Jefferson v. Chase , 1 Del. 219 ( 1856 )

The Court,

Harrington, Ch. J.,

charged the jury: That the plaintiff was bound to prove that the horse was rightfully in his possession as his property, and that the defendant wrongfully took, or wrongfully detained him from his possession ; but if he obtained the possession of him by false representations to the agent, his possession was not lawful, or if he bought the horse on a contract to pay for him before delivery, and the agent delivered him without the authority, or against the instructions of the defendant, before payment, his possession was not rightful and the defendant had a right to retake him again into his posses-" sion, provided he could do it without force and violence. And as the agent in this instance was not a general, but only a special agent for the purpose of taking care of the horse, the law would presume no authority in him to deliver the horse to another without actual instructions from the defendant for that purpose; and therefore, it was incumbent upon the plaintiff to prove such instructions from the defendant, in order to make the delivery the act of the defendant and render his possession under it rightful. If the defendant acquiesced in the delivery of the horse by his agent after he learned that it had been done contrary to his directions, and thereby approved and ratified his act, it made the possession of the plaintiff lawful upon the terms on which he received him from the agent; but if those terms were, that he was merely to take him on trial and, pay for or return him by a certain day, which he failed to do, his keeping him after that time was merely by the permission of the defendant, and gave him no right of possession, and no right of property in the horse as against the . claim of the defendant, unless there was some subsequent sale or agreement between the parties in regard to the matter, as to which, however, there was no proof before the jury. The case, therefore, turned entirely on the right of the plaintiff to the possession of the animal when he was taken from him by the defendant, and should be decided accordingly.