La Grande National Bank v. Blum
41 P. 659
Or.
1895
Check Treatment

Opinion by

Mr. Chief Justice Bean.

1. It is contended that the court erred in refusing to direct a verdict in favor of plaintiff at the close of the testimony, on the ground that the evidence for the defendant showed that the agreement set up in the answer was made with the cashier of plaintiff without its authority. It is unnecessary for us to enter into an examination of the power, duty, and authority of the cashier of a bank, to ascertain whether the alleged agreement or contract set up in the answer was within the scope of his agency; for the plaintiff, by bringing this action on the note received by the cashier under such contract, has, so far as this proceeding is concerned, ratified the entire contract. No rule of law is more fundamental than if the principal elects to ratify any part of the unauthorized act of an agent he must ratify the whole. He cannot accept that part which is favorable to himself and repudiate the remainder. As said by Mr. Justice Story, “The principal cannot, of his own mere authority, ratify a transaction in part, and repudiate it as to the rest. He must either adopt the whole or none”: Story on Agency, § 250. And “from this maxim,” says Chief Justice Smith, “re-*218suits a rule of universal application, that where a contract has been entered into by one man as agent of another, the person on whose behalf it has been made ‘cannot take the benefit of it without bearing its burdens. The contract must be performed in its integrity ’ ”: Rudasill v. Falls, 92 N. C. 222. Indeed, reason as well as authority is all one way on this, question: Mechem on Agency, § 130; Coleman v. Stark, 1 Or. 116; Eberts v. Selover, 44 Mich. 519 (38 Am. Rep. 278.); McClure v. Briggs, 58 Vt. 82 (56 Am. Rep. 557, 2 Atl. 583). Now, in this ease, if the cashier of the bank exceeded his authority in making with the defendant the contract set up in the answer, and in accepting the note in suit, the plaintiff was not bound thereby, but it was bound to take the contract in its entirety or not to recognize it at all. It cannot affirm that part of his act which is of advantage to it and repudiate the rest.

2. It is next contended that the court erred in overruling plaintiff’s motion to suppress Blum’s deposition, and in allowing the same to be read in evidence on the trial. The ground of the objection is that there is no sufficient proof of service of notice of the application for a commission to take such testimony. The notice was served by the marshal of the town of La Grande, and the proof of service is made by his certificate, while the claim for plaintiff is that it should have been made by his affidavit. Now, by section 527 of Hill’s Code, the marshal was authorized to serve the. notice and make the proof of such service in the same manner as he is empowered by law to do in case of the service of a summons; and section 61 provides that the proof of service of a summons by a marshal shall be by his certificate, and therefore the service in question is sufficient.

3. Error is also assigned on the refusal of the trial court to give a series of some nine instructions embody*219ing abstract propositions of law concerning tbe legal liability of an indorser of a promissory note. These instructions could only become material in this case on the theory of the plaintiff that the note in suit was given by the defendants in discharge of the liability of Sommer and Blum as indorsers of the Ramsey note, and was therefore supported by a sufficient consideration; but the Court in its general charge concisely presented the same idea by instructing the jury that “if the note was given for the purpose of taking up the Ramsey notes, that would be a sufficient consideration, and your verdict should be for plaintiff. ” This was all plaintiff sought to accomplish by the abstract propositions of law submitted in the form of instructions, and was certainly simpler and more easily comprehended by the jury.

It was also claimed that the alleged agreement was an attempt to vary by parol the terms of a written contract. That question was presented and decided on the former appeal in this case, 26 Or. 49 (37 Pac. 48), and requires no further notice at this time. There are some other assignments of error in the notice of appeal, but they are without merit, and the judgment must be affirmed.

Affirmed.