Hayward v. Langmaid, 181 Mass. 426

Hayward v. Langmaid

181 Mass. 426 | Mass. | 1902

Morton, J.

There are two questions in this case; 1st, whether the instruction that was requested, “ that the meaning of ratification in law is the adoption of an act which has been done by one purporting or assuming to act as agent; ” and 2d, whether the motion for a new trial was rightly overruled.

It is evident, we think, that the instruction was understood, and rightly, by the presiding judge to mean that it was neces*429sary to a ratification, that the act should have been done by one who represented or held himself out as an agent in respect to the matter to which it related. But such is not the law. It is necessary in order to a ratification that the act should have been done by one who was in fact acting as an agent but it is not necessary that he should have been understood to be such by the party with whom he was dealing. Sartwell v. Frost, 122 Mass. 184. Ford v. Linehan, 146 Mass. 283. New England Dredging Co. v. Rockport Granite Co. 149 Mass. 351. Schendel v. Stevenson, 153 Mass. 381. The request was therefore properly refused.

We assume in favor of the defendant, without deciding, that the discretion of the presiding judge in granting or denying a motion for a new trial is not an unlimited discretion, but that circumstances may arise under which it may be revised. The general rule is that it is not subject to revision on exception or appeal. Freeman v. Boston, 178 Mass. 403. Coffing v. Dodge, 169 Mass. 459. Behan v. Williams, 123 Mass. 366.

In the present case we see no ground on which it can be held as matter of law that the judge erred in denying the motion. He may have been of the opinion that the defendant had not exercised due diligence. She was a party to the alleged agreement but there was no offer on her part to testify or to produce the other party to it. It would have been extraordinary to grant a new trial under such circumstances because of alleged surprise at the testimony of a witness, and so far as the exceptions show the only witness, whom she called.

Exceptions overruled.