
    
      Bacon & Raven v. Richard Sondley.
    
    If a person sells goods, supposing, at the time of the contract, he is dealing with a principal, but afterwards discovers that the person with whom he is dealing is not the principal in the transaction, but agent for a third person, though he may, in the mean time, have debited the agent with them, he may afterwards recover the amount from the real principal.
    If a principal rescind the sale made for him, and the seller sue the agent in tro-ver, he will thereby assent to the rescisión. So the agent may disclaim a purchase on his own account, and refer all he has done to his agency, and if the seller assent to this, the goods sold will be in the possession of the agent on deposite for the seller, who may maintain trover for their conversion.
    If a consignee has a right to take the goods at a stipulated price, and elects to hold them as consignee, after his death his executor cannot elect to hold them as a purchase.
    
      Before O’Neall, J. at Columbia, Spring Term, 1849.
    This was an action of trover to recover a Piano Forte.
    The case made by the evidence was as follows: The plaintiffs are manufacturers of Pianos in New York; the late Samuel Weir was acquainted with them, and had been, at one time, engaged in the sale of Pianos; though not at the time of this transaction. He was esteemed an excellent judge of such a musical instrument. He had been applied to by Mr. James, of Columbia, to order for him, from the plaintiffs, ( a Piano, to be paid for on delivery; it was accordingly ordered, and came, as Mr. James said, to him; he paid the expenses of transportation. He said, having occasion for another for a friend, he called on Mr. Weir, and asked him to order another (to be sent on forthwith) of the same kind, and on the same terms, from the plaintiffs, for him. This was in April, 1847 — he said Weir informed him the Piano would be on by the 1st of May. He waited until 1st of June, the Piano had not arrived ; he told Weir he could wait no longer ; to this Weir assented, and told him he was not bound to wait.
    On the 5th of June, Weir wrote to the plaintiffs, that the person for whom he had ordered the Piano, refused now to 'lake it, and directed them to retain it. They had, however, shipped it before receiving that letter. ‘ Mr. James went to Charleston, and bought a Piano. On his return, Mr. Weir sent his clerk to him, with the bill of lading of the Piano, shipped by the plaintiffs. He immediately went to see Mr. Weir, and found him in bed, sick with his last illness ; he said to Weir, if he (Weir) considered him (James) bound for the Piano, he would still take it. Weir told him, he “ did not consider him bound; if the gentlemen missed the sale of their article, they had no body to blame but themselves.” Weir died in a few days after, early in June. The Piano came after his death, was inventoried, and sold by the defendant, who was the executor of Weir. The plaintiffs demanded the Piano from him 1st December, 1847; he refused to give it up.— Weir was insolvent, and had no credit for himself with the manufacturers. He made no charge for his services in ordering a Piano for Mr. James.
    After Weir’s death, 1st September, 1847, the plaintiffs wrote to the defendant, inquiring about the Piano and demanding payment. The defendant would have proved, by Mr. Thornton, a coach maker in Columbia, and other persons, merchants, &c. that when they ordered any thing for a third person, the usage of trade was that the person ordering was regarded as the vendee. The Circuit Judge ruled that the usage of trade had nothing to do with the case ; that here the proof clearly shewed that a sale to Weir was not in the contemplation of any of the parties ; he merely acted as the friend of Mr. James, in ordering the article, and as the friend of the plaintiffs, to receive and deliver it. The proof offered was excluded. The testimony clearly shewed that there was no sale to Weir. He did not consider himself as buying, for he said, “ if the gentlemen, the plaintiffs, missed the sale of the article, (alluding to the delay,) it was their own fault.”
    The jury, under the instruction of the Court, found for the plaintiffs the sum for which the Piano was sold by the defendant, adding thereto the interest from the time the sale wag (Jue_
    Gandsc° uie’ I5^£astf67.’
    The defendant moved for a new trial, upon the following grounds:
    1st- That the defendant should have been permitted to introduce testimony as to the course of dealing, by merchants in Columbia, in ordering goods from New York for persons residing here.
    2d.. That the shipment of the Piano at New York, upon Weir’s order, was such a delivery as constituted a complete sale to S. Weir, or the person for whom the Piano was ordered.
    3d. That the sale being complete, Bacon & Raven had neither such a right of property, nor right to the possession, as would enable them to maintain an action of trover for the Piano.
    4th. That the Piano was shipped before the countermand of Weir, and in his life time, and as «he bill of lading was received by Weir, and sent to Mr. James, as the contract was affirmed by the reception and sale of the Piano by the executor of Weir, and by the plaintiffs, by the letter to the executor, demanding payment, the sale was complete, and the title passed out of the plaintiffs and vested in the defendant, as executor of Weir; and the ruling to the contrary, by his Honor, was error.
    
      W F. DeSaussure, for the motion.
    
      Goodwyn, contra.
   Frost, J.

delivered the opinion of the Court.

If a person sells goods, supposing, at the time of the contract, he is dealing with a principal, but afterwards discovers that the person with whom he is dealing is not the principal in the transaction, but agent for a third person, though he may, in the mean time, have debited the agent with them, may afterwards recover the amount from the real princi-Pal- It is manifest that Weir ordered the Piano not on his own account, but as agent for James. But he did not disclose to the plaintiffs the name of his principal. The 'plaintiffs, then, had an election to sue either Weir or his principal for the purchase money. As Weir, by the sale and credit given to him by the plaintiffs, became liable to them for the price; so, if he chose to affirm that contract, the property in the Piano vested in him. The custom, which it was proposed to prove, that a person ordering goods for another, (and not disclosing his principal, which is a necessary qualification,) is regarded as the vendee, is in conformity with the law; and the evidence offered, being thus immaterial, was properly rejected. It may be admitted that the shipment of the Piano, pursuant to Weir’s order, was a sufficient delivery to the vendee, (Weir or James,) to complete the contract of, sale, and change the property. But the concurrence of both parlies is necessary to a contract; and a contract of sale, like any other contract, may be rescinded with the assent of both parties. The plaintiffs, after they discovered that James was the principal, might have elected to charge him with the sale. But James rescinded the sale, and by sueing the defendant in trover, they have assented to the rescission. So Weir might, with the consent of the plaintiffs, have disclaimed a purchase on his own account, and referred all he had done to his agency. If the plaintiffs assented to this, the Piano would be in his possession, on deposit, for them. Their right of property (James having rescinded the contract) would be revested in them; and they might maintain trover for a conversion of the Piano.

Did not Weir disclaim any purchase, on his own account, and renounce any title to the Piano 1 He was employed as an agent. As soon as it arrived, he sent the bill of lading to James, to pay the freight and expenses, as he had done when a former order was executed for him. Afterwards, he declared to James that he did not consider him (James) bound, and if “ the gentlemen missed the sale of their article, they had no body to blame but themselves.” In his letter to the plaintiffs, of the 5th June, he expressly affirms his agency, and renounces any purchase, on his own account, when he informs them that the gentleman for whom the Piano was ordered, refused to take it; and that they must, therefore, retain the instrument. In this posture of the affair, Weir died. He had plainly declared that, in ordering the Piano, he merely acted as an agent, and disclaimed any title to it. If he received the Piano, in his life time, he received it merely as consignee. If the defendant, his executor, received it after his death, it was received on the same terms. An executor has no authority to charge the deceased by any contract he may make. If a consignee has a right to take the goods at a stipulated price, and elects to hold them as consignee, after his death his executor cannot elect to take them as a purchase. The Piano came into the possession of the defendant as a bailment, and by the sale of it he has been guilty of a conversion.

The motion is dismissed.

Richardson, J. — O’Neall, J. — Evans, J. — and Ward-law, J. — concurred.

Motion refused.  