
    Patrick J. Hogue, Respondent, v. Morris W. Simonson and Others, Appellants.
    
      Principal and agent — what constitutes a ratification of an agent’s unauthorized act.
    
    A principal will not be held to have ratified the unauthorized act of an agent unless he had full knowledge of the unauthorized act, and with such knowledge has accepted the fruits thereof, or by some other, act has estopped himself from asserting its invalidity.
    Appeal by the defendants, Morris W. Simonson and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Steuben on the 15th day of September, 1903,. upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of September, 1903, denying the defendants’ motion for a new trial made upon the minutes.
    
      M. A. Lea/ry, for the appellants.
    
      Monroe Wheeler,. for the respondent.
   Stover, J.:

This action was brought to recover for a breach of warranty upon the sale of a quantity of potatoes, the warranty being that “ the same were fancy and uniform round stock, and, with few exceptions, free from small, very large or long potatoes, and not grub eaten, and of first-class quality and condition.”

' Upon the trial the sale was sought to be established through one Smith, as the agent of the defendants. The evidence shows that Smith was the agent of the defendants, authorized only to purchase potatoes from the farmers in the vicinity of his residence (Addison, N. Y.) and ship the same to defendants at Newark, N. J, The defendants furnished Smith with $500, which sum Smith deposited in a bank at Addison to the account of the defendants, Smith making sight drafts with bill of lading when a car was shipped, and having a power of attorney to check against the deposit to buy goods for defendants.

The plaintiff testified that he first saw one Wheeler, and had a conversation with him with reference to purchasing potatoes, and agreed at that time to give him forty cents per bushel for a carload of potatoes such as were shown*' being smooth, round and good size potatoes, and then paid Wheeler ten dollars on account. It does not appear that Wheeler had any authority from the defendants, or that he was in any way connected with them, the statement being made somewhere in the evidence that he had some relations with Smith. Subsequent, to the conversation ¡with Wheeler the plaintiff saw Smith, and Smith informed him that they could not load the potatoes at the point first suggested, but- could get them at another; that he then saw the sample potatoes .that Wheeler had agreed to give, and that Smith had agreed to ship the carload from Canisteo. When the potatoes arrived from Canisteoj they were examined by the plaintiff and Smith, and the plaintiff folund fault, and said that the potatoes were of inferior quality, and then told Smith they were, not the potatoes he had bought; that ¡he did not want them and could not use them. Smith then said he,was a little disappointed himself. Plaintiff then suggested, “Can’t you send them down to your people Simonson & Co.?” (the defendants) and Smith said, “Ho, they are full down there.” After some further discussion, in which it is stated that Smith said the. potatoes were better in the bottom of the car than they were on top, the plaintiff agreed to take the potatoes at thirty-eight and one-half cents per bushel, Smith saying “ they are ón my hands here.” Subsequently the plaintiff went to the defendants’ place of business and saw. the defendant Horton, and. told him that he had bought a load of potatoes from Smith that did not turn out as he represented them; Horton expressed some disappointment, saying, that iliey had had trouble with Smith, and he was sorry they had not lcnciwn before about the transaction;. that he would like to investigate* and if it was all right he would settle.

The evidence fairly shows thai up to the time that the plaintiff called upon Horton the defendants.had no knowledge of the transaction, either directly or indirectly, and that • at that time Horton requested the plaintiff to send him whatever papers he had, stating that if everything was all-right he would settle. There was subsequent correspondence, and a year after this action was commenced, the defendants not having settlecj and having refusecl fa-settle fh§ demand.

The check received by Smith from the plaintiff was deposited in the account of the defendants, but of this they had no knowledge until after their attention had been called to it by the plaintiff, and it does not appear where the money came from that purchased the potatoes, Smith having charge of the account, depositing and drawing against it.

Smith died before the trial of this action. Wheeler was not produced as a witness.

It is quite clear from the evidence that so far as the right of the plaintiff to recover is based upon the original authority of Smith to act for the defendants, it must fail, as it is practically undisputed that the only authority he had was to purchase and pay for potatoes and ship them to the defendants. But the plaintiff seeks to make a case by showing a subsequent ratification of the agreement with Smith by the defendants. We think he has failed in this. In order to have ratified the act of Smith the defendants must have had full knowledge of the original transaction, and, with such knowledge, have either agreed to accept the fruits of the agreement or by some act estopped themselves from asserting the invalidity of the original act. The rule was originally laid down in this State in Seymour v. Wyckoff (10 N. Y. 213), namely, “That the ratification of an act of an agent previously unauthorized must, in order to bind the principal, be with a full knowledge of all the material facts. If the material facts be either suppressed or unknown, the ratification is treated'as invalid, because founded in mistake or fraud.” This rule has been followed in many cases. In Trustees, etc. v. Bowman (136 N. Y. 526) this language is used : But before a principal can be held to have ratified the unauthorized act of an assumed agent, he must have full knowledge of the facts, so that it can be said that he utended to ratify the act. If his knowledge is partial or imperfect, re will not be held to have ratified the unauthorized act, and the proof of adequate knowledge of the facts should be reasonably clear md certain.”

We cannot find in the evidence in this case such reasonable and iertain evidence, either that the defendants knew of the transaction is it originally stood, or that they by any act led the plaintiff to believe that they assented to or considered themselves bound by the reauthorized act of Smith. The statement of the plaintiff was that he stated that he had bought a carload of potatoes of Smith, and that they had not turned out as he had represented. . The defendants; knowing that Smith was their agent, for certain purposes, inquired how the sale was made, and instead of telling the whole transaction the plaintiff said that the bill of sale was made upon one of their billheads. It is quite likely that the defendants may at that time have thought that they had been compromised by Smith in -some way, but whatever their reflections may liaveffieen, their statement was that they would investigate, and if they found that everything was all right they would settle. Upon investigation they were not satisfied that it was all right, they did not settle, and this suit was brought.

The only other act relied upon by the plaintiff is that defendants received the balance of the account deposited in the bank at Addison. But this was undoubtedly their account, and they were entitled to whatever balance there was. If Smith had used their moneys in speculating on his own. account, and had paid for a load of potatoes with their money, and then replaced such portion as he had taken by a sale of the potatoes, all without the knowledge of the defendants, certainly no ratification of that act could be claimed because the defendants received, some time afterwards, the balance of the account, which concededly was theirs. Smith, for all that appears in the case, may have used their money to pay for-the potatoes, and replaced it when the sale was consummated. There is no evidence tending to show in any way that the defendants had any knowledge of the deposit, or that they receivéd the avails.

So far as the original warranty sued upon is concerned, the evidence does not justify a finding of a breach of that warranty, as the evidence shows that at the time the potatoes were received, the plaintiff himself knew that they were not of the quality agreed upon, and then rejected them, making a new arrangement as to the price. But as the case seems to have been tried without objection upon a warranty different from that set forth in the complaint, we should for that reason not disturb' this judgment.

The trial court was asked to charge That there is no evidence sufficient to base a finding upon, that the defendants received any of the avails of this carload of potatoes, but the evidence is undisputed that they did not.”

Also “That there is no evidence in this case sufficient to justify a verdict that. Smith had any authority to sell these potatoes to the plaintiff at the time he sold them.”

Both of these requests were declined, and an exception taken.

We think that the evidence was altogether insufficient to establish the agency or subsequent ratification. The motion for a new trial should have been granted.

All concurred, except Williams, J., who dissented.

Judgment and order reversed and new trial ordered, with costs to the appellant to abide the event.  