
    Pharaoh Carter vs. Peter G. Taylor et als.
    C., being sued upon three notes made by an agent, plead non assumpsit, with an affidavit of its truth, and that the notes were not made by him. The plaintiff, on the trial, read a power of attorney from C. to the agent, authorizing him to purchase goods for C. to keep up a mercantile establishment owned by C. either for cash or on a credit, and to execute the notes of C. for that purpose. After the introduction of the power of attorney, the plaintiff, without other proof of the execution of the notes sued on, read them without objection on the part of the defendant to the jury. Held, that by permitting the notes to be thus read without objection, the defendant waived further proof of their due execution, and could not,' on motion for a new trial, or in this court, object to a verdict against him on the ground that the notes had been improperly admitted in evidence.
    It is requisite, before a principal can be held bound by the acts of his limited agent, not"only to prove the agency, but also to prove that the act done was within the scope of that limited agency ; thus where, in an action against a principal on a note made by his agent, it is proved that the agent was authorized to execute the notes of his principal in the purchase of goods for the store of the principal, it must also be proved, before the principal will be liable, that the notes were actually executed in the purchase of such goods.
    And if, in an action on such notes, the defendant, on proof of the execution of the power of attorney, permit the notes, without objection, to be read in evidence to the jury, it will be a tacit admission on his part that the notes were duly executed by the agent in the proper purchase- of merchandise ; and he will not be heard in a motion for a new trial, or in this court, objecting that such proof was not made, and that the notes-were therefore inadmissible in evidence.
    In error, from the Adams circuit court; Hon. Charles C. Cage, judge.
    Peter G. Taylor, Henry B. Dearth, and Hiram Hartt, partners under the firm of Taylor, Hartt & Co., brought their action of assumpsit against Pharaoh Carter, upon three promissory notes; one dated at New Orleans, September 4th, 1841, for $794 56, payable five months after date; one dated Natchez, 16th April, 1842, for $408 63, payable one day after date; and the other dated Natchez, July 5th, 1842, for $794, payable four months after date, each payable to the said Taylor, Hartt&Co., at places in New Orleans, with ten per cent, interest from da.te or maturity, and each signed “P. Carter, per G. H. Lyons.”
    To this action Carter appeared and filed the plea of non assumpsit in the usual form, which plea was verified by oath, to the effect that the plea was true, and that he had not made the notes sued on.
    A jury was empanélled, and on the trial of the issue the plaintiffs read a power of attorney from Carter to thé said G. H. Lyons, constituting him his attorney, í¡ for me and in my name and for my use, as agent and manager for me, to take possession of all my stock of goods now on hand in the city of Natchez, in said county and state, lately purchased by me of T. A. S. Doniphan, of said city, for the purpose of selling and disposing of the same by retail, for cash or on a credit, as he the said Guthridge H. Lyons may think proper and most advantageous to my interest; and upon receiving payment of all debts due by said sales of goods, to receipt and give acquittance in my name for the same, and to employ clerks, bookkeepers or salesmen, if necessary, for me and in my ñamé, the samé as I could do if personally present. And the said Guthridge H. Lyons is furthermore in my'place and stead put and deputed, constituted and appointed my lawful attorney, for me and in my name and for my use to contract for and purchase goods, wares and merchandise with money arising from the sales of the said goods now on hand, as aforesaid, or on a credit for any length of time that he may obtain the same from any person or persons in any city within the United States, in order to replenish the said stock of goods now on hand as aforesaid, so soon after the delivery of these presents as he the said Guthridge H. Lyons shall think best to supply and replenish thé same ; and at any time hereafter that the said Lyons may deem it necessary, to make further purchases in order at ail times to keep a sufficient supply of goods, wares and merchandise on hand in the said store at said Gity of Natchez; and in the purchases of said goods, wares and merchandise as aforesaid from any person or persons as aforesaid, to sign my name to any and all promissory notes or obligations for the payment of the same, at any time and place that he, the said Lyons, may contract and agree for the payment thereof, and thereby binding me for the payment of said promissory notes or obligations in any amount as aforesaid, the same as if I had been personally present and had signed the same myself. In witness, &c.” This power bears date the 4th day of September, 1840.
    The plaintiffs then read the notes before described, and introduced a witness who swore “that the said Guthridge H. Lyons had on one occasion, some year or two since, informed him that he had purchased goods from the said plaintiffs.” This was all the evidence in the cause; upon which the jury returned their verdict in favor of the plaintiffs, and assessed his damages •to the sum of $2547 33.
    The defendant moved the court for a new trial, on the ground that the verdict of the jury was contrary to law and evidence; which motion was overruled by the court, and Carter filed his bill of exceptions to and prosecuted this writ of error.
    
      Sanders and Price, for plaintiff in error.
    The error mainly relied upon by the plaintiff in this court is the refusal of the judge in the court below to grant a new trial.
    First, because, upon the plea of non est factum, or non assumpsit upon oath, the onus or proof of the execution of the notes lies upon the plaintiffs in the action on the trial of the issue before the jury. This was not done, for no one proved the signature of either Carter or his supposed attorney Lyons to either of the notes. Secondly, that the proof before the jury was insufficient to authorize the verdict, were it conceded that the note was, in point of fact, executed by said Lyons, because it is not shown that they were given “ for goods, wares or merchandise to replenish the stock of goods on hand of the plaintiff,” or “ to supply or replenish the same,” or to “ keep up a sufficient supply of the same in the store of the plaintiff in error at Natchez,” beyond which he, the said Lyons, had no power to bind the plaintiff in error. Thirdly, because the letter of attorney read does not authorize or empower the said Lyons to contract for interest at any rate, particularly at an illegal one. Two of the notes were made at Natchez, without pretext for being for loan of money; and were they in every other respect binding upon the plaintiff, would not be allowed under the plea to carry interest, which was obviously computed by the jury.
    The following authorities are relied upon: “Acts done by an agent, within the scope of his authority, and in which his commission is punctually pursued, are of course binding upon the principal; but where the authority is particular, (as we assert was the authority from Carter to Lyons,) the party must pursue it; and if the act vary from it, he departs from his authority, and what he does is void, unless the variance be merely circumstantial. Paley On Agency, 150.
    The court is also referred to its own decision in the case of the Planters Bank v. John Cameron et al. 3 S. & M. 609, where it is held, “ In case of a special agent, who is one constituted for a particular purpose, and under a limited authority, his principal is not bound if he exceed his authority.” Also in the case of Fox v. Fisk, 6 How. 345, it is held, “The principle of law is a familiar one, that an agent cannot bind his principal beyond the extent of his authority; and the law is even more rigid in circumscribing a special agent; any act exceeding the special and limited authority is a nullity;” in which the court cites Story on Agency, 126.
    From all which we contend that the circuit court erred in refusing to grant a new trial, and in rendering said judgment, &c.; and that said cause ought to be reversed and remanded for a new trial, or that this court render a judgment in bar of said action, &c.
    
      Thomas Reed, for defendants in error.
    1. It was not necessary to prove that the signature to the notes was made by Lyons, but only that he was authorized to execute them in the name of his principal, Carter. The notes were evidence that they were properly executed. By looking into the record, it will be seen that all the notes were made and signed by Lyons for Carter. The plea of non est factum was good, so far as denying that Carter in his own handwriting did not execute the notes; but when the plaintiffs introduced the power of attorney, and proved that Lyons, the agent of Carter, had purchased goods of the plaintiff, that raised the presumption that these notes were executed by Lyons for the purchase of the said goods; and this must be rebutted by evidence, or the jury were authorized to find a verdict for the plaintiffs.
    The other view, that the plea denied the signature of Lyons, is not tenable, because Carter could not be permitted to file a plea to that effect. Lyons himself is the only person that could make denial of his signature to the notes. This plea, then, only put in issue the right of Lyons to execute this note in the name' of his principal, Carter. And certainly, from the evidence, Lyons was fully empowered with that authority.
    
      2. In answer to the second ground alleged as a sufficient cause for a reversal, we only say that having proved that Lyons, the agent of Carter, about the time of the date of these notes, purchased goods of the plaintiffs, it was enough to authorize the verdict of the jury'; they at least thought so; and this court will not disturb it on that ground.
    But there is another answer to this assignment; it was unnecessary for the plaintiffs to prove that goods were purchased. On presenting the evidence of authority to make this kind of a contract, they could have rested their case, and it would have been sufficient testimony to demand a verdict for them.
    3. Another point is made, that has been raised for the first time in this court, and it presents itself in two forms or parts :
    First, that we recovered ten per cent, interest upon the notes. That may be so, but it is certainly too late for the plaintiff in error to make this objection ; it should have been taken advantage of at the trial.
    Second, that the agent Lyons was not authorized to contract, for interest. This was an incidental right, that follows upon the power to make contracts, purchase on time, &c. The agent is fully authorized to buy goods on time; and in order to do so, he was compelled to pay interest for the indulgence.
    The counsel for the plaintiff in error, in his brief, relies upon the following authorities: Paley on Agency, 120; Story on Agency, 126; 6 How. 345 ; 3 S. & M. 609. We will adopt the same authorities, and rely confidently on their sustaining our positions ; and will therefore ask an affirmance of the judgment.
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

The plaintiff in error was sued on three promissory notes, made by an agent. He plead the general issue, and filed an affidavit of the truth, and that the notes were not made by him. G. H. Lyons signed the notes as attorney in fact for Carter. On the trial, the plaintiffs’ counsel read a power of attorney executed by Carter, by which Lyons was authorized to purchase goods to keep up a mercantile establishment owned by Carter in the city of Natchez, either for cash or on a credit, and was also authorized to make notes for that purpose. After having read the power of attorney, the notes were introduced and read by the plaintiffs’ counsel, without any proof of their execution ; but it does not appear that the defendant’s counsel objected. The affidavit was sufficient to put the plaintiffs on proof of the making of the notes, but by permitting them to be read without objection, the defendant waived the necessity of such proof. Some of the authorities go so far as to decide that even a general objection to the admissibility of evidence will not do; the party objecting must point out the ground of objection. But clearly, if evidence be admitted without any objection, it is too late to take exception to it on an application for a new trial, or to say in the appellate court that it was improperly admitted. Jackson, ex dem. Dox v. Jackson, 5 Cowen, 173; White v. Kibbing, 11 Johnson, 128.

Another objection is, that there was no proof that the notes were given on the purchase of merchandise to keep up the mercantile establishment, that being the only purpose for which Lyons was authorized to bind his principal. As a general rulé, when a party is to be charged by the acts of his agent, the authority, if it he in writing, ought to be produced, so that it may be seen whether the thing done was authorized, and whether the authority has not been transcended. The plaintiff in error was sued on notes made by an agent. By the letter of attorney the power was given to make notes for merchandise, to keep, up a mercantile establishment. This was a general au-: thority in regard to a particular business. The principal was bound by every note made by the agent for the given purpose, but he was not bound to pay notes made in his name for other purposes. The legal validity of the notes, as the notes of Carter, was put in issue by the pleadings. They were not his notes unless made within the scope of the agent’s power, and it was incumbent on the plaintiffs below to show that they were given for merchandise to keep up the mercantile establishment. It was not sufficient to show that the agent had authority to make notes for a particular purpose, without also showing that these notes were given in the course of that business. He who seeks to make the principal liable for the act of his agent, must not only prove the agency, but must also prove, if it be a limited agency, that the transaction was within the scope of the power, as* on that depends the legal liability of the principal, unless such proof be dispensed with by the pleadings. Without such proof, the notes were not evidence of liability, .and of course were inadmissible; or, having been admitted without the preliminary proof, the jury might have been instructed to disregard them. Here again the defendant was at fault. No objection whatever was made; if it had been, the plaintiff could probably have laid the foundation for the introduction of the notes, by proving the consideration, and the failure to object must be regarded as a waiver of the objection. It comes too late on an application for a new trial. It would- be a surprise on the plaintiff. This is not the case of a verdict without evidence to sustain it, and therefore a proper one for a new trial; but it is a verdict upon sufficient evidence, which was admitted without a proper foundation being laid for its introduction. Especially was the proof sufficient when taken in connection with the admissions of the agent, that he had purchased goods of the plaintiff. This was a circumstance conducing to prove that the contract was made within the scope of the authority, and the admissions of the agent, as to matters in which he is authorized to bind the principal, are the admissions of the principal. By permitting the notes to be read without objection, the defendant tacitly admitted that they were given for merchandise to keep up the mercantile establishment.

The judgment must be affirmed.  