Jones v. Horner

• Decision Date: 25 February 1869
• Citation: 60 Pa. 214
• Parties: Jones <I>versus</I> Horner.
• Court: Pennsylvania Supreme Court

Page 214

60 Pa. 214

Jones versus Horner.

Supreme Court of Pennsylvania.

January 12, 1869.

February 25, 1869.

January 12th 1869.

Before THOMPSON, C. J., READ, AGNEW and SHARSWOOD, JJ. WILLIAMS, J., at Nisi Prius

Error to the District Court of Philadelphia: No. 205, to January Term 1868.

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A. M. Burton, for plaintiff in error.—The plaintiff was bound to ascertain the extent of Booth's authority, and the defendant was not bound beyond what he apparently authorized: Story's Agency, §§ 127, 133; Barnard v. Wheeler, 11 Shepley (24 Me.) 412; Gould v. The Norfolk Lead Co., 9 Cush. 338; Hampton v. Matthews, 2 Harris 105; Temple v. Pomroy, 4 Gray (Mass.) 128; White v. Langdon, 30 Vt. (1 Shaw) 599. The sealed instrument of October 24th 1864, being in blank, raised no presumption of authority to Booth: Hatch v. Searles, 3 Sm. & Giff. 152. The act of an agent exceeding his authority is void for the excess: Johnson v. Blasdale, 1 Sm. & Mar. 17; Hammond v. Whitehead, 33 Miss. (4 George) 213; Awde v. Dixon, 6 Exch. 869. The burthen to prove ratification is on the plaintiff: Hill v. Cooley, 10 Wright 261; Simpson v. Stackhouse, 9 Barr 186; Hays v. Lynn, 7 Watts 524; Reading Railroad v. Johnson, 7 W. & S. 317. The act of ratification must be something by which the party relying on it is misled: Doughaday v. Crowell, 2 Stockton (N. J.) 201. The acts of ratification must be with intention to supply the defects in the deficient authority: Decuir v. Lejeune, 15 La. An. 569; Harris v. Miner, 28 Ills. 135; Loomis v. Simpson, 13 Iowa 532; Robinson v. Chapline, 9 Id. 95; Moore v. Patterson, 4 Casey 505; Horton v. Towns, 6 Leigh's R. 47; Crocker v. Appleton 25 Me. 131; Commonwealth Bank v. Warren, 15 N. Y. (1 Smith) 577. Positive fraud cannot be confirmed: Duncan v. McCullough, 4 S. & R. 487; Butler v. Haskell, 4 Desaus. 707. There should be affirmative evidence that the defendant agreed to pay: King v. Faber, 10 Harris 25. Want of knowledge of the defect in the title rebuts the presumption of ratification: McNair v. McLennan, 12 Harris 384; Railroad Co. v. Gazzam, 8 Casey 340; Taber v. Cannon, 8 Metc. 456; Webber v. Williams College, 23 Pick. 352; Stroop v. Ransom, 10 Watts 297; Christy v. Reynolds, 16 S. & R. 258; Roland v. Tiernan, 8 W. & S. 193; Wolbert v. Lucas, 10 Barr 73; Forster v. Gillam, 1 Harris 340. The note was entered into under a mistake of fact as to the title of plaintiff, and the money which was actually paid to plaintiff could be recovered back: Miles v. Stevens, 3 Barr 37; Thomas v. Brady 10 Id. 169; Chitty on Contracts 543, 545; Nicol v. Carr, 11 Casey 383; Miller's Appeal, 6 Id. 492. When two acts are to be done at the same time neither party can recover without showing performance on his part: 2 Greenleaf's Cruise 3, n.; Withers v. Baird, 7 Watts 229; Youngman v. Linn, 2 P. F. Smith 418; Brockenbrough v. Ward, 4 Randolph 352; Roach v. Dickinson, 9 Grat. (Va.) 154; Adams v. Williams, 2 W. & S. 227.

J. M. Pile, for defendant in error.

The opinion of the court was delivered, February 25th 1869, by AGNEW, J.

The 1st assignment of error was not urged, so far as it involved the question of the seal to the note, which the agent testified he executed and delivered under a parol authority. It is conceded by the counsel not to be tenable. The precise point has not been determined in this state, so far as I know, whether an executory contract under seal, made in pursuance of a parol authority, is sufficient to support an action against the principal. The nearest approach is to be found in Baum v. Dubois, 7 Wright 265. That was not the case of a direct action on the sealed instrument, but it was certainly held there the writing was the contract of the principal, and that the seal only was unauthorized. There are a number of cases, however, in which writings under seal, made under a parol authority, have been sustained as the execution of the authority: Dubois's Appeal, 2 Wright 231; Hennessey v. Western Bank, 6 W. & S. 310; Deckard v. Case, 5 Watts 22; Grier v. Hood, 1 Casey 433. See also 1 Am. Lead. Cas. (4th ed.) 605 to 612. A seal in this state has no solemnity of form, being made by the mere gyration of a pen, and often affixed by persons ignorant of its legal effect. Still it impresses qualities upon the instrument which an agent by parol cannot impart. An action of covenant to which the Statute of Limitations interposes no bar, certainly cannot be maintained against the principal upon a writing thus sealed. But why may not assumpsit be maintained, disregarding the seal as a mere excess? There is no good reason why the principal should be wholly discharged because of the ignorant use of the seal. The tendency of modern decisions is this way, though in this case the concession of the counsel renders this decision unnecessary.

The authority of Mr. Booth to make the note for the defendant was fairly left to the jury and found by them, and we think there was sufficient evidence of authority and also of ratification to be submitted. If the finding was contrary to the weight of the evidence, and this it was the tendency of the argument before us to prove, the error could be corrected only upon a rule for a new trial.

The remaining question is,...