
    Thomas M. Rankin v. Nolan Stewart et al.
    
    Where the defendant purchased a plantation at sheriff’s sale, and suffered the original owner to remain on it and cultivate it for his own benefit, from motives of friendship, he will not bo liable for a lot of mules purchased by the tenant to cultivate the plantation, the latter having made the purchase not as agent but on his own credit.
    APPEAL from the District Court of West Baton Rouge, Burke, J.
    
      C. Ratliff, for plaintiff,
    contended: It is, in the opinion of counsel, a well settled principle of law, that agency can be created by implication as well as by express authority. See Story on Agency, p. 51, marginal p. 47 and 56. Cain was permitted to act as the general and unqualified agent of Stewart for that plantation, to buy and to sell, whereby Stewart became bound by the acts of his agent. See Story on Agency, marginal p. 126,133 and 165.
    The appellants’ counsel has not as yet favored us with his brief, therefore we are precluded from answering any points he may make in the case, except orally, yet we cannot believe it necessary. The idea of permitting a man to possess your estate and act as the ostensible owner; to buy and sell for the estate; to manage it as his own, and to give credit and confidence by virtue of his apparent wealth, and to purchase horses, mules, or working cattle for the use and benefit of the plantation, and refuse or neglect to pay for them, and the real owner reap the benefits of the purchase if it turns out to his advantage, and if not, to send the creditor to seek his remedy against the agent, is too preposterous to admit of argument. In this case, Cain has gone to California, Stewart is in possession of the plantation and negroes, and these very mules; for the testimony of Oats proves they were on the plantation and defendant has failed to show they were ever removed or disposed of by Cain after they were placed on this plantation. That equitable maxim of the common law is applicable in this case, which says, when one of two innocent persons must suffer by the misconduct of athird person, that party shall suffer who by his own acts and conduct has enabled such a third person, by giving him credit, to practice a fraud or imposition upon the other party. Story on Agency, 56. But we contend, and we are borne out by the testimony, that Steioart cannot be the sufferer; he has got plaintiff’s mules on his plantation; Cain has gone to California. Then it is nothing but right and just that he should pay for them; if not, there can be but one innocent sufferer in this case, and that is the plaintiff.
    The defendant relied in the lower court mainly upon the decision in the case of Nugent v. Hickey, 2d Ann. 348. We cannot see the analogy between that case and this. In that case, the factor for the plantation made sundry advances in the way of supplies for the plantation, and received the proceeds of the crops and sold them on commission, which proceeds far exceeded the advances made; but the factor permitted the agent of Hickey to apply the proceeds to the payment of his individual debt, and then sought to make Hickey liable for those supplies, which the court very properly said he could not do.
    
      George S. Lacey, for defendant,
    contended: This is an action brought upon a certain draft drawn by JD. P. Cain upon Messrs. Payne and Harrison. The pleadings and facts are almost identical with those in Locke v. the same defendant, and, in argument, we submit the same positions as are urged in the brief filed by us in that suit. We also submit to your honors, that should you come to the conclusion that there has been an agency established, and that this agency authorised the said Cain to buy and sell, and that he could well give a draft binding upon Colonel Stewart, in payment of articles or property purchased, even then judgment cannot, be rendered against respondent upon the draft sued upon, because he was not notified of the protest; nor is there any legal excuse shown why protest should not have been made and due notice given.
    If Colonel Stewart can be considered a party to the draft, he was entitled not only to have the same presented for paymentto the drawers, but protest for nonpayment made, and due notice of such protest given to him. If Cain ever was notified of the protest, such notice cannot be considered as conveyed to Colonel Stewart, nor is there any legal excuse shown why protest was not regularly made and notice given. It is true, that Dempsey P. Cain had no funds in the hands of Payne and Harrison, but there is no evidence proving that Stewart was without funds. If he is the person responsible upon the draft, the draft must be considered as his, and he, not Cain, is the person who should have been shown without funds. If every other circumstance was calculated to attach liability to Colonel Stewart, he is amply protected by the want of protest, &c.
    
      
       This case, by oversight, was omitted in the cases reported for February, 1850.
    
   The judgment of the court (King, J. being absent,) was pronounced by

Rost, J.

The plaintiff claims from the defendant the price of a lot of mules alleged to have been sold to D. P. Cain, his agent, for the use of one of his plantations.

The defendant filed a general denial, and specially denied the agency of Cain; he further averred that he never had any dealings with the plaintiff, and if the mules were sold to Cain, they were sold exclusively upon his credit, and he was alone liable. There was judgment in favor of the plaintiff,- and the defendant appealed.

It appears that Cain being very much in debt, his plantation and negroes were sold under execution and purchased by the defendant, who, from motives of friendship, suffered him to remain in possession of them; to work them as his own, and to dispose of the crops. When he purchased the mules from the plaintiff he gave a draft in his own name upon Messrs. Payne and Harrison, his factors in New Orleans, which was not accepted. One of the members of that firm states that the proceeds of the crops of Cain for the years 1847 and 1848 were placed to his credit, and that he did not know that Stewart was the owner of the plantation.

We infer from the evidence, and the fact does not appeal- to be denied by the plaintiff’s counsel, that the agreement between the defendant and Cain, under which the latter enjoyed the plantation as owner, was publicly known and susceptible of proof. Cain was not, therefore, the agent of Stewart; his relation to him was that of a tenant; he did not pretend to act as agent in this case, and the credit was given exclusively to him; under the rule laid down in the case of Nugent v. Hickey, 2d Ann. 248, the judgment should have been in favor of the defendant.

It is therefore ordered and decreed, that the judgment in this case be reversed, and that there be judgment in favor of the defendant Nolan Stewart, with costs in both courts.  