
    
      Robert Powell v. Henry Buck.
    
    One employed to carry a raft of timber to a certain place, to be delivered to a cer-' tain person, and who, instead of doing so, himself sells the raft short of his destination, and receives the money, cannot bind his employer by such sale. He is a -special agent, to carry and not to sell.
    Whoever buys of an agent acting beyond the scope of his instruction, buys upon his own responsibility and that of the agent, and not upon the responsibility of the true owner.
    There is no distinction between the carriers of rafts of timber and other carriers of goods, cattle and the like — nothing in the nature of the 'employment, or in the commodity itself, which indicates a general, rather than a special agency — an agency to sell as well as to carry.
    The question of imputing to the principal the fraud committed by the agent, is. one to be passed upon by the jury.
    
      Before Richardson, J. at Horry, Spring Term, 1849.
    This was an action of trover to recover the value of a raft of timber. The plaintiff, R. M. Powell, employed B. Powell to carry the timber to Georgetown, to Mr. Waterman, to sell it for him. Instead of carrying it to Georgetown, B. Powell sold the timber at Bull Creek Ferry, to the defendant Buck, acting through his agent, James Smart, and received the money.
    The only important question made, was, whether the defendant had not a legal right to the timber, by reason of the sale to him by B. Powell. Upon this question the case turned, and the following was the material evidence on that head :
    
      James Smart
    
    (Buck’s agent) proved that he bought the timber of B. Powell. He did not know B. Powell, but he said it was his own raft.
    
      Thompson
    
    (also agent of Buck :) said he was acquainted with the business of rafting, buying, &c. since 1831; usually, he said, the owners conduct their own rafts, and sell them ; but the agents also sell the rafts ; the witness does not ask questions of the sellers. Buck had before bought of B. Powell a raft which was not his own. It was a stolen raft, and Buck probably paid the true owner, or it was arranged in some way. .
    
      Thomas Beaty—
    
    Said the bill for the raft was paid to B. Powell.
    
      Dan Hucks
    
    Said he met the plaintiff, who found his raft among the defendant’s rafts, and said it was not the first mean trick B. Powell had done. But Powell’s father had settled this mean trick. And he did not doubt Powell would have the money for him by the time he got home. And he did not blame Buck for buying it in this case. The witness ( said the plaintiff repeated this several times.
    
      James Beaty
    
    Said the owners usually carry their own rafts; but he purchased of any one that offered the rafts ; the carrier usually sells the raft.
    
      Mr. Boylston
    
    Said he once brought trover for a raft for Griffin against Buck, sold him by B. Powell; but it was settled before Court by Mr. Hill, father-in-law of B. Powell.
    
      Williamson
    
    Said much timber is sent to Georgetown ; the carrier usually takes a letter from the owner to the consignee.
    • His Honor charged the jury, that if B. Powell was, as he appeared to his understanding from the evidence, a special agent to carry the raft, and not to sell it, whoever bought it of him took it upon his own responsibility and that of the agent, and not upon the responsibility of the true owner.— That in such cases, as in all cases of one buying from a carrier, “ caveat emptor” is the rule of law. And that he could not perceive any distinction between the carriers of a raft of timber and other carriers of goods, cattle and the like. This was the general rule; but if any fraud had been' practised by the plaintiff in this instance upon Mr. Buck, he ought not to be made liable. But of any such fraud, the jury were the only proper judges. In this case it would appear that both parties knew of the former fraud practised by B. Powell.— Both seem to have confided in B. Powell. That as to the custom set up, of the carrier often selling the rafts, he could perceive little in it to vary the general rule laid down. It was doubtless convenient to confide in the actual occupant of the raft, and to buy it of him. But this must be done at the hazard of the buyer and actual seller, and could not deprive' the owner of his property, without his own consent or misconduct. Any man in possession may sell or deliver, if another will buy or receive the goods offered. But such an act cannot dispose of the rightsof a third party.
    The jury found for the plaintiff, and the defendant appealed and inoved for a new trial:
    1. Because his Honor erred in charging the jury, that as between the vendee and the real owner, where a loss accrues through the fraud of an agent of the latter, the rule was caveat emptor. Whereas, it is submitted that the rule is, that he who reposes confidence should suffer the consequences of its violation.
    2. That the nature of the employment, as well as the commodity itself, all indicated a general, and not a special, agency — an agency not merely for transportation, but also with authority to sell. His Honor should, therefore, have charged the jury, that the sale by the latter was within the scope of his authority.
    
      3. That as the defendant bad no means of knowing the secret relations that existed between the plaintiff and his said ( agent, and as the latter was in possession of the timber, representing himself as its owner, the defendant was justified in making the purchase ; and the jury should have been so charged.
    4. That as the plaintiff knew, at the time he employed his said agent, that he had practised a similar fraud upon a former occasion, his Honor should have charged the jury, that he who employs a knave as an agent, must take the consequences of his own folly, as well as the fraud of his agent.
    
      Munroe, for the motion.
    -, contra.
   Curia, per Richardson, J.

-The motion for a new trial assumes, that in charging the jury, the Circuit Judge mistook the law of the case. The Court is, therefore, to consider the objections to the Judge’s charge.

First, then, was the Judge mistaken, in charging the jury, that Berry Powell was a special and limited agent of the plaintiff; that is, to carry the raft and deliver it, but not to sell it, as a general agent might have done?

On this head, the evidence was explicit — Berry Powell was employed to carry the raft to Georgetown to be sold by Mr. Waterman. Bis agency was therefore specific, because limited to carrying the raft to another agent to sell. Berry Powell had, therefore, no general control, which plainly excludes him from selling. It is therefore plain, that the Judge could not charge, that to sell was within the scope of his confined authority to carry the raft to Waterman.

The Judge says, whoever bought the raft of B. Powell, took it upon his own responsibility or that of the carrier alone, and not upon that of the owner. And the sale by B. Powell being under an assumed authority, could not destroy the right of property in the owner.

This part of the judicial charge stands upon this established legal principle, that no man can be deprived of his property but by his own act and consent, or by the act of his authorized agent, (of course I speak not of cases of fraudulent imposition, or of judicial compulsion, &c.)

The principle just noticed is to guard the rights of property, and applies as well to rafts or logs, as to negroes, gold, or other goods.

There is but the one legal principle for all such cases, involving the right to personal chattels; and the Judge recognized it as properly applicable to rafts.

The first and second grounds of the appeal are then, as far as legal principles are involved, evidently mistaken. But the second ground would, further urge, that there is some peculiarity in rafting it, in the “commodity and employment,” tha.t pre-supposes in the carrier a right to sell the raft, because he is employed to carry it.

But I can perceive no sufficient reason for any such distinction in favor of the carriers of timber — whether by raft, boat, or land carriage — they are no more than carriers.

Men, doubtless, very often buy rafts as they do, still oftener, buy hogs, cattle, horses, poultry, and even negroes, of the person in immediate possession, with little or no enquiry about the title of the vendor; and it seldom turns out the purchaser is deceived. But when the rare exception occurs, the frequent practice of such confidence in the immediate occupants, cannot make such sales, like those made in market overt, good against the proper owner, willing or unwilling. We have no such law for particular places or goods.

This exposition of settled law fully answers the third ground, to wit: That Mr. Buck was justified, and is protected, in his purchase of the raft by the possession and the pretended ownership of B. Powell. If once allowed, the practice would amount to this: that a raftman may, by his own assumption, erect a market overt, when he pleases, on the bank of the river; simply because raftmen usually sell their rafts; and because men, as said by the witness, Thompson, do not usually enquire into the title of the seller; and when, in fact, the like confidence is practised by a great majority of purchasers of all goods.

To allow such effect in any particular case, the evidence should amount to proof of a particular usage. But such a practice, in order to constitute an exception to tVie general rule of law, should be so proved as to evidence the concurrence and assent of the owners, as well as that of the carriers and purchasers; and we have no evidence in this case that would evince any such concurrence, and so amount to what is called an usage ; which constitutes a legal exception to a rule of law, by the general concurrence of all concerned.

The last ground of the appeal assumes that the plaintiff, ky employing such a knave as Berry Powell, ministered to fraud committed by him upon Buck; and the Judge ought to have charged, that the plaintiff was liable for the fraud of his agent.

Doubtless, any man, by employing a known knave, may make himseíf liable for a fraud committed upon an ignorant stranger. But what is the evidence % It is, that both parties knew the character of B. Powell equally well, and the question of imputing to the principal the fraud committed in this case by the agent, has been passed upon by the jury, and is conclusive on that head.

The motion is therefore dismissed.

O’Neall and Frost, JX concurred.

Motion refused.  