Foster v. Rockwell , 104 Mass. 167 ( 1870 )

Colt, J.

The only question in this case relates to the authority of the agents to bind their principal in the purchase of the property, the price of which is sued for. If they had authority, then the sale was completed by the delivery of the merchandise in dispute to a common carrier in New York, and the risk of its loss was upon the defendant.

The agents employed were merchandise brokers living in Boston. On the 19th of October they received an order from the defendant for a specified quantity of nitrate of soda, to be sent at the earliest convenience, but without express limitation as to price or place of purchase. These same agents had, for several years, bought for the defendant materials for the manufacture of gunpowder, upon orders substantially like this. But every previous purchase had been completed by the delivery of the goods in Boston, whence they had been transported by railroad directly to the defendant. The state of the market was such that it was found impossible to fill the order in question in Boston, so as to have the goods sent from that city, and accord ingly a contract of purchase was made with the plaintiffs in Boston for the delivery of the property to a carrier in New York

It is argued for the plaintiffs, that, in view of the increased facilities of modern times in the transaction of business between Boston and New York, and the fact that many merchants keep stocks of goods and maintain agencies or branch houses in both cities, there would be no abuse or excess of authority, as between principal and agent, in a purchase like this, under a peremptory and unlimited order, which from the state of the market it was otherwise impossible to fill at Boston; and that under such circumstances the previous course of dealing would not operate to place a limit upon the agents’ power. It is not necessary to come to such a decision in this case, because the plaintiffs must have the benefit of that more liberal rule which applies to third parties dealing with an agent in good faith, and who may charge the principal for every act done within the scope of the authority with which the agent has been apparently clothed. The merchandise brokers in this case, though not the general agents of the defendant, were, by the order given, made agents for a particular purchase, with a general authority in regard to that transaction, not limited to any particular mode of doing the business. The plaintiffs had no notice of the previous course of dealing between the defendant and his agents, and are not affected by any implied limitation therefrom. Story on Agency, §§ 73, 127, 443. The defendant must be held to be bound by the contract of purchase made with the plaintiffs, on this ground alone.

There is another view of the case which is equally decisive in favor of the plaintiffs. On the 21st of October, a letter was mailed by these agents to the defendant, giving him definite information of the purchase and shipment, with all the particulars of the transaction. No reply was made to this letter; and the first expression of disapprobation on his part is contained in a letter to the agents dated the 29th of October in reply to one of the 26th, containing a suggestion that the property had been lost in Long Island Sound. We think there is sufficient evidence, in this conduct of the defendant, that he intended the original authority tc cover the act, or that he then ratified and affirmed it.

The duty of the principal at once to disaffirm an act done by another in his name, or on his account, when brought to his knowledge, is more imperative when the unauthorized act is the act of an agent, done in the execution of a power conferred, in a mode not sanctioned by its terms. Implied ratification from mere silence more readily arises when the act is in misuse or excess of authority given. In such cases, the principal has no right to delay, if he intends in any contingency to repudiate the conduct of his agent. He cannot lie by, and seize the benefit of it if profitable, or renounce it if otherwise, at his election. The defendant’s silence on the receipt of the letter in this case cannot be accounted for on any other theory than that of his approval of the purchase. It is of no consequence that the letter did not give the information requisite to enable him to obtain insurance, or that it was not probably received until after the loss. The question is not affected by the fact that by the loss the plaintiffs’ relation to the goods was changed, and thei power to repossess them gone, before the defendant could havt had time to disaffirm. If the transaction, when brought to bis knowledge, was not seasonably disapproved, it is enough, and a ratification must be presumed, with all the consequences which follow, one of which is that the property vested in him, before its loss, by delivery to the carrier. 2 Kent Com. (6th ed.) 616 Story on Agency, § 258. Brigham v. Peters, 1 Gray, 147 Thayer v. White, 12 Met. 343.

A majority of the court are of opinion that, upon this state* ment of facts, with such inferences therefrom as a jury might properly draw, the plaintiffs are entitled to recover.

Judgment for the plaintiffs.