The opinion of the court was delivered, October 28th 1867, by
Strong, J.It was a very material question in this case whether the defendants Hart and Wright were the authorized agents of the borough to enlist the seven men and have them credited on the impending draft. If they were, the borough was responsible for the bounties paid or agreed to be paid, and was entitled to have the men credited on its quota. Then the transfer of the men to the township of Girard was a wrong done to the borough, for which it may obtain redress in this action. But if the defendants were not the authorized agents of the borough, and yet undertook to act as such agents, the borough was not bound by their acts, and certainly was under no obligation to refund the $2100 which they paid as bounties or their other expenses. It is true that when one without authority undertakes to act for another, that other may afterwards ratify the act, and thereby avail himself of its benefits, assuming at the same time its attendant burdens. Prior to such ratification, however, the agent is at liberty to retrace his steps. He is not obliged to wait an indefinite time to see whether the person for whom he has acted without authority will adopt his act. Clearly is this so when in acting he has made expenditures or assumed personal obligations. Such being the law, if the defendants were not authorized by the borough to enlist men and have them placed to the credit of the borough, if they could not therefore have recovered from the borough the money paid by them and the necessary expenses to which they had been subjected in procuring the men, they had a right to protect themselves and obtain reimbursement of their expenditure by causing the men to be credited to the township at any time before the borough ratified their agency, unless, perhaps, the credit to the borough had been actually consummated.
It having been therefore a material question whether the *27defendants had authority to engage men to enter the military service and be credited on the quota of the borough, the question should have been submitted to the jury to be answered from the evidence. It was not for the court to answer it or give to the jury instructions how it should be answered. And we are not without our suspicions that the court intended to submit it to the jury. But the language of the learned judge seems rather to have withdrawn it from their consideration.
He was requested to charge, “ that if the jury found that Hart and Wright, in putting in their seven men and paying them with their own money, acted without authority from the borough, then the defendants could not have recovered from the borough the money paid and expenses they had been at; and i-f they could not, then the plaintiffs could not recover in this case.” This proposition the judge answered affirmatively, on the supposition that the facts were as stated.
He added, however, these remarks: “ But we do not so understand the evidence. If the evidence is believed, we do not see why Hart and Wright were not just as much authorized to procure men to fill the quota as Battles and Webster (who had been expressly empowered by a resolution of the councils), and why the borough would not-be as much bound to recognise the doings of the one as the other .”
The jury may well have'considered this, as a binding direction that the authority had been given, especially as in no,other words was the question' referred to them. Other parts of the charge may well have produced the same impression upon the minds of the jury. The learned judge declared there was no conflict of evidence on the point whether the borough had undertaken to supply the quota for that draft, and whether the burgess and councilmen had agreed each to do all they could for that pur pose. He added : “ If so (that is if there was no conflict of evi dence), did the defendants, in pursuance'of that resolution, and by virtue of their official relation to the borough, engage these seven men to enlist for it, or to its credit, and had them put in and credited accordingly ? If so, it was all right and proper, exhibiting a commendable fidelity to the interests of their constituents. The borough had authorized it and had the advantage or supposed advantage of it, and was undoubtedly responsible for the expenses incurred.”
“ The defendants then being agents of the borough to do this thing, and having in its name and on its behalf engaged these men,” and entered them on the books to the credit of the borough, they belonged to the borough so far as the right of property could attach to them.'
“ They were hired for and delivered to the borough at its request, and to supply its pressing wants.”
*28This certainly looks very much like taking the question of fact away from the jury, and taken in connection with the answer to the defendants’ second point, we cannot but think its tendency was to lead them to conclude that the agency of the defendants for the borough was not a question for them.
For this reason, and for this reason alone, the judgment must be reversed.
There is no error in any other part of the record.
Judgment reversed, and a venire de novo awarded.