
    *William U. Garrard, executor, plaintiff in error, vs. Charles D. Moody, defendant in error.
    (Atlanta,
    January Term, 1873.)
    1. Warehouseman — -Liability for Storage — Principal and Agent.— The purchaser of cotton, who stores the same with a warehouseman, is liable for the storage, notwithstanding he is the agent of a third party in making the purchase, unless he disclose the fact of his agency, and his principal to the warehouseman.
    2. Same — Same — Same — Election — Instructions. — If, after such storage, the bailee ascertained the agency, and elected to go on the principal for his claim for storage he would be bound by such election; and when the Court charged this principle, and further charged, that, “To make inquiries as to whether the principal be liable, to request that his accounts be forwarded to the principal to ascertain if he will pay them, will not be an election, there must be an intent to look to an ascertained principal alone for payment to constitute an election,” it was not error — the more especially when the whole charge is looked to in connection with the evidence on this point in this case.
    3. Same — Same—Same—Evidence.—-When the Court fully and distinctly leaves the questions as to agency and election to the jury, it Was not error — at least not such error as to authorize a new trial, for the Court to have refused to allow a witness to testify: “That after the presentation of the account to A. B. (the alleged principal) by the attorney of defendant, which fact was known to the executor of the purchaser of the cotton, the executor paid to A. B. about $8,000 00 due by the testator to A. B. on a guaranty.”
    4. Same — Same—Same—Same.—Such evidence may exhibit the equity of the principle why an election should discharge the agent, but it would not tend to establish the point in issue, as against the creditor, to-wit: Had he made an election?
    5. Same — Same—Tien of Warehouseman. — Under a warehouseman’s receipt as follows: “Received from W. U. Gerrard, one hundred and twenty-seven bales of cotton, marked, numbered, etc., as per margin, (the marks, etc., being given) subject to this receipt only on paying customary charges and all advances, acts of providence and fires excepted,” the warehouseman has not only a lien on the cotton, but the consignor is liable for the customary charges that may accrue, and his liability continues until he may sell and give notice to the warehouseman, unless he be discharged by the act or consent of the warehouseman.
    Warehouseman. Bailment. Principal and agent. Before Judge Johnson. Muscogee Superior Court. May Term, 1872.
    William U. Garrard, as executor of W. W. Garrard, deceased, brought complaint against Charles D. Moody, on a *due bill for $100 00, dated August 15th, 1865. The defendant pleaded as follows: 1st. The general issue. 2d. That the due bill was merely given by him as a memorandum of an amount of money advanced to him by said W. U. Garrard to pay his (defendant’s) expenses in going to Mobile on business for said Garrard, and that the amount set forth in said receipt was actually expended in that way. 3d. That said Garrard was indebted to defendant at the time of his death, for storage of cotton, and for personal services rendered, in the sum of $1,079 00, which he pleads as set-off, and prays judgment for the same.
    The receipt under which the defendant held testator’s cotton, was as follows:
    marked | “Received from W. U. Garrard, one hundred C. D. M.| and twenty-seven bales of cotton, marked, numbered, etc., as per margin, subject to this receipt only, on paying customary charges and all advances, acts of providence and fire excepted.
    (Signed) “C. D. Moody.”
    'The defendant proved that the charges for storage were reasonable.
    The plaintiff, in rebuttal, introduced R. J. Moses, Esq., who testified as follows: That defendant came to him, as an attorney, a few days before the death of W. W. Garrard, to collect several cotton storage bills, among others one against Denniston & Company, the items of which were the same as in the bill now sued on. That witness took it to Garrard, as the agent of Denniston & Company, to get him to forward it. That Garrard treated the bill with derision, and witness so advised defendant. That Garrard died a few days afterwards. That witness then, at the request of defendant, sent the bill direct to Denniston & Company.
    Plaintiff further proposed to prove by this witness that, “after the presentation of the account to Denniston & Company, by him as the attorney of defendant which fact was known to the plaintiff, the plaintiff paid to Denniston & ^Company $8,000 00, due by testator to them on a guaranty.” On objection made, this evidence was excluded by the Court, and plaintiff excepted.
    The jury returned a verdict for the defendant for $650 00 with interest from December 20th, 1865. Whereupon the plaintiff moved for a new trial upon the following grounds:
    1st. Because the Court erred in excluding the testimony of R. J. Moses Esq., above set forth.
    2d. Because the Court erred in charging, the jury, “that to make inquiries as to whether the principal be liable, to request that his accounts be forwarded to the alleged principal to ascertain if he will pay them, will not be an election; there must be an intent to look to an ascertained principal alone for payment to constitute an election.”
    3d. Because the Court refused to charge the jury, “that under the receipt introduced in evidence, no one is liable "but the cotton and the party who holds the receipt and has the right to demand the cotton under the receipt. The liability is upon the cotton and the holder of the receipts, and upon no one else.”
    The motion was overruled, and the plaintiff excepted upon each of the aforesaid grounds.
    R. J. Moses ; W.- U. Garrard, for plaintiff in error.
    Peabody & Brannon, for defendant.
   Trippe, Judge.

It is a principle running through the whole doctrine of agency, that where an agent does not disclose the fact of his agency, he is liable, personally, on his contracts. If the party with whom he deals discovers that he is but an agent, such party may hold, the principal responsible: 15 East., 67; 9 B. & C., 78. He may hold either the agent or the principal accountable, but if he elects to go on the principal, he is bound by that election: Chitty on Contracts, 206. But the simple fact that the agent refuses to pay, and the creditor requests his. *attorney to forward the account to the alleged principal, or, in other words, to try to get payment wherever he could, is not, of itself, an election. If the creditor, when he ascertains that there is a principal who is liable, accepts him as the debtor, and looks exclusively to him, the creditor cannot afterwards recover from the agent. The Court charged this, and it was not error to add what is objected to in the second ground of exception: Story on Agency, 291, and note.

The Court fully and distinctly left the questions both of agency and election,-to the jury. If the creditor knew of the agency at the time the debt was created, the agent was not liable. If the creditor elected to go on the principal, after the fact of agency was ascertained, as before stated, the agent was no longer liable, But what the agent himself did, as to settling with his principal, throws no light on the question as to whether he was an agent in this particular case, or whether the creditor had made such an election as would discharge him. If he were, in fact, the agent, and such election had been made by the creditor, then the fact proposed to have been proven would have strongly exhibited the equity of the rule. But, under the charge the Court gave, “that an election by the creditor to go on the principal bound him,” the testimony was wholly immaterial. Under the charge, there were but two questions on this branch of the case: Was plaintiff an agent ? Did the defendant make an election ? With those two questions, which-left it as favorable to the plaintiff as he could ask, it did not matter whether or not the evidence was admitted.* The jury found against'the plaintiff on these questions.

The general principle is, that a bailee for hire, not only has a lien on the thing deposited for payment of charges, but the bailor is personally liable. We know of no rule of law that will take cotton stored with a warehouseman, out of the operation of that principle. The goods or cotton, may be lost of destroyed without the fault of the bailee, the warehouseman. There is no reason why he should lose his services, any more than the keeper of a livery stable, a landlord, or any other ^bailee. If it be necessary for the interests or convenience of the planter that this rule should be changed in relation to cotton, and that the warehouseman should look to the cotton or to whomsoever his receipt for the cotton may be transferred, it must be done by legislation.

Judgment affirmed.  