Bryan Croom vs. Joseph Swann, administrator of John Shaw, 1 Fla. 211

Hawkins, Justice: This was an action of assumpsit brought to recover the amount of a judgment recovered against Swann by John Shaw, in an action of false warranty on a horse sold by John Oliver, in his life time to Shaw, said horse having been sold by Oliver as the agent of Croom, the appellant. It would appear by the record that Croom authorised Oliver to sell the horse, but there is no testimony to show that he authorised Oliver to warrant him as to soundness. The price of the horse was one hundred and fifty dollars, and Robert L.

Harrison, one of the witnesses, testifies that he heard Croom say, that he had received full compensation from Oliver, for the proceeds of sale of the horse, though he does not recollect that Croom stated the amount. Shaw, it would seem by the testimony, was aware that Oliver sold the horse only as agent of Croom — that Shaw kept the horse for a time, and then sold him to Penny, who sold him to another person.

Shaw subsequently instituted suit against Swann, the administrator of Oliver, the present plaintiff, declaring in assumpsit on a warranty of the soundness of the horse, and obtained á judgment and a verdict for $152 10 damages, and his costs. The suit from which the present appeal is taken, was brought to recover said damages and costs, and on the trial in Leon Superior court, the record of the judgment &c. of the original suit of Shaw vs. Swann, adm’r. was offered in evidence by the plaintiff, the appellee — objected to by Croom, and the objection overruled by the court.

The defendant (Croom) in the court below, offered no evidence, but moved the Court to instruct the jury that said record was not' sufficient or legal evidence of any authority by Croom to Oliver to make the warranty; that the record of the recovery aforesaid, without parol evidence of said warranty, and of such authority to warrant was not sufficient to entitle the plaintiff to recover. • That there was not evidence for the jury to find a verdict for the plaintiff. The court below instructed the jury that the record was not inter alios, and was legal and competent evidence in the suit. 2d.

That the record, together with the parol evidence of the receipt of the purchase money, and the letters of administration, were sufficient to enable plaintiff to recover, and that it was not necessary to entitle the plaintiff to recover, to. prove .by evidence',aliunde the said record, that the defendant authorised Oliver to warrant the horse to Shaw, or. that Oliver did warrant him. To these instructions, the defendant excepted, and a bill of exceptions framed thereupon. Verdict for the plaintiff Swann, and judgment, from which appeal was taken to this Court.

The propriety of the decision of the court below, rests mainly on the question whether the record of the judgment recovered by Shaw against Swann, the appellee, was properly admitted in evidence against Croom, the appellant. As contended for by the appellee, the record indubitably proves the amount which the administrator of Oliver had paid to Shaw; but . this is not enough to justify a judgment against Croom. If Croom had been a party or privy to the record or suit pending between Shaw and Swann, then it would have been available to the extent of the facts contained in it; but there was no privity.

The suit was brought by Shaw against Swann, who declined to shield himself by the agency of his intestate, as he could and should have done, had Oliver acted in compliance with the orders or instructions of Croom. Oliver in this case seems to have acted as the special agent of Croom, and not as a general agent. He had, as would appear by the evidence, a power to sell, but there is nothing to show that he had authority to warrant. Mr.

Chitty says, “ the general rule is, that a person who has contracted in the capacity of an agent, and that fact is known at the time to the person with whom he contracts, such agent is not liable ■to an action for the non-performance of the contract, even for a deceitful warranty.” 1 Chitty on PI. 38, 7 Am. Ed, And- where a person undertakes to do

an act as the agent of another, if he does not possess authority from the principal therefor, or if he exceeds the authority delegated to him, he will be responsible therefor to the person with whom he is dealing, for or on account of his principal.- Story on Agency, 264.

It is contended for by the appellee, that though there may be no evidence, that Croom authorised Oliver to warrant the horse as to soundness, yet that Croom’s acceptance of the proceeds of the sale of the horse, and his remark “ that he was the proper person to lose itthat is, the price of the horse, amounted to an adoption of the act of his agent, even if he exceeded his authority, and acted without or against the orders of Croom.

There is no' doubt, that .an express ratification is not necessary to charge the principal, and a subsequent assent may be inferred from circumstances, which the law considers equal to express ratification. Livermore on Agency, 44. 2 Mass. 186. So where a principal enjoys the fruits and benefits of the act of his agent, he shall not be allowed to say afterwards the act was- illegal. 3 Mis. 496. Bell es. Cunningham, 3 Peters’ 81.

But there is no evidence to show that Croom was aware, that his agent had made any warranty as to the soundness of the horse when he .accepted the proceeds of the sale, and in the absence of this testimony, Ms receipt of the money only extends to a ratification of the sale of the horse, whilst the remark before set forth would seem only to convey the idea of an admission of moral obligation in ignorance of his legal rights, and upon which no action could rest, unless there had been a previous legal liability. ' But admitting the argument of the counsel for appellee, that Croom had rendered himself liable by the assumption or ratification of the act of his agent, to whom is he responsible ?

Clearly to Shaw, and not to his agent, unless that agent could show, that a deception had been practiced upon him by his principal; and that in pursuance of orders or instructions, he bona fide makes false representations as to the goods of his principal, and is compelled to pay damages to a purchaser on account thereof. Story on Agency, 339.

In such a case Croom would have been directly amenable to Swann, but no such case is shown'. \ ' ' If Shaw had acquired a right of action’ against Croom, the latter had the privilege of asserting and’ maintaining his legal rights in an action against himself, but not through his agent; and he is not to be reached in this indirect, circuitous and sinuous manner. “ No one in general,” say, Mr.

Starkie, “can be bound by a verdict or judgment, unless he be a party to the suit, or be in privity with the party, or posses the power of making himself a party.” He has no power of cross examining witnesses, of adducing evidence in furtherance of his rights, &c. 1 Starkie on Ev. 191. No one can be affected, still less concluded by any sentence, decree or judgment in any suit or legal proceeding, to which he was not actually or in consideration of law, a privy. Ib. 181, 1300 ; and besides, he loses the benefit of appeal.

The reason of these rules are founded in justice and morality; for besides these, reflection must at once suggest the extreme danger at all times of fraud and collusion between the agent and purchaser.— Every consideration of propriety, public policy and sheer justice, forbid the idea, that Croom is to be estopped by the record introduced in the court below, and denied the privilege of making de-fence of his legal rights. If otherwise, the grossest injustice might arise. For instance, the record in this case shows that the horse was resold by Shaw. Where are the proceeds of this sale ?

If an action had been maintained successfully against Croom by Shaw for damages, the former would have been entitled to an allowance or discount for such proceeds, as the verdict would have been for the difference between a sound and an unsound horse. With these views, we are of opinion that the record in the case of Shaw vs. Swann was inadmissible as evidence further than as already stated, that there should have been evidence aliunde the record to show that Oliver was authorised by Croom to warrant the horse, and that he did warrant him in accordance with such instructions.

If he, Oliver, warranted the horse hona fide, and fraud had been practiced upon him by Croom, he could look to Croom for redress. ' That Shaw having purchased of Oliver with a full knowledge of his agency, he should have proceeded, against Croom directly, and not against Oliver’s administrator. We think the court below erred in not giving the instruction prayed for by defendant in the court below, and also, erred in giving the instructions it did on the trial of the case. It is therefore ordered, adjudged and decreed, that the judgment of the Court below be reversed, and that a venire de novo be awarded.

Per Curiam.