#### WILLIAM PATTON vs. JAMES BRITTAIN.

A man gave authority to an agent to purchase some persona! property, but only so far as lie liad cash of the principal, with which he was to pay for it. The agent purchased on the credit of his principal, without paying any money, and the properly was delivered to the principal, who received it and converted it to his own ufc. Held, that the vendor had a right to recover from the principal the price of the goods.

Appeal from the Superior Court of Law of Henderson County, at the Fall Term 1847, his Honor Judge Settle presiding.

This was an action of assumpsit for the price of a parcel of salted hides, sold and delivered by the plaintiff to the defendant — Plea, von assumpsit; and upon the issue thereon joined, the case was tried at Henderson on the Fall Circuit of 1847.

The plaintiff first, offered in evidence an order, written and signed hy one James J. Bates, in the following words*: ‘■Charleston, 20th January, 1814. Mr. William Patton : jilease send to the Rail Road to-morrow, 1000 pounds of hides, averaging 35 to 40 lbs. as near as you can, to be conveyed to Smith & Benson, Hamburg, to be forwarded to James Briuain, Henderson, with some hides and oil, which will lie there,

JAMES J. BATES & CLAYTON.”

He next introduced a witness, named Clayton, who testified, that about the 1st of January, 1844, the defendant jdaced in the hands of Bates, who was going down to Charleston, two hundred dollars in money,and some.notes due there, with instructions to collect the notes, and with the money, which ho then handed to him, and that which he might collect, to purchase for him some hides, oil, <|’C,, *9but not to exceed the amount, which he might have in cash ; that Bates went to Charleston and collected some of the notes, and made purchases for the defendant, among which was that of the salted hides, for which this suit was brought; and, upon his return, he and the defendant had a settlement, in which the defendant accounted with him for all his purchases, that of the salted hides included, and received from him the notes not collected, and returned to him the receipt, which he had previously given for the money and notes.

This witness testified further, that, after this settlement, the defendant informed him, that he had received a letter from the plaintiff, stating that 1002 lbs. of salted hides, at LO cts. per pound, had been forwarded to him, and that he should look to him for payment. The plaintiff then produced a letter from the defendant, dated 24th February, 1844, in the following terms: “Dear Sir, I received a note from you, stating I was due for a lot of hides bought for J. J. Bates the 29th January. I am sorry to say there is so little confidence in man. The fact is, Mr. Bates had my money in ,his pocket to pay for all the hides and oil that he bought — therefore you may infer, he bought the hides of you and used the money to his own use. I saw him a few days since, and told him I had received a note from you on the subject; his answer was, he would remit the money forthwith.”

The plaintiff then introduced testimony to show, that the lot of hides had been sent by the Rail Road Cars to Hamburg, directed to Smith & Benson of that place, and then offered in evidence the deposition of Mr. Benson, in which it was stated that the hides were received by the firm of Smith & Benson, on the 31st of January, 1844, to be forwarded to the defendant, and that they, on the 10th of February following, delivered them, together with twenty-four other hides, and one barrel of oil, to one A. MeCadle, to be carried by his wagon to the defendant,.and *10they were paid the freight and charges on the said hides by the wagoner. The plaintiff then proved that the usual time required for loaded wagons to travel from Hamburg to Henderson County, where the defendant lived, was nine or ten days, and closed his case. The defendant offered no testimony.

The counsel for the defendant contended, and called upon the Court so to charge the jury, that, if the hides were sent to the defendant on the faith of and under the directions contained in the order, read in evidence, the presumption in law was that the credit was given to Bates & Clayton. And if this were not so, that, then, if the hides were forwarded by the Rail Road to Hamburg, stored with the commission merchants, and delivered at that place to the defendant’s wagon, at the defendant’s charge and expense, before he received notice from the plaintiff, that the hides had been purchased on a credit, and the credit given to the defendant, the plaintiff was not entitled to recover. The Court declined giving the instructions as prayed, but charged the jury, that, if they believed from the testimony, that the plaintiff gave notice to the defendant, that the hides had been purchased by his agent, Bates, on a credit, and that the credit had been given to the defendant, and that this notice had been given by the plaintiff and received by the defendant, before he either received the hides in Henderson, or settled with . his agent, Bates, the plaintiff was entitled to recover. But, if they were of opinion, that the defendant had either settled with his agent Bates, or had received the hides in the County of Henderson, before notice was given to him by the plaintiff, that Bates had bought the hides from him, as agent of the defendant, on credit, then they should find for the defendant. A verdict was returned for the plaintiff, when the defendant moved for a new trial, on the ground that the Court had misdirected the jury, This *11motion was overuled, and a judgment given for the plain» tiff, from which the defendant appealed.

Gaither and Avery, for the plaintiff.

J, W, Woodjin and Baxter, for the defendant.

Battle J.

The question presented for our determination in this case is one of some practical importance, but not of much difficulty. There is no doubt that the defendant was not bound by the contract for the purchase of the hides, made by his agent, because the agent had exceeded his authority, in purchasing upon credit, instead of paying cash, as he was expressly directed. This is fully established by the authorities referred to and relied upon by the defendant’s counsel. 1 Chit, PI. 40. Com. on Cont. 223. The principal, then, had a perfect right to repudiate the contract and refuse to receive the articles, but not having done so, it is equally clear that, by receiving the hides and appropriating them to his own use, after notice from the plaintiff that they had been purchased for him and upon his credit, he ratified the contract, made on his behalf, and became bound to pay for them. And this result would have been the same whether Bates acted contrary to his authority, exceeded it, or had none at all. It is the simple case of the goods of one man coming to the use of another, which he knowrs are not intended as a gift, but are sent to him, upon the expectation, that he will receive them and pay for them. He may refuse them, if they have been sent without his request: but, if he receive them, he must pay the price. But it is contended, that the defendant received the goods, before notice that they were sent upon his credit, at Hamburg, by the delivery to the commission merchants, or at least to the wagoner, who carried them to his place of residence in Henderson County. That cannot be so, for there is no evidence, that the commission.merchants or the wa*12goner were his special agents to receive the goods for him. There was, therefore, no delivery of them to the defendant, until they were carried to him in Henderson. Until that time they were merely in transitu, in the hands of common carriers, and be had the option to receive them or reject them. Having done the former, it is but common justice that he should pay for them. The dishonesty of his agent in embezzling his money must fall upon himself, and not upon an innocent person, who never trusted the agent.

In coming to the conclusion, that the defendant is responsible for the price of the hides, we have not been at all influenced by the consideration, that he had notice that he was looked to- for payment, before he had the settlement with his agent. That circumstance did not in any manner affect the plaintiff’s right to recover, provided the notice, that credit was given to him, reached his hands before the goods were received by him, because the plaintiff had done nothing to change the relation between him and his agent, before that time. The judgment must be affirmed.

Per Curiam.

Judgment affirmed.