Bliss v. Bliss. him as a commission merchant. This brought home to the defendants, knowledge not merely of the general fact that he was a commission merchant-their clerk knew him as commission merchant or broker-but it pointed out the transaction itself as made with him in that capacity. Under all these circumstances, the defendants must, we think, be held to have known when they purchased the plaintiffs' goods, that they were not purchasing from the owner; that they were dealing with one who was acting as broker, factor, or agent, in making the sale. And if actual knowledge is not to be conclusively inferred, it is doing violence to good sense to say that they had not reason to believe that he was acting in such capacity, and was selling the goods of some other person; and the testimony on the part of the defendants is not inconsistent with this. He did not state for whom he was selling, and so the defendants' clerk to whom he sold, did not know any other party; no other party was mentioned. He was known to such clerk as a commission merchant or broker; he had long been accustomed to deal as such; he had been selling for the defendants themselves in that capacity; he described the very sale in question, in the written evidence thereof given to them, as a sale by him as a commission merchant. Under such circumstances, we think the defendants are not entitled to apply the plaintiffs' goods to the payment of the agent's debt to them. For these reasons, we think that the chief justice properly instructed the jury to find for the plaintiffs, and that judgment thereon should be rendered for the plaintiffs for the amount of the verdict and their costs. ROBERTSON, J.-The defendants allege in their answer, by way of counter-claim, that one Noyes, a merchant doing business in the city of New York, sold to the defendants merchandize on a credit, and rendered a bill therefor, describing himself therein as a "foreign commission merchant," and, on the same day, bought of the defendants a Bliss v. Bliss. larger amount of merchandize, on the like credit; that Noyes did not disclose, nor did the defendants know, that he was acting for any other person; and that the merchandize sold by him was in his possession, and was so sold as his own. There was no allegation in it as to the character of the business generally done by him. On the trial, no evidence was given of the business generally transacted by Noyes, except by his testimony. He testified that he had been in business three or four years, and during that time had been a commission merchant; that he seldom did business on his own account, otherwise than as a commission merchant. On the subject of the possession of the goods sold by him to the defendants, he testified, that they had not been delivered to him, only a sample; and that he obtained the goods from the plaintiffs, after the sale, in order to deliver them. The bill was rendered with a heading specifying Noyes to be a foreign commission merchant. The goods claimed to have been sold by the defendants to Noyes, consisted of goods delivered by them to him to be sold by him as their agent, which he sold, and the proceeds of which he received and appropriated. The defendants knew the business of Noyes, and had frequently employed him as their agent to sell goods for them. If the case of Hogan v. Shorb (24 Wend. 458) contains the law of this State upon the right of a purchaser of goods, from an agent, to off-set a claim against such agent, every agent intrusted with goods to sell, can employ them. to pay his own debt, even if an antecedent one; notwithstanding, in all other cases, an antecedent indebtedness does not form a sufficient consideration to constitute a bona fide purchaser. That case carries the doctrine further than it is laid down by Lord Mansfield, in the case cited, of Rabone v. Williams, (7 T. R. 360, n. a.) In the present case, it does not appear which indebtedness accrued first; but in that case, the exception is admitted of knowledge by a purchaser, of the existence of a principal; of that knowledge the facts that the agent is a mere broker, that is Bliss v. Bliss. not intrusted with the possession of the goods sold, and not a factor in possession of them, or if such factor, that his sole business is as agent, are considered to be sufficient notice to the purchaser to put him on his guard. In this case, the inference from the facts in evidence appears to me irresistible, that the defendants had notice that Noyes was acting for another. They had previously employed him as an agent; their clerk, who made the purchase, knew him to be a broker, as he testifies. They even believed him to be irresponsible. He was not in possession of the goods when he made the sale, and could only have sold them by the sample which he had, as any other broker. He had always been a commission merchant, and the bill rendered by him stated that he was one. It was immaterial whether they knew for whom he was acting; they knew enough to put themselves upon inquiry. This principle is fully sus-. tained by the cases cited in the argument, of Waring et al. v. Favenck, (1 Campb. 85;) Baring v. Corrie, (2 Barn. & Ald. 137;) Moore v. Clementson, (2 Camp. 22;) Maanss v. Henderson, (1 East. 355;) Fish v. Kempton, (17 Man. Gr. & Scott, 687;) as well as the cases of Browne and others v. Robinson and others (Caine's Cases in Error, 341), and Gordon v. Church (2 Caine's T. R. 299), in our own courts. Whatever be the meaning of commission merchant, the non-possession of the goods deprived Noyes of the indicia of ownership which could alone aid the defendants. I concur with Justice WOODRUFF in his view of the instructions of the chief justice on the trial, and think judgment should be rendered for the plaintiffs, for their claim, undiminished by any off-set, and for their costs. Ordered accordingly. Harding v. Barney. JOHN HARDING, Plaintiff and Respondent v. Danforth N. BARNEY, as President, &c., Defendant and Appellant. 1. The defendant was sued as president of the joint stock association doing business under the name of Wells, Fargo & Co., to recover the amount of a draft alleged to have been bought by him of that company, on the 18th of March, 1856, at San Francisco, drawn there by that house on itself, payable at Boston, and alleged to have been lost. There was great doubt, upon the evidence, whether the draft was bought of this or of another house: One Burbank, who had been examined under a commission, testified that, on the 17th of April, 1856, he went to the banking house of Wells, Fargo & Co., at San Francisco, and applied to a man in the office for a duplicate of this draft; and to what the man then said. That he was again there, between the middle of June and 18th of September, 1857; saw Messrs. Bell & Washburn, two of the company's officers, and applied to them for a duplicate. They said their books did not show that such a draft had been given. He further said, "I examined such books as they showed me, and was not able to find any account of such draft. I stated to them that the man of whom I inquired in relation to the draft, several months before, informed me that such draft had been given, and that when he so informed me, he turned to some books in the office, and said that the books showed that such a draft had been given." 2. The court was requested to charge, that the jury had no right to infer from this evidence, that the man whom Burbank first saw, did, at that time, turn to some books in the office, or that he said the books showed that such a draft had been given. 3. The court refused so to charge, but charged that "Burbank's testimony does not, in terms and words, allege the fact that the clerk, on the first occasion when he called, examined the books, and said the draft had been drawn, &c., and it is for the jury to say how he is to be understood." 4. Held, that the instruction given was calculated to mislead and was erroneous, and entitled the defendant to a new trial. 5. Whether counsel have a right to specific instructions in relation to the sufficiency of designated evidence to justify an inference of material facts which are only collateral, and not directly in issue, quere? 6. Where the court, in such a case, gives specific instructions, they must be correct, or an exception to them will be sustained. (Before WOODRUFF, MONCRIEF and ROBERTSON, J. J.) Heard October 2, decided November 10, 1860. APPEAL, by the defendant, from a judgment for the plaintiff, on the verdict of a jury; and also, an appeal from an order at special term, denying a motion for a new trial. Harding v. Barney. The action was tried on the 20th day of October, 1859, before Mr. Justice SLOSSON and a jury. It was brought against the defendant, as president of a joint stock company or association, doing business under the name of Wells, Fargo & Co., at New York, Boston, San Francisco and other places, as carriers of goods, money, gold dust and other property, and selling drafts or bills of exchange, drawn upon themselves, payable at New York and Boston, to recover the sum of $3,300-the amount of a draft or bill which the plaintiff alleged he purchased from them, at their office in San Francisco, on or about the 18th of March, 1856, drawn by them upon themselves, payable to the order of the plaintiff, at sight, at the office of the company at Boston, and for which draft he paid to them the sum of $3,366. The plaintiff alleged that he lost the bill so purchased, while returning from San Francisco to Boston; that it had never been indorsed by him, and that he believes that the same is wholly destroyed. That on or about the 10th of June, 1856, he demanded the said sum of $3,300, of the defendants, at their office in Boston, and offered to indemnify them by good and sufficient indemnity against the said bill. Upon the allegation of these facts, the plaintiff demanded judgment for the sum of $3,300, and interest from the 10th of June, 1856. The answer admitted that the defendant was president of the joint stock company or association named, and that their business was in substance as stated in the complaint; and the answer denied all the other allegations. On the trial, the proofs on the part of the plaintiff tended to show that, on or about the 18th March, 1856, he then being in San Francisco, had in his possession upwards of $3,300 in gold; that being about to return to the State of Maine, he went to the office of Wells, Fargo & Co., and purchased a draft upon the same association or company, payable to the order of the plaintiff at their office in Boston, for the sum of $3,300, and paid therefor a premium of two per cent., or in all $3,366. That on reaching the Isthmus of Panama, the plaintiff, during a riot there, was robbed of |