majority">

The opinion of the court was delivered by

Roves, Ch..J.

In denying the right of the plaintiff to recover for the goods charged in his account, the court below were clearly right. There was. no color of authority for taking up the goods on the credit of the ' defendant. The remainder of the account consisted of the plaintiff’s fees, as an officer, upon -certain writs and executions, issued in the name of the defendant, against the signers of the notes taken by Thomas Dougherty. And the general question is, whether the defendant became legally responsible to the plaintiff for those charges.

We learn from the auditor’s report, that Thomas Dougherty was the defendant’s agent for the purpose of selling certain goods, which the defendant had purchased on credit of one Loomis. This appears to have been the extent of the agency, although there was a further provision in the contract, by which Thomas could entitle himself to the avails of the goods, provided he paid the defendant’s debt to Loomis. Any act of Thomas within the scope of his agency for selling the goods, should accordingly be referred to his employment as agent, and treated as the act of the defendant. But if anything was done by Thomas beyond the proper limits of that agency, and for the purpose of enabling himself to pay Loomis, and thereby to purchase the defendant’s interest in the avails of the goods, it should be referred to the latter branch of the contract, and considered as having been done in his own right; or, at least, with a principal view to his own advantage.

*96That the agency of Thomas Dougherty authorized him to sell the goods on credit, and take notes from the purchasers in the manner he did, if he acted with a due regard to the defendant’s interest, is undoubtedly well settled — 2 Kent 622, Smith’s Com. Law, 105. Paley on Ag. 26. But the question arises, whether he had authority from the same source, and under the circumstances appearing in the report, to attempt the collection of the notes by suit. In the first place, it would seem that his agency, strictly considered, had terminated, except for the purpose of rendering his account, before he caused the suits to be instituted. It is found that he completed the sales in May, and the suits were commenced in July, after. At that time his apparent duty, as a mere agent, was simply to surrender the notes to the defendant. In the next place, though the agency should be deemed to have continued, yet a collection of the notes, hy the prosecution of suits upon them, was not within the terms of it; nor is such a proceeding ordinarily understood to come within the powers or duties of an agency to sell. Neither was there in this instance, any pressure of circumstances, as in Davis v. Waterman et al., 10 Vt. 526, and Felker v. Emerson, 16 Vt. 653, which justify an extension of the agent’s powers by implication, on the ground of necessity. The defendant was living in the vicinity, and if Thomas designed to act in the character of an agent, it was his obvious and imperative duty to obtain the defendant’s consent to the course pursued, before it was resorted to. Hence we conclude that, in the sole capacity of agent, Thomas was not authorized to comrp.ence and prosecute the suits. At the same time, we think it sufficiently apparent that his purpose in those proceedings, was not to execute a mere agency, but to secure the benefits of the special provision in the contract with the defendant. It may, indeed, have been expected, that Thomas would use the avails of the goods, as means of paying Loomis; and to such an appropriation of them, the defendant’s license should perhaps be implied. But as it was op7 tional with Thomas whether to act at all upon this part of the contract, it would be most unreasonable to hold that, in attempting to execute it, he could subject the defendant to expense without some corresponding benefit. And the suits having been productive of no actual benefit to the defendant, tjie costs and expenses incurred could not regularly constitute the ground of any legal claim against him.

*97It appears that judgments were recovered in the suits, and the debtors committed to jail, upon the executions; and it only remains to inquire how the case was affected by the act of the defendant in releasing the debtors from imprisonment. That act was evidently not intended as a ratification, but rather as a disavowal of what had been done. It must be considered, however, that the defendant thereby discharged the debts, so far at all events, as his own interest could ever be concerned. And perhaps by the same act, he also created a liability to some extent against himself. That would probably depend upon the pecuniary responsibility of those debtors. But the action of book account cannot be an appropriate remedy, even in favor of Thomas Dougherty, to enforce the liability thus created; and much less, in favor of those persons who performed service or expended money atjiis request, in the' attempted collection of the notes. To hold the action maintainable in the former case, would be to carry the qualifications of the rules laid down in Slason v. Davis, 1 Aik. 73, much further than they have ever been extended; and to sustain the present suit, would be, moreover, to recognize this form of action as available, even where no legal privity of contract exists between the parties.

The judgment in favor of the plaintiff on the report is therefore reversed, and judgment entered for the defendant.

Citation profile

Relationships

How this case has been treated — in progress