
    Eliphalet Williams and Another versus Nathan Mitchell.
    A merchant being applied to by A., assuming to act m behalf of B., for goods on the credit and for the use of B., refused to deliver them without a written authority from B. A. afterwards produced a writing purporting to be such an authority, and received the goods upon the strength of it The order, however, was forged, and the goods never came to B.’s use. In an action for the price of the goods against B., the plaintiff was permitted to prove A. the general agent of B., and that the latter had frequently paid for goods taken up by A. on the credit and for the use of B., and upon this evidence was held entitled to recover.
    
      Assumpsit for goods sold and delivered, with the usual money counts. At the trial before the chief justice, November term, 1819. no question was made, but whether the defendant was liable for the value of the goods, under the following circumstances.
    In February, 1817, one James S. Allen called at the store of the plaintiffs, and expressed a wish to purchase goods for the defendant on a credit of six months. The plaintiffs were willing to let him have the goods, provided he had authority from the defendant to purchase them on his account. Allen said he was agent for the defendant, and that the goods were wanted for his store in Bridge-water. The plaintiffs declined delivering the goods, without written authority from the defendant, which Allen said he could procure. Afterwards, on the 28th of February, before any goods were delivered, he produced and delivered to the plaintiffs a paper, purporting to be an authority from the defendant to him to purchase for the defendant; and then the goods were selected and delivered to Allen, and were charged in the plaintiffs’ books to the defendant. The plaintiffs, before the sale, declared to Allen that they would not sell him the goods, without a good surety; and after the sale, they declared to several persons that they sold and delivered the goods wholly on the strength of said order.
    The writing was not produced by the plaintiffs as evidence of the agency or authority of Allen, it being admitted * that it was forged by him. But it was produced by [ * 99 ] the defendant.
    The plaintiffs then went into evidence to prove a general agency on the part of Allen to make purchases on the account of the defendant; and several witnesses testified that they had, from time to time, from December, 1816, to December, 1818, sold goods to Allen for and on account of the defendant, on the representation of Allen that he was the defendant’s agent for that purpose; and that the defendant had recognized him as such,- by paying or causing to be paid the bills when due. There was also other evidence, from letters of the defendant to Allen and others, tending to prove the same point; and it appeared that, in all these instances, the goods so purchased were sent to the store in Bridgewater, kept by the defendant, for the sale of West India and English goods.
    All this evidence was objected to on the part of the defendant, on the ground that as the plaintiffs sold the goods on the faith of the supposed authority, contained in the forged writing, they had no right to prove his authority from his acts and dealings in other respects for the defendant. But the objection was overruled, and Ihe question saved for the whole Court.
    There was no evidence that the goods sold by the plaintiffs ever went to the defendant’s store, or came to his use or possession; and it was contended that without such evidence, he could not be held liable. But the objection was overruled, and the jury were instructed that if Allen was the general agent of the defendant for the purchase of goods for the store in Bridgewater, and made application to the plaintiffs for goods to send to that store, the defendant would be liable, whether the goods ever went to his use or not. The question of the agency or authority of Allen was left to the jury, upon all the evidence in the case; with directions to find for the plaintiffs, if they were satisfied of that fact. They were also directed to ascertain and return in their verdict, whether [ * 100 ] the * goods did, or did not, go to the defendant’s store in Bridgewater; and also whether the plaintiffs acted solely on the faith of the supposed written authority when they delivered the goods to Allen.
    
    The jury returned their verdict that Allen was the authorized agent of the defendant, for the purchase of any articles of merchandise for the supply of the defendant’s store in Bridgewater, at and during the time the goods charged by the plaintiffs were delivered to him; that the plaintiff delivered the said goods to Allen upon the forged order; that there was no evidence that the goods were ever received at the defendant’s store; and that the defendant promised, &c.
    If any of the foregoing opinions and directions of the judge were wrong, the verdict was to be set aside, and a new trial granted, unless it should appear to the Court that, upon the facts aforesaid, the plaintiffs could not recover; in which case they were to become nonsuit. But if the judge’s opinions and directions were right, judgment was to be rendered on the verdict.
    The cause was argued at the last March term, in this county, by Webster and W. Simmons, for the defendant, and by Gorham and Hubbard, for the plaintiffs, and being continued for advisement, the opinion of the Court was now delivered by
   Parker, C. J.

The jury have found, upon satisfactory evidence,

that Allen was the general agent of the defendant for the purchase of goods for the store at Bridgewater. This fact would entitle the plaintiffs to recover, notwithstanding the goods were never received by the defendant; which is another fact found by the jury. For it is very clear that the party, who employs the agent, is answerable for his fidelity, and is liable for any loss occasioned by his fraud while in the service of his principal.

But there is another fact in the case, the effect of which was reserved for the consideration of the whole Court, viz., that the plaintiffs were unwilling to trust to Allen’s representations *and refused to deliver the goods, unless he produced [ * 101 ] a written order or authority from the defendant to purchase the goods on his account. Allen then produced a paper, giving him the necessary authority, purporting to be signed by the defendant. But it was not, in fact, signed by him; his name having been forged by Allen.

The point upon which the counsel for the defendant insisted is, that as the goods were not delivered upon the representation of Allen, or upon any knowledge that he was the defendant’s agent, but entirely on the faith of the written authority, the plaintiffs had no right, finding that fail, to go into other evidence of Allen’s general agency; especially into the proof of facts, which, although existing at the time the sale was made, were unknown to the plaintiffs, and, therefore, could not have been a consideration or inducement for them to sell.

The cause was argued upon this point. But no authorities were cited which appear to have a bearing upon it, and none have been since found; so that the decision must rest rather upon general principles than upon authority. One thing is certain, viz., that the plaintiffs intended to sell these goods to the defendant, and not to Allen. They insisted upon evidence of authority, and they immediately charged the. goods to the defendant.

Another thing seems to be clear, that Allen had authority to pur chase; and that, if the plaintiffs had been content with his assertion of authority, there would be no difficulty in the way of their recov ering. They might have trusted to his word ; and if the defendant afterwards denied the agency, they might have gone into all the evidence used in the case, and from that established the fact of authority. How then can it make any difference that the false paper was before them, and that they placed confidence in it, rather than in the declarations of Allen to the same fact ? They trusted to the fact of authority, rather than to the evidence of it. Suppose that, finding the paper was forged, they had, at the trial, produced another paper which *was genuine, or a letter [ * 102 ] authorizing the purchase of these goods; would they be precluded from producing this, because another paper, purporting to prove the same fact, was found to be false ? Suppose at the trial they had discovered and produced to the jury a letter of attorney not known to them before; would the use of it be denied, because they might have relied upon the declarations of Allen, or upon a paper forged by him ?

The fact to be established was, that the defendant made the purchase through the agency of Allen, and that the plaintiffs believed that they sold to the defendant, and did not trust Allen. It is certainly immaterial, whether their belief was founded on sufficient 01 insufficient evidence; provided the fact on which they relied, turned out to be true, and could be proved by competent evidence to the jury.

The case of a dormant partner is somewhat analogous, although much stronger than this. In that case, there is not only no evidence of copartnership at the time of giving the credit, but the fact is not relied on. It may be wholly unknown and unsuspected ; and the vendor may rely solely on the responsibility of him to whom the credit is directly given, and may charge the goods to him alone, and even take his promissory note for the amount; and yet, upon proof of the copartnership, he may recover against the dormant partner.

In short, we see no difficulty in this case, except the apparent hardship of it upon the defendant. This cannot relieve him from a legal obligation, although it has induced us to delay judgment, that we might be entirely satisfied that there was no legal defence .

Judgment on the verdict. 
      
       [Quisre as to this decision. There seems to be a fallacy in the argument oi the Court in assuming that Mien had authority to make the purchase; in fact he had no such authority, and the goods bought were not, as far as appears, intended for, and did not go to the use of the defendant. The defendant could not, therefore, be legally liable, unless by some act done, or some authority given to Mien, on some other occasion, he had held out to the plaintiffs, or caused them to understand, or given them reason to believe, that Mem was lawfully acting in this instance as his agent. This is negatived by the facts in the case. Mien gained the credit only by an act of ins own, wholly unauthorized. He was, so far as the plaintiffs were concerned, and was to be regarded as a mere stranger, who had never been employed by the defendant, but who had forged a power of attorney from him to act on this occasion. There is no such analogy, as the Court suppose, between this case and that of a dormant partner who shares in the profits of the company.—Ed.]
     