Opinion
June Term, 1853
N. Hill, for appellant.
E.S. Van Winkle, for respondents.
Without considering the other questions in this case, I think the plaintiffs failed in their evidence to charge the defendant as the acceptor of the bill. It having been received in payment of an antecedent debt due them; they are not in the condition of bona fide holders for a valuable consideration. ( Coddington v. Bay, 20 John. 637.) And, indeed, the bill being on its face accepted by James L. Palmer for the defendant, was notice that he professed to act under an authority, and imposed upon the plaintiffs the duty of ascertaining that he acted within it. ( Atwood v. Munnings, 7 B. C. 278.) If more were necessary to put them upon inquiry, it was shown by the fact that the acceptance was made in the plaintiff's counting room when the defendant was not present. If, then, James L. Palmer had no authority to accept this bill to pay a pre-existing debt of Sandford, the defendant is not liable. The evidence only shows that the defendant authorized his son to accept a draft for $2,000 as his share of the capital to be contributed to the proposed partnership. This conferred no authority to accept this bill to liquidate an old debt of Sandford's. It can not for a moment be pretended that the original authority bound the defendant by the acceptance. It is however insisted that the defendant ratified it in his conversation with Sandford in November, when he stated to him that he gave his son authority to accept for him in the manner that he did. If there were any evidence to show that at the time the defendant said this he knew that the bill was used to pay one of Sandford's debts to the plaintiffs, then the conversation would establish an adoption and ratification of the acceptance. But in order to make the ratification of an unauthorized act of an agent binding, it must be made with full knowledge of the facts affecting the rights of the principal. ( Dunlap's Paley on Agency, 171, note o; 172, note q; 7 Term R. 209; Story on Agency, § 324, 243; 9 Peters, 608, 629; 2 Man. Gr. 721.) As the plaintiff failed to show an original authority from the defendant to his son to accept the bill, and relied upon the subsequent ratification of the act, he should have shown affirmatively that the defendant knew when he admitted the making of the acceptance that the bill was made for the accommodation of Sandford, and as there was no evidence of this fact the plaintiff failed entirely in showing an acceptance of the bill by the defendant. The question was distinctly raised on the defendant's motion for a nonsuit, and I think the justice at the circuit erred in not granting it, and in submitting the case to the jury, and that therefore the judgment of the supreme court should be reversed and a new trial awarded.
JEWETT, TAGGART, MORSE and WILLARD, JJ., concurred with Judge Mason.
GARDINER, J., was in favor of affirming the judgment upon the ground that the deposition of Sandford furnished some evidence for the jury of an admission by the defendant of authority to his son to accept the bill.
JOHNSON, J., having been counsel in other cases involving the same question took no part in the decision.
RUGGLES, Ch. J., did not hear the argument.
Judgment reversed and new trial ordered.