Lachner v. Salomon

By the Oourt, Paine, J. This action was brought to recover a balance for wood alleged to have been delivered by plaintiff to defendants, and sold by them for him. The defense was that the defendants sold the wood for one Bergen-thal, to whom the plaintiff had previously sold it, and to whom they had accounted for the proceeds. The evidence offered at the trial showed an agreement be [133] tween Kemper, the agent for the plaintiff, and Bergenthal, by which Kemper was to sell the latter one hundred and twenty cords of plaintiff’s wood, on which Bergenthal was to pay $70, and the balance of -the wood was to be sold and applied on a judgment which Bergenthal claimed to own against Kemper. There was some conflict between the plaintiff’s and defendants’ witnesses as to the preliminary proofs to be made of Bergenthal’s owning the judgment, before the proceeds should be applied to its payment. But they all agree that the wood was to be put in defendants’ hands and sold by them. The plaintiff’s witnesses claiming that the application was to be made if Bergenthal produced the proper proof that he owned the judgment, while the defendants’ evidence denied the existence of any such restriction. Bergenthal paid Kem-per ten dollars, and sixty dollars’ worth of oats which he obtained of the defendants. The wood was delivered to the defendants, and sold by them, and they credited Bergenthal with the amount on a debt which he owed them. The plaintiff in bringing the suit credited the defendants with the $70 00. The judge instructed the jury that Kemper by virtue of his being plaintiff’s agent, would not have authority to apply the proceeds of plaintiff’s wood to pay his own debt; that to authorize this, he must have either an express or implied authority, and that, as there was no evidence of an express authority, they were to determine whether there was an implied authority; and that they would only be warranted in finding such, from prior transactions of a similar character, in which Lackner had permitted such contract on the part of Kemper. The counsel for the appellants contended that the charge was erroneous, in the last particular, inasmuch as a subsequent ratification by the plaintiff would have been equivalent to an authority, and he claimed that such ratification was [134] shown by the plaintiff’s suing for the wood and crediting the amount paid to Kemper under the arrangement. There is no doubt that a subsequent ratification of an unauthorized act of an agent renders it valid and binding on the principal. But at the same time, it cannot be said to have created an actual authority at the time the act was done. And the judge in his general charge, was evidently speaking of an actual authority. And as applicable to that we see no error in his instructions. If the defendants’ counsel relied on a subsequent ratification, and the judge omitted to instruct the jury on that point, we think he should have asked a specific instruction; and then, if refused, an exception would be good. There can be no doubt that if such instruction had been asked in this case, the judge would have given it. And it would be very unsafe practice to reverse judgments for improper instructions given, or proper ones omitted, by the judge below, where there was no exception or request calling his attention to the point. The current of modern decisions has been rather in favor of greater strictness, than of any relaxation of the rule which requires a party seeking to avail himself of an error either of commission or omission, to have first called the attention of the judge to the precise point by an exception or instruction asked. We think the rule salutary, and that it is applicable to this case. The judgment is affirmed.