This was an action brought by the plaintiff against the defendants as the drawers of five bills of exchange, dated, Savannah, 9th July, 1867, for two hundred pounds each, payable to the order of the plaintiff in London at sixty days after sight, and directed to Robert Hutchison, Liverpool, as the drawee thereof. The defendants pleaded that, in advancing these bills, they acted merely as the factors and agents of the plaintiff in shipping his cotton to Liverpool to be sold there, and that the bills were drawn by them upon the proceeds of the sale of the plaintiff's cotton as his agents, and under his instructions, according to the known and usual custom of the trade in such eases, and not on their own account, and that they had not received any valuable consideration therefor from the plaintiff as the drawers of said bills. It appears from the evidence in the record, that, at the time these bills were drawn, Hutchison, to whom the cotton was shipped and upon whom the bills were drawn, was of good credit and standing as a merchant, but before the bills were presented for payment he became insolvent. The evidence, on the trial, was quite voluminous, much of it being the written correspondence between the parties in relation to the sale of the cotton, and as to the sale of these sterling bills now sued on, which had been delivered to the plaintiff by the defendants. The jury returned a verdict for the defendants. A motion was made for a new trial on the grounds set forth in the record, which was overruled by the Court, and the plaintiff excepted. This action, it will be observed, is brought *409against the defendants as the drawers of these bills of exchange, and is not brought against them for any neglect of duty as the factors and agents of the plaintiff, and the question is, whether the defendants were liable to the plaintiff as such drawers of the bills of exchange under the evidence disclosed in the record. The general rule of the law is, that the drawer of a bill of exchange is liable for the payment thereof according to its tenor and effect to the payee named therein, and is founded on the theory that the drawer has funds in the hands of the drawee which he sells or assigns to the payee for a valuable consideration. Such is the general presumption of the law. But this original presumption of the law, as between the original contracting parties, may be rebutted and overcome by the facts of the case as between them. What are the facts of this case? The plaintiff had eighty-five bales of cotton, which he desired to have shipped to Liverpool and sold there, and to receive in payment therefor sterling bills, and for that purpose he sent his cotton to the defendants as his factors and agents in the city of Savannah. The cotton was received by the defendants on or about the 28th of January, 1867, who were instructed to ship the same to their correspondent in Liverpool for sale. In obedience to these instructions, the defendants shipped the cotton to Hutchison, their correspondent, who received and sold the same, rendering an account of the sale of the cotton to the defendants, dated, Liverpool, 5th June, 1867. This account of the sale of the cotton rendered by Hutchison is thus stated: “ Account of sale of eighty-five bales cotton, per Sullivan from Savannah, sold by Robert Hutchison for account of J. R. Jones, Esq., per Messrs. J. W. Lathrop & Company.” The cotton was not sold on account of the defendants, but on account of the plaintiff, and the proceeds of the sale was not the property of the defendants, but the property of the plaintiff. To enable the plaintiff to receive the proceeds of the sale of his cotton in the hands of Hutchison, the defendants’ correspondent in Liver*410pool, these bills were drawn according to the usage and custom of the trade in such cases, and were sterling bills in the commercial sense of that term. The evidence in the record shows that the usage and custom of the trade was to draw sixty days’ bills, as was done in this case by the commission merchant in Savannah shipping the cotton, that it was the custom to put the proceeds of cotton sold at Liverpool to the credit of the merchant shipping, but the accounts at Liverpool showed to whom the cotton belonged, and no person except the merchant shipping the cotton could draw for the proceeds of the sale. thereof who would settle with his principal to whom the cotton belonged ; that the accounts rendered in this case were according to the usage and custom of the trade. These bills, therefore, were, in fact, drawn by the defendants, as the shipping factors and agents of the plaintiff, to enable him to receive the proceeds of his cotton shipped by them to Liverpool, and sold there under his instructions, according to the usage and custom of the trade, and were not drawn by them in favor of the plaintiff for any valuable consideration received by them from him therefor. After these bills were drawn, and the account of sales of the cotton had been rendered to the plaintiff, the same were delivered to him who retained them in his possession nearly three months without objection, and in the meantime corresponded with the defendants as to the best time when to dispose of them at the highest rate of premium, as sterling bills, and finally transmitted the same to them to sell for him as his agents, when, in their judgment, they could realize the highest market value therefor.

As late as October 20th, the plaintiff wrote the defendants to purchase for him three barrels of pork, and deduct the price thereof from the sale of the bills of exchange, then in their hands for sale. After the defendants had informed the plaintiff of the failure of Hutchison, he wrote them, on the 8th November, “ The loss of the money will be a terrible blow on me, financially speaking. I feel very blue on the subject. *411You will please keep me regularly advised of any new developments in the matter, and, for me, see what can be made out of the matter.” Again, on the 23d of November, he wrote them, stating that, “ if, by the 1st of December next} nothing satisfactory is received or heard from Mr. Hutchison, and you see no reasonable chance to make anything out of the bills for the present, or at an early day, to reimburse you for the pork sent to me, I will remit the money to 'you for the pork.” It is quite apparent that, up to that time, the plaintiff did not consider the defendants were personally liable to him as the drawers of these bills, and he then had full knowledge of all the facts.

The relation of principal and agent arises whenever one person expressly, or by implication, authorizes another to act for him, or subsequently ratifies the acts of another in his behalf: Code, 2152.

The form in which the agent acts is immaterial; if the principal’s name is disclosed, and the agent professes to act for him, it will be held to be the act of the principal: Code, 2169. The plaintiff’s name was disclosed by the defendants as the owner of the cotton, when shipped to Hutchison by them, as the agents of the plaintiff, and the account was rendered as the proceeds of the sale of the plaintiff’s cotton, according to the usage and custom of the trade, and not as the defendants’ cotton. The agent’s authority will be construed to include all necessary and usual means for effectually executing it: Code, 2170. According to the evidence in this case, the drawing these bills by the defendants, as the factors and shipping agents of the plaintiff, was the necessary and usual means to enable them, as such agents, to obtain the proceeds of his cotton in sterling bills. Where the agency is known, and the credit is not expressly given to the agent, he is not personally responsible upon the contract. The question to lohom the credit is given, is a question of fact, to be decided by the jury in each case: Code, 2185. As between the defendants and the plaintiff, their agency in the shipment *412of his cotton to Liverpool, and the procuring sterling exchange for the proceeds thereof, according to the usual custom of the trade, was well known to him, and the question whether the plaintiff received the bills from them, on their credit, as the drawers thereof, or on the credit of the proceeds of his own cotton, shipped and sold by them in Liverpool, as his agents, was a question to be decided by the jury, under the evidence in the case. "Whatever might have been the liability of the defendants, as the drawers of these bills, if the same had been negotiated and in the hands of a bona fide holder for value, it is not necessary to discuss in this case.

The main, controlling question, as presented by the record, is, whether the defendants are personally liable to the plaintiff as the drawers of these bills of exchange, under the facts and circumstances of the case. In' our judgment, they are not, and as there is no material error in the charge of the Court to the jury, or in refusing to charge as requested, and the verdict being right, under the law applicable to the facts of the case, we are of the opinion that the judgment of the Court below should be affirmed.

Judgment affirmed.

dissenting.

1. I do not concur with the majority of the Court in their judgment in this case. Under the evidence, I think Lathrop & Company liable to Jones on these bills, and that the Court erred in his charge to the jury, suggesting to them that Mr. Lathrop was no more liable on these drafts, if he was Jones’ agent, than if he had drawn them as the clerk of Jones. If Lathrop & Company were only the agents of Jones in drawing the drafts, this would, perhaps, be true; but the charge was calculated to mislead the jury, because the fact of Lathrop & Company’s agency for Jones in the shipment, *413sale, etc., of the cotton was undisputed. The question was as to the agency in drawing the drafts. The former agency might exist, and not the ] at ter. This was the whole point of the case. The charge of the Court was too broad. Under the circumstances, the jury might have understood the Court to hold that Lathrop’s agency in the shipment of the cotton and the procurement of its sale was intended.

2. Under the proof, I am of opinion that, in the drawing of these drafts, Lathrop & Company were acting for themselves and not for Jones, and that they are liable to him as drawers. The proof is conclusive, to-wit: the evidence of Mr. Duncan. Mr. Lathrop himself and others swore that the account upon which these bills were drawn was the account of Lathrop & Company, not Jones.

Mr. Lathrop testified that, at the beginning of the season, he had a credit with Hutchison for £10,000. It is clear, from the statements of the witnesses, that Jones’ cotton, when sold, was carried to the credit on Hutchison’s, on the books of Lathrop & Company, that Hutchison would not have recognized a draft drawn by Jones, and that a draft drawn by Lathrop & Company in favor of anybody else than Jones would have been a perfectly legitimate draft, as the accounts stood, and as was usual with merchants. It was in proof that the interest on any balance there might be in Hutchison’s books to Lathrop’s credit went to Lathrop. It is clear, from the testimony, that no change would have been required on Hutchison’s books if Lathrop & Company had paid Jones the money for his cotton, and drawn these drafts in favor of some one else. Indeed, that was proven to be the usual course of business. Planters rarely want drafts of foreign houses. Ordinarily, the commission merchant at Savannah pays the planter the money, and sells the exchange. Who can say that the very funds for which Jones’ cotton sold was not paid by Hutchison to some other draft of Lathrop ? It appears that Lathrop did a large business with him, was constantly shipping planters’ cotton to him, having the pro*414ceeds carried to Ms own eredit, and selling exchange to any purchasers who might want it at sixty days after sight, upon the fund. In my judgment, the proof is conclusive on this point. The fund on which these bills were drawn was the fund of Lathrop & Company. It was to their credit, on Hutchison’s books, they were authorized to draw, and did draw on it, in favor of anybody they pleased. The interest on the money and the rise and fall of exchange was theirs. Had they been short with Hutchison the credit arising from the sale of this cotton would have gone to pay their debt to him. In other words, according to the course of dealing between Hutchison and Lathrop, the account on Hutchison’s books, against which these bills were drawn, was constantly and regularly considered by Hutchison and Lathrop & Company as the account of Lathrop & Company. When the balance was large in his favor he was able to sell large sums of foreign exchange, and when it was small he had little to sell. Nothing is better settled than that a factor who sells goods for a third person, and mingles the proceeds with his own funds, as by a deposit to his general account in bank, is liable for what may happen to the funds.

This Court, at this term, in the case of A. C. Wiley & Company vs. Burnet & Rixey, held that a factor who sold his client’s tobacco for Confederate money, and mingled the money with his own funds, was liable for the value of the money at the time, notwithstanding he always had on hand a plenty of Confederate money to pay. The ground upon which this decision went, was the acknowledged rule that a factor who mingles his principal’s money with his own is liable for it, no matter what happens to the general bulk; since, by this act, he has made it impossible to separate the fund of the principal and his own fund. The evidence in this case shows, as I think, conclusively, that the proceeds of the cotton was carried to Lathrop & Company’s credit, by the usual course of dealing, to which Lathrop & Company gave their assent; that it went to swell their eredit with Hutchison, and was, to *415all intents and purposes, as much in use by Lathrop & Company as their own fund, on which they could and did draw and sell bills in the market, as though they had deposited every dollar of it with Hutchison, with their own hands. It was their own money, in their own power, to their own credit, in their own use, from the day on which the cotton was sold, and, in all probability, when the drafts were drawn, it had been paid out to their order. They owed Jones this money. They were not mere bailees of it. And they drew these drafts, signed by themselves, as drawers, payable to Jones’ order, in payment of it. No man, in his senses, not intending to be liable, as drawer, would have put his name to such drafts. Jones could, the next day afterwards, have put them on the market as ordinary bills of exchange, in which case the liability of Lathrop & Company would have been unquestionable. This very fact, that Lathrop & Company, old merchants and dealers in exchange, put their names, as drawers, without qualification, to negotiable bills, in favor of Jones, is almost conclusive that they intended to be liable on them. True, as between Jones and them, the truth may be inquired into. But the fact of their signature to drafts, which they knew Jones intended to sell, and which they proffered to sell for him, is utterly inconsistent with the idea that they did not intend to be liable as ordinary drawers.

There is nothing in this evidence to show, or to justify the inference, that any of the parties, either Jones, Hutchison, or Lathrop & Company, considered the proceeds of the cotton in Hutchison’s hands the property of Jones. The witnesses all say that it was not subject to the draft of Jones. True, it does appear that the books of Hutchison would, by the course of dealing, show that the cotton from which the money came belonged to Jones. But, by all the witnesses, it is shown that, by the course of the trade, it was on the books to Lathrop & Company’s credit, and was treated, by both Hutchison and Lathrop & Company, as belonging to the latter. Suppose Lathrop & Company, when they made out. *416this account between themselves and Jones, in which they charged themselves with the proceeds of the cotton, and credited themselves with these bills, and the exchange on them, to balance, had taken the ordinary course. Suppose they had paid Jones the money, and drawn and sold these drafts in the market, payable to somebody else, and they had proven unavailable by Hutchison’s failure, would Jones have been liable to pay back the money? Lathrop & Company would be his agents in one ease as much as the other. The fund drawn upon would be the same in both cases, and Lathrop’s character would remain the same. If he drew on Jones’ fund, and the fund failed, Jones would be liable over to Lathrop & Company. If this be so the liability of planters, shipping cotton to Liverpool, to consignees selected by the seacoast merchants here, is a dangerous business.

This case, I think, turns upon the character in which Lathrop & Company acted in drawing the drafts. The question of negligence in presenting them arises, it is true, but the proof is so strong of acquiescence in the delay, that, on this point, there is little difficulty. By the settled rule in such cases, the draft must be presented in a reasonable time. What is a reasonable time, depends on the facts of each case, and upon the intent of the parties. The evidence is clear that it was known and understood by Lathrop & Company that they would not be presented for a while; and, by their letters, they clearly so advised, and I do not think, under the law, the jury would have found for the defendants, in this point.