Scott v. Johnson

52 Tenn. 614 | Tenn. | 1871

Lead Opinion

Eeaderick, J.,

delivered the opinion of the Court.

Complainant filed her bill against defendants, in the Chancery Court of Memphis, on the 6th April, 1866.

The object of the bill is to rescind the sale of fifty acres of land, near Memphis, which was conveyed by deed by complainant to the defendant, Lizzie F., and to obtain compensation for certain personal property sold at the same time for $800.

The land was sold for $25,000 — $15,000 of which were, by the terms of the contract, to be paid at the time of the execution of the deed in cash; and for the remainder, $10,000, the note of the defendant was to be executed.

The ground upon which the rescission is sought in the bill is, that the defendant, J. Cummings Johnson, who negotiated the trade with complainant for the land and personal property, perpetrated a fraud upon her in the payment of the $15,000, and $800, in a check upon a bank in which he had on deposit only Confederate money, and which sums were paid in Confederate money, notwithstanding complainant had repeatedly and uniformly refused to receive such funds.

From the record it appears, that ten days or two weeks before the trade was concluded, Mrs. Governor Jones and complainant, who resided upon adjoining places near Memphis, went together into the store of Lehman & Co., merchants in that city, and that defendant, J. C. Johnson, a partner in said firm, remarked to Mrs. Jones that he understood that complainant desired to sell her place, and asked the price and kind of money that she would take. Mrs. Jones replied that complainant asked $25,000 for it, but that she would not touch Confederate money, and added, jestingly, that she wanted gold. While this conversation was going on, complainant was in a different part of the store, and was shortly thereafter introduced by Mrs. Jones to the defendant, J. Cummings Johnson.

Some few days after this first meeting of the parties, the defendant, J. Cummings Johnson, went out to the place of complainant, examined it, and agreed with her upon the terms of sale.

What were the precise terms as to the price to be paid, the time of payment, and kind of money, agreed upon between the parties at that time, does not appear from the testimony of any witness present at the interview.

It is, however, alleged in the bill, that the land was sold for $25,000 in good money, $15,000 of which were to be paid at the time of the execution of the deed, and a note, at three years, was to be executed for tbe balance; that the land was worth that price in good money, and that complainant, during the negotiation for the purchase, and before the deed was executed, “assured and warned” defendant repeatedly that she would not receive Confederate money in payment of any part of the purchase-money of the 'land or personal property,- but that she would require other and better currency; and- to this the defendant, J. C. Johnson, agreed and acquiesced, saying that the matter could be easily arranged, and that he would fix all that right; that he would give her a check upon a good bank for the cash payment, intimating that he had other and better funds than Confederate money in bank, when in fact he had no other kind on deposit than Confederate treasury notes, as he well knew, and did not intend to pay in any other funds. It is- further alleged in the bill, that complainant did not know that defendant had not other funds, or did not intend to provide sufficient funds to pay said cash payment, and did not for a moment doubt his intention to pay her( in good funds, as she had repeatedly, distinctly, and positively informed him that she would. not take Confederate notes, and he having plainly and distinctly acquiesced in her demand. • Relying upon his assurances -to pay her in good money, she signed the deed for the land the 7th May, 1862, and placed the same in the hands of a friend to deliver upon receiving the $15,000 in money and the note for $10,000-; but the said J. Cummings Johnson, falsely and fraudulently, and in violation of his positive agreement with complainant, took the deed from her friend and gave the check of Lehman & Co. upon his banker, well knowing that the same would be paid in Confederate money, and well knowing he had no other funds with said banker wherewith he could or would pay the check ; that the Confederate money, $15,800, was received by her said friend from the bank on said cheek without her knowledge and consent, and in violation of her agreement with said defendant, J. Cummings Johnson; and as soon as complainant learned how said settlement had been made, she repudiated the same, and refused to accept or receive the said Confederate notes, and never did receive the same, or in any way sanction or assent to said settlement, of which she gave said defendant notice.

That very soon after said pretended settlement and payment, the United States military forces occupied Memphis, the Courts were closed and she was prevented by the unsettled state of the country from resorting to the civil tribunals for redress; that since the war has closed she has caused application to be made to said Johnson' to settle with her upon just principles, which he has refused to do.

The bill is not sworn to, and ealls upon the defendant to answer upon oath.

The defendants file their answer, and deny the charge of fraud or bad faith, and also deny that the $15,800 was paid in Confederate money, and especially do they deny that complainant, during the negotiatins which preceded the sale, repeated often, or even stated at all, that she wanted good money for said land, or words to that effect.

Respondent states that a few days previous to the conveyance, complainant called at the store of* Lehman & Co. and informed him, in the presence of one of her friends, that the property was for sale and requested him to purchase it, and urged him to go out and look at it, which he did. She refused to take less than $500 per acre, and when he asked her the terms of payment she referred him to her friend R. C. Brinkley, and said whatever he did would be all right. Shortly after this he called upon Brinkley and agreed with him upon the terms, which were carried out, to-wit, $15,000 in cash and the note of defendant, due 7th May, 1865; that Brinkley expressed no unwillingness to receive Confederate money, and as he remembers, nothing was said about Confederate money between them. Respondents deny that complainant said any thing, preceding the interview with Brinkley to settle terms, about being unwilling to take Confederate money. That a few days after the settlement of the terms between him and Brinkley, the said Johnson called at Brinkley’s office to get the deed and make the payment; complainant being present, said she had fears about the currency, and asked respondent what kind of currency he intended to pay the $15,000 in. He replied that he made no difference in funds, for he deposited all funds which he received in bank together to his credit, and that all he could give would be a check on his bank or banker. This conversation occurred before the deed was signed, and that complainant and Brinkley were both present and heard distinctly, and understood what was said; and respondeat states that, with the distinct understanding as above stated, be gave to Brinkley, witb tbe assent of complainant, the check of Lehman & Co. on the banking house of J. B. Kirtland or the Jackson Insurance Company for $15,000, payable to complainant or bearer; and respondent denies that said check was payable in Confederate money, and he does not know or admit that the check was paid in Confederate money, and requires strict proof, and insists that the bank check was a legal payment, and the holder could have held the drawers responsible if they refused to pay in legal funds, and that they did not pay Confederate money for said land.

A few weeks after the execution of the deed complainant complained to him, respondent J. C. Johnson, that she had sold the land too cheap, and that she would require the gold on. the $10,000 note, and subsequently called on him and demanded payment of that note, without objecting to the payment already made, until defendant produced her note to 'Mrs. Halliday for $9,000 as an offset, when she spoke of repudiating the transaction.

Respondents insist that complainant ratified the transaction, and never to their knowledge repudiated the trade until the offer of settlement above stated.

Respondents admit the Federal occupation of Memphis, 6th June, 1862, the closing of the Courts for some time, and, that since the close of the war, several applications were made to him, on behalf of complainant, to settle the matters between' them, and admits that J. Cummings Johnson furnished the means to buy the property, and ' had the same conveyed to his wife, as a settlement upon her.

The respondents again deny that defendant J. C. Johnson, before the writings were drawn, was repeatedly assured and warned that complainant would not take Confederate notes, or that anything was said about the currency except as before stated, and they especially deny that they paid the $15,000 directly or indirectly in Confederate notes, or that the drawers of the check had no other than Confederate notes on deposit in said bank when the check was given, and they deny that there was any agreement between depositors and the banks that checks should be paid in Confederate notes' alone, and charge if complainant did receive such, she did it voluntarily, and could have demanded and received legal and good currency. And they deny that they knew of complainant’s repudiating ■the trade until the filing of her bill.

Such are the material allegations of the bill, and the statements of the answer. ■

Mrs. Jones testifies, that about two weeks before the execution of the deed, she was in the store of Lehman & Co., and defendant, J. Cummings Johnson, commenced the conversation by saying to her that he understood that there was a place near her’s for sale, and asked her what it was worth. She replied that it was worth $500 per acre, the price she asked for her own place. Defendant said upon her judgment he would take the place, and asked the witness what kind of money Miss Scott would take, to which the witness replied, “she would not touch Confederate money,” and laughingly said, “she wanted gold,” to which the witness does not remember that defendant made any reply. Miss Scott was then in the store, but it does not appear that she participated in, or heard any part of the foregoing conversation; indeed, it may be reasonably inferred she did not, as the witness states that at the conclusion of the conversation she introduced defendant to complainant.

Mrs. Jones further states in her deposition, that she was present at Mr. Brinkley’s office when the deed was written, and heard defendant, J. C. Johnson, say to Miss Scott, in reply to something said by her to him, which witness did not hear, “that he would give her a check upon his broker, Mr. Kirtland,” whose office is sometimes called “The Jackson Insurance Company.”

itolfe S. Saunders testifies that he was present at Brinkley’s office when the trade was closed, and heard Miss Scott tell Mr. Johnson thát she would not take Confederate money in payment for the land, or in. payment of a check, or in that trade. She was very emphatic in saying that she would not take Confederate money, and saw Mr. Johnson give her a check.

Geo. J. Henry, the teller of the Jackson Insurance Company, or Kirtland’s Banking House, testifies that in May, 1862, the banks in Memphis paid out no other funds but Confederate notes on checks, and that Lehman & Co., had nothing but Confederate money on deposit in their bank at that time, and their checks were paid, and would have been paid in nothing else, at that time, and these facts were well known to them.

A copy of an agreement is also exhibited and made evidence, by consent, showing that Lehman & Co., and others, in March, 1862, bound themselves to take Confederate treasury notes, or notes of solvent banks, for sums deposited in the Jackson Insurance Company.

This agreement of depositors gave the Insurance Company the right to pay depositors in either at their election.

R. C. Brinkley testifies, that in the spring of 1862, complainant called at his office a.nd informed him she had sold her place to defendant, J. C. Johnson, for $25,000, and she stated the terms to be $15,000 in cash, and his note for $10,000 payable in three years, and desired witness to fix up the papers; that is, write the deed and receive the money and note for her; that Johnson would call for the deed, and pay the money and execute his note; that Mr. Johnson had agreed to pay good money, and not Confederate notes, and that I must not receive Confederate money.

Witness _ had several interviews with complainant before the trade was closed, when she said she would not receive Confederate notes. He told her Johnson would pay in nothing else, and was making the trade to get rid of his Confederate money, and advised her to give up the trade if unwilling to take Confederate notes. Complainant then went to see Johnson, and informed him of the apprehensions witness had expressed to her, and the defendant assured her that she should vbe paid according to the original understanding, and that he would give her a check upon a good bank. When the title papers were made out, complainant and defendant J. C. Johnson were present; the deed was handed to Johnson, and the check and note handed to complainant or witness, and witness took the check and presented it and drew the $15,000 in Confederate money. When informed several days thereafter that Confederate money was received, complainant complained bitterly, spoke harshly of Johnson, and said that he had deceived her and treated her badly, and told witness to take the money South and do the best he could with it. Witness did take it South and loaned it, a few weeks afterward, except $2,000, which witness retained to pay himself and J. M. Lea, for money loaned to complainant; that he had the $10,000 note until the spring or summer of 1863, when complainant came by Canton, Mississippi, where he then was, to get the note, being on her way to Memphis, and as she stated, intended to collect the note. Witness thought the trade a good one even for Confederate money, and although never authorized to receive such funds, he thought from complainant’s acts and words, she would finally acquiesce in it, and as her friend wished her to make it, although • Miss Scott all the time insisted that Johnson was to pay good money, by which I understood her to mean current Tennessee bank notes.

Cyrus Johnson, father of defendant J. Cummings, and one of the members of the firm of Lehman & Co., testifies that he was salesman in the retail department of the firm, and that his - impression is that nearly one-half of their receipts in that department, in April and May, 1862, were in Southern bank notes, and a less proportion in tbe wholesale department, and that the receipts were deposited after 1st April, 1862, with the Jackson Insurance Company. He further states that every deposit made in April and May was in Confederate notes, and that they did not deposit all their funds, but kept some money in their safe.

Such are the leading features of this cause, as presented by the facts; and we are of opinion that they demonstrate that the complainant never did agree, or intend, at any time previous to the execution of the deed by her, nor at the time of its execution, to receive Confederate notes for the $15,000 agreed to be paid in cash, nor did she, at any time, authorize Brinkley to receive such funds.

We are further of opinion that J. Cummings Johnson was fully informed of her purpose not to receive that currency, pending the negotiations for the purchase of the property, and at the time of the execution of the deed and the drawing of the check upon the Jackson Insurance Company, and that in accepting the check, complainant was under the impression, produced by the acts and declarations of defendant J. Cummings Johnson, that she was receiving funds better than Confederate notes. It is difficult to resist the conviction that Brinkley, who had several interviews with said defendant upon the subject pending the negotiation, did communicate to him his instructions not to receive Confederate notes; and from all the circumstances, the conclusion is almost irresistible that Brinkley must have so informed him, and impressed him, with his own expressed belief, that after the trade was once closed and payment of the check made, in Confederate money, that complainant would acquiesce in it. ■ It is hard to reconcile the conduct and declarations of said defendant upon any other hypothesis.

Although the defense set up in the answer, that the payment was made in a check, and not in Confederate notes, is literally true, yet, as a cash payment, it was practically and substantially a payment only in Confederate notes. It is no answer to this, to say that the drawers were solvent, and if the bank refused to pay in good funds, they were liable. The argument concedes the liability to pay in good funds, and the facts in the case show the payment was to be in cash,^ and not on paper that it might be necessary to bring suit upon. And it is clear that defendant knew his check would be paid only in Confederate notes, as he had nothing else on deposit in the bank checked upon.

If the Confederate money had been offered complainant when the deed was executed, she would have rejected it. This is manifest from her repeated and emphatic declarations before the check was given, as well as at that very time, and also from her decided and unequivocal disapproval of their acceptance by Brinkley, in payment of the check, when he informed her of the fact of his acceptance of such funds from the bank.

Respondent admits in his answer, that complainant, at Brinkley’s office, when the deed was executed, expressed fears about the currency, and asked what kind of currency he intended to pay the $15,000 in, and that he told her he made no difference in funds; that he deposited all he received in bank together, and all he could give her was a check on his banker. It is in proof that defendant, J. C. Johnson, had no individual bank account; and in speaking of the check and funds checked upon, he referred, of course, to the check of his firm and their funds.

Now, is this statement in the answer true? It is shown by the testimony of Henry, the teller of the bank, and his exhibit of Lehman & Co.’s deposit account, and the testimony of Cyrus Johnson, one of the firm, and the exhibit of the firm bank-book, that not one dollar of any other than Confederate funds was deposited in April or May, 1862, notwithstanding Cyrus Johnson says that about one-half of the receipts of their retail business were in Southern bank notes, and that their deposits were generally made daily. When asked to explain why, if half their receipts were in Southern bank notes, no deposit of such notes was made at that time, he answers that they kept some of the money received in their own safe. Thus showing clearly that the statement in the answer, that they deposited all funds received together and made no difference in funds, was not true in point •of fact. Upon defendant’s own showing, the complainant would naturally and reasonably have inferred that the defendant’s check to her would be paid in the best funds he had on deposit.

Saunders, however, proves that at that time complainant told the defendant, very emphatically, she would not take Confederate money; and it was probably in reply to tbis, that he said he would give her a check. The inference is irresistible that he designed to impress complainant with the belief that she could draw from the bank, upon the check he gave her, other and better currency than Confederate funds, by saying to her, when she refused to take that currency, “that he made no difference in funds, and deposited all he received together,” while he knew, as shown by the testimony of Henry, by his written agreement with the bank, by his own bank-book, and the testimony of his father, that he had nothing on deposit but Confederate notes, and that his check would be paid in nothing else; yet he denies in his answer, that he paid the $15,000 in Confederate notes, directly or indirectly, and also denies that he had no other funds on which he could check but Confederate money, but alleges that the holders of their checks, by special agreement with the banks, were not obliged to receive Confederate money alone, and could have demanded legal currency.

We are, therefore, of opinion that the payment of the $15,000 check to complainant, under the circumstances disclosed in the record, was a fraud upon the complainant — a deception — by which she was induced to part with the title to her property, without a corresponding promised benefit; and for this reason, the contract of sale should be rescinded.

The fact that the 'complainant might have inquired of the bank to know if the check would be paid in good money, and thus have detected the fraud, does not preclude her of the right to be relieved against it.

She trusted in bis representation of facts, and acted on them, and defendant can not be’ exonerated from responsibility for a false representation of facts simply because complainant did not take precautionary measures to detect it: 3 Yerg., 38.

Wherever a party intentionally misrepresents a material fact, or produces a false impression, in order to mislead another or to obtain an undue advantage of him, it is a fraud in its truest sense: 1 Story’s Eq., s. 192-3.

The misrepresentation must be of material facts, in regard to which one party places a known confidence and trust in the other.

In mere matter of opinion, equally open to both sides for examination and inquiry, and where neither party is presumed to trust the other, but to rely upon his own judgment, the rule is different: 1 Story’s Eq., s. 197.

But where there is suggestion of falsehood, or suppression or concealment of facts material to the interests of a party, which the other is bound in conscience to disclose, equity will grant relief: 1 Story’s Eq., s. 204.

But it is insisted by the defendant that, even conceding that the conveyance of the land was procured by fraud, in payment of the $15,000 in the mode shown, that the complainant, after said payment had been received by her friend and agent, with Ml knowledge of the fraud, ratified and confirmed his act.

It is certainly true that a party who has been defrauded, may by his subsequent acts with full knowledge of the fraud, and it may be added, of his rights, deprive himself of all right to relief as well in equity as at law: 1 Story’s Eq., s. 203, a.

While this general principle may be allowed to be true, it is somewhat difficult to determine practically in cases as they arise, what acts of the parties amount to a ratification of the void or voidable contract, and what evidence, if any there should be, that the defrauded party knew he had a right to be relieved from the consequences of the fraudulent act.

The acts relied upon by defendants, as amounting to a confirmation of the payment of the $15,000 and of the deed, are — 1. That the complainant, after the payment to her agent of $15,000 in Confederate money, requested him to take it South and do the best he could with it. 2. That she- used $2,000 of the amount received to pay that sum to Lea and Brinkley. 3. That she applied, in the spring or summer of 1863, to Brinkley for the $10,000 note for the purpose of collecting it. 4. That she demanded payment o.f the $10,000 note of defendants.

Mr. Brinkley says that complainant was several days in removing her property from her late residence, and that he did not see her, or inform her that he had received the Confederate money for several days after he had drawn it. He further states that she gave possession of the property purchased to defendants and removed to his house. So that it may be inferred that defendants had 'taken possession of the property purchased, and complainant had removed into the family of Brinkley, before he informed her he had drawn Confederate money on the check.

When he did inform her he states “she complained bitterly, and said Johnson had treated her badly, said some pretty hard things about him, and the deception he had practiced upon her, and, after becoming calmer, requested me to take the money south and do the best I could with it. I took the Confederate notes south and loaned them,” etc. The record does not show that complainant ever afterwards asserted any claim to the money loaned.

Should her direction or request to Brinkley be held a ratification or confirmation of the act of which she complained so bitterly? That act was done by him, in violation of her positive instructions, no doubt, under the mistaken impression, on his part, that she would acquiesce in it after it was performed. It was not to be expected that she would at once repudiate the act of her friend and kinsman, at whose house she was a guest. He could not and did not advise her to that course. Most probably she supposed she had no right to do so, and thought herself without remedy. At all events, we can not construe her request to 'Brinkley to take the money south, as a deliberate ratification and approval of an act, which she so un-qualifiedly disapproved, much less can we see that she knew she had the right to repudiate the act.

We think the sound rule, in regard to the confirmation of contracts void for fraud, is that the party defrauded must have knowledge of his right to set aside the contract, as well as knowledge of the fraud itself.

In Bennett v. Colley, 7 Eng. Ch. R., 232, decided in 1833, tbe Lord Chancellor says: “It can never be maintained that the acquiescence of a party under ignorance of his rights, operates as the waiver of any claim, or as a confirmation of anything done against him.” The same doctrine is announced in Cockerell v. Cholmely, 12 Eng. Ch. R.

In 1 McCord’s Ch. B., 391, it is held that “a person may confirm a contract which is liable to impeachment, but then it must be after the party has come to a knowledge of all the circumstances, and does it with a view to a confirmation, knowing that it might be impeached and after the pressure and influence of the original transaction had ceased:” citing 1 Madd. Ch., 16; 2 Scho. & Lefr., 474.

In 2 Kent, 239, note e, it is said: “In Kline v. Beebe, 6 Conn., 494, this subject,” the confirmation of voidable contracts by infants after coming of age, “was very fully discussed and considered, and it was held there were three modes of confirming such contracts: 1. By an express ratification. 2. By acts which reasonably imply an affirmance. 3. By the omission to disaffirm within a reasonable time. This is the rule declared in 9 Vt., 368, and 9 N. Hamp., 439, and it may here be observed generally, that to give validity to a voidable contract by the ratification of the party, he must be fully apprised of his rights, and do the act deliberately and upon examination.” In the text upon the same page in a case of an absolutely void contract, the doctrine is announced still more strongly.

In the case of Cherry v. Newson, 3 Yerg., 369, it is declared that no act will amount to a confirmation of an impeachable transaction, unless the party has become aware of the fraud and is also aware that his act will have the effect of confirming it.”

In the case of Scott v. Buchanan et al., 11 Hum., 468,. after reviewing the cases, the Court say, that if the vendee rely upon express ratification of a voidable contract, it must appear that the act of confirmation was direct and deliberate, and done with a full knowledge that it was to have that effect.

If the vendee rely upon an implied confirmation of the voidable contract, it must appear from facts and circumstances tending to prove a recognition of the contract and inconsistent with'*J the idea of any intention to avoid it, ás illustrated in the case of Wheaton v. East, 5 Yer., 62. In that case the vendee made valuable improvements on the land, a full price was paid, the vendor said he had been honorably paid for it and was satisfied, and proposed to repurchase it.

3. The voidable contract of an infant is confirmed if he omit to disaffirm it within a reasonable time.

The confirmation insisted on in this case is an implied one from recognition of the contract, or from lapse of time.

The case of Wheaton v. East, cited to illustrate the kind of recognition of a voidable contract necessary to confirm it, is very different from this. There the acts of ratification were, that the vendor saw improvements made and said nothing in disaffirmance for four years; a full price was paid for the land, and he said he had been honorably paid for the land and was satisfied, and tried to repurchase. In this case the vendee pays in Confederate notes, which he knows the vendor had refused to take. She complains bitterly when she is informed of it; tells her agent, who has violated her instructions, to take the money south, and do the best he can with it, whether for her or the agent does not appear, and never takes any further interest in, or control over it. This is not such a recognition of the contract as amounts to a confirmation or ratification.

The appropriation of $2,000 of the fund by Brinkley to his and Lea’s debts is' not 'the act of complainant, and she is not affected by it, as the record does not show that she directed such appropriation, or even knew of it.

Nor can the fa,ct that complainant called upon Brinkley in Mississippi, in the spring or summer of 1863, on her way to Memphis, and obtained the $10,000 note of him for collection, as he supposed, be construed into a ratification of said contract.

Respondent, J. Cummings Johnson, states in his answer, that a few weeks after the trade complainant said she would require gold for the $10,000 note, and subsequently presented said note and demanded payment, and he offered the Holliday note, and she spoke of repudiating the contract, and on another occasion, within six months before May, 1866, R. C. Brinkley called to settle said note, etc.

These statements in the answer serve to show, with reasonable certainty, that in 1863 complainant got the $10,000 note, came to Memphis, and then notified defendant that she repudiated the payment and the trade.

The principles decided in this case are not in conflict with those cited in the cases of Adams v. Page, 28 N. Y. R., 103; Knuckoll v. Lea, 11 Hum. Nor with the case of Hamilton v. Saunders, decided by this Court a,t its last term at Nashville. In the last mentioned case, this Court held that there was neither fraud nor duress, and say, if there had been, the party seeking to avoid the sale, being in the country for about three years after the sale, and having failed during all that time to disaffirm or complain of the alleged fraud, it was too late to ask a rescission of the contract upon that ground.

In this case the complaint was immediately made. No act or declaration of complainant is shown which, under the circumstances, amount to a confirmation. The defendant and her agent both leave Memphis within three weeks after the trade, in apprehension of the military occupation of the city, which followed within a few days. After the payment to her agent, it would have been hazardous, in the face of Confederate military orders upon the subject, to complainant to have instituted any proceedings to avoid the contract or to have taken any steps for that purpose; but as soon as she returned to Memphis, in 1863, she did give notice to defendant of her intention to repudiate the trade.

No particular time is prescribed by law within which such notice should be given, but each case must depend upon its own circumstances. And in a case of fraud where the confirmation is to be implied from cir-cnmstanees, certainly it is reasonable that there should be unequivocal evidences of ratification, before a Court of Equity would aid a fraudulent vendee.

The Chancellor decreed for defendant, dismissing the bill. This decree will be reversed, and the sale of the land will be rescinded and set aside; the complainant will, however, be held to account for the $2,000, appropriated to the payment. of her debts. But as to the residue of the $15,000, no decree is made against complainant. And for any improvements upon the land to the amount of the enhanced value thereof, and for the amount of the Holliday note, less the illegal interest thereon. The defendant will be charged with the value of the rents of the property sold, and the $10,000 note to complainant will be surrendered to the defendant.

The cause will be remanded to the Court below, for the taking of the account between the parties upon the principles declared in this opinion. If a balance is found due to defendant, it shall constitute a lien upon the tract of land, and when discharged, a writ of possession shall issue to the complainant.

The costs of this Court will be paid by defendants, and the costs below as may be hereafter adjudged by the Chancellor.

Nicholson, C. J., dissented.

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Dissenting Opinion

FeeemAN, J.,

also dissented, and said the complainant comes too late. She has ratified the act of receiving the money by her agent, and can not now after the money has become worthless, ask to have contract set aside.

The principle of the case of Knuckolls v. Lea, I think conclusive of the case. In that case the Court say, “the complainant comes too late; he should have sought this remedy as soon as he ascertained that it was needed for the effectuation of justice to himself. He has waited until the property has become materially deteriorated in value, that Lea can not be put at all in the position he occupied before the sale: ” Knuckolls v. Lea, 10 Hum.; 7 Hum., 586.

Here the Confederate money has become worthless— and that in complainant’s hands — or rather in the hands of a party to whom it was loaned by her agent.

We held in a case at Nashville, at last term, Hamilton v. Saunders, that a party could not be permitted to retain Confederate money — never tender it back, after knowledge of fraud, or even in case of duress, after the duress was removed, for several years— speculate upon the chances of the success of the Confederacy, and then after the money was found to be worthless, come and insist on rescission of the contract; but that such party must in reasonable time, rescind the contract, or offer to do so, and return or offer to return the consideration received.

If this principle was sound in that case, it is conclusive of this, we think, because here the party had full and complete knowledge of all the facts of fraud, and of violation of authority on part of agent in receiving the Confederate money, from the day he presented it to her, a few days after the trade.

But is uot her conduct a ratification, not only by long acquiescence in the receipt of the money by her agent, but by' affirmative action on her part?

In case of Knuckolls v. Lea, it was held, that the fact that Knuokolls had sold the mills purchased by Lea, though he • had afterward procured reconveyances to himself, was an express ratification of the contract, although it was alleged to have been obtained by gross fraud. He had dealt with the property as his own, after knowledge of the fraud, is the principle of the case, and this has always been held a ratification, I think.

In this case, Miss Scott, when she learned the facts as to the receipt of the Confederate money by Brinkley, while she disapproved of it, was offended at it even, yet she does not refuse to have anything to do with the money, and require him to tender it back to the purchaser, but directs him to take it south, and do the best he cordd with it. Was not this an assumption of control over it as her money, and that with full and complete knowledge of all the facts of fraud? Did she know then, as much as she knew when her bill was filed, as to the facts? The only thing she has learned since is, that the money, after three or four years, has grown to be worthless; but the fraud, and all the facts on which she seeks a rescission were before then as well known as at any subsequent time.

The bill itself charges that she did. not receive the money, but repudiated the action of her agent. This allegation, we do not think, is sustained by the facts in the case, unless we hold the expressions of dissatisfaction made by her to her own agent, Mr. Brinkley, shall be held a repudiation of the contract as to the defendant Johnson, when there is nothing to show he ever heard of it, and the answer on oath expressly denies that she ever repudiated the trade till the filing of this bill. It is true she called on him with the $10,000 note for payment, and, because not settled satisfactorily, she spoke of repudiating it; but this, it seems to us, was a direct affirmation of the contract, and only a threat of repudiation, but not an act of dis-affirmance upon any fair construction of • it, unless we hold that demanding the consideration-money, and talking of repudiating the contract, probably to compel its payment, is a repudiation and disaffirmance.

But, further, Brinkley loaned the money out in Alabama, perhaps, except $2,000. Was not this fairly in pursuance of the authority given him by Miss Scott, when she told him to take it south and do the best he could with it? As between her and her agent, Brinkley, if she had sought to make him liable to account for the money, might he not well have said, I have loaned the money in pursuance of your directions, and have done the best I could with it; and could she have been heard to say, you had no authority to loan it? I think not, clearly. If so, then she has loaned the money out, thus using it as her own, ratifying the act oí her agent in receiving it, in the most emphatic manner, by making the ordinary use of the money to which it was adapted.

Still further, Brinkley was paid a debt she owed him, and one to Jno. M. Lea, amounting to $'2,000, I believe. Does any one suppose she means to pay these debts over again, or that she has ever repudiated this benefit received by her from the money? The record does not show it at any rate; and if the fact was that way, she could have shown it. On the contrary, should we decree in her favor, would she not be bound to be charged with this amount, -because it has paid her debts? If so, on what principle can there be a ratification in part and repudiation in part of an entire transaction.

Mr. Story, in his work on Agency, s. 250, lays it down that “a principal can not ratify a transaction in part and repudiate it as to the rest. He must either adopt the whole or none; and a ratification once deliberately made, upon full knowledge of all the material circumstances, can not afterward be revoked or recalled.”

In addition to all this, there was a note of vendee taken for a balance of purchase-money. The vendor called on Mr. Brinkley, on her way to Tennessee, perhaps for that purpose, thus asserting her right to it as her property. See proof of B. as to this point. If she intended to repudiate the transaction, the note was in the hands of Brinkley, who had wrongfully received it, and she ought to have let it remain there. But does not this show that she had not only acquiesced in the act of her agent, after ample time for reflection, but that she considered the note as her own, and prepared to take possession of it as such.

It is well laid down by Mr. Story, there is no necessity that there should be any positive or direct confirmation of the act of agent in order to make a ratification — sec. 255 — as in case where an agent took a demand for collection, and received in payment bills of a bank, the solvency of which he did not know, and took the guaranty of the debtor, with surety, that the bills were good, and upon making his conduct known • to his principal, the latter received the money and guaranty, saying he would see what could be done with the money, and he kept the money two or three months before he ascertained its value, when the bills proved to have been worth only twenty cents on the dollar, it was held a ratification.

The case before us seems to' me a stronger case than the one given by Mr. Story. Here the party, whose agent took the' Confederate money, has in fact had the money carried to another State. It has been there loaned out, as I assume, in pursuance of her authority, and no doubt with her knowledge, by her agent and confidential friend, Mr. Brinkley; a part of it has paid her debts, $2,000, and no tender of the money back or rescission of the contract attempted for about four years, and then this bill is filed. We think if this does not amount to ratification, nothing short of a deed or other solemn instrument could have that effect.

In addition to all this, she certainly recognized the note given for balance as her’s, when she called at Mr. Brinkley’s to get it for collection, as he supposed. When she called on Mr. Brinkley for the note she gets it, as he understands, for collection; and as is argued, slie calls on Johnson for payment; then it shows Mr. Brinkley was correct as to her purpose; and in execution of that purpose she asserted her right to the money on this note, by demanding it, and by this act necessarily affirmed the contract, and recognized its existence up to that time; for if she repudiated it, then she had no right to collect the note. She could not affirm and disaffirm at the same time — claim the money for the land, and then claim the land too. We can not see how, under well-settled rules, this is not to be held a ratification of the contract.

Now let us assume that the Confederacy had succeeded, and the money not have proven worthless, could the complainant in any Court have had a decree for rescission, based on the original fraud in paying Confederate money to her agent, Mr. Brinkley? We think not. Has she not then held on to this money, and speculated on the chances of the notes being good or proving worthless, for about four years? and now seeks relief over all this, on the ground of the original fraud, which we think has long since been ■waived, and the act of the agent ratified, not alone by acquiescence, but by positive affirmative acts, with as full knowledge of the fraud during all the four years, as she had when the bill was filed.

In the case of Walker v. Walker, decided at this term, where an agent for the collection of money in Tennessee was directed by his principal to send it to him in North Carolina by express, but in violation of his instructions he invested the monev in a check on New York, drawn by a solvent party at the time, and sent the check to the principal. The drawer of the check broke, and the check proved worthless. When the check was received by principal, he forwarded it to New York for collection, not knowing of the failure of the drawer. A majority of the Court held, that this was not a ratification of the act oí the agent in sending the check instead of the money, because he did not know the fact that the check was worthless when he sent it; and not having full knowledge of all the facts necessary to form an opinion, or for intelligent action, he was not bound by the act of sending the check. Two of the Judges of this Court held, even in that case, that the act of sending the check to New York, even in ignorance of the fact .that it was worthless, was a ratification of the act of the agent.

Now let us apply the principle in the above case to the one in hand. Brinkley was not authorized to receive Confederate money. When he told her he had received it, she had a right to refuse it, repudiate the payment and rescind the contract. She was bound to do this in a reasonable time, all the circumstances considered. She could have done it at once. The parties lived at the time in the same city, there was no difficulty in the way of prompt repudiation of the act of her agent. Instead of this, she expressed her dissatisfaction at what was done; but then, instead of rejecting and repudiating it, as we construe her conduct, she, with full knowledge of all the fraud and violation of her orders, adopts the act of her agent, and tells him to take the money south — not back to the party paying it — and do the best he could with it, and •allows him to retain and take the $10,000 note south with him. What more could she have done in the way of adopting and ratifying the act if it had been paid in Tennessee money ? Could she have done more with it, than to have done the best that could be done? In other words, invest it to the best advantage, for that is the plain meaning of her language. Suppose Southern bank currency had been received by her agent, and she had directed him to take it south and do the best he could with it, would this suit have been brought, even though the parties had promised to pay her in the notes of the best banks of the State of Tennessee? We think not. Can the question of ratification in any way be made to depend on the kind of money received, or does it not depend upon assent given to an act done by an agent, with full knowledge of all the facts on which that assent might be expected to depend, and stand on precisely the same principle in case of receipt of Confederate money, as in receipt of anything else, which the agent was not authorized to receive ?

In cases of fraud, Mr. Addison in his work on Contracts, pp. 148, 149, lays down the rule as follows: “Whenever one party of two parties to a contract has obtained money from the other by fraud or deceit, an action may of course be maintained by the cheated party for the recovery of the money so paid. But the latter must promptly repudiate the contract as soon as he discovers the fraud. If a purchaser has been induced to buy goods in consequence of a fraudulent representation made by the vendor, he must repudiate the contract and return the goods as soon as he is aware of the. deceit. If he keeps the goods, or resells them, he can only sue the vendor for a breach of warranty. We can not see why this principle is not as applicable to the case of a seller as a purchaser.” Again, in reference to ratification of a contract, he says, p. 622: “If a bill or note be signed without authority by A’s servant or agent in the name of A, a subsequent promise by the latter to pay the bill is equivalent to a prior authority, and if the proceeds of such bill be applied to A’s use or for his benefit, with his knowledge or concurrence, such application of the money obtained upon the bill would, of itself, amount to a subsequent ratification and sanction of the act of the agent.”

Mr. Story, in his work on .Contracts, vol. 1, s. 497, lays down the rule, “that it is solely at the option of the party upon whom the fraud is practiced whether he will be bound by the agreement or not. Yet if he determines to avoid a contract because of the fraud, he must give notice of such determination to the party within a reasonable time after his discovery of the fraud; and if, with knowledge of the fraud, he acquiesce in the contract expressly, or bring an action on the contract, or do any act importing an intention to stand by it, or remain silent under circumstances which plainly indicate a continuing assent thereto, he can not afterward avoid it; for practically no man is injured, if he know the deceit which is practiced and consents to it, since the deceit tlien becomes an agreed fact- of the case.”

We can not see how, consistent with these well-established principles, which we. have approved in the case of Hamilton v. Saunders, we can grant the complainant the relief sought. She has, with knowledge of the deceit and fraud, acquiesced in the application of $2,000 of the money to her own use in payment of her debt — no doubt knew of the loan of the. money in the south, and so far as we can see in this case, never notified the purchaser of disaffirmance or dissatisfaction, till this bill is filed — only complained to her agent, was dissatisfied, hut did not promptly repudiate, but by her conduct waited and took the chances of the result of the war, before she disaffirmed the contract, and only seeks to do so after the money or notes have become worthless, and the party to whom it was loaned failed to pay it back to her.'

As to the argument from circumstances of country, and influence of military orders, it is all answered by the fact, that she did not hesitate to make the contract, in which she refused to take Confederate money, and we can not think that the fear of military orders had any influence on her subsequent conduct. In fact the true construction of her conduct is, that she was dissatisfied at Mr. Brinkley at his receiving Confederate money, but this was not deemed by her as so serious a matter as to defeat the trade she had made, and while she much preferred funds of a different kind, yet having got this, she perhaps fretted a little at it, but subsided into a not simply passive acquiescence, but actively adopts and ratifies tbe act, by directing Avhat to do with tbe money;' and he did no' doubt as he understood was desired, by taking the money south and loaning it out.

An additional fact, that I think is conclusive of the case, that is, that she recognized the note for balance as hers, and presented it for payment; but when confronted with her own note, she refused to take it up in the settlement. The fact that she called on Brinkley for the $10,000 note, in 1863, to get it for collection, we think conclusively makes a case of ratification, and that a year, perhaps, after the trade, from which we infer she had done what Brinkley supposed she would do, that is, acquiesced in what had been done for her by him.

The case of Scott v. Buchanan, 11 Hum., 468, is cited to support the view of this case taken by a majority of the Court. On looking into that case, it will be found to lay down the precise principle which we maintain" in this opinion. The Circuit Judge charged in that case — which was the case of a deed made by an infant — as to express ratification, “that to-make the deed good by such ratification, the party must not only have agreed to it after she became of age, but at the time she so "agreed to it, must have known that she had a right to disaffirm it if she saw fit to do so.” That ratification — that is express — means “to confirm an act not before binding, making it good, agreeing to or adopting it.” This is all. very well as to express ratification, .or ratification by contract, and that by one who was an infant when the act was done, but bas no application to cases of implied ratification on the part of persons sui juris, who are presumed to know their rights. But the Court in that case also charged the jury, that the deed might be ratified, not only by express ratification, but by doing acts which reasonably imply an affirmation, or by omitting to disaffirm the deed in a reasonable time after the party comes of age.

The Court say, in conclusion of opinion in that case, p. 477, that these instructions conform substantially to the opinion of the Court, and were not erroneous, and that, while there was no proof of an express ratification, yet refuse to disturb the verdict on the ground of the delay of the infant in that case to disaffirm the deed. The maker of the deed had delayed a little upwards' of two years to bring suit, or disaffirm the deed, after the removal of disability of coverture, and it was held to bind her.

But we may dispose of this case, as well as case of Wheaton v. East, 5 Yerg., 62, by saying that both were cases of an infant’s deed, one under disability by reason of want of age at the time of making them, and have no application either upon principle or authority to a case like this. Here the party seeking relief was not only free from all disability, but was competent to contract, and did contract to sell, and did convey the land — all done freely and voluntarily. There is no question of this. The only question is, did she in like manner acquiesce in, and either expressly or by fair implication ratify the act of her agent in receipt of the Confederate money for the land?

She assumed control of it by directing it to be taken south, “and the best that could be done with it, to be done.” She also affirmed the act by receiving the ■ note, or rather calling for it, at Canton, and afterward demanding its payment.

Hence we can not see the force of the reasoning, that concludes that as she demanded the money, and spoke of repudiating the whole contract if it was not paid, that she thereby repudiated the contract. Then it must have been an affirmative in one breath and repudiation in the next; and there can be no principle better settled, that a party when he once completes the act, can not take it back, but must stand by it. She affirmed by the demand of the money; the act is unequivocal, can mean nothing else. She threatened to repudiate, and this is held by the majority opinion to be a disaffirmance. This seems to me to he straining the facts for-a conclusion to a most unwarrantable length, and one to which I can not assent.

Again, it is maintained that she did not know her rights. Assume that -such knowledge — that is, knowledge of the law of the case — is necessary in such case (which I utterly deny), then the law presumes she did know the law in the first place. In the second place, it must be gratuitously assumed that she did not know them, for there is certainly no proof to sustain it, and if such rule be adopted, how can it ever be shown that the law of the case was known by the party? "Who can prove that Miss Scott knew the law in case of fraud of this kind alleged in the ' bill ? By what means could the defendant have shown it, or how could she have rebutted the proof, if any had been presented tending to show that she did know the legal rights arising out of the transaction? Such a rule would be impracticable if adopted, and is in violation of every sound principle of the law, as we understand it.

But further, it does appear in the clearest manner, that she did know her rights, for when she demanded her money,, she threatened to repudiate the whole contract; and that she had the right to do so, and that her view of the case was the correct one, is just held by a majority of this court; so that in fact, the record in its facts meets the very ground, and shows it to be totally unfounded, on which she is in the opinion relieved. She certainly then affirmed the contract when she made demand of the money. She certainly understood her rights as expounded in the opinion, when she proposed to repudiate the whole contract. Now we ask, did she gain the knowledge of her rights immediately after the demand, or are we arbitrarily to assume, with no proof, that she was ignorant of the effect of her affirmation, however clearly she seemed to understand her right to repudiate?

The question we do not think admits of argument, and with this deep conviction, we - can not but enter our dissent to the views of the opinion of the majority of the Court.

In case of an infant, who makes a contract which he may avoid in coming of age, long aequiesence even would be evidence of ratification, but if such infant were to do as many and as unequivocal acts of ratification as is shown in this case, it would be conclusive on him, and bind him irrevocably. Much more ought a party who is free from all disability, either of infancy or coverture, be held bound under like circumstances.

In a word, if the facts in this record do not estop the party from relief, and bind her as a ratification, then I can conceive of no case where a ratification can be made of acts of agent, except by express deed, and we will have to set aside, as not a part of our law, all that class of cases that make a ratification by acquiescence, and failure of party to repudiate the contract of the agent, on coming to a knowledge of all the facts and circumstances of the case. This we do not think can be done.

In a word, we think, so far from there having been a prompt repudiation of the contract of agent, or his act, there was a prompt acquiescence in it, followed by unequivocal acts, which the law has always held amounted to a ratification, and by which she is bound. These general rules may operate harshly in some cases, but they are founded on sound principle, and the law can not be made to bend in order to meet hard cases. All must be governed by the same prescribed rules, and none can be exempted from this operation, without rendering the law uncertain, and fluctuating to meet cases, rather than a fixed rule of action prescribed alike to all, and besides introducing infinite confusion.

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Concurrence Opinion

SNEED, J.,

concurred with the majority of the Court, but gave his own individual views:

A Court of Equity will be slow to determine upon a doubtful state of facts, that the act of an agent, which is in positive violation of the terms and restrictions of the agency, has been ratified and adopted by the principal. And this is especially true with regard to an act which is positively injurious to the principal. The ratification of such an act must be clear and unequivocal. It must not depend upon a judicial interpretation of acts or words that are in themselves equivocal, uncertain or doubtful. The agent in this case was never the agent of the complainant to receive “Confederate money.” If any one fact is patent upon the face of this record, this fact is so. And it is a pregnant fact that should not for an instant be lost sight of in adjusting the equities of these parties. This case must repose then upon the doctrines of the Iuav in regard to assumed agencies. For it will not be pretended that the agent in this case acted otherwise than in utter disregard of the intention, understanding and instructions of the complainant. The principles governing this case are stated with clearness and undoubted correctness by Chancellor Kent: “ That where the principal, with knowledge of all the facts, adopts or acquiesces in the acts done under an assumed agency, he can not be heard afterward to impeach them, under the pretence that they were done without authority, or even contrary to instructions. When the principal is informed of what has been done, he must dissent, and give notice of it in a reasonable time; and if he does not, his assent and ratification will be presumed:” 2 Kent Comm., 801. An illustration is given of this doctrine in the case of a merchant of Palermo who wrote to a house at Marseilles that he had shipped goods consigned to them to be sold on his account. The ship being out of time, the consignees at Marseilles caused the cargo to be insured on account of their friend at Palermo, and gave him advice of it. He received the letter and made no reply, and the vessel arriving safe, he refused to account for the premium paid by the consignees, under the pretence they had insured without orders. But the reception of the letter and the subsequent silence were deemed by the law-merchant equivalent to a ratification of the act: 2 Kent Comm., 800.

It is said to be a principle quite universal that there can be no binding ratification without full knowledge — that it must be made understanding^: Culvee v. Artiley, 19 Pick., 300; Owings v. Hull, 9 Pet., 609; Copeland v. Mercantile Ins. Co., 6 Pick., 198. The ratification of an assumed agency may be express, or it may be inferred from the acts of the party to be effected. Booker v. Tolley, 2 Hum., 308; Lawrence v. Taylor, 5 Hill, 108; Hatch v. Taylor, 10 N. Hamp. R., 538. And if a contract be made, or an act done, for one, without authority, and the consideration of the contract, or act, or a benefit under it, be accepted and retained, or legally demanded, as by bringing suit by the principal, with full knowledge, it is a confirmation of the contract or act: 12 N. Hamp. R., 206; 5 Hill, 137; 5 Metcalfe, 192; 5 Dana, 530. And in general, the ratification of a part of a transaction, by claiming a benefit under it, is a ratification of the whole, because it affirms the agency: Moss v. Mining Co., 3 N. Hamp. R., 67, 68; Newelll v. Hurlburt, 3 Vermont R., 351. And so it is held, that assent may he presumed from acquiescence after notice: Delafield v. State of Illinois, 26 Wend., 227. These familiar principles are relied upon to defeat the complainant in this cause, and I have stated them in their utmost strength. I do not controvert them, but, on the contrary, recognize them as the general rules of law upon the subject. But I reiterate it as a sound principle of law, that where an express ratification of an injurious act, without the scope of an agency, is relied upon, the act or expression upon which the ratification is predicated must not be of doubtful or equivocal import, but must be clear, certain, and definite; for the law will not presume the ratification of an injurious act in violation of the terms of an agency upon doubtful premises. In regard to an authorized agent, it is frequently said that the principal must disavow the act of an authorized agent beyond his authority promptly after notice, or he will be bound by it. But there is an important distinction to be observed here. This rule is only applicable where a loss may accrue from a delay on the part of the principal to disavow the agency, or when the transaction may turn out a profit or loss according to circumstances; but if the act attempted to be done is merely the imposition of a liability on the principal, and can prove only injurious to him, and the delay can do no injury to the other parties concerne'd,- a neglect to communicate his dissent will not necessarily render the principal liable, and, at most, is only evidence to the jury of acquiescence, which they are not obliged to yield to. I find this doctrine stated in the case of Hutton et al v. Towns, 6 Leigh R., 47, 60, 61; vide Culon v. Ashley, 1 Am. L. C., 42; and I hold it to be a sound exposiiion of the law.

To determine, then, whether the complainant did by any act or expression of hers ratify the act of her agent in accepting Confederate treasury notes in payment of the check for $15,000 on the Jackson Insurance Company, we must consider first, the form and manner of her expression, and also the circumstances under which it was made. First, then, we have the repeated and positive statements to the defendant and to others in his presence that she would not receive Confederate currency for her land. If there was any one fact well known and well understood by the defendant and the agent in this transaction, it was that the complainant, who was about to part with her whole estate, would not under any circumstances receive any thing but sound funds for her property. This was undoubtedly, as we think, the understanding with which the .complainant sold and the defendant purchased. Her earnest protestations upon this subject could not have been misunderstood. There were reasons also for her solicitude in this respect, to which a Court of Equity will not and ought not to be blind in adjusting the equities of these parties. Her land was valuable. It was her all. A great civil war was flagrant, and West Tennessee and the city of Memphis, where these parties resided and where these negotiations were had, were then on the eve of conquest and capture by the Eederal forces. The contract of sale was made on the 7th of May, 1862 — the northern outposts and defenses of Memphis were then being bombarded. The check was retained in the hands of the agent for nearly a week afterward. He intimated his fears to the complainant of its being paid in Confederate money. She went at once to the defendant and returned with the response that he said he would do what was right-about it. A Court of Equity will not ignore the fact also that by a public military order the ban of martial law was denounced against all persons of whatever sex or condition who should throw discredit upon Confederate currency. It was under these circumstances then — when the crisis of the war for that section of country was at hand; when every thing was thrown into confusion by military reverses and by the imminent fall of the city; when stout men as well as weak women were seeking safety in flight — that the agent, himself on the eve of flight, informed the complainant that the check had been paid in Confederate money, and asked what he should do with it. He says she was dissatisfied — that she has never been otherwise — but in the confusion and tremor and terror of that moment she told him to take it south and do the best he could with it.

"Was this a ratification of the agent’s act? We think not. We are not to presume that the complainant — a woman — unskilled in business transactions, and unused to the bufferings of business life, had not throughout these negotiations been inspired by the same panic by the military orders which forbade the discrediting of Confederate' money, which prevailed among the other sex. She had been told by the defendant that it would all be right, and she was doubtless startled, as she had a right to be, by the announcement of her agent in that moment of exigency and peril. What could she do under such circumstances ? The Confederates still lingered in possession of the city. The men of substance who had identified themselves with the losing cause were fleeing to the south, and her agent among them. There was no redress in the Courts of justice. What did she mean by this remark to her agent? She did not dare to seek out the defendant in the teeth of these military orders and imperil her liberty by repudiating the payment. Did she intend then deliberately and advisedly to adopt it? We can not think so. If she had, her declaration would have been more certain and unequivocal. It seems to us that in those uncertain and trying times, when business was suspended, and money scarce, meditating as she did a flight to the south where this currency would yet purchase the necessaries of life, she would have accepted and taken possession of this money, or a portion of it, if she had intended this expression as a ratification of the j>ayment. But it does not appear that she ever touched a cent of it, and it does appear that she has from that moment expressed her profound dissatisfaction at the conduct of her agent. The appropriation of a portion of this money by her agent, in payment of a debt due from the complainant to him, does not in the slightest degree compromise her. This is a transaction with which she had nothing to do, but as this payment has enured to her benefit, a Court of Equity would regard it as a legitimate credit to defendant. Nor do we think that the complainant’s purpose in 1863, of taking the $10,000 note to Memphis, with a view to its collection, even if such were clearly her intention, can be considered as a ratification of the Confederate money payment in 1862. On the contrary, this fact has tended to give greater strength to our convictions that she never did intend to ratify the payment. The acceptance of the note can upon no principle be held to be a ratification of the payment in Confederate money under the circumstances of this case. The note was a chose in action, which might eventually be collected in coin or other legal tender currency, while the cashing of the check in Confederate funds was no payment at all, and thus has the complainant treated it from the beginning. In 1863, the Federal army was in possession of the city of Memphis. The defendant was residing there. No other money was permitted to circulate within the Federal lines but gold coin or legal tender notes. If the complainant did in fact bring this note to Memphis for collection, she did so with a full knowledge that if paid at all, it must be paid in coin or a good currency, for which alone she had contracted to sell her land. And it is remarkable that, if she needed money, she would at such a time have encountered the perils of such a journey rather than draw upon the ample fund already in the south, if she had intended to adopt the act of her agent and ■claim that fund as her own. Under all these circumstances, we can not presume a ratification of this transaction from such a remark, at such a time, of doubtful import, and made, doubtless, as an admonition to her agent, whose wrongful act she had continually reprobated — to take the worthless currency and •do the best he could for himself and not for her. If she had intended by that remark to have ratified her act, it is quite remarkable that there is no single act in reference to the fund by her, through a series •of years, while it was current and convertible into cotton and other valuable products, which would indicate such an interest. On the contrary, the record shows that she has never, from that time to this, spoken of it otherwise than with dissatisfaction. And at the close of the great civil war, when the Courts were opened, she has come into a Court of Equity to seek judicial redress, for a wrong of which she has never ceased to complain.

The case of Walker v. Walker, determined at the present term of this Court, was a case in which the plaintiff, a citizen of North Carolina, had obtained the services of his nephew in Tennessee, without compensation, to make some collections for him, with positive instructions to remit the money per express to the plaintiff in North Carolina. The defendant received these instructions, but in direct violation of them, but in the utmost good faith, adopted the advice of an attorney, and’ made the remittance in the check of G. W. Trotter & Co. on New York — these merchants in perfect credit in the city of Memphis. Before the check reached the plaintiff by mail, the firm of Trotter & Co. became insolvent. The plaintiff, however, upon receiving the check, believing it to be good, at once wrote to his agent, the defendant, acknowledging the receipt of the check, and thanking him for his prompt attention in remitting the money. The check was at once sent to New York for collection, and Avas returned dishonored, and, thereupon, the plaintiff brought his action against the agent to recover the amount. He Avas permitted to recover by this Court, upon the ground that the loss Avas occasioned by the violation of the orders of the plaintiff in not sending the funds by express, and that the plaintiff’s reception of the check, and his letter adopting the act, was no ratification. This case, it was thought by some of us, carried the laAV to its utmost verge; but it can not be pretended that it presents such a case for the plaintiff as the case now in judgment.

These questions of ratification, while they are all referable to well settled principles of law, yet each must depend upon its own peculiar facts and surroundings. No one case can well be taken as a perfect precedent for another, for no two are alike. Upon the principles and for the reasons herein stated, I am thoroughly of opinion that the equities of these parties are Avitk the complainant, and I concur in the opinion of a majority of the Court as delivered by Judge Deaderick.