Cairnes v. Bleecker , 12 Johns. 300 ( 1815 )

..Seescer, J.,

delivered the opinión of the court.

Two. objections have been made to the plaintiffs’ recovery: 1st. That trover cannot be sustained in such a case; and, 2d. That the plaintiffs, after a knowledge of all the facts, adopted the defendants’ acts.

The plaintiffs’ counsel relies on thb case of Seyd v. Hay, (4 T. R. 260.) as to the form of the action. In that case, the owner of goods on boardtof a vessel directed the captain not to land them on the wharf, which he promised not to do, but afterwards delivered them to the wharfinger, for the owner’s use, under the pretence that the wharfinger had a lien on them for wffiarfage; the court held the delivery to be a conversion, there being no right to wharfage. The case of Dufresne v. Hutchinson, (3 Taunt. Rep. 117.) decides, that if a broker, authorized to sell goods for a particular price, sells them at an inferior price, he is not liable in trover, and that the proper remedy is an action on the case. The court do not think it necessary to decide this point on the present occasion, nor do they intend to do so- It appears to me, however, that there is serious objection to the form of the action, without impugning the case of Seyd v. Hay: in that case the defendant was guilty of a direct breach of orders, contrary, too, to his promise 5 here, the defendants were authorized to deliver the goods to Gillet, on receiving property amply sufficient to secure the plaintiffs their demand: this necessarily referred it to their judgment, what was sufficient property; and for misbehaving in this trust, it seems to me that case, and not trover, is the appropriate remedy. At all events, the form of action ought not to deprive the defendants of any ground of defence.

On the 18th of July, 1811, the defendants informed the plaintiffs, that they had, on the 17th of that month, delivered Gillet the last parcel of the goods, and that they had received from him 26 casks of ashes, which were placed, at the same time, under the plaintiffs’ control, subject to Gillet’s order as to their sale. The plaintiffs rest satisfied until the 29th of October, and then, for the first time, ask for information, what other property Gillet had placed in their hands when he took the last of the goods. The cases of Codwise v. Hacker, (1 Caines’ Rep. 539.) and Towle & Jackson v Stevenson, (1 Johns. Cases, 110.) are authority for saying, that when a principal, with a knowledge of all the facts, adopts the acts of his agent, though these acts are contrary to his duty and his instructions, he shall not after-wards impeach his conduct; and this principle is peculiarly apto a case like the present; for had the principal disapproved, the defendants might, by their vigilance, for aught w& jínoW) secured themselves. The lapse of time after' the information that the last parcel had been delivered, and that only 26 barrels of ashes had been deposited, was sufficient to denote to the defendants the plaintiffs’ approbation of, or. acquiescence in, xvhat they had done; and besides, the defendants had a right to infer, that Gillet had communicated to the plaintiffs his orders as to the disposition of the ashes, and made arrangements xvith them as to the debt. It is a salutary rule, in relation! to agencies, that when the principal is informed of what has been done, he must dissent, and give notice in a reasonable time, or, otherwise, his assent to what ;has been done shall be presumed.

Judgment for defendants'.