
    Edwin W. Howell, Respondent, v. James A. Christy and another, Appellants.
    (General Term, Third Department,
    October, 1870.)
    It seems, that in a sheriff’s action upon the defendants’ promise of indemnity, to recover the amount of a judgment, obtained against arid paid by him, for goods sold under the defendants’ execution, the plaintiff need not prove the amount realized upon a sale of the goods levied on, and applied by him on such judgment, although the amount so realized and applied is averred in the complaint, and the demand is for the balance of the judgment’s face; and that, in such case, it is for the defendants to prove the precise amount realized if they dispute the deficiency claimed.
    Nor, it seems, in such suit, may the defendants claim the negligence of the sheriff, in connection with that of his attorney, in conducting a defence to the suit in which the judgment, against the former, was recovered.
    And that after notice given by the sheriff, to the defendants, of the suit brought against him to recover for the goods levied on, such suit became substantially a suit against the defendants, and that any defence made by the sheriff therein was gratuitous, and could not render him liable for negligence; and that, in the absence of fraud or collusion, the defendants were bound by the result of the action, and could not attack the judgment collaterally.
    Where the question was, whether certain directions and promises constituted a ratification, by the defendants, — Held, that they were entitled to have the jury instructed, that if a ratification, claimed to have been made in a certain letter, was made without full knowledge of all the facts, that it was not a ratification in law; and that this was so notwithstanding the statements, &c., in the letter were not the only evidence of ratification relied on by the plaintiff, and the court charged that if the defendants ratified with knowledge of the power assumed by their agent in the ( acts in question, they were liable.
    The cause was tried at the Chemung circuit before one of the justices of this court and a jury in March, 1870. It appeared on the trial, that in April, 1866, the defendants sent to S. B. Tomlinson, Esq., an attorney, a claim against J. H. Dunn for collection, upon which claim judgment was entered 8th May, 1866, for $284.22 damages and costs. An execution was on the same day issued to the plaintiff, who ivas sheriff, and who, on 12th May, levied on a quantity of cigars as the property of Dunn. Plaintiff claimed that he made this levy by direction of Tomlinson, and on his promise that defendants would indemnify him. A brother of Dunn sued the plaintiff for the cigars, and plaintiff gave the papers to Tomlinson who defended the action; and it was tried on the 2d June, 1868, and Dunn’s brother recovered a judgment against plaintiff for $821.41 damages, as the value of the cigars, and $231.55 costs; in all, $1,050.96.
    In September, 1868, plaintiff paid on an execution issued on the judgment obtained by Dunn’s brother, $1,088.85, and thereafter brought this action, averring that defendants directed plaintiff to sell and dispose of the cigars, and apply the proceeds on the execution of Dunn’s brother against him, and that he did so sell them and apply their proceeds, $198.71, on said execution, “ leaving the balance due and unpaid on said execution of about $890.14, being the amount of loss and damage incurred and sustained by said plaintiff, and that said defendants, on or about the 18th day of June, 1868, after being informed of the facts aforesaid by their said attorney, promised and agreed to pay whatever deficiency there might be on said last execution, after applying the proceeds of the sale of said property thereon.”
    The answer admitted the recovery of the defendant’s judgment, the issuing of execution thereon to the plaintiff, and the recovery against him; but alleged that the action against the sheriff had been insufficiently and negligently defended, and otherwise denied the complaint.
    The plaintiff rested without showing what the cigars sold for, and defendants’ counsel asked the court, under the pleadings and proofs, to restrict the plaintiff’s recovery to the costs of the action in the case of Dunn v. Howell, upon the ground that the plaintiff had not shown what the cigars sold for, and had failed to show any deficiency.
    The court refused the request and the defendants’ counsel excepted.
    It is claimed by the plaintiff that Tomlinson had authority from the defendants to indemnify him, for the levy on the cigars and did so, and that defendants ratified Tomlinson’s act after the plaintiff was beaten in the action by Dunn’s brother. Both the authority and ratification are denied by the defendants. The authority mainly rests upon certain letters introduced in evidence, and others alleged to have been written and lost.
    The defendants made an offer of evidence on the trial and certain requests to charge the jury, which were refused, and exceptions were duly taken to the several rulings of the judge. The questions arising are stated in the opinion. A verdict was rendered in favor of the plaintiff for $983.20, the amount claimed, and interest thereon. Exceptions were made, which were" ordered to be first heard at General Term.
    
      Smith & Hill, for the appellants.
    
      E. B. Hart, for the respondent.
    Present — Miller, P. J., Potter and Parker, JJ.
   By the Court —

Miller, P. J.

I am inclined to think that there was no error on the trial in the refusal of the court to restrict the plaintiffs’ recovery to the costs of the action in the case of Dunn v. Howell, on the ground that the plaintiff had not shown what the cigars sold for, and had failed to show any deficiency. It is true that the plaintiffs’ complaint alleged a direction to sell; the sale of the property levied upon by the plaintiff as sheriff; the application of the avails on the judgment recovered against the plaintiff, and the actual deficiency paid, and only claimed judgment for such deficiency; but these averments were not necessary in order to maintain the plaintiff’s action.. It was enough to aver the payment and the agreement to indemnify, or the promise to pay; and upon the proof of this, the plaintiff was entitled to recover without showing a sale of the property levied upon. It was quite sufficient that he paid the amount of the judgment, if the agreement to indemnify was proven; and although the plaintiff only recovered for the amount paid after deducting a sum conceded to have been received from tlie sale of the cigars, yet more properly the burden of proving the amount realized upon the sale devolved upon the defendants, if they chose to question the amount of the deficiency. The sale of the property was a matter independent of the indemnity for making the levy, and did not come within the scope of the original instructions to sell from the defendants. In making the sale the plaintiff acted as the agent of the defendants after the judgment was obtained, and after the liability of the defendants had been incurred; and therefore it was for the defendants to establish what were the avails of it, if they disputed the amount which the plaintiff conceded had been realized.

The evidence offered to show the negligence of the plaintiff and the attorney, in the conduct of the suit which Dunn brought against the plaintiff, was properly rejected by the court upon the trial. The question made, as to the attorney’s negligence, in connection with the plaintiff, cannot properly be raised in this action. There is no such relationship existing between the plaintiff and the attorney, or in the duties which either of them was required or assumed to discharge, which renders the one liable in this action for the acts or misconduct of the other. Their positions were separate and distinct, and there was no joint obligation or liability. If the attorney was negligent in conducting the suit, he is individually and alone responsible for his negligence. The plaintiff occupies entirely a different position from that of the attorney in the case. What the latter did was for the defendants, whose business it was to conduct the defence either personally or by attorney after notice had been given them. They were the parties actually interested in the defence. Although the suit was nominally against the plaintiff, he was under no obligation or duty to the defendants to defend the action after they had been notified. All that he did was of a gratuitous character, and imposed no duty upon him which renders him liable for negligence. The judgment recovered was virtually against the defendants, and they cannot impeach it collaterally. The case at bar is not like one where notice has not been given, and where the party has assumed to act, and to defend, without notification to those interested. (Bridgeport F. & M. Ins. Co. v. Tritson, 7 Bosw., 427.) The defence was the defence of the defendants, who were the indemnitors, and they are concluded by the result, in the absence of fraud or collusion between the prosecuting party and him whom the defendants were bound to defend. (Douglass v. Howland, 24 Wend., 35.) There is no legal principle which sanctions the interposition of a defence in this action, on the ground of negligence, as claimed by the defendants.

It is insisted that the court erred in refusing to charge the jury as requested; that if what was claimed by the plaintiff, as a ratification in the letter of June 18, 1868, was made by Christy without full knowledge of all the facts, it was not in law a ratification. The letter referred to, directed the attorney to sell the property, and promised to pay any deficiency there might be upon the judgment. To make an unauthorized act. of an agent binding upon the principal, upon the ground of a subsequent ratification, such ratification must have been made by the principal with a full knowledge of all the facts affecting his rights. (Seymour v. Wyckoff, 10 N. Y., 213, 224; Brass v. Worth, 40 Barb., 648, 654.) The proposition contained in the request was a sound one, if the plaintiff relied solely on this letter as evidence of the ratification, or if it wras not covered by the charge already made. The plaintiff claims that other letters, received after the levy was made, contained and were evidence of the ratification; and as this request assumed that the letter named was the only one which contained evidence of the ratification, the request was propei'Iy refused.

As I understand, there is evidence in the case which tends to show that other letters were received by the plaintiff which might be considered as an approval of what had been done, and as showing a ratification by the defendants. It is, perhaps, a rational and fair presumption, that all of these were relied upon, by the plaintiff, as evidence of a ratification; and if such is the fact, then the request was too narrow and restricted in its character, provided the scope and tenor of the cl large properly covered the whole testimony relating to the subject. It becomes important, then, to inquire whether the charge was sufficiently comprehensive in this respect. The judge, after charging that if Tomlinson was directed by the defendants, by virtue of certain letters, to proceed and levy on the property and remove it, and assumed the defence, that then they would be liable; or if they authorized Tomlin-son to indemnity the sheriff in the taking of this property, as he did, that then they would be liable, proceeded to say: “ Or if after the property had been taken, after the action had been tried, and decided against the sheriff, they ratified what was done, knowing of the power which Mr. Tomlinson had assumed, to defend the action in their name, then they would be liable.” I think that this was not enough, and does not embrace the proposition presented. The judge speaks of a ratification without stating what is meant by it; and of knowledge of powers,” without in any way saying that the ratification must be made with full knowledge of the facts affecting the transaction. He left out a most material and important part, and omitted to state the principle upon which a ratification of prior acts is founded. This clearly did not cover the request made; and as the court refused to charge, except as was contained in the charge made, which did not embrace anything in regard to a ratification contained in the letters, I think there was error. There was, in fact, no portion of the charge which covered the question as to what was necessary to constitute a ratification; and although the plaintiff claimed a ratification from other letters besides the one especially named, he at the same time insisted that this, as well as the others, was a ratification, and in the absence of any directions to the jury as to any of them, the request was right and should have been granted. The defendants had a tight to an affirmative charge upon the proposition made.

The other requests to charge I am inclined to think were properly refused; but, inasmuch as a new trial must be granted for the error already stated, it is not necessary to discuss them.

Rew trial granted, with costs to abide the event.  