
    Henry Hahnenfeld, Appellant, v. Bernard W. Wolff, Respondent.
    (New York Common Pleas —Additional General Term,
    December, 1895.)
    1. Sale — Agent .to sell goods has no implied power, to collect.
    An agent to solicit orders or to sell goods, who has not the possession of the goods, has no implied or apparent authority to receive payment.
    2. Same—Payment.
    Payment to such an agent is no- defense to an action for the, purchase price of the goods sold, in the absence of" proof of the agent’s authority to collect, either by his principal’s express direction or by inference from a course of dealing.
    Appeal from a judgment for the defendant in a cause, tried in the District Court of the city of New York for the sixth judicial district, by the justice, without a jury.
    
      Action to recover the agreed price of merchandise sold and delivered; the defense being-payment. ■ '
    
      James R. Angel, for appellant.
    
      Wm. C. Coxe, for respondent.
   Bischoff, J.

It was conceded by the defendant that the sale, was made to him through -t-he instrumentality of one Grimshaw, and it conclusively appeared from the invoice in defendant’s possession, and produced by him, upon which the -alleged payments to Grimshaw were receipted for by-the latter, that the defendant, before such payments, knew the plaintiff, and not Grimshaw, to be his vendor. Grimshaw was employed -by the plaintiff to solicit orders from .customers, and did not appear to have been intrusted with the possession of the; whole, or any part of the. merchandise sold. Under these- circumstances the payments to Grimshaw were made by- the • defendant at his peril of the former’s wrant of authority." It is ■well settled that an agent to solicit orders merely, or to sell goods, who has not the possession of the goods, has no implied or apparent authority to receive payment. Higgins v. Moore, 34 N. Y. 417; McKindly v. Dunham, 42 Am. Rep. 740; Butler v. Dorman, 30 id. 795; Meyer v. Stone, 55 id. 577; Kane & Co. v. Barstow, 16 Am. St. Rep. 490 ; Kohn v. Washer, 53 Am. Rep. 745. Proof of Grimshaw’s authority to collect, either by plaintiff’s express direction, or by inference from a course of dealing, was, therefore', essential to the defendant’s success upon the trial (Higgins v. Moore, supra; Lamb v. Hirsehberg, 1 Misc. Rep. 108); and .the absence of Such proof renders the judgment appealed from erroneous.

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

Bookstaveb, J., concurs.

Judgment reversed and n'ew trial ordered, with costs to appellant to abide event.  