
    No. 914
    Joseph H. Delaney v. Isaac Levi.
    Defendant, "being indebted to plaintiff, gave several orders on different parties for sugar and molasses, as security for the paymenfof the indebtedness, which, if not redeemed in twenty days, were to become his property: Plaintiff placed the orders in the hands of his agent, with instructions to recover the amount of the indebtedness within the twenty days.
    After the expiration of the twenty days, the agent accepts payment on the orders, at different times, in small amounts, with the knowledge and consent of the principal: JTdd-That this is a ratification of the acts of the agent, binding on the principal.
    A PPEAL from the Third District Court of New Orleans, Fellowes, J.
    
      Sheldon & Pardee, for plaintiff and appellee.
    
      Sullivan, Billings c5 Hughes, for defendant and appellant.
    
      Brief of Sheldon & Pardee, for plaintiff and appellee.
    Unless the defence of payment, set up in the answer of defendant is sustained by the testimony, the judgment of the lower Court must be affirmed, for there is no other defence interposed.
    The allegation is of 'payment to the plaintiff himself, but no effort was made to prove this as laid. There is some evidence tending to show payment to one Adolphe Hebert, as agent of the plaintiff. He is the only witness, and was an agent, his powers being stated, and were to this extent: About the middle of May, appellant gave appellee the orders sued upon for sugar and molasses, as security for the payment of the balance due, to wit: $1,123 65, which orders were delivered to Hebert, with instructions to take the sugar and molasses, unless the balance so found due was fully paid in twenty days.
    The sum due Delaney was not paid in twenty days, nor was any part thereof, therefore Hébert had simply the authority to take the sugar and molasses mentioned in the orders, and hold the same for the plaintiff as his property. In advance then, Hebert had no authority to receive payment, except it was made within twenty days, or if not then made, to obtain payment by taking the sugar and molasses. He did neither of these thing?. But afterwards it seems he did take some current and some uncurrent money,'and a watch and chain at a stated value. If this' was payment it cannot be from any authority previously given, but must be from a subsequent ratification. ■
    The defendant did not consider this payment unless ratified by Delaney, for he did not take up the orders, but left them in the hands of Hébert. The latter :refused -to give them up, because he did not consider the matter settled. The,receiving'of the money, etc., he further considered a deposit, until Delaney would accept it.
    Further on, this witness says: “I thought the matter was settled, if Delaney had accepted the money. Delaney at once, and all the .time, refused to ratify the settlement.”
    Where an agent has transcended his authority, persons dealing with him are bound to look to him to find out whether there has been a ratification by the principal or not. Implied or tacit ratification is most frequently found as 'between principal and agent, and in some cases courts go far in extending the doctrine upon this subject. The principle is probably correct, although broadly laid down in 7 N. S. 143; 16 L. 51; 18 L. 517; 3 A. 468. In these cases, the controversies were wholly between principals and agents, and the law declared only applies to parties thus related. In conclusion, upon this point, it is submitted that the settlement relied on by the defendant was wholly unauthorized, and has never been ratified, directly or by implication, but on the contrary, has been at all times pointedly disapproved and repudiated.
    There is another question. Did the lower Court err in overruling the motion for a new trial ? When the application for a new trial is found upon the ground of newly discovered evidence, the affidavit must showtliat the evidence is material to the suit, and has been discovered since the judgment was rendered, although affiant had used every effort and diligence in his power to procure the necessary testimony. C. P. 561.
    ■ The affidavit should show what efforts had been made, that the Court may judge whether proper efforts have been put forth. 3 N. S. 170; 19 L. 475; 18 L. 531.
    If it appear that the party has neglected his means of defence, the new trial will be denied. 2 L. 306. 1 R. 92. 9 R. 177. It must be conclusively shown that this evidence could not have been obtained before by the use of due diligence. 18 L. 531. 2 A. 583.
    Applications for new trials upon the ground of newly discovered evidence, must be received with great caution. 4 A. 406.
    The affidavit must be strictly construed, because the party is presumed to set forth his whole ground, and to have sworn to as much as his conscience would permit. 7 L. 84.
    By the common law, new trials are never granted where the newly discovered evidence is cumulative merely. The Courts of this State have gone much further, and hold that the new evidence must be sufficient, if established, to authorize or defeat a recovery. 2 A. 225.
    The affidavit is defective, because : 1st. The testimony of Leon Levy Would not change the result of the suit. 2d. It does not show what acts of diligence were used. 3d. It does not show that any diligence was used, for the language employed by affiant is, “he has discovered evidence important to said cause, which he could not, with due. diligence, have obtained before,” or in direct meaning it is this, that if he had used due diligence he could not have obtained the testimony.
    The affidavit is loose, defective in many particulars, and is surrounded with many circumstances which excite suspicion of neglect of means of defence. Levi lived in New Orleans; the suit had been pending many months; and Leon Levy is described as living in New Orleans also; it is very singular that so soon after th e trial this witness was so fortunately discovered.
    
      Brief of Sullivan, Billings and Hughes, for defendant.and appellant.
    —The substance of the testimony is that in October, more than two months after the defendant had made the last payment to Hébert, the plaintiff, having for a long time known of these payments, goes to Hébert and proposes to him to treat the money and property so paid into his hands as collateral security for the payment of the price of goods, which he was about to purchase ; and does make two purchases; Hébert, upon his suggestion, and at his request, holding what defendant had paid into his hands as collateral security for the goods bought by plaintiff. Now, plaintiff could not make this money and property security for his debts, unless he appropriated it, assented to its being his, and adopted and confirmed the act of Hébert in receiving it in payment. He could only pledge this money and property by treating it as his own, and it could only become his own according to the terms which defendant had, by placing it in Hébert’s hands, offered, namely, by making it payment for the alleged balance of the claim. Raley on Agency, 171, note (o.)
    “ It is evidefit that there can be no stronger ratification of the act of an agent than the principal’s availing himself of the benefit of such act, although unauthorized; and that in like manner a person, by availing himself of the act of one whom he had not originally appointed his agent, must be deemed, retrospectively, to have created the agency from which he derives a profit. In either ease, the presumed ratification subjects the principal to the same liabilities to third persons or to the agent, as if the latter had in one case acted within the scope of his powers, or in the other, been a duly constituted agent.” See also Pitts v. Shubert, 11 La. 288; Thomas v. Scott, 3 Rob. 256; Chesneau’s Heirs v. Sadler, 10 M. (O. S.) 726, 735.
    Again : The plaintiff could not separate the payments. His ratification was a confirmation in toto of Hébert’s acts for him, from which all his verbal protests cannot relieve him, and from which he cannot recede. Story on Agency, 4th ed., p. 315, § 250.
    “Another consideration, very important in cases of this sort, is, that the principal cannot, of his own mere authority, ratify a transaction in part, and repudiate it as to the rest. He must either adopt the whole, or none. And hence the general rule is deduced, that where a ratification is established as to a part it operates as a confirmation of the whole of that particular transaction of the agent. It may be added, that a ratification, once deliberately made, upon full knowledge of all the material circumstances, become eo instanti, obligatory, and cannot afterwards be revoked or recalled. See also Elam v. Garruth, 2 An. 275, and C. C. Arts. 1884 and 1896.
   Labatjve, J.

In March, 1863, plaintiff sold defendant twelve bales of cotton for $3,143. The plaintiff admitting payment in part, claims a balance of $2,000, with interest, from May 11th, 1863.

The defendant, in his answer, admits that he was indebted to the plaintiff in the sum of $1,743, and that as security for the payment of the same, he gave to the plaintiff certain orders for sugar and molasses, as set forth in plaintiff’s petition. That subsequently to the delivery of said orders, and before the removal of the sugar and molasses, and the commencement of this suit, he paid to plaintiff said sum, and removed said sugar and molasses in his own right.

The District Court, after hearing the testimony, gave judgment for plaintiff for $1,123 60, with interest from May 11th, 1863. The defendant appealed.

Defendant’s counsel have presented to us but one question: “Whether payment was made, is the only question in this case.”

The testimony shows that on the 20th April, 1863, the parties had a settlement, and the defendant owed a balance to plaintiff amounting to $1,123 65. That about one month thereafter, the defendant was asked to pay; he then gave to the plaintiff as security for said debt, several orders upon planters and others, for sugar and molasses; there were three orders; the defendant was to pay this balance in twenty days, which being done, the orders were to be returned to him; and, if not paid within twenty days, the plaintiff was to take the sugar and molasses mentioned in the orders which were left in the possession of'one Adolphe Hébert for safety. This Adolphe Hébert, depositary of said orders, was authorized by plaintiff to receive the money, if paid within the said delay of twenty days. About a month after these orders had been deposited with Hébert, the defendant went to said Hébert’s store, and said to him that the plaintiff had offered him (the defendant) $200 for a gold watch and chain, which he left with Hébert, and also $125 in bills of Bank of Louisiana. From that time to August 18th, 1863, the defendant paid at different times to Hébert, the said balance due the plaintiff; this payment was made in bank-bills of Bank of New Orleans, Louisiana State Bank, and United States treasury notes and New Orleans city notes.

The defendant, and A. Hébert and Brother, were in account current, and on the 18th August, 1863, they had a settlement, and the balance $1,123 65, due by defendant to plaintiff, was charged in this settlement in favor of A. Hébert and Brother, against the defendant. It is evident that after the expiration of the twenty days allowed the defendant tp pay plaintiff, said Hébert, who had been authorized to receive, had no authority to receive money from the defendant for plaintiff, and the question is whether or not the plaintiff ratified the acts of said Hébert.

It is contended by the defendant that this ratification results from .the following testimony of A. Hébert, who states:

“In October, 1863, Mr. Delaney and myself had a talk about trading together, and I said to him I could not sell goods except for cash; his answer was to me: ‘ You must have money enough in your hands to satisfy what I would like to purchase from you. ’ I had frequently said to him that I had in my hands money from Levi, the defendant, and when he came this time to buy goods, he said: ‘Have you not money from Levi, enough to secure you?’ I sold him two different lots, at different dates, to the amount of $367 73. I made the remark that, besides the selling of goods, he must settle with me for collecting that debt of Levi; he said that is all right, and he would see me justified in the case. I sold the goods in October, to Mr. Delaney at his suggestion, that I had sufficient money in my hands belonging to him collected of Levi, which money was ample security for what he wanted to buy, He then said he had a great notion of taking the" $498. 65 in treasury notes and city notes. When I received the money from Levi, I considered it current money, and received it as such * * * * * * *

On cross-examination, he says:

“When I sold him the goods, in reference tó the matter of security, I alluded to the whole amount in my hands, the watch and all. I did not specify the watch. At this time bank-bills of New Orleans were at a discount, except Louisiana State Bank, which were wortli par. Two or three months prior to this, and always, Delaney refused the watch and uncurrent money. In selling Delaney th'e'goods, I trusted him on the Lovi claim, and did not limit him to the treasury and city notes. When I told Mr. Delaney that I wanted him to pay me for collecting that debt, I alluded to that part of it paid before April 20th, and had no allusion to the rest of it.

“I thought the matter was settled, if Delaney had accepted of the money. Delaney at once, and all the time, refused to ratify the settlement. He had authorized me to collect the debt of Levi, if paid in twenty days; if not, to get the sugar and molasses. No portion of the debt was paid within twenty days after the orders were given for the sugar and molasses, that is, no portion of the $1,123 65, balance due May 11th, but a portion was paid a few days after the twenty days had expired. When I received the money from Levi, I considered it more as a deposit than anything; I thought it was for the debt due to Delaney, if he would accept it. ”

We are of opinion that this testimony establishes a ratification of the payment made by the defendant to A. Hébert. It is evident that the plaintiff obtained goods upon the faith and credit of the money thus paid to, and in the hands of Hébert, who -sold him the goods. If he regarded this money as belonging to the defendant, and not to him, he had no right to tell Hébert, in asking goods on credit: “Have you not money from Levi, enough to secure you ?” It was upon this suggestion that Hébert sold him goods to the amount of §367 73. It is evident that he looked upon, and treated the money in the hands of Hébert, as his own money.

It is therefore, ordered adjudged and decreed, that the judgment appealed from be annulled and reversed, and it is further ordered and decreed, that the plaintiff’s demand be rejected, and that he pay costs in both courts.  