The assignments of error urged by appellant may be stated thus: 1. The court should have granted a nonsuit on appellant’s motion because the complaint was on
We can make little or no headway in determining whether the facts found by the jury are sufficient to render appellant liable by reviewing such authorities as Day v. Burnham, 36 Vt. 31; Conrad v. Abbott, 132 Mass. 330; and Allen v. Aldrich, 29 N. H. 63, cited to our attention by counsel for respondent. They are all cases where the wife purchased necessaries on her husband’s credit. Here it was properly held that the property purchased was not necessaries, and the question of whether the purchase was made on the credit of the husband or on the credit of the wife was held by the learned court to be immaterial. The subject dealt with in Conrad v. Abbott, supra, is well indicated in the following language of the syllabus:
“A promise by a husband to pay for necessaries which have been furnished to his wife upon his credit, if they are such as he is bound to supply her with, . . . amounts to a ratification of her contract, upon which an action may be maintained, even if she had no previous authority to purchase them.”
The decision went upon the ground, which all such do, that the wife in making the purchase was presumed to assume authority to act for her husband. The court said:
“The act of one assuming to be an agent, but done without authority, may be ratified, and in such ease the liability of the principal arises upon the ratification.”
As to the importance of the omitted elements, in IVtechem on Agency at § 121, the rule is stated thus:
“The act ratified must also have been done by the assumed agent as agent and in behalf of the principal. If the act was done by him as principal and on his own account, it cannot thus be ratified.”
The judicial authorities are in harmony therewith. In Meiners v. Munson, 53 Ind. 138, cited by appellant, we have a good example. There the court said:
“The rule of law is, that a ratification can only be effectual between the parties, when the act is done by the agent avowedly for or on account of the principal, and not when it is done for or on account of the agent himself, or of some third’ person.”
And further, citing from Chitty on Contracts (11th Am. fid.) 293:
“But where the party making the contract had no authority to contract for the third person, and did not profess, at.*427 the time, to act for Mm, it seems that the subsequent assent of such third party, to be bound as principal, has no operation.”
And further, citing from 1 Parsons on Contracts (6th ed.) 346, where the author was speaking of a situation similar to' that before us,
“We may add that such a case would perhaps fall within the rule, that no act is capable of ratification by the principal which was not performed by the agent as agent, and in behalf of the principal.”
To the same effect are Saltmarsh v. Candia, 51 N. H. 71, 76; Wilson v. Hages, 40 Minn. 531, 42 N. W. 467; Mitchell v. Minnesota F. Asso. 48 Minn. 278, 51 N. W. 608; Schreyer v. Turner F. Co. 29 Oreg. 1, 43 Pac, 719; Minnich v. Darling, 8 Ind. App. 539, 36 N. E. 173.
The argument advanced that appellant could not become liable in the absence of an express promise, based on a new and independent consideration, in any event, is answered by the rule that the liability of one who ratifies as principal the unauthorized act of another, who assumed to contract in his behalf, goes upon the ground of adoption of the unauthorized act, and therefore requires no consideration. So, if appellant’s wife, assuming to act as his agent, ordered the books from respondent and received them, and he subsequently, with knowledge of the facts, adopted her act as his own by promising to pay for the property, or by accepting the benefit of the transaction, or in any other way, he thereby became liable for the indebtedness.
Prom the foregoing it seems plain that the question of whether appellant’s wife signed his name to the contract, and the one as to whether she assumed to act for him, were material on the question of his liability. There was some evidence that she signed her own name to the paper, and we must assume that other evidence on that line, which appellant asked leave to present after both sides had rested, would have been offered and received had the court not held that, if she
What has been said seems to govern all the questions raised which need attention. The motion for a nonsuit upon the ground that the signature of the appellant was put in issue and no proof was produced to show that he did sign the paper, but on the contrary the evidence was to the effect that his wife signed her own name thereto and that subsequently the signature was fraudulently changed, was properly overruled because, as to whether the signature was changed, the evidence was in conflict, and as to whether the signature should be regarded as appellant’s turned on the question of ratification. If the wife signed appellant’s name, assuming to act as his agent, and he afterwards adopted her act, the contract became, in legal effect, his from the beginning and was enforceable as such. It follows that the claim that a recovery based on ratification was a departure from the one set forth in the complaint cannot be approved.
The claim that, assuming for the purposes of the case the circumstances'were such that a promise on the part of appellant to pay for the books would have ratified the act of the wife as his, there was no proof of such a promise, the court properly ruled in respondent’s favor. The testimony was to the effect that appellant’s statement, that if his wife ordered the goods he would pay for them at the rate of about $10 a month, was assented to, as the jury were warranted in concluding. The person who represented plaintiff testified that he said to appellant he thought the condition of payment suggested would do, and in subsequent communications in respect to the matter there was no change as to such assent.
So the case comes down to this: The trial' court erred in not submitting to the jury in some proper way whether appellant’s wife assumed to act as agent for her husband or
By the Court. — Tbe judgment is reversed, and tbe cause remanded for a new trial.