The objection that this suit should have, been brought in the name of Cross, Hobson & Company, instead of Alexander Cross, has no support, either in law or the facts in evidence. The contract on which the suit was' brought-was with Cross alone. ' Law had established a line of steamers on the Pacific, to run from Panama to San Francisco. It became necessary to supply them'with coal at Valparaiso, *537 and to. have purchases of it made there, in expectation of their •arrival round the cape, and for supplies at San Francisco.
Cross being in New York in January, 1850, and about to go to Valparaiso, was employed by Law to make purchases of coal for him at Valparaiso. His letters of instruction are all directed to Cross alone, and contain no intimation of any other party in the transaction. Cross was a member of the mercantile finn of Cross, Hobson & Co., doing business in Valparaiso. The- same firm had a house also in San Francisco.. Through these houses much of the correspondence necessary in the transaction of the business' was carried on. That Cross, was a member of each of these firms, was but an accident in the c'ase, and would not necessarily make them parties to the contract more than if any other individual'br firm had been his agents; and even if Cross had agreed to make them equal shares in the profits arising from the contract, they did not thereby become parties to it. The firm had no contract with Law on which they could sustain a suit, or be liable to him. Much stress was made in the argument of, this case, that the firm, in their correspondence with Law, giving information of what had been done, used the words. “we” and “us.” There was certainly no grammatical impropriety in the use of these pronouns; but the inference that the firm were not acting for Mr. Cross, and that Law had made some contract with them whicji does not otherwise appear, is certainly not a necessary one either in law or in fact. Every letter of instruction as to purchase of coal was sent by Law to Cross individually. His letter of instruction also to the master of the Antelope directs a consignment of the ves-, sel'to'Cross, and not to the firm; The letters of credit were to Cross alone, on the faith of which he alone could draw bills to make the necessary payments.'
A congeries of instructions, so called, amounting to the num-. ber of twenty-eight, were requested. The court, without confusing the jury , with a special answer to each, one of these propositions, properly submitted .the. facts to the jury,' and gave them instructions as to the law. A large number of *538 these points, which involve questions of law, were ruled in the charge as requested by the counsel. ■
The case was argued here, in some measure, as if it had been an appeal in admiralty, or motion for a new trial.
To comment on all the, objections attempted to be raised in the case would be tedious and unprofitable. It will be sufficient to notice the real questions in'the case, and the iustrue-. tions given by the court. If these were correct, the court below were not bound to answer specifically each question in the catechism, nor this court to comment thereon.
I. .As to the cargo of the Duncan, it was objected that there was no authority to the agent to make such purchase.
' The defendant had, by his letter of May 28, 1850, instructed ,the plaintiff as follows:
“I want you to purchase me two cargoes of coal afloat, and send it to San Francisco as soon as possible; consign it to your house there for me,” &c. ' This cargo was purchased on its way to Valparaiso, with an option to refuse it if it should not arrive in sixty days. The coal afterwards arrived, but the 'master of the vessel refused; to take it to San Francisco, and •another vessel was chartered to take it. There was some dispute as to what was meant by the term “afloat,” and testimony -was'given as to its meaning among merchants.
The court submitted the question to the jury.
"We can discover no error in this instruction.
II. As to the coal purchased at Coquimbo, and afterwards sent to San Francisco by the Amelia, Law had instructed Cross to buy 350 tons of coal at Valparaiso for the Antelope, which was expected to arrive at Valparaiso by the first of June; but she did not arrive till 28th of August, in consequence of delay in starting and detention on the way. In July Cross wrote to Law that he had purchased the coal for the Antelope, not at Valparaiso, but at Coquimbo, stating as a reason that coal was scarce and difficult to procure, and he was fearful the vessel might arrive and not find a supply, and Coquimbo was but a day’s sail further on the way, the coal cheaper, and a safer and easier place to ship it. But when the Antelope arrived after- *539 wards, she was so much disabled as to require repairs, aud being delayed at Valparaiso for that purpose, the master preferred to have other coal purchased at Valparaiso, which could be put on board while his vessel was being repaired, and directed the coal at Coquimbo to be sent to San Francisco.
The defendant objected that this purchase was' not within his instructions.
It presented a case where the agent, acting, as he supposed, for the best interest of his distant principal, under the circumstances, had nevertheless gone beyond the letter of his instructions. But, as the coal wa3 purchased for the principal, it belonged to him if he chose to accept it. If the price had risen, and Cross had sold it, Law might justly have claimed the profit; and when informed by his agent of what he had done, if the principal did not choose to affirm the act, it was his duty to give immediate information of his repudiation. He cannot, by holding his peace, and apparent acquiescence, have the benefit of the contract if it should afterwards turn out to be profitable, and retain a right to repudiate if otherwise.
The principal must, therefore, when informed, reject within a reasonable time, or be deemed to adopt by acquiescence. The rule is said to be a “stringent one upon the principal in such cases, where, with filll knowledge- of the acts of the agent, he receives a benefit from them, and fails to repudiate theacts.” See
Hoyt
vs.
Thompson,
(
Whether there was such acquiescence or not the judge left iairly to the jury.
TIT. The letter of Haekley was part of the res gesta, and properly admitted. The court instructed the jury that Mr., Law .was bound by his advice or direction, because it was outside of his authority. • The defendant cannot complain of this instruction. • ' -
IV. On the arrival of this coal at San Francisco the price of coal had fallen, and it became the interest of Law to have the loss thrown on Gross. Accordingly, Charlick, Law’s agent to attend to his steamboats on the Pacific, assumed the power of repudiating the contract, and'set up as a pretence that the coal was not good. As he refused to receive it,, the coal was *540 consequently sold for the benefit of whom it might concern, and bid in by Charlick for a sum which paid the freight only, leaving the price paid for the coal by Cross unpaid.
The court properly instructed the jury that the authority of Charlick, as shown, was not such as to authorize him to repudiate the purchase, leaving it to the jury to say, from the evidence, whether the defendant had communicated to Charlick any specific authority to reject the coal, and also whether the coal was of proper quality or not, arid what was the contract, or whether there was any parole contract between Cross and Charlick.
There can be no error imputed to this instruction, except that the jury were left to presume a private instruction to Char-lick, of which there was no evidence. But plaintiff in error cannot complain of errors in his favor.
These are all the material points in the case that were properly raised on the trial below^ and it is not necessary to vindicate our decision by a more minute examination of the facts. The court below has given correct .instructions as to the questions' of law really involyed 'in the ease, and properly refused to co nfuse the case'by a specific answer to each of the twenty-eight points. Those not answered in the instructions we have1 noticed were either answered affimatively or'.were wholly irrelevant. '
Judgment of the Circuit Court affirmed.