9286.

#### Coursey, sheriff, for use, etc., *v.*Consolidated Naval Stores Company *et al.*

Decided July 30, 1918.

Jenkins, J.

1. In a suit on a forthcoming bond given in a claim case, it is incumbent upon the plaintiff to show that the property has been found subject to the'execution, and either that a demand for the property has been made and refused, or that it was not produced at the time and place of sale as designated by the advertisement. *Stinson*v. *Hall,*54 *Ga.*676. Where the record, as in this case, fails to disclose any such demand, and proof of tlie advertisement has been excluded by the court, and there is no exception taken to this ruling, a breach of the obligation would ordinarily fail to appear. But since, under the evidence in this case, the jury were authorized to And that the claimant who gave the' bond appropriated the property by a subsequent sale thereof, the evidence was sufficient to establish a breach of its obligation, and to show that an advertisement was unnecessary, as such a sale would put it beyond the power of the obligor to deliver the property. *Lassiter*v. *Byrd,*55 *Ga.*606.

2. Where in such a suit the defendant named as obligor in the bond files a plea of non est factum, denying that the person signing the bond as agent was authorized so to act, it is incumbent upon the plaintiff to carry the burden of proof by establishing the authority of the one thus acting as agent to bind his principal. *Bank of Norwood*v. *Chapman,*19 *Ga. App.*709 (6), 710 (92 S. E. 225). But such proof may be supplied by showing a ratification by the principal of the act of the agent; and if shown, the ratification will relate back to the act ratified. Civil Code (1910), § 3591.

3. If the principal, with full knowledge of all the material facts, accepts and retains the benefits of the unauthorized act of an assumed agent, he will ordinarily become bound thereby. *Haney Co.*v. *Hightower Institute,*113 *Ga.*289, 296 (38 S. E. 761); *Roberts*v. *Bank of Eufaula,*20 *Ga. App.*221 (3), 226 (92 S. E. 1015); *Sutton*v. *Farmers Warehouse Co.,*11 *Ga. App.*338, 340 (75 S. E. 336). Whether or not such a ratification has resulted is usually a question of fact, to be determined by the jury, and not a question of law for the court. *Burr*v. *Howard, 58 Ga.*564; *Dixon*v. *Bristol Savings Bank,*102 *Ga.*461 (31 S. E. 96, 66 Am. St. R. 193); *McKinnon*v. *Hope,*118 *Ga.*462 (45 S. E. 413).

4. There was evidence going to show that after the execution of the bond sued on, the obligor proceeded to sell for its own benefit the property embraced in the claim; and evidence was offered for the purpose of showing that the person conducting this sale on behalf of the obligor was previously notified of the pendency of the claim proceedings, and was shown the bond purporting to have been given by defendant therein. The exclusion of the evidence thus offered was erroneous, and the issue as to whether or not the defendant thus ratified the act of its assumed agent in the execution of the bond, by receiving with knowledge a benefit thereunder, should have been submitted to the jury.

*Judgment reversed.*

*Wade, C. J., and Luhe, J., concur.*

*539Action upon bond; from city court of Swainsboro—Judge Kirkland. August 28, 1917.

*Williams & Bradley,*for plaintiff.

*J. Alex. Smith & Son, Travis & Travis, F. H. Saffold,*for defendants.