Citation Numbers: 16 Misc. 157, 37 N.Y.S. 943, 73 N.Y. St. Rep. 562
Judges: McAdam
Filed Date: 2/15/1896
Status: Precedential
Modified Date: 1/13/2023
About June 7, Í893, the plaintiffs purchased' from Russell & Co., of Massillon, Ohio, one steam engine1 and fixtures, which were delivered to the defendant by Russell & Co.. for carriage and delivery to the plaintiffs, at Beverly, New Jersey. After the shipment ■ Russell & Co. sent the bill of lading to the-plaintiffs.
The goods were purchased by the plaintiffs to fill an order from the Beverly & Edgewater Park Light & Power Company (hereinafter referred to as the Power Company), a corporation having-its place of business at Beverly aforesaid. The plaintiffs did busi.ness at New York city, and had no office at Beverly. After the arrival of the machinery at Beverly the Power Company,- for whom it was intended, called upon the defendant, paid the freight and took it to their place of business, where the same was set up and put in operation.
If the case had rested here,, the plaintiffs’ right to á verdict would have been clear.'
The plaintiffs, on discovering the true condition of things, had four courses open to them.:. (1) hold the defendant in trover; (2) hold the Power Company in trover; (3)- pursue their property.and recover its possession; (4) affirm the unauthorized act and pursue the Power Company .for the purchase price.
The fact that the plaintiffs intended that the property should go to the Power Company, standing' alone, gave the defendant no authority to deliver the machinery to it without the plaintiffs’ permission., for they might have dictated the terms of delivery. Vet it was quité competent for the plaintiffs to assent to the delivery as ■ made and conclude themselves by such assent. The defendant occupied the position of carrier or transporting agent, and any act of the plaintiffs which amounts in law to a ratification of the- unauthorized act as to mode of delivery absolves the defendant; for u to' ratify is to give sanction' and validity to something done without authority by one individual on behalf of another.” Ewell’s Evans on Agency, marg. p. 48. To ratify an unauthorized act performed by an agent, it is sufficient if a principal, with knowledge of what has been done by the agent, consents to be bound by- it, and unequivocally manifests such intent to the other party. Keeler v. Salisbury, 33 N. Y. 648; Markham v. Washburn, 45 St. Repr. 683; s. c., 18 Supp. 355. And ratification is equivalent to original authority. Story on Agency, § 239; Commercial Bank v. Warren, 15 N. Y. 580; Heermans v. Clarkson, 64 id. 171. Or, as stated in Herman on Estoppel (§ 481): “ The subsequent assent by the principal to his agent’s conduct not only exonerates the agent from a consequence of a departure from his orders, but, likewise, renders the principal liable on contracts made in violation of such orders, or even when there has been no previous retainer or employment,, and this' assent may be inferred from the conduct of the principal. The" subsequent sanction is considered the same thing, .in effect, as assent at the time.” - '
In Green v. Clark, 5 Den. 497, a quantity of salt was received by the defendants as common carriers,, to be carried from Oswego
Beardsley,- C. J., said: “ The letter was written with full knowledge that the defendants had violated them contract in leaving the salt at Sandusky City, and were consequently liable to the owners for its value. Everything" material between the defendants and the owners was known to • them when the letter was written, although they were not then aware that the salt had been sold by Neil. That, however, was his act alone, as it does not appear to have been directed or in any way sanctioned by the defendants. Their violation of duty was in omitting to deliver the salt at Lower Sandusky, as they had agreed to do; and if the owners had thought proper to stand upon their rights, the defendants would have been liable for the full value of the salt. But the owners might ratify the act, unauthorized as it was, of leaving the salt at Sandusky City, and thus waive their right of action against the defendants; and I think this letter to Neil was a complete ratification of what had been done by them. Any act of the owners, with knowledge, indicating an intention to hold on to the salt at Sandusky City as their own, and, therefore, wholly inconsistent with the supposition that
While the remarks of the learned judge may, perhaps, be regarded as obiter, they are, nevertheless, forcible and entitled to the weight due the opinion , of a learned jurist. Indeed, they apply to this case with much more cogency than- to that in which they were written. There the property was never intended to reach William Neil, but was to be. put in the care of a firm of which he was a member, doing business at a place far distant from Sandusky City, where he. received the goods. ■ Here the goods were delivered to the peoplo for whom they were intended. So that the ratification is-easier implied and more effectually proved here than in that case.
In O’Dougherty v. Railroad Co., 1 T. & C. 477, the court, -citing Green v. Clark, supra, held, that although the original delivery of the goods might have been erroneous^ all liability was discharged by the subsequent acquiescence of the consignee in the delivery, and upon this ground a judgment rendered in favor of the plaintiff for the misdelivery was reversed.
The. ratification by the plaintiffs is not left to be inferred from their mere silence or want of disapproval; nor is it based upon one letter written by them, but on a series of letters and affirmative acts, all indicating approval of the delivery by treating the Power Company as the legitimate possessor and owner of the machinery, and as the debtor of the plaintiffs for' the purchase price.
The plaintiffs wrote several letters to the Power Company demanding payment of their bill, and stating their need of money, in one of them referring to .the fact that the time on which they had purchased the- machinery from Russell & Co. would soon expire, and stating that they would 'like the use of the Power Company’s
. On August 1, 1893, the plaintiffs sent a postal card to the Power-Company, in which they said: “We received, to-night, a telegram saying expert will be in Beverly some time to-morrow. He will adjust the engine so that everything will be satisfactory.” If satisfactory, then ratification was complete, and, according to-settled principles, irrevocable. The several" demands by the Power-Company, and the repeated promises by the plaintiffs to comply-with them, were all made under the contract of purchase, and in-recognition of the rights it conferred and the duties it imposed.
The Power Company, afterward, went into insolvency, and-then, for the first time, the claim against the defendant for misdelivery was strenuously urged. The plaintiffs having their choice-of several positions deliberately, with full knowledge of all the-facts, chose to treat the delivery to the Power'Company as authorized. This unalterably fixed their legal status. They cannot, particularly after the insolvency, and after all redress which the-defendant might otherwise have been able to obtain is gone, turn-round and hold the railroad company on a cause of action in which
It is not, technically, a question of election of remedies that is involved, but a choice of rights^ which once asserted disables" the party from afterward maintaining a position inconsistent with the one selected. As is said by Herman in his work on Estoppel (p. 462): “ When it becomes necessary to choose between inconsistent rights and remedies the election will be final and cannot 'be reconsidered, even where no injury has been done by the choice, or would result from setting it aside.”'' Aud Story lays down the rule that “ H the principal subsequently ratifies the act he is bound by it, whether it be for his detriment or for his advantage, and whether it be founded upon a tort or upon a contract. And a ratification once deliberately made, with a full knowledge of all the material circumstances, cannot be récalled.” Story on Agency, § 242. It is upon this ground that the plaintiffs are unable to maintain their position in this action. •
For these reasons the nonsuit was proper, and the motion for a new trial must be denied.
Motion denied.