Mapp v. Phillips

32 Ga. 72 | Ga. | 1861

By the Court.

Jenkins, J.,

delivering the opinion.

1. The testimony of Rutherford, the admission of which is the error assigned in the first exception, related to the authority given to another agent of the plaintiff in error to sell this slave. This agency, whatever it may have been, had expired before the agency was cast upon Bishop, who sold to the defendant. Bishop was not a sub-agent, appointed by Gilbert, the first agent, but derived his authority directly from Mapp, the plaintiff in error, and that, too, after Gilbert had absconded. We do not perceive how the second agency can be connected with the first, for the purpose of enlarging the powers of the second. The two delegations of authority being entirely distinct acts, it was certainly the privilege of the principal, either to curtail or to enlarge the authority. If this evidence of Eutherford’s was offered to show the extent of Bishop’s authority, it was incompetent and illegal. If for any other purpose, it would seem to be irrelevant, and therefore illegal. We think the Court below erred in admitting it.

2. The 2d and 3d exceptions assign error, in that the Court erred in permitting Cox, who was the agent of the defendant in error, in the purchase of the slave Isaac, from Bishop, as agent of the plaintiff in error, to testify to the sayings of Bishop as to his authority to sell; those sayings not being strictly within the scope of his written authority. It appears that at the'time of Bishop’s appointment as agent, the slave Isaac, the subject of this agency, was in the possession of one Armstrong, then in treaty with the plaintiff in error for the purchase of him. Bishop was sent by the owner, to Armstrong, with a letter, stating that he, Bishop, was fully authorized to negotiate with Armstrong touching the sale; and failing to effect that, was. to receive Isaac from Armstrong, and take him back to his owner, Bishop’s principal. This is distinctly stated in the body of the letter, and as distinctly repeated in a postscript. Bishop, failing to negotiate a sale to Armstrong, received the boy Isaac from him, and instead of taking him home, to his owner, took him to Macon and put him upon the market for sale. Cox, the agent of the defendant, commenced a negotiation with Bishop for him, but took the precaution to inquire into Bishop’s authority to sell. Being referred by Bishop to Mapp’s letter to Armstrong, as the evidence of his authority in the premises, Cox went to Armstrong, seeking information. He testifies that Armstrong read him a part of the letter, whereupon he returned to Bishop and made the purchase. Armstrong testitifies that he read to Cox “ the material points ” of the letter. Points material to what ? Clearly to Bishop’s authority to sell the slave.

In this letter there is no ambiguity whatever. It is an authority to sell to Armstrong, not to any other person; not a general authority to sell. Bishop distinctly stated to Cox that this letter contained bis authority in the premises. Any declarations, therefore, of Bishop to Cox, claiming for himself a larger authority than that conferred by the letter, were clearly incompetent evidence. Story onAgeney, sec. 76. Paley on Agency, 179, and note. Ibid. 198, and note. Hogg vs. Smith. 1 Taunt. P. 347, 352. Murray vs. Ea. Ind. Co., 5. B. & A. 204-210-211. We, therefore, think there was error in this ruling.

3. The remaining exceptions assign error, in that the Court below refused to grant a new trial on the ground that the verdict was contrary to law and'evidence.

Counsel for defendant in error seek to sustain the verdict on two grounds, 1st, that there was sufficient evidence of Bishop’s general authority to sell, and 2ndly, that plaintiff in error subsequently ratified the act.

The authority to sell must be derived either from the letter to Armstrong, from Bishop’s declarations, or from the declarations of the plaintiff in error, as testified to by Gris-wold.

We find no such authority to sell in the letter to Armstrong, (which see in statement.) All expressions in the letter conveying the idea of full power, in Bishop, as the agent of plaintiff in error, relate expressly to the sale to Armstrong. It is clear that the writer did not contemplate a sale to any other person. It is clear he intended that, in the event of Armstrong declining the purchase, Bishop should receive the slave, and take him baek to the owner ; nothing more. Humane masters desiring to sell slaves, are always cautious into whose dominion they transfer them. This is a plain dictate of humanity; an obvious duty. But in any view, the law recognizes the right of the principal by clear, unequivocal terms, to limit the power of his agent. We think it was clearly limited in this instance by the written authority, and that the limitation was as clearly exceeded.

We have already said that the declarations of Bishop, to enlarge the authority conferred by the letter, were incompetent evidence for that purpose, and have only here to add that from this source, no general authority can be derived. Mapp, the plaintiff in error, stated to Griswold, “ that he had given to Bishop, a power of attorney to sell this slave, that he had heard nothing from him since—was going to Macon to inquire about Bishop—and knowing that he had been in the employment of Griswold, had stopped there to inquire, and (finding Griswold ignorant of his whereabouts) feared he (Mapp) would lose his money.” 1

If the written authority, in evidence, will answer the description given by Mapp in this conversation of the power to Bishop, he must be understood to refer to that—unless there be other proof that he had actually given some other authority in writing touching this business.

The letter to Armstrong is certainly, not in form, a technical power of attorney. But the law does not exact technicalities in such matters. It requires only a clear, distinct expression of the authority intended to be conferred. The power intended here, being a special limited one, was well set forth in a letter to the only person to whom the writer gave the agent authority to sell. Still it was a poiuer of attorney to sell the negro. Circumstances did not require more detail in this conversation than Mapp used. It does not appear that he knew, then, of the sale by Bishop to defendant in error. Indeed the reasonable presumption is that Bishop had left him wholly ignorant of his acts and doings, and 'it is but fair to infer that he then supposed Bishop had sold to Armstrong, as authorized, and made way with the purchase money, and hence his fears that he would lose it. To hold that, in this conversation, Mapp referred to some other power of attorney, would be a forced construction of language. So that, we do not find in this, evidence of a general power to sell.

The remaining question is that of ratification.

The evidence of it is said to be found, 1st, in the evidence of Griswold; 2d, in that of Grier; 3d, in his long acquiescence. It is conceded that there has been no direct positive ratification. It is arrived at inferentially.

To infer ratification, either from, declarations or acts, it must appear affirmatively, that at the time of making the declarations, or doing the acts, the principal knew that the agent had performed the act, claimed to have been ratified. It does not appear that at the time of his conversation with Griswold, plaintiff in error knew that Bishop had sold the slave to defendant in error; indeed, the contrary would seem to be highly probable. We, therefore, find no evidence of ratification in Griswold’s testimony.

Is it to be found in Greer’s testimony ? All that bears upon this question is this, “ witness saw Mapp in Americus and in Macon, looking for Bishop, to get the money for which he sold the negro to Cox; that Mapp also told witness he went to Alabama, partly on the same business; that he (Mapp) had authorized Bishop to sell the negro to Genv Armstrong; and that if he could get the money which Cox paid Bishop for the neg;ro, he would be satisfied.” In this conversation, speaking of the authority he had given Bishop, he states, in entire consistency with his written authority, that he had authorized him to sell the negro to Gen. Armstrong. This was equivalent to saying that he had not authorized the sale actually made; but he adds, if he could get the money paid to Bishop he would be satisfied. At most it is only a declaration that he would ratify the sale on a certain condition. This, and any efforts he may have made to find Bishop, may be put to the account of a desire to avoid litigation— to submit to a wrong on certain terms; and was advantageous to the defendant in error, who should not be permitted to wrest such declarations and acts to the prejudice of plaintiff. There is nothing in it which amounts to, or indicates the intention of, ratification.

Beyond this there is no evidence of acquiescence other than the lapse of time, between his knowledge of the sale and the commencement of the action. It appears that about three months intervened. It does not appear that any term of any court, having jurisdiction of the case, had been allowed to pass. There is no settled limitation of time within which. suit must be brought, to avoid the legal inference of ratification. The authorities say that acquiescence, or non-action, more properly speaking, must not extend beyond a reasonable time. Circumstances must always be looked to to determine what is a reasonable time. We think that, under the circumstances of this case, the action was commenced within a reasonable time.

Our opinion is that the verdict is contrary to the law and the evidence, and that, for all the reasons assigned in this opinion, the Court below erred in not setting aside the verdict and ordering a new trial, and we therefore reverse the judgment.

Judgment reversed.