Sherman Case and another v. Erastus F. Jennings and another, 17 Tex. 661

Wheeler, J. There were two questions for the jury to decide, upon the verdict; and they involve the merits of the appeal: 1st. Di<| the plaintiffs make out their title ? 2nd. Had the defendant, Case, authority to sell ? Upon the first question, there is no difficulty. The conduct of the parties and the facts of the case, as disclosed by the evidence, were amply sufficient to warrant the jury in coming to the conclusion that the unqualified property was in the plaintiffs.

The disposition of the remaining question would be equally free from difficulty, if it were unembarrassed by instructions given at the instance of the plaintiffs. There is no doubt that Case had authority to sell; expressly conferred by the plaintiffs, for a certain, specified object; and he had tried to sell and failed. All this is positively proved, and is indisputable. But it is proved just as positively, that he also attempted to run off, and dispose of, and conceal the negro from the plaintiffs; and this was known to his co-defendant, McLaurin.

This conduct, on his part, was an absolute abandonment and renunciation of his agency. It was utterly incompatible with the confidential relation, created by the delegation of authority to him to act as agent. It is not pretended that his agency auth orized him to run off, and dispose of the property as his own, and for his own benefit. The moment he attempted to do so, his agency was at an end ; and he was as completely without authority for his after acts, as if he had never been entrusted with an agency for the sale of the property.

It is impossible to conceive of any act of revocation or renunciation of the authority of the agent, which would more certainly and unequivocally put an end to the agency. It was totally incompatible with that relation. McLaurin bought with a knowledge of the fact, that Case was acting in violation of his duty as agent, and was, consequently, acting without authority. This is plainly the case which the record, presents ; and it • is free from difficulty.

It is clear that the defendant McLaurin cannot maintain his purchase under the authority which had been confided to his co-defendant, and which the latter had not pursued, but had abused and violated to his knowledge ; and that his purchase conferred on him no title or right whatever. The judgment is manifestly right on the merits; and the only question, is, whether there be error in the rulings of the Court, upon instructions asked by the parties, of a character to require its reversal.

It is objected to the second instruction given at the instance of the plaintiffs, that it does not restrict the confessions referred to to, a tim eanterior to the sale. But it must have been so understood ; for there was no evidence of any admissions made subsequent to the sale ; or of any other than those, which, it is evident from all the facts, must have been anterior to that time. Dates are not given with accuracy ; but the only fair inference from the evidence is, that the confessions or admissions referred to were not only anterior to the sale, but contemporaneous with the delegation of authority to sell.

The instruction can have had reference to none other, and therefore cannot have misled. If the third instruction were pertinent and material, it might be liable to Objection. For I apprehend that, where the doctrine applies, it is true, as stated by counsel, that the giving of a negotiable note, which has been assigned to an innocent holder, will be of equal effect with the payment of money. But the case which the instruction supposes, is not a case to which the doctrine of innocent purchaser applies.

The charge proceeds upon the supposition that the defendant’s ignorance of the plaintiff’s title, would enable him to claim protection as an _ innocent purchaser. This was evidently a mistaken concession in favor of the defendant. The possession of a negro will not enable the person in possession to convey a good title, even to an innocent purchaser, unless he either has the title in himself, or has authority from the owner.

If a person comes into possession of personal property, and sells it as his own to one who is ignorant of the want of title in his vendor, his ignorance of the true state of the title will not prevent the owner from recovering the property. It is unlike the case of a purchaser in ignorance of a prior unregistered conveyance; whose want of. notice will give his title priority over the elder deed ; which seemed to have been in the mind of counsel asking the instruction.

It was not in respect to the title being in the plaintiff, but only in respect to the termination of the agency,, that the question of notice was material. If this defendant knew, as he doubtless did, that Case had been authorized to sell, then it was material to show that he knew of the revocation or determination of the agency ; at least it was material to bring home to him a knowledge of circumstances, sufficient to put him upon inquiry, and bring him within the influence of the maxim caveat emptor.

But in respect to the plaintiffs’ title, the rule would apply to him with equal force, whether he knew of it or not. With respect to the agency, the proof is positive that he knew of facts, from which he was bound to know that . his vendor was acting in the exercise of an usurped and unwarranted authority.

The instruction, therefore, was. irrelevant and immaterial ; and though it conceded too much to the defendant, and gave him the advantage of the chances, arising trom the making of a a false issue in his favor before the jury, it could not operate to his prejudice, and cannot afford a ground for reversing the judgment. The fourth instruction given, might have been improper in a different state of case, where an agency in fact subsisted, or where the party bought without notice that a pre-existing agency had been determined.

Eor, although the delegation of authority does not, in general, empower the agent to contract, in his own name, yet if he, in fact, possess due authority to contract as agent, and makes the contract in his own name, the principal may be equally liable upon the contract as if the agent had used the name of the principal. (Story on Agency, Sec. 160 a.) And although the agency was in fact determined and his assuming to act was a fraud upon his principal, yet if the person with whom he contracted had not notice of the determination of the agency, and acted innocently, he would not be affected by the fraud of the agent.

But the present is not such a case. Here the ageney was determined, and the defendant bought with notice of the acts by which it was determined ; and as applied to the facts of the case, there was no error in the instruction. The same may be said of the fifth instruction ; since it was in proof that the acts of bad faith came to the knowledge of the defendant. But if notice had not been brought home to him, he could not have been affected by notice to the plaintiffs of the acts of bad faith ; and the instruction would have been improper. As the fact was, however, there was no error in the instruction.

The fourth instruction asked by the defendant, would certainly have been correct in the absence of notice to the defendant of the determination of the agency ; or, if the evidence had warranted the supposition that the agency was not determined, but in fact subsisted at the time of the sale. But, upon the evidence, we think the Court might well refuse an instruction, which supposed the continued subsistence of the agency ; or which submitted to the jury the question of its continued subsistence ; since, had they so found, their verdict would have „ been contrary to the evidence.

We are of opinion, therefore, that there is no error in the rulings in question, which will authorize a reversal of the judgment. Finally, in respect to the merits, we think it does not admit of doubt, that the agency was determined before the sale to the defendant McLaurin. If he was advised of the nature of thr agency, he must have known that the authority, simply to sell for money to pay debts, did not authorize the sale to himself on a credit.

If he was advised only of the authority of the agent to sell generally,, he must have known that the attempt of the agent to run off the property and . conceal it from his principal, was a violation of his duty to the latter, which put an end to the confidential relations between them, and necessarily determined the agency. If he had no knowledge of the existence of the agency, he is simply in the condition of a purchaser from one without title or right to sell. In neither case will his purchase be of any avail as against the claim of the owner of the property.

We are of opinion that there is no error in the judgment, and it is affirmed. Judgment affirmed.