May v. Nabors , 6 Ala. 24 ( 1844 )

GOLDTHWAITE, J.

It is obvious, from the facts of this case, that a loss must fall on one of two innocent persons; but we entirely concur with the chancellor in the opinion, that the equities of these parties are by no means equal. It was apparent from the writing obligatory, that Nabors had never transferred the legal interest to any one, consequently, any person offering to deal for it, was necessarily put on the inquiry as to the right of the holder. Had the question been asked of Patterson, it is by no means improbable the defendant would, by his answer, have seen he was not authorised to dispose of it.

It is unnecessary to go into an examination of all the cases which could be collected on this subject, because the principle which must govern this case, has long since been settled with us. In Kirk vs. Glover, [5 S. & P. 340,] an attorney had taken a bill single in discharge of his client’s judgment, and afterwards traded it away without the knowledge of his principal. It was-held that the principal could ratify the unauthorised act of the attorney in taking the bill single, and maintain trover against one-to whom he had sold it. There, as here, there was an agency,, but the act of the agent was without the scope of his power, and the purchaser was held responsible to the actual owner. The case of Gullet vs. Lewis, [3 Stewart, 23,] turned on a similar principle.

It has been supposed, the circumstance that the agent had an interest to a limited extent in the money to be collected, creates such a destruction as will sustain his unauthorised sale, but it is evident that no interest in the writing obligatory, was transferred, or intended to be transferred to him. His interest was not in the note, but in the collection of it. But if it was conceded that he had a partial interest in the note itself, the decision in Lucas vs. Kernodle, [2 Ala. Rep., N. S. 199,] settles that the equity could be reached, although the note was actually transferred.

Decree affirmed, with costs.