McMillan v. Wooten , 80 Ala. 263 ( 1885 )

SOMERVILLE, J.

The action, being trover, can be maintained in this case only on the theory, that the plaintiff was invested with the ownership of the mule alleged to have been converted to the use of the defendant.

Whether he had acquired any property in the animal depends upon one of two contingencies. The agent of the plaintiff, who made the exchange of the small black mule owned by the plaintiff, for the mule owned by Wooten — ■ the one here in controversy — must either have been invested with the original authority to make the exchange, or else the transaction must have been subsequently ratified by the plaintiff, under such circumstances as to be binding on him.

The agent, McMillan, testifies that the plaintiff “authorized him to trade off said [black] mule if he could get anything that suited him.” This authority, in our opinion, conferred on the agent the power only to make a barter or exchange on equal terms — so that the thing given and that received should be equivalent each for the other. It did not confer any power to trade by way of purchase in such manner as to burden the plaintiff with an accompanying obligation to pay in money the difference in value between the two animals. The latter trade is the one shown to have been made by the agent, and not the' former. It created a debt which was not binding on the principal without his ratification, express or implied. The charge requested erroneously assumes the contrary to be true, and was for this reason properly refused.

Affirmed.