Couch, C.J (who, after stating the facts, continued).— Taking the facts as stated, the case is really this. The defendant not being entitled to have delivery of the goods until he had paid for them, procured the delivery from Madhub Chunder Sircar, in a manner which he knew was not authorized by the plaintiffs, without the order of the firm, which it is found was not given, and which he knew ought to have been given. Having so obtained the goods, he makes a payment to Madhub Chunder Sircar, knowing that he was not the person who ought, according to the usage of the plaintiffs' office, and the way in which they carried on their business, to have received the money. We think this is not a case to be decided according to technicalities, as in an action for goods sold and delivered, and upon the plaintiffs adopting the act of their sircar. The substantial question is, ought the defendant, having got the goods, to avail himself of a payment for them, made in a manner in which he knew it ought not to have been made. We think that he ought not. The plaintiffs are entitled to be paid for the goods which he has taken delivery of, and it is immaterial in which form of suit they recover the money. It is only necessary to answer the first question which has been put to us, that the payments made to Madhub Chunder Sircar were not payments to the plaintiffs.
The plaintiffs will have judgment to recover the balance claimed, with costs of stating this case for the opinion of this Court, and otherwise arising out of or connected therewith.
Attorneys for the plaintiffs: Messrs. Berners, Sanderson, and Upton.
Attorney for the defendant: Baboo Gunnesh Chunder Chunder.