Martin vs. Moulton, 8 N.H. 504

Parker, J. The delivery of the stoves to Hemphill, to sell, did not change the property. They were still the goods of the plaintiff. The circumstances under which they came into the possession of the partnership do not distinctly appear. The defendant cannot avoid this suit, upon the ground that the partnership may have purchased the stoves of Hemphill, who was the plaintiff’s agent, or factor, and that when they subsequently made sale of them the money received was the property of the partnership.

Hemphill, being factor, could not sell the stoves to himself, and for the same reason he could not make a valid sale of them to the firm of Hemphill & Moulton, which would be a sale to himself and another. 2 N. H. R. 225, Currier vs. Green; 3 N. H. R. 144, Perkins vs. Thompson. Nor could Hemphill pledge the goods. Payley on Agency 174; 2 Strange 1112; 7 D. & E. 606; 5 Ves. Jr. 211. If, instead of selling or pledging the goods, he deposited them among other goods of a firm, of which he was partner, the partnership could thereby gain no greater right than by a sale or pledge.

If, then, the stoves came into the possession of the partnership, and were sold by the firm, the plaintiff has a right to affirm that sale, and claim the proceeds, unless the partnership had accounted to Hemphill before any demand by the plaintiff, which has not been suggested.

And it may well be doubted whether such accounting with one partner would exonerate the partnership: for Hemphill, one of the partners, had knowledge that the goods belonged to the plaintiff, and this might be sufficient to charge the partnership with the doty of accounting for the proceeds with the plaintiff, even if the defendant had no express notice. 20 Johns. 421, Buckley vs. Packard & a.; 7 Taunt. 403, Wells vs. Ross; 12 Mass. 183, Chickering vs. Hosmer. In Buckley vs. Packard, the plaintiff, a merchant in New-York, consigned goods to the master of a vessel, bound to Havana, for sale.

The master, on his arrival at Havana, delivered the goods to the defendants, commission merchants there, for sale — held, that the master, having no authority to pledge the goods for his own account, the defendants by receiving the goods, with knowledge that they belonged to the plaintiff, became substituted as factors, in place of the master, and were accountable for the proceeds to the plaintiff, and could not retain them for any advances made by them to the master, or for a balance of an account arising from transactions between them and the master. New trial granted.