
    Samuel Frank v. Jenkins, Bro. & Chipman.
    1. The nature and extent of a factor’s power to sell or dispose of goods intrusted to him, must be determined by the law of the place where the sale or contract of disposition is made.
    2. An action by the owner of goods, to recover their price and value from his agent, who, without proper authority, has consigned them for sale on commission, and. received advances upon them, is prima facie evidence of a ratification of the consignment.
    3. Goods were consigned by an agent, without proper authority from the owner, for sale on commission by the consignees, who, in good faith, advanced money upon them to the agent, supposing him to be the-owner of the goods. While the goods were in transit, the owner replevied them from the carrier, and also brought an action against the agent, to recover their price and value. In an action of replevin, subsequently brought by the consignees against the owner, to recover possession of the goods, it appearing that the owner’s said action for their price and value was still ponding, and there being no evidence-that it was brought or prosecuted under any mistake of the facts: Held,. that under the circumstances, the owner was estopped from denying the authority of his agent to make the consignment.
    4. A judgment in replevin against the carrier of goods, replevied while in transitu, does not estop the consignee, who was no party to the action, and in nowise participated therein, from setting up his' claim to the-goods.
    Error to the Superior Court of Ciucinnati.
    This was an action of replevin, brought by Jenkins, Bro. & Chipman against Frank, for five bales of cotton, and the only question in the case was the title to the property, each party claiming to be its owner. The facts disclosed by the pleadings, and by a bill of exceptions setting forth all the evidence in the case, are substantially these: Frank was a merchant at Holly Springs, in the State of Mississippi, and1 one Trotter was his commission merchant, at Memphis,. Tennessee. The five bales of cotton in question were the property of Frank, and were shipped by him, as large-quantities of cotton had previously been shipped, to Trotter,, at Memphis, for sale. Jenkins, Bro. & Chipman were commission merchants in Boston, Massachusetts, engaged in the business of receiving shipments of cotton from Memphis to Boston, and making advances of money thereon to the shippers or owners. On receipt of the five bales of cotton,, Trotter shipped them, with seventy other bales, making in all a lot of seventy-five bales, to Jenkins, Bro. & Chipman, receiving from them an advance of seven thousand dollars on the entire lot of seventy-five bales. The shipment was, made by the Great Eastern Dispatch Company, a forwarding line between the West and East, employing steamers and railroads; and the bill of lading was delivered to Brown, the agent of Jenkins, Bro. & Chipman, at Memphis, and by Mm forwarded to them. This bill of lading, so called, is in fact two several bills of lading conjoined, viz: a bill of lading per steamer Anna, O. P. Shinkle, master, from Memphis to Cincinnati, and at the foot of it, on the same sheet, a bill of lading of the Great Eastern Dispatch Company, for carriage of the cotton from Cincinnati to-Boston.
    On the 19th of April, 1867, the cotton having arrived at Cincinnati, Erank there replevied it from Shinkle, the master of the Anna; and subsequently, on the same day he brought an action against Trotter, in the same court in which the replevin suit had been commenced, to recover of Trotter a large sum of money claimed to be due from him to Erank, including in the account sued on, the price of the five bales of cotton in controversy. Eive days afterward, on the 24th of April, 1867, Erank also brought an action in Boston, against Trotter, for money claiméd to be-due and owed to him by Trotter, and there caused to be served upon Jenkins, Bro. & Chipman a process of garnishment, claiming that they were largely indebted to-Trotter. Whether the money sued for in the ’ast-named action included, as'the Cincinnati case did, the price of the five bales of cotton in controversy, does not appear, otherwise than by the fact that the sum claimed exceeded the-entire amount due from Trotter, including the price of the five bales.
    Two days after the service of the process of garnishment upon them, on the 26th of April, 1867, Jenkins Bro. &• Chipman brought their action of replevin in Cincinnati, for the five bales of cotton, which is the action here in review.
    When this action was tried at the June term, 1867, the Cincinnati suit against Trotter for the price of the cotton-was still pending, and the replevin suit against Shinkle had been determined by a judgment in favor of Erank. What finally became of the two actions against Trotter does not appear, nor is these any evidence to show that they were commenced under any mistake or ignorance of the facts, or that Prank ever elected to abandon them, or either of them.
    The State of Tennessee has never passed any statute like the statutes of Massachusetts, Ohio, aud most of the other states, recognizing the principles of Lord Tenterden’s acts (4 and 6 Geo. 4, ch. 88, 94), by which a factor, with power to sell, is to be regarded as owner, so far as to give validity to such a disposition of the cotton in question as was made by Trotter. See 1 S. & O. 421, sec. 62.
    Upon these facts the court found for Jenkins, Bro. & Chipmau, and gave them a judgment. Prank took a. bill of exceptions, setting forth the evidence and the overruling of his motion for a new trial, predicated upon the ground that the finding of the court was not supported by the evidence, and he now assigns for error the overrating ■of that motion.
    
      Hoadly § Johnson, for plaintiff in error:
    Prank having consigned the five bales to Trotter for sale-only, and not being indebted to Trotter for advances, ’Trotter had no common-law right to pledge. And Tennessee has never recognized the principles of Lord Tenterden’s acts (4 Geo. 4, ch. 83, and 6 Geo. 4, ch. 94), under which a factor, with power to sell, may in some cases pledge. The pledge having been made in Tennessee, is governed by the laws of that state. 8 Parsons’ Contracts, 261; Story’s Agency, sec. 113.
    Prank having disaffirmed and repudiated the pledge by replevying the cotton, did not affirm it by including the value of the same cotton in his suit against Trotter. The one suit said “yes,” and the other “no,” at the same time; the one act neutralized the other.
    No grounds for estoppel in pais are shown. Prank’s actions for money induced no change of position by Trotter, or by Jeukins, Bro. & Ohioman. '■
    
      Hence, neither ratification nor estoppel in pais can be found by the court. See 1 Amer. Lead. Cases (4 ed.), 593; Marshall, C. J., in Clark’s Ex’rs v. Van Riemsdyk, 9 Crunch, 159; Lawrence v. Taylor, 5 Hill, 114; St. John v. Redmond, 9 Porter (Ala.), 428; Story’s Agency, secs. 90, 253, 255; Peters et al. v. Ballistier et al., 3 Pick. 505; Delafield v. Illinois, 26 Wend. 227, per Verplanck, Senator.
    Notice of dissent to the agent was unnecessary. 1 Par.sons’ Contracts, 51; Lewin v. Dille, 17 Mo. 64.
    The judgment in the replevin suit of Frank v. Shinkle estops Jenkins, Bro. & Chipman; it transferred the cotton to Prank, and all rights in the properly that could have been asserted in that action, from the cotton to the replevin bond. Jennings v. Johnson, 17 Ohio, 154; Williams v. West, 2 Ohio St. 82, 89; Smith v. McGregor, 10 Ib. 461; Crittenden v. Lingle, 14 Ib. 182.
    The rights of Jenkins, Bro. & Chipman could have been so asserted. Angell on Carriers, sec. 348, et seq.; Ingersoll v. Van Bokkelin, 7 Cow. 670; Green v. Clarke et al., 12 N. Y. (2 Kern.) 343; White v. Webb, 15 Conn. 303; Lyle v. Barker, 5 Binney, 457.
    They were bound to assert them there, and the judgment estops and concludes them. 1 Greenl. Ev., secs. 523, 533; Chambers v. Lapsley, 4 Rawle, 24; Green v. Clarke et al., 12 N. Y. (2 Kern.) 343; Kent v. Hudson River R. R. Co., 22 Barb. 278; Emery v. Fowler, 39 Maine, 326; Calkins v. Allerton, 3 Barb. 174; Campbell v. Phelps, 1 Pick. 62; King v. Chase, 15 N. H. 19; Priestly v. Fernie, 3 Hurlstone & Coltman, 977; Parkhurst v. Sumner, 23 Vt. 541; Miller et al. v. Rhoades et al., 20 Ohio St. 494; Lovejoy v. Murray, 3 Wall. 1; Hancock v. Welsh & Cooper, 1 Starkie, 347; Tate v. Hunter, 3 Strobh. Eq. 136; Castle et al., Ex’rs, v. Noyes, 14 N. Y. (4 Kern.) 329; Cecil v. Cecil et al., 19 M.I. 72; McKinzie v. B. & O. R. R. Co., 28 Md. 161; Birckhead v. Brown, 5 Sandf. (Sup. Ct.) 147; Barker et al. v. Cleveland, 19 Mich. 230; Foster v. Wells, 4 Texas, 101; Chicago v. Robbins, 2 Black. 418; Robbins v. Chicago, 4 Wall. 657; Warfield v. Davis, 14 B. Mon. 40; Bailey v. Foster, 9 Pick. 139; Haller et al. v. Jones’ Lessee, 4 Binn. 61; Rogers v. Haines, 3 Greenl. 362; Coates v. Roberts, 4 Rawle, 100; Peterson et al. v. Lathrop, 34 Penn. St. 223; Owens v. Rawleigh, 6 Bush, 656; Hayden, etc. v. Anderson et al., 17 Iowa, 158; Denney v. Reynolds et al., 24 Ind. 248; Ewald v. Waterhont, 37 Mo. 602; Russell v. Gray et at., 11 Barb. 541.
    The case of Schaefer et al. v. Marienthal, Lehman & Co., 17 Ohio St. 183, applies where questions of possession only,, irrespective of title, are decided; but in this case title and possession were both involved.
    Notice of Prank’s possession was notice of the right by which he claimed possession. Williams v. Sprigg, 6 Ohio St. 594; Kelley v. Stanberry, 13 Ohio, 408.
    
      King, Thompson § Long worth, for defendants in error:
    We admit that Trotter’s authority was, in the first instance, subject to the law of Tennessee. But the law of Ohio (S. & C. 421, sec. 62), as well as of Massachusetts and’ other commercial states and countries, does not permit an-owner, who has invested a factor with the indicia of ownership, to wrest the merchandise from those who in good faith, have dealt with the factor accordingly. Therefore, if Prank’ has waived the right which by chance the Tennessee law afforded him, and which the Ohio forum would sustain only on technical rules of comity, he should suffer if his agent has abused the confidence thus reposed.
    The suit against Trotter for the price of this cotton was-conclusive as a ratification of the consignment to Jenkins,. Bro. & Ohipman; Story’s Agency, sec. 259; Woodward v. Suydam, 11 Ohio, 360.
    The position of Jenkins, Bro. & Ohipman was materially changed by Frank’s course in suing Trotter for the price.. This suit was not begun until after he had instituted the attachment suits against Trotter, in Cincinnati and Boston.
    
      Dean v. Yates, 22 Ohio St. 389, does not militate against this position. There the attachment and sale of the goods were the sheriff’s acts, or at least did not necessarily implicate the plaintiff; but Frank’s action for the price could not be maintained without his consent to waive the tort.
    To the claim that the proceedings and judgment in the replevin suit determine this case, we answer, there was no privity between Jenkins, Bro. & Chipman, and the master of the steamboat Anna. Hyde v. Trent Navigation Co., 5 Term, 389; Greenl. Ev., secs. 535, 536.
    
      Hoadly § Johnson, in reply:
    The transaction between Trotter and Jenkins, Bro. & Chipman was at Memphis, and must be governed by the laws of Tennessee.
    The attachment suit at Boston did not necessarily include the five bales. Frank sued Trotter for cotton sold. Can that be held to have ratified the pledge of cotton ?
    The bill of lading is a single contract, divided in form only. Shinkle’s possession as master of the Anna continued until after the seizure in the replevin suit, notwithstanding the cotton was in a warehouse: he had not delivered it to Reed. Shinkle was in privity with the defendants in error. They should have defended in that action, and are concluded by the judgment therein rendered,
   Welch, J.

The transaction between Trotter and Jenkins, Bro. & Chipman took place in Tennessee, and must doubtless be governed by the law of that state. Whether under that law the transaction was authorized, so as to become binding upon Frank, it seems to us we need not inquire. Assuming that it was unauthorized, and that Frank might, at his election, either disaffirm or ratify the transaction, we are quite satisfied that his action, for the price of the cotton, against Trotter, ought, under the circumstances, to be held, as between him and Jenkins, Bro. & Chipman, to be a ratification. It is well-settled law that .an action by the owner for the price or purchase money of •goods sold by an unauthorized agent, may be regarded as, .and prima facie is, a ratification of the sale. The transaction in question was not, strictly speaking, a sale of the -cotton, but it was in the nature of a sale, and should he subject to the same rules of law iu regard to acts of ratifi•cation aud disaffirmance by the owner. It was a shipment •of the cotton for sale on commission, with an advance of part of the purchase money. It was more than a pledge. It was a pledge with an irrevocable power to sell and reimburse the money advanced and the freight and commission. No reason can be shown why in such a case, equally as iu ■case of a simple sale, the well-known rule of law in regard to ratifications should not apply. The reason which underlies the rule is in both cases the same, namely, that a third person has an interest in the property, which it is in the power of the owner either to defeat or to ratify at his 'option. Such third person, as it were, is at the mercy of the owner. Justice, therefore, requires that he should make his election at once, and adhere to it when fully aud fairly made. If the owner repudiates the sale, the purchaser ■must seek his remedy against the unauthorized agent. If the sale is ratified by the owner, the purchaser must pretermit his remedies against the agent, and assert his right to the property. The latter is the coarse pursued by Jenkins, Bro. & Chipman in the present case, and we think that under the circumstances they were justified in so doing. They were merchants of Boston, where this exceptional and hard rule of law, which allows the owner to dis-affirm such a disposition of property by his factor, did not exist. Being made aware, as we may well suppose, by the service of the process of garnishment upon them, that Frank claimed to recover from Trotter the seven thousand •dollars advanced by them upon the cotton, they wont immediately to Cincinnati, where a like law as in Massachusetts prevails, and there brought their action for the cotton in question. Whether at the time of bringing their action they had actual knowledge of the pendency of the Cincinnati suit by Erank, against Trotter, for the price of the cotton, or of the replevin suit against Shinkle, does not appear. If we are to presume a knowledge of both these suits by Jenkins, Bro. & Chipman, how did they stand, and what were their rights ? By his replevin suit against Shinkle, Erank apparently disaffirmed the transaction, and by his-action against Trotter he apparently ratified it. Apparently, then, he claimed both the cotton and the seven thousand dollars advanced upon it. Had Jenkins, Bro. &• Chipman brought their action against Trotter for the money advanced on the cotton, and for the freight and commission,, it would have been in the power of Erank to defeat the action, by affirming the sale, equally as it would have been in his power to defeat any action by which they might assert their right to the cotton. If either of the actions by Erank was brought under a mistake, it was his duty, under the circumstances, promptly to dismiss or abandon it, upon discovery of the mistake. No such mistake or abandon ment is shown. On the contrary, Erank persistently, and up to the date of the trial, maintained at least one of bis-actions for the price of the goods, and thus seemed to claim both the cotton and its value. Eailing thus to make-an election, it seems to me that in equity the other party might well elect for him. Had he, when the replevin action was commenced against him, promptly informed Jenkins, Bro. & Chipman that he commenced the action, or actions, for the price of the cotton by mistake, or that he would dismiss or abandon them, no doubt they would have been by law remitted to their action against Trotter,, provided they had not been misled to their prejudice by the actions of Erank. Under the circumstances, we think that Erank is estopped, as between him and Jenkins, Bro. & Chipman, from denying that he ratified the agency of Trotter in shipping the cotton to them as he did.

But it is claimed that Jenkins, Bro. & Chipman are estopped from claiming title to the cotton, by the judgment in favor of Erank in his action of replevin against. ■Shinkle. We apprehend there are two good answers to this claim. The first answer is, that the title to the cotton was not- necessarily drawn in question in that action, but merely the right to its possession. The second answer is, that there was not that privity between Shinkle, the master of the steamboat, and Jenkins, Bro. & Chipman, required in cases of estoppel. The simple relation of carrier and •consignee is not of itself and necessarily sufficient for that purpose. There is no authority for any such broad principle of law. Jenkins, Bro. & Chipman were no parties to the suit, and did not in any manner participate in its defense, or receive any notice or request to do so. Indeed, it does not affirmatively appear that they had notice of the pendency of the suit. Without stopping, therefore, to inquire whether counsel are right in alleging that there is a further answer to this claim of estoppel, in the alleged fact that Shinkle was not the agent of Jenkins, Bro. & Chip-man, but was the agent of the Great Eastern Dispatch Company, we are satisfied, for the two reasons already assigned, that the judgment against Shinkle worked no •estoppel against Jenkins, Bro. & Chipman.

We therefore see no error in the judgment below, and it must be affirmed.

Judgment affirmed.  