
    Richard E. Goodwin, Appellant, v. Rudolph Sommer, Respondent.
    (Supreme Court, Appellate Term,
    February, 1906.)
    Principal and agent — Rights and liabilities of principal as to third persons — Unauthorized acts — Possession of property by agent.
    Sales — Rights ' of bona fide purchasers — Naked possession of seller without right.
    No presumption of authority to sell goods arises from the mere possession of them and an unauthorized sale vests no better title in a vendee than his vendor had.
    Plaintiff, a manufacturer of worsteds, authorized an agent to solicit orders for the sale thereof subject to plaintiff’s approval and upon the understanding that plaintiff would fill the orders in his own name, ship the goods and collect the bills. A person to whom plaintiff shipped goods having declined to take them, the truckman, without any apparent authority, left them at the office of the agent who without authority sold them in his own name to defendant for value. In an action for conversion, upon the theory that defendant never got title to the goods, held, that, as nothing was developed on the plaintiff’s case from which it might be inferred that defendant by any act'of the plaintiff or any course of dealing with him was warranted in believing that the agent had authority to dispose of the goods, the court erred in holding as matter of law that plaintiff had not established a cause of action.
    The agent testified on cross-examination that he was not certain whether all the goods had been sold and delivered by him to defendant or whether portions of them had been sold and delivered to other parties, although he had testified both on direct and redirect, when confronted by an affidavit, which he had signed some years ago and from which he refreshed his memory, that he delivered all the goods in question to defendant; held that the credibility of his testimony was for the jury.
    If there was evidence that defendant was a Iona fide purchaser for value who relied upon acts properly chargeable to plaintiff’s conduct, it was the duty of the court to submit the facts to the jury upon a charge explaining the doctrine of agency by estoppel.
    Appeal by the plaintiff from a judgment of the City Court of the city of ¡New York, rendered in favor of the defendant.
    Philip Carpenter (F. P. Ufford of counsel), for appellant.
    Sidney ¡Rosenbaum, for respondent.
   Scott, J.

It appears that plaintiff is a manufacturer of worsteds at Watertown, Mass., and that one Lynch had been authorized by plaintiff to solicit orders for sales of these goods, subject to plaintiff’s approval, and with the understanding that plaintiff would fill the orders in his own name, ship the goods from the mill and collect the bills.

On February 23, 1900, the plaintiff shipped a lot of goods to this city to one Goldstein, who declined to take them. The truckman who had been entrusted with the delivery of the goods, thereupon, without any apparent authority, left them at the office of Lynch who, without authority, fraudulently sold them in his own name to the defendant for value.

The action was brought in conversion upon the theory that defendant never got title to the goods.

The complaint was dismissed, at the close of plaintiff’s case, upon the ground that Lynch had authority to sell the goods, to which due exception was taken by plaintiff.

It is well settled that authority to sell is not inferred from the mere possession of goods and that a sale, not authorized, vests no better title in the vendee than the vendor had. Edwards v. Dooley, 120 N. Y. 540.

Undoubtedly, an innocent purchaser may, nevertheless, be protected, if the sale is made under such circumstances, created by the acts of the real owner, from which one would be justified in believing that the person in possession of the goods had authority to sell them.

The case upon plaintiff’s proofs, however, unmistakably shows that plaintiff did not know that these goods were in Lynch’s possession, or that Lynch had no authority to sell them, and that in selling them Lynch was guilty of larceny; and nothing was developed on plaintiff’s case from which it might be inferred that defendant, by any acts of plaintiff, or any course of dealing with plaintiff, was warranted in believing that Lynch had. authority to dispose of the goods in question.

Under such circumstances the court erred in holding as matter of law that plaintiff had not established a cause of action.

Respondent also argues that there was not sufficient evidence from which a jury could find that all the goods involved in this action had come into the possession of defendant.

It appears that Lynch, who had been called by plaintiff, and who was the only witness on the question of delivery, testified, on cross-examination, that he was not certain whether all these goods had been sold and delivered by him to defendant or whether portions of them.had been sold and delivered to other parties, although the witness had testified on his direct examination and afterward on his redirect examination, when confronted with an affidavit which he had signed some years ago from which he refreshed his memory, that he delivered all the goods to defendant.

That this witness was unreliable and discreditable has been sufficiently shown from his dishonest acts, but, nevertheless, it was for the jury and not the court to pass upon the credibility of his testimony and determine just how much credence should be given to it.

This is peculiarly a case in which the defendant was called upon to show the circumstances under which he purchased the goods from Lynch. And, if there was evidence that defendant was a bona fide purchaser for value, who relied upon Lynch’s agency and acts properly chargeable to plaintiff’s conduct which justified him in dealing-with Lynch as one duly authorized to sell these goods, it was the duty of the court to submit the facts to the jury, upon a careful charge, explaining the doctrine of agency by estoppel that would bind the principal.

Such , cases as Edwards v. Dooley, supra, People v. Bank of North America, 75 N. Y. 547 and Jacoby & Co. v. Payson, 91 Hun, 480, would be reliable guides in declaring the law on this subject.

The judgment must be reversed and a new trial ordered, with costs and disbursements to appellant to abide the event.

Giegebich and Greewbaum, JJ., concur.

Judgment reversed and new trial ordered, with costs and disbursements to appellant to abide event.  