Henry Christian Building & Loan Ass'n v. Walton, Appeal, No. 11

Appeal, No. 11 | Pa. | May 10, 1897

Opinion by

Mr. Justice Fell,

The distinction between the power to ratify acts void because of a fraud affecting individual interests only and the power to ratify acts which involve a public wrong has been carefully defined and preserved in our decisions. The right to avoid a contract on the ground of fraud is a privilege given to the injured party for his own protection, and it maybe waived; but he cannot give validity to an illegal contract. The earlier cases which held that all contracts vitiated by fraud are insusceptible of confirmation are in effect overruled by Pearsoll v. Chapin, 44 Pa. 9" court="Pa." date_filed="1863-01-05" href="https://app.midpage.ai/document/pearsoll-v-chapin-6231896?utm_source=webapp" opinion_id="6231896">44 Pa. 9, and Negley v. Lindsay, 67 Pa. 217" court="Pa." date_filed="1871-01-16" href="https://app.midpage.ai/document/negley-v-lindsay-6234033?utm_source=webapp" opinion_id="6234033">67 Pa. 217. The distinction between the cases pointed out in the opinions in Shisler v. Vandike, 92 Pa. 447" court="Pa." date_filed="1880-01-26" href="https://app.midpage.ai/document/shisler-v-vandike-6236405?utm_source=webapp" opinion_id="6236405">92 Pa. 447, and Lyon v. Phillips, 106 Pa. 57" court="Pa." date_filed="1884-04-07" href="https://app.midpage.ai/document/lyon-ex-rel-first-national-bank-v-phillips-6237732?utm_source=webapp" opinion_id="6237732">106 Pa. 57, is this: where the transaction is contrary to good faith and the fraud affects individual interests only, ratification is allowed; but where the fraud is of such a character as to involve a crime the adjustment of which is forbidden by public policy, the ratification of the act from which it springs is not permitted. Forgery does not admit of ratification. A forger does not act on behalf of, nor profess to represent, the person whose handwriting he counterfeits, and the subsequent adoption of the instrument cannot supply the authority which the forger did not profess to have. “ A forged bond or note obviously wants the essentials of a contract because the intention is not to bring the minds of the obliger and obligee together, but to practice a fraud on both.” Hare on Contracts, p. 285.

All of the assignments of- error which were insisted upon at the argument relate to the instruction given to the jury that if the mortgage upon which the action was founded was a forgery there could be no ratification of it, and that no act of the defendant thereafter could make it binding upon him. There can be no doubt of the correctness of the first part of this instruction, and in view of the evidence the whole of the instruction was free from error. Magee, who committed the fraud, was the accredited agent of the building association, and represented it in the preparation of the mortgage. He may have represented the defendant in other matters, but there was not the slightest evidence of his agency for the purpose of executing the mortgage. Nor was there evidence of any act of the defendant upon which to base an equitable estoppel. The attempt to bring the case within the principle of the decision in Garrett v. Gonter, 42 Pa. 143" court="Pa." date_filed="1862-03-10" href="https://app.midpage.ai/document/garrett-v-gonter-6231742?utm_source=webapp" opinion_id="6231742">42 Pa. 143, that a deed or contract executed by a professed agent acting under a pretended authority may be confirmed, failed for want of proof.

The judgment is affirmed.