Jones

The findings show that the defendant Hanna, while acting as executrix of the last will of Peter N. Hanna, deceased, procured an order of sale of personal property belonging to the estate. On the day of *508 the sale she entered into an agreement with the plaintiffs that they should buy the property offered for sale “for her account and risk,” and advance the purchase price; that she would pay them two and one half per cent commission on the amount of the purchase, and five per cent on the amount of sales they might thereafter make. She further agreed to “ guarantee them against loss or damage,” give them possession of the goods until other security was furnished, and pay them interest on the amount advanced at the rate of nine per cent per annum. In pursuance of this agreement the plaintiffs purchased the goods for her benefit, using the name of one Haynes as purchaser. Plaintiffs thereupon removed the property from the place of sale to defendant Hanna’s store, and began to sell the same for her benefit.

On the thirteenth day of September, 1883, and while the greater portion of the personal property so purchased was at the Olay Street store undisposed of, plaintiffs required of…

I dissent. In this case I adopt the opinion of the commission, drawn up by Commissioner Vanclief, and concurred in by Belcher and Foote, commissioners, when the case was before Department One of this court, as a clear and correct exposition of the law applicable to it. That opinion is as follows: —

I add the following: The property which was to be sold and bought, and as to which the plaintiffs contracted herein, consisted, as described in the letter addressed to the plaintiffs, and signed “Mary L. Hanna” (which the court below found was the only contract entered into between the parties), of “the stock, fixtures, etc., of the firm of I. & P. N. Hanna.” In another letter addressed by same to same this property is described as the “entire stock, furniture, etc., of the firm of I. & P. N. Hanna.” It is nowhere found that this property, belonging “to the firm of I. & P. N. Hanna,” was the property of I. N. Hanna, or that I. N. Hanna was “I. & P. N. Hanna,” nor can this court assume them to be the same.

It would be going very far, and a bow-shot beyond the decided cases, to hold that a purchase by the executrix of I. N. Hanna, at public auction, of the property of the firm of which…