31 Tex. 443 | Tex. | 1868
—This was a suit founded on a copy of a promissory note, the original alleged to be in the possession of plaintiff in error.
Judgment in the court below for principal and interest in favor of defendant in error.
We learn from the statement of facts that in April, 1862, Alexander, defendant in error, called on B. F. Hawkins, and stated to him that he was about leaving, to be absent for an indefinite length of time. He asked and obtained permission to deposit with Hawkins the note sued on. Ho instructions 'were given, and, so far as the record discloses, Hawkins was a mere bailee.
In a short time thereafter Alexander left the country, and did not return until the spring of 1866. During his absence no communication passed between them.
In the year 1863 Hawkins listed the note for taxation, under a law of the. Confederate States, and at the same time indorsed thereon his willingness to receive Confed
This indorsement soon came to the ears of Ransom. He tendered the Confederate money, which was reluctantly received by Hawkins, and the note delivered up. Ransom was distinctly informed by Hawkins at the time “that he was acting without instructions,” and that, if his principal was not satisfied, Ransom must “ make it right” on his return. To this no remembered reply was given.
Alexander returned in the spring of 1866, and was put in possession of the foregoing, and the “Confederatemoney” handed to him by Hawkins, which was received.
Alexander remarked, “I will have no controversy with you, (meaning his agent Hawkins,) but if Ransom does not make it right, I shall always think he ought to.”
Two questions arise on this state of facts.
I. Was the payment to Hawkins such a one as to discharge the payee, and bring it within the rule of an executed contract, which this court will not disturb, as laid down in [McCartney v. Greenway, 30 Tex., 754] Austin term, 1867? And, if not,
H. Was there a ratification subsequently by Alexander?
Admitting that Hawkins was an agent, he must be held to the strict discharge of his duties as such. It is recognized as a correct principle of law, that a person in the possession of negotiable paper has an implied power to collect it; hut as an agent he is not authorized to receive any other than lawful currency. To hind his principal, there must he an absolute payment in lawful money. (Story, on Agency, § 215.)
In the case at bar there can be no pretense that Confederate money was lawful currency. It was a treasonable issue: its capital stock the gunpowder and bayonets which upheld the then existing rebellion. This was well known
The ground relied on as a ratification of the pretended payment is equally untenable. It would require strong proofs to establish a ratification when nothing of value is received. The evidence should be affirmative in its character; and then it would be regarded rather in the light of a gratuity than as a ratification founded on a valuable consideration. In the case before us the principal never acquiesced for a moment. True, he would have “no controversy” with his trusted friend Hawkins, He acquitted him of all responsibility; but he very plainly disaffirmed the pretended payment, when he observed that “if Ransom did not make it right he should always think he ought.” This could have no other meaning than if it was not voluntarily “made right” a resort would be had to the courts to coerce a compliance with the just demand. This in fact was done fit the next term, of the court thereafter.
There are many errors assigned, growing out of the defense set up of a compliance with the laws of a de facto government. We do not regard these errors as pertinent to the issue.
It is sufficient to observe, in reply to them, that a compliance with no. law, rule, or act, designed to aid in the establishment of the independence of the Confederate States, can furnish any defense against a lawful demand. This portion of the answer, setting up in defense the laws of the Confederate States, should have been stricken out on motion.
There is a suggestion of delay, but, inasmuch as plaintiff in error has furnished us with a lengthy brief, evincing earnest convictions in the merits of his case, we will simply affirm the judgment, which is done.
Judgment affirmed.
