majority">MUNSON, J.

Plaintiff and defendant, residents of Paw-let, had negotiations relative to a car-load of potatoes, to be *663shipped by the plaintiff to defendant’s customer in Boston. The plaintiff, assuming that a sale had been effected, made the shipment. The defendant did not consider the potatoes purchased, and had no knowledge of the shipment until the plaintiff called upon him for payment. When thus called upon, the defendant declined to pay for the potatoes, and claimed that he had not bought them; but afterwards, without further communication with the plaintiff, he wrote to the consignees, directing them to do the best they could with the shipment and make returns to the plaintiff.

We think the action taken by the defendant placed him upon the footing of a purchaser. In ordering the property sold he treated it as his own. His direction to remit the avails to the plaintiff did not change the character of his act. He had no authority to dispose of the property on the plaintiff’s account. His action was, therefore, inconsistent with his claim that the plaintiff was still owner. In dealing with the property he accepted it, and thereby assented to the. plaintiff’s claim that it had been sold to him.

In Parker v. Palmer, 4 B. & A. 387, the plaintiff sought to recover the price of a quantity of rice sold by sample. The rice delivered was inferior to the sample; but the defendant, after seeing fresh samples, put the rice up for sale at auction, and, upon its failure to bring a fixed price, had it bid in for himself. It was held that by thus attempting to dispose of the property he had treated the sale to him as valid, and that he could not afterwards claim that it was void.

In Chapman v. Norton, 11 M. & W. 534, the claim was for a cargo of oil cake sold by sample. The defendant landed the cargo, but claimed it did not answer the sample and refused to accept it. After some, correspondence, the defendant notified the plaintiffs that if no directions concerning the property were given by them he should sell it and apply the proceeds in liquidation of his' damages. The plaintiffs replied that they considered the transaction closed, and the defendant *664thereupon sold the property in his own name and held the avails. It was held that the defendant could not be considered an agent of the plaintiffs from necessity for the sale of the property, and that his action must be treated as an acceptance.

In Bartholomea v. Paull, 18 W. Va. 771, goods not ordered had been sent to the defendant, as if sold, and the defendant, although disclaiming a purchase, had permitted a third person to select and retain a portion of the goods, with an understanding that he account for them to the plaintiffs. It was held that this disposition of a part of the goods was an act of ownership, and that it made the defendant liable as a purchaser for the entire bill.

It is true that the property in suit was of a perishable nature, aud that an authority to dispose of such property is sometimes implied from necessity. A master whose ship is freighted with a perishable cargo may sell it for the owner when driven into an intermediate port. A factor whose authority to sell is limited to a future day may sell in disregard of the limitation when the condition of the property is such as to require immediate action. This authority rests upon the ground that an unforeseen emergency has arisen which requires that action be taken before communication with the owner can be had. It is conceivable that circumstances might arise in which a claimed vendee IjCould dispose of perishable property on this ground without subjecting himself to liability. But it must be remembered that the rules above given had their origin in a time when seasonable communication with a distant owner was impossible. Our present facilities of communication leave but little room for an expansion of the doctrine of agency from necessity. When the owner can be called upon to act for himself the reason for the rule fails. In this case the parties were neighbors, and if any further information or notice to the plaintiff was necessary to relieve the defendant from responsibility he could easily have given it in a personal interview. It cannot be said that the defend*665ant was required by the circumstances to do anything inconsistent with his claim. He should have thrown upon the plaintiff the responsibility of taking action in regard to the property.

Judgment affirmed.

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