
    Baker & Vardeman vs. Byrne, Herman & Co.
    A subsequent recognition of an act done by an agent, or by one who assumes to act as such, is usually as binding on the principal, if made with a full knowledge of the act done, as a previous authority.
    Whether the principal possessed such knowledge, or not, must be determined by the jury ; and they may properly draw their conclusion from his acts and declarations subsequent to the performance of the act.
    Error from the circuit court of Holmes county.
    This was an action of assumpsit brought by the defendants in error, against the plaintiffs in error, to the April term, 1839, of the circuit court of Holmes county. The declaration contained three counts; first a special count for damages on account of the failure of the defendants to indemnify and save the plaintiffs harmless as the accommodation acceptors of a bill of exchange for $ 3000, drawn by the defendants; second, money counts; and third, an account stated. At the first term, the defendants pleaded the general issue. And at a subsequent term, the defendant, Vardeman, filed another plea, under oath, denying that he made, signed, or delivered, or authorized any person else to make, sign, or deliver for him, the bill of exchange as mentioned in the plaintiffs’ declaration. The other facts are sufficiently stated in the opinion of the court to understand fully the questions involved in the cause.
    Lansdale, for the plaintiffs in error.
    That Vardeman did not sign the bill himself, is well established, and indeed about that there is no controversy. The only question is, as to whether it was done by any person authorized to do so in his name. I contend that it was not.
    Ilsley’s testimony, and Brown’s are both contradictory. Ilsley first states that Vardeman stated he had signed his name to a blank bill of exchange with Seth Baker, James Baker, and Richard Compton, for the Bakers’ accomodation, for $ 1600 or $ 1700, &c. He afterwards states that he distinctly admitted that he had authorized his signature to a bill of exchange.
    
      His first statement is precise and specific that Yardeman said he had signed a blank bill of exchange with Seth Baker, James Baker, and Richard Compton, for the Bakers’ accomodation, to be filled up for $ 1600 or $ 1700. If Yardeman did so, (which is no doubt true) it is clear that the bill sued upon is not the one signed by him, for Barrett proves that this was signed by-Russel. I can conceive no reason for the admission, that he had authorized his signature to a bill of exchange unless it be taken as referring to the bill above mentioned, to which it must apply to make it at all consistent, and then it means either that he had signed a bill of the above description, or that it was done for him, not that he had authorized it to be subsequently done. The court will, if possible, reconcile his testimony, and this is the only mode by which it can be done, and this latter statement I take to be untrue. For no other witness ever speaks of his having given authority to any person to sign his name to this, or any other bill.
    Yardeman’s conduct, and conversations with Fitch and Brown, are entirely consistent with his having signed a blank bill. He might well, in that event, feel splicitude to have it paid, It must be borne in mind, that neither Fitch or Brown showed him the bill of exchange, and, that as far as the evidence shows, he had no opportunity to test its genuineness, and in point of fact his attention was not drawn to that point for several months after the suit was brought, as will be seen by reference to the date of the affidavit to the plea bearing date the 19th of October, 1839, whereas the simple plea of non assumpsit was put in at the April term previous.
    The proof by Barrett is clear and unequivocal that Richard Compton, and not Yardeman, authorized the signing of Yarde-man’s name to the bill. This is uncontradicted, and stands alone without a single circumstance to warrant the conclusion that the bill was signed by authority of Yardeman. The record rvill be searched in vain for any evidence tending in the smallest degree to prove an agency. The instructions as asked were clearly right and were directly applicable to and warranted by the testimony. They were refused, except as qualified, by which the jury were in substance told by the court that Ilsley’s and Brown’s testimony tended to prove an authority to Russel to sign the name of Vardeman, which was not merely abstract, but directly and emphatically contradicted by Barrett’s testimony.
    The instruction given at the instance of the plaintiff is in substance a charge that if A. is authorized to sign the name of B. that C. may do it without authority either from A. or B. This, it is conceived, cannot be the law. Let me again call the attention of the court to the qualification annexed to the instructions as asked by the defendant. The jury were not only told that the testimony ofBrown and Ilsley tended to prove that some person was authorized to sign the bill sued upon, but, (in effect) if it did tend to prove that fact, that they could not find for the defendant; not if it did prove that fact, but if it tended to prove that fact. It is to all intents and purposes a charge as to the weight of evidence. *
    
    It will be contended that there has already been one new trial granted and that therefore the reasons against sending it back are increased. To this I answer that the present verdict was obtained wholly by the misdirection of the court, and not by the action of the jury upon the weight of evidence. I do not see how the jury could have done otherwise under the charge of the court. There is therefore no force in the objection.
    It is confidently believed that the court will reverse the cause.
    
      Wilkinson and Miles, for the defendants in error.
    It will be attempted, by the counsel for Vardeman, to unsettle the verdict in this cause, upon the ground that the court misdirected the jury. At least, we suppose this is the position he will occupy, for the condition of the record does not afford a reasonable presumption that he will attempt any other. He cannot succeed in this. The instructions, had they been given as asked, without the qualification annexed by the court, would have conduced greatly to mislead the jury, or rather must have inevitably done so. The evidence of Brown and of Fitch, taken in connection, had afforded ground for the presumption that Yardeman had constituted Compton his agent, to sign the bill which was sued on. If Compton really had such an authority conferred on him, he could easily execute it himself, or direct some other person to do it in his presence.
    He accordingly directed Benjamin Russel to sign Yardeman’s name to the bill, and Russel did so. Afterwards it was placed in the hands of the witnesses, Fitch and Brown, for collection ; and Yardeman, on being told of it by Fitch, offered to settle it if he would accompany him to Franklin. In order for a final arrangement of the business, Fitch referred him to his partner, Brown, to whom Yardeman did not deny the justness of the demand, or question his liability to pay it, but admitted that he was a surety to the bill. This is a condensed, but a correct view of the substance of the evidence, and we think it was no violent presumption for the jury to infer from it, the execution of the bill by Compton, as the agent of Yardeman. Why his solicitude to have the debt settled by Baker the principal, as he called him ? his frequent rides to Franklin, the residence of Baker, and his repeated negotiations with the attorneys of the bill-holders, if such industrious efforts' were not prompted by the strong stimulus of interest? Why his admission to Usley that he was bound for some amount? (an admission made after the suit was brought, and which he never would have thought of, if he had imagined at the time, that he could gain anything but delay, or a favorable compromise by defending the suit.) The truth is, and the-evidence shows it, that a compromise was at this stage of the game his only object, and any serious attempt to rid himself of the debt altogether, was quite an after-thought with him. In view of the testimony in the cause, as spread upon the record, we think the court committed no error in qualifying and explaining the instructions in the manner that it did. That a circuit court has the power to instruct a jury, without being requested so to do, upon any point of law, upon which the counsel engaged in the cause differ in opinion. See H. & H. Digest, p. 482, sec. 9. If there was nothing wrong in the instructions, then the court will not disturb the verdict. It is bottomed on presumptions, the weight of which the jury had alone the right to judge of. They have passed upon it twice, and each time favorably for the plaintiff; this cause having once before found-its way to this court, and another trial having been awarded, to let in the evidence of Samuel Barrett. This evidence, the defendant at the last trial had the full benefit of, but it seems to have produced no impression upon the minds of the jury in his favor; and if the court will examine it, they will discover no reason why it should.
    Something will be said by the counsel for the appellant about the incompetency of an agent to delegate his power. The maxim has no application to the cause. The signature of Yardeman’s name to the bill, is to be regarded as the act of Compton, as it was done in Compton’s presence, and by his direction. The reason why, as a general rule, an authority cannot be delegated, is that, in most instances, the principal is supposed to confide in the skill and integrity of the agent. These reasons, it is quite evident, do not present themselves in this case, nor can the rule apply.
   Mr. Justice Clayton

delivered the opinion of the court.

This cause was before the court at the last January term. A new trial was then granted, to give the plaintiffs in error an opportunity to’ introduce the testimony of Samuel Barrett, which they had discovered to be important, after the’ verdict had been rendered. Another trial, at which the evidence of Barrett was used, has since taken place, with the same result; another verdict and judgment in favor of the defendants in error. A motion was made for a new trial which was refused, and the cause is again brought to this court by writ of error.

The reasons urged in support of the motion are, that the verdict is contrary to law and evidence, and that the court gave wrong instructions to the jury. The evidence contained in the bill of exceptions is precisely the same, as upon the first trial, with the addition of the testimony of Barrett. He states that he was present, when the bill of exchange on which the suit is founded was drawn; that Yardeman, who is sued as one of the drawers, was not present, and that his name was placed on it by a man named Russel, who is since dead. Russel, as he states, signed the bill with the name of Vardeman, at the request of Richard Compton, who was also one of the drawers, and who is now also dead. Fitch and Brown, who were the attorneys who brought the suit, both prove different conversations with Vardeman in relation to the bill, in which he did not deny his liability on it, and they state efforts which he used to induce Baker, another of the drawers, to pay it, and thereby release him. Usley, the agent of Byrne, Herman & Co. proves facts of a similar character. The whole evidence was submitted to the jury, and it was their province to decide upon it. After two concurrent verdicts, we should be very reluctant to disturb their finding, unless they were led into error, by an improper charge of the court. This brings us to the consideration of the charges.

The following instructions were asked for by the counsel of the defendants. First that unless the jury believe, from the evidence, that the defendant signed, executed and delivered the bill of exchange sued upon, either by himself or by some person by him lawfully authorized to do so for him, that he is not bound by the same, and they must find for the defendant. Secondly that even if they believe that he agreed after the said bill of exchange fell due to pay the same, that unless they also believe that the bill was executed by him or some person authorized to do so, for him, or that some consideration, passed for said promise, that he is not bound by the same. Thirdly, that if they believe, from the evidence, that the name of said defendant was signed to the said bill of exchange by B. W. Russel, at the instance and request of Richard Compton, that unless they also believe that Russel had an authority to do so from the defendant, he is not bound by it.

These instructions the court refused to ,give, except with the qualification, that “ they were to take into consideration the actings and doings of Vardeman, as detailed by the witnesses, and to give to them such weight as in their opinion they were entitled to, as tending to prove that said defendant had authorized some person to sign his name to said bill of exchange, and if they believed he had given such authority he was bound thereby.”

The first charge, in a proper state of case, is no doubt correct; / but then it is certainly the law, that a subsequent recognition of' an act done by an agent, or by one who assumes to act as such, is usually as obligatory as a previous authority. 2 Kent, 6L4. The recognition, to be binding, must be with a full knowledge on the part of the principal, of the act done, but whether the party possessed such knowledge is matter for the determination of the jury.

The second charge is nearly the same in substance with the first, and is subject to the same observations. The third varies from the others so far as to request a charge, that one agent cannot delegate his authority to another. This is a truism, but it falls equally with the others under the qualification already stated.

The addition to the instructions asked for, we regard as embodying the principle, which we have laid down to be correct. The whole conduct of Yardeman, as exhibited in the evidence, might justly go to the jury, and it was for them to decide whether he had authorized his name to be placed on the bill, or had sanctioned its use. Their conclusion might be drawn from acts and declarations which took place or were made subsequent to its execution, and the power to draw might be inferred from those acts and declarations, as well as from a previous authority. We do not therefore perceive any error in the charge, and the

Judgment is affirmed.  