Appellants' Points. The plaintiffs also excepted to the following findings of fact and law: That said contract of sale was made by one Charles L. Foxwell, acting for and on behalf of the plaintiffs. That said coal was delivered to defendants' firm a day or two before the 26th of September, 1868, and the same was delivered by Foxwell, who held the shipper's receipts for said coal, and which receipts he delivered to the defendants. That said Foxwell received and accepted the check of the defendants in payment of the bill of said coal. That said check was duly paid by the Merchants Bank, and the amoun. thereof charged to the account of defendants, and said check returned to them by said bank. That the acts and doings of the plaintiffs in the premises were such as to induce the belief on the part of the defendants that said Foxwell was a member of said firm, or duly authorized to act for them in the collection and receipt of bills. That said Foxwell was authorized and empowered by plaintiffs' firm to collect and receipt bills in the name of their said firm and to receive payment of bills in checks drawn to the order of plaintiffs' firm. That the coal sold and delivered to defendants' firm, and to recover which this action is brought, was paid for by the defendants prior to the commencement of this action. That the defendants are entitled to judgment and for costs of this action. Mr. W. W. Goodrich for appellants. The court admitted evidence of a transaction between Smith and the plaintiffs, of which the defendants had no knowledge at the time of defendants giving Foxwell the check, and which could not have influenced the defendants' action. Such admission was erroneous, as was also the refusal of the court to find that defendants had no knowledge of this transaction. The request to find that Foxwell acted as a broker was clearly proven. Foxwell was a broker, and as such sold the coal. Appellants' Points. The refusal to find that the check was not delivered by defend ants to Foxwell till a day after he gave them the shipping receipt was error. It was material to the plaintiffs' case that the fact should be found whether Foxwell made and delivered the bill to defendants without the knowledge or authority of plaintiffs. Also the refusal to find that the plaintiffs never accepted defendants' checks. This was material to show that no payment was actually made to the plaintiffs. So the refusal of the court to find that the indorsement of the check was a forgery, and that the indorsement was made without their knowledge, and that Foxwell had no authority to collect bills for the plaintiffs, or to make out or receipt their bills. The court refused to find that Foxwell had no connection with the plaintiffs except as broker; the fact was clearly proven, and the only question was whether the court should have found that fact. The court was requested to find that the delivery of the check to Foxwell was not a delivery to the plaintiffs so as to entitle them to recover of the bank. The court was bound to find that fact affirmatively in order to sustain its finding of law that the defendants had paid the plaintiffs' claim. There is no proof that the check was ever paid by the bank, even to Foxwell, and the court refused to find that there was no such evidence. The defendants proved that the purchase was made of the plaintiffs. The receipt produced by them shows the same fact. It can make no difference that the defendants gave a check to the order of plaintiffs. No authority is shown in Foxwell to receive it. On the contrary, it is distinctly disproved by plaintiffs' evidence. The money was due from the defendants to the plaintiffs. The only question, therefore, is, has the debt been paid? The only claim of payment is, that the payment was in the check given to Foxwell. A broker has no authority to receive payment for property so sold; his duty ends when he has made the bargain (Story on Agency, § 109; Higgins v. Moore, 34 N. Y., 417, 424; Easton v. Clark, 35 N. Y., 225). The principal was known to the defendants, who received a bill Respondents' Points. in the plaintiffs' name and gave a check to plaintiffs' order. They dealt with an unauthorized person at their own peril. It is claimed that Foxwell had authority to collect the bill on the ground that he had the muniments of title. The delivery of the check to Foxwell was not a delivery to the plaintiffs. He was not their agent for that purpose. They have not ratified or adopted his action, and it never came to their possession, or to the possession of any agent of theirs. A principal is bound by the acts of his agent only so far as the agent is acting in the course of his employment (Weisser v. Denison, 10 N. Y., 6 Seld., 68). The taking of the note or promise of the defendants to pay is not a discharge of the debt, unless the plaintiffs agreed to take it as such (Fobey v. Barker, 5 Johns., 68; Murray v. Gouverneur, 1 Johns, Cases, 440). The giving of a check, even to the plaintiffs themselves (much less to an unauthorized person), is no payment of a debt, unless the check be paid (People v. Howell, 4 Johns., 296, 304). The defendants have their right of action against the bank, and it is undoubted. They directed the bank to pay Wm. II. Talmage & Co., or order; the bank paid on a forged indorsement; and that this is no defense to an action by the defendants (Weisser v. Denison, 10 N. Y., 68). Mr. John E. Burrill for respondents. The findings of the court on the questions of fact involved are not only warranted by the evidence, but, like the verdict of a jury, are conclusive upon this appeal. Should the court on this appeal examine the evidence, it will see that the findings of the court are fully warranted by the evidence. The contract for the sale of the coal was made at the office of the plaintiffs by Foxwell, who was there present and in charge, and acting as one of the firm. Foxwell held the shipping receipt of the coal, which was delivered on board the Florence, and a bill and receipt. Foxwell was in fact acting in behalf of the plaintiffs, and kept their books at the time of the transaction. He oc Opinion by FREEDMAN, J. cupied a desk behind the railing the same as a partner; made sale of coal and collected the bills therefor, used the billheads of the plaintiffs, and received checks payable to the order of the plaintiffs, which were indorsed by Foxwell in the name of the plaintiffs and deposited to their account. When the check in question was given to Foxwell, he delivered the bill, shipping bill, and receipt. The principal is liable for the acts of the agent even in excess of the actual authority conferred upon the agent, provided such acts be within the scope of the apparent authority, and be such as an innocent third party, from the recognized acts of such agent, had a right to infer such agent was authorized to do (Dunny v. Roberts, 35 Barb., 463; Brindenbecker v. Lowell, 32 Barb., 9). The principle contended for by plaintiffs, that a mere broker has no implied authority to collect, has no application to this case, because here Foxwell was not a mere broker, but was intrusted with the possession of the evidences of title to the property and to the money to be paid, and also because it is shown that the acts of Foxwell in collecting and receiving payment of bills were known to be recognized by the plaintiffs. The cases referred to, that a check does not operate as payment unless expressly agreed to be received as payment, have no bearing, because in this instance the check was paid at bank by defendants, and they have parted with their money. And again, the check is not in the possession of the plaintiffs, but has been by their agent disposed of. By the Court: name. FREEDMAN, J. The general doctrine undoubtedly is, that a broker employed to sell has no authority as such to receive payment, for the reason that he has no authority to sell in his own The duty of a broker, in general, is ended when he has found a purchaser and has brought the parties together, and evidence of a local usage, allowing mere brokers to receive payment in certain cases, is not admissible for the purpose of establishing Opinion by FREEDMAN, J. authority in such brokers to receive such payment. But the plaintiffs in this case cannot, in my judgment, invoke the application of these general rules for their benefit. The evidence shows that Foxwell was more than a mere broker. He seems to have had general charge of the office of the plaintiffs at the time the clerk of the defendants purchased the coal there; he was behind the railing in plaintiffs' office in the same manner, as a member or clerk of plaintiffs' firm, and one of the plaintiffs testified that he had that privilege; he effected the sale in plaintiffs' name without disclosing that he acted as a broker merely, and the sale was made openly in a business manner and in the presence of other persons; the next day Foxwell called at the office of the defendants and procured the name of the vessel, on board of which the coal was to be delivered; the coal was delivered accordingly; after that he brought the company's receipt for it, the bill of lading, and the bill for the price made out on one of the blanks with a printed billhead usually used by plaintiffs' firm for that purpose, to the office of the defendants and finally demanded and received the money. Up to this moment the defendants neither knew nor suspected that they were dealing with a broker; they had had no previous acquaintance or previous dealings either with the plaintiffs or with Foxwell; they, therefore, had every reason to believe, and I cannot doubt that they did believe, that Foxwell was either a member of plaintiffs' firm, or at any rate an agent clothed with general authority, and consequently did not hesitate to give him their check payable to the order of the plaintiffs, for which he signed a receipt in plaintiffs' name. Thus it will be perceived that Foxwell not only negotiated the sale behind the railing in plaintiffs' office, but that subsequently he had the possession of the evidences of the title to property as well as to the money to be paid, and as his acts up to the time of payment including the presentation of the bill for the price had apparently been ratified by the plaintiffs in every particular, the defendants were justified in dealing with him as if he was authorized to collect bills and receive payment, and after having done so as innocent parties, the |