Masters v. Walker

174 P. 1164 | Or. | 1918

BURNETT, J. —

1. From an exceedingly garrulous bill of exceptions we discern that substantially but two questions are presented by the record. The plaintiff offered to show for one thing that his actual employment took place through an agreement with an attorney previously employed by the defendant in the federal litigation mentioned and that the latter ratified this employment and agreed to pay for the same. He also endeavored to prove that the attorney who employed him was the general agent of the defendant and as such acted for the defendant in the matter of engaging the plaintiff’s services as stated in the complaint. These offers were rejected. The ruling of the court on the first contention seems to have been based on the theory that if the plaintiff here would rely upon a ratification of an act which was unauthorized at the time it was performed, the ratification must be pleaded.

“By ratifying the unauthorized act, the principal assumes and adopts it as his own, and as has been seen, this adoption extends to the whole of the act, — it goes back to its inception and continues to its legitimate end. * * ‘The ratification operated upon the act ratified precisely as though the authority to do the act had been previously given, except where the rights of third parties have intervened between the act and the ratification.’ And this rule applies as well to corporations as to individuals”: 1 Mechem on Agency (2 ed.), § 483. See, also, 2 C. J. 467, 516.

The essence of the rule is that when the supposed principal, with knowledge of all the facts, ratifies a transaction which was unauthorized when performed, he adopts the act as of the time of its performance and makes it his own, as much as if he had been then and there personally present and executed it himself.

2. It is good pleading to allege that an act was done by the defendant, and it is competent to prove that averment by showing that the act was really done by an agent of the defendant thereunto duly authorized, or that it was afterward ratified by the defendant: Kitchen v. Holmes, 42 Or. 252 (70 Pac. 830); Levy v. Nevada, C. & O. Ry., 81 Or. 673 (160 Pac. 808, L. R. A. 1917B, 564); Slevin v. Reppy, 46 Mo. 606; Hoosac Mining & Milling Co. v. Donat, 10 Colo. 529 (16 Pac. 157); Long v. Osborn, 91 Iowa, 160, 163 (59 N. W. 14); Hubbard v. Williamstown, 61 Wis. 397 (21 N. W. 295); Moore v. McClure, 8 Hun, 557; Hand v. Society for Savings, 18 N. Y. Supp. 157; Smith v. Des Moines Nat. Bank, 107 Iowa, 620 (78 N. W. 238); 2 C. J. 904.

3. The ultimate question to be determined is whether the transaction is that of the defendant within the meaning of the law. One seeking to establish the affirmative of that proposition should allege it directly and not endeavor to arrive at the result by circumlocution or argumentative statement. The allegation may he proved by direct testimony or by evidence of facts from which the law draws the conclusion that the act was that -of the principal. It savors strongly of pleading evidence or at least redundancy for the pleader to state that the business under consideration was done by an agent or that, having been transacted without the defendant’s sanction, it was afterward ratified by him.

4-6. It was proper also for the plaintiff to show that the defendant’s general agent employed him in her behalf, it being for the court to decide from the facts shown whether the act was within the scope of the agent’s authority. Of course, if there should be a dispute' about the existence or extent of the agency, there would be presented a mixed question of 'law and fact which should be submitted to the jury under suitable instructions as to the law.

If the defendant employed the plaintiff as her attorney and he performed the services for which he was engaged, an indebtedness arose in favor of the plaintiff which was the proper subject of an accounting between them.

The plaintiff was wrongfully deprived of his right to prove his case. The judgment is reversed for further proceedings. Reversed.

McBride, C. J., and Benson and Harris, JJ., concur.