Forderer v. Schmidt

154 F. 475 | 9th Cir. | 1907

GILBERT, Circuit Judge,

after stating the case as above, delivered the opinion of the court.

Error is assigned to the instructions given by the court on the subject of the tender. In 2 Parsons on Contracts (9th Ed.) 639, it is said of a tender: “It need not be made by the defendant personally. If made by a third person at his request it is sufficient, and, if made by a stranger without his knowledge or request, it seems that a subsequent assent of the debtor would operate as a ratification and make the tender good.”

The language of the text is supported by reference to Harding v. Davies, 2 C. & P. 78, Read v. Goldring, 2 M. & S. 86, and Kinkaid v. Brunswick, 11 Me. 188. In the case last cited the court said: “It is a well-settled principle of law that a tender may be made as well by an authorized agent as by the debtor himself; and it is also a plain principle that a ratification of an act done without authority is equivalent to a previous authority. No authorities need be cited in support of either of these principles. Admitting that Snow was not authorized to make the tender, still his act in making it has been distinctly ratified and sanctioned by the school district in placing their defense on this tender by Snow. This is an adoption of his act as their own.”

.While the general doctrine is announced in several decisions that a tender by a mere stranger is not valid, and that to make it effectual it must appear that at the time when it was made the person making it had the right, as principal or agent, to tender the payment of the debt, we find no case which holds that the act of a stranger in making the tender may not be rendered valid by subsequent timely ratification by him in whose interest it was made, and the authorities above cited hold to the contrary. While the rule above quoted may not be applicable to all cases, no reason is perceived why it should not apply to a case such as the present one, where the tender was of a simple debt, and was made for the purpose of avoiding forfeiture under a statutory proceeding instituted by one co-tenant against another co-tenant. It could make no difference to Schmidt who paid the debt. The tender did not involve the acquisition of any right, privilege, or property by the person making it, or the surrender of any property held in pledge or otherwise by the person to whom it was made. On principle the case is similar to Bennett v. Hunter, 9 Wall. 326, 19 L.Ed. 672, Tracy v. Irwin, 18 Wall. 549, 21 L.Ed. 786, and Atwood v. Weems, 99 U.S. 183, 25 L.Ed. 471, cases which arose under the act of August 5, 1861, to provide increased revenue on imports, etc., and the act of June 7, 1862, “for the collection of direct taxes in insurrectionary districts in the United States,” in which' it was enacted that the title “of, in and to each and every piece and parcel of land upon which said tax has not been paid as above provided, shall thereupon become forfeited to the United States.” It was insisted that the right of payment of such a tax was limited to the actual owner. The court said: “But to whom did the right to make this payment belong? The obvious answer is, to the owner, either acting in person or through some friend or agent, compensated or uncompensated. The terms of the act are that the owner or owners may pay; and it is familiar law that acts done by one in behalf of another are valid if ratified, either expressly or by implication, and that such ratification will be presumed in furtherance of justice.”

In the light of these authorities, we are of the opinion that the tender of payment on behalf of the plaintiff in error, if ratified by him, was sufficient to relieve his interest in the mining claim from forfeiture, that the court below should have so instructed the jury, and that^ the instruction given was error, for which the judgment must be reversed and the cause remanded for a new trial.