Van Arsdale v. Joiner , 44 Ga. 173 ( 1871 )

McCay, Judge.

In one view of this case, it is all for the defendant in error. If the watch was hers, and her husband had no authority from her to pledge it, then it is clear that she has a full right to recover its full value, with interest from the date at which the value is ascertained.. But there was some evidence before the jury that she had authorized her husband to raise money on the watch. This would clearly confer on him the power to pawn it as security for the money; and the defendant in the suit had the right to have the law, in this aspect of the case, presented to the jury. In this aspect of the case, her rights depend upon the fact that the husband was her agent, and she is bound by all his conduct within the scope of his authority. It is a fact that he did not represent himself as an agent, but treated the watch, as well as the contract he was making, as his own. This he had no authority to do. The best that can be said for the plaintiff in error, is, that if the husband had authority to pledge, then the pawnee got every right that authority clothed him with power to confer, just as though he had acted avowedly as the agent of the wife: Code, section 2178. Suppose he had done this. Suppose he had told the pawnee the truth. “This is my wife’s watch, and she has authorized me to raise money on it.’’ Can it be contended that the pawnee was not bound to inquire into the extent of the power? Would not the law be clear that the authority would only authorize a pawn in the usual manner?

What is the usual mode ? The pawnee advances the money, and if the debt is not paid as agreed, the pawnee may, on thirty days’ notice, sell, etc. The waiver of notice is the exception, (see Code, section 2112) and an exception of very doubtful policy. Indeed, as it seems to us, if the husband had frankly told the pawnee what his authority was, no prudent pawnee would, from that authority, deduce the power to waive the notice.

The agent must act within his authority reasonably construed. Code, 2158. This would be a special agency for a particular purpose, and in such cases it is the duty of one dealing with the agent to examine his authority. Code, section 2158.

We concur, therefore, with the Judge, that the husband had only the right, under this authority, to pledge in the usual mode, and tfiat any special contract, different from the usual, ordinary results growing out of a pledge, was beyond his authority.

Hence, the sale without notice was illegal; the title of the true owner was not divested. The sale was a conversion, and the right of Mrs. Joiner to sue was complete. She was not bound, as a condition precedent to her right of action, to tender the money borrowed. The conversion of the property to a use adverse to that she had authorized gives her a right to sue.

But what, in such a case, is the true measure of damages? Is it the valite of the watch? Has she been injured to that extent? We think not. She has elected to take damages. What damages? Surely only the damages she has suffered. If she clothed her husband with power to raise] money on the watch, she has only suffered by the conversion what the watch was worth above the money her agent procured upon it. This is clearly the result of the authorities upon this question : Benjamin on Sales, 592; 15th Mass. Rep., 408.

Whilst, therefore, we concur with the Judge, as to the right of Mrs. Joiner to sue for the conversion, we do not concur in his ruling as to the measure of damages, if the jury should find the husband had authority to raise money on the watch.

Judgment reversed.