the agent's abuse of power. So where agents, with power to execute a mortgage for a corporation, included therein, in excess of their authority, an agreement to pay a stipulated attorney's fee in case of suit, and at a subsequent meeting of the directors the mortgage was ratified by vote of the directors, without knowledge on their part of the unauthorized provision as to attorney's fees, it was held that such vote was not a ratification of the unauthorized act of the agent. Pacific Rolling Mill Co. v. Dayton, etc., 7 Saw., 67.

§ 351. Where an owner with full knowledge, and without objection, receives the proceeds of a sale made by his agent without authority, this is a ratification of the sale. Forrestier v. Bordman, 1 Story, 52.

§ 352. Acquiescence. If an agent borrows money in the name of his principal without authority, and demand is made, for the sums borrowed, of the principal, and the act of the agent is not disavowed by the principal within a reasonable time, the principal is held to have ratified the unauthorized borrowing. Gold Mining Co. v. National Bank, 6 Otto, 644. § 353. Where a party denies the authority of his agent to receive a mortgage and notes in discharge of a note, but does not offer to return the papers on the offer of the other party to receive them, he will not be permitted afterwards to deny the validity of the transaction. Benedict v. Maynard,* 4 McL., 569.

§ 354. Where an agent acts, as he supposes, for the best interest of a distant principal, the latter, when informed of the transaction, must give immediate information of his intention to repudiate it. He cannot, by holding his peace and apparent acquiescence, have the benefit of the contract if it should turn out to be profitable, and retain a right to repudiate if otherwise. He must reject within a reasonable time, or be deemed to adopt by acquiescence. (Hoyt v. Thompson, 19 N. Y., 218, cited.) Law v. Cross,* 1 Black, 533.

§ 355. If the principal have knowledge of the agent's acts, and do not repudiate them in a reasonable time, they will stand; this rule holds good where the agent compromises a debt, but the presumption of the acquiescence of the principal does not arise, unless it be shown that he had full knowledge of the transaction. Abbe v. Rood.* 6 McL., 108.

§ 356. Principals, by many years' acquiescence in the agreement of their agent to accept land in satisfaction of a debt due them, are held to have ratified it. Hepburn v. Dunlap, 1 Wheat., 190.

§ 357. Where a principal gives an agent a power of attorney to collect a debt, and the agent makes the collection, or substitutes some one else under a power of attorney given by him to make the collection, the principal is bound when for six years he has taken no steps to disavow the transaction, even if the original power of attorney is informal, insufficient, or even void. Buffalo Bayou Railroad Co. v. United States,* 16 Ct. Cl., 247.

§ 358. An agent for the sale of bonds bid them in for himself at public sale for their full value at that time. The principal being aware of the sale, and acquiescing in it for nearly twelve years, is conclusively held to have ratified the sale. Marsh v. Whitmore, 21 Wall., 183. § 359. In part.— A principal must accept or reject the acts of an agent as an entirety. He cannot avail himself of what operates to his advantage, and discard that which he dislikes. Coleman v. Stark,* 1 Oreg., 118.

§ 360. If a power has been assumed without warrant by one professing to act as agent, the principal may ratify or annul acts done under such power when informed of them. But he must adopt or reject the whole act; he has no right, without the consent of the other party, to adopt part of an act and reject part. Wilcocks v. Phillips, 1 Wall. Jr., 66.

§ 361. Principals are bound by the misrepresentations of an agent in making a sale, if the sale so made is ratified by them. They cannot bind the purchasers by a ratification in part of the acts of their agent, and repudiate the rest. They must take the whole or none. Treating the sale as valid, they are bound to make good the misrepresentations. Hough v. Richardson, 3 Story, 691; Doggett v. Emerson, 3 Story, 735.

§ 362. By receiving money collected. The voluntary receipt by a principal of money collected by his agent for him, and his signing a paper at the time of such receipt, and as a condition precedent thereto, which is intended by the agent as a ratification of his acts, binds the principal to ratify the acts of the agent in the matter. Weile v. United States,* 7 Ct. Cl., 540. § 363. Rights of third parties.- A principal cannot ratify the unauthorized act of his agent in the purchase of property, where the rights of third parties have intervened, and would be defeated thereby; and this is equally true where the rights of the government have intervened. Stoddart v. United States,* 4 Ct. Cl., 520.

$ 364. By bringing suit.— Where money has been paid to one acting under a power of attorney, which is void under the statute, and the principal sues the agent for the amount, this is a ratification of his act in receiving the money, and discharges the one so paying to the agent. Bailey v. United States,* 15 Ct. Cl., 512.

$ 365. Where property was purchased by an agent with the funds of his principal, without the latter's authority, and was captured by the armies during the rebellion, the bringing 241

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suit therefor by the principal in his own name is not, of itself, a ratification of the unauthorized purchase. Stoddart v. United States,* 4 Ct. Cl., 519.

§ 366. Bringing suit on a covenant in an agreement to submit to arbitration is a ratification of an agent's act in entering into the same, though the agent enters into such agreement without authority. Smith v. Morse, 9 Wall., 82.

§ 367. Purchase by agent. If an agent acting under power of attorney conveys land to himself, the principal only has a right to complain, and if he ratifies the sale it vests a good title in the agent. Starr v. Stark, 2 Saw., 623.

§ 368. Authority to sell real estate, or a ratification of the act, should be clearly proved. Bosseau v. O'Brien, 4 Biss., 395.

§ 369. Miscellaneous. An agent for the sale of lands gave A. the refusal of certain timber lands for a certain time at a certain price. A. sold the lands. the purchaser receiving deeds. from the agent and not from A. In an action by the purchaser to set aside the sale on account of the fraudulent representations of A., it was held that the facts created a legal presumption that A. acted as the agent of the principals, and of their agent, and he and they having ratified the sale, they were responsible for all the representations of A. as much as if they had given precedent authority. Doggett v. Emerson, 3 Story, 737.

§ 370. Where the master of a ship, by direction of the owners, draws a bill of exchange in his own name for the payment for a cargo, and the owners ratify the act, they are in the same situation as if they drew the bill themselves, and are responsible in the same manner. Wallace v. Agry, 4 Mason, 341.

§ 371. In admiralty proceedings, the agent of absent owners may libel either in his own name, as agent, or in the name of his principal, as he thinks best. A power of attorney, given by the owners, authorizing an agent to file such libel, though not executed till after the filing of the libel, is a good ratification of the filing of such libel in his own name in behalf of the owners. Houseman v. Schooner North Carolina, 15 Pet., 49.

IX. REVOCATION OF AUTHORITY.

SUMMARY - Bankruptcy of principal, § 372.- By a state of war; kind of money to be received, § 373.

§ 372. Whatever might be the effect of the bankruptcy of the principal where all the parties reside in the same country, the bankruptcy of the principal in England will not abrogate the authority of the agent here until he has official notice of such bankruptcy. Ogden v. Gillingham, § 374, 375. See § 503.

§ 373. An agent having authority to collect money may, it seems, receive current bank bills which pass at their par value in business transactions at the place where the contract is to be performed. But if a war breaks out, so that intercourse with his principal becomes unlawful, his power is at an end, and he has no right to receive anything in payment which it would be unlawful to remit, or which would be useless to his principal. Fretz v. Stover,. S$ 375-379. See §§ 306, 323, 324, 394.

[NOTES.-See §§ 580-403.]

OGDEN v. GILLINGHAM.

(Circuit Court for Pennsylvania: 1 Baldwin, 38-49. 1829.)

Opinion by HOPKINSON, J.

STATEMENT OF FACTS.- On the 6th of July, 1826, Thomas Newbold, then of the city of New York, but about to depart for England, appointed Oliver D. Ward and George H. Newbold, jointly and severally his attorneys, for him and in his name, or in the name of Thomas Newbold & Co., authorizing them or either of them, among other things, "to draw such bill or bills of exchange, check or checks, note or notes, and accept, indorse and pay the same, and execute and deliver such instrument or instruments in writing as they shall consider necessary in the due course and management of his business." Shortly after the execution of this power, Thomas Newbold left the United States, and Oliver D. Ward took upon himself the powers given him by that instrument. He transacted all the business of Newbold in this country, opened and answered his letters, drew drafts and bills in his name and in his behalf, and gen

erally did his business. In the exercise of this trust and authority, Mr. Ward had put into the hands of the defendants, then residing in Philadelphia, a certain quantity of tin, on Newbold's account, and instructed them to sell it. On the 13th of March, 1828, the defendants addressed a letter to Thomas Newbold & Co., New York, in which they write:

"Gentlemen: Herewith you have sales of three hundred boxes tin, which we hope will be satisfactory, net amount 2,569 dollars 72 cents, which you can value on us for, payable on the 19th instant, say twenty-five hundred and sixtynine dollars and seventy-two cents.

"Yours, very respectfully,

"GILLINGHAM, MITCHELL & Co." This letter, of course, was received by the agent, Oliver D. Ward, and opened by him. He was known by the defendants to have this authority, as several letters had passed between them on the subject of this tin. At the time Mr. Ward received the above letter, Thomas Newbold was indebted to the plaintiffs, Ogden, Ferguson & Co., and continued so after this suit was brought. Mr. Ward had some money in his hands to pay them on account of their advances to Newbold. After receiving the letter, he went to them, showed them the defendants' letter, and offered to give them a draft on the defendants for the amount stated in the letter, which they agreed to receive as cash. There was more than this amount due them by Thomas Newbold. On the 15th of the same March, that is, two days after the date of the defendants' letter, Ward drew a draft on the defendants for the recovery of which the present action was brought. The draft is as follows:

"$2,569.72.

NEW YORK, March 15, 1828.

"On the 19th instant, without grace, please to pay to the order of Messrs. Ogden, Ferguson & Co., twenty-five hundred and sixty-nine dollars and seventy-two cents, value received, and charge the same to your obedient servants. "THOMAS NEWBOLD & Co.

"Per O. D. WARD.

"To Messrs. GILLINGHAM, MITCHELL & Co., Philadelphia."

It will be observed that this bill is drawn precisely in conformity with the letter of the defendants in every essential particular. It is for the same amount; it is payable on the 19th instant, without the usual grace; it is unquestionable that the letter describes the bill which may be drawn, and the bill actually drawn is according to that description. At the time of these transactions in Philadelphia and New York, as it afterwards appeared, Thomas Newbold had become a bankrupt in England. There was a report of this in New York before the draft was drawn, but Mr. Ward, the agent, was not officially informed of it until the 17th of March, when the attorney under the assignees superseded Mr. Ward in his agency. When this bill was presented to the defendants, which was on the 17th of March, they replied that it could not be paid for want of authority, and it was accordingly protested.

This action is brought against the defendants on their acceptance of the bill according to the usage and custom of merchants, and the question is, are the plaintiffs entitled to recover in this action? The prominent facts of the case are: 1. A clear authority given by the defendants to draw the bill upon them, which is sufficiently described, and was afterwards drawn in conformity with the authority and description, and a promise or undertaking, that, if such a bill were drawn, it would be accepted. It is true they do not say in the terms, if you draw such a bill, we will accept it; but they use a mercantile phrase, per

fectly well and universally understood to mean the same thing, that is, "which you can value on us for," or which you can draw on us for; and to say that Newbold may draw, is to promise that they will accept; otherwise, a paltry equivocation would be allowed to defeat a clear engagement, and to destroy all commercial faith and confidence. 2. When the defendants gave this authority to draw, and this promise to accept, they had in their hands, and still have, funds of the drawer, more than sufficient to answer the bill. 3. The bill was drawn after the promise was made, and promptly after it was received. There was no unreasonable delay in drawing, which by any possibility could have prejudiced the defendants. 4. The bill was drawn in consequence of the promise contained in the letter of the 13th of March, 1828. That letter was shown to the payees of the bill as the authority of the drawer; and the bill was taken by the plaintiffs as so much cash, on the faith and credit of that letter. 5. The bill was taken for an antecedent debt, and not for money advanced particularly upon it.

$374. Authority given to draw a bill is an acceptance of a bill drawn pursuant to the authority.

On these facts a verdict was taken for the plaintiffs for $2,822.82, subject to the opinion of the court, on the following points:

1. Whether there was an acceptance of the bill.

2. Whether the bankruptcy of Thomas Newbold took away the authority of his agent to draw the bill.

On the first point, it is not necessary to consult the English cases for information or authority (although I think them very clear) when the law of the subject has been examined and settled by the supreme court of our country. In the case of Coolidge v. Payson, as reported in 2 Wheat., 66, the English decisions are examined by the chief justice, who delivered the opinion of the court, beginning with Pillam & Rose v. Van Mierop & Hopkins, 3 Burr., 1663; and it is considered by the chief justice that there is no essential difference between that case and the one before the supreme court. The chief justice distinctly states the question in Coolidge v. Payson to be, "does a promise to accept a bill amount to an acceptance to a person who has taken it on the credit of that promise, although the promise was made before the existence of the bill, and although it is drawn in favor of a person who takes it for a preexisting debt." I am at a loss to conceive how the question in the case before this court can be stated in more precise and comprehensive terms in all its essential points. On my construction of the letter the promise to accept was made, the bill was taken on the credit of the promise; the promise was made before the existence of the bill, and it was drawn in favor of a person who took it for a pre-existing debt. The answer, therefore, which the supreme court gave to this question in the case of Coolidge v. Payson must be the answer of this court in this case. That answer is thus given: "It is of much importance to merchants that this question should be at rest. Upon a review of the cases which are reported, this court is of opinion that a letter written within a reasonable time before or after the date of a bill of exchange, describing it in terms not to be mistaken, and promising to accept it, is, if shown to the person who afterwards takes the bill on the credit of the letter, a virtual acceptance binding the person who makes the promise." The judgment of the court below was affirmed. On the first point, therefore, I am of opinion that there was a full and binding acceptance by the defendants of the bill on which this suit is brought

§ 375. Where the principal becomes bankrupt in England, the authority of the agent here is not abrogated until he has official notice of such bankruptcy.

2. Did the bankruptcy of Thomas Newbold take away the authority of his agent, O. Ward, to draw this bill? for if he had no authority to draw the bill it cannot affect the funds of Thomas Newbold, on which it was drawn; and the letter of the defendants gave a right only to Thomas Newbold & Co., or one possessing their authority to draw. The power of attorney given in July, 1826, by Newbold to Ward, was full and explicit for this purpose, and, unless afterwards revoked or annulled, it continued when this bill was drawn. The agency of Ward was well known to the plaintiffs; they had dealt with him in that capacity. The bankruptcy of Thomas Newbold in England, prior to the drawing of this bill in New York, is the only circumstance relied on to support the position that the powers of Mr. Ward, as the agent of Newbold, were determined and annulled at the time he drew the bill for Thomas Newbold & Co. Was such the legal operation and effect of the bankruptcy under the circumstances of this case? In the first place, had Ward when he drew the bill, or the plaintiffs when they took it in payment as cash, notice of the bankruptcy? We have no evidence on this point but from Mr. Ward himself on his cross-examination; nor have the defendants attempted to strengthen what he has said, or to enlarge it by other testimony in the city of New York or elsewhere. Mr. Ward says, "that he had heard it reported in New York that Thomas Newbold was a bankrupt before he gave the aforesaid draft; but was not officially informed of it until Monday, the 17th of March, 1828, about eleven o'clock A. M., when Mr. Smith, the attorney for the assignees under the commission of bankruptcy, superseded him in his agency aforesaid." Can Mr. Ward be considered to have any notice of the bankruptcy which he was bound to regard, or would have been justified in regarding, until the 17th of March? He did not consider himself to be superseded in his agency till that time. If he had ceased to act on the mere report of the bankruptcy, and it had afterwards turned out to be unfounded, as many reports in a great commercial city daily prove to be, and his principal had suffered in his property or credit by such precipitancy, it would hardly have protected Mr. Ward from a responsi bility for the damages sustained, if he had merely proved the existence of a vague report, vouched by nobody and without any known name or authority. Weak, however, as this report was as a foundation for belief and adoption as a rule of action, it does not appear that it had reached the ears of the plaintiffs, who had acted in entire good faith in taking this bill. On this view of this part of the case, we must consider the effect of the bankruptcy upon the power of attorney and the acts of the agent as if those acts were done without any knowledge or notice of the bankruptcy.

If it were desirable or proper to discuss in this place abstract questions not necessary to the decision of the case in hand, such speculations might be indulged on this occasion. How does the bankruptcy of the principal affect his power of attorney and the authority of the agent under it? Is it by a direct and immediate operation upon the instrument or letter of attorney; or only indirect and consequential, by divesting both the bankrupt principal and his agent of all property on which the power can act? This question would be tested by supposing a species of property (and Judge Washington thought there might be such) which does not pass by the assignment of the commissioners. Would the power of the agent over such property be revoked and determined by the bankruptcy; or, in the present case, was the drawing of the