Quimby, as the agent of the plaintiff, was authorized to sell the rakes upon certain conditions, but he had no authority to dispose of them in payment of his own debt. Holton v. Smith, 7 N.H. 446; Parsons v. Webb,8 Me. 38; Easton v. Clark, 35 N.Y. 225; Rice v. Glass Co., 60 N.H. 195. The transaction between Quimby and the defendant was not a sale, but a delivery of the rake in part payment of Quimby's indebtedness to the defendant. The defendant, in fact, paid nothing for it. The note which he held against Quimby was not delivered up, nor was any credit given on the J. F. Blodgett account, and the defendant was not a bona fide purchaser for a valuable consideration.
The making of the memorandum "H. M. Quimby — balance on settlement $40.00" by the plaintiff, was not a ratification of the delivery of the rake to the defendant in payment of Quimby's debt, nor was it a binding election to hold Quimby responsible for the price and release the defendant from liability, because it was not made with a full knowledge of the transaction. The plaintiff then understood that the rake had been sold to the defendant for $30, and that he was to pay for it in a few days. Neither was it evidence of a waiver or an estoppel, for the reason that there was no consideration to support a contract; and nothing was done, or omitted to be done, in consequence of it to create an estoppel. Carpenter v. Cummings,40 N.H. 158, 169; Rice v. Chase, 9 N.H. 178; White v. Phelps, 12 N.H. 382. *Page 121
As there was no sale of the rake., and no promise, express or implied, on the part of the defendant to pay for it, bringing an action for the price cannot operate as a ratification or affirmance of a contract that never was made by the agent. The plaintiff never having parted with his title to the property can maintain trover, and no previous demand is necessary to be shown. The unauthorized delivery of the rake, in payment of his own debt, by Quimby to the defendant was a conversion, and the defendant's possession was unlawful in its inception; and he acquired neither title nor the right of possession by receiving the property from one who had no authority to deliver it to him. Taking the property from Quimby, who had no right to transfer it, was a conversion. In Hyde v. Noble, 13 N.H. 494, it was held that a purchaser of property from one who has no power to sell, where the purchaser takes a delivery of it and retains the possession, claiming it under the sale, is a conversion of it. Parsons v. Webb, supra, was a case very similar to the one under consideration. In that case it appeared that the plaintiff had delivered his horse to R., his son-in-law, to sell for him, and that R. had turned out the horse in payment of a debt he owed G., who sold him to the defendant; and it was held that no demand was necessary. The doctrine of these cases is believed to he sound, and it is supported by authority. Farley v. Lincoln, 51 N.H. 577; Moody v. Drown,58 N.H. 45; Cooper v. Newman, 45 N.H. 339; Freeman v. Underwood, 66 Me. 229; Rodick v. Coburn, 68 Me. 170; Stanley v. Gaylord, 1 Cush. 536; Gilmore v. Newton, 9 Allen 171.
The amendment, by filing a count in trover, was properly allowed. Bringing an action of assumpsit was not a conclusive election of remedy. Connihan v. Thompson, 111 Mass. 270, 272; Butler v. Hildreth, 5 Met. 49, 52.
Case discharged.
DOE, C. J., did not sit: the others concurred.