Russo v. Maresca

43 A. 552 | Conn. | 1899

The reasons of appeal based upon the refusal of the court to correct the finding, may be laid out of the case. They are all founded upon the action of the trial court in finding or in refusing to find certain facts upon conflicting evidence. Under such circumstances the finding as made must stand. Atwater v. Morning News Co., 67 Conn. 504;Thresher v. Dyer, 69 id. 404; Hygeia Distilled WaterCo. v. Hygeia Ice Co., 70 id. 516.

In the court below it seems to have been assumed by all concerned that the article complained of constituted a libel, and for the purposes of the present discussion this assumption will be regarded as correct. The important question in the case is whether or not the defendant is responsible for libel. Upon the facts found, the plaintiff claimed, in effect, (1) that the defendant, by his conduct before the publication of the libel, had so authorized or participated in its publication as to be responsible for it; (2) that by his conduct after publication he had become responsible for it by ratification.

The finding of the court is conclusive against the first claim. Upon this part of the case it must be remembered that the person who wrote and the person who published the libel were, in doing these things, the agents, not of the defendant, but of the Society Concordia. The finding, based so far as appears upon competent and sufficient evidence, is to the effect that the defendant did not in any way authorize nor take part in the preparation or publication of the libel. The society, of which the defendant was president, at a regular meeting over which he presided, voted to cause an answer to a certain newspaper article to be published in a designated newspaper, and to pay for such publication the sum of $5, which was then appropriated for that purpose, and that one of its designated members should write the answer. At this time the answer had not been prepared, and no one contemplated that it was to contain any improper or libelous matter. Immediately after the meeting the defendant, in company with other members of the society, saw the editor of the newspaper in which the answer was to be printed, and informed him of the action of the meeting. These two acts, namely, presiding at said meeting, and informing the editor of the action of the meeting, comprise all that the defendant did prior to the publication of the libel.

The claim of the plaintiff on this part of the case seems to be that these two things being true, then as matter of law the defendant authorized and participated in the publication of the libel. This claim is not well founded. The court has properly found as matter of fact that the defendant had no share in writing the answer, was not consulted about it, had no knowledge of its contents, and no expectation that it was to contain libelous matter or any attack upon the plaintiff. This being so, the two further facts found as aforesaid do not of themselves and as matter of law show that the defendant authorized or participated in the publication of the libel.

After the libel was published, and after the defendant had full knowledge of its nature and character, he, as president of the society, with others of its officers, signed an order upon the treasurer of the society in payment for the publication of the libel. The plaintiff claimed that this act amounted in law to a ratification on the part of the defendant, and made him responsible for the publication of the libel; and the remaining question in the case is whether this claim is well founded.

Where one person does any act on behalf of another person, the subsequent ratification by such other person of such act is in law equivalent to his having previously authorized it. That the principle of ratification applies to torts, as well as to contracts and other acts and transactions, is well settled; the general rule being that the principal may ratify any act which he could have authorized. "An act done, foranother, by a person, not assuming to act for himself, but for such other person, though without any precedent authority whatever, becomes the act of the principal, if subsequently ratified by him. . . . In that case the principal is bound by the act, whether it be for his detriment or his advantage, and whether it be founded on a tort or a contract, to the same extent as by, and with all the consequences which follow from, the same act done by his previous authority." Wilson v.Tumman, 6 M. G. 236, 242; Hilbery v. Hatton, 2 H. C. 822; Dempsey v. Chambers, 154 Mass. 330; Morehouse v.Northrop, 33 Conn. 380, 389. But an act or transaction can only be ratified by the person on whose behalf it was assumed to be done or entered into. If A assumes to do an act on his own behalf, or on behalf of B, the act cannot be ratified by C. The rule is stated by LORD COKE in the 4th inst., 317, as follows: "He that receiveth a trespasser and agreeth to a trespass after it be done, is no trespasser, unless the trespass was done to his use, or for his benefit, and then his agreement subsequent amounteth to a commandment, for in that case, omnisratihabitio retrotrahitur et mandato oequiparatur." WhereA knowingly received from B a chattel which B had wrongfully seized, and A afterwards refused to give it up, it was held that A did not thereby become a joint trespasser with B unless the chattel was seized to A's use. A in doing what he did may have committed another tort, but did not make himself liable for B's tort. Wilson v. Barker, 4 B. Ad. 614. Where a colonel of a volunteer corps made a contract professedly on behalf of the corps, both he and the other contracting party erroneously thinking that the corps as an entity might be bound, it was held that the contract could not be ratified by individual members of the corps, because it was not made on their behalf as individuals. Jones v. Hope, 3 T. L. R. 247, note. See also, to the same effect: Wilson v. Tumman,supra; Hamlin v. Sears, 82 N.Y. 327; Western Pub.House v. Dist. Township of Rock, 84 Iowa 101; Richardson v. Payne, 114 Mass. 429; Smith v. Lozo, 42 Mich. 6; Grund v. Van Vleck, 69 Ill. 478; Cooley on Torts, 127. The well settled rule then is that if A professes to act for B in what he does, C cannot by an attempted ratification take advantage of the act done, nor can he ratify it so as to become liable on it.

Applying this rule in the case at bar, the defendant could not ratify the act of Dr. D'Elia in preparing the libel, nor of the editor in publishing it. In what they did neither of them acted on behalf of the defendant, nor did they profess to do so. In all they did concerning the libel they acted and professed to act only for the Concordia Society. If what they did had resulted in great benefit to the society, it is clear that the defendant could not by any attempted ratification have taken that benefit to himself; and it is equally clear that he cannot by what he did make himself liable for the burden which their act may have cast upon the society and themselves.

There is no error.

In this opinion the other judges concurred.