Perry v. Hudson

By the Court. Warner, J. delivering the opinion. The plaintiffin error insists upon two of the grounds only, taken in the bill of exceptions, and our judgment will be restricted thereto. [1.] First, that the Court erred in admitting the evidence of Theresa Killabren, a witness offered by the defendant. It appears from the record, that Melton, as the agent of Hudson, the defendant, went to the State of Alabama, and instituted three actions of trover in the name of Hudson, to recover sundry slaves. Being a non-resident, he was required to give security for the costs of the respective suits, and the plaintiff became his security; the suits were instituted in the name of Hudson, were subsequently dismissed, and the costs thereof paid by Perry, who now brings suit against Hudson, to recover the amount of costs so paid. It appears that after the suits had been instituted by Melton, as the agent of Hudson, in the name of the latter, he went to Alabama, assisted in the prosecution of the suits, and continued the same twice on Ms affidavit. The continuance of the causes on the affidavit of Hudson, the plaintiff therein, is not only shewn by the records of the Court in which the suits were pending, but [366] is also shewn by the testimony of James T. Johnson, Esq. the attorney, who conducted the suits. Here then, we have the most conclusive evidence that Hudson ratified the act of his agent in instituting the suits, whatever may have been the original authority delegated to him, and by such ratification made the act his own, and bound him as a party plaintiff, for the legal results of the suits thus instituted. 1 Livermore on Agency, 44. When the principal adopts the acts of his agent, such adoptive authority relates back to the time of the transaction, and is deemed in law the same to all purposes, as if it had been given before. Lawrence vs. Taylor, 5 Hill's N. York R. 113. The acts of ratification of the authority of Melton to institute the suits by Hudson, were not controverted at the trial; indeed, the fact that he continued the causes twice on his affidavit, appeared of record. Upon this state of facts, Hudson attempted to shew that the suits were instituted in Alabama, by Melton, his agent, without his authority, and therefore he was not liable to pay the costs of the same, and for that purpose the testimony of Kill abren was introduced. This evidence was inadmissible, in our judgment, to destroy the effect of his own conduct, ratifying the institution of the suits as before stated, by proving the private understanding between himself and Melton in relation to the suits, prior to the time it was shewn he had ratified the institution of them by continuing them, and aiding and assisting in their prosecution. The suits were instituted in his name, and if done without his authority, why did he not dismiss them ? Why did he continue them twice, and aid in the prosecution of them ? [2.] Chancellor Kent states the true doctrine in relation to this question, when he says, “ It is a very clear and salutary rule in relation to agencies, that where the principal, with knowledge of all the facts, adopts or acquiesces in the acts done under an assumed agency, he cannot be heard afterwards, to impeach them, under the pretence that they were done without authority, or even contrary to instructions 2 Kent's Com. 616. The defendant having ratified the institution of the suits in Alabama, [367] after a full knowledge that the same had been done by Melton, in his name, he cannot now be heard, to repudiate the act, under the pretence that the suits were instituted without his authority, or contrary to his instructions. The second objection is to the latter part of the charge of the Court to the Jury. [3.] The Court in the first part of its charge to the Jury, stated the principles of the law applicable to the case before it, with clearness and precision. But in that portion of its charge, in which it instructed the Jury “ that if they believed that Hudson did not order the suits, nor subsequently adopt them, but that by an agreement with Melton, permitted Melton to use his name only, at Melton’s own costs, then, they should find for the defendant,” we think there is error. There is not a particle of evidence'in the record, that we can discover, going to shew that Hudson did not adopt and ratify the act of Melton in instituting the suits, but on the contrary, the evidence is, that he did adopt and ratify the institution of them, by continuing them twice on his own affidavit, and assist in the direction and prosecution of them. This evidence of the plaintiff was not impeached or controverted in any manner whatever, as we can find in the record; consequently, it was error to instruct the Jury in regard to an assumed state of facts which did not exist; for there was no evidence before them, which would authorize the belief that Hudson did not subsequently ad.opt and ratify the suits, after they had been instituted in his name by Melton; but the whole of the evidence in relation to that point, was the other way, and this was the controlling question in the case. The whole of the latter part of the charge, in our judgment, destroyed the legal effect of the first portion of the charge, which stated the law correctly, and was based upon the evidence of the adoption and ratification of the suits by the defendant. In Paschall vs. Davis, (3 Kelly, 256,) we held it to be error in the Court to charge the Jury upon an assumed state of facts, which had not been proved, and have re-affirmed that principle in subsequent cases. Let the judgment of the Court below be reversed.