dissenting. The rule is pretty well established among respectable courts, that an appellate tribunal will never reverse itself in the same cause. The reason for the rule is that the court below is bound' to respect the views of the supervisory court, and if this latter court were allowed to change its views with every trial of the cause, there could be no end to litigation. The district judge would be liable to have his action reversed simply because he obeyed a direction made by his superiors, and for whose ideas he unfortunately entertained some little respect.- It is quite as important that there should be some stability • attendant upon judicial decisions as it is that they should be right. A regard for this principle has induced me to enter my protest against the manner in which this case has been treated in this court. When it was brought here first, I did not participate in the discussion or decision of it, and I feel that I am in no .way responsible for the principles announced in the opinion delivered by the chief-justice. When I first read it, I realized that it was in some respects ill-digested, and in others manifestly wrong. It was evidently calculated to mislead- the district judge and the counsel engaged in the trial of the cause, and that such was its result will be made apparent before I conclude. On the first trial evidence was admitted to show that the money borrowed by Sabin was used by him in working and developing the mining property of the defendant, and that the profits arising from the extraction of the ore and the working of the mine went to the defendant. The court instructed the jury that they should consider these facts in determining the liability of the defendant. The learned chief-justice in his first opinion treated the admission of this evidence and the instruction of the court with manifest disfavor, for he says: “ The circumstance that the company retained the ore taken from the mine is not material to the question of ratification.” In other words, he announced the startling *267proposition that the jury was not at liberty to consider any advantage the principal might derive from the acts of his agent. An agent might borrow money from a bank or individual, expend it in working the property of Ms principal, and the principal might become enriched by the expenditure thus made, and when called upon to pay the money through whose use he derived his profits, it is error to instruct the jury that in determining the question of ratification they are at liberty to take note of these circumstances. A more careful review of the authorities led the judge below to disregard the opinion pronounced by this court, and to admit the evidence a second time, and the learned chief-justice in the present opinion states: “So also it seems that the appropriation of the money, and the fact that the use of it was advantageous to the party, to be charged, are circumstances of some weight respecting the question of ratification. Harris v. School District, 28 N. H. 58; Wilson v. School District, 32 id. 118.” To which authorities might be added Cowell v. R. R. Co., 28 Penn. St. 329; Alleghany City v. McClarbin, 14 id. 81; Bank v. Comb, 7 Barr. 543. The reversal of the judgment at this time is based upon alleged error in the instructions, and I desire to set them out so that they be compared not only with principles announced in the first opinion, but also with the language of the court. The instructions are as follows : “If you find from the evidence that Becker was president of the Union Gold Mining Company on the 16th day of December, 1868, and that he had full knowledge of this indebtedness to the bank at that time, and that he agreed to lay the claim of the bank before the board of directors at the February meeting of the board, then the court instructs you that, although you may find from the evidence that Becker had no authority to pledge the company to the payment of the debt, still' he, as president, had authority to convene the board of directors to consider the claim at that time, and to take some action in reference thereto, and if you find from the evidence that the board of directors failed or refused .to consider said claim, *268or failed, to disavow or repudiate the debt within a reasonable time thereafter, and to notify the officers of the bank of such disavowal, then you will be warranted in finding that the company ratified Sabin’s dealings with the bank, for when an agency exists, and the agent exceeds his authority, the silence of the principal, when he has full information on which he can and ought to act, gives rise to the presumption of an intentional ratification of the unauthorized act. In determining whether the company ratified the act of Sabin, you will consider the negotiations with Becker, the notice to the company of the indebtedness, the agreement to lay the claim before the February meeting of the board of directors, and the conduct of the company in reference thereto. If, at any time, the company assented to the acts of its agent, it is as much bound bj^ those acts as it would have been if the agent had been clothed with authority to perform them. When the relation of principal and agent does, in fact, exist, although in the particular transaction the agent has exceeded his authority, an intention to ratify will always be presumed from the silence of the principal who has received a letter informing him what has been done on his account.” From the foregoing instructions, it will be observed that, in the opinion of the judge who tried the case, it was incumbent on the defendant to take some action in reference to the .claim of the bank, and if at the February meeting of the board of directors it failed to take such action and disavow the conduct of its agent in borrowing this money, then the jury would be warranted in finding that the agent’s acts had been ratified. In giving these instructions the judge was fully warranted by the language and spirit of the opinion pronounced -by this court when the cause was first here. Upon page 547, 1 Col. Bep., the chief-justice says: “The matter of Sabin’s dealings with the bank appears to have been fully explained to Becker, and by his statement the company was equally well informed. The circumstances called for an answer from tlie company. Money had been obtained by its agent, and upon its credit, and the bank *269was demanding payment. The president of the company acknowledged the justice of the demand, and if the company had any objection to it, it was reasonable to believe that such objections would be made known.” Again, he says, page 546: “Upon this rule it appears to me that Becker’s undertaking to bring the claim of the bank before the board of directors of his company at the February meeting bound the company to consider the claim at that time. The undertaking was an exercise of the executive function, and we are at liberty to presume that it was performed. Upon the evidence, it seems that notice of the indebtedness was given to the company December 16,1868. Fifteen days later Becker undertook to present the claim to the board of directors at the February meeting in New York. If the matter was acted on by the company, it does not appear that any notice of the result was given to the bank. Upon these facts, the jury would have been waranted in finding that the company had ratified Sabin’s dealings with the bank, for, when an agency exists, and the agent exceeds his authority, the silence of the principal may give rise to a presumption of an intentional ratification of the unauthorized act.”
Again, he says: “If, however, Becker had no authority to pledge the company to the payment of any indebtedness, he certainly had authority to convene the board of directors, and lay before them the claim of the bank, and this he agreed to do. In the usual course of business, the corporation is addressed through its president; and it is an important duty of the executive officer to bring to the knowledge of the board of directors any matter affecting the interest of the corporation.” Again, he says: “ The question is as to the intention of the company respecting Sabin’s dealings with the bank, to be determined upon evidence of its conduct, and the declarations of its authorized agents, within the' scope of their authority. If at any time the company assented to the acts of its agent, it is as much bound by these acts as it would have been if the agent had been clothed with authority to perform them. The negotiations *270with Becker, the notice to the company of the indebtedness, the agreement to .consider the matter at the February meeting of the board of directors, and the delay of the company to disavow Sabin’s acts, are facts to be considered by the jury, whose province.it is to determine the question of ratification.” Is it not clear from the above, that this court held that the action of Sabin with the bank, “called for an answer from the company ?” Is it not equally clear “ that Becker’s undertaking to bring the claim of the bank before the board of directors of his company at the February meeting, bound the company to.consider the claim at that time?” Is it not clear, also, that with the knowledge of the indebtedness, and the failure to take action on the same by the company at the February meeting, “ the jury would have been warranted in finding that the company had ratified Sabin’s dealings with the bank, for when an agency exists, and the agent exceeds his authority, the silence of the principal may give rise to a presumption of an intentional ratification of the unauthorized act.” How can it be said that the conduct of Sabin called for an answer from the company, if no legal obligation existed on the part of the company to make any. How can it be said that the failure to consider the claim at the February meeting, and take some action in reference thereto, would have warranted the jury in finding a ratification, if it be true as is said now, that the company was not required to take any action at all. To any fair mind, the conclusion must be irresistible, that the instructions given, and on account of which this cause is now reversed, embrace not only the principles announced by this court, but embody its very language.
The case of Horton v. Townes is quoted with approval and put forth as an authority entitled to great consideration in connection with this case. The facts of the two cases have nothing in common ; they are as widely apart as the poles. In Horton v. Townes, the agent had authority to negotiate and discount notes at a specified bank, not to exceed in amount the sum of $3,000. The principal, however, was to derive no benefit from this transaction. *271The advantages were to inure to the agent. It further appears that the agent, standing in need of provisions for himself and family, bought groceries to the amount of $500, and executed to the vendor a note in the name of his principal. Suit was afterward brought against' the principal, and it was sought to charge him on the ground that, after the note was executed, he had full information of the act of his agent and maintained silence in reference thereto. The court held, and very properly too, that the plaintiff could not recover. Tttckek, J., says: “ The transaction was one from which the defendants could derive no profits.” Why repudiate a transaction with which one has no possible connection. If Sabin had used the money he borrowed of the bank, in buying provisions for his family, the two cases would be alike. But this he did not do. The money was used in an enterprise in which he was legitimately engaged. It went to the benefit of the principal; the ore extracted by the use of it went into the hands of the corporation for which he was working. When the facts change, the rule changes with them. There is another phase of this case which is proper at this time to. consider. Already, there have been two trials of this cause. Some points have been definitely settled by this court. Some questions have been twice solved by the jury. Two juries have found that Sabin was agent and not lessee. Shall the verdict be set aside wholly or in part ? Shall the cause be sent back and the plaintiff be compelled to fight this old battle of agency over again, or shall the next trial be confined to the simple point in which this court has found error % Upon general principles, the plaintiff in this case has as clear a right to the verdict upon the questions that were rightly tried as the defendant has to a new trial of the questions that were wrongly tried. And when the defendant asks the court to deprive the plaintiff of the ground fairly and legally won, and to put the plaintiff to another expensive, laborious and vexatious campaign to recover the same ground a second time, it is for the defendant to show how such an extraordinary, unjust and unconscionable demand can be *272sustained. On the face of it, such a demand is an appeal to despotic force. A power that would indulge itself in the needless and indiscriminate destruction of those parts of a costly verdict in which there is no error, can be paralleléd only by a power that would destroy an entire verdict without cause.' The general principle of the correction of errors which occur in judicial proceedings, preserves, as far as possible, what is good and destroys only what is erroneous when the latter can be severed from the former, and destroys no more of the good than is necessary in the process of ratification. But it may be that the defendant is entitled to a new trial as a matter of right. A new trial of what ? Of those questions which have been rightly resolved against him? Of those questions in the trial and settlement of which no error was committed ? Upon what principle of right, justice, logic or common sense can this immodest pretension rest ? The whole claim is placed upon the false assumption that where there has been a mistrial of one issue, there must be a new trial as to all. The very object of a new trial is to correct the error which has been committed, and to this point it should be limited. The right of the plaintiff to preserve that which he has legitimately gained is as absolute and unassailable as the right of the defendant to recover that of which he has been wrongly deprived. The rights of the one should be no broader than those of the other. And in securing rights to one, those of the other should not be destroyed. But the counsel for the defendant will say this is the voice of innovation and revolution. No; it is the attuned note of the common law which has been sounded by great judges and courts for five hundred years. King’ s Bench and House of Lords have echoed and practiced it, and Lord C. J. Denman has declared that it is a matter of surprise that any one should ever (Queen v. Willis, 10 Cl. & Fin. 534) question it. Massachusetts, New Hampshire, South Carolina, Iowa and other States have recognized and applied its doctrines; and indeed the cases in its support far exceed in number the volumes in the library of this court. Why then not apply it to this case ? One reason alone is assigned. *273It would be a surprise to the profession. This is indeed a poor tribute to their intelligence, for the rule is as well established as that in Shelly’s case. See Lisbon v. Lyman, 49 N. H. 582, and the innumerable cases there cited.
Believing that the trial was had in conformity with the opinion first pronounced by this court, and that the court should not reverse itself in the same cause, I vote to affirm this judgment.
Reversed.