Opinion
Argued
Decided December 12th, 1871
Edwards Odell, for appellants. Quackenbos Shaw, for respondents.
If it be conceded as it must, that the defendants did not in person sign any note or memorandum of the contract, and if it be further conceded that Rich was not an agent of the defendants when he signed the bought note, and that unless he was their agent by authority or adoption, they would not be bound thereby, there yet remains the question whether they did not afterward ratify his acts and so make them their own and thus become bound.
It appears in the testimony that Rich was a broker for the sale of this kind of goods, and was known to the defendants as such; that he had offered to the defendants other lots of them, which the defendants had declined to purchase; that he then offered to them these ten casks, which they agreed orally to take; that he then left the defendants, but soon returned to them with the plaintiffs' warehouse delivery order for the ten casks, which order he delivered to them; that they received and retained it and requested Rich to sell the goods for them, if he could get a profit; that afterward as the testimony tends to show, the defendants went and examined the goods, and, when called upon by the plaintiffs for payment, they did not deny their liability but asked for lenity. An inspection of the warehouse delivery order shows that it came from the plaintiffs, and gave to the defendants the knowledge or the means of knowledge, that the plaintiffs were the vendors of the goods.
It is held, that though there is no employment of a person in the first instance his acts may be subsequently adopted. The adoption relates back to the time of the original transaction, and is deemed in law the same to all purposes, as if authority had been given before. ( Lawrence v. Taylor, 5 Hill, 107; Maclean v. Dunn, 4 Bing., 722; 15 E.C.R., 129.) It seems then, that the action of the defendants, being with knowledge of the acts of Rich, was an adoption of those acts and a ratification of them. ( Maclean v. Dunn, supra.)
And as Rich, when he signed and delivered to the plaintiffs the bought note, did make a note or memorandum of the contract in writing subscribed by the party to be charged thereby, there was a valid contract for the sale of the goods. ( Maclean v. Dunn, supra.)
Holding that there was a valid contract of sale, we need treat the question of a delivery only as it was necessary to charge the vendees on that contract, and to put the goods at their risk and maintain an action for goods sold and delivered. There was no manual delivery. But an actual delivery is not required. A symbolical delivery suffices. A delivery of an order on a warehouseman may be enough. ( Hollingsworth v. Napier, 3 Caines, 132, and note a; and see Dunham v. Mann, 4 Seld., 508.) Nor did anything remain to be done to the goods by the plaintiffs. They had been weighed to the plaintiffs, and reweighed for the defendants. They had been separated to the plaintiffs from the larger quantity owned by their vendors. These ten casks were all that the plaintiffs owned at the warehouse on which the delivery order was given. So that it was these specific ten casks which the plaintiffs sold and delivered to the defendants. And though no testimony was given of the weight, yet that is alleged in the complaint, and, as no point was made of it upon the motion for a nonsuit, it must have been assumed at the trial as correctly stated therein. It was an omission so easily supplied, had attention been called to it, that we would not be warranted in now reversing a judgment because of it.
The judgment appealed from should be affirmed, with costs to the respondents.
All concur.
Judgment affirmed.