Clealand v. Walker

11 Ala. 1058 | Ala. | 1847

COLLIER, C. J.

It is certainly correct as a general rule, that where a written contract is entered into by an agent with a third person, in order to bind the principal and make it his act, it must purport on its face to be his contract. [Story on Ag. § 147 to 161.]

The ratification of a contract when fairly made, will have the same effect as an original authority to bind the principal not only in regard to the agent himself, but in respect to third persons. If therefore an agent has made a contract, without authority for his principal, or beyond his authority, and it is afterwards ratified, the principal may generally sue and be sued thereon, in the same manner, and with the same effect as if he had originally given the authority. Omnes ratihabitio retrotrahitur, et mandato priori cequi paratur. [Story on Ag. § 244 to 246.] This rule is subject to many exceptions, where the ratification would be inoperative to divest a right or impose a legal obligation. Thus, if one was to say that he authorized another person to purchase property, and furnished him the money to pay for it at the time, this would not bind the principal to pay for it, if the agent had converted the money. But if the money was returned to him, or the purchase made on a credit, and the principal af-terwards furnishes the means of payment, he would be bound for the faithlessness of the agent in not applying them.

It cannot be assumed as a legal conclusion from the fact that the defendant has no middle name indicated by the initial S, and his son and supposed agent thus writes his name, that the payees gave credit to the latter, and accepted his individual note as evidence of his personal liability. Where the plaintiff declared by the name of William T. Robinson, and gave in evidence a deed to William Robinson, the insertion of the initial of a middle name was deemed an immaterial variance ; for the law knows of but one Christian name. [Franklin v. Talmage, 5 Johns. Red. 84.] In Keene v. Meade, 3 Pet. R. 6, a commission issued in the name of Richard M. Meade, though his true name was Richard W. The court said, “ it may well be questioned whether the middle letter of a name forms any part of the Christian name of a party. It is said the law knows only of one Christian name; and there are adjudged cases strongly countenancing, if not fully establishing, that the entire omission of a middle letter is not a misnomer or a variance.” [See also Willes’ R. 559.] These citations are quite sufficient to show, that subscribing the name of the maker of the note David S. is not conclusive that the defendant, David, who had no middle name was not intended. Even conceding that it was prima facie the note of the son, and yet the presumption may be rebutted by proof that the note was in fact made by him as the agent of the defendant, or accepted by the payees as imposing a liability upon the defendant. This point was expressly so ruled in Allen v. Brockway, et al. 17 Wend. Rep. 40. See also, 8 Cow. Rep. 31; 5 Wheat. Rep. 326; 2 Ala. 718; 4 Ala. R. 198.

For the purpose of showing that the note declared on was received as the personal liability of the son, it was competent for the defendant to prove by the record that a suit had been brought thereon, and prosecuted to judgment against the son. Whether this evidence would have been sufficient in itself to establish the fact, or that the holder of the note had elected to consider the son his debtor, we need not inquire. However this may be, it was clearly competent for the plaintiff to show that that suit was prosecuted against the son by mistake, and thus impair or destroy the effect which the record might otherwise have.

In Thompson v. Davenport, 9 B. & C. Rep. 78, it was decided that the principal may be liable, and also the agent, and vice versa, where the principal was not disclosed, so that it could not be inferred that there was not an election. So if á person sells goods, supposing he is dealing with the-principal, but afterwards discovers that the person with whom he dealt is not the principal in the transaction, but merely an agent, he may recover the amount of the principal, though he had debited the agent: Provided, the state of the account between the principal and agent, is not altered to the prejudice of the former. But if the vendor knows that the person he is dealing with is an agent, and who the principal is, and notwithstanding makes the agent his debtor, he cannot, upon the agent’s failure, charge the principal; because, when he had the power to do so, he made his election. [15 East, 62; 4 Taunt. 574; 21 Maine Rep. 308; Story on Ag. 297, 298.]

Though the evidence may have been contradictory as to the fact of David S. Walker’s agency, or as to the credit being given to the defendant, or of the acceptance of the note by the payee, as a promise by him, or of the subsequent ratification of the transaction by the defendant, yet there was certainly testimony directly to these points.

From this view of the law and the evidence, it is perfectly clear that the first charge prayed should have been "given. It merely asked the court to direct the jury, that if they believed the note sued on was given for the price of a barouche which David S. Walker was authorised to purchase for the defehdant, on a credit, that he represented the name signed to it, to be the name of the defendant, and that it was received by the payees as the note of the latter, then in law the defendant was liable to pay it.

The second prayer for instructions, requested the court to instruct the jury, that if David S. W. purchased the barouche for the defendant, as his agent; that the credit was intended to be given, to the defendant, and the note received as his undertaking to pay, under the belief that, he had a middle name, the initial of which was S., that the defendant after-wards received the barouche, and acknowledged the authority of the agent to give a note for the price, then the note would bind the defendant; although the agent may have fraudulently intended to sign his own name : Provided, the payees did not participate in the fraud. This prayer assumed, that in addition to the purchase by the son, as the agent, and the giving and receiving the note as the written promise of the defendant to pay, the jury should be satisfied that, the latter also received the barouche, and acknowledged the authority of the agent to give a note for the amount. The first part of the prayer was confessedly warranted by the evidence, and there was certainly testimony tending to show that the transaction was approved by the defendant. Whether sufficient to convince a jury is quite immaterial — it was. doubtless their duty to consider it, and either party might pray the direction of the court in respect to it. It is objected that the evidence upon this point was, that the defendant had acknowledged the debt for the barouche was just, and that David S. W. had had funds in his hands to pay it. Whether the admission extended to the note was a question of fact, for the solution of the jury — it would be too much to assume, that it referred to the contract merely, independent of the note. It cannot then with propriety be concluded, that the charge asked in respect to the ratification or adoption of the note was abstract, and was rightly denied for that cause.

Where a charge conforms to the law, and is authorized by the evidence adduced, it should be given in the terms in which it is asked, though it may be proper for the court to give additional or explanatory instructions. The error of a refusal cannot be repaired by giving another charge, which, when critically scanned, will be found to lay down substantially the same principle.

What has been said, will sufficiently indicate the error of the circuit court. It remains but to add, that its judgment is reversed, and the cause remanded.