
    Essick v. Buckwalter.
    A principal, by a power of attorney, authorized his agent to sell and settle all his partnership interest in a saloon business, and to act for him in the partnership matters as the agent should deem best. The agent and the partner of the principal sold the business for §400, they to pay the pool license, then due, amounting to §50, which the purchaser agreed to add to the purchase money, making-it §450. The agent took a promissory note for $450, endorsed by the purchaser, added his own endorsement, had it discounted, and, with the proceeds, paid the purchaser §50, for his license, and divided the balance between the principal and his partner, less the discount. The note was subsequently protested and the principal supplied the agent with the money to raise it. In an action by -the principal for money loaned and advanced, the court charged that the agent had no right, under the power of attorney, “ to endorse a note for §450' when the purchase money of the personal property was but §200, so as to make his principal liable for such endorsement.” Held not to be error.
    Receiving the proceeds of the sale of the partnership interest, in such case, will not operate as a ratification of the endorsement. The facts and circumstances of the transaction must be fully communicated by the agent to the principal, before a ratification can be implied; and the principal must know that he would not be liable without such ratification.
    Feb. 7, 1889.
    Error, No. 60, Jan. T. 1889, to C. P. Montgomery Co., to review a .judgment on a verdict for plaintiff in an action of assumpsit, for money loaned and advanced, at June T. 1887, No. 89. Williams and McCollum, JJ., absent.
    The declaration was upon the ■ common counts. Plea, non assumpsit.
    The evidence was to the following effect, at the trial, before Swartz, P. J.;
    In 1886, Buckwalter and one Beideman were engaged in the saloon business. On March 25, 1886, Buckwalter executed and delivered to Essick. a power of attorney by which he authorized him “ to sell, settle, and adjust all my partnership interests in said firm of Beideman & Buckwalter, and in all matters and in all respects act for me in said partnership matters as by him shall be deemed best; and, in my name, to sue, ask, demand and receive from said partnership all profits due me from said partnership transactions, from any and all persons owing,.or to owe me, whether from business transactions, sale or any means whatsoever.”
    In June, 1886, while Buckwalter was in the west, Essick and Beideman sold the partnership interest to W. H. Brown for $400, Buckwalter’s interest being $200. It was further agreed that the firm should pay the pool license, then due, amounting to $50, Brown adding that to the amount of the sale, making the full amount $450. In the settlement of the purchase money with Brown, Essick took a note of the Penn Class Co., endorsed by one Wanner and then by Brown, for $450. ESsick endorsed the note himself and had it discounted and subsequently paid Buckwalter and Beideman $200 apiece, less $2.40 from each. He also paid Brown the remaining $50. When the note fell due, it was protested, and the bank notified Essick that they held him on his endorsement. On Dec. 1, 1886, Buckwalter paid over to Essick $458.15 and the following receipt . was signed by Essick: “ Deceived of Charles Buckwalter the sum of $458.15, to pay note of Penn Glags Co., to the order of Charles Wanner, for $450, dated June 17, 1886, due in three months, and endorsed by William Brown and William S. Essiclr, acting for Charles Buckwalter. This money to be appropriated to the said note and interest, which was not paid at maturity, but protested, and all the rights and liabilities that said Essick or Buckwalter have against each ■ other upon it, or jointly against other parties, shall remain as they now are until it is ascertained whether said note is collectable.” Essick took up the note and Buckwalter subsequently brought this suit.
    The defendant requested the court to charge, inter alia:
    
      “ 5. Essick, as the agent of Buckwalter, and under the authority given by Buckwalter in the sale of the partnership business, had the legal right to bind his principal by endorsing the said $450 note, providing his act was not fraudulent.” Ans. “ This is refused.
    “ 4. Buckwalter, by the act of receiving from Essick his share of the proceeds of the sale of the partnership business, ratified and adopted the acts done by Essick in the sale of said business.” Ans. “ This is refused. The simple receiving of the money is not sufficient of itself to ratify the unauthorized acts of Essick.”
    The court charged as follows: “ Charles Buckwalter has brought suit to recover $458.14 with interest, for money loaned or advanced to the defendant, William S. Essick. [Under the power of attorney in evidence.in this case, Essick, as the agent of Buckwalter, had the right to dispose of Buckwalter’s interest in the saloon business; but, under that authority, he had no right to éndorse a note for $450, when the purchase money of the personal property was but $200, so as to make his principal liable for such endorsement.] [1] Therefore, if Buckwalter is hable at all for the act of the agent in making that endorsement, so that Buckwalter could be called upon to pay the note at maturity if it was not paid, or indemnify Essick if he paid it, it will be necessary for you to find that the act of the agent was ratified by Buckwalter. [Now, what is the evidence of ratification ? Buckwalter came to the office when the distribution was made of the proceeds of the sale, and he obtained a check for $197.60, and, as Essick says, the discount of the note was taken from the proceeds of the sale. Therefore, if you believe Essick, Buckwalter must have known that there was a note in the case, and that a note had been taken for the sale of the property. If, however, you believe Buckwalter’s testimony, then he had no knowledge whatever that Essick even took a note until after he had received his check. What other testimony is there? Essick testified that the note was discounted at bank. Buckwalter called upon him and asked for money, and he told him that he would have the note discounted first, or words to that effect; but he says that he did not have the note, and that the note was in bank several days before it was discounted. Does that show to your minds that Buckwalter knew the character of this instrument ? Did he know the amount of it ? Did he know the maker or endorsers, or not ? Did he know that Essick had endorsed the note with intent to make him, Buck-waiter, liable upon it ?] [5] This is a fact for you to ascertain from the evidence. Did or did not Buckwalter know that Essick. intended to hold him liable upon the note endorsed by Essick, at the time Buckwalter got the money ? Can you find testimony in the case to establish such knowledge on his part ? The whole testimony is for you. [If Essick simply took the note because he supposed the parties to it were good, did not inquire into his rights to endorse the note, or did not in any way communicate facts to Buckwalter, from which Buckwalter could know that, if the note was not paid, he would be liable to Essick in case Essick was called upon to pay it, then Buckwalter would not be liable to Essick upon such an endorsement, and could not be called upon to indemnify Essick if Essick paid the note.] [6]
    “ It is said that Buckwalter ratified the unauthorized act, if it be an authorized act, by subsequently promising to pay the note and make Essick whole, or to see that Essick should lose nothing. Buckwalter denies this; he says he did not promise to pay the note. Mr. Hallman is called, and says that he had the impression, from the conversation that took place between the parties, that Buckwalter meant to save Essick harmless. If Buckwalter promised to pay this note, knowing all the facts and circumstances about it, that was a ratification of the unauthorized acts of Essick. If he made the promise, you will say whether at that time he knew the facts; because, according to Essick, this was after the note was on protest and he had been called upon to pay it. Here another principle steps in. [If we rely upon a man’s acts to show that he ratified a thing, they must show that he meant to ratify it, and if you find that Buckwalter believed that he was liable to make that payment to Essick, or to the bank, at the time he made the promise, then such a promise would not bind him ; because he could not be said to ratify the endorsement if he believed he was already liable upon it.] [4] Therefore that is an important question for you to inquire into. You have heard the testimony of the parties, and the testimony of Mr. Hallman, the attorney, as to what was said at the meeting when this agreement was drawn; and if you find that Buckwalter agreed to pay the note, or to idemnify Essick, you will say whether or not he knew that he was liable upon it; because, if he thought he was liable upon it, at the time that he made the promise, then that promise would not make him any more liable.”
    The court further charged, in effect, that the receipt signed by Essick did not stand in the way of a recovery, that by its terms the liability of the parties was to remain unchanged.
    Yerdict and judgment for plaintiff for $508.55.
    
      The assignments of error specified, 1, 4, 5, 6, the portions of the charge in brackets, quoting them; and, 2, 3, the answers to the points, quoting them.
    
      
      Franklin March, with him H. M. Brownback, for plaintiff in error.
    Essick did not transcend tbe authority given him by the power of attorney. The warrant expressly provided that he should act for the plaintiff in all respects “ as by him shall be deemed best.”
    The act of receiving the proceeds of the note, knowing its character, is in itself a ratification of the acts of Essick. Horter v. Silliman, 3 W. N. C. 405; Beeger’s Ap., 96 Pa. 447; McCulloch v. McKee, 16 Pa. 294; Parsons on Mercantile Law, 155.
    Buekwalter was bound to disavow the acts of Essick as soon as the note was taken. Childs v. Digby, 21 Pa. 27; Ins. Co. v. Johnson, 23 Pa. 75.
    Essick, as an agent, had a right to demand of his principal indemnity for acts done by him in pursuance of his agency. Evans on Agency, 173, Ewell’s ed.; Maitland v. Martin, 86 Pa. 120.
    Taking the note in his own name would not render him liable. Porter v. Zeitinger, 1 Penny. 505; Sharp v. Emmet, 5 Wh. 288.
    The charge, ás a whole, was misleading and was consequently erroneous. Reeves v. D. L. & W. R. R. Co., 30 Pa. 454; Penna. R. R. Co. v. Berry, 68 Pa. 278, and cases there cited.
    N. H. Larzelere, with him M. M. Gibson, for defendant in error.
    We print as our argument, the opinion of the court below in dismissing a motion for a new trial, citing the following cases: Porter v. Zeitinger, 1 Penny 505; Oakley v. Crenshaw, 4 Cowen, 250; Pittsburgh R. R. Co. v. Gazzam, 32 Pa. 340; Hinely v. Margaitz, 3 Pa. 128; Lincoln v. Wright, 23 Pa. 80.
    Most of the cases cited on the other side apply only to questions between the principal and third parties.
    The charge of the court .was even more favorable to plaintiff in error than he had a right to ask.
    Feb. 18, 1889.
   Per Curiam,

It was not error in the learned court below to charge the jury that, “under-the power of attorney in evidence in this case, Essick, as the agent of Buekwalter, had the right to dispose of Buckwalter’s interest in the saloon business, but Under the authority, he had no right to endorse a note for $150 when the purchase money of the personal property was but $200, so as to make his principal liable for such endorsement.” It was not error, therefore, to refuse defendant’s fifth point, which prayed for an instruction the direct opposite of the above ruling. If the agent could thus have bound his principal for a note of $150, he might have bound him for $1,500, or for any indefinite sum. This power was neither given nor implied by the letter of attorney.

The question of the ratification, by the principal, of the attorney’s act, was properly submitted to the jury, and tlieir verdict ends this case.

Judgment affirmed.  