Saville v. Welch

• Decision Date: 18 August 1886
• Citation: 5 A. 491,58 Vt. 683
• Parties: SAVILLE and others v. WELCH.
• Court: Vermont Supreme Court

5 A. 491

58 Vt. 683

SAVILLE and others

v. WELCH.¹

Supreme Court of Vermont.

August 18, 1886.

Exceptions from county court, Caledonia county.

This was an action of assumpsit heard on referee's report by the county court, Caledonia county; Ross, J., presiding. Judgment on the report for the defendant. Exceptions by the plaintiff.

REFEREE'S REPORT.

One Wilson, then and now selling goods for plaintiff, on the tenth day of October, 1882, sold a bill of goods to J. C. Ide. A portion of this bill was to fall due in 30 days, which was paid by said Ide when it fell due. The balance, which was a chest of tea, price $24.64, was due in four months, and is the matter in controversy. Wilson had sold Ide goods before this date, but Ide was at that time owing the plaintiff an unpaid judgment. July 18, 1882, said Ide had been put into insolvency by a petition returnable August 6, 1882, and the matter was ended by compromise on the sixteenth September, 1882. Said Ide told Wilson that he was selling for defendant; that he was doing business for the defendant; and that he bought some goods. From what was said Wilson understood from said Ide that he was authorized to purchase merchandise for and pledge the credit of defendant, and he had a right to so understand. Wilson sold the goods, and entered the sale as to plaintiff, and sent the order to his principals as an order from defendant. The goods were forwarded to Lyndon, to the address of the defendant. There was some dispute about who took the goods from the freight-house, but I find that J. C. Ide went to the freight-house, and told the agent that the goods were for him, and took them away. The bill of the goods was sent to defendant, who did not understand it, but was afterwards informed by the said Ide that he had ordered a bill of goods in his name, fearing lest they might be attached if ordered in his own name, and asked him if he had received the bill, and took the bill away with him, telling Welch that he wanted it to mark the goods. This all transpired soon after the sale of the goods. Defendant did not notify plaintiffs then that he had not authorized Ide to buy goods in his name. On the sixth January, 1882, Ide gave defendant and H. C. Ide a chattel mortgage of all the goods he then had in his store, and agreed that it should cover all after-purchases, as security for their indorsing his paper. These goods were taken possession of by the mortgagees, because of breach of condition of said mortgage, and were duly advertised and sold at auction on the twenty-sixth day of October, 1882. They were bid off by the defendant, and it was agreed that said Ide might do business, still retaining the goods in the name and under the style of J. C. Ide, agent, and he ordered all goods under that title after said auction. By agreement of defendant and H. G. Ide, J. C. Ide was to act as their agent, and account to them for his sales, and continued to do business in this way till December, 1882, when the goods and uncollected accounts went into the hands of the defendant and H. C. Ide. At no time did defendant and H. C. Ide authorize J. C. Ide to buy goods in their names, or to pledge their credit, except so far as this was done by authorizing him to do business and make purchases under the name of J. C. Ide, agent, as before stated. When Welch bought Ide's goods at auction, this chest of tea was entire, none having been sold. During the time that Ide was doing business under the name of J. C. Ide, agent, he sold 10 pounds of said tea to one Stevens, and, after the taking of the accounts by defendant, this was paid to defendant. Defendant had the tea, which remained unsold on the sixth of December, having purchased it as aforesaid at the auction sale. If, on this state of facts, the plaintiff is entitled to recover for said chest of tea, he should recover as due June 2, 1885, the sum of $28

George W. & G. C. Cahoon, for plaintiff.

From the facts found by the referee it is evident that the goods in question were never sold to Ide, and that the title never vested in him; that plaintiff would not have sold to Ide, having then an unpaid judgment against him, and knowing his insolvent condition. There is no contract unless the parties thereto assent; and they must assent to the same thing, in the same sense. 1 Pars. Cont. 475. The intention of the parties determines when the property passes. 1 Benj. Sales, 322. It follows, then, that the title to these goods has remained in the plaintiff, unless the facts found constitute an agency by ratification. We insist they do so. Where a referee reports such facts as constitute an agency, the county court or supreme court can find the agency as matter of law, without any express statement of such conclusion by the referee. Alexander v. Bank, 24 Vt. 222. Upon an unquestioned state of facts, whether such facts operate a ratification is a question of law. Bank v. Fassett, 42 Vt. 439. Defendant did not disavow the acts of his agent when they came to his knowledge, and notify the plaintiff. If a party does not disavow the acts of his agent as soon as he can after they come to his knowledge, he makes these acts his own. Sturtevant v. Wallack, 4 N. E. Rep. 615, (decided February 27, 1886;) 2 Greenl. Ev. § 66, note 3; Brigham v. Peters, 1 Gray, 147; Lindsley v. Malone, 23 Pa. St. 24; Bank v. Fassett, 42 Vt. 438; Knight v. Luce, 116 Mass. 586.

Harry Blodgett, for defendant.

There is nothing in the case to show the defendant ever knew, until this suit was instituted, that the packages containing the goods were addressed to him. Under the circumstances, defendant was under no legal obligation to give plaintiff notice that he had not purchased goods of them, and his failure to give such notice cannot amount to a ratification of Ide's acts, or make him liable in this action. White v. Langdon, 30 Vt. 599; Strong V. Ellsworth, 26 Vt. 366. Ratification of an unauthorized act of one acting as an agent, without notice of the fact, is not binding on the principal. Spooner v. Thompson, 48 Vt. 259; Combs v. Scott, 12 Allen, 493; Thacher v. Pray, 113 Mass. 295; Amory v. Hamilton, 17 Mass. 109; Owings v. Hull, 9 Pet. 607; Hovey v. Brown, 59 N. H. 114; Roberts v. Rumley, 58 Iowa, 303; S. C. 12 N. W. Rep. 323; Bannon v. Warfield, 42 Md. 22; Pike v. Douglass, 28 Ark. 59. The plaintiffs claim that, as no title ever passed to Ide to the tea in question on account of his fraud, there has been a conversion of the tea by the defendant, and that they may waive the tort, and recover of the defendant in assumpsit on the count for money had and received. An examination of the cases in Vermont, where this court has applied the principle of law contended for by plaintiff, will show that, in order for a plaintiff to maintain his action for money had and received, he must prove that his property has been wrongfully taken or appropriated, and converted into money before the institution of the suit. Burnap v. Partridge, 3 Vt. 146; Kidney v. Persons, 41 Vt. 387; Stearns v. Dillingham, 22 Vt. 624.

VEAZEY, J. Under the transaction between the plaintiff and Ide the title to the tea remained in the plaintiffs. They did not sell to Ide, but were led to suppose, by Ide's fraud, that they sold to Welch. But there was no sale to him because he did not authorize Ide...