59 Mass. 422 - Nash v. Drew — 59 Mass. 422

Stephen G. Nash vs. Elijah C. Drew. A clerk and salesman, in the employment of a retail dry-goods dealer,1 is not authorized as such, in the absence of his employer, to deliver goods in payment of, or as security for, a note signed by his employer; and if he does so, without authority, either express or implied, from his employer, the assignee in insolvency of the latter, subsequently appointed, may maintain an action for the goods so delivered. This was an action of trover, brought by the plaintiff as the assignee in insolvency of one Stevens Merrill, an insolvent debtor, to recover the value of a quantity of dry goods. It appeared in evidence, on the trial, which was before Bigelow, J., in the court of common pleas, that the defendant, previous to the 20th of January, 1848, held a note signed by Merrill, the insolvent, for $500, on which the sum of $350 and interest were due, purporting to be indorsed by Daniel Prescott, to whom it was payable, and by Joseph Drew; that Merrill, having committed various forgeries, and among others the name of Daniel Prescott on the defendant’s note, absconded on the 20th of January, 1848, and had not since been heard of; that the defendant, on the day after, knowing that Merrill had absconded, and that the name of Prescott, indorsed on the note, had been forged, went to Merrill’s shop, with the note, and requested Talcott, a clerk and salesman of Merrill’s, to pay the same in goods, stating that Merrill had authorized him to receive goods for the note, and that he had seen Merrill’s wife, who had given her consent to the payment of the note in goods; that Talcott thereupon proceeded, with the defendant, to select and lay aside goods, to the amount of $552.81, at cost prices; that Talcott obiected to giving the defendant so large an amount of goods, unless he would agree in writing, to redeliver the goods, if Merrill should return and pay the note; that a bill for the goods was made out and delivered (with the goods) to the defendant, and receipted by Talcott, as follows : “ Received payment, S. Merrill, by L. A. Talcott ”; and that the defendant thereupon gave Talcott a paper signed by him, in the following words: “ Having purchased this day of Stevens Merrill a bill of goods, I agree to sell the same to him within thirty days for $389.” It was also in evidence, for the plaintiff, that Merrill was a retail dealer in dry goods, and kept a shop for that purpose; that Talcott was a common clerk and salesman therein, and had never before paid any notes of Merrill’s, either in goods or money ; that Merrill’s sales were ordinarily made in small amounts at a time, and in the usual course of business in a retail shop ; that no notes of Merrill’s had ever been paid in goods from the shop, by any clerk and salesman, or even by Merrill himself, except on one occasion ; and that Talcott had no authority, express or implied, to deliver goods to the defendant, in payment or as a security for his note. The defendant, on the other hand, introduced evidence, that Merrill had previously paid notes in goods, and that such payments by Merrill and his clerks were quite usual and common; that Merrill had stated, that he was willing to pay the defendant in goods at any time; and that about three months before, he had directed one Kaulback, who was in his employment, as a clerk and salesman, with Talcott, to let the defendant or his wife, or any person having orders from him, have goods from the shop, at any time, and to any amount. The presiding judge thereupon, instructed the jury, that Talcott, in his capacity of a clerk and salesman in a retail dry-goods shop, had no authority, in the absence of his employer, to pay or secure his employer’s notes by a transfer of goods, either absolute or conditional; that to make such a transfer of goods valid, as against the plaintiff, it must be shown, that Talcott had express or implied authority to make it; that if he was not expressly authorized, the jury might imply an authority in him to make the transfer in question, from the usual course of business, and from other similar transactions, or from any evidence that the transfer was one fairly within the scope of Talcott’s usual employment; and that if Talcott had authority, express or implied, their verdict must be for the defendant; but otherwise, the plaintiff, as assignee, had a right to maintain the action, and their verdict must be for him. The jury returned a verdict for the plaintiff, and the defendant excepted F, Hilliard, for the defendant, argued, that the salesman was a general agent, and therefore had authority to pay the note in goods ; that the question of implied authority was a question of law, and should not _ have been left to the jury; that the instructions were given in such a manner as to mislead the jury; and that the right to avoid the sale, if it ever existed, was a personal right in the insolvent, and did not pass to his assignee in insolvency. S. G. Nash, for himself, was not called upon. — Shaw, C. J. (majority) Shaw, C. J. This is an action of trover, brought by the assignee of an insolvent debtor, to recover the value of the goods mentioned in the writ, for the benefit of the creditors of Merrill the insolvent. Having been the property of Merrill the insolvent, if there was not such a valid sale of the goods, as would prevent a creditor from attaching or taking them in execution, then by force of the insolvent law, the plaintiff is entitled to recover the goods or their value, for the general' -benefit of the creditors. The sale was not made by the debtor personally; on the contrary, it was made in his absence, after he had in fact absconded, by a person acting as clerk and salesman, in the retail shop of the debtor. The judge charged the jury, that the sale was not valid against the assignee, unless it was made by the express or implied authority of the owner. This direction was unquestionably right. Whether there was any express authority, from previous instructions of the debtor to his clerks, or any implied authority from usage and other circumstances, were questions of fact properly left to the jury. We think the charge was sufficiently favorable for the defendant; had the verdict been the other way, as far as we can perceive from the evidence reported, it is much more questionable, whether it could be supported. But there is another ground on which the ease may be decided. The transaction was in effect a pledge and not a sale of the goods, at an agreed price, in the ordinary course of business. The defendant selected goods to nearly double the amount of his debt, which the clerk declined letting him take, until he gave a memorandum stipulating to restore them on payment of a smaller sum named, which was the balance due on his note. We can perceive no authority, on the part of the clerk and salesman, to hypothecate the goods of his employer as security for the debt, and therefore the property was not changed. Even if the contract was not absolutely void, but voidable only, the right to avoid it was a valuable right of the creditor, and may be exercised by the assignee. Exceptions overruled.