| La. | Jun 15, 1837
delivered the opinion of the court.
The plaintiff sues for the restitution of a lot of hogs in the possession of the defendant, of which he alleges the latter wishes to defraud him, or for the recovery of the price. The defendant pleaded the general issue, and averred that he had purchased the lot of Foster, who was authorized by the plaintiff to sell it, and who received payment therefor.
There was a verdict and judgment for the plaintiff, and the defendant appealed. The testimony shows that the defendant purchased the hogs from, and made payment for them to Foster, who informed him that they belonged to the plaintiff, and that the validity of the sale was to depend on bis ratification; that he, Foster, had been entrusted with them by the plaintiff, and was obliged to sell them, because he was without means of buying corn to feed them.
The plaintiff arrived a few days after, and called on the defendant, and was informed by him that he bad purchased the hogs of Foster, who told him they were sold for the plaintiff’s benefit, and that the validity of the sale depended upon the latter’s ratification. The plaintiff did not then disavow the act of Foster, but intimated his intention of pursuing him to recover the money. For this purpose he requested the defendant to aid him by an advance of twenty dollars, which was done, and to furnish him with Foster’s receipt as evidence of his claim against the latter. The pursuit of Foster having been neglected or proving fruitless, the present suit was brought.
We are not satisfied with the correctness of the verdict. ^ aPPears to us that if the plaintiff intended to disavow the sale by Foster, he ought to have done so immediately on his arrival. He ought not to have played fast and loose, and induced the defendant to forego the immediate pursuit of Foster. /No principle is better settled than that he who is ,/ , 1 r , , ,. , ,. n0™ea that a contract has been made for him and subject to his ratification, by a person who pretended to have autho-is.„, J . ,r... . . ,. nty for that purpose, is presumed to ratify it, unless Immediately on being informed thereof, he repudiates it. Digest lib. 14, tit. 6, l. 16. Part. 5, tit. 1, l. 6, note 2. Merlin's Questions de Droit, verbo Compte Courant, section 1. Paillet on the 1985th article of the Code Napoleon. 7 Martin, N. S., 143. Flower et al. vs. Jones et al., Louisiana Code, article 2958.
We have thought it best to have the case submitted to a second'jury, especially as the defendant’s counsel has urged, that he will be enabled to prove that the money received by
It is, therefore, ordered, adjudged and decreed, that the . ., _ . . ’ J , „ . n _ . judgment of the District Court be annulled, avoided and reversed, the judgment set aside, and the case remanded for a new trial; the costs of the appeal being borne by; the plaintiff and appellee.