Brown v. Henry

172 Mass. 559 | Mass. | 1899

Knowlton, J.

It appeared upon the undisputed evidence that the broker inserted in the written memorandum of sale certain provisions which were not expressly authorized by the defendants. The jury found that there was no custom under which he could bind the defendants by these agreements. He was not the defendants’ general agent, and the terms of his authority to make a. sale could be inquired into. He could bind the defendants only by such a contract as they authorized him to make. Coddington v. Goddard, 16 Gray, 436. Remick v. Sandford, 118 Mass. 102.

Under the instructions of the court and the finding above stated, the verdict for the plaintiffs must rest on a finding that the defendants ratified the broker’s contract. The jury were allowed to find ratification on the ground that the plaintiffs were right and the defendants wrong in regard to the defendants’ contention that the broker was not authorized to sell the wool at the price named in the contract, it appearing that the defendants stated, as their reason for repudiating the contract, that the broker had no authority to sell the wool at that price, and failed to make any objection to the provisions of the contract about credit, the allowance of interest, unexpired storage, and fire insurance. These latter provisions were inserted in the contract by the agent without authority. There was no evidence that the situation of the plaintiffs was changed, or'that their rights were in any way affected hy reason of the form of the defendants’ objection and disavowal.

Where something is to be done by one of two parties as a condition precedent to his exercise of a right against the other, the other may waive the performance either wholly or in part. If there is an attempt at performance which falls short of the requirement, and if objection is made by the party for whom it is done, with a statement of the grounds of his objection, the objector often is held to have waived his right afterwards to object on other grounds, when the other has gone forward relying upon the implied representation that the performance is satisfactory in other particulars. Clark v. New England Ins. Co. 6 Cush. 342. Searle v. Dwelling House Ins. Co. 152 Mass. 263. Curtis v. Aspinwall, 114 Mass. 187. Knickerbocker Ins. Co. v. Norton, 96 U. S. 234. Titus v. Glens Falls Ins. Co. 81 N. Y. 410. These cases rest upon the ground that, when one is stating objections, a failure to disclose a ground of objection in a particular which easily could be remedied tends to mislead the other party to his detriment, and is so contrary to justice and good morals as to work an estoppel against doing it afterwards.

No such principle is applicable to the present case. We have an unauthorized contract made by an agent. The plaintiffs had no rights under it immediately after it was made. They have no rights under it now unless the defendants ratified it. “ Ratification of a past and completed transaction, into which an agent has entered without authority, is a purely voluntary act on the part of a principal. No legal obligation rests upon him to sanction or adopt it.” Combs v. Scott, 12 Allen, 493, 497. Greenfield Bank v. Crafts, 2 Allen, 269. If, however, one is acting in the execution of a general power, but in a mode not sanctioned by its terms, and if any benefit comes to the principal from the act, ratification may be implied pretty quickly from lapse of time with knowledge of the circumstances. Foster v. Rockwell, 104 Mass. 167. The evidence is undisputed that, within a reasonable time after being informed of the contract, the defendants in the present case repudiated it. The naked question is presented whether, if a principal, on learning of an unauthorized contract of an agent, repudiates it, giving a reason for so doing which proves to be without foundation, such repudiation is equivalent to an adoption of it. In the absence of anything beyond this to work an estoppel, we are of opinion that it is not. Ordinarily, ratification of an agent’s act is a mere matter of intention. In the present case the defendants, as soon as the facts were ascertained, manifested in the" clearest manner their intention not to ratify, and their subsequent conduct has all been consistent with their original repudiation of the attempted sale. They could not repudiate it in part and adopt it in part. 1 Am. & Eng. Encyc. of Law, (2d ed.) 1192, and cases cited. There is a class of cases in which the principal receives a direct benefit from an act of an agent, and it is held that, if he retains this benefit for a considerable time after he obtains full knowledge of the transaction, he thereby ratifies the act. Brigham v. Peters, 1 Gray, 139. Sartwell v. Frost, 122 Mass. 184. Coolidge v. Smith, 129 Mass. 554. Here, too, there is an element of estoppel which does not exist in the case at bar. One cannot have the benefit of an unauthorized act of an agent without confirming it. Ordinarily, a principal is not called upon to give reasons for declining to be bound by an act undertaken without authority. The controlling reason is that it was unauthorized. The particulars in which it lacks authority usually are of no importance. If the other party relies upon it, he has the burden of showing ratification. If the principal insists that it is unauthorized, and does nothing and says nothing which warrants the other party in treating it as ratified, the mere fact that he is incorrect in his statement of the particulars of the want of authority does not change his repudiation of the act into an adoption of it. We are of opinion that the instructions in regard to ratification were erroneous, and that the jury should have been instructed that there was no evidence that the defendants ratified the contract declared on. See Price v. Moore, 158 Mass. 524.

Exceptions sustained.