
    Ely and others against Tweedy and others.
    Where the question on the trial of an action for goods sold and delivered, was whether D, who received the goods immediately from the plaintiff, was the authorized agent of the defendants, the plaintiff, to establish such agency, introduced evidence to show, that D had acted as the general agent of the defendants in the purchase and sale of property of all descriptions. He then proved, that D had purchased of P certain real estate, as agent of the defendants, and taken deeds thereof to himself, as their agent: and (o show that the defendants had knowledge of the acts of D, as their agent, the plaintiff exhibited in evidence a release deed from D to the defendants of the estate so conveyed to D, referring to the deeds from P to him. Held, that such release deed, in connexion with the other deeds, was evidence for the purpose for which it was introduced.
    This was an action for goods sold and delivered ; tried at New-London, September term, 1846, before Hinman, J.
    The plaintiffs claimed to recover for goods sold and delivered, at different times, to Seymour Davenport, who purchased them as agent, under the name of “ Seymour Davenport, agent.” But he did not inform the plaintiffs for whom he was agent; and there was no evidence that the plaintiffs, at that time, knew that he was the agent of the defendants.
    The plaintiffs and defendants were, respectively, merchants, residing in the city of Norwich. The defendants admitted, that Davenport was their agent to sell, as a peddler, goods delivered to him by them, and charged to him as “ Seymour Davenport, agent,” to sell or return the goods, at stated prices ; but they denied,- that he was their agent to purchase goods, or had ever been authorized by them, to purchase goods on their account, except upon a verbal or a written order, in certain specified instances.
    The plaintiffs cla;med to have proved, that from the 18th of September, 1838, until sometime after the goods in question were purchased, Davenport had been the defendants’ general agent, authorized by them to buy, sell, exchange and deal in all kinds of real and personal estate ; and, as such, to transact any business that he might choose to engage in ; and that he had, during that time, transacted an extensive business, in purchasing and selling, bartering and exchanging, all kinds of goods, at a store in Windham, and about the country, as a pedcfter ; and had also dealt in real estate at Wind-ham, as the general agent of the defendants, with their full knowledge of and assent to all his acts, as such general agent. For the purpose of establishing such agency, and to prove the knowledge of the defendants, of Davenport’s dealings, as their agent, the plaintiffs, in connexion with other evidence tending to prove the agency, proved, that about the year 1S34, Davenport became deeply insolvent; and with a view to so transact business, that his creditors should not be able to take any property that he might have in his hands, he became the general agent of his grand-father, and of one Southworth., another relative of his, and that, as such general agent, he bought and sold goods of all kinds, and had extensive dealings, at a store m Windham and in New-York, and in other places about the country, as a peddler; all of which was done by him, under the name of “ Seymour Davenport, agentand that in September 1838, Davenport’s grand-father being then dead, Southworth conveyed to the defendants, the personal property then in the hands of Davenport as agent, amounting to the sum of 1932 dollars. And the plaintiffs claimed, that the defendants then became the successors of the former parties for whom Davenport had dealt as agent, and authorized him to transact business as their general agent, in the same manner that he had been in the habit of doing, as agent of his grand-father and Southworth. For this purpose, the plaintiffs offered in evidence a deed from Whitman Potter to Davenport, of certain real estate in the borough of Willimantic, dated December 24th, 1838, in which deed the grantee was described as “ agent of Tweedy & Barrows of Norwich”— [the defendants,] habendum “ to said Davenport, in said capacity,” with covenants also to “ said Davenport, in said capacity also, a release deed from Whitman Potter to “ Seymour Davenport, agent of Tweedy & Barrows,” of other real estate in Willimantic, dated, February 18th, 1838 — habendum “ to said Davenport, agent as aforesaid also a release deed from Seymour Davenport to Tweedy & Barrows, dated April 8th, 1839, describing the property released, by its situation, with this addition : “ being the same lot, which Whitman Potter conveyed to me, as ¿gent, by deed bearing date in February last, and which is recorded in the rcords of the town of Windham, together with the buildings and appurtenances thereto belonging.”
    No objection was made to the introduction of this evidence; but the court, in charging the lury m relation to it, remarked to them, that as the last-mentioned deed referred expressly to the first-mentioned deeds, it tended to show, that the defendants, at that time, had knowledge that Davenport, in taking the deeds from Whitman Potter, was claiming to act as their agent.
    The plaintiffs offered in evidence the testimony of Joseph Lewis, that he was the clerk of Almy Crosby & Co.; that Davenport applied to purchase goods of them, as the agents of the defendants; that the witness thereupon went to the store of the defendants, and enquired of Mr. Dawley, one of the defendants, if he knew Davenport; that Dawley informed him, he did ; that on being told that Davenport was at the store of Almy Crosby & Co., and wanted goods, and that Davenport said he was the agent of the defendants, Dawley replied to him, “ well, sell him the goods — he will not buy more than he can pay for, — we let him have all the goods he wants and thereupon Almy Crosby & Co. sold to Davenport the goods he applied for. Lewis also testified, that Davenport did not apply to the defendants but once, as to their selling him goods, and that was at the store of the defendants ; but that he saw no one but Dawley.
    
    To rebut this testimony, the defendants introduced their three clerks, Bennett, Hyde and Maples, who testified, that they were present when Lewis applied at the store to make enquiry as to Davenport, in 1845 ; that Dawley was out, or had gone out, and, as far as they recollected, had left Norwich ; that Lewis inquired, if Bennett knew Davenport, and on being told that he did, Lewis enquired if he was good ? to which Bennett replied, that if he should come to their store, and want goods, they should let him have them ; and that nothing was said as to his being agent. On cross-examination, they also testified, that they knew Davenport had failed ; and that the goods they let him have, they did not sell to him, but delivered them to him, to sell or return, at stated prices ; and that they did not inform Lewis of the terms upon which they did, or should, deliver goods to Davenport, if he wanted them, but only replied to his question, asking if Davenport was good, that “ they should let him have all he wanted.”
    The plaintiffs still insisted, that Lewis had the conversation with Dawley. They also claimed to the jury, that if the conversation was with Bennett, the clerk of the defendants, and he represented Davenport to be good, as stated by him, when he knew he was a bankrupt, it showed that Bennett intentionally misled ‘Lewis, in suffering him to leave under the impression that Davenport was worthy of credit, and that the defendants were willing to trust him, when he knew that they did not trust him, but only delivered goods to him, to sell for them, or return, at stated prices.
    To this the court assented, in commenting upon the testimony of these witnesses to the jury ; and the plaintiffs obtained a verdict. The defendants thereupon moved for a new trial for a misdirection.
    
      Strong and Wait, 
      
       in support of the motion,
    contended, 1. That the charge was wrong as to the effect of the deeds introduced by the plaintiffs. The point in controversy was, whether Davenport, in purchasing the goods in question, acted as the authorized agent of the defendants. But the deed did not show any authority in him to act as their agent, or that they knew of his acting in that capacity. The knowledge which the plaintiffs were attempting to prove, and which was referred to in the charge, was actual knowledge ; but the record of a deed is, at most, but constructive notice to third persons. Sumner v. Rhodes, 14 Conn. R, 135. The reference in the last deed to the preceding ones, had no bearing at all upon the point in controversy. The jury were here misdirected as to the application and effect of the evidence before them.
    2. That the charge in relation to the representations made by Bennett to Lewis, as to the credit of Davenport, was also erroneous. Those representations did not conduce to show that Davenport was the agent of the defendants in the purchase of these goods. Bennett could not subject the defendants in this suit, by any declarations of his, true or false, regarding the standing of Davenport, [This point was passed unnoticed, by the senior counsel.]
    
      Rockwell and E. Perkins, (a) (with whom was Foster,) con-fra,
    contended, 1. That the remarks of the judge to the jury in relation to the deeds, furnished no ground for a new trial. In the first place, the deeds were admitted in evidence without objection, on the part of the defendants; and no point of law was made by their counsel, either during the examination or on the argument of the cause. But secondly, if they had been objected to, the deeds were admissible, and admissible too, for the reasons stated by the judge in commenting upon the evidence. The release deed from Davenport to the defendants, referring to the other deeds, in which Davenport was described as the agent of the defendants, certainly conduced to show, that they knew of his having acted in that capacity.
    2. That there was nothing connected with or growing out of the testimony of Lewis, or of Bennett and the other clerks, which furnished ground for a new trial. The latter were introduced by the defandants, to disprove the testimony of Lewis. In the first place, no objection was made to the admission of any of the testimony, by either party. Secondly, no question of law was raised in the argument of the cause to the jury. The comments of the counsel related only to the weight of the evidence. Thirdly, no point of law was decided by the court, or stated to the jury in the charge.
    
      
       The counsel on both sides, on being enquired of by the court, whether they had briefs, said they had not, and offered excuses for the omission founded on the nature and circumstances of the case; the counsel on one side alleging, that they had expected a correction of the motion, which might affect thepoints to be discussed, and on the other side, that they did not know what they should have to meet. The Chief Justice directed them to go on ; but added, that they must understand, that the court did not intend to relax the rule requiring briefs in all cases.
    
   Hinman, J.

It was necessary for the plaintiffs to show, that the defendants had made themselves liable for the goods furnished to Davenport, or they could not recover. They attempted to do this, by showing that he was authorized, by the defendants, to trade and deal generally, in all descriptions of property, as their agent. He had acted as their agent in making the purchase in question, as he had done, in many instances, in making purchases of others. But unless the defendants had authorized him to do this, or had held themselves out to the world as persons intending to pay for goods furnished him, they would not be liable. To show that they had so held themselves out to the world, it was important to show, that they had knowledge of his acts, as their agent. To do this, to some extent, they proved, that he purchased real estate of Whitman Potter, as agent for the defendants, and took deeds of it to himself, as their agent; - and it is expressed in the deeds, that the consideration was received from him, as their agent. This did not show, that he was in fact their authorized agent; because it did not appear, that they assented to his acts, or had any knowledge of them. But when if was shown, that a few months after this, the defendants took a deed from Davenport of this same property, and in this deed it is recited, that the property was the same which was conveyed to him by Whitman Potter, and Potter’s deed was referred to; the judge at the circuit thought this went to show, that the defendants at that time had knowledge, that, in taking the deeds of Potter, Davenport acted as their agent, and so told the jury. This seems to be rather the remark of the judge upon the weight of the evidence, and therefore, not strictly a question of law.

But if there is a question for revision here, we have no doubt that it was decided correctly. Indeed, it would seem that counsel must have been satisfied of this, or they would have objected to the introduction of these deeds in evidence. They were obviously introduced for the purpose of showing Davenport’s agency, by showing his acts as such agent, brought home to the knowledge of the defendants, and impliedly assented to by them, inasmuch as they did not disavow them, when so brought to their knowledge ; but, on the contrary, took the benefit of the conveyance to him, by taking a deed of the property from him. If the deeds did not tend to prove this, we do not see how they were evidence at all. The remark of the judge, therefore, was nothing more than saying to the jury, that the deeds were evidence for the purpose for which they had been introduced.

The point in regard to Bennett’s testimony seems to be abandoned. It obviously raises no question of law, and was, at most, mere comment upon the evidence. We therefore advise the superior court not to grant a new trial.

In this opinion the other judges concurred.

New trial not be granted.  