#### James Bloomer, Appellant, *v.*Matthias B. Denman, Appellee.

APPEAL FROM ADAMS.

If the court can see, that the jury in the court below were warranted by the evidence, in inferring a state of case that would sustain the action, it is bound to uphold the judgment, even though there should seem to be a slight preponderance of evidence to the contrary, and the successful party is entitled to all the inferences legitimately arising from such finding.

The principal is liable for the acts of his duly authorized agent in the business entrusted to him, and is not permitted to deny the truth of the representations of such agent, about the subject matter of such agency, on the faith of which another has acted.

If an agent rescind a sale by him made, the principal becomes liable to refund any money which has been paid upon it.

To authorize a recovery in an action for money had and received, a privity of contract must exist between the parties.

This was an action of assumpsit, brought by Denman against Bloomer, in the Adams Circuit Court. The cause was tried at October term, 1850, before Minshall, Judge, and a jury, and resulted in a verdict and judgment for the plaintiff, of $391 39, with costs. The facts necessary to a full understanding of this controversy, will be found in the opinion of the Court; and by reference to the 11th Ills., 177, where the same case is reported.

The instructions referred to as asked by the plaintiff, are as follows:

*1st Instruction.*If the jury believe from the evidence, that Johnson was the agent of Bloomer to receive the purchase money 'on said raft, and that after having sold the raft to Denman, and received a part of the purchase money, the contract of sale was rescinded, and the raft again taken into the possession of "Johnson, and re-sold by him, and that Bloomer received the benefit of the purchase money paid by Denman, and also of that paid to Johnson on the subsequent sale of the raft, then Bloomer is liable to Denman for the amount paid by Denman, and the jury must find a verdict for the plaintiff.

*2d Instruction.*If the jury believe from the evidence, that Bloomer, with a knowledge of all that had occurred between Johnson and Denman concerning said raft, received from Johnson the money that had been paid Mm, Johnson, on said raft, then Bloomer, by receiving said money from Johnson, ratified the arrangement made between Denman and Johnson in regard to whatever moneys had been received by Johnson on said raft; and if Johnson, as the agent of Bloomer, in regard to said pur*243chase money, agreed with Denman that Denman should be paid the $345 advanced by Denman, then the jury must find for the plaintiff and assess his damage.

3c£ *Instruction.*If the jury believe from the evidence, that Johnson was the duly authorized agent of Bloomer, that as such agent he had the control of said raft, that he represented to Denman that Bloomer was the owner of said raft, that Denman; relying on his representations, dealt with Johnson in relation to said raft, under the belief that Bloomer was the owner thereof, that belief having been induced by the representation of Johnson, then Bloomer is not permitted, in this suit, to deny that he was the owner of said raft.

*4dh Instruction.*If the jury believe from the evidence, the-facts upon which the third instruction is predicated in regard to-the agency and representations of Johnson, and if they further-believe from the evidence, that after said raft broke from its fastenings, Johnson took charge of said raft on behalf of his principal, and on a settlement with plaintiff, promised, in behalf of' the defendant, to repay said plaintiff whatever money had been* expended by said plaintiff about said raft, then no question: arises in the case about the delivery of said raft to the plaintiff" before it broke away; and the jury will find for the plaintiff a verdict for the amount paid by the plaintiff, with interest from-the time said money should have been repaid.

*1th Instruction.*The Court will instruct the jury, that if they believe from the evidence, that the raft belonged to Clinton, and* that it was sold and delivered by his agent to Denman, and that the sale to Denman has not been rescinded, then Denman is liable to Clinton, on his contract of purchase, for the price he agreed to pay for the raft, and he, Denman, is entitled to the money received by Bloomer for said raft.

The instructions referred to, as asked by the defendant, are as follows:

1st *Instruction.*The Court is asked to instruct the jury for-the defendant, that if they believe from the evidence that the raft was the property of Clinton, and that Johnson, in selling the raft, and disposing of the money, was acting as Clinton’s agent, that then they will find a verdict for the defendant.

*5 th Instruction.*That, although they may believe from the evidence, that Johnson agreed to rescind the contract by which-*244the raft was sold to Denman, still they will find for the defendant, if they also believe from the evidence, that Johnson, in selling said raft, and in rescinding said contract of sale, was acting as the agent of Clinton, and that Clinton was the owner of the property.

A motion for a new trial was made and overruled. Bloomer brings the cause to this Court by appeal.

R. S. Blackwell, for Appellant.

The 3d and 4th instructions given on the part of the plaintiff below, were erroneous in this: it lays down the proposition that Bloomer is estopped to deny ownership of the raft, and agency of. Johnson, by the representations of one assuming to be an agent, without any regard to proof of the fact of agency. 1 Greenleaf’s Ev., 137 §113; 2 *ibid.,*46, §59, 60; Story’s Agency, §135; 2 Starkie on Ev., 34-5.

Denman was bound to know the extent of Johnson’s authority. Mechanics’ Bank *v.*Bank Columbia, 4 U. S. Cond., 671; Atwood *v.*Mannings, 14 Eng. C. L. Rep., 43-4. No *estoppel*in such cases. Story’s Agency, 128, §136 and note.

The giving of the 1st, 2d, and 7th instructions of plaintiff, and the refusal of the Court to give defendant’s instructions 1st and 5th, present the merits of the action. To maintain this action the plaintiff is bound to show privity of contract between himself and the defendant.

Privity need not necessarily be founded upon an express contract between the parties. Sometimes, the law, operating upon the act of the parties, creates the duty, establishes the privity, and implies the promise upon which the action is founded. But the privity must exist, either by the express assent of the parties, or by construction of law. Whenever the party sought to be charged upon an implied promise, refuses to be bound, the presumption of privity is rebutted. No one can be made the debtor of another without his consent.

In this case Bloomer *refused*to purchase the raft of Clinton, but agreed to make advances upon it, to secure a debt due hfm from Clinton, and also reimburse his advances out of the proceeds of the raft. The expenses of sending the raft to market were to be. borne by Clinton, and the raft was at his risk. *245The money received, by Johnson of the plaintiff, was paid into Clinton’s hands. The proceeds of the raft did not secure Bloomer’s claim against Clinton, and Bloomer refused to accept and pay the draft drawn by Johnson upon him.

The facts that Bloomer, 1st, refused to purchase the raft; 2d, that his object was to secure his debt and advances; 3d, that he stipulated with Clinton against the risk and expense; 4th, that the money of the plaintiff never came to Bloomer’s hands; 5th, that Bloomer refused to pay the draft of Johnson, clearly evince an intention on the part of Bloomer, not to make himself liable for and on account of the raft, further than to the extent of the advances he had already made upon it, rebut the implied promise sought to be established against him, and contradict in the most unequivocal manner, all idea of privity between the plaintiff and himself. These principles are clearly laid down in the following cases: Williams *v.*Everett, 14 East, 582; Stewart v. Fry, 2 Eng. C. L. Rep., 129; Stephens *v.*Babcock, 23 *ibid,*93; Sims v. Brittain, 24 *ibid,*78; Young v. Dibrell, 7 Humph., 270; Wilson v. Greer, 7 *ibid,*513; Grant *v.*Austin, 1 Eng. Ex. Rep., 284; Tiernan v. Jackson, 5 Pet., 599; Seaman *v.*Whitney, 24 Wend., 260; England *v.*Clark, 4 Scam. 486; Trumbull *v.*Campbell, 3 Gil., 502.

Privity, as required in this action, is founded on the maxim, that no man can be made a debtor without his consent. The distinction between privity, as respects the proceeds of property wrongfully taken from the owner and converted into money without his consent, and privity of contracts, is often confounded. In the first case, the owner may treat the tort feasor as a *purchaser,*an agent, or bailee, .whose disposal of the goods is thereby sanctioned and confirmed by the owner, and in this way a privity, in law, is established between the parties. Jones v. Hoar, 5 Pick., 285 and note.

In this action of assumpsit for money had and received, the plaintiff must show, 1st, the receipt of the money by defendant; 2d, the receipt of if for the use of the plaintiff. In this case, Johnson was the agent of Clinton to sell the raft, pay off the hands, and the residue of the proceeds, after paying Bloomer, to Clinton. He was the agent of Bloomer for the single purpose of receiving and paying over Bloomer’s debt and advances out of the proceeds. When Johnson sold the raft and received the *246advance of $300 from Denman, he acted as Clinton’s agent, and paid the money out to Clinton’s hands. The money then was received by Clinton and not by Bloomer. Sumner *v.*Hamlet, 12 Pick., 82.

This .is an equitable action, and plaintiff must have a *better*right *ex ceqüo et bono*to recover, than Bloomer has to retain the money. Buel *v.*Boughton, 2 Denio, 91. If Johnson had no authority to draw upon Bloomer, any promise by Bloomer to accept and pay the draft is a *nudum pactum.*Fenn *v.*Harrison, 3 T. R., 754, (3 & 4 Cond., 412;) May *v.*Coffin, 4 Mass., 341.

Williams & Lawrence, for Appellee.

Wherever one man has in his hands money belonging to another,, *“ex cequo et bono,"*an action for money had and received lies. The cases relied upon by the counsel for the defendant in regard to privity of contract, are all cases in which the plaintiff has brought his suit for money deposited by a third person, and the cases have been decided upon the ground that the third person depositing the money had a right to recall it. But in this case we are pursuing our own money, which has passed into the possession of Bloomer, through the hands of his agent, with a knowledge, on Bloomer’s part, of all the circumstances. The cases, then, cited by the defendant’s counsel, do not apply to the case at bar; and moreover, the authority of those cases has been overturned in this country, and is shaken by contrary authorities in England. We rely upon the following authorities: Hall *v.*Marston, 17 Mass., 563; Mason *v.*Waite, *ibid,*579; Eagle Bank *v.*Smith, 5 Conn., 71; Hitchcock *v.*Lukens, 8 Porter, 338; Wiseman *v.*Lyman, 7 Mass., 288; Eddy *v.*Smith, 13 Wend., 488; Hudson *v.*Robison, 2 Maul. & Sel., 478; 2 Burrow, 1012; Cowper, 200; 31 Eng. Com. Law Rep., 396; Camp *v.*Tompkins, 9 Conn., 555.

But this record does not present the question of “privity,” which the counsel for the plaintiff in error attempt to raise. The instructions asked for the defendant below, and refused, (numbered 1 and 5,) merely direct the jury to find for the defendant, if they believe Johnson was Clinton’s agent, and the raft belonged to Clinton. But there was evidence showing Johnson to have been also Bloomer’s agent, and if he *was**247Bloomer’s agent, then no question of “ privity” could arise, and it would have been error in the Court to have directed the jury to find for the defendant, simply because they might believe Johnson was Clinton’s agent, without amending the instruction by requiring the jury to believe *also*that Johnson was *not*Bloomer’s agent. If he was Bloomer’s agent, then no question of “privity” could arise, and it would have been palpably wrong to have required the jury to find for the defendant because Johnson *was Clinton's*agent, when the jury might at the same time believe that he was also Bloomer’s agent, and *that*being admitted, the plaintiff was confessedly entitled to recover,

Trumbull, J.

The facts of this case are briefly these. One Clinton had a raft of lumber at the mouth of Fever River, which he proposed to sell to Bloomer, of Galena, whom he was owing. Bloomer declined purchasing, but made advances upon the raft under an arrangement with Clinton that it was to be sent down the Mississippi river and sold. Out of the proceeds of the sale, the expenses of taking the raft to market were first to be paid, then the sum. due Bloomer including his advances, and the balance was to be paid over to Clinton. Johnson, a clerk in the employ of Bloomer, went down the river, and at Quincy made sale of the raft to Denman, who advanced to him part of the purchase money rvhich was used by Johnson in paying off the hands upon the raft. Subsequently the sale to Denman was rescinded, and Johnson gave Denman a draft upon Bloomer for the amount he had received from Denman, and for certain expenses that had been incurred by the latter in taking charge of the raft. The raft was subsequently sold by Johnson, and the proceeds paid over to Bloomer, but he refused to accept the draft drawn on him by Johnson, and this action was brought by Den-man to recover the amount. The jury found in Denman’s favor and he had judgment.

It is asserted here, that no such privity of contract existed between Denman and Bloomer, as would authorize the former to maintain this suit.

In determining this question, Denman is entitled to all the inferences legitimately arising from the finding of the jury, and if the Court can see that they were warranted by the evidence in inferring a state of case .that would sustain the action, it is *248bound *to*uphold the judgment, even though it should he of opinion, that there was a slight preponderance of evidence against the finding.

Clinton, who was introduced as a witness on the part of Bloomer, testified; “ that he made an arrangement with Bloomer to send the raft down the Mississippi river for sale on witness’ account, that Bloomer agreed to advance in contemplation of a sale, that the raft was to be sent down the river at the risk and cost of witness, that the proceeds were to be applied first to pay the expenses of the raft, the amount of defendant’s debt and advances were to be paid out of the proceeds and the remainder to be paid over to witness,” that the hands on the raft were in witness’ employ, “that he was informed by Bloomer that he would send Johnson, the clerk, down the river with the raft for the purpose of 2naking the sale, that witness assented to this arrangement and agreed to pay Johnson $25, for his trouble, &e.” This evidence taken by itself, clearly shows that Bloomer had control of the raft, and that Johnson was his agent to make sale of the same. Bloomer was “ *to send the raft down the Mississippi river for*sale” on Clinton’s account, and the very fact, that the balance was stipulated to *a he paid*over” to Clinton, shows that the proceeds of the raft were not to he received by him. Mo man in possession of his own money, after agreeing to pay certain claims out of the same, would further stipulate with the claimants, that the balance should be paid over to himself. It is true that in another part of his evidence, Clinton says that Johnson was acting for him in the sale of the raft. In one sense it is true that both Johnson and Bloomer were acting for Clinton. He had put the 3'aft into Bloomer's hands to he sold on his account, and he might, therefore, well say that both Bloomer and his clerk were acting for him in making the sale; but if he meant to be understood as saying that Johnson was acting for him, otherwise than as the clerk of Bloomer, he was evidently mistaken, as such a statement would contradict the substance of' the transaction, as he had previously stated it. Johnson testified “that he considered himself as the agent of Clinton in selling the raft, paying off and discharging the hands, and accounting for the a-esidue of the proceeds after paying Bloomer’s debt and advances, and that he was Bloomer’s agent only to secure his debt and advances out of the proceeds of the raft.” What Johnson may have eon*249sidered cannot alter the real character of the transaction as shown by the other evidence in the cause. In a previous part of his testimony he had stated an agreement between Clinton and Bloomer that he should go down the river and make sale of the raft, and Clinton states that Bloomer informed him that he, Bloomer, would send Johnson to make the sale. By what process he was transformed from Bloomer’s clerk, into Clinton’s agent, is not very apparent from the record. At all events a verdict that the raft was placed under Bloomer’s control to be sold, and that Johnson was his agent to make the sale, is not so manifestly against the evidence, as to call upon the Court to set it aside.

Assuming then, in accordance with the finding of the jury, that Johnson was Bloomer’s agent, and as such authorized to sell the raft, it is clear that his principal is liable for his acts in and about such sale.

It was decided when this case was here before, 11 Ills., 177, that if Johnson had authority to make the sale to Denman, he had authority to rescind it, and it follows as a necessary consesequencc, that when such sale was rescinded, his principal became liable to refund the money which had been paid upon it, in an action for money had and received; 1 Ch. Pl., 356; Towers *v.*Barrett, 1 Term R. 133; Gillet *v.*Maynard, *5*John., 85.

The 1, *2,*3, 4 and 7, instructions given to the jury in behalf of the plaintiff below, have also been objected to.

The principles of law involved in the first and second instructions, have been substantially settled in disposing of the main question in the case. The third lays down the proposition, that a party is not permitted to deny the truth of the representations of his duly authorized agent about the subject matter of his agency, upon the faith of which another has acted. Of the correctness of this proposition there can be no question. Story on Agency, sec. 134.

The fourth instruction asserts no principle of law not recognized by the previous ones.

The seventh instruction, although it contains a correct proposition of law, was inapplicable to the case, and ought for that reason, to have been refused; but we do not thinkthe jrrcould have been misled by it, particularly when considered in connection with the fourth instruction, given on behalf of the defendant.

*250The refusal to give the first and fifth instructions asked by defendant, is also alleged as error. These instructions contain correct propositions of law so far as they go, and yet we can readily perceive how they might have misled the jury if given. Clinton may have been, and was in fact the general owner of the property, and Johnson might be regarded in one sense as his agent in selling the raft, although Bloomer may at the same time have had a special property in the raft, authorizing him "to sell and control it, and Johnson may have been his clerk for that purpose.

Had these instructions excluded the idea that Bloomer had a special property in the raft, and that Johnson was also his agent in making the sale, it would clearly have been error to have refused them. The authorities referred to by appellant’s counsel clearly show, that in a case of such a character, to authorize a recovery in an action for money had and received, a privity of contract must exist between the parties, and .there would be none in the case supposed.

*Judgment*affirmed.