
    George Clement versus Thomas K. Jones and Others.
    A sale by one assuming to be an agent, but not having sufficient authority to make it, may be rendered valid by a subsequent act of the owner, amounting to an adoption of it.
    [*60] * This was an action of replevin of thirty-one boxes of sugar, marked, G.'C. 1 to 29, and T. C. 1,2, which the plaintiff claims as his property. The defendants plead property in one Martin Bicker, on which plea an issue was joined ; and on the trial of the same before the Chief Justice, at the last November term, the following facts were admitted or proved by the parties.
    The plaintiff was an officer on board the merchant ship called the American Hero, of which his brother, Thomas Clement, junior, was part-owner, supercargo, and master, on a voyage from Calcutta to the United States. On the passage, the ship stopped at St. Salvador, •it which place Mr. Henry Hill, of the house of Hill, Howland, fy Co., was the American consul. The plaintiff, having an adventure of Bengal goods, bartered them with Hill, Howland, Co. for sugars, a part of which were shipped for his account and risk on board the schooner Boston, on or about the 16th of May, 1812 ; in which vessel the plaintiff sailed for Boston about the same time, and left his unfinished business to be settled by his brother. On the 20th of June following, the sugars replevied by the plaintiff’s writ were charged in account to the said Thomas Clement, twenty-nine boxes of which were for account of the plaintiff, and the two other boxes were for account of said Thomas Clement.
    
    At this time the American brig, Mew Moon, was at St. Salvador, owned by the defendants, and bound to Boston. The master, wish ing to procure freight, requested the said Thomas Clement to ship the said thirty-one boxes of sugar on board his vessel; which was agreed to, and on the 21st of June the said sugars were shipped on bo ird the Mew Moon, and the master (Davis) signed a bill of lading for them, which was in the common form, and in which it was stated that said sugars were shipped bv Thomas Clement, junior, for account and risk of George Clement, deliverable to P. P Pope, Esq.
    * On the 10th of August following, among other bills of [* 61 ] lading, Captain Davis signed bills of lading for the sugars replevied by the plaintiff’s writ, as shipped by Hill, Howland, fy Co., deliverable to George Clement; but it did not appear whether the said Hill, Howland, fy Co. knew that Captain Davis had already signed bills of lading for the same sugars, as shipped by Captain Cbement. Captain Davis sailed in the Mew Moon for Boston on or about the 22d of August, and, in consequence of the brig’s leaking, after being at sea forty-eight hours, put back to the same port, where the cargo was unladen, and put into the store of Hill, Howland, fy Co., and, after repairing damages, and relading her cargo, was ready for sea on the 20th of September following, at which time the news of the declaration of war between the United States and Great Britain reached St. Salvador. It was then thought advisable by the consul, Mr. Hill, and by other merchants of that place, that Captain Davis should remove the brig above the fort for safety, and there wait for further advice. This measure was adopted, and in the month of April, 1813, Mr. George Foster, an agent for the owners of. the Mew Moon, arrived at St. Salvador. About a month after his arrival, he sold the vessel, and dismissed the master and crew, it being thought advisable that the vessel should not come home under American colors. She was sold to a Mr. De Mello, a Portuguese ; and was made a Portuguese vessel, and a Portuguese captain and crew were provided for her, and her name changed to that of Camoens. Before this time the firm of Hill, Howland,. Co. was dissolved.
    After the sale of the brig Mew Moon, and in consequence of the war, and of the sale of the said vessel, said Hill sold the said sugars of the plaintiff and of said Thomas Clement to Martin Bicker, for the same amount which the said Clement paid for them, and received the money therefor ; the said Hill averring it to be, in his opinion, his duty, for the interest of the owners of said sugar, that they should not proceed, subject to a war risk and change of flag, and holding the house of Hill, Howland, fy Co. accountable to said * Clement for the proceeds, and exonerating Davis, the [*62] master, and the owners of the Mew Moon, from all responsibility.
    On the 1st of July, 1813, Henry Hill wrote both to the plaintiff and to Thomas Clement, informing them of the above facts, and stating that Mr. Samuel S. Howland, the bearer of the letters, would settle with them for the sugars, by paying them the invoice cost of the same. On the arrival of Mr. Howland, at Mew York, on the 8th of September, 1813, he wrote to the plaintiff and to Thomas 
      
      Clement, and desired to be informed in what manner he should pay the amount of the sugars of Mr. Thomas' Clement, and stated to the plaintiff that Mr. Hill had made a partial provision for the payment of his account, and that, as soon as he should realize Hill’s funds, he would inform him ; and, if they proved sufficient, would pay the plaintiff the balance, agreeably to Hill’s request. On the 18th of September, Thomas Clement, for himself, and as attorney to the plaintiff, wrote to Mr. Howland, acknowledging the receipt of Hill’s letters, and stating, that, although, in this transaction, Captain Davis was bound to deliver the sugars agreeably to his bill of lading, and was answerable to him and his brother for the amount of them, having no authority to deliver them to any one else ; yet, as the house had seen fit to sell them for the cost, he was not disposed to make any difficulty in the business, but expected the amount to bo immediately paid, as he could have nothing to do with the delays attending the collection of debts due to the house ; that Hill had written him explicitly that he, Howland, would settle the account, by paying for account of his brother George -dollars, and for his, Thomas’s, account -dollars ; that he had, therefore, drawn on Howland in favor of Messrs. Hubbard &f Greene for the same. On the same day the said Thomas Clement drew on the said Howland for $737, at thirty days’ sight, m favor of Hubbard fy Greene, “ being the amount of sugars sold by Messrs. Hill, Howland, fy Co. at Bahia, for account of George Clement and myself.” [*63] Which bill * Howland refused to accept, and the same was protested for non-acceptance on the 27th of September ; Howland assigning as the reason for his not accepting it, that he did not receive the funds which Hill had appropriated in this country for the purpose.
    On or about the 11th of October% 1813, the Camoens arrived at Boston, having on board the said thirty-one boxes of sugar. The plaintiff tendered the freight, and demanded a delivery of the sugar, which, by direction of one of the defendants, was refused by the master ; and the plaintiff immediately replevied the same by his writ in the present action.
    Whereupon the judge instructed the jury, that the said letter and bill of Thomas Clement was a ratification of the sale of the sugar by Hill to Bicker, and a confirmation of his title and property in them.
    The jury accordingly found a verdict for the defendants ; and the plaintiff moved for a new trial on account of the direction of the judge.
    
      Selfridge, for the plaintiff.
    
      Hubbard, for the defendants.
   Parker, C. J.,

delivered the opinion of the Court.

The issue tried by the jury was, whether the property replevied was in the plaintiff; and the question now before the Court is, whether, on the facts proved, the verdict is right in law, it having been returned in conformity to the direction' of the judge, that the correspondence between the plaintiff and Howland, after the arrival of the latter in New York, amounted to a ratification of the sale made by Hill, Howland, & Co. in St. Salvador.

The bill of lading, with the other evidence stated in the report, sufficiently proves the property to have been in the plaintiff anterior to the sale to Bicker; and it is clear that Hill, Howland, fy Co. had not such a control over the subject as authorized them, by a sale of it, although intended for the benefit of the plaintiff, to divest hint of his property in it, so that, on its arrival here, upon tendering the freight to the owners of the vessel, he would not [ * 64 ] have been entitled to it, and could not have maintained replevin for it, but for his assent to the sale which had taken place before the arrival.

We are all satisfied that the conduct of the plaintiff fully ratified the doings of Hill, Howland, & Co. On the arrival of Howland in New York, he immediately forwarded a letter from the house in St. Salvador, with one from himself, to the plaintiff; informing him of the sale, and proposing to pay him immediately as far as he had funds of the company, and the remainder as soon as funds should arrive. In answer to this communication, the plaintiff, through his brother, Thomas Clement, who in all the transactions acted for him, informs Howland, that, although he did not approve of the sale, yet he wished to make no difficulty, and should expect to be paid immediately, as he would not consent to wait the convenience of the house with respect to their funds ; and he afterwards draws a bill on Howland, payable in thirty days after sight.

We do not consider this a conditional ratification of the sale, but an absolute one, with a dissent only to the delay of payment claimed by Howland. The drawing of the bill, on the strength of Howland's letter, is conclusive evidence that the plaintiff intended to consider him personally as his debtor, in consequence of the sale by the com pony, for whom Howland had undertaken to pay. Had the plaintiff intended to disaffirm the transfer, mercantile fairness required that he should instantly, upon receiving notice of it, have informed Howland ; and not have waited the chance of the sugars’ arriving, that he might have the advantage of their great rise on account of the war, and, if they should be captured, or otherwise lost, might resort to his claim on the company, or Howland, for the proceeds of the sale made by them.

Bicker, having been a bond fide purchaser, for a valuable con s¡deration, in a foreign country, and from a person who, he might well presume, was authorized to sell, ought not to be dispossessed of the property ; unless the rules of law, applicable to such [*65] a transaction, should manifestly require *it. Now, although his title was imperfect, on account of the want of authority in the vendor ; yet we think that authority completely supported by the posterior conduct of the plaintiff; it being a well-known rule, that a subsequent adoption of an act done by one assuming to be an agent is equal in its effect to a precedent authority.

It is said, however, that the house at St. Salvador did not, when they informed the plaintiff of the sale, inform him of the circumstances which attended it, and the situation of the property. But we see no concealment of any fact material for the plaintiff to know, in order to enable him to decide whether he would sanction the sale or not. His ratification was general and immediate upon receiving notice. He might have suspended it, until he obtained further satisfaction from Howland, or he might have denied it altogether.

Upon the whole, we think the verdict is right and that judgment ought to be entered upon it. 
      
      
        Herring & al. vs. Polley, 8 Mass. Rep. 113. — Kuper vs. Augusta, 12 Mass Rep 185.— Odiorne & al. vs. Maxcy & al., 13 Mass. Rep 178. —Pratt vs. Putnam, 13 Mass. Rep. 361. — Fisher vs. Willard, 13 Mass. Rep. 379.—Boynton vs. Turner, 13 Mass. Rep. 391. — Amory vs. Hamilton, 17 Mass. Rep. 103. — Kingman vs. Pierce, 17 Mass. Rep. 247. — Frothingham vs. Haley, 3 Mass. Rep. 70. — Erick vs. Johnson, 6 Mass. Rep. 193. — Lent vs. Padelford, 10. Mass. Rep. 230. — Episcop. Char. Soc. vs. Episcop. Church, Dedham, 1 Pick. 372
     