Towle v. Stevenson — 1 Johns. Cas. 110

Majority

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Towle & Jackson against Stevenson.

Headnote

Where T. and J. residing in England, the holders of a bill of exchange that had been protested for non-acceptance and non-payment, remitted the same to S. in New York, for collection, and S. delivered: the same to an endorser, w.ho delivered it to the drawer as-the consideration for1 a house; conveyed to the endorser as security for his endorsement, and S. went to Eng-land, and while there dfelivered'to T. and J. a letter addrfessed to the endorser, requesting him to pay the amount of the bill to them, it being their property, and T. and J. enclosed the letter Of S. to the- endorser and urged him to remit the amount without delay, and informed him that they had adopt; ed the friendly mode of writing to him for an immediate remittance in preference -to applyirig to any other of their friends. _ And upon S.’s return to America, T. and J. wrote to S. to take every legal step to recover the money, but S. returned no. answer or took any further steps in the matter.

Held that S. was discharged from his responsibility by the principal’s adopting his acts, so that an. action on the case would not lie against him. for the amount of thé bill'.(b) .

(b) The marginal "note of Mr. Johnson upon this point -is in these words; “An agent to whom a bill.of exchange was remitted to be collected, though liable for tiis misconduct, in' the first instance, was held to be disqharged .from his responsibility',' by the principal’s adopting- his acts.”

Letters written by a party are not admissible evidence in his favor, though they may be evidence against him.

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This was an action on the case, brought to recover from the defendant, the amount of a bill of exchange, of which the plaintiffs (who were merchants residing in London) were the holders, and which was remitted by them to the defendant, who resided in New York, to be collected on their, account. The bill was drawn by Archibald Ponton, also residing in New York, on Alexander Ponton, of Edinburgh, in favor.of one M’Gregor, of New York, for 215¿. sterling, dated in September, 1794, payable 60 days after sight, and was endorsed by M’Gregor.

On the trial, before Mr. Justice Benson, at a circuit, held in the city of New York, it appeared that the bill had been regularly protested for non-acceptance and non-payment ; and it was admitted to have been received by the defendant, for the purpose-above mentioned, on or before the 19th May, 1795 ;■ on. that day the defendant wrote to the plaintiffs, acknowledging the receipt of the bill, and informing them that he immediately *presented it to M’Gregor, [*111] the endorser, for payment, and that Ponton the drawer, had conveyed to M’Gregor a house in New York, as security for his endorsement, and that the house had been advertised and sold at a credit of sixty days for the purchase money, at the end of which time, he would receive and transmit the amount of the bill to the plaintiff. It also appeared, that the defendant, as the friend of M’Gregor, and in order to enable him to sell the house according to the terms of the trust upon which it was conveyed, had delivered tip the said bill to him, which was taken up by Ponton the drawer, as being paid by the proceeds of the sale of the house. It was also admitted, that the bill was so delivered up without the consent of the plaintiffs, and that M’Gregor was solvent, and continued in good credit till the year 1798.

On the part of the defendant it was proved or admitted, that in the summer of 1796, he went to England.and returned in the autumn of the same year; that when in England, xto wit, on the 12th September, 1796, he delivered to the plaintiffs a letter addressed to M’Gregor, requesting him to pay the amount of the bill to the plaintiffs, it being their property ■

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that the plaintiffs enclosed the same in another letter of the same date, written by them to M’Gregor, in which they urged him to remit the amount without delay, and infórriiéd him that they had adopted the friendly mode of. Writing tb him for an immediate remittance in preference to applying to any other of their friends. After the defendant’s return tb America,' to wit, on the 8th, June, 1797, the plaintiffs again wrote to the defendant, informing him that they had not yet received the amount of the bill from M’Gregor, and earnestly requesting,him-to obtain payment from M’Gregor, and 'if it was .not paid, to take every legal step to recover the money, at the same time complaining of ill treatment from M’Gregor,'' arid expressing their reliance on the defendant’s attention to their interest; but nb answer had 'been given to thesé letters of'the plaintiffs either by M’Gregor or the defendant:" The pláinfiffs had given notice to the defendant, that he would be required to produce in evidence ceitarii [*118]. Other ^letters received by him from the plain tiffs,'arid' on the trial called upbri the defendant to pródüóe thfem, which hfe. refused tb db. The plaintiffs then offered to próÑfe the contents Of such letters by other testimony, 'Wtiidh wás objected to, arid overruled.

On this evidence, the judge at the trial was of opinion; that although" the defendant had in the first instance made himself hablé to tide plaintiff, by delivering tip the bilí tb M’Gtfegbf, still the plaintiffs bv their subsequent coridiict Had ratified his acts; arid thereby discharged him from his responsibility arid directed tire jury accordingly. ' A verdict "wa‘s* found for the defendant. ' - ‘ '

On the part of the plaintiffs a motiori was made for a riéw trial on the following grounds; 1.' That proof of the cbhteiiis of the plaintiff’s letters to the defendant, which he had notice to produce, ought to have been admitted in cotthectiOn with tlife bthfer letters read by him.' ' -

2i That the defendant continued liable, notwithstanding the-Subsequent acts of the plaintiffs ; and that the judge misdire'cted the jury.

D. A. Ogden, for the plaintiff.

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Troup, for the defendant.

delivered the opinion of the court. It is clear that the acts of a party cannot be evidence in his favor when offered by himself. The letters of the plaintiffs called for by themselves, were, therefore, properly excluded.

On the second point, we concur in the opinion delivered at the trial. Although the conduct of the defendant in the first instance, by giving credit to M’Gregor, and delivering to him the bill without authority would have made him liable to the plaintiffs, they afterwards waived his responsibility by ratifying his acts. There does not appear to have been any concealment on the part of the defendant. After his arrival in England it is to be presumed, that the plaintiffs were made acquainted with the situation in which the business stood. They certainly knew the delay which had taken place. Instead of censuring the defendant, or informing him that they supposed he had neglected Their interest, [*133] they undertook by a direct correspondence with M’Gregor, to obtain satisfaction from him, and informed him, that they had adopted the friendly mode of writing for an immediate remittance, in preference to applying to any other of their friends on the occasion; thereby tacitly approving of the confidence the defendant had placed in him, though in strong terms, complaining of M’Gregor’s neglect.

This was in June, 1796, and M’Gregor remained solvent till the beginning of 1798. After the defendant’s return to New York, in June, 1797, the plaintiffs again wrote to the defendant, requesting him to obtain payment from M’Gregor, and that if he did not pay, to take every legal step to recover the money, at the same time complaining of ill treatment from M’Gregor but expressing their reliance on the defendant’s attention to their interest. This letter also plainly implies, that they approved of the defendant’s previous conduct, and considered M’Gregor only as responsible. The defendant did not answer this letter, but the plaintiffs having taken the business into their own hands, and thereby discharged him from his agency, he was not under a legal obligation to answer it. If the plaintiffs had in the first

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instance, on being informed of the situation of the debt; given notice to, the defendant, that they intended to hold him responsible, all the time from, the 12th September, 1796, to the period of M’Gregor’s insolvency, would have been allowed him to prosecute the payment, and seelt his indemnity. Instead of doing this, they made feeble attempts to obtain satisfaction from M’Gregor, and these having failed they now wish to resort to the defendant.' After their long and re-peatéd acquiescence in "his conduct, we are óf opinion that this óüght not to be permitted, and that, therefore, the direction of the judge at the trial, and the verdict upon the evidence, were right.^[1]

Rule, refused.

(a) (a) Omnis ratihabitio retrolrahitur et mandato priori iequiparatur. If with a knowledge of all the circumstances an employer adopts the acts of bis agent for a moment he is bound by them: Per BulIer J. in Smith v. Cologan, 2 T. R. 189.(n) Moss v. The Russie Lead Mining Co., 5 Hill, .137. Odiorne v . Maxcy, 13 Mass. R. 178 . Fisher v. Willard, id. 379. Clark’s ex’rs v. Van Riemsdyk, 9 Cranch, 153 . Conn v. Penn, 1 Peters’ C. C. R. 496. Lorraine v. Cartwright, 3 Wash. C. C. R. 151; This is also the rule of the civil and the foreign law. Dig. lib. 50, tit. 17,1. 60. Pothier,. Pand. L. 17; tit. l,n.' 19. Thus'where a master having been guilty of a breach of orders in pursuing voyages contrary to his instructions, the principals received the freights earned during the voyages without disavowing or disapproving the conduct of the master, and moreover declared that they found no fault with him but for not writing, these acts were held to be A waiver of any right to sue for damages on account of disobedience. • Codwise v. Hacker, 1 Caines’ R. 526. And where several persons agreed in writing to take an interest hi a voyage and appointed P. and C. to make purchases; who' made them separately on credit, and the parties accepted and shipped the goods purchased ; held that the separate purchases were ratified and that subsequent signers o’f the contract were bound as ratifying the purchases. French v. Price, 24 Pick., 13 . And where an agent to collect a note bartered it for cattle to A., who collected il of the maker, and gave his own note to his principal who knew all the facts; held, that the acceptance of the note made the barter valid. Cushman v. Lakes, 2 Mass. R. 106 . See further upon the general rule, Brown v. Manning et al. 6 Ohio R. 304. Owings v. Hall, 9 Peters, 607. Barbour v. Craig, Littel’s Select Cases, 213 Weist v. Yode, Bibb. R. 530. Murray v. Toland, 3 Johns. Ch. R. 569. Kupfer v. Augusta, 12 Mass, ,R,. 185 . Thorndike v. Godfrey, 3 Greenleaf, 429. A principal informed of the acts of his agent must express his dissatisfaction in a reasonable time or his assent will be presumed; Caines v. Bleecker, 12 Johns... R. 300; Vianna v. Barclay, 3 Cowen, 281; unless the notice came, too late to prevent the effect of these, acts, Shaw v. Nudd, *133 8 Pick. R. 9. Amory v. Hamilton, 17 Mass. R. 103 . Frothingham v. Haley, 3 id. 68. See Erich v. Johnson, 6 id. 193. Ratification may be presumed from the acts or omissions of the principal, Delafield v. State of Illinois, 26 Wend. ] 92; and when once made, it relates back to the time of the original transaction, Lawrence v. Taylor, 5 Hill, 107 . After the principal has adopted the acts of an agent, of course the latter is not responsible to the former therefor, though they turn out to be injurious. Corning v. Southland, 3 Hill, 552 , and references.