To the point that there had been a conversion of the lumber by the defendant, cited 9 Bac. Ab. 630, Title, Trover; McCombie v. Davis, 6 East, 538; Hill v. Davis , 3 N.H. 384; Porter v. Foster, 7 Shep. 391; Powell v. Hoyland, 2 Eng. Com. L. & Eq. 362; Hyle v. Gray , 11 Ala. 233; Harris v. Saunders, 2 Strob. Eq. 370; Young v. Marshall, 8 Bingh. 43; Cummings v. Verce, 3 Hill, 282; Pierce v. Hill, 9 Porter, 151; 5 Denio, 370; 1 Mo. 430; 7How. Pr. R. 278.
Even if Strong was acting merely as an agent, Brannan is liable for the money, because he paid the agent after a demand made upon him by the principal. Moore v. Clementson, 2 Campb. 22. Gardiner v. Davis, 2 C. & P. 49. Hagan v. Short, 24 Wend. 458; Maanss v. Henderson, 1 East, 335. Baring v. Corrie, 2 B. & Ald. 137.
JUDGES: Heydenfeldt, J., delivered the opinion of the Court. Murray, C. J., concurred.
OPINION
HEYDENFELDT, Judge
There was no privity of contract between the plaintiff and defendant. The latter purchased from Strong and knew him alone, and this cannot be relieved by a mere notice from the plaintiff that the lumber belonged to him. The notice at least recognized the right of Strong to sell the lumber, and so does the form of the action. Pro tanto, Strong was the agent of the plaintiff without having disclosed his agency, and was entitled to collect the purchase price. The mere notice of Argenti to the defendant was insufficient to interrupt the completion of the performance of the contract. The defendant had the right to disbelieve it and disregard it. He had assumed a liability to another. His duty was to fulfil it, unless legal steps had been taken to prevent him.
Judgment reversed and cause remanded.