By the Court,
Willard, P. J.It was competent for Wm. J. Robertson, the son of the plaintiff, to act as agent for his father, notwithstanding his minority. A sale or exchange made by him of the horse in question, though without express authority from the plaintiff, would pass the title, if the latter with full knowledge of the terms of the sale, ratified and confirmed it. Subsequent assent, under such circumstances, is equivalent to a precedent authority. (Dunlap's Paley on Agency, 171, note o, where all the cases are collected.)
There can be no doubt, from the evidence, that the exchange of horses made by the agent was upon terms which the plaintiff had refused to adopt as the basis of an exchange ; and this was well known to the defendant when he completed the exchange. The plaintiff did not know of the bargain until after it was made, nor did he know the terms of it and that it was contrary to his proposition, until after the death of the horse had put it out of his power to return it. He repudiated the bargain as soon as he knew what it was.
A transfer of property by an agent who exceeds his authority in a material point passes no title to the thing delivered, which may therefore be reclaimed by the owner. (Dunlap's Paley on Agency, 341.) In the contract of sale or exchange by an agent, as in all other acts done by him, it is essentially requisite, in order to bind the principal, that the authority either express or *656implied should be pursued. (Id. 212.) If the authority be not pursued, the contract is void. This must especially be the case, when the purchaser knows that the agent is violating his instructions, and they agree to conceal from the principal the fact of such violation.
There was no conflict in the evidence, on the fact that the actual exchange of horses, made by the agent, was upon a consideration which the plaintiff had never authorized, and that this was known to the defendant at the time. A verdict finding to the contrary is not merely a verdict against the weight of evidence, but is a verdict vrithout a particle of evidence to support it.
The ground on which the county judge affirmed the judgment of the justice was that there was evidence of a subsequent ratification of the bargain by the plaintiff. The evidence was that the plaintiff asked the defendant how he traded, to which the latter replied, “ pretty much as you and I talked, a little different, and if you are not suited with the trade we will trade back this evening.” Upon this the parties drank together and parted. This answer of the defendant was untrue. The trade was made, not as the plaintiff had proposed, but as the defendant had offered, and which offer the plaintiff had expressly rejected. If the defendant had truly disclosed the terms of the bargain, when he was asked, and the plaintiff had silently acquiesced, it would have presented quite a different question. Ho doctrine is better settled, on principle and authority, than this, that the ratification of the act of an agent previously unauthorized, must, in order to bind the principal, be with a full knowledge of all the material facts. If the material facts be either suppressed or unknown, the ratification is invalid, because founded on mistake or fraud. (Paley on Agency by Dun. 172, n. Owing v Hull, 9 Peters, 608.) The answer of the defendant to the plaintiff’s inquiry was untrue, and was well calculated, and doubtless intended, to prevent further inquiry. The defendant had agreed with the agent to conceal from the plaintiff the departure from his instructions. It would be a reproach to the law to uphold such a fraud. There was no dispute about facts. The jury drew an erroneous conclusion from the testimony. They must have held that sub*657sequent assent to the trade was a ratification of the bargain, whether the plaintiff knew of its terms or not.
[St. Lawrence General Term, September 1, 1851.Willard, Hand and Cady, Justices.]
The judgment of the county court and of the justice must be reversed.