Dwyer v. Fuller
| Decision Date | 09 May 1887 |
| Citation | 11 N.E. 686,144 Mass. 420 |
| Parties | DWYER v. FULLER. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
M.H. Swett, for plaintiff.
Upon the evidence the jury could have found that the stock in question belonged to the plaintiff; that Richard J. Dwyer was not the agent of the plaintiff, and was not authorized to order the sale of said stock, and the appropriation of the proceeds to his own account; that the defendant knew all this, and assisted Richard in such unauthorized sale, and misappropriation of the proceeds.
The ordinary cases of ratification arise where a third person deals with a party in good faith, supposing he is an agent authorized by the principal, and the principal is held to ratify the unauthorized act if he accepts the benefit of it or if he pursues designedly, after knowledge of it, such a course of conduct towards the third person as that the third person acts upon it, and is prejudiced thereby. None of these elements are present in this case.
It is contended that the silence and conduct of the plaintiff after knowledge of the unauthorized acts, might amount to a ratification operating by way of estoppel. Then the court erred in not instructing the jury that the silence or acts relied upon must have been accompanied by a design that they should be acted upon; that the defendant did act upon them and was prejudiced thereby. Carroll v. Manchester & L.R.R., 111 Mass. 1; Plumer v. Lord, 9 Allen, 455; Turner v. Coffin, 12 Allen, 401.
The mere silence or failure of plaintiff to repudiate the unauthorized acts, and to demand the stock or its proceeds would not authorize the inference that the plaintiff ratified such acts. Thayer v. White, 12 Metc. 343; Bragg v. Boston & W.R.R., 9 Allen, 54.
The evidence of receipt offered by defendant should have been excluded, as there was no evidence that it was in the handwriting of the defendant, or of his agent, or that it was delivered by them, or either of them. No connection of defendant was shown with this receipt.
The jury should have been instructed that the acts and conduct of plaintiff relied upon would not authorize the inference of a ratification, unless the plaintiff had known of these acts in time to make a repudiation of them of some avail. Amory v. Hamilton, 17 Mass. 102.
S.D. Warren, Jr., and L.D. Brandeis, for defendant.
The evidence of the contents of the receipt was admissible. Com. v. Cooper, 130 Mass. 285; Jennings v. Whitehead, 138 Mass. 594.
Nothing is open to the plaintiff under the general exception to the rulings on the question of ratification. The plaintiff presented no requests for rulings. He made no specific objection to the rulings given. He merely excepted generally to the instructions upon the point of ratification. A general objection to all the instructions upon one branch of the case, like a general exception to the whole charge, is nugatory. See Curry v. Porter, 125 Mass. 94; McMahon v. O'Connor, 137 Mass. 216; Jackman v. Arlington Mills, Id. 277, 285; Wright v. Wright, 139 Mass. 177. The rule is the same, though the bill of exceptions purports to recite all the evidence. Armour v. Pecker, 123 Mass. 143, 145; Franklin Savings Inst. v. Reed, 125 Mass. 365, 367; Stone v. Simonds, 131 Mass. 457, 463; Petty v. Allen, 134 Mass. 265; Talbot v. Taunton, 140 Mass. 552, 555, 5 N.E. 616. The verdict of a jury will not be set aside on exception for a misdirection or erroneous ruling, to which the objecting party omitted to call the attention of the presiding judge. Com. v. Hogan, 11 Gray, 312; Hamilton Woollen Co. v. Goodrich, 6 Allen, 191, 200; Com. v. Stahl, 7 Allen, 303, 304; Bond v. Bond, Id. 1, 6; Franklin Sav. Inst. v. Reed, 125 Mass. 365; Bell v. Walsh, 130 Mass. 163, 166; Smith v. Colby, 136 Mass. 562. The fact that the bill of exceptions purports to recite all the evidence does not prevent the application of the rule, for it has its reason in the fairness due to the presiding judge and to the opposing party. Compare C. ALLEN, J., in Hatch v. Kenny, 141 Mass. 171, 173, 5 N.E. 527.
The rulings on the point of ratification were correct. The question whether the plaintiff ratified the sale and appropriation was properly submitted to the jury upon the evidence under the instructions given. A ratification may arise by implication from conduct; it is not necessary that there should be direct confirmation. Story, Ag. § 253; Charles River Bank v. Davis, 100 Mass. 413. If the evidence relied upon to prove a ratification is conflicting, and may admit of different interpretations, the question of ratification must be determined by the jury. Story, Ag. § 253; Hortons v. Townes, 6 Leigh, 47, 60; Burr v. Howard, 58 Ga. 564. Acquiescence in the unauthorized act, after knowledge thereof, amounts to a ratification, and evidence of such acquiescence may be supplied either (a) by conduct inconsistent with an intention to disavow it, ( Clement v. Jones, 12 Mass. 59; Greenfield Bank v. Crafts, 4 Allen, 447; Merrill v. Parker, 112 Mass. 250, 253;) (b) by mere silence, or failure to disavow it within a reasonable time, (Brigham v. Peters, 1 Gray, 139, 147; Lyndeborough Glass Co. v. Massachusetts Glass Co., 111 Mass. 315; Matthews v. Fuller, 123 Mass. 446; Law v. Cross, 1 Black, 533, 539; Bank of Orleans v. Fassett, 42 Vt. 432, 439; Walworth Co. Bank v. Farmers' L. & T. Co., 16 Wis. 629-633.) See Erick v. Johnson, 6 Mass. 193, 196. Such evidence is particularly strong when failure to disavow the act might operate to the prejudice of innocent parties. Maddux v. Bevan, 39 Md. 485, 497; Saveland v. Green, 40 Wis. 431, 438. Mere silence is evidence, even where the act was that of an intermeddler. Philadelphia, W. & B.R. Co. v. Cowell, 28 Pa.St. 329. The bill of exceptions presents ample evidence from which acquiescence and ratification could be inferred. There was not simply silence or omission to disavow the act for nearly three years after obtaining knowledge of it. There was silence under circumstances which admitted of no reasonable explanation except that the unauthorized act was acquiesced in.
OPINION
At the trial there was evidence on the part of the plaintiff tending to show that he deposited with the defendant certain shares of stock, and that the defendant sold them, and applied the...
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