
    [No. 12555.
    In Bank.
    May 23, 1889.]
    JOFF FINE, Respondent, v. PHILIP STEFFAN et al., Appellants.
    Sale — Contract-— Privity — Fraud —Note by- Vendee to Third Party. — When personal property is sold through an agent of the plaintiff and the vendee pays the plaintiff part of the purchase price, and afterward, through fraudulent collusion Between the plaintiff’s agent and a third party, the vendee is induced to give a note for the remainder of the purchase-money to such third party as Being the alleged owner of the property, such third party is in no wise liable on the contract of sale, and the plaintiff has no cause of action thereon against him.
    Appeal from a judgment of the Superior Court of Solano County, and from an order denying a new trial.
    The facts are stated in the opinion of the court.
    
      Lloyd & Wood, for Appellants.
    
      Thompson & Thompson, for Respondent.
   The Court.

This action was commenced against the defendant Steffan alone to recover a balance alleged to be due for a lot of sheep sold and delivered by plaintiff.

Subsequently, in accordance with an order of the superior court, an amended complaint was filed, in which the appellant Brown was joined with Steffan as a defendant.

In this amended complaint it is alleged, in substance, that at the time of the sale the súheep were in charge of the brother of the plaintiff, as his servant and employee merely, and without any interest in or ownership of any of the sheep; that the plaintiff, acting by and through his said servant and employee, sold and delivered the sheep to Steffan, who thereupon paid to plaintiff a portion of the purchase price, leaving the sum of $527.20 still due; that subsequently, and with full knowledge of plaintiff’s ownership on the part of both Brown and Steffan, Brown induced plaintiff’s brother and servant (■who was indebted to him and insolvent) to pretend that he had been the owner of the sheep, and upon that pretense, known to Steffan to be false, he (Steffan), at the request of Brown and plaintiff’s brother, gave Brown his promissory note for said balance; that plaintiff afterward demanded payment of said balance from Steffan and of Brown; that said note be canceled,—both of which demands were refused. Whereupon he prays judgment against Brown and Steffan for $527.20, costs and interest.

The appellant Brown demurred to this amended complaint, upon the ground, among others, that it did not state facts sufficient to constitute a cause of action. His demurrer was overruled, and upon trial of the cause, judgment was rendered against him alone for said balance of $527.20, with interest and costs; from which judgment, and an order overruling his motion for a new trial, he prosecutes this appeal.

The superior court erred in overruling the demurrer. On the facts stated, Steffan alone is liable to plaintiff for the balance of the contract price of the sheep. Brown is in no wise liable on the contract, and he is guilty of no conversion of the property, or any part of it. Whatever claim he may have against Steffan on the note is no concern of the plaintiff. Steffan is none the less answerable to plaintiff because he may, by his own fault, have incurred an additional obligation to Brown or his assignees.

The judgment and order appealed from are reversed, and cause remanded.

Rehearing denied.  