GOULD v. BLODGETT

Bingham Aldrich, for the defendant. It may be questionable whether the agent could sell and convey the rake in question, the price to be applied on his own indebtedness, and pass title; and the other questions raised being so clearly decisive of the case in favor of the defendant, we will not discuss that point, at the same time we do not waive it.

I. An undisclosed principal cannot repudiate so much of the unauthorized sale as relates to the application of payment made by his agent, and ratify so much thereof as relates to price. There was no contract for credit; there was no promise to pay — by the terms of the sale (which it is claimed was unauthorized) the article was paid for: and the undisclosed principal cannot, by ratifying one side of the transaction, create a privity between himself and the defendant as to a sale on credit. Story Agency, s. 250; Webb v. Cole, 20 N.H. 491.

II. But while a principal cannot create a contract between him; self and a buyer, he may ratify an unauthorized transaction of his agent, and thereby bind himself and make the previous acts of the agent his own. Story Agency, ss. 252-260; Cushman v. Loker, 2 Mass. 105; Hatch v. Taylor, 10 N.H. 538; Frank v. Jenkins, 22 Ohio St. 597. The agent was to sell on credit, taking good notes running to Stoddard Co., which were to be turned over to the plaintiff when obtained. The sale in question was in June, shortly after the agency commenced. In September, long after the business of the agency was at an end, the plaintiff and his agent met and had a settlement of all their business, and at this time the plaintiff knew that Quimby had sold or delivered the rake not taking good notes; and the plaintiff then and there made an adjustment of the claim by including it in a settlement with other items, and charged it to Quimby as so much due on settlement. Unquestionably he had the right so to do, and having acted in the premises, he thereby ratified the sale of the agent, or, in other words, waived whatever right he may have had, if any, to proceed against the buyer. The grounds for treating this as a waiver are much stronger in the case under consideration than in either of the cases cited; for the fact is found by the referee that "when the plaintiff made the entry on his book (`H. M. Quimby — balance on settlement $40.00'), he did not intend to look to the defendant for pay for the rake, but on the contrary did intend to hold Quimby responsible for the pay, and intended to look to him for it." This presents a stronger case of waiver than either of the cases cited; and it is for this reason that the element of intention is found as a fact, while in the cases cited the acts of the principal are held as a matter of law to operate as a waiver or ratification.

In Frank v. Jenkins, supra, the bringing of the suit against the agent was held as a ratification. In Cushman v. Loker, supra, the taking of the note was held, as a matter of law, to be a ratification of the claim against the party with whom the agent was dealing.

III. As to the count in trover, all that has been said regarding a waiver applies to this count as well, for if the plaintiff made a charge to his agent as the referee finds, intending to look to him for pay, that would ipso facto operate as an extinguishment of all other rights of action for the value.

T. F. Johnson, for the plaintiff. The amendment, by adding a new count, was properly allowed to prevent gross injustice, as the case shows that the plaintiff was informed by his agent that the defendant wanted to set off the agent's debt, which was the cause of this action being commenced in assumpsit. The case also shows that Quimby's note was never delivered up, and no credit entered on the defendant's books; and the plaintiff had every reason to believe the referee would find it only an attempt to set off the agent's debt, as no claim was made by the defendant that Quimby applied the rake to his own debt until the time of trial, and long after Quimby had left the country.

The plaintiff had sufficient interest in the property to maintain this action when the defendant first received the same, for he was then responsible to Stoddard Co. for its value, and "any person who is responsible over to his principal may maintain trover." 1 Chitty Pl. 170, and cases cited; Hyde v. Noble, 13 N.H. 494; 1 Smith Lead. Cas. 475, 476.

The plaintiff had a right to the immediate possession of the property as soon as the defendant received it; for when Quimby, who only had the right to sell, converted this rake to his own use by applying it on his debt, the plaintiff, his principal, to whom alone Quimby was responsible, became entitled to the immediate possession against every one claiming under Quimby. Sanborn v. Colman, 6 N.H. 14. But the special property, which the plaintiff all the time had, became absolute when the claim of Stoddard Co. as security was extinguished by a payment for the rake several months before suit.

The memorandum upon the book cannot amount to a ratification of the trade made by Quimby, as the plaintiff could not ratify without full knowledge of all the facts. Story Agency, ss. 90, 210, 253; Wright v. Boynton, 37 N.H. 9; Freeman v. Rosher, 13 Q. B. 780; Railway Co. v. Broom, 6 Ex. 314; Roe v. Railway Co., 7 Ex. 36; 1 Smith Lead. Cas. 472. At the time the plaintiff made that memorandum, as the case shows, he had no knowledge of the real nature of Quimby's transaction with the defendant, and only supposed that Quimby had sold the defendant a rake on credit, and then Quimby expressly agreed to remain the plaintiff's agent to collect and pay over the price; and the findings show conclusively that there was no understanding or intention to discharge the defendant. There was no acquiescence by the plaintiff, for, as soon as he learned of any intention to turn it on the agent's account, he gave the defendant immediate notice that no such application could be made; and there can be no acquiescence until there is full knowledge. The memorandum on the book cannot have the effect of a waiver, as it has none of the elements of the same. Ripley v. Ins. Co., 30 N.Y. 136, 164; Carpenter v. Cummings, 40 N.H. 169; Rice v. Chase, 9 N.H. 179.

In all the cases cited by the defendant to make out a ratification, whatever the principals did was done with full knowledge of all the facts. In the case Cushman v. Loker, 2 Mass. 105, the matter was adjusted with a full understanding of what the agent had done, and the agent gave a written promise to pay, while in this case the memorandum was made on the book without any knowledge by the plaintiff of the real nature of the transaction, and without the consent or knowledge of Quimby; and the statements made by Quimby at the time, and at their next meeting, show conclusively that he did not understand that he was responsible, or intend to be held, but merely to keep the real nature of the transaction from the plaintiff until he could leave the country (which he did), and then let the plaintiff and the defendant adjust the controversy as best they could. The referee finds that Quimby informed the plaintiff that the defendant would not pay him, and that Quimby had refused to apply it on his debt, and that the plaintiff must collect that claim himself.

The plaintiff is entitled to judgment on the count in trover, as the defendant has wrongfully received his property and converted it to his own use, and there are none of the elements necessary to create an estoppel by which the owner may be deprived of his property without his consent. Barnard v. Campbell, 55 N.Y. 456; Nixon v. Brown, 57 N.H. 39. The plaintiff did not clothe his agent with any of the indicia of ownership, except possession; and that is not sufficient to protect even a bona fide purchaser. Spraights v. Hawley, 39 N.Y. 441. The defendant parted with no property or thing of value for the rake, as he never delivered up the note, nor adjusted any credit on his books. No demand and refusal were necessary. Farley v. Lincoln, 51 N.H. 580, and cases cited; Courtis v. Cane, 32 Vt. 232; Parsons v. Webb, 8 Me. 38.

In all these cases it is held that where one purchases property from a person who has no right to sell, and retains the property, he is liable, in trover without demand or notice. One who receives another's property from a debtor to apply on his debt, who has no right so to apply it, can certainly stand in no better position than one who purchases, for a valuable consideration, from a person who has no right to sell. The defendant received this rake from such a debtor, and claimed title to it when notified that Quimby had no right so to dispose of it, and had retained and claimed and used the same more than a year before this suit was brought, and has ever since so claimed, retained, and used the rake without expressing any willingness to return it.

Bingham Aldrich, for the defendant, in reply. I. There is no evidence, and the case does not show, that the defendant ever claimed to hold the property under a sale. The plaintiff claimed pay under contract; and the defendant declined to pay, saying he had paid Quimby. This does not bring the question within the rule of the cases cited in Morrison's Dig. 617, s. 12, as to demand and notice.

II. At the time this action was brought, the plaintiff had full knowledge of all the circumstances of the sale by Quimby to the defendant; and bringing an action in assumpsit under such circumstances, and going to trial, is an affirmance or ratification of the sale as made. Story Agency, s. 259, n. 1; Smith v. Hodson, 4 T. R. 211; 2 Smith Lead. Cas. (4th Am. ed.) 81-90, and cases cited; Kynaston v. Crouch, 14 M. W. 266 and note; Butler v. Hildreth, 5 Met. 51; Manufacturing Co. v. Searle, 15 Pick. 225; Partridge v. White, 59 Me. 564; Ham v. Boody, 20 N.H. 411; Ferguson v. Carrington, 9 Barn. Cress. 59; Wilson v. Poulter, 2 Str. 859.

III. The plaintiff had knowledge of the sale, and that the agent had disregarded his instructions and sold "not taking good notes or cash." It was at his election to proceed against this defendant, or the agent. He saw fit to elect the latter, and go into an accounting, and charge him the amount due on settlement; "and the election being once made, he must abide by it." Eastman v. Coos Bank, 1 N.H. 23, 27; Brown v. Rundlett, 15 N.H. 360; Ousterhout v. Day, 9 Johns. 114; Farmer v. Davies, 1 T. R. 108; Garnham v. Bennett, 2 Str. 816.