38

PARSONS v. WEBB

Supreme Judicial Court of Maine, Somerset

June, 1831

THIS was an action of replevin of a horse; and was tried before Weston, J., upon the issue of property in the plaintiff. It appeared that the plaintiff had delivered the horse to one Read, his son-in-law, to sell for him; and that Read had turned out the horse in payment of a debt he owed to one Gilman, who had sold him to the defendant.

The counsel for the defendant contended that whatever might be the finding of the jury upon the question of property, yet as the defendant had bought the horse of a person who was the apparent owner and whom he had reason to believe to be the real owner, the plaintiff could not maintain this action without proof of a previous demand of the horse from the defendant. But this point the judge overruled, and instructed the jury that if they were satisfied that Read had authority to treat the horse as his own, and to dispose of him at pleasure, the title of the plaintiff had been devested; but that if his authority was merely to sell the horse for the plaintiff, it would not justify him in turning him out for the payment of his own debt.

The verdict, which was for the plaintiff, was taken subject to the opinion of the court upon the correctness of the judge's instructions.

Judgment on the verdict.

Boutelle for the defendant, waived the point of demand, which had been taken at the trial. But he contended that though an agent with limited powers could not bind his principal beyond them yet that where, as in the present case, a loss must fall on one of two innocent persons, by the fault of a third, it ought to fall on him who, by intrusting the third person, had enabled him to do the wrong. Hearne v. Nichols, 1 Salk. 289. Parsons v. Armor & al. 3 Pet. 428. Schimmelpenninck v. Bayard & al. 1 Pet. 290. And he likened it to the case of a factor, allowed to deal as owner of the goods, in which case, the buyer may set off against the owner, his private demand against the factor. George v. Claggett & al. 7 D. & E. 359. Moor v Clementson, 2 Campb. 22. Paley on Agency, 253 - 257. Baring v. Corrie, 2 B. & A. 137. Kelley v Munson, 7 Mass. 319.

Sprague, for the plaintiff, cited Kinder v. Shaw, 2 Mass. 398. Odiorne & al. v. Maxcy, 13 Mass. 178. Jarvis v. Rogers, ib. 105. Banorgee v. Hovey, 5 Mass. 11. Kingman v. Pierce, 17 Mass. 247. Paley on Agency. 250, 32, 33, 35. Copeland v. Mercantile Ins. Co. 6 Pick. 198. Jones v. Farlay, 6 Greenl. 226.

OPINION

The opinion of the court was read at the ensuing September term, as drawn up by MELLEN, C. J.

Under the instructions given to the jury, they have, by their verdict in favor of the plaintiff, decided that Read had not authority from him to dispose of the horse as he pleased and treat him as his own. The question, then, is whether the last instruction of the judge was correct, namely, that if the authority given to Read was to sell the horse for the plaintiff, it would justify him in turning him out for the payment of his own debt. Most of the authorities cited by the defendant's counsel have reference to the effect of sales made by factors and brokers, under that general authority with which they are clothed. " A factor, who has possession of goods, differs materially from a broker. The former is a person to whom goods are sent or consigned; and he has not only the possession, but in consequence of its being usual to advance money upon them, has also a special property in them and a general lien upon them. But the case of a broker is different; the rule stated in the case in Salkeld must be taken with some qualifications; as for instance, if a factor, even with goods in his possession, acts beyond the scope of his authority, and pledges them, the principal is not bound; or if a broker, having goods delivered to him, is desired not to sell them, and sells them, but not in market overt, the principal may recover them back. The truth is that in all cases, excepting where goods are sold in market overt, the rule of caveat emptor applies." Baring v. Corrie, 2 Barn. & Ald. 148, 149. So in Pickering v. Burk, 15 East 43, 44, Lord Ellenborough says, when speaking of the authority of a broker, " If the principal send his commodity to a place where it is the ordinary business of the person to whom it is confided to sell, it must...