delivered the opinion of the court.
The petition states, that the plaintiff placed in the hands of the defendant, a note for collection executed by one Francis Gaggino, and that the defendant, though often requested, has refused to return the note, or pay its amount.
The answer admits the agency, but aifirms that the defendant has handed over to the plaintiff a note of the said Gaggino, payable to the defendant, not yet due, and which note the defendant had received in payment of that mentioned in the petition, in pursuance of the power vested in him by the plaintiff.
There was judgement in the court of the first instance for the plaintiff, and the defendant appealed.
The cause turns, principally, on the questions, whether the plaintiff conferred power on the defendant to novate *28the note, or, if he did not, whether he has ratified the act ot his agent.
An agent, gardedaS ^liis principal’s instructions, can hot repel his ajfeTby^howing his agency wasgratuitous, Cannon, for appellant. Seghers, for appellee.The written power produced does not confer the authority which the defendant contends he had, and the parole evidence fails to establish it. The plaintiff has not relied alone on the want of power which results from the failure of the defendant to show it; he has proved his directions were not complied with. The authority to novate being accompanied with the condition of the maker giving security. The note here was taken in favor of the defendant, and has not been endorsed by him.
There is not sufficient evidence to authorize us to say the plaintiff ratified the act of his agent. The latter was charged with the care and management of a store in which the former was a partner, and this note was found among the books which the defendant left when his agency terminated. It is proved the plaintiff complained of the act of the defendant, and that he told him he could not lose the whole amount of the note.
The defence which is presented by the defendant, of the man<late being gratuitous, and of his act being, under all the circumstances, a sound exercise of discretion, cannot avail 7 him; for, under the evidence, discretion was not conferred on h™ t° the extent now claimed. He was directed not to renew note unless the maker gave security, ° v
It is, therefore, ordered, adjudged, and decreed, that the judgement of the District Court be affirmed with costs.