Johnson v. Wingate , 29 Me. 404 ( 1849 )

Shepley, C. J.

This is an action of trover for the brig Hero. The case is presented upon an agreed statement of the facts. A conveyance of the vessel was made by the master, acting as the agent of the plaintiff, to the defendant on November I, 1842. The questions presented are, whether the master had authority to make such a conveyance as he did make ; and if not, whether his proceedings have been ratified by the plaintiff.

A principal is bound by the acts of his general agent, performed within the scope of his general authority, although such agent may exceed or violate his instructions, relating to that particular transaction.

The master of a vessel is the general agent of the owner for certain purposes, but such general authority is not sufficiently broad to authorize him to sell her except in case of wreck or other extreme necessity.

An agent acting under a limited power to do a particular act, must conform to the authority given, or his acts will not bind his principal. A special authority must be strictly pursued, and those dealing with one thus authorized, must ascertain the extent of his authority. Fenn v. Harrison, 3 T. R. 757; DeBouchout v. Goldsmid, 5 Ves. 211; Munn v. Commission Co., 15 Johns. 44; Denning v. Smith, 3 Johns. Ch. 345; Keith v. Purvis, 4 Descau, 114.

In the present case, the defendant appears to have known upon what conditions the master was authorized to convey the vessel to him. The agreement, which obliged him to reconvey shows, that it must have been made with a knowledge of the letter authorizing the reconveyance. By the agreement to re-convey, which it required, he was authorized to retain her net earnings while she continued in his possession. If he had executed such an agreement, there can be no doubt that he must have accounted for them towards payment of the debt due him, for the object of the conveyance was to secure the payment of that debt. He gave to the master, not such an agreement, but one authorizing him to retain those earnings “ without any liability to account for them.” The master was not authorized to make a conveyance of the vessel upon such terms. It would seem that the defendant must not only have known this, but must have inserted such a clause, in fraud of the plaintiff’s rights. In another respect, the agreement to reconvey does not appear to have been in conformity to the authority given to the master. But as it may not have been material, it may be permitted to pass without observation.

The only serious question presented by the case is, whether the plaintiff must be presumed from the long lapse of time, to have ratified a conveyance made without authority.

It is the duty of an agent to keep his principal informed of his proceedings, and in the absence of proof to the contrary, he may be presumed to have done so, within a reasonable time. And if the principal does not within a reasonable time after actual notice, or after notice is to be presumed, disapprove of the conduct of his agent, a presumption of assent and ratification will arise.

The application of these rules would wholly preclude the plaintiff after such a lapse of time, from disavowing the authority of the master and from claiming the vessel as his property, if it were not agreed, that the master did not perform his duty by giving information of his proceedings, and that there is no evidence that the plaintiff in any other way came to the knowledge, that he had acted contrary to his instructions, until a few days before his disavowal of his acts was made known to the defendant.

The principal cannot be held to have ratified the unauthorized acts of an agent, until he either has a knowledge of them, or must be presumed to have had, from the nature or course of the business, or from the presumed performance of duty by the agent in giving him the proper information.

In the present case the nature or course of the business, would not bring that knowledge home to the plaintiff. The case admits that the master continued in the vessel in the employment of the defendant. It does not appear how constantly he w'as at sea, or what opportunities the plaintiff had to obtain a knowledge of his proceedings. So far as appears, the plaintiff may have supposed, that the master conformed to his instructions, and that the defendant was in possession of the vessel and receiving her earnings in payment of the debt due to him, until after the lapse of years he obtained information that the vessel had earned $3650, which instead of being applied to pay his debt was to be retained by the defendant without any account, and that he was to be left to pay the whole debt with accumulated interest.

Under such circumstances, presenting an unfair course of dealing on the part of the defendant, suited to act oppressively upon the plaintiff, the Court cannot be called upon to presume from the mere lapse of time, that the plaintiff had ratified a conveyance made without authority and so destructive of his interests, especially when there does not appear to have been any change of circumstances during the time.

It is contended that the action cannot be maintained, because the transaction was of the nature of a mortgage; that the money to be secured, has not been paid, and that the property has been forfeited by a foreclosure.

It is undoubtedly true, that the conveyance, had it been effectual, would have been a mortgage. Having been made without authority it was ineffectual for any purpose; and there could be no foreclosure.

The defendant having possession of the property of the plaintiff without any legal right to it, the demand and refusal operated as a legal conversion. The defendant is to be defaulted and the damages are to be assessed by an auditor.