delivered the opinion of the Court.
This is an appeal in the nature of a writ of error,.
There was evidence of a contract between P. D. Gates, of the city of New York, and said Nelson, who was a resident of East Tennessee, whereby the former agreed to pay the latter one dollar per bushel for red, and one dollar and ten cents per bushel for white, wheat, of prime quality; and live per cent, commission for buying and shipping, for all that he could get started from the depots of the East Tennessee & Georgia Railroad Company, in time, certainly, to reach New York in July, August, or September, 1857; but enjoining upon him the necessity, if possible, of getting it off in time to reach New York in the months of July and August. The proof did not make it clear whether the wheat, in its transit to New York, was to be at the risk of Nelson or Gates. For all wheat of the quality named, so bought and shipped, Nelson was authorized to draw on Gates, at New York, at sixty days’ time from the date of starting the wheat from the various depots. There was also evidence of a special contract, between Nelson and the East Tennessee & Georgia Railroad Company, that cars would be furnished to take forward the wheat as fast’as Nelson would have it delivered at the depots; and upon the faith of this contract, he bought a large quantity, and became bound to the individuals of whom it was purchased, for the cost of it. The quantity purchased, amounted, in all, to 51,984 bushels, much of which lay
The wheat crop of 1857 was uncommonly large; and it would seem, from an examination of many witnesses on the part of the plaintiffs in error, and especially of their officers and agents along the line of the road,. that the defense, before the jury, was put upon the ground of the extraordinary crop, and the want of cars to transport it; and yet it was admitted by the plaintiffs in error, upon the trial, as evidence, that they had ample means to have carried off all the produce transported on their road during the months of July, August, and September, 1857, promptly, upon its delivery.
The Circuit Judge permitted the verdict to stand, and there is nothing to authorize this Court to grant a new trial merely upon the evidence. If had at all, it must be because of some error of law. Only certain portions of the charge to the jury are set out in the bill of exceptions, and we must presume the residue to have been full and accurate. Nor do we understand that counsel, in argument here, call in question the correctness of all that part of the charge which is set -out. Certainly, no valid objection can be taken to that part
But it is said Nelson cannot maintain the action, because the wheat did not belong to him, but to G-ates, and that Nelson was merely his agent in purchasing it. Upon this question, the Circuit Judge, (so far as we have the charge,) instructed the jury that if they should believe, from the proof, that Nelson was employed by Gates to purchase the wheat for him, (Gates,) the wheat thus purchased would be the property of Gates; and not Nelson’s, and therefore the action could not be maintained. But, on the other hand, if the jury should believe, from the proof, that Nelson and Gates had entered into a contract, by the terms of which Gates had agreed to give Nelson a specified price for all the wheat that Nelson would deliver Gates, in the city of New York, by a specified time, and this wheat was purchased by Nelson to fill said contract,, it would belong to Nelson until it reached the city of New York. This instruction is not erroneous. As a general rule, the consignee is the proper person to sue the carrier for a breach of duty, or contract, in regard to the property shipped. But this is because he is owner, or has some special 'property in the goods, as would have been the case, if Nelson, as his agent, had bought the wheat here for Gates absolutely, and shipped it to him as a purchaser, at all events. It, then, would have been his property, even from the date of the purchase, and a fortiori after its shipment, and he should sue. But, on the other hand, it is equally well settled, that the consignor, who
But, as to the wheat bought and started within the terms of this contract, it is not, in this case, very material to inquire as to its ownership during its transit to New York; and if it were, it was a question dependent upon the terms of the contract, which, not being in writing, was for the jury to settle, and as to which we must suppose they were properly instructed. We say it is not material, because the uncommon delay of the plaintiffs in error to carry the wheat delivered to them by Nelson, as well as their neglect to take due care of it while in store, was a breach of their contract, and an omission of duty which instantaneously gave a cause of action, although the amount of damage or loss from the injury might not be ascertainable until the subsequent sale of the- wheat was actually made: Wilcox et als. vs. the Executors of Plummer,
Again: — It is insisted that Nelson has, in truth, sustained no damage: that though the greater part of the wheat reached New York out of time, yet, that nevertheless, Gates received and sold it, without objection, and became liable, as if it had been duly delivered. So, that Nelson has, in law, the full benefit of his contract. There is no doubt, but that a principal may ratify the act of one who has acted in his behalf, as his agent, though without authority, or who has transcended' his powers; and in this way give validity to the act, as it had been strictly authorized in the first instance. This notification may take place, not only directly, but may be implied from collateral acts. The question, whether the receipt and sale of the wheat at New York, amounted to a ratification of the acts of Nelson in sending it out of time — was not a matter of lato for the Court — but depended on the circumstances attending the transaction, and was a subject properly to be left to the jury: Bell et als. vs. Cunningham,
Nothing is left to us, but to consider the remaining portion of the charge. It was insisted before the jury, that no recovery by Nelson could be had, even if the wheat was unreasonably delayed, because the. Western & Atlantic Kail Koad Company — had it been forwarded with all dispatch — would not have received it from the plaintiffs in error, at Dalton, or transported it from thence; and because it was alleged that the plaintiffs in error were willing, and offered to ship the wheat to Dalton,, provided Nelson would take charge of it at that place, which, it was insisted, he declined to do. Upon this subject, the Circuit Judge instructed the jury, that it would not exonerate the plaintiffs in error for them to show that the Western & Atlantic Rail Road Company would not have shipped the wheat, provided it had been delivered, or tendered said road at Dalton. It was the duty -of the plaintiffs in error to have discharged their duty, and if other connecting roads did not do their duty, Nelson could enforce his legal remedy against said roads; but, if the plaintiffs in error offered to ship the wheat to Dalton, and Nelson, for any reason, declined to have it done, he could not recover in this action.
This charge, we think, was clearly correct, and the verdict of the jury must be held to have settled that Nelson had done nothing to excuse the plaintiffs in error from the prompt transportation of this wheat. That the Western & Atlantic Railroad Company might not do their duty, and might fail to have the necessary cars and hands to receive and put forward the wheat at
It is insisted that tbe delay which would have taken place at Dalton, if .it did not furnish an answer to the action, must reduce the amount of the recovery. If this were so, we must, upon this record, presume that the Circuit Judge properly instructed the jury upon this subject, and that they duly considered it in making up their verdict, since there is nothing to the contrary in the bill of exceptions, and no request, or refusal, whatever, to charge in relation to this aspect of the case. But we do hot see how this could have mitigated the damages. Nelson, (if there was unnecessary delay, or neglect,) was entitled to full damages somewhere, either from the plaintiffs in error, or the Western & Atlantic Railroad Com
Upon the entire case, wc discover no reason for a reversal of this judgment.