Sherrill v. Weisiger Clothing Co.

• Decision Date: 10 April 1894
• Citation: 19 S.E. 365,114 N.C. 436
• Parties: SHERRILL et al. v. WEISIGER CLOTHING CO.
• Court: North Carolina Supreme Court

19 S.E. 365

114 N.C. 436

SHERRILL et al. v. WEISIGER CLOTHING CO.

Supreme Court of North Carolina

April 10, 1894

Appeal from superior court, Iredell county; Spier Whitaker, Judge.

Action by F. A. Sherrill & Co. against the Weisiger Clothing Company. From a judgment for plaintiffs, defendant appeals. Reversed.

The defendant sent to an attorney, for collection, two notes made by J. M. Howard, payable to defendant. The attorney indorsed them in defendant's name, and transferred them to plaintiffs. Until about the time of the trial, defendant did not know that the notes had been indorsed, but supposed that they had only been sold.

Where an attorney, to whom a note is sent for collection, without authority sells and indorses same in the name of the payee, mere acquiescence in the sale, without knowledge of the indorsement, is not a ratification of the latter.

Robbins & Long, for appellant.

PER CURIAM.

The authority of an agent to collect a note or bill does not authorize him to indorse the note or bill, either in the name of his principal or on his own account; and the defendant's acquiescence in and approval of the sale, supposing it to be an out and out sale, simply, was not a ratification in fact of the unauthorized indorsement, of which it had no knowledge when it approved the sale. Hines v. Butler, 3 Ired. Eq. 307. The attorney, prima facie, had no authority to sell and indorse; and the plaintiff, under the circumstances of this case, should have inquired as to the extent of his authority. Earp v. Richardson, 81 N.C. 5; Biggs v. Insurance Co., 88 N.C. 141; Smith, Cont. 311. There should be a new trial.