
    Matilda Mullen, App’lt, v. Edwin H. Lamphear, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 14, 1888.)
    
    1. Principal and agent—When one buying goods from an agent can COUNTER-CLAIM DEBT OF AGENT "WHEN SUED BY PRINCIPAL.
    When an agent dealing for his principal has the actual possession of the goods, and sells them as his own and delivers them in his own name, concealing from the purchaser that he is acting for another, the buyer has the right to consider him to all intents and purposes as the principal in the bargain, and may set off any claim he may have against the agent at the time the goods were delivered in answer to the demand of his principal.
    3. Same—When cannot.
    This rule does not apply when the purchaser has information from which he may fairly infer the existence of an agency, nor where the circumstances would ordinarily put him on inquiry.
    Appeal from a judgment entered upon the report of a referee in an action originally commenced in a justice’s court and from the judgment of that court an appeal was taken to the county court. The action was to recover the value of a quantity of Steuben dressed stone sold and delivered by the plaintiff to the defendant. The referee found that James Mullen, the husband of the plaintiff, made an agreement with the defendant to procure for and deliver to him one stepping stone and some hitching posts, for which the defendant agreed to pay him the market price; that when the agreement was made it was contemplated by the parties that the stone should be obtained from a particular quarry which was mentioned, and to be cut, dressed and manufactured by the said James and delivered by him to the defendant in a condition to be used; that the said stone quarry Was about eight miles from the residence of the defendant, and a year previous was owned by and in the possession of James, but at the time the contract was made it was in the possession of the plaintiff; that the plaintiff caused the stone to be quarried, and employed her husband to cut, dress and manufacture the same, for which he was to receive a specific compensation, to be paid out of the stones; and that the said stone were cut, dressed, manufactured and delivered to the plaintiff by the said James, taken from the quarry in the possession of the plaintiff; that after the delivery the defendant and the husband of the plaintiff fixed upon the value of the stones at fifty-five dollars.
    He also finds that ‘ ‘ neither at the time of said agreement or of the delivery of said stones, or of the sitting of the same, nor until after the settlement as to the price, did the defendant have any knowledge or notice that the said stones did not belong to said James Mullen, and defendant made said agreement and accepted the stones in good faith, believing that the same was the property of the said James Mullen.” At the time the contract was made, James Mullen was indebted to the defendant in the sum of seventy dollars.
    As a conclusion of law, the referee held that the defendant was entitled to set off his said indebtedness against the said James to the amount of fifty-five dollars, which was the full amount of the plaintiff’s claim in this action, and directed judgment for the defendant, with costs.
    
      A. M. Burrell, for app’lt; Be Manderville Page, for respt’t.
   Barker, P. J.

—The appellant’s counsel, in his printed brief, has directed the attention of the court to the evidence, and claims that it establishes the fact that the defendant knew, or had reason to suppose and believe, before the property was delivered to and accepted by him, that it was the property of the plaintiff, and that James Mullen acted in the transaction as her agent. It does not appear by the record that all the evidence produced on the trial is contained therein. There is evidence tending to support all the facts found by the referee. Consequently this court cannot examine the evidence for the purpose of determining whether any of the findings are against the weight of evidence. Spence v. Chambers, 39 Hun, 193.

The only question that can be considered on this appeal is, do the facts, as found by the referee, sustain the legal conclusion adopted by him that the defendant was entitled to set off the debt which the agent owed him against the plaintiff’s demand for the value of the goods. The plaintiff was the owner of the property, and could maintain an action in her own name for its value, although her agent in the sale did not disclose to the purchaser that she was his principal in the transaction. But a suit by the principal cannot defeat the equities of the purchaser, if he has any, as between himself and the agent who did not disclose to the vendee before the delivery and acceptance of the goods the name of the principal.

The rule is well settled that when an agent, dealing for the principal, has the actual possession of the goods and sells them as his own, and delivers them in his own name, concealing from the purchaser that he is acting for another, the buyer has the right to consider him, to all intents and purposes, as the principal in the bargain, and may set off any claims he may have against the agent at the time the goods were delivered in answer to the demand of his principal. Rabone v. Williams, 7 Term R., 360, note A; Hogan v. Miln, 24 Wend., 458; Wright v. Cabot, 89 N. Y., 570; Nichols v. Martin, 35 Hun, 168.

This rule does not apply when the purchaser has information from which he may fairly infer the existence of an agency, nor when the circumstances would ordinarily put him on inquiry.

As the referee has found that the husband of the plaintiff, in making the contract of sale, assumed to act as the owner of the property, and that when the same were delivered they were in his actual possession, and that the defendant had no knowledge or notice that the plaintiff was the owner, and in making the agreement and accepting the property he acted in good faith, believing the stones were the property of James Mullen, the legal conclusion adopted by the referee was correct.

The defendant called, as a witness, the justice before whom the original trial took place, and he testified that James Mullen was sworn as a witness on the trial before him, and in substance testified that he told his wife he had sold the stones to the defendant, and that she replied that it was all right. The plaintiff cross-examined the witness on the same subject and then moved to strike out the direct examination, without stating the ground on which the application was made, and the court refused and the plaintiff excepted.

We are unable to discover that this evidence was of any value to the defendant, and may be said to be incompetent, but as no objection was made to its reception it was not error to deny the motion to strike it out, and particularly so as no ground was stated on which the motion was based.

Judgment affirmed with costs.

Haight, Bradley and Dwight, JJ., concur.  