
    AMMI T. BUTLER, et al., Plaintiffs and Appellants, v. THE EVENING MAIL ASSOCIATION, Defendants and Respondents.
    The defendants, publishers of a daily evening newspaper, known as The Evening Mail, are the successors of Charles H. Sweetzer in that enterprise, and plaintiffs furnished printing paper for use in their business, to recover payment for which they bring this action.
    The account on plaintiff’s books stands in the name of Charles H. Sweetzer, Evening Mail, and was commenced and continued for some time previous to defendants becoming such publishers. After the change, in answer to plaintiffs’ inquiry as to the change in the account on their books, Sweetzer told plaintiffs there was no necessity for a change, as he was the principal stockholder and the manager of the corporation, and, in fact, he was the Evening Mail Association, &c,, and plaintiffs continued the account on their books under the same name. Held, by the referee, and sustained by the court, that the sale of the paper was made and the credit given to Sweetzer and not to defendants, and plaintiffs could not recover in the action.
    See dissenting opinion by Mohell, L, reviewing Meeker v. Claghorn, 44 H. T. 349.
    Before Barbour, Ch. J., and Monell, and Jones, JJ.
    
      Decided December 31, 1871.
    Appeal from a judgment entered on a report of a referee.
    The facts fully appear from the opinions.
    
      James M. Smith, for appellants.
    
      Henry H Anderson, for respondents.
   By the Court.—Barbour, Ch. J.

This case comes before us on appeal, by the plaintiffs, from a judgment entered against them upon the report of a referee, in an action for the recovery of a balance alleged in the complaint to be due and owing to the plaintiffs by the defendants in an account for printing paper sold and delivered. The answer contained a full denial of the alleged purchase and indebtedness.

Upon tbe trial it appeared that prior to March 16, 1868, one Charles H. Sweetzer had been in the habit of purchasing paper from the plaintiffs which was charged to him; that on March 16 a joint stock association was formed between Sweetzer and several other persons for the purpose of printing and publishing books and newspapers; that, shortly after the association was formed, Sweetzer informed one of the plaintiffs of that fact, and further stated that it was not ne cessary for them to make any change in the keeping of the account, as he was the largest owner of the stock, and, in reality, “ he was the association and the association was him;” that the paper, as delivered, was thenceforward charged by the plaintiffs on their books to Sweetzer, and receipted for, usually, as delivered to him, and that payments were made, from time to time, upon the account, in Sweetzer’s checks. Evidence was also given by the plaintiffs tending to prove that the paper in question was used by the association in the publication by them of their newspaper, The Evening Mail.

The referee’s conclusion that the evidence was not sufficient to entitle the plaintiffs to a recovery seems to have been correct. When Sweetzer, who was the acting agent of the defendants, told the plaintiffs that he and the association were one inasmuch as he was the principal stockholder, and that the account might be continued in his name, it is quite possible the plaintiffs had a right to elect whether they would recognize him as their debtor in the credits to be given, or the association ; and the fact that they charged the goods, to the former, took his receipts therefor, and received his checks in payment upon the account, is pretty strong evidence that the credit was given to Sweetzer, and not to the association. Let that be as it may, however, it is enough to say that the evidence is of such a character ■that two persons of equal judgment, but with differently constituted minds, might honestly arrive at opposite conclusions as to the person to whom the credit was given. It was the province of the referee to determine that question of fact; and his finding is as much a finality as the decision of a jury would have been. We cannot properly say, upon the evidence before us, that he erred;

The judgment should therefore be affirmed, with costs.

Monell, J. (Dissenting).

The referee put his decision upon the ground, that the credit was given to Sweetzer and not to the defendants, but I do not think the evidence sustains his conclusion.

Prior to March, 1868, Sweetzer had been publishing The Evening Mail on his own account, and had purchased the paper, upon which it was printed, of the plaintiffs. In March the defendants’ association was formed, under general incorporating laws. Sweetzer communicated the fact of such formation to the plaintiffs, and that he was secretary, treasurer and general manager of the company. He continued to purchase paper of the plaintiffs, which was delivered to the defendants, and upon which their newspaper was printed.

So far it is quite clear the defendants were liable. The purchases were made by the defendants through their agent, and they had the benefit of the purchase. But shortly after the company was formed, and while the purchase of paper was continuing to be made, in a conversation between Sweetzer and the plaintiffs, the latter inquired (with reference to changing the account on their books) if it was worth while to change the account. They said they had it on their books “ Charles H. Sweetzer, Evening Mail,” and asked him if it was necessary to make any change. He said it was not; it might just as well stand as it was; that he was the principal owner of the stock, and virtually the association, and the association him. The plaintiffs replied that if that was so, it was not worth while to scratch out and make bad-looking work on the books. Sweetzer said it made no difference.

This is all the evidence which goes to sustain the referee’s conclusion, and it falls far short, in my judgment, in showing that Sweetzer was taken as the principal debtor. It does not indicate any intention on the plaintiff’s part to give the exclusive credit to Sweetzer, or that they would look alone to him for payment. The reason assigned was, a disinclination to deface their books; and they concluded not to do so, because Sweetzer told them it was not necessary, and would make no difference.

In the previous dealings between the plaintiffs and Sweetzer, the account was kept, and the goods charged, under his name, appended to which were the words,. “Evening Mail.” On the formation of the company he told them they need not change the account' (i. e., the heading), as it would make no difference. Sweetzer was the defendants’ agent, and having informed the plaintiffs of the change in the proprietorship of the paper, he did not design to become personally responsible for its debts. And when he told the plaintiffs, that the manner of keeping the account would make no difference, he merely meant that a change upon their books was not essential; and he did not mean, and the plaintiffs in acquiescing did not intend, that Sweetzer should be individually liable.

That the parties so intended is apparent from the whole course of dealing, and although some of the bills were made out in the name of Sweetzer alone, they were, doubtless, so drawn in consequence of his assurance, that there was no occasion to change the form of the account. I have not found any evidence directly tending to show that exclusive credit was given to Sweetzer. That which might be derived from the manner of keeping the accounts is stripped of its consequence by the explanations given.

The case of Meeker v. Claghorn, 44 N. Y. (5 Hand), 349, strikingly illustrates the view I have stated. The goods, in that case, were charged to Shall, who it was claimed was the defendant’s agent. The court say : “In all cases where the principals seek exemption on the ground that the credit was exclusively given to their agent, this should clearly appear, and they have the affirmative to show it, the natural presumption being, in all cases, that credit is given to the principal rather' than to the agent. It is sufficient to say, that there is no conclusive evidence that the credit was given by the vendors exclusively to the agent, and that they intended to look to him solely for their pay. It is true, that upon the ledger and day-book of the vendors the articles were charged to Shall, and while this furnishes strong evidence that they were furnished upon his credit, it does not show it conclusively. The plaintiff gave some explanation tending to weaken the effect of this evidence, and its weight under all the circumstances of the case was for the referee.” And that court refused to disturb the finding.

The taking of collateral security from Sweetzer was proper, and strengthens the belief, that the plaintiffs did not look upon Mm as their original debtor. The proof also is clear that the notes and mortgage were mere collaterals and not payments.

It is not disputed, that the defendants received and used the paper purchased for them by Sweetzer; and I should require strong proof of an intent on the part of the plaintiffs, to wholly ignore the defendants, and to only know Sweetzer in the transaction, before allowing the defendants to reap the fruits of their agent’s dealings, and then escape payment on the plea that the credit was given to their agent and not to themselves.

Removing from the case, therefore, all mere technicalities and rigorous rules of law, the simple question to be answered is, shall the defendants, who have received and used for their own emolument the plaintiffs’ property, not pay for it?

I am in favor of reversing the judgment.  