National Bank v. Fassett

42 Vt. 432 | Vt. | 1869

The opinion of the court was delivered by

Barrett, J.

For the purposes of the question presented by the exceptions, it may be assumed that the putting of the defendant’s name on the note as endorser was wholly unauthorized, and that he had no knowledge that his wife had done it till he was informed of it, in the manner as testified by him, on the 22d of May, and that he supposed the money brought to him by his wife in March was furnished to her by the Lumber Company, in payment of his debt against said company.

According to his own testimony, on said 22d day of May the defendant was fully informed that the |300 delivered to him by his wife was obtained from the bank upon that note, with his own name thus put on it by his wife; and having been thus informed, and at the same time knowing that the Lumber Company was in the process of failing, he deliberately resolved to retain the money, and hold it as his own, and to withhold from the bank all knowledge of the facts as to the unauthorized use of his name on the note. The matter thus rested till the 8th day of June, when the noté having fallen due, and been protested, and he then, as endorser being duly notified of such protest, apprised the bank for the first time of the unauthorized use of his name, and intimated his purpose to deny his liability as endorser, but still retained, and continues to retain, that money. Soon thereafter he explicitly denied such liability, and is resisting the enforcement of it in this suit.

The question presented by the exception is not the very common one of estoppel in pais, by reason of the plaintiff having been misled by the silence of the defendant on and after the 22d day of May, and thereby having suffered prejudice or loss in reference to opportunity and means of securing the debt against the Lumber Company; for the plaintiff could not have resorted to a suit upon the note till the 8th of June, when it became due. Yet it may be remarked that if, on the 22d day of May, the defendant had repudiated the act of his wife, and offered back the money to the bank instead of keeping it himself, the evidence tends strongly to show that he might by attachment have secured his original debt against the Lumber Company, especially as the attachment of another creditor, for about f6,000, failed. To what effect these facts might operate by way of estoppel we have no occasion now to suggest, for the question before us involves only the subject of ratification by the defendant of the act of his wife, operated by the facts stated by himself in testifying in the trial of the cause.

We understand that it has become elementary ip the law, that when a party, knowing all the facts appertaining to an act done by another in his name without previous authority, avails himself of the beneficial results of that act, and asserts rights in himself resulting from it, he thereby ratifies such act, and makes it as effectually Ms own as if lie had done it himself, or it had been done in pursuance of full authority conferred for that purpose on the party doing it. This idea is at the bottom of and runs through the entire subject, and a large body of cases of a person being bound by the acts of others done in his name and behalf without authority previously conferred.

. Involved in this doctrine, and constituting one of the moral elements of which the law takes cognizance in giving it practical effect, is the obvious duty of the party, whose name has been thus used and credit pledged, to disavow the act as soon as he shall have been informed of it, and to restore to the other party any thing which may have come to him of value or benefit from such other party, by reason of such unauthorized act, as far as practicable under the circumstances of the case.

In the present case, not only did the defendant not so do, ' but he deliberately retains the money, claiming it as his own. The governing principle is comprehensively stated in 2 Kent Com., 614, 615, 616 : “ where the principal, with knowledge of all the facts, adopts or acquiesces in the acts done under an assumed agency, he cannot be heard afterwards to impeach them, under the pretense that they were done without authority, or even contrary to instructions.” “ When the principal has been informed of what has been done, he must dissent, and give notice of it in reasonable time ; and if he does not, his assent and ratification will be presumed.” There is a jiist application of this doctrine in Hovey v. Blanchard, 13 N. H., 145.

The remaining question is whether the court should have instructed the jury upon the evidence that a ratification was shown. Upon an unquestioned state of facts, whether such facts operate a ratification is a question of law. This is implied in all the cases that are properly submitted to the jury on account of there being doubt and dispute about the facts; for in such cases the court have to tell the jury, if they find such and such facts, they will find a ratification. The true doctrine on this subject is embodied and applied in Bigelow et al. v. Dennison, 23 Vt., 564.

In the present case, on the question of ratification, the plaintiffs had a right to stand on the facts as stated by the defendant himself in Ms testimony on tbe trial. Having received tbe money, we think wbat transpired on tbe 22d of May, and so on continuously down to tbe commencement of this suit, constituted in law a ratification of tbe act of bis wife in putting bis name upon tbe note. There was no dispute or doubt as to bis intention after be was apprized fully on tbe 22 d of May of all tbe facts appertaining to the subject, for be avowed by word and act bis intention to keep the money, and be carried that intention into effect. There was no doubt or question as to reasonable time in which to notify the bank, and do wbat was necessary in order to make an effectual repudiation of the act of bis wife; for be shows that, from tbe first, be bad ample opportunity to do so ; but that be deliberately resolved not to notify the bank, till, on tbe 8th of June, when be received notice of tbe protest, be denied bis liability,-but still retained tbe money realized to him by virtue of the note as being rightfully entitled to it.

We think upon these facts, shown by tbe statements of the defendant in bis testimony, it was tbe right of tbe plaintiffs to have tbe jury told that a ratification was shown. In the court’s declining so to bold and instruct tbe jury, there was error.

Tbe judgment of the county court is reversed, and tbe cause remanded.