¶11. In my opinion, an unconditional, unrestricted authority given to an agent to sell goods, contradistinguished from a mere power to negotiate a sale, such an authority as will bind the owner to deliver the goods, implies the power to receive payment.
¶2Lord Tenterden, in Capel v. Thornton, (3 Carr, and Payne, 352,) laid down that rule at nisi prius. (Pickering v. Busk, 15 East., 38,) almost establishes it. The sale was by a broker, but the principal was unknown, and the broker had possession. (Favenc v. Bennett, 11 East, 36,) involves the same rule when there is an agency known, and the principal unknown.
¶3In Ireland v. Thomson, (4 Com. Bench R., 149,) the case of Mynn v. Jolliffe, (1 M. & Rob., 326,) is recognized as settling that an agent to sell real estate is not of course empowered to receive the purchase money. But it was considered clear, that there was such a power in the case of the sale of a vessel made by the master abroad.
¶4■ In Gross v. Haskins, (13 Yt. R., 536, 540,) the Court say: “ "When the plaintiff employed an agent to sell hats, he was authorised to receive payment; and all who purchased of and paid him in good faith, are protected, notwithstanding he appropriated the avails to himself, especially when the purchaser knew nothing of the agency.”
¶5Hackney v. Jones, (3 Hum. R., 612,) is an express authority that a general unqualified power given to an agent to sell goods, involves the right to receive payment, so as to protect the purchaser.
¶6The case of Pinckney v. Hagadorn, (1 Duer, 89; approved and said to have been affirmed, 14 N. Y. R., 584, 590,) determined that an auctioneer empowered to sell real estate, and by the *351terms of sale to receive ten per cent on the day of sale, could receive it on a subsequent day, and bind the principal. (Story on Agency, § 98; Paley on Agency, 278.)
¶7The authority conferred upon Sayles, the agent of the plaintiff in this case, to sell, is found by the Referee.
¶8I do not think that actual knowledge of the name of the owner is sufficient to vary this rule, any more than knowledge of some one else being an owner, implied in the fact of dealing with an agent or broker, would be sufficient.
¶92. If the proposition thus stated were, in my opinion, questionable, I should think the present case not so, because the plaintiff knew on the day of the sale that Moore, the defendant, was the purchaser, as the defendant knew that the plaintiff was the owner. This knowledge was acquired on Saturday, the 28th day of August. With this knowledge, the plaintiff returns to Albany; and although it was a cash sale, which (even as interpreted by the alleged custom,) justified the presentment of a bill on Monday, the 30th of August, takes no step himself, or by any one else, to obtain payment, nor inquire as to the transaction until the 3d of September. He refrained from giving notice not to pay Sayles, or to pay himself only.
¶10I do not doubt the right of the General Term to look into all the evidence, and sustain a judgment upon it, even if the facts are not deduced, by the Court or Referee, from the evidence. The serious difficulty upon an appeal to the Court of Appeals, may require a new trial, and this the 28th rule of 1858 seems intended, but imperfectly, to remedy.
¶113. The Referee has explicitly found that there is a custom or usage of trade in New York, when grain of a non-resident owner is sold by brokers, for the brokers to have the bill made out in their name, and to collect the money; and that the defendant paid Sayles according to that usage. The evidence of such custom is not very satisfactory to my mind, but I do not think that we are warranted in saying that the Referee was clearly wrong in his conclusion.
¶12I think the judgment should be affirmed.
¶13Woodruff, J., concurred with Mr. Justice Hoffman, that, upon the proofs and report of the Referee, due authority to make *352payment to Sayles, the plaintiff’s agent, was sufficiently established, and that the judgment should be affirmed.
¶14Assuming, for the present purpose, that such a usage, or custom of the trade, as the Referee has stated, was sufficiently proven to admit the finding of fact to be correct, the material question arises, whether, under such circumstances, the conclusion of law thereon, as found, can be sustained.
¶15The custom, or usage, was in no wise material, or necessary or proper, to explain or give character or meaning to the power actually bestowed upon the broker. The words are clear, plain, and unambiguous. The plaintiffs authorized the broker to sell the grain, and nothing more. The authority, of and in itself, neither by express terms nor by any implication, gave to the broker the right to treat the rye as his own property, make out a bill therefor in his own name, collect the money, or receipt for its payment. The broker, as such, had no such authority. A sale being made, his duty, office and function was at an end. His name is indicative of restricted authority: he is the negotiator, or middleman (2 Barn. & Ald., 137, 143, 148.) It was not sought to show that a usage or custom of the trade existed, of which, it being general, the plaintiffs might be presumed to have knowledge, and have given the employment intending and implying the power to receive payment. Nor was it proven that either the defendant or the plaintiffs knew of such a custom or usage, and therefore could be assumed to act with such intent in the sale and purchase of the grain. The plaintiffs were not acquainted with such a usage or custom. The defendant said he had paid the money “in the usual course of businessnot that he knew or believed a usage or custom existed to pay the broker the avails of the plaintiffs’ rye. The defendant was told by the broker, at the time of the payment to him, that the plaintiffs “had drawn for the amount.” If this statement was true, and the defendant, believing in its truth, in good faith had paid the money, the payment was made, not in the usual course of business, perhaps, as arising from a usage or custom to pay the broker, as for his own goods, but from an implied authority to the broker as an agent to collect the money to meet the draft of his principal. And this was the case with the other lot of rye sold by this *353broker for the plaintiffs, in which an implied authority to pay him was found by the Referee. The defendant knew the plaintiffs were the owners of the rye. No other than these two transactions were shown to have been made by the broker for the plaintiffs. There was, therefore, no implication of authority from previous transactions. It does not appear that the plaintiffs ever ratified the payment: on the contrary, they claimed to recover from the defendant, made out a bill, and demanded the money. Comstock, J., in 3 Kernan, 632, says: “ Á principal is bound only by the authorized acts of his agent. The relation of principal and agent may be proved by the instrument, (or verbal commission,) which creates it; and beyond the terms of the instrument, or of the verbal commission, it may be shown that the principal has held the agent out to the world in other instances as having an authority which will embrace the particular act in question. ITcnow of no other mode in which a controverted power can be established.”
¶16The proposition, that persons, engaged in a particular trade, at a particular place, can, by the custom or usage adopted and regulated by themselves, create a power beyond what is actually conferred or necessarily implied, depriving an owner of'his property, the possession of which he had not parted with until a sale to the purchaser, seems to me to be so fraught with mischief, as well as unsoundness, as to require only its announcement to meet with repudiation. The grain was not delivered to the broker. The custom or usage would transform him into a factor in possession of the goods, or with the indicia of title or ownership. (2 Barn. & Ald., 137, 143, 148.)
¶17I think the Referee erred in his conclusion of law upon the facts found by him. A new trial should, therefore, be directed, &c.
¶18Judgment affirmed, with costs.