Brown v. . Smith , 67 N.C. 245 ( 1872 )

We see no error in the instructions as to what was necessary to constitute Latta the agent of Sneed to sell the books, nor as to the revocation of his agency. From the verdict of the jury, therefore, we are to understand that Latta was authorized to sell the books; but still it does not follow that he was authorized to make such a sale as he did make. We must, therefore, consider this question.

When an agent is authorized to sell property he must sell for money, unless special instructions take it out of the general rule. He can not barter or exchange one commodity for another. And if he does so it does not bind the principal, unless he ratified it. This position is sustained by the authorities cited by plaintiff's counsel. There is nothing, in so much of the evidence that is stated, to take this case out of the general rule. It is true that Sneed frequently urged a sale and expressed anxiety as to the safety of the books: — at one time saying to Latta, "do with them as you think best;" at another "do with them as if they were your own;" and at another, "I leave them to your discretion." But these expressions seem to have been with reference to the price at which he might sell them, and to the place which he might (250) keep them. And there is nothing to authorize the inference that he might dispose of them for anything but money; on the contrary, he was urging his want of money as a reason for the sale. We must take it, therefore, that Latta had power to sell the books at such price as he pleased, but he had no right to sell them for Confederate bonds, unless they were circulating as money. And of this the defendant was obliged to take notice. The validity of the sale, and how far Sneed was bound by it, depends, therefore, upon the question, whether Sneed ratified it. That was a question for the jury, under proper instructions as to what would amount to such ratification. In regard to that, his Honor charged, that "if Sneed received the seven-thirty bonds and did not offer to return them, it was a ratification." This, although true in the general, might have misled the jury. If, as was alleged, the telegraph line was down, and the mail stopped, and other ways of communication cut off it might have been out of his power to return them, or, in terms, to repudiate the contract. These considerations ought to have been left of the jury. It certainly was the duty of Sneed to return the bonds, if he could, if he did not mean to ratify the contract; and a failure to return them, without a sufficient excuse, would have been a ratification. And, in this connection, we think the fact that Sneed's wife went to the telegraph office to send a telegram to Latta, that the contract was repudiated, was competent evidence. It was competent to show, that telegraph communication was cut off; and if she was Sneed's agent, then it was competent to show, also, that he did not ratify the contract. But still, in this connection, it ought to have been considered whether, if there had been notice given to Latta, that would have been sufficient — whether notice ought not to have been given to the defendant as well: for although an agency may be revoked at the pleasure of the principal, and simply by notice to the agent, yet that is subject to the exception, that if the agent has begun to execute his power and his incurred risk or expense, he must be saved harmless; and if the (251) interest of a third person has become involved, such interest can not be disregarded. It ought, therefore, to have been a subject of inquiry, whether Sneed had been informed that the books had been sold to the defendant and had been informed of the terms of sale, and, especially that they were sold for Confederate bonds. If he was not so informed, then his want of information was of itself a sufficient excuse why he did not immediately communicate with the defendant, as well as with Latta. If he was informed of it, then he was thereby put in relation with the defendant, and his conduct ought to be construed with reference to the defendant as well as Latta.

His Honor also charged the jury, "that Sneed had no right to repudiate the contract of his agent, Latta, after it was completed." That would be true if Latta had made such a contract as he was authorized to make, i. e., sold for money, or something that was passing as money currency. But here, upon the supposition that seven-thirty Confederate bonds were not current as money, he had made a contract which was not binding upon Sneed until and unless Sneed ratified it. So that, it was incumbent upon the defendant to show that Sneed ratified it, and not upon the plaintiff to show, that Sneed repudiated it. But still this must be understood with the qualification, that it was the duty of Sneed to repudiate it; and that acquiescence, without excuse or explanation, would amount to ratification.

PER CURIAM. Venire de novo.

Cited: Brittain v. Westhall, 135 N.C. 497; Winders v. Hill, 141 N.C. 706,707.

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