Osborne v. Horner, 33 N.C. 359, 11 Ired. 359 (1850)

Dec. 1850 · Supreme Court of North Carolina

33 N.C. 359, 11 Ired. 359

JONATHAN OSBORNE vs. WILLIAM HORNER.

One, who has only a verbal authority to sell a slave can transfer the-title by a sale and actual delivery.

Appeal from the Superior Court of Law of Granvill® County, at the Fall Term 185.0., his Honor Judge Maní,! presiding.

This case was an action of trover, in which damages, for the conversion of a slave named Esther, were de“ manded. It appeared that the slave had belonged to the defendant, and was loaned by him to his daughter, upon her intermarriage with one Joseph M. Hicks. The said Hicks afterwards sold the slave to the plaintiff, having an oral authority only from Horner to do so, and at the same time gave him a bill of sale, receiving the consideration money, and delivering the slave pursuant to the bill of sale. The conversion was admitted. Upon this state of the facts, the Court was of opinion, that the plaintiff had not acquired a title to the slave, and could not therefore recover, and so instructed the jury. The plaintiff’s coun» sel asked his JHonor to charge the j,ury, that if they believed Hicks had oral authority from the defendant to sell and deliver the slave, and that the authority was unre-voked at the time of the sale, and the sale and delivery were made by virtue of the authority, the fact that the said Hicks, the witness, executed a bill'of sale in his own name, did not affect the plaintiff’s title;, which the Court declined giving.

There was a verdict for the defendant. Rule for a new trial discharged ; and an appeal.

Gilliam and Lanier, for the plaintiff.

McRae, for the defendant.

Pearson, J.

An agent, having a verbal authority to sell a slave, does sell and deliver the slave and receive the purchase money, and at the same time, executes a bill of sale, under seal with warranty, in his own name, without any reference to the principal; does the title of the slave pass to the purchaser 1 The Judge in the Court below held, that it did not. In this, we think, there is error.

His opinion, we presume from the argument made in this Court, was influenced by the suggestion that, as there was a bill of sale executed by tile agent at the same time, the title could not pass by the sale and delivery, and as the bill of sale was not binding upon the principal, the title did not pass in either way.

The proper view of the question, as it seems to us, is this: The principal says the bill of sale is inoperative, so far as he is concerned, because the agent was not author-ised to bind him by a deed. That is true, and therefore, it has no effect whatever, except so far as it may subject the agent upon his covenant of warranty. But it has no effect in reference to these parties. So the transaction is left as a mere sale and delivery of a slave, by one having a verbal authority to sell. Such a salfe is valid.

Pbr Curiam. Judgment reversed and a venire de novo issued.