Sheldon against Paine

Sheldon against Paine. The sheriff is not discharged from liability for the acts and omissions of his deputy in consequence of the interference of a party to divert the deputy from the line of duty imposed by law, unless the deputy follows or undertakes to follow the instructions of the party so interfering. Where therefore the plaintiff, in an execution, authorizes a deputy sheriff to give credit for goods purchased at the sale upon receiving indorsed notes, payable in a particular manner, the sheriff is responsible for the value of goods sold by the deputy upon credit, without any security. The testimony of the deputy is not admissible to contradict his return on the execution. Such return, though made by the deputy, is the act of the sheriff, and conclusive between him and the plaintiff of the amount of money made on the writ. Appeal from the supreme court. Action against the " sheriff of Washington for moneys alleged to have been collected upon an execution in favor of the plaintiff. Upon the trial at the Rensselaer circuit before Mr. Justice Habéis and a jury, the plaintiff- proved a judgment and an execution thereon, with a return signed by one Meecham, the defendant’s deputy, that he had made $660.95; of which $500, it was admitted, had been paid over to the plaintiff. The defendant proved by the deputy Meecham, under exception by the plaintiff, that Meecham had charge of the execution; that after he had made a levy and advertised the property for sale, one Root came to him as agent of the plaintiff, and exhibited to him a paper signed by the plaintiff to this effect: “Mr. Root will report himself to the sheriff, Mr. Meecham. I wish Mr. Root to take good care that property is not sacrificed, and bid off such article^ for my benefit as he may think advisable. The sheriff may give 3 mo. credit on all amounts over $50, and 4 mo. on all sums over $100, for good indorsed notes at the Bank of Whitehall.” It also mentioned Messrs. Gibson and Davis as persons whom he had requested to see to the matter of the sale in his behalf, by letter not then answered, and continued if “Mr. Gibson or Davis will give this matter their attention and watch my interest, any reasonable bill for such service will be paid.” Meecham further testified, that in pursuance of the authority of this paper he sold goods to the value of $75 to one Gilmore, and took his note without any indorser, esteeming him amply responsible. He also sold goods to Davis, and to Burdick, the defendant in the execution, to the amount of $85.95, understanding from both that Burdick bid on behalf of Davis; he had not received payment for these goods when he made the return. It was proved by Root that he took the paper before mentioned, and exhibited it to Meecham as evidence of his (Root’s) authority to bid in behalf of the plaintiff, without any instructions to deliver it to him, and that it was retained by Meecham without his consent. Root gave no direction, to give credit on the sale. The judge nonsuited the plaintiff, on the ground that by his instructions to the deputy to depart from his duty and give credit, the latter ceased to be the servant of the sheriff and became the agent of the plaintiff, and that by his departure from the terms of the authority, the deputy made himself liable to the plaintiff but did not revive the liability under which the sheriff would have been in the absence of the plaintiff’s interference. The judgment was affirmed at general term in the third district, and the plaintiff appealed to this court. N. Hill for the appellant. A. Taber for the respondent. [MAJORITY — Ruggles, Ch. J.,] Ruggles, Ch. J., delivered the opinion of the court. The return endorsed on the execution is conclusive between the plaintiff and the sheriff for the purpose of showing the amount of money raised by the officer on that writ. The return, although made by the deputy in the sheriff’s name, is the act of the sheriff, and when the question comes up directly between one of the parties to the execution and the sheriff, the latter is not permitted to gainsay it. (Townsend v. Olin, 3 Wend., 207; Gardner v. Hosmer, 6 Mass., 327; Harris v. Small, 22 Maine Rep., 14; Purrington v. Loring, 7 Mass., 392; Doly v. Turner, 8 Johns., 20; Barret v. Copeland, 18 Vermont Rep., 69; Paxton v. Stickel, 2 Barr, 93.) The evidence given by the deputy went substantially to impeach the truth of the return ; and, having been objected to, should have been excluded. The plaintiff was nonsuited on the trial, on the ground that by giving authority to the deputy to sell on a credit, he made the deputy his agent and released the sheriff from liability for his acts or defaults. The deputy was authorized to give three months credit on all amounts over $50, and four months on all sums over $100 for good endorsed notes payable at the bank of Whitehall. But the deputy neither acted in the line of his duty, as prescribed by law, nor did he obey the directions, or act within the authority given him by the plaintiff. It does not appear that the goods sold by the deputy to Gilmore, Davis and Burdick, respectively, were sold on a credit of three or four months in pursuance of the plaintiff’s authority, or that they were sold on a credit at all. These purchasers were permitted to take away the articles they purchased without paying for them; but there is no evidence that a credit was to be given by the terms of the sale, or by any agreement made at the time of the sale. The deputy testified that he could not tell what terms of sale were announced, or whether any terms were mentioned. If no terms were announced and no agreements made to give time, the sales were certainly not on credit; and yet the deputy delivered the goods without receiving the money bid for them, and without receiving the endorsed notes required by the plaintiff as the condition on which he might sell on credit. The deputy, moreover, delivered the goods purchased. by Davis and Burdick without obtaining payment, against and in violation of the direction repeatedly given by Boot, who is acknowledged by the deputy in his letter of October 1, to have been the plaintiff’s agent at the sale. The plaintiff is not answerable for having made the deputy his agent, when in fact the deputy did nothing in conformity with his instructions. He was certainly not the plaintiff’s agent for the purpose of selling for cash and then parting with the property without requiring payment of the money. Nor was he the plaintiff’s agent to sell on credit, except on the condition of taking endorsed notes for the amount purchased. The taking of such notes was the only condition on which he was authorized by the plaintiff to depart from the line of his legal duty by selling on credit! In Gosham v. Gale (6 Cow., 467, and 7 Cow., 739), the deputy followed the instructions given by the plaintiff and the sheriff was held to be discharged from liability on the ground that the plaintiff had made the deputy his agent. In Corning v. Southland, sheriff, &c. (3 Hill, 552), the deputy failed to comply with the terms on which he was authorized by the plaintiff’s attorney to let an execution lie over beyond the return day, and the sheriff was held responsible for not having returned it. For the purpose of discharging the sheriff from liability for the acts of his deputy, it must be shown not only that the plaintiff directed the deputy to depart from the line of. duty imposed by law, but that the deputy followed or at-least undertook to follow the directions given. He cannot otherwise be regarded in any respect the agent of the plaintiff. In the present case he appears to have paid no regard-to the plaintiff’s instructions and therefore the sheriff is responsible. Judgment reversed, and a new trial ordered, with costs to' abide the event.