Bacon v. Westervelt , 29 Conn. 591 ( 1861 )

Sanford, J.

Upon the facts found by the superior court the plaintiff was entitled to his jxidgment. The defendants became indebted to him upon the delivery of the stone to Miller & Bielde, and nothing has since been done to discharge their liability. He had no express or implied authority from the defendants to collect the freight of Miller & Hickie. Even the usage found by the superior court, only authorized masters of vessels engaged in that trade to collect their freight from the consignees upon orders given them by the consignors, and the plaintiff neither had nor assumed to have such order. Both the plaintiff and Miller & Hickie knew that by the terms of the contract between Miller & Hickie and the defendants, the former had a right to pay the freight only in money, and that the plaintiff had no authority to collect or receive it from Miller & Hickie even in that. The transaction between Miller & Hickie and the plaintiff, therefore, was a personal affair with which the defendants had nothing to do, and of which they had no information until after the dishonor of the draft, and after the insolvency of Miller & Hickie. Notwithstanding the plaintiff’s reception of the draft, therefore, the defendants might have sued Miller & Hickie for the freight even before the maturity of the draft. And had the draft been paid to the plaintiff at its maturity it would have been a payment to the defendants, or not, at their election.

When one assumes to act for another without a prior authority so to act, the party in whose behalf the act was done may afterwards adopt, and thus, by ratifying, make the act his own. But here was no assumption of authority.to act for the defendants, and consequently there was nothing for the defendants to adopt or ratify.

Their entry to the credit of Miller & Hickie on their books was no adoption or ratification of the plaintiff’s act, because, as already remarked, the plaintiff did not assume to act in their behalf but in his own; because what he had done was not made known to the defendants, and they could not ratify an act of which they had no information; and because that credit was entered under a supposition that the freight had been paid to the plaintiff, which supposition was in fact unfounded.-

What effect the plaintiff’s omission to give notice of the dishonor of the draft, and his retention and subsequent delivery of it to the other owners of the vessel, ought to have upon his rights, would be a proper question for discussion in a suit between him and the indorsers or drawer of the bill, but as between these parties it is of no importance, and indeed can not properly be made.

The plaintiff took the draft at the solicitation of Miller & Hickie to collect, with authority from them to pay over or account for its proceeds to the defendants, when collected, but he assumed toward the defendants no other duties or responsibilities whatever. Towards them, this well-meant though unauthorized and fruitless attempt in this way to collect the freight to which they were entitled, was but a voluntary courtesy undertaken with a view to their accommodation and intended for their benefit, and in no way prejudicial to their interests. That the plaintiff considered it, as we think it was, a personal transaction of his own with Miller & Hickie, is evinced by the fact that he advanced to Miller & Hickie upon the receipt of the draft, ten dollars of his own, that he indorsed and procured the draft to be discounted and used the proceeds, and that when it was dishonored he took it up but gave to the defendants no notice of such dishonor, or of his proceedings in regard to it.

There is no estoppel in the case. Where a man by his conduct or declarations willfully causes another to believe in the existence of a certain state of things, and induces him to act upon that belief so as injuriously to alter his previous position, the former is precluded from setting up as against the latter a different state of things as existing at that time. Brown v. Wheeler, 17 Conn., 353. Taylor v. Ely, 25 id., 250. But the. plaintiff in this case, neither by word or deed, willfully or even knowingly, induced the defendants to suppose that the freight had been paid to him, or to give Miller & Hickie credit for it on their book. He gave the defendants no information of the transaction between him and Miller & Hickie, treating it throughout as a matter with which the defendants had nothing to do. The defendants knew, as he knew, that lie had no authority from them to collect the freight, or to detain the cargo until the freight was paid. When he had delivered the stone to Miller & Hickie he had performed his contract, and done all that the defendants had any right or reason to expect him to do in their behalf. It was the business of the defendants to collect their freight, or at the least to ascertain whether it had been paid or not, but so far as this record shows they made no inquiry. The supposition then on which they acted, in omitting to collect their freight from Miller & Hickie, and in giving credit for it on their books, was a supposition which was chargeable to their own neglect and for which the plaintiff was not responsible.

There is no error in the judgment complained of and it must be affirmed.

In this opinion the other judges concurred.

Judgment affirmed.