Miller v. Bruff

Opinion by Henderson, J., Two questions were presented to the jury in the charge of the court: (1) Did the defendant’s chief deputy em [179] ploy the plaintiff as watchman? (2) Was it the custom of the office that the chief deputy employ the watchman on hehalf of the sheriff, and had that practice gone on so long and so universally that the sheriff knew it or must have known it and by his silence ratified it? The jury having found in favor of the defendant it is unnecessary to consider whether there was evidence which was sufficient to establish the custom alleged to have existed and which was relied on by the plaintiff. It is not claimed that there was any express authority given to the chief deputy to employ the plaintiff nor does it appear that the chief deputy was appointed under the provisions of the Act of May 24, 1887, P. L. 185, providing for the appointment of a chief deputy, empowered to act in place of the sheriff in case of his absence or disability. There is no implied authority vested in a deputy sheriff to bind the sheriff except as to those things necessary to be done in the proper execution of the process. The employment of a watchman in the case of property seized on a fi. fa. is not necessary to a lawful execution of the writ. It was the duty of the sheriff by himself or his deputy to levy on the property in obedience to the mandate of the court, but it was not necessary to take it into his possession to secure a lien of the writ: Paxton v. Steckel, 2 Pa. 93; Dreisbach v. Mechanics’ National Bank, 113 Pa. 554. As the plaintiff failed to show a special authority of the deputy sheriff and was unable to prove a custom' of the office his case failed on its facts. The authority of the deputy sheriff was considered in Munis v. Oliver, 24 Pa. Superior Ct. 64, and it was there held that he has no power by virtue of his deputation to bind the sheriff for services of a watchman to watch goods seized under a foreign attachment; and that the sheriff is not liable for the contracts of his deputy except for those things necessary in the proper service of the writ in his hands. And the sanie principle applies in the case of a writ of fieri facias. We do not wish to he understood as saying that the evidence of a custom of the office was [180] sufficient to support the plaintiff’s case if found to exist by tbe jury but without that evidence there is nothing in tbe case to support tbe allegation of a contract. Nor has tbe claim of ratification any better footing. Tbe rule is well settled that a full knowledge of all tbe material facts and circumstances attending tbe transaction is necessary to give validity to tbe ratification and tbe party must know that he would not be bound without such ratification: Pittsburgh & Steubenville R. R. Co. v. Gazzam, 32 Pa. 340; Zoebisch v. Rauch, 133 Pa. 532; Thrall v. Wilson, 17 Pa. Superior Ct. 376. The evidence offered to establish a ratification is insufficient for that purpose. Tbe assignments of error aré all overruled and tbe judgment affirmed.