majority">By the Court, E. Darwin Smith, P. J.

Upon the facts clearly proved, on the trial, Stannard, who made the contract for the sale of the bags in question in the suit, was a mere broker. As such he was authorized to make contracts for the sale and delivery of the plaintiff’s bags, but he was not authorized to make such contracts in his own name; nor was he authorized to receive payment for the bags so sold. (Higgins v. Moore, 34 N. Y. Rep. 431. Baring v. Corrie, 2 Barn. & Ald. 138.)

When the defendant made this contract to purchase these bags, he clearly knew nothing of the plaintiff, and doubtless supposed he was purchasing them of Stannard, and expected thereby to get payment of his debt from him. But he knew that Stannard was not a dealer in such bags, but was simply engaged as a clerk in the grocery business for a firm trading in Canandaigua.

The goods were received by the defendant at Canandaigua, to which place they were sent by the plaintiff by express, accompanied by a bill or invoice of the bags, sent to the same address by mail. When the defendant received the goods he knew that they came from the plaintiff, as they were marked with his name. He had not then paid for the goods, nor did he afterwards ever pay for them, in fact. He simply credited the amount of the cost of the bags, in his books, to Stannard.

When he thus received the goods he had notice that Stannard did not own them, and had no right to receive payment for them. The plaintiff did nothing to mislead him. He had not trusted Stannard with the possession of the property or with any evidences of title thereto. The goods came by express directly to the defendant. Stannard had no control over them, and never had any • *251thing to do with them, except to send to the plaintiff the defendant’s order for the number and description of the bags. The case, in its facts and in the principle involved, is, it seems to me, clearly within the case of Baring v. Oorrie, (supra.) In that case, Coles, the broker, sold the sugars and ordered them, as Stannard did the bags, in this case, in his own name, and they were delivered to Corrie. The defendant in that case claimed that he purchased the goods of the broker, as the defendant does here that he purchased the bags of Stannard, and that he had a set-off or demand against the broker; but the court held that the plaintiff was entitled to recover the price of the sugars. Judge Bayley said: “ The plaintiffs did not trust the broker with the muniments of their title, or the possession of the goods.” And the case was decided chiefly upon that ground. The case of Hogan & Miln v. Shorb, (24 Wend. 458,) is not in conflict with the case of Baring v. Oorrie. It was put upon the distinction between a broker and a factor. Morris, who sold the goods in that case, was a factor. He was entrusted with the goods, delivered them at the time of the sale, and made the sale in his own name, and was himself a merchant and trader. He had a right to sell the goods in his own name and to receive payment; not so with Stannard.

[Monroe General Term,June 1, 1868.

E. D. Smith, Johnson and J. C. Smith, Justices.]

•The defendant has received the plaintiff’s property, and has not paid him for it, and he clearly had no right to pay Stannard for property he did not own, and he had not the slightest right to receive payment for said property.

It follows that the plaintiff is entitled to recover the price of such property, as the plaintiff did in the case of Baring v. Corrie, (supra,) and the judgment rendered by the justice therefore was right, and the judgment of the county court reversing the same was erroneous, and should be reversed, and that of the justice affirmed.

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