Davenport v. Buckland , 1 Hill & Den. 75 ( 1843 )

By the Court,

Bronson, J.

When Barlow returned home with the trees in May, none of the property belonged to the defendants, for the plain reason that no part of it had been purchased for them, or on their account. All of the trees had been purchased for other persons, to whom the property then belonged. The notes and the defendants’ letter of the 23d of April.were probably in existence when the purchase was made; but that fact was unknown to Barlow at the time, and until after his return from Hartford. Still, if he had actually purchased $600 worth of trees for the defendants, it is possible that this might have been deemed a good execution of the power, although the agent did not know at the time of its existence. But it is not necessary to say how that would be. It is enough that no trees were in fact purchased for the defendants. They were all bought for other persons, to whom the property belonged at the time it arrived in Bethany. Thus far there is no contract between the plaintiff and the defendants.

Now let us look one step further. Barlow found soon after his return that some of the owners—to the extent of $500 worth—did not want their trees, and they did not take them. Barlow therefore sent those trees to the defendants, who received and planted them; but they did it in total ignorance of the facts. When the trees were sent to the defendants they did not belong to the plaintiff, because he had sold them some time before to other persons, and no arrange- - ments between Barlow and the owners could re-transfer the property to the plaintiff without his assent. The precise nature of the transaction between Barlow and the persons for whom he had purchased the trees does not appear. But it must have been one of two things. He either purchased the trees from the owners, and then acted for himself in sending them to the defendants; or else he consented to ,aid the owners in shifting off the property on to the defendants. It is not important in this action to inquire which off these two things were done, for in either case the property sent to the defendants did not belong to the plaintiff. It belonged either to Barlow or to the individuals 'for whom the trees had originally been purchased. It is highly probable that the defendants received the trees on the supposition that they came from the plaintiff under the authority sent to Barlow; but this mistake could not alter the facts.

By receiving and planting the trees the defendants made no contract of any kind with the plaintiff. If there was a contract with any body, it was with the legal owner, and then it could be no more than an implied obligation to pay what the property was reasonably worth. I do not say that Barlow or his principals—whichever was the owner—could maintain assumpsit. Probably their remedy would be an action of trover, "if the defendants should refuse to give up the trees on demand made, That question need not, however, be considered. It is enough that the defendants were under no obligation to the plaintiff.

The rights and liabilities of the parties had now become fixed, and the subsequent transactions between Barlow and the plaintiff, when the' latter came up in August or September, could impose no obligation upon the defendants. Barlow was never any thing more than a special agent for the defendants. He was only commissioned to do a single act, and the time had now gone by when it was contemplated that the act should be done. His authority as the agent of the defendants was at an end, and there has been no ratification of his acts. On the contrary, when the defendants were told what had been done they immediately dissented.

It is said that Barlow in his negotiations with the persons for whom the trees were originally purchased, assumed to act as the agent of the plaintiff, and that as such agent he rescinded the sale, and then sent the trees to the defendants \ and that the plaintiff afterwards adopted and ratified this assumed authority when he received the notes. • But this argument all rests on the assumption that Barlow undertook to act as the agent of the plaintiff, when that fact does not appear. So far as appears, Barlow when he sent the trees to the defendants was either acting for himself, or for the persons on whose account the property had been purchased, and not for the plaintiff. It was not, therefore, a transaction which the plaintiff could adopt and make his own.

The truth of the matter was probably this. When Barlow got back with the trees some of his principals began to doubt the success of the speculation, and learning that the defendants had sent on notes, a contrivance was got up to shift off the property upon the defendants. But finding that neither Barlow nor his principals could enforce the notes, and that if they could recover at all against the defendants it would only be upon a quantum, meruit, the plaintiff was called in three or four months afterwards; and he seems not to have cared where the money came from provided he got his pay for the property. During all these movements the defendants were kept in total ignorance of the true state of the case. The moment they learned what had been done, they said, as they had á right to say, we will have nothing to do with the transaction. And whether the plaintiff is now suing for himself, or as the trustee for others, he can not maintain this action. It is a suit on one of the notes, not upon an implied undertaking to pay what the trees were reasonably worth, though I am not prepared to say that the plaintiff could recover in any form.

In addition to what has already been said, there are some other facts which show that the authority has not been pursued. This special agency was to purchase mulberry trees “ to the amount of the above notes,” which was six hundred dollars, and Barlow only sent trees to the amount of five hundred dollars. And although the defendants received the trees, they did it in ignorance of the fact that the whole quantity was not sent. Again, although only five sixths of the property was sent, both of the notes were delivered to the plaintiff. That was not following the power.

There was another departure from the authority. The notes were sent without a date, and were to be dated “ on delivery of said trees to said Barlow.” It is quite obvious that the date should have been of the day when the purchase was consummated by a delivery of the property. It affected the term of credit, and it is absurd to suppose that the defendants intended the notes should bear even date with the power, whenever the purchase might be made. If such had been their purpose they would have dated the notes themselves. The only way in which the power can be made to bear such a construction is, by reading its date as a part of the authority; but they are very different things. The one tells us when the power was made, and the other how it was to be executed. As the defendants have not been treated fairly, I do not regret that this blunder" has happened.

On the whole I think this action can not be maintained.

Judgment for defendants.