¶1Baldwin, J. concurring.
¶2This is an action to recover the value of certain ale purchased by the defendant of Broadhurst & Co., merchants in San Francisco. It appears that this ale belonged to the plaintiff, and was delivered upon his order; but in selling it, Broadhurst & Co. professed to act on their own account. The defendant had no knowledge of any other person in connection with the transaction, and was not informed of the interest of the plaintiff until he had received the ale and paid for it. The plaintiff seems to think that the order signed by him for its delivery was sufficient to put the defendant upon notice of his rights; but the answer is that the order was procured by Broadhurst & Co., and delivered to the defendant in fulfillment of their contract. The inference could only have been, that it was procured by a personal arrangement between them and the plaintiff; or, in other words, that they had purchased or otherwise obtained of him the ale necessary to meet their engagement with the defendant. The defendant could not have supposed that he was contracting with, or incurring any liability to the plaintiff, and we are of opinion that the payment to Broadhurst & Co. was sufficient to discharge whatever liability he incurred. We can regard the case in no other light than that of agents of an undisclosed principal contracting in their own names; and it is well settled that in such cases, agents employed to sell may also receive payment. If, says Story, the payment is received by the agent, and the debtor has no notice of any claim by the principal, the latter will be bound thereby. (Story on Agency, sec. 430.) “ Until the principal appears,” said Lord Ellenboroug’n, in Blackburn v. Scholes, (2 Camp. 343) “ the agent is to be regarded as the proprietor.” There is no doubt that the law upon this subject is adverse to the right of the plaintiff to recover.
¶3But even if Broadhurst & Co. had acted expressly in the capac*496ity of agents, we are satisfied that the payment to them would have discharged the debt. The circumstances would have been sufficient to establish their authority to receive it; and it.is only in the absence of circumstances justifying it that such authority could not be inferred. The payment was made in the regular course of business, and the subsequent notification to the defendant to withhold it seems to recognize their authority to receive it.
¶4Judgment affirmed.