
    [Philadelphia,
    January 9, 1826.]
    BREDIN against DUBARRY.
    IN ERROR.
    Plaintiff sold to defendant certain goods; some time after which, the clerk of' the plaintiff', who, it was admitted, had authority to give receipts for him, gave to defendant a receipt as follows: "Received, .Jhtgnee 20th, 1816, of .1 B., seVenty_ three dollars and eighty-two cents, which with goods, &c. returned, will be in full,~ and interest account to be adjusted between Mr. .D. and the said f. B." Relc4i that in the absence of evidence to the contrary, the agreement was, that the goods should be returned, and the original contract of sale, pi'o tanto, rescinded.)
    A principal who neglects promptly to disavow an act of his ~gent, who has transcended his authority, makes the act his own.
    ERROR to the District Court for the city and county of Philadelphia.
    
    
      James Bredin, the plaintiff in error, was defendant below, and John Dubarry was plaintiff below.
    The action was for goods sold and delivered; the pleas were, non ass.umpsit and payment with leave, &e. On the trial, the plaintiff proved that he sold to the defendant, Bredin, certain goods and merchandize on the 20th of March, 1815, amounting to four hundred and ten dollars, and on the 19th day of June, 1815, goods to the amount of twelye hundred and eighty-six dollars and sixty-five cents, at a credit of six months, and received on account the following sums; viz. on the 16th of June, 1815, three hundred dollars; on the 21st of June, 1815, one hundred dollars; on the 25th of February, 1816, one hundred and twenty dollars; on the 24th of April, 1816,' eight hundred dollars; and on the 20th of August, 1816, seventy-three dollars and eighty-two cents. The proceeds of certain goods said to have belonged to the defendant, sold by Lisle, Weir, and Co. at public auction, on the 30th of January, 1819, for the account of the defendant, by order of the plaintiff, amounting to seventy dollars and fifteen cents, were also credited by the plaintiff.
    The defendant gave in evidence the following receipt, dated the 20th of August, 1816, from the plaintiff to the defendant, signed by John Breban for the plaintiff, who, it was-admitted, was a clerk of the plaintiff, and had authority to give receipts for him: “Received, Carlisle, August, 20th, 1816, of James Bredin, seventy-three dollars and eighty-two cents, which with goods, &c. returned, will be in full,
      
       and interest account to be adjusted mutually between Mr. Dubarry and the said Janies Bredin.”
    The plaintiff then gave in evidence copies of three letters from him directed to the defendant, dated at Philadelphia, viz. November 22, 1816, February 17, 1817, and December 20,1818.
    The defendant contended, first, that the receipt was conclusive in favour of the defendant, and that the seventy-three dollars and eighty-two cents, and goods returned, were in full of the plaintiff’s demand,’excepting the interest account, which was to have been adjusted between the parties. Secondly, that the plaintiff having treated the goods returned as the property of the defendant, he had no right to sell them at auction. Thirdly, that if the plaintiff had a right to sell the goods at auction, as the property of the defendant, he was bound to give the defendant notice of the time and place of sale.
    The court charged the jury, that the receipt was not in full of the plaintiff’s demand; that it contemplated that both the goods and interest account were to be afterwards adjusted by the parties; and that it did not appear that Breban had authority from the plaintiff to take back the goods at first cost or at any other fixed rate, and the defendant was bound to show he had such authority before he could rightfully charge the plaintiff with those goods at first cost, or such fixed rate. Secondly, that the plaintiff had a right to sell the goods at auction, under the circumstances of the case. Thirdly, that the plaintiff was not bound, nor was it material as the case was circumstanced, taking into view the small value of the articles and the remoteness of the defendant’s residence, to give the defendant notice of the time and place of sale of the goods; that the rule requiring notice to be given, if there was such a rule in such cashs, must admit of reasonable limitations, and the jury, in considering this subject, would take into view the letters which had been given in evidence. To this charge the defendant excepted.
    The following were the letters referred to:—
    
      “Philadelphia, Nov. 22, 1S16.
    “Mr. James Bredin, (Carlisle,)
    
    “ Sir — Herewith you have a statement of your account with me, the balance of which, amounting to three hundred and two dollars and eighty-three cents, I must request you will forward to me as early as possible in bank paper at par with this city. The goods which you sent to me, remain subject to your order. If you wish that I should dispose of them for your account, according to the present market price, I will endeavour to do for the best of your interest; otherwise you may give directions to some of your friends here to take charge of them. Awaiting your answer, I remain, Yours, &c.
    
      
    
    
      “ Philadelphia, Feb. 17, 1817.
    “Mr. James Bredin, (Carlisle,)
    “ Sir — I wrote to you on the 22d of November last, requesting you to forward to me the balance of your account, as therein stated, also informing you that the goods you sent to me were at your disposal. As you have thought proper to let my letter remain unanswered, you will now please to take notice, that by the return of mail I shall expect you to remit the balance which you owe me, as stated in the above-mentioned letter of the 22d of November last. Otherwise I shall send your goods to public auction, and credit your account for whatever they may bring.
    Yours, &c.
    
      “ Philadelphia, Dec. 20, 1818.
    “ Mr. James Bredin, (Carlisle,)'
    
    “On the 17th of February, 1817, I had the pleasure to write to you concerning the amount you owe me, and at the same time informed you, that if you did not pay I would sell, the goods you sent me, and credit you with the net proceeds of the sale. Since that time I have not heard from you, and must again advise you, how much soever it may be against my inclination, that if your account by the return of mail is not settled, I will send the goods to public auction to sell for whatever price they will bring, and pursue you to the utmost rigour of the law for the balance, which may remain due to me after the sale of these goods. I must also repeat, that it is not, nor ever has been, my practice to take goods back when once out of the store, and much less goods that never were in my store.
    “ The box is in the same condition as when you sent it to me, and remains subject to your order so soon as you have paid me, (that is, paid by return of mail; if not, they will be sold at publie auction.) This, you may rest assured, is my last warning, and I have only put it off thus long, to show you that law is always my last resource.”
    
      Mahany, for the plaintiff in error.
    If the plaintiff did not mean to abide by the act of his agent in taking back the goods, he should have declared his intention immediately; whereas he waited for three months, and thereby affirmed the act of his agent. The principal must express his dissatisfaction with the acts of his agent in a reasonable time, or they will be affirmed. 12 Johns. 300. 1 Johns. Ch. 110. 1 Fez. 509. Liv. on Jig. 48. But even if the returned goods were to be considered as the property of the defendant, the plaintiff- had no right to sell them at public auction, without giving notice to the defendant of the timé and place of sale.
    
      Meredith, contra.
    As to the sale by auction, the defendant acquiesced in it by returning no answer to the plaintiff’s two letters, in which he was informed that there would be such a sale, and that be would be credited with the'proceeds. But suppose the plaintiff had no right to sell the goods, there was no evidence that they were sold under their value. As -to the acquiescence of the plaintiff for three months, that is no great length of time. There was no evidence at .what time he received information of the act of his agent.
    
      
       The words “ -mil be in full,” in the original receipt, were interlined and crossed out.
    
   The opinion of the court was delivered by

Gibson, J.

This case presents for consideration, the construction of the agreement entered into by the clerk of the plaintiff below; and also whether under circumstances which happened subsequently, it became obligatory on the parties. As to the first, the particular form of the receipt, as it now stands, with the words “in full17 scored out, is such as to involve the actual meaning of the parties in obscurity. For what reason the objection to these words was made, it is difficult to conjecture; but as the goods had been purchased from the plaintiff, and were to be returned to him, it is fair, in the absence of evidence to the contrary, to presume that they were to be returned at the original prices: otherwise the transaction would hot have been a return of the goods, but a re-sale. If a re-sale had been intended, the prices would have been fixed in the agreement; or if the object had been á consignment to the plaintiff, to have thé goods sold at auction, and the defendant’s account credited with- the proceeds, it is reasonable to presume that it would have beén so expressed. The agreement then was, that the goods should be returned, and the original contract of sale pro tanto rescinded. ’ . ,

There was no evidence that the authority of the clerk extended to transactions of this sort, but he undoubtedly was. an authorized agent for some purposes; and I- take it to be indisputable, that a principal who neglects promptly to disavow an act of his agent, by- which the latter has transcended his authority, makes the act his own. He is bound to disavow it the first moment the fact comes to his knowledge.. Now, the arrangement in' question was made on the 20th of August, 1S16, and the first intimation which the defendant seems to have had of the plaintiff’s intention to dis-affirm it, is found in the plaintiff’s letter of the 22d of November following, at the expiration of nearly three months. When the goods were received by the plaintiff does not appear; but it is a reasonable presumption of fact, in the absence of proof by the plaintiff to the contrary, that the clerk kept him regularly informed of all his transactions. At the period of the plaintiff’s first letter, therefore, it was too late to object. The plaintiff had made the goods his own; and .what followed could not change a state of things which had-been consummated by the acquiescence of -all parties. A merchant is entitled to an answer to every bona fide proposition made to his correspondent in the usual course of their dealings; but the plaintiff had no right to treat the goods as the property of the defendant, and the latter was therefore not bound to reply to any demand in respect of them. The court then undoubtedly erred in directing the jury, that on the facts in evidence the plaintiff had a right to sell the-goods at auction as the property of the defendant, and recover the difference. The material inquiry for the jury was, whether the act of the clerk had been disavowed as soon as the.plaintiff was apprized of it: if not, it became conclusive. On this ground, the cause must go to another jury.

Judgment reversed, and a venire facias de novo awarded.  