
    Fred R. Badger, Appellant, v. Norman Cook, Respondent.
    Third Department,
    January 9, 1907.
    Sale — smuggled goods' confiscated by government — facts requiring submission of case, to the jury — principal and agent — evidénee of agency-^when principal not charged with knowledge of agent.
    The defendant sold smuggled cattle which were subsequently confiscated by the Federal government. In • an action by the buyer, against the seller it was shown that the plaintiff gave a check to his agent to the order of the defendant to pay the purchase price, on" the face of which was written Y for five yearlings.” The check was received and indorsed by the defendant and the cattle were, actually delivered on :the plaintiff’s farm and remained, there until seized. Shortly before the- seizure the plaintiff told the defendant that he understood that officers were “after those cattle I bought of you, or Pond bohght for me.” The def endant replied that if they were seized he would settie.
    Ori the issue as to whether the sale was made to the- plaintiff or to his agent, Pond, , •
    
      Held, that it was error to dismiss the complaint- on the theory that the cattle were sold to Pond and not to the plaintiff;
    That the evidence required the submission. to the jury of the question as to . whether the sale was made to the plaintiff or to Pond;
    That it was error to exclude the conversation between- the plaintiff and his alleged agent in reference .to the cattle prior to their purchase for the purpose of proving' the agency;
    That although the defendant gave evidence that the plaintiff’s agent was told that the cattle wefe smuggled prior to Bis agency that knowledge -was not chargeable to the principal in the. absence of clear proof that the knowledge was present.in the mind of the agent when the purchase was subsequently made. The. burden.is on theparty seeking to charge a.principal with knowledge of his agent, acquired at a different time and in a different transaction when he was not representing the principal, to show by clear evidence that the knowledge sought to be charged to the principal was present in the agent’s mind at the time of the transaction in issue.
    Appeal by the plaintiff, Fred R. Badger, from a judgment of the County Court of Franklin county in favor of the defendant, entered in the office of the clerk of the county of Franklin on the 22d day of December, 1905, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s evidence after a trial before the court and a jury, and also from an order bearing date the 22d day of December, 1905, and entered in said clerk’s office denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Pellas da Genaway \J. P. Pellas of counsel], for the appellant. '
    
      Maim da Bryant, for the respondent.
   Cochrane, J.:

It is alleged in the -complaint that in the year 1900 plaintiff through an agent purchased of the defendant five yearling heifers and paid therefor seventy-seven dollars; that prior to said purchase said heifers had been smuggled into the United States from the Dominion of Canada; that in the year 1903 they were confiscated by the Federal government-; and that by reason of such facts no title thereto was conveyed to the plaintiff, and that the sale thereof by the defendant to the plaintiff was void and without consideration ; - and judgment was demanded for the consequent damages sustained by plaintiff. •

On the trial the unlawful entry into this country from Canada of the property in question without the payment of duty and its subsequent seizure and sale by the Federal government was admitted. At the close of plaintiff’s evidence the County Court dismissed the complaint on the ground that the sale by defendant was not to the plaintiff but to one Pond, his alleged agent.

Plaintiff produced a check made by himself October 15, 1900, payable to the order of the defendant for seventy-seven dollars, the purchase price of the cattle, which was indorsed by the defendant and paid October 26, 1900. On the face of the check was written “ for 5 yearlings.” Plaintiff testified that these were the yearlings in question; that he “ gave the check to Pond to take to Cook to pay for the cattle; ” that they were delivered on plaintiff’s farm and remained there until August, 1903, when they were seized; that shortly prior to the seizure, having then been informed of their liability to such seizure, he told the defendant that he was informed that the officers were after those" cattle I bought of you or Pond bought for me,” and asked the defendant if they were all right, to which defendant replied : “ They are all right; if they seize them I will settle.” This was all the testimony bearing on the question as to whether .the sale was made to plaintiff or to Pond and it was .clearly sufficient to require the submission of that question to the jury. The purchase price was concededly furnished by the plaintiff. The cattle were delivered on his farm and remained there for three years. until their confiscation. Plaintiff’s statement to the defendant to the effect that he had bought the cattle or that Pond had bought them for him was uncontradicted. It would have been a proper inference by the jury from this evidence that Pond acted merely as agent of plaintiff in delivering the check to the defendant and in bringing the cattle from the defendant to the plaintiff in return for the -check.

It was also error to exclude the conversation between plaintiff and Pond in reference to these cattle just prior to their purchase from the defendant. This conversation was offered for the purpose of proving the agency of Pond in respect to the cattle and should have been received for such purpose.

It is further sought to sustain this judgment on the theory that plaintiff and his agent Pond knew that the cattle had been smuggled. Before they were owned by the defendant they had been owned by one Dougherty who smuggled them from Canada. While so owned by Dougherty, plaintiff and Pond at -different times and independently of each other looked at them with a view to purchasing them. Dougherty testified that he at that time told both of them that the duty had not been paid. Plaintiff denied any knowledge of this latter fact and also testified -that when he bought the cattle he did not know they were the' same cattle which Dougherty once had. A question of fact thus arose as to whether or not plaintiff knew the cattle had been smuggled..

Pond was not a witness, and Dougherty’s testimony that he told Pond of the "non-payment of the duty is un contradicted. It is claimed that plaintiff is chargeable with this knowledge of his agent, Pond. When Dougherty told Pond that the duty had not "been paid, the latter- was not plaintiff’s agent. Whatever information Pond obtained from Dougherty was received by him individually and independently of plaintiff. In Slattery v. Schwannecke (118 N. Y. 543) it was said : “ The question how far a principal is chargeable with notice communicated to or knowledge acquired by his agent in another transaction at another time, when not acting for his principal, has recently received consideration in this court in the case, of Constant v. University of Rochester (111 N. Y. 604) and the principle was there settled that the knowledge of the agent can be charged to the principal only when clear proof is made that the knowledge was present in the agent’s mind at the time of the transaction which is the subject of consideration by the court.” The Constant case is also an authority for the proposition that the burden is on the party seeking to charge a principal with knowledge of his agent acquired by the latter at a different time and in a different transaction, when he was not representing the principal, to show by clear and satisfactory evidence that the" knowledge sought to be charged to the principal was present in the agent’s mind at the time of the transaction under consideration by the court. From the evidence it appeared that it was long prior to the sale by defendant when Pond negotiated with Dougherty and was told of the nonpayment of duty. Dougherty testified that the cattle were then calves. Plaintiff testified that he did not know when he bought them that they were the same which Dougherty had. They had evidently grown and changed their appearance. If plaintiff did not recognize them it cannot be assumed that "Pond recognized them when he acted as plaintiff’s agent, or that he then had in mind the information which Dougherty had given him long prior thereto. Under the authority of the cases above -cited the burden was on defendant to show clearly and satisfactorily that there was present in the mind of Pond when the sale in question was made the knowledge that the duty had not been paid, and such knowledge on his part under the evidence here produced cannot be assumed as matter of law.

The judgment and order must he reversed and a new trial granted, with costs to the appellant .to abide the event.

/

All concurred ; Parker, P. J., not voting, not being a member of this court at the time this decision was handed down.

judgment and order reversed and new trial granted, with costs to appellant to abide event.  