Ketchum v. Verdell

42 Ga. 534 | Ga. | 1871

Concurrence Opinion

McCay, J.,

concurring.

I am inclined to the opinion that the plaintiff is entitled to recover on the eontraet. The order is to be construed in the light of the known status of the parties, and it being, not a regular and deliberate power-of-attorney, but a mere letter, is to be freely construed: Story on Contracts, section 138. So, also, if it be not clear upon its face, but susceptible of two constructions and is acted upon, .the rule is, that parties having, in good faith, been misled by the letter, will be protected : Story on Contracts, section 138; 4 Washington’s Circuit Court Reports, 551; 2 Washington, 132.

Very clearly, from the proof, Tate acted under the impression that he had a right, under the order, to buy of the plaintiff-on the defendant’s credit, and, under these rules, the contract would be good. But this is an action, not on the contract, but for the value of the corn. Admit that Tate had no authority to buy on the defendant’s credit, it is clear that he did so buy, and that plaintiff parted with his corn on the faith of Tate’s representations. Suppose Tate had stolen the corn and sold it to the defendant, could not the plaintiff recover of the defendant its value, if he applied it to his own use?

As the facts here appear, this corn was never Tate’s corn, nor that of the firm of which he was a member. Could he or the firm give the defendant any better title to it than they had themselves ? Revised Code, section 2595. At the most it would be a title obtained by fraud, and voidable: Revised Code, section 2596. It is true, in cases under this last section, a bona fide purchaser, without notice, will be protected. But as the record discloses in this case, the defendant does not stand in that condition, because he had not yet paid the price of the corn to anybody. He cannot be hurt by having to pay the true owner, since he has not paid anybody, or by reason of his receipt of the corn from Tate, giving Tate credit

It seems to me monstrous, that defendant shall get plaintiff’s corn and use it, and both Tate and his partner repudiating any right to recover, that plaintiff shall be turned off on a mere technicality. The general rule, as I understand it, is that when one professes to act as agent of another, even if he has no authority at all, and as such agent obtains goods which, in fact, go to the use and benefit of the principal, the seller may, at any time before the principal has settled with the pretended agent, notify the principal of the truth of the case and demand payment: Central Bank vs. Merchants Bank of Macon, 1 Kelly’s Reports, and cases there cited. If the principal accepts the property, knowing all the facts, that is a ratification of the agency; hat even if lie knows nothing of the facts, but accepts the property as sold him by the agent, yet if the agent was not in fact the true owner, and the seller so notifies the purchaser before any settlement, the right of action in the seller exists.

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Lead Opinion

Warner, J.

The charge of the Court to the jury, “ That it was doubtful whether the order of the defendant made Tate his agent to purchase the corn,” was error, under the provisions of the 3183d section of the Code. According to the evidence in the case, as disclosed by the record, the Court should have charged the jury as to the ratification, by defendant, of the sale of the corn, by plaintiff to the defendant.

Let the judgment of the Court below be reversed.

Lochbane, C. J., concurred, he said, for different reasons, but furnished no opinion.