146 Pa. 144 | Pennsylvania Court of Common Pleas, Washington County | 1892
Opinion,
The receipt by plaintiff’s husband expressed the fact of a sale, by the acknowledgment of receipt of part of the purchase money, and fixed the time and amount of the remaining payment. All the other terms of the contract, including the identification of the subject matter, were shown by the original agreement of Donaldson, on which the receipt was indorsed. The two papers thus constituted one instrument, which, so far as appears on its face, was a sufficient memorandum in writing to satisfy the statute of frauds. Its defect in that regard was dehors the instrument itself, and lay in the want of written authority in the husband to act as agent for his wife. Had his authority been in writing at that time, even though on a separate paper, no question of the validity and binding force of the contract could have arisen. His action as agent was, however, formally ratified and adopted by the wife, in writing, before any rescission or change of position in any way by the defendant.
The exact question before us, therefore, is whether such ratification by the wife, of its own force, perfected and validated the agent’s original contract, or whether it still required acceptance by the grantee.
No case precisely in point has been found, and we are left to determine the question on general principles. It is conceded that a deed tendered by the vendor, but refused by the vendee, will not validate a parol contract, and it is argued that the present case stands upon the same footing. But I apprehend that the rule in question results from the common-law requirement that every writing must be accepted before it becomes a contract. It is sometimes said, however, that the reason a deed tendered is ineffectual under the statute, is that until such
The cases cited by appellee, though not decisions on the precise point, tend to sustain the conclusion here reached. Maclean v. Dunn, 4 Bing. 722, was under the English statute, which requires only that the agent should be “ lawfully authorized ; ” but the opinion of Lord Chief Justice Best illustrates the effectiveness of ratification as equivalent to antecedent authority. In our own case of McDowell v. Simpson, 3 W. 129, the opinion of Kennedy, J., is clearly expressed that a lease by an agent in excess of any authority, either parol or written, may be ratified, but the ratification to create a valid term for seven years must be in writing. So far as the case goes, it is directly in line with our present conclusion, and it has never been questioned, but on the contrary is cited with approval in Dumn v. Rothermel, 112 Pa. 272.
This disposes of the main question in the case, and with it the exceptions relating to the measure of damages fall. The plaintiff recovered only the contract price to which she was entitled.
The only remaining assignment that need be specially noticed is the fourteenth, which is to the refusal of defendant’s point that plaintiff, having allowed her estate or interest in the land to lapse or become forfeited by non-payment to Donaldson, was disabled from suing in affirmance of the contract. If any estate remained in plaintiff, the law would certainly require her to convey it to defendent upon payment of the verdict. But her estate had expired, not through any fault-of hers, but by default of payment to Donaldson, which it was not for her, but for defendant, as purchaser and assignee of her option, to make. It was precisely analogous to a purchase by defendant
Judgment affirmed.