KIRK vs GLOVER, 5 Stew. & P. 340

THORNTON, J. This was an action of trover, brought by the plaintiff below, to recover the amount of a bond, which the plaintiff alleged to have been his property, and to have been wrongfully converted by the defendant, to his use. A bill of exceptions was taken, during the progress of the trial, which contains the matters assigned for error in this Court.

It appears, by said bill of exceptions, that the plaintiff recovered a judgment on the twenty-seventh March, one thousand eight hundred and twenty-six, in the Circuit Court of Ma-rengo County, against one David Hogan, for the sum of eight hundred and thirty-five dollars and fifty-three cents; that a short time thereafter, one John W.

Wilson, who, as the attorney for the said plaintiff, had prosecuted, and obtained said judgment, took from the said Hogan, in discharge of the said judgment, a writing obligatory, executed by the said Hogan, with several other persons as securities, and made payable on or before the twenty-seventh of March, one thousand eight hundred and twenty-eight, to the plaintiff or “ bearer,” for the amount of the said judgment: whereupon, by the order of the said attorney, the sheriff returned the execution on the judgment aforesaid, satisfied.

Though this negotiation was made by Wilson, the attorney of the plaintiff; yet, there is no proof, that it was authorised by the plaintiff at the time. On the ninth day of August, one thousand eight hundred and twenty-six, the said Wilson sold and transferred the said bond, by his own indorsement thereon, to the defendant, alleging to him, that he had bought the bond of the payee.

The indorsement by Wilson, was to “ Glover and Gainesand suit was brought in the Marengo Circuit Court, on the twenty-fourth of April, one thousand eight hundred twenty-eight, in the name of the plaintiff, to their use upon said bond, against Hogan & Co. and judgment recovered thereon in April, one thousand eight hundred and twenty-nine. Execution issued thereon, and whilst the money levied was in the hands of the sheriff, it was claimed and demanded for the plaintiff.

There is no proof in the record, that at any time prior to this demand, any notice had been given to the defendant, of the claim of the plaintiff to the said bond or its proceeds. Nor is there any proof, that prior to that time, he knew of the transfer by Wilson.

In May, one thousand eight hundred and twenty-.eight, the plaintiff moved agaisnt the said Wilson, in the Marengo Circuit Court, for the amount of the judgment, which it appeared by the return of the sheriff, had been paid to him; and instituted suit also, in the County Court of Marengo, by writ, returnable to the July Term thereof, one thousand eight hundred and twenty-eight, for the same cause; both of which proceedings were dismissed.

All the assignments of error relate to certain directions given, and refused to the jury, except one, which was the refusal ■ of the Court to permit a witness to testify to a verbal ratification by the plaintiff, of the contract, by which Wilson, his attorney, had taken the bond sued for from Hogan, as said ratification was made by him, subsequent to the transfer of the said bond, by Wilson to the defendant. There can be no doubt that Wilson transcended the bounds of his authority, as attorney, when he took this bond from Hogan in satisfaction of the judgment, which he had obtained for the plaintiff.

The authorities to this point are numerous, and are refei*red to by the Court, in the case of Gullet ■ and Lewis, where the doctrine is settled, that the attorney is only a special agent to collect, by suit, or without it, the money of his client. But, it is equally clear, that it was competent to Kirk, to ratify and confirm this negotiation of his attorney; nor can w'e see any principle, which would restrict his power to ratify, and confine it to the time whilst the bond was in the custody of Wilson.

There is no necessary connection between these two acts — the taking of this bond in discharge of the judgment against Hogan, and the passing it off, by Wilson, in payment of his own debt, to the defendant. The principal, I admit, can not ratify one part of a contract made by his agent, and disannul another part of the same contract. It is a whole, and as such must be treated. But, there is surely no obligation, on the principal, to ratify all the various contracts of Ms agent, because he may chose to ratify one.

There is no proof, that he knew of this contract, by which his debtor had been attempted to be dis^ charged from the judgment, until the time at which it was proposed to prove that he ratified it; and no delay ought to forfeit a right of which the party had no knowledge. He can not be said to have waived that which he is not proven to have known. The relevancy of this proof, which was proposed and refused, is direct to the main question in the action.

Without a prior authority granted to Wilson, to settle the judgment in the way he did it — or, what is equivalent to such authority, the property in the bond, for whose conversion the suit was instituted against the defendant, was not in the plaintiff. No prior authority being established, a subsequent confirmation was essential to the maintenance of the action, the effect of which I consider to be equal to a prior authority. Amnis ratihabitatio retro-trdhitur, et mandato priori cequiparatur.

For the refusal to admit this proposed proof, I should feel bound to reverse the judgment; but, as the cause will be remanded, for further trial, we think it our duty to express an opinion upon other points involved in its decision.

If a ratification had been proven, as was proposed, then the bond sued for, from its execution, was the property of Kirk — and, being in the hands of his agent, Wilson, it could not be transferred by him, to any, however fair a purchaser, so as to destroy Kirk’s right, without his consent to such transfer.— This follows, as a consequence, from the law of agency, which applies as well to this bond, as to any other species of property, belonging to one man, and in the hands of another.

It would constitute an exception, if it were negotiable paper, and endorsed; but, otherwise the agent could not transfer it, to the injury of the principal., The circumstance, that the bond, in this case, made payable to the plaintifí', “ or bearer,” makes no difference, under the authority of the case of and Lucas. The transfer of the bond to the defendant, by Wilson, like the original taking of it, was in violation of his authority ; but, like that, was

an act, which it was competent to Kirk, to ratify and confirm. Whether or not Kirk did ratify this last contract of sale to Glover, is a fact for the determination of the jury, and was properly left to them, to decide, from all the circumstances of the case. If the first contract were affirmed, it does not follow of course, that the last was repudiated; and Glover is entitled to the benefit of it, if he can establish its ratification. The acts allowed to be considered by the jury, as grounds of inference, upon this head, we do not think should have been excluded from them.

The suits by Kirk, against his attorney — his delay in suing Glover for the bond — if he knew all the while of the transfer having been made, were circumstances properly left to the jury, to deduce from them or not, as would seem most reasonable. The fact of ratification or not — -and whether he knew or not, of the existence of the transfer, at any time prior to his demand of the money, of the sheriff, was a fact for their determination; which last it would be necessary to establish, before any inference against him, could be drawn from the former facts.

Both his knowledge of the last transfer, and his assent to it, may be proven by circumstantial evidence. There is a case in 2d Mass. Reports, 106, which in many of its features, resembles this, and which establishes the view here taken of the rights and duties of the parties interested in this last act of Wilson, or his disposition of the bond sued on, to the defendant. One Cushman, holding a note for eighty-nine dollar,s, against one Wellington, delivered the same to one Smith, to collect for his use. This note Smith sold to Locker, for cattle. Locker presented it to Wellington, and received the money.

Smith then became insolvent, and afterwards seeing Cushman, who was acquainted with all these facts, the latter received Smith’s note, for the amount of Wellington’s. This last note not being paid, Cushman brought an action against Locker, for money had and received, to the plaintiff’s use. The Supreme Court of Massachusetts decided, that he could not recover. They said — -“As between these parties, Smith was Cushman’s agent to receive the money, due on the note. He received from Locker the value of the money in cattle, and delivered him the note.

Smith appears to have exceeded his authority in receiving the cattle in payment, and Cushman might, if he pleased have disarmed the contract of his agent. But, after full notice of the transaction, and after Smith’s failure, he considered him as his debtor, for the amount of Wellington’s note, and took Smith’s note for-the payment. This conduct of Cushman, we are ail satisfied is a ratification of the transaction of his agent, with Locker.” In the case just cited, the fact of taking the note of Smith, after knowledge of the facts, constituted a ratification.

The doing of other acts might have amounted to the same thing. Assent to or ratification of an unauthorised act of an agent, was, by Chancellor Kent, in the case of Armstrong & Barnwell vs Gilchrist, presumed, from the fact that propositions from the debtor were communicated by the agent, to the principal, and he made no objection to them.

It is desirable, on all hands, in reversing a cause, that the whole law of the case should be settled by this Court, “ ut sit finis litiumfi- and we have accordingly endeavored, without a tedious specification, to discuss all the principles involved in the case, as now presented. Let the cause be remanded, for further proceedings, in the Court below. SAFFOLD, J., not sitting, in the trial of this cause. 3 Kent’sC. 52. 5Johns, Ch. R. 56. Paley 181, and case cited. 3 Stewart; 259 2 Johns. C in E. 424.