Ball v. Bender

Wyly, J. This suit is based on the following contract, viz: [494] “Shreveport, La., July 19, 1865. “For and in consideration of forty-five bales of cotton, the property of Dr. I. U. Ball, which I acknowledge to have appropriated to the use of G. M. Bender, whose lawful agent I am, I hereby obligate the said Griffin M. Bender, as well as myself, to deliver to William Ball, agent for Dr. I. U. Ball, within • ninety days from this date, a like forty-five bales of cotton, in Shreveport, in good shipping order, to weigh twenty-four thousand eight hundred and ninety pounds. “ (Signed) JAMES F. AINSLEY, “ Agent for G. M. Bender. “ (Witness) W. E. CHURCH, “ Captain A. A. G. U. S. Volunteers.” On the twenty-third of December, 1865, plaintiff, sued James F. Ainsley and Griffin M. Bender on said contract, attaching certain lands and personal property alleged to belong to the former, who was an absentee, and praying for judgment against them in solido for said cotton or its value. On the eleventh of January, 1866, S. J. and E. E. Futch intervened, claiming that they had purchased the land and personal property attached from the defendant, G. M. Bender, in Jasper county, Mississippi, on the twenty-nintli of November, 1865, which was prior to* the attachment. The defendant, G. M. Bender, pleaded the general issue, and specially denied that James F. Ainsley was his agent or attorney in fact, for the sale of the cotton mentioned in plaintiff’s petition, or for any other purpose, but averred that said Ainsley had no authority what, ever to sell said cotton or contract an obligation for him; that, during his absence from the State, and after his overseer had been conscripted into the military service of the Confederate States, the said Ainsley, without his knowledge or permission, illegally took possession and control of his plantation and other property. • The court gave judgment, on the verdict of the jury, in favor of plaintiff and against the defendants in solido, for $2000, and sustained the attachment. The defendant, Bender, has appealed. It appears that the defendant, Griffin M. Bender, a resident of the State of Mississippi, owned a plantation in the parish of Caddo, which was managed and controlled during the last years of the war, to wit: 1863, 1864 and 1865, by James F. Ainsley, who was employed as agent and overseer for his father, by the son of said Bender. That, during this period, Ainsley sold a lot of cotton bales on the plantation, to Joshua Dreyfouse, for Confederate bonds, giving an obligation to deliver the cotton at a future day. Subsequently, Dreyfouso sold, for Confederate money, forty-five bales of this lot, which still [495] remained on the plantation, to the plaintiff, Ainsley being notified thereof. At the close of the war, Ainsley again sold the entire lot which he had previously sold to Dreyfouse (including' the forty-five bales transferred to plaintiff), receiving in payment lawful money, and delivering it to the purchaser, Cundiff, who removed it from the premises. There was, however, other cotton, in the seed, on the premises, at the close of the war, and in the contract sued on, Ainsley, as agent for Bender, promised, within ninety days from the date thereof, to deliver forty-five bales to plaintiff, in place of those he had sold to Cundiff. We will consider, first, the authority of Ainsley to contract an obligation for G. M. Bender, or to dispose of his property. We do not find in the record that any express or special power was ever given him. He was simply the overseer or agent, with only administrative power over the property of Bender, and we do not think he had authority to contract the obligation sued on, or to alienate the property of his principal. C. C. 2965. Power to contract a loan or acknowledge a debt, or to alienate or mortgage property, or do any other act of ownership, must be express and special. C. C. 2965, 2966; 16 La. 175 9 R. 293; 12 R. 221; 11 An. 46. We do not find sufficient evidence in the recorcf to establish a ratification of the sale to Dreyfouse for Confederate bonds. On the contrary, it appears that Bender was very much displeased. But whether he ratified it or not, the consideration for the- sale was unlawful, and no subsequent ratification could make it less so. 19 An. 459. The cotton remained all the time on Bender’s plantation, in his possession, and if the overseer had not sold it the second time, neither the plaintiff nor his vendor, Dreyfouse, could have enforced the contract of sale, because of its immorality. C. C. 2450 ; 19 An. 460. There is no evidence that Bender ever ratified, or was oven aware of the contract sued on till this suit was instituted. On the whole, we are satisfied that the judgment of the court below is contrary to the law and the evidence, and should be reversed. It is therefore ordered that the judgment appealed from be reversed and annulled; and it is now ordered that plaintiff’s demand be rejected, with costs in both courts.