14 Wis. 630 | Wis. | 1861
By the Court,
There was no error in refusing to receive the supplemental answer. Admitting that the refusal of the plaintiff to convey after tender of the
Of the questions arising upon the trial the first is, whether the agent Coolbaugh was authorized by the letter of attorney offered in evidence to sell the lands of which the plaintiff was sole owner. We think upon the facts of the case as now presented, that he was not. His agency was special, and the authority conferred distinctly stated. It was a joint letter, being executed by the plaintiff and Clara Ann, his wife. The business to be transacted was that in which they were jointly concerned. The agent was to sell and convey the lots and outlots of which they were possessed in the city of Madison, more particularly those which were conveyed to them, by James Duane Doty as trustee of the Four Lake Company and Moses M. Strong as attorney of the late Stevens J. Mason, for the numbers and description of which reference was made to the records of the deeds in the county of Dane. He was to execute and deliver for them and in their names and behalf, all necessary deeds and other instru
We are next to ascertain the effect of this want of authority upon the rights of the defendant. It is very clear, in the present condition of the case, that the plaintiff was not bound by the contract and that he was at liberty to repudiate it at any time before it had actually receivedjiis sanction. Was the defendant bound ? And if he was not, could the plaintiff, by his sole act of ratification, make the contract obligatory upon him ? We answer both these questions in the negative; The covenants were mutual — those of the defendant for the payment of the money being in consideration
I am well aware that there are dicta and observations to be found in the books, which, if taken literally, would overthrow the doctrine of the cases to which I have referred.— It is said in Lawrence vs. Taylor, 5 Hill, 113, that “such adoptive authority relates back to the time of the transaction, and is deemed in law the same to all purposes as if it had been given before.” And in Newton vs. Bronson, 3 Kern., 594, the court say: “ That a subsequent ratification is equally effectual as an original authority, is well settled.” Such expressions are no doubt of frequent occurrence, and although they display too much carelessness in the use of language, yet if they are understood as applicable only to the cases in which they occur, they may be considered as a correct statement of the law. The inaccuracy consists in not properly distinguishing between those cases where the subsequent act of ratification is put forth as the foundation of a right infavor of the party who has ratified, and those where it is made the basis of a demand against him. There is a broad and manifest difference between a case in which a party seeks to avapl himself, by subsequent assent, of the unauthorized act of his own agent, in order to enforce a claim against a third person, and the case of a party acquiring an inchoate right against a principal, by an unauthorized act of his agent, to which validity is afterwards given by the assent or recognition of the principal. , Paley on Agency, 192, note. The principal in such case may, by his subsequent assent, bind himself, but if the contract be executory, he cannot bind the other party. The latter may, if he choose, avail himself of such assent against the principal, which if he does, the contract, by virtue of such mutual ratification, becomes mutually obligatory. There are many cases where the acts of parties, though unavailable for their own benefit, may be used against them. It is upon this obvious distinction, I apprehend, that the decisions which I have cited are to be sustained. Lawrence vs. Taylor and Newton vs. Bronson were both actions in which the adverse party claimed rights through the agency of individuals whose acts had
Thus far the question has been considered independently of any controversy which might grow out of the statute of frauds. It is very well known that under the'English statute, and that of New York prior to the revision of 1830, it was generally held that it was sufficient if the contract was signed by the party to he charged, whether buyer or seller, and that mutuality of obligation was unnecessary to the validity of the agreement. The earlier authorities upon the subject are reviewed at length by Chancellor Kent, in Clason vs. Bailey, 14 Johns., 484, and although the doctrine did not meet his approval, he felt himself overborne by the cases. He says: “I have thought, and have often intimated, that the weight of argument was in favor of the construction, that the agreement concerning lands, to be enforced in equity, should be mutually binding, and that the one party ought not to be at liberty to enforce, at his pleasure, an agreement which the other was not entitled to claim. It appears to be settled, that though the plaintiff has signed the agreement, he never can enforce it against the party who has not signed it. The remedy, therefore, in such case, is not mutual. But, notwithstanding the objection, it appears from the review of the cases, that the point is too well settled to be now questioned.” It likewise received the unqualified disapprobation of Lord Redesdale, who condemned it as unfounded in reason and enormously unjust in its consequences. He says (Lawrenson vs. Butler, 1 Sch. & Lef., 13): “ I confess that I have no conception that a court of equity ought to decree a specific performance in a case where nothing has been done in pursuance of the agreement, except where both parties had by the agreement a right to compel a specific performance according to the advantage which it might be supposed they were to derive from it, because oth
The authority of the agent contracting to convey, under sections 8 and 9, need not be in writing, though that of the agent conveying, under section 6, must be. . Lawrence vs. Taylor, and McWhorter vs. McMahon, supra. An authority may as well be conferred by adopting the transaction, when the question arises under the statute of frauds, as under the common law. Lawrence vs. Taylor, supra; Davis vs. Shields, 24 Wend., 325. Whether in a case like the present, where the vendee, at the time of making the contract, relied upon a previous written authority to sell, it would be sufficient to show a previous parol authority, is á question which I do not remember to have seen discussed, and which need-not now be considered. In none of the cases which have fallen under my observation has such a question been Raised.
In the absence of any circumstances tending to induce a belief that the instrument may have been antedated, or that it was not delivered at the time of its date, the da$J of the date may fairly be assumed as the time of delivery. The acknowledgment at a subsequent time, in a case otherwise free from the suspicion of fraud or unfairness, is not perhaps a circumstance of sufficient importance to overcome the ordinary presumption that the instrument was delivered at the time it bears date. If a question of fraud or other serious objection should arise, an explanation of the discrepancy would undoubtedly be required. In this case no such question was made, and it was therefore properly assumed that the letter of attorney was delivered at the time of its date.
No original authority to the agent making the contract having been shown, ’and no evidence offered on the
Ordered accordingly.