BRAYTON, J.
This is an action of replevin, brought to recover ninety-three bales of prints, which the plaintiff claims were sold to him, on the 31st of August, 1861, by the firm of Daniels Sayles, through Welcome B. Sayles, a partner of that firm. One of the defences set up was, that prior to that time, viz., on the first day of April, 1861, these goods were sold by Dan. A. Daniels, the other partner, and agent of the firm, to one Tyler Daniels. In support of this defence, the defendants offered the said Dan. A. Daniels and Lebbeus J. Gaskill, both of whom testified to the sale on that day, to be paid for at six months, by retiring the notes of the firm, endorsed by Tyler Daniels, for the sum of $3000, and to pay the balance of the stipulated price in cash; that an order for the goods was drawn upon Wheatons Whitford, in whose store the goods then were, and delivered to said Tyler Daniels, with a bill of sale of the goods. Said Daniels also swore, that soon after the sale he informed said Wheatons Whitford that the goods were sold to said Tyler Daniels. Elijah B. Newell, another witness, testified, that Tyler Daniels, on the next day, informed him of the terms of the contract, put into his hands the bill of sale and the order, and requested him to see the terms of the contract performed on his part, and that he did so perform them. This performance was also sworn to by Dan. A. Daniels. It did not appear that Tyler Daniels ever delivered the goods to Wheatons Whitford, or demanded of them the goods.
Upon this evidence, the Judge charged the jury, that if they believed that the sale of the goods was made on the first day of April, 1861, as sworn to by Lebbeus J. Gaskill and Dan. A. Daniels, and carried out, as testified to by said Daniels and by Elijah B. Newell, there was an end of the plaintiff's case, and they must find that the plaintiff did not own, or have the right of possession of, the goods, at the time he replevied them. This charge is objected to as erroneous, and is made the ground for a new trial; and the objection is, that the facts sworn to by the witnesses referred to are not sufficient to bind the plaintiff.
The objection is not that a contract of sale was not made, — that all its terms were not performed by the vendee, — that anything remained to be done in order to put the goods in a condition for sale, or to identify them, or to distinguish them from others, or, in fact, that it was not a completed sale, upon the making of which, the property passed, as between the vendor and Tyler Daniels the vendee, without a delivery; but the objection is, that the testimony referred to did not show a delivery of possession to said Daniels, which the plaintiff claims to be necessary, in order to avoid a subsequent sale to a bona fide purchaser without notice, as he claims to be. "In general, where there is a completed sale," says Professor Parsons (1 Parsons on Cont. 442), "the retention of possession by the vendor is a badge of fraud;" requiring, as against a subsequent bona fide purchaser without notice some explanation. If the second purchaser shall have put himself in a better situation than the first, in having the possession delivered to him, he might require this explanation. Without this, he leaves the first vendee with the prior right, and can no more avoid a prior sale completed than he could a subsequent one, and for the same reason.
In this case, however, upon the testimony referred to, the vendor did not remain in possession. The goods were, at the time of sale, in the warehouse of Wheatons Whitford, where they had been for a long time. A written order for the delivery of the goods was, at the time of the sale, given to the vendee, giving him the power to take them when he chose, — the vendor giving up all control over them. Had the delivery order been presented, and possession demanded by Tyler Daniels, the vendee, no question could have been made that his title was not perfect against all the world. The vendor, however, did more; he gave notice to the depositary that he had sold the goods, and that they were now the property of Tyler Daniels, and not of Daniels Sayles. More than this he could not well do; nor could more be well required to negative the fact that the vendor remained in possession.
Certain evidence offered under the first defence set up by the defendants was, at the trial, objected to. That which is stated in the fifth exception is, the evidence of witnesses who swore to the contract of sale by which the title to the goods is claimed to have passed to Tyler Daniels. To rule out such evidence would be to rule out the defence, and clearly that could not be.
The testimony of Elijah B. Newell, as stated in the sixth exception, was objected to as hearsay, so far as he stated the terms of the contract, which he swore he knew only from Tyler Daniels. The witness was not offered to prove the contract of sale. He was desired, as he testified, by Tyler Daniels to act for him, and carry out the terms of the contract made with the firm; and that he might know what his agency was to be, Daniels stated to him what the terms of the contract were. This was not only admissible, but was necessary. It was part of the res gestae, defining the extent of the agency.
The second ground of defence was, that at the time when, as the plaintiff testified, the sale was made to him by Welcome B. Sayles, Sayles had no power to sell the goods of Daniels Sayles, — the sole right being confined to Dan. A. Daniels, the senior partner of the firm, — and that this want of power in Sayles was known to the plaintiff. This defence required of the defendant to prove, that it was agreed by the members of the firm that Daniels should have the sole power of sale. No question was made at the trial, nor is now made, nor can there be any doubt that such agreement may be implied from circumstances, as well as proved by express words. It may be implied from the conduct of the partners for a series of years; from the fact that Daniels had exclusively conducted the business of the firm; that Sayles had not assumed to act in the business, but by the special permission of Daniels and under his direction; that at no time did he question Daniels' power, or the extent of it, though necessarily he must know, since the business was done, that it was done by Daniels; and from his silence under such circumstances, that if no such understanding existed, he would be likely to call Daniels' authority in question. It might even be proper to show any reason, existing or expressed by the partners, why it was not desirable or desired that it should be otherwise, as that Sayles had little or no interest in the concern, while the interest of Daniels was large. All this would also be admissible, in corroboration of the testimony of Dan. A. Daniels and James A. Daniels, who swore, that at the formation of the copartnership, it was so expressly agreed. It was not necessary to the admissibility of this evidence, that it should be first proved that the plaintiff was present at any of the transactions, or knew of them at the time they transpired, though it would be necessary to prove, before the plaintiff could be affected by it, that he did, before the 31st of July, 1861, know that Sayles had no power. It would be sufficient that this proof was submitted at some time during the trial. Neither was it necessary, in order to prove the exclusive conduct of the business by Daniels, first to prove that Sayles had assented. That was to be implied from such exclusive conduct and Sayles' silence, knowing this, and neither acting himself nor objecting to the acting of Daniels.
Much of the testimony offered by the defendants, under the second defence, was objected to at the trial, and made the subject of the first, second, third, fourth, seventh and eighth exceptions in the plaintiff's motion for a new trial. In the view which we have suggested, we do not perceive how any of the evidence thus objected to could have been properly ruled out. Elliott's testimony, the subject of the first exception, was, that at the commencement of the business Daniels consigned the goods to the witness for sale; that he afterwards allowed Sayles to sell for a time, but withdrew the goods from him when dissatisfied with his conduct about the sales, and from this time, Daniels only sold the goods. Dan. A. Daniels and James A. Daniels, by their testimony, confirmed the evidence of Elliott; they having also testified that it was expressly agreed that Daniels should be the managing partner. This was the subject of the second exception. The evidence objected to, as stated in the seventh exception, is, that of Dan. A. Daniels, who testified that Sayles being unable to contribute thereto, he, Daniels, took up a prior mortgage upon the property of the firm, and, for the same reason, foreclosed the mortgage. The eighth exception is an objection not to any particular testimony, but to all and any evidence of individual acts of Daniels as one of the firm of Daniels Sayles. Now, all this testimony went to show what was properly admissible — that Daniels actually conducted all the business of the firm, and controlled it all, — whether buying or selling, — and that Sayles did no act except under the direction of Daniels. These several exceptions must be overruled.
There are two other exceptions to testimony offered under the second defence, viz., the third and fourth. The third is to the testimony of James A. Daniels, that he made up from the books of the firm an account showing the state of the accounts between the partners, which showed a large balance against Sayles, and produced the account. He had sworn, that in the month before the making of this account, Sayles had seen and examined the books from which the account was drawn off. It had also been proved, that the firm was insolvent. Sayles, unable to contribute to the payment of the debts, had been informed, upon his enquiry, that all the goods had been sold, being the goods in question in this case. This state of the accounts in books kept by the actually managing partner, presumed to have been seen by and known to Sayles was apparently admitted, and was certainly admissible, to show that Sayles had no such interest in the firm as to make it desirable for him to act as a managing partner. Its tendency, by Sayles' silence, is to show more: that he objected to no acts of Daniels as agent, nor expressed any desire to act himself.
The fourth exception is to the testimony of Dan. A. Daniels, that Sayles told him he was going away, and was anxious to retain his interest in the concern, and that this was the reason there was no dissolution of the firm, and that he, Daniels, had paid all the debts of the firm. Sayles said more at this time, — that he was going away and needed all his means. This was properly admitted to show the little pecuniary interest that Sayles had in the firm; that there was no reason why he should act, or that he should desire to act, and that he expressed no such desire. This exception, also, must be overruled.
In the argument of the motion for a new trial, other objections to the charge, as delivered, were made; but as they were not in the motion set down as grounds of new trial, we should be travelling out of the record now to consider them, even if we were inclined to sustain them.
Upon the whole, we are of opinion that no sufficient ground is shown for a new trial in this case, and the motion must be denied, with costs.