Ferry v. Taylor

• Decision Date: 31 January 1863
• Citation: 33 Mo. 323
• Parties: B. EMMONS FERRY, Defendant in Error, v. JOHN TAYLOR, Plaintiff in Error.
• Court: Missouri Supreme Court

33 Mo. 323

B. EMMONS FERRY, Defendant in Error,

v.JOHN TAYLOR, Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1863.

Error to Cooper Circuit Court.

E. B. Ewing, for plaintiff in error.

I. The instructions given for plaintiff all erroneously assume that there was evidence tending to show that defendant, Taylor, signed the note sued on, or authorized it to be done.

The third and sixth instructions are wrong, because they submit to the jury the question of ratification. Although the jury are to find the facts, if any, constituting ratification, they should not be left to conjecture the legal signification and sense of the term, or the legal effect of such facts -- to draw their own conclusions of law. It was impossible that, under such a charge as this, upon the state of facts before them, the jury could have performed their duty properly, or have done justice to the defendant.

The relation of principal and agent is necessarily implied by the term ratification. (Pittsburg R. R. Co. v. Gazzam, 32 Penn. 347.) The doctrine of ratification only applies where there has been an actual or intended agency. (DeBolle v. Penn. Ins. Co., 4 Whar. 68.) Ratification is only possible when the act is done in the name or for the account of the person by whom it is ratified, and is wholly inapplicable to those acts which a man does on his own account, though they may result in conferring a benefit on others. (2 Am. L. C. 176.) Where the party making the contract had not a shadow of authority to contract for the third person, and did not profess at the time to act for him, the subsequent assent of such third party to be bound as a principal has no operation. (Chit. Con. 212, 213; 3 T. R. 412; Sanderson v. Griffith, 5 B. & C. 909; Vere v. Ashby, 10 B. & C. 298, per Parke; 2 Greenl. Ev., § 68.)

Neither in cases of tort or contract can the principal be made liable, unless the agent at the time of the tort or contract undertake to act for the principal. (1 Pars. Con., p. 47, n. w. & y.) An act done for another 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 tort or contract. (Tindall, C. J., in Wilson v. Turner, 6 Man. & Gran. 46 Eng. Com. L. 241.) The principal is not liable for the torts or negligences of his agent in any matter beyond the scope of his agency, unless he has expressly authorized them to be done, or he has subsequently adopted them for his own use and benefit. (Story Ag., § 456, 455-242, n. 2; 4 Coke Inst. 317.) The same rule applies to contracts where there is a mere assumption of agency.

The principle involved here, as laid down in the foregoing authorities, is, that where there is a mere assumption of agency, or, as in the case at bar, the act is a forgery, and it is sought to make the principal liable, it must appear that the act or contract was for the benefit of the principal, or at least so intended. In other words, that the self-constituted agent must have acted for or on account of the party he assumes to represent, and not for himself; otherwise the agreement to adopt the act would be nudum pactum. It is not sufficient that he merely employs the name of the former when the real design in so using it is to obtain some object or gain a benefit for himself. If the act enures to his own advantage, or is performed with that intent, the principal cannot be made liable by any subsequent sanction of it.

II. The second instruction asked by defendant should have been given, because there was not the least evidence of a signing of the note by Taylor. A supposed recognition of the act afterwards was the only possible theory of the case which was at all plausible for the plaintiff Ferry; and it was upon this theory the instruction was asked.

III. The third instruction asked by defendant was proper, for, if the belief and conduct of Ferry was not induced by acts of Taylor that amounted to an estoppel, then it is immaterial what the former may have supposed concerning Taylor's liability, if he, Taylor, did not, in fact, assume the payment of the note. It is not pretended that this is a case to which the doctrine of estoppel applies. There is no evidence of any conduct or admissions of Taylor upon which Ferry was induced to act which estops and concludes him. The note was taken long before the declarations of Taylor, detailed in the evidence, were made; he was not privy to the transaction; had not authorized the use of his name; and no peculiar relations existed between the parties that could imply such authority, or any assent or acquiescence on his part. How, then, could he become liable to pay the note, unless by actually assuming its payment subsequently, according to the theory of the third instruction?

IV. The fourth and fifth instructions asked by the defendant should have been given. (Pary & Orr v. Bush, 3 Mo. 314; Sparr & Green v. Wellman, 11 Mo. 237; 18 Mo. 178.) The offer to substitute another note, under the circumstances, if by way of compromise, should have been excluded from the consideration of the jury. These instructions were proper after the court had given the charge contained in the third and sixth instructions for the plaintiff.

V. The verdict is contrary to the law and the evidence. It is not pretended that there is any positive recognition or confirmation of the act of Norris by Taylor; there is no acknowledgment of it, or a promise to pay the note; nor are the circumstances in evidence sufficient to raise a presumption of ratification. Where the question of ratification arises between the agent and his principal, the acts and conduct of the principal are construed liberally in favor of the agent, and slight circumstances will sometimes raise a presumption of ratification. But there is no such rule in favor of third persons as against the principal in cases of assumed agency. The supposed assent of Taylor to the use of his name by Norris in the note to Combs was a matter of inference, from the fact of his paying it subsequently to Combs; and even if the jury were satisfied of this fact, a single instance of this kind could not warrant a presumption of authority to sign Taylor's name, or pledge his credit a second time, even to the same party. (Add. Con. 623; Hall et al. v. Huse, 10 Mass. 39.)

When it is sought to bind a principal for acts performed by an agent acting without express authority, on the ground of a previous recognition of similar acts, it is necessary to show that the instrument in question was taken on the faith of such person's recognition. (St. John v. Redmond, 9 Port., Ala., 432; Chit. Bills, 35.)

Ryland & Son and Hayden, for defendant in error.

I. Did the court below give proper instructions in behalf of the plaintiff?

II. Did the court refuse to give proper instructions asked by the defendant?

To the first question we answer affirmatively. The issue was whether the note was the defendant's or not; and the instructions given for plaintiff, and the first instruction for defendant, fairly put the law of the case, under this issue, to the jury, and fairly left the issue to them for their finding. That these instructions are proper, see case of Dow's Ex'r v. Spenny's Ex'r et al., 29 Mo. 386; Fitzpatrick v. School Commissioners, 7 Humph. 224.

The fourth and fifth instructions were properly refused. There were no propositions to compromise in evidence; no offer to compromise. The sending the one note to plaintiff to pay off another note, or to exchange for another note, was a fact capable of proof and proper to be proved. The principle of law concerning admissions of parties made to effect or procure a compromise, which rejects admissions so made, is not involved in this case. (Murray v. Coster, 4 Cow. 635; Hartford Bridge Co. v. Granger, 4 Conn. 142; Cow. & Hill's notes to Phil. Ev., part I., pp. 220-222, note 196; 20 Johns. 576; 1 Greenl., § 192.)

BAY, Judge, delivered the opinion of the court.

This was a suit on a negotiable promissory note for the sum of one thousand dollars, bearing date August 4, 1857, alleged to have been executed by the defendant to the plaintiff.

The defendant in his answer denies having executed the note, and denies that the note is his act. No other issue is made by the pleadings.

The cause was tried by a jury, and judgment was given for the plaintiff for the amount of the note with interest. Defendant in due time filed his motion for a new trial, which being overruled, he brings the cause into this court by writ of error.

Upon the trial, no exceptions were taken to the evidence, and the questions of law presented for our consideration arise upon the instructions given and refused. In reviewing the action of the court below, with reference to those instructions, it is necessary to keep in view the evidence given, which is as follows:

“1. Christopher B. Combs, who testified that in the month of October, A. D. 1857, he had a promissory note, payable to himself, with the name of one William W. Norris and the defendant Taylor to it as promisors; that in said month of October, 1857, and during the agricultural fair then being held near Boonville, in Cooper county, witness heard it rumored that the said William W. Norris had been forging the names of various persons to promissory notes; that his suspicions were aroused in regard to the genuineness of the signature of the defendant Taylor to the note held by witness, and that he presented said note to the defendant, for the purpose of ascertaining whether his signature to the same was genuine or not, on the fair grounds, at the time above stated. Defendant took the note and examined it, and said -- ‘if the signature to the note is not mine, it looks very much like it.’ Then witness said, ‘Mr. Taylor, will you pay it?’ Whereupon the defendant...