Shackelford, C. J.,
delivered the opinion of the court.
An attachment was sued out by the plaintiffs in error to the Harrison Circuit Court upon the following account:
“J. R. Conner,
1866. To Taylor & Myers, Dr.
Jan. 29. For 13,848 ft. W. B. @ $30 $415 44
“ 2,928 ft. flooring and scant’g. 81 97
$497 41.”
Declaration, and plea, of general issue — verdict and judgment for defendant in error.
The case is brought into this court, by writ of error for revisal.
The first assignment of error is,that the court refused itostruetions asked by the plaintiffs which were plainly required by the law and the evidence.”
The plaintiffs in error asked the court to give to the jury the following instruction, to wit; “That if they believe "from the evidence, that George McCaughn was the agent of the defendant, and, as such agent, bought the lumber charged' in plaintiff’s account, and freighted it to New Orleans, and that defendant received it, or the proceeds of it, and has not paid the plaintiff for it, then they should find for the plaintiffs, and assess their damages at the amount the said agent agreed to pay for it.”
This instruction was refused by the court; to which ruling the plaintiffs in error excepted, which exception was allowed.
The agency of George McCaughn was denied by the defend[725]*725ant in error. There was no writing showing the agency before the jury.
McCaughn testified that he was the captain or master of the schooner Norma, in which the lumber in controversy was shipped to New Orleans.. That Conner was the owner of the schooner Norma.
A party dealing with another, who represents himself as an agent, does it at his peril. It is well settled that between the principal and third parties, the true criterion by which the character of the agent, as general, or special, will be determined, is that by which the agency is evidenced, and made known to them — whether it be by a written instrument, or the conduct of the principal, or the agent’s usual business, or employment- — ■ though if evidenced to them only, by that conduct, or business, or employment.
There is another way of establishing the relation of agency besides those above considered, viz.: By "adopting and confirming ex post facto the acts done in one’s name by another acting without authority, whether they are done under color of an established agency, or by a stranger. And here the general rule is, that when one without authority acts in the name of another, that other may, at his option, either adopt or repudiate such act. 13 East. 274; 2 M. & S. 485; 1 Bingham N. C. R. 198.
There was evidence before the jury, that George McCaughn was authorized verbally by the defendant Conner to purchase the cargo of lumber, the consideration of the account sued on; that the cargo of lumber was delivered by McCaughn to the defendant in error, in New Orleans, where he resided, and that the defendant in error there received the lumber, and that he received the money from the sale of the same. That McCaughn stated to plaintiff in error that he was authorized by Conner to purchase the lumber from plaintiffs in error when he purchased the same; that Conner received the benefit of the freight, by the purchase, &c.
It is well settled that a party charged as principal shall adopt or repudiate the act of the pretended agent altogether / he cannot separate it, as by ratifying what is beneficial to himself only, [726]*726and repudiating tlie remainder. 2 Strang, 859 ; 7 B. & C. 310; Smith M. L. 113, ; 3 B. & Adol. 580. Such recognition or adoption may be either express or implied. Express, as by words, spoken or in writing : implied, as from the conduct of .the principal or party charged as such — for instance, as by receiving the benefit of the act, and holding it after knowledge of the facts. 8 How. (U. S.) 184; id. 162; 2 M. & M. 217.
There was evidence before the jury in the case, showing that a draft had been drawn by the witness McCaughn, as the agent of the defendant in error, upon the defendant Conner at sight, for the amount of the bill of lumber aforesaid, and that the bill was presented to Conner before the sale of the lumber in New Orleans; that he refused to accept the same, or to pay the same; he knew where the bill of exchange was after his refusal to pay the same; that the bill remained in the possession of J. R. Elliott, the agent of plaintiffs in error, two months after the same was drawn, and that the agent Elliott resided in New Orleans where defendant resided; and in the mean time defendant in error received by his own admission the money for the sale of the lumber in question.
If these facts as stated were true, this was sufficient evidence, in the absence of any other, to show that the act of the agent was by the principal himself regarded as his own, and that the act being thus regarded as the act of the principal, the principal became chargeable with its legal consequences — not because he has received the benefit of the act, but because in law it is his act, for the rule is : “ If it be shown by any other evidence that the act is his act, he will be equally responsible whether the act result in a benefit or loss to him.”
“ It has been indeed held that a ratification is equivalent to an original or previous express authority.” 1 Watts & S. 106.
It was also in proof (by two witnesses) that McCaughn had purchased two cargoes of lumber from the plaintiffs in error, representing himself as the agent of Conner, to freight his vessel, the Norma, previous to the purchase of the lumber in controversy ; and that the defendant Conner paid for the lumber, recognizing the purchases as the act of his agent, McCaughn.
The defendant in error did not repudiate the act of McCaughn [727]*727by notifying tbe plaintiffs in error tbat McCaughn was not bis agent, after be was in possession of all tbe facts, but received tbe money for tbe sale of tbe cargo of lumber, knowing that it had, not been purchased by McCaughn for himself, but as agent for defendant in error.
Taylor, one of tbe plaintiffs in error,- proved that Conner admitted to him tbat be bad received tbe lumber on its arrival in New Orleans. McCaughn proved be delivered it; tbis was 'denied by defendant in error. If tbis was true, as stated by these witnesses for tbe plaintiffs in error, tbe defendant in error, by tbis act, assumed an authority which be bad not, unless be did it as principal, thereby recognizing tbe agency of McCaughn.
Tbe testimony was conflicting as to many material facts; and it was for tbe jury to weigh and pass upon it, under a proper instruction from tbe court, and not for tbe court to dispose of it in tbe manner it was done.
It is manifest tbat tbe instruction under consideration contains no proposition in violation of these well-established views of the law of agency. It was relevant, and material to the facts in proof before the jury, and should have been given. Tbe refusal of tbe court to give it was error.
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Shackelford, C. J.,
delivered the opinion of the court.
An attachment was sued out by the plaintiffs in error to the Harrison Circuit Court upon the following account:
“J. R. Conner,
1866. To Taylor & Myers, Dr.
Jan. 29. For 13,848 ft. W. B. @ $30 $415 44
“ 2,928 ft. flooring and scant’g. 81 97
$497 41.”
Declaration, and plea, of general issue — verdict and judgment for defendant in error.
The case is brought into this court, by writ of error for revisal.
The first assignment of error is,that the court refused itostruetions asked by the plaintiffs which were plainly required by the law and the evidence.”
The plaintiffs in error asked the court to give to the jury the following instruction, to wit; “That if they believe "from the evidence, that George McCaughn was the agent of the defendant, and, as such agent, bought the lumber charged' in plaintiff’s account, and freighted it to New Orleans, and that defendant received it, or the proceeds of it, and has not paid the plaintiff for it, then they should find for the plaintiffs, and assess their damages at the amount the said agent agreed to pay for it.”
This instruction was refused by the court; to which ruling the plaintiffs in error excepted, which exception was allowed.
The agency of George McCaughn was denied by the defend[725]*725ant in error. There was no writing showing the agency before the jury.
McCaughn testified that he was the captain or master of the schooner Norma, in which the lumber in controversy was shipped to New Orleans.. That Conner was the owner of the schooner Norma.
A party dealing with another, who represents himself as an agent, does it at his peril. It is well settled that between the principal and third parties, the true criterion by which the character of the agent, as general, or special, will be determined, is that by which the agency is evidenced, and made known to them — whether it be by a written instrument, or the conduct of the principal, or the agent’s usual business, or employment- — ■ though if evidenced to them only, by that conduct, or business, or employment.
There is another way of establishing the relation of agency besides those above considered, viz.: By "adopting and confirming ex post facto the acts done in one’s name by another acting without authority, whether they are done under color of an established agency, or by a stranger. And here the general rule is, that when one without authority acts in the name of another, that other may, at his option, either adopt or repudiate such act. 13 East. 274; 2 M. & S. 485; 1 Bingham N. C. R. 198.
There was evidence before the jury, that George McCaughn was authorized verbally by the defendant Conner to purchase the cargo of lumber, the consideration of the account sued on; that the cargo of lumber was delivered by McCaughn to the defendant in error, in New Orleans, where he resided, and that the defendant in error there received the lumber, and that he received the money from the sale of the same. That McCaughn stated to plaintiff in error that he was authorized by Conner to purchase the lumber from plaintiffs in error when he purchased the same; that Conner received the benefit of the freight, by the purchase, &c.
It is well settled that a party charged as principal shall adopt or repudiate the act of the pretended agent altogether / he cannot separate it, as by ratifying what is beneficial to himself only, [726]*726and repudiating tlie remainder. 2 Strang, 859 ; 7 B. & C. 310; Smith M. L. 113, ; 3 B. & Adol. 580. Such recognition or adoption may be either express or implied. Express, as by words, spoken or in writing : implied, as from the conduct of .the principal or party charged as such — for instance, as by receiving the benefit of the act, and holding it after knowledge of the facts. 8 How. (U. S.) 184; id. 162; 2 M. & M. 217.
There was evidence before the jury in the case, showing that a draft had been drawn by the witness McCaughn, as the agent of the defendant in error, upon the defendant Conner at sight, for the amount of the bill of lumber aforesaid, and that the bill was presented to Conner before the sale of the lumber in New Orleans; that he refused to accept the same, or to pay the same; he knew where the bill of exchange was after his refusal to pay the same; that the bill remained in the possession of J. R. Elliott, the agent of plaintiffs in error, two months after the same was drawn, and that the agent Elliott resided in New Orleans where defendant resided; and in the mean time defendant in error received by his own admission the money for the sale of the lumber in question.
If these facts as stated were true, this was sufficient evidence, in the absence of any other, to show that the act of the agent was by the principal himself regarded as his own, and that the act being thus regarded as the act of the principal, the principal became chargeable with its legal consequences — not because he has received the benefit of the act, but because in law it is his act, for the rule is : “ If it be shown by any other evidence that the act is his act, he will be equally responsible whether the act result in a benefit or loss to him.”
“ It has been indeed held that a ratification is equivalent to an original or previous express authority.” 1 Watts & S. 106.
It was also in proof (by two witnesses) that McCaughn had purchased two cargoes of lumber from the plaintiffs in error, representing himself as the agent of Conner, to freight his vessel, the Norma, previous to the purchase of the lumber in controversy ; and that the defendant Conner paid for the lumber, recognizing the purchases as the act of his agent, McCaughn.
The defendant in error did not repudiate the act of McCaughn [727]*727by notifying tbe plaintiffs in error tbat McCaughn was not bis agent, after be was in possession of all tbe facts, but received tbe money for tbe sale of tbe cargo of lumber, knowing that it had, not been purchased by McCaughn for himself, but as agent for defendant in error.
Taylor, one of tbe plaintiffs in error,- proved that Conner admitted to him tbat be bad received tbe lumber on its arrival in New Orleans. McCaughn proved be delivered it; tbis was 'denied by defendant in error. If tbis was true, as stated by these witnesses for tbe plaintiffs in error, tbe defendant in error, by tbis act, assumed an authority which be bad not, unless be did it as principal, thereby recognizing tbe agency of McCaughn.
Tbe testimony was conflicting as to many material facts; and it was for tbe jury to weigh and pass upon it, under a proper instruction from tbe court, and not for tbe court to dispose of it in tbe manner it was done.
It is manifest tbat tbe instruction under consideration contains no proposition in violation of these well-established views of the law of agency. It was relevant, and material to the facts in proof before the jury, and should have been given. Tbe refusal of tbe court to give it was error.
Tbe second assignment of error is, tbat “ tbe court below gave instructions for tbe defendant which were plainly contrary to law, and which misled tbe jury to a wrong verdict.”
Tbe instructions objected to are, these words : “1. If tbe jury believe from tbe evidence that tbe plaintiffs took McCaughn’s sight draft upon the defendant for tbe amount sued on, then they must And for tbe defendant.” • “ 2. Tbat if they believe from tbe evidence tbat the plaintiffs took George McCaugbn’s draft (tbe captain of tbe schooner Norma) upon Conner, for the amount .sued on, then tbe account was merged, or discharged, and tbe plaintiffs must look to the draft, tbe higher security, and failing to do so they must find for tbe defendant.”
Tbis assignment is well taken. Tbe 1st instruction.was intended to create upon tbe minds of the jury tbe impression that tbe plaintiffs in error received tbe draft as a joa/yment for the lumber, and did not look to Conner for tbe money.
[728]*728There was no evidence to warrant any such inference : if it was not so intended, we are unable to conjecture what rule of law the court was influenced by in the giving of the same. The evidence before the jury relative to the draft was, that McCaughn as agent drew a draft, as such agent, for the amount of the bill of lumber, upon his principal, Conner.
There was no evidence before the jury that the plaintiffs in error received it as a payment or satisfaction of the debt, or that plaintiffs in error ever relied upon McCaughn for the payment of the draft or account. The evidence was that the plaintiffs in error looked to the defendant in error for the payment of the draft and account, and to no other person.
The 2d instruction given for the defendant in error is in conflict with well settled law.,
It assumes that the account sued on is merged or discharged by the sight draft of the agent, drawn, as agent, on his principal, Conner. The rule is well settled, that “ if the vendor on a sale made to an agent, take the promissory note of the agent, for the amount of the purchase, on failure of the payment by the agent, the principal will be equally liable upon the original consideration, just as if the note had not been given by the purchaser himself. For a mere promise to pay is no payment. 5 Johns. Rep. 68 ; 7 ib. 311; 1 Paige, 13; 11 Mass. 27. Therefore, the written promise of the debtor to pay does not confine the creditor to his remedy under the written instrument, neither is the promissory note of a third person to be deemed a payment, unless accepted as such at the time of the sale. 15 Mass. 75-79. A fortiori, the note of the agent can have no higher efficacy to discharge the principal, than if made by himself.” Dunlap’s Paley on Agency, 251.
The giving of the draft by McCaughn, which in this ease was a mere order to pay the plaintiffs in error the amount of his purchase, for his principal, drawn on the principal, does not discharge the defendant in error, Conner.
Why the learned judge should consider the mere draft, or order upon Conner, a higher security, and the account “ merged or discharged” thereby so far as Conner is concerned, is not perceived.
[729]*729The instructions given for the defendant in error should have been refused by the court, and the second instruction asked by the plaintiffs in error, and refused by the judge, phould have been given.
The 2d instruction asked, and refused, embodies the law applicable to the facts of this branch of the case; which is in these words: “That if the jury believe from the evidence that McOaughn was, and acted as the agent of defendant, and as such agent did draw a draft on defendant, and that said draft was not accepted or paid by defendant then the giving such draft did not merge the account; but the plaintiffs can resort to their action upon the original consideration.”
For these reasons we 'think the verdict should be set aside, judgment reversed, and a venire.de novo awarded.