#### MILES DAVIS *vs.*AMARIAH BURNETT.

Where a joint owner of property,.authorised to sell; warrants the soundness of the property, which turns out to be defective, and the seller pays for the defect without suit, the other joint owner is liable to contribute to the loss in proportion to his interest.

*72ActioN of assumpsit, tried before Saundebs, J., at the Fall Term, 1856, of Martin Superior Court.

The plaintiff declared on a special contract of indemnity, and on all the common counts.

The plaintiff, the defendant, and one Taylor, owned jointly and equally a quantity of corn, which was in a crib, never having been divided. The plaintiff, representing himself as the agent of the others, sold the corn to P. P. Clements at two dollars a barrel, and agreed in writing to deliver it on board a vessel when called for, in merchantable order. Shortly afterwards Clements, meeting the defendant, informed him that he had bought the corn at two dollars per barrel, but gave him no further information as to the terms of this agreement, to which he replied, “ it was right.” Clements assigned his interest in the contract to Waldo and Yarrell, and authorised them to receive the corn. A dispute arose between Waldo and the plaintiff as to whether the corn was in merchantable order, when the former refused to receive it unless the plaintiff would make it merchantable in Norfolk; this the plaintiff’ agreed to do, and thereupon the corn was delivered. The defendant was not present at this conversation, nor had he been informed of it. After the corn was delivered on board the vessel, and before its arrival at Norfolk, Clements paid plaintiff and defendant each his share of the price at two' dollars per barrel. It was known to Waldo and Yarrell, as well as to Clements, that Davis, the plaintiff, owned but one-third of the corn. On arriving at Norfolk the corn was found to be unmerchantable, and the difference between that and sound corn was $246, 44, which was paid by the plaintiff to Waldo without suit.

The plaintiff demanded of the defendant one-third of the sum paid by him, for the deficiency in the corn, which being refused, this action was brought. The Court gave judgment for the plaintiff, upon a case agreed embracing these facts, from which the defendant appealed.

Donnell, for plaintiff.

Winston, *Jr., and*Rodman, for defendant.

*73Nash, C. J.

Three questions present themselves in this case. 1st, "Was the plaintiff the agent of the defendant in selling his portion of the corn ? 2nd. Had he the power to. warrant the soundness of the corn, and thereby bind the defendant ? 3rd. Can he maintain the action upon either of the counts in his declaration ?

As to the first. The plaintiff and defendant, and one Taylor, were the joint owners of a parcel of corn lying in bulk in a'crib, each o wning one-third. The plaintiff sold the whole to one Clements at two dollars pér barrel, to be delivered on board of a vessel, when called for, in good merchantable order. Clements subsequently informed the defendant that he had purchased the corn at the price stated, but did not inform him of any other terms. The defendant replied, “ it is right.” Clements, subsequently,'paid the plaintiff his one-tliird of the price of the corn, and the defendant his third. These facts sufficiently show that Davis was the agent of the defendant to do this particular thing — that is, to sell his portion of the corn, unrestricted by any special instructions.

2nd. An agent to sell personal property has, by law, power to bind his principal by a warranty of soundness. Brown on Actions, 174; Paley on Agency, 210. The employment gave the power. *Hilyear*v. Hawke, 5 Esp. N. P. cases, 75 ; *Hunter*v. Jameson, 6 Ire. Pep. 252. The contract between plaintiff and Clements was for the corn tobe delivered on board of the vessel, when called for, in good merchantable order. This contract was in writing, and signed by the plaintiff alone. "When "Waldo and Yarrell, who had purchased from Clements his contract, applied for the corn, they refused to receive it, upon the ground that it was not such an article as they had bargained for, not being in good merchantable order, unless the plaintiff would make it merchantable in Norfolk. This he agreed to do. At Norfolk it was shown that the corn was not merchantable, and the plaintiff paid to Waldo and Yarrell the difference between the corn as it was, and what it was agreed it should be. Was the defendant bound by the contract he made with the purchaser? The authorities above *74cited show tliat lie was, to the amount of bis interest in the corn. On tbis point our attention was called to the cases of *Meadows*v. *Smith,*12 Ire. 18 ; *McCall*v. *Clayton,*Bus. 422. Both those cases differ materially from tbis. In neither of those did the agent have any interest in the subj ect matter of the agency. In the first, the contract was made for the building of a flat for Smith, the defendant. In the other, the note or due bill, the foundation of the action, was signed George Clayton, *“*agent for Davidson’s River Navigation Company.” In both these cases the Court say that, by their respective contracts, the agents were not bound, but that their respective principals were, and that their payments were officious acts, and they could not recover from the respective defendants the money so paid without their request. Can the money paid by the plaintiff bo considered officious? The corn, sold was the joint property of the plaintiff, and of the defendant and Taylor, lying in bulk, undivided ; and the plaintiff was the agent of the two latter to sell their shares, and the whole was sold as sound. When it was ascertained that the corn was not merchantable, the purchasers might have refused to receive it, and were induced to do so only on the condition that the plaintiff would guarantee its merchantable quality .at Norfolk; this he did. As to his third, he acted for himself, as to the other two thirds, as the agent of the defendant and Taylor. But the contract was one. He could not guarantee his third without guaranteeing the whole, for the corn was undivided. By his contract he bound himself for the whole and was answerable for the wdiole. Although the purchasers knew that two-thirds of the corn belonged to Burnett and Taylor, they also knew that one-third belonged to the plaintiff.

It is in general true, that where an agent, at the time of making a contract, discloses his principal, he is not personally answerable, but where he binds himself, he is answerable ; and if made to suffer in damages arising out of the contract, he is entitled to compensation from his principal. *Hunter*v. *Jameson, ubi supra.*

*75We are of opinion, for tbe reasons above stated, that tbe plaintiff can maintain bis action.

Pee Cueiah. Judgment affirmed.