Berger's Appeal

96 Pa. 443 | Pa. | 1881

Mr. Justice Trunkey

delivered the opinion of the court, January 3d 1881.

Thomas agreed to purchase of Hoig a tract of land, the bargain to be consummated when the encumbrances were removed. They met a number of creditors at the prothonotary’s office, who released all Iloig’s real estate from the lien of their judgments except one tract; and Marsh agreed that Berger’s judgment should have preference in the order of lien to his own. Swift was acting as agent for Berger and refused to release Berger’s judgment unless such priority was given, and signed the release upon assurance that Marsh so agreed. The agreement to give preference is in writing; the inducement or consideration is proved by oral testimony, and the fact is found by the auditor.

It is conceded that each creditor is bound by his release, on the faith of which Thomas took the land and paid the purchase-money. But Marsh claims that his contract to give Berger priority is nudum pactum, because Swift had no authority to release; and also because he received no consideration for the postponement.

Upon the act of Swift, as agent for Berger, Thomas paid the purchase-money to Hoig. If Swift’s act was authorized by the principal, he was not personally liable ; but if he had no authority, or exceeded the authority delegated to him, he became personally responsible to Thomas for the validity of the release. Where an agent has no authority and undertakes to act for the principal, he will be personally responsible therefor to the person with whom he is dealing for or on account of his principal; for by holding himself out as having authority to act he draws the other party into a reciprocal engagement. Whatever was done by Swift as agent is valid, if subsequently ratified by Berger. A great jurist said, no maxim is better settled in reason and law than that a subsequent ratification has a retrospective effect, and is equivalent to a prior command. The general rule is, that the subsequent assent of the principal to his agent’s conduct renders the principal liable on contracts made in violation of the principal’s orders, or even where there has been no previous retainer or employment; and this assent may be inferred from acts of the principal. Berger has pursued the land excepted from the release; he claims the money by virtue of Marsh’s agreement; he exeepted to the auditor’s report, and has appealed to this court, insisting upon the enforcement of that agreement. No stronger evidence of ratification ought to be required. But Swift was his agent in fact for some purposes, and though informed of his agent’s act, he. did not disavow it, and therefore he made the agent’s act his own : Bredin v. Dubarry, 14 S. & R. 27. We discover nothing in this case to take it out of the operation of general and familiar rules relative to ratification by a principal of what has been done in his name by one acting as his agent. In general, the ratification of a contract originally made by one without authority, will relieve the agent from all responsibility if the contract purports to be made by him merely as agent, although without such ratification, he would be liable to the other party, and also in some cases to the principal. The facts in th¡3 case clearly show a contract which could be approved by Berger and made his own. If the contract were void, no subsequent act would ratify it; the rule has exceptions. Where a contract has been made by a person with one as agent who has no authority, the parties do not always stand oh equal terms; since the principal may elect to ratify the act or disavow it. This is not the only case where one contracting party may be bound before the other; for instance, one who makes an executory contract with an infant is liable thereon, though the infant may renounce or confirm when he arrives -at majority; and a married woman may hold a party to performance of an agreement with her, though it could not be enforced against her. Thomas properly acted upon the release; had it not been ratified he would have remedy, if compelled to pay Berger’s judgment, against Swift; the ratification has the same effect as original" authority, and Berger is bound while Swift is not answerable at all. Now, the rights of the parties are to be considered as if Berger himself originally released and made the agreement with Marsh.

The consideration, in part if not entirely, for Berger’s release, was Marsh’s agreement to postpone the lien of his judgment on the. remaining farm of IToig. This was sufficient if the release conferred a slight benefit on Marsh or a third person ; or if Berger suffered the least injury or inconvenience without benefiting any person. But it was a benefit to Hoig and Thomas, and it was a giving up of a right by Berger. It is immaterial that Marsh received no benefit, if he procured a benefit to another, or caused the appellant to part with a legal right. Mutual promises are a sufficient consideration for each other; Marsh and Thomas enjoy all which Berger gave, and Marsh is bound by his cotemporaneous promise.

It Was pressed in argument that the appellee’s judgment has the stronger claim in equity. This is not apparent. He contracted that his legal right of priority should be postponed, in favor of the appellant. He himself wrote and signed the contract, and there is not the slightest evidence of fraud or imposition. It is manifest that for some cause he was generous to Hoig and wished the sale to Thomas consummated, to which end he made the agreement; but there is nothing in that calling for its rescission.

Decree reversed, and it is now considered and decreed that the judgment of Peter Berger, No. 827, August Term 1875, is entitled to preference in the order of lien to the judgment of C. R. Marsh at No. 424, August Term 1875, and that the fund be appropriated accordingly. Costs of this appeal to be paid by the appellee.