The Effect of Ratification As Between The Principal and The Other Party

The Effect of Ratification as between the Principal and the Other Party
Author(s): Floyd R. Mechem

Source: Michigan Law Review, Vol. 4, No. 4 (Feb., 1906), pp. 269-283
Published by: The Michigan Law Review Association
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THE EFFECT OF RATIFICATION AS BETWEEN THE
PRINCIPAL AND THE OTHER PARTY*
THE question of the effect of ratification as between the pr

and the other party to the transaction involves two aspe
What are the rights of the other party against the principa
upon the ratification? b. What rights does the principal by h
ratification acquire against the other party to the transaction
fied? Each of these also may be considered from the standpo
actions based upon contract or sounding in tort.
A. OTHER PARTY AGAINST PRINCIPAL.
The aspect presented when the other party is seeking to e

rights against, the principal based upon his ratification
unauthorized act is the typical one. In this field, the doctri
ratification had its origin. Here it has full sway. The great
ity of the cases upon the subject involve this form of i
general classes of cases are found: those involving some
liability in contract, and those based upon tort.
I. In Contract
Where a contract has been made by one person in the name

another, of a kind that the latter might lawfully make himself,
the only defect is the lack of authority on the part of the per
acting, the subsequent ratification of that contract, while stil
that condition, by the person on whose behalf it was made and
is fully apprised of the facts, operates to cure that defect and
establish the contract as his contract as though he had authoriz
in the first instance. From this time on, he is subject to all
obligations that pertain to the transaction'in the same manner
to the same extent that he w,ould be had the contract been made
originally by him in person, or by his express authority. The
other party therefore may demand and enforce on the part of the
principal the full performance of the contract entered into bv his
agent.' If the contract of the agent was tainted or procured by
fraud, the principal by ratification assumes ordinarily responsibil-
*This article has been adapted from the forthcoming second edition of the writer's
treatise on the Law of Agency-a fact which may serve to explain some peculiarities of
form.
1 No attempt is here made to gather together the cases upon this subject. They will be
found in any of the text books upon the law of agency.
270 MICHIGAN LAW REVIEW
ity for the fraud.2 Statements of admissions made, or know

possessed, by the agent which would charge the principal
agent had been previously authorized, will charge him aft
relation has been established by ratification.3 It is unnecessa
cite instances of this. Whatever may be said of the obligatio
the principal, applies, in general, as well to one who became
by ratification as to one who was such by original agreement.
In order that these results shall ensue, however, it is essen
that the contract shall have been made on account of the per
ratifying, and that he shall have had full knowledge of the
The attempted contract must also still continue, for there mu
something to ratify; it must still be capable of performance o
sides, for clearly the other party cannot call upon the princ
perform when performance of his own correlative obligation
become impossible; and the attitude of the parties must
remained unchanged, for the principal cannot be compel
assume relations to new parties to any greater extent than th
tract originally contemplated.
2. In Tort.
The doctrine of liability by ratification in tort cases is abundant

established. Indeed this seems to have been the earliest form of it
By whatever methods the act be adopted and approved, the prin
cipal becomes liable for the tort as though he had previously direc
it. And it is not always necessary that the approval shall look to t
particular act. In the case of master and servant, for example, i
the approval establishes the relation, the master becomes respon
sible for any torts committed within its scope for which he wou
have been responsible had the relation been regularly created. A
said in such a case,4 "The ratification goes to the relation and esta
lishes it ab initio. The relation existing, the master is responsibl
for torts which he has not ratified specifically just as he is f
those which he has not commanded, and as he may be for th
which he has expressly forbidden."
Ratification in tort cases is a distinct gain to the other party,
giving him a remedy against the principal while not depriving hi
of his remedy against the wrong-doer himself.
B. PRINCIPAL AGAINST THE OTHEER PARTY
Where, however, instead of the ordinary case wherein the th

person is endeavoring to hold the principal on the ground of t
2 See National Life Ins. Co. v. Minch, 53 N. Y. 144; Elwell v. Chamberlin, 31 N. Y
6I1; Smith v. Tracy, 36 N. Y. 79; Lane z. Black, 2I W. Va. 617.
3 Lampkin v. First Nat. Bank, 96 Ga. 487, 23 S. E. 390.
4 Dempsey v. Chambers, 154 Mass. 330, 28 N. E. 279, 26 Am. St. Rep. 249.
THE EFFECT OF RATIFICATION 271
latter's ratification of the act, the principal takes the initia

attempts, by means of his ratification, to build up and enfor
mative rights against the other party, different considerations
Does the doctrine of ratification work both ways? May th
cipal avail himsellf of it for his benefit as well as the other
It will be convenient to discuss this question under the thr
of (I) Contracts, (2) Torts, and (3) Other acts creating r
duties.
I. In Contract
May principal ratify and enforce unauthorized contract?-Whe

the contract made by an unauthorized agent involves mutual acts
performance, the other party who, in reliance upon the princip
ratification, has called upon the latter to perform or who h
accepted performance from him, must also assume responsibility
the duties of performance which the contract imposes upon him
self; and there can be no doubt that the principal who has t
performed or stands ready to perform in pursuance of such
demand, may require the other party to perform on his part.5
But where acts are to be done tfpon but one side only and tha
the other side, or where the acts first due are those of the oth
party, or where acts of performance are contemporaneously du
may the assumed principal who deems the contract advantageou
to himself voluntarily come forward, declare his approval, prom
or tender performance on his side, as the contract may require,
insist upon performance by the other party? If so, within wha
time and subject to what conditions?
Before the principal has acted, the matter stands in this cond
tion: Here is what was intended to be and what purports to
not an option or an offer, but a contract between parties. One
these parties-the principal-is not bound by it, or, at least, he m
repudiate all liability. Is the other party bound? What is th
consideration for his promises? Where is the mutuality? May h
withdraw? If he is not then bound, may the principal approve
contract and, without any further act or assent on the part of t
other, hold the latter to its performance? If the other part
before the principal has acted, discovers the lack of authority a
expressly dissents, may he still be held if the principal is willing
ratify ?
Or, again, suppose that, before the principal has intervened, the
other party and the agent have consented to undo what has been
done; may the principal nevertheless ratify and enforce the contract?
5Soames v. Spencer, i D. & R. 32; Hammond v. Hannin, 21 Mich. 374, 4 Am. Rep.
490; Andrews v,. Aetna L. Ins. Co., 92 N. Y. 596.
These questions have recently aroused much interesting di

sion,6 though the cases which are directly in point are compar
few.
It will conduce to convenience to dispose of the question last sug-
gested first.
If agent and other party have previously consented to cancel the
contract.-Before the principal has intervened to ratify the contract,
may the agent and the other party consent to cancel it in such wise
as to prevent subsequent ratification? If the contract were an
authorized one, of course the agent could not cancel it, but it is
as yet unauthorized. The agent here is usually an interested party.
If he has made a contract without authority, he ordinarily incurs a
personal liability. Suppose then that, having made a contract in
good faith which he believed he had authority to make, he discovers
that he had no such authority: May he go to the other party,
explain the situation, and, with the latter's consent, undo what has
been done at least so far as to release the agent? This question
seems not to have been adjudicated, but no doubt can exist that
this may be done.
But may the agent and the other party by their consent release
the latter from any future liability to the principal ? Mr. WHARTON
has expressed the view, relying upon German authorities, that this
may not be done.7 But the English courts seem to hold that it may
be. Thus where a former agent without authority had paid a debt
for his former principal, but afterwards and before the latter had
ratified it went to the latter's creditor and requested him to return
the money, which he did and then sued the principal, it was held
that the latter could not by ratifying avail himself of the payment
in defense.8 "Prima facie," said KELLY, C. B., "we have here a
ratification of the payment by the defendant's plea; but whether
the payment was then capable of ratification depends on whether
previously it was competent to the plaintiff and Southall [the agent],
apart from the defendant, to cancel what had taken place between
them. I am of opinion that it was competent to them to undo what
they had done. The evidence shows that the plaintiff received the
money in satisfaction under the mistaken idea that Southall had
authority from the defendant to pay him. This was a mistake in
fact, on discovering which he was, I think, entitled to return the
money, and apply to his debtor for payment. If he had insisted
6 See, for example, note in 5 Am. St. Rep. Io9; 24 American Law Review, 580; 25 id. 74;
9 Harvard Law Review, 60; 35 American Law Review, 864.
7 Wharton on Principal and Agent, ? 76, citing Seuff. Archiv. XIV., pp. 2Io, 2Ii;
W\indschied, Pandektenrecht, ? 74.
s Walter v. James, L. R. 6 Exch. 124.
on keeping it, the defendant might at any moment have repud

the act of Southall, and Southall would then have been able to
recover it from the plaintiff as money received for Southall's use.
I am, therefore, of opinion that the plaintiff, who originally accepted
this money under an entire misapprehension, was justified in return-
ing it, the position of the parties not having been in the meantime
in any way altered, and that the defendant's plea of payment fails."
So in a New York case it was held that a person who had volun-
tarily procured insurance for his own and another's benefit might,
before the latter had ratified the act, cancel or surrender the policy.
"So long as the option of the owner of the goods to adopt or reject
the policy continues, so long must the absolute control of the agent
over the policy remain."9
If agent and other party have done nothing to cancel the contract.
-Returning now to the other question. Where no such act of the
agent has intervened, what is the right of the principal to ratify and
enforce the contract against the other party? Conceivably the
other party in the meantime may have remained passive, or he may,
before or after the principal's attempted ratification, have himself
sought to escape the contract. So far as the adjudicated cases go
upon this question, they represent three distinct views which will
now be considered.
The Wisconsin cases.-The earliest cases involving this
precise question arose in Wisconsin,?1 and that court has denied that
ratification alone can in such a case suffice to charge the other party.
Referring to the general principle that subsequent ratification is
equivalent to a prior authority, the court declares it to be inaccurate
as a rule of universal application. "The inaccuracy consists in not
properly distinguishing between those cases where the subsequent
act of ratification is put forth as the foundation of a right in favor
of the party who has ratified, and those where it is made the basis
of a demand against him. There is a broad and manifest difference
between a case in which a party seeks to avail himself, by subse-
quent assent, of the unauthorized act of his own agent, in order to
enforce a claim against a third person, and the case of a party
acquiring an inchoate right against a principal by an unauthorized
act of his agent to which validity is afterwards given by the assent
or recognition of the principal. The principal in such a case may,
9 Stillwell v. Staples, I9 N. Y. 401.
10 Dodge v. Hopkins, I4 Wis. 630, affirmed in Atlee v. Bartholomew, 69 Wis. 43, 33
N. W. IIo, 5 Am. St. Rep. 103. Similar views were also expressed in Clews v. J.amieson,
89 Fed. Rep. 63, but they were overruled in 182 U. S. at p. 483. See also Wilkinson v.
Heavenrich, 58 Mich. 574, 26 N. W. I39, 55 Am. Rep. 708; Wilkinson v. Harwell, z3
Ala. 660.
by his subsequent assent, bind himself, but, if the contract

tory, he cannot bind the other party. The latter may, if h
avail himself of such assent against the principal, which if
the contract, by virtue of such mutual ratification, becomes m
obligatory. There are many cases where the acts of parties
unavailable for their own benefit, may be used against the
The English cases.-In I889, the question came befor
English Court of Appeal in Bolton Partners v. Lambe
appeared that the defendant had written to one Scratchley
managing director of an incorporated company, an offer
certain works belonging to that company. Scratchley rep
he would refer the offer to the directors. Before the directors met
there was a meeting of "the works committee" of the directors, of
which Scratchley was a member, and this committee voted to accept
the offer. This committee, however, had no such power. Scratch-
ley then wrote to the defendant saying that the directors had
accepted his offer, and that the company's solicitor would prepare
the papers. While correspondence over the form of the documents
was pending, the defendant wrote withdrawing his offer, though
not upon the ground of Scratchley's want of authority. After-
wards the board of directors met and formally ratified Scratchley's
letter of acceptance, and, the defendant refusing to go on, this
action for specific performance was instituted. The defence was
the lack of mutuality and the withdrawal of the offer before accept-
ance. KEKE;WICH, J., granted the relief prayed for, saying: "The
doctrine of ratification is this, that when a principal on whose
behalf a contract has been made, though it may be made in the
first instance without his authority, adopts it and ratifies it, then,
whether the contract is one which is for his benefit and which he
is enforcing, or which is sought to be enforced against him, the
ratification is referred to the date of the original contract, and the
contract becomes, as from its inception, as binding on him as if he
had been originally a party."
The case went to the Court of Appeal, where the judgment was
affirmed. COTTON, L. J., said: "The rule as to ratification by a
principal of acts done by an assumed agent is that ratification is
thrown back to the date of the act done, and that the agent is put
in the same position as if he had had authority to do the act at the
time the act was done by him. * * * I think the proper view
is that the acceptance by Scratchley did constitute a contract, sub-
ject to its being shown that Scratchley had authority to bind the
company.l2 If that was not shown there would be no contract on
1 Bolton Partners v. Lambert, 41 Ch. Div. 295.
12 What was it in the meantime?
the part. of the company, but when, and as soon as auth

given to Scratchley to bind the company, the authority w
back to the time when the act was done by Scratchley
vented the defendant withdrawing his offer, because it w
no longer an offer but a binding contract."13
LINDLEY, L. J., said: "The question is what is the con
of the withdrawal of the offer after acceptance by th
agent but before the authority of the agent has been rat
the withdrawal in time ? It is said on the one hand that th
principle of law applies, viz., that an offer may be w
before acceptance. That proposition is of course true
question is-acceptance by whom? It is not a question w
mere offer can be withdrawn, but the question is wheth
there has been in fact an acceptance which is in form an a
by a principal through his agent, though the person assu
act as agent has not then been so authorized, there can o
be a withdrawal of the offer before the ratification of t
ance? I can find no authority in the books to warrant th
tion that an offer made, and in fact accepted by a principa
an agent or otherwise, can be withdrawn. The true view o
trary appears to be that the doctrine as to the retrospecti
of ratification is applicable."
LoPEs, L. J., said: "If there had been no withdrawal of
this case would have been simple. The ratification by the
would have related back to the time of the acceptan
defendant's offer by Scratchley, and the plaintiffs w
adopted a contract made on their behalf. It is said that th
no contract which could be ratified, because Scratchley at
he accepted the defendant's offer had no authority to ac
plaintiffs. Directly Scratchley on behalf, and in the nam
plaintiffs, accepted the defendant's offer, I think th
contract made by Scratchley assuming to act for the p
subject to proof by the plaintiffs that Scratchley had that
The plaintiffs subsequently did adopt the contract and the
ognized the authority of their agent Scratchley. Directly
so the doctrine of ratification applied and gave the same
the contract made by Scratchley as it would have had if S
had been clothed with a precedent authority to make it. If
ley had acted under a precedent authority the withdrawa
offer by the defendant would have been inoperative, and it
inoperative where the plaintiffs have ratified and adopted
tract of the agent. To hold otherwise would be to de
13 In the meantime, what? If merely an offer, why not revocable?
doctrine of ratification of its retrospective effect. To use t

of Baron MARTIN in Brook v. Hook,14 the ratification wou
'dragged back as it were, and made equipollent to a pr
mand.' "
Bolton Partners v. Lambert has been affirmed in later cases15 in
the same court, though one of the judges who concurred in it gave
an explanation of it not to be reconciled with the opinions in the
original case. Its doctrine that there may be ratification notwith-
standing a previous attempt at withdrawal by the other party, has,
however, been criticised by judges of lower courts,16 nevertheless
bound by it, by magazine and text writers,17 and by Lord Justice
Fry in a note added for that purpose to his Treatise on Specific Per-
formance.18 As stated by the latter, "It seems to follow from it
that the intervention of a mere stranger may prevent a person who
has made an offer from withdrawing that offer until it be seen
whether the person to whom it is made will ratify it or not, and
consequently places that person in the difficult position of neither
having a contract nor a right to withdraw an offer. An offer made
to a principal may be withdrawn: an offer made to a person who
professes to be an agent but is not, cannot be withdrawn; so that
the person making the offer is worse off in the latter than the
former case." "To hold him (the other party) bound with per-
haps the market rising," says another writer.19 "while the principal
is free to ratify or reject, is to place him at an undeserved disad-
vantage."
The later cases have attached an obviously just limitation that
the ratification must take place within a reasonable time, a matter
here, as elsewhere, depending upon the circumstances of each case.20
Several American cases declare a contrary rule.-The rule
that the principal can ratify even after the other party has attempted
to withdraw is denied in several American cases. In one of the
most recent,21 one Simcock, acting as agent for complainant, b
without written authority, entered into a contract to sell land
defendant. "It needs no citation of authorities to show that this
contract was void under the statute of frauds. and did not bind
14 Brook v. Hook, L. R. 6 Exch. 96.

15 See In re Portuguese Consolidated Copper Mines; Steele's Case, 42 Ch. D. I60;
Same, Bosanquet's Case, 45 Ch. D. i6; In re Tiedemann [I899] 2 Q. B. 66.
16 See per NORTH, J., in Bosanquet's Case, supra. See also per CHITTY, J., in Dibbins
v. Dibbins [i896], 2 Ch. 348.
17 See 5 Law Quar. Review, 441; 9 Harv. Law Review, 40.
8 Appendix, Note A.
19 5 Law Quar. Review, 441.
20 See, per BOWEN, L. J., in Bosanquet's Case, supra.
21 Baldwin v. Schiappacasse, o09 Mich. 70, 66 N. W. Io9I. See also Cowan v. Curran,
- Ill. -, 75 N. E. 322.
either complainant or defendant, until complainant had ratifi

act in some manner which would take it out of the statute." De-
fendant tendered compliance, but complainant insisted upon other
terms to which defendant would not assent. After further nego-
tiation, complainant declared that if the matter was not closed by
a certain hour he "should call the deal off," to which the defendant
replied, "If that is so, all right," and the parties separated. After
this, complainant tendered a deed and signed a paper ratifying the
act of Simcock and handed it to him. This document, however,
was never shown to the defendant, and, said the court, "of course,
was not binding upon him."22 The complainant then insisted that
a sale had taken place and filed this bill to enforce a vendor's lien.
The bill was dismissed. Said the court: "Until complainant has
placed himself in such a position that defendant could enforce the
contract against him, he was not in position to enforce it against
the defendant. Until that was done, there was in fact no contract
binding upon either party, and the defendant was at liberty to
withdraw.23 After such withdrawal, the complainant could not bind
the defendant by any act of ratification. The paper executed by
Simcock and the defendant was not a continuing offer to purchase,
which might at any time be accepted by the complainant. It pur-
ported to express the terms of an agreement of sale, void because
there was no written authority to make it, and incapable of being
ratified after the refusal of the defendant to be bound by it."
In a case before the Appellate Court in Illinois24 it appeared that
the plaintiff had authorized one Evans, a broker, to buy oats, not
stating the grade, and thereby, as the court held, authorizing only
the purchase of the usual- grade, No. 2. The broker contracted
with defendant for the sale of "cool and sweet" oats, an inferior
grade. The broker advised the plaintiff that he had bought of
defendant "mixed oats" to arrive "cool and sweet," at a certain
price. There was no such grade of oats as "mixed oats," and there-
fore, the court held, grade No. 2 must be inferred. Plaintiff then
wrote directly to defendant confirming the purchase of "grade 2,
mixed oats." Defendant immediately replied that he had not offered
to sell oats of grade No. 2 and withdrew his offer of the "cool and
sweet" oats. Plaintiff then wrote confirming the purchase of the
22 Citing Dickinson v. Wright, 56 Mich. 42.
23 Citing Pom. Cont. ? i66; Duvall v. Myers, 2 Md. Ch. 405; Bodine v. Glading, 21 Pa.
50, 59 Am. Dec. 749.
24 Gregg v. Wooliscroft, 52 Ill. App. 214. See also Cowan v. Curran, - Ill. -, 75
N. E. 322. Where an agent without authority sells lands to a purchaser who enters and
makes improvements, and the principal on learning of the sale disapproves of it, where-
upon the buyer abandons the land, tne principal cannot afterwards ratify and enforce the
contract: Wilkinson v. Harwell, I3 Ala. 660.
oats as "cool and sweet," but defendant refused to recog

contract or deliver the oats. The action was for damages,
the Circuit Court the plaintiff recovered, but this judgmen
reversed on the defendant's appeal. "Before the appellee wro
letter (of confirmation) he had received notice from Eva
also from the appellant that the appellant had revoked his off
canceled any alleged sale. If the appellant offered to sell coo
sweet oats and Evans accepted the offer for the appellee the
ance was unauthorized and not binding on the appellee un
adopted it, and in such case the appellant might lawfully wit
the offer at any time before the appellee had accepted."
Other American cases also declare a rule contrary to that
English cases, although the facts are distinguishable. Th
carefully considered of these is, perhaps, the Pennsylvania
McClintock v. South Penn Oil Co.25 Here the plaintiff's husb
as her agent, but without written authority, had entered into
tract to sell to defendant certain interests in land belonging
plaintiff. Later written ratification was supplied, after whi
defendant sought to repudiate. Said the court per MITCHELL
"If the agent had been properly authorized, the contract wou
bound both parties in the first instance, and the settled rule
ratification is equivalent in every way to plenary prior auth
The objection of want of mutuality is not good in many cas
dealing with an agent, for if he exceeds his authority, actu
apparent, his principal will not be bound, yet may ratify, an
the other party will be bound from the inception of the agre
The aggregatio mentium of the parties need not commence
taneously. It must co-exist; but there must be a period whe
question of contract or no contract rests on the will of one
to accept or reject a proposition made, and this interval m
long or short. The offer, of course, may be revoked or with
at any time prior to acceptance, but after acceptance it is t
The contract is complete."
Rules compared-The weight of authority.-If a com
tive statement of these various rules were attempted, it might b
that the Wisconsin cases deny the right of the principal to ra
the absence of something showing the other party's present
ence to the contract; that the English courts admit a ratific
within a reasonable time even though the other party has b
the ratification attempted to withdraw; while the majority of
ican courts permit a ratification, within a reasonable time,
other party has not previously signified his intention to wit
though not afterward.
25 144 Pa. I46, 23 Atl. 211, 28 Am. St. Rep. 785.
Neither of these rules is entirely satisfactory. The Wis

rule seems to the writer fundamentally sound, though it pe
gives too little effect to the growing doctrine of ratificatio
English rule is certainly questionable for the reason already s
among others, that it puts a person who makes an offer to a
in a worse position than though he had made it directly to th
cipal. The other American rule ignores the consideration th
other party may be refraining from a withdrawal when he
be glad to withdraw, only because he supposes he is boun
valid contract. Perhaps a sufficient answer to the last object
that if the other party had used due care in the first instan
ascertain the agent's authority, he would not have made the
tract; and that in most cases if he has been deceived by the
as to the existence of his authority, he has a remedy agains
agent for any loss thereby sustained.
The latter American rule, however, seems open to fewest
tions and is likely to prevail. It may, perhaps, be stated
Where one assuming to be agent but without authority has
tiated a contract for the alleged principal, the latter may rati
act and enforce the contract against the other party where
ratifies within a reasonable time and before the other party h
nified his withdrawal from the negotiation.
The English courts would of course sustain the rule thu
though they carry it a step further.
Applications of the rule.-Under the application of
rule, the principal may ratify and enforce contracts for the
purchase or leasing of real or personal property,26 the furnis
material,27 the performance of labor, and the like.
Ratification by insured of insurance effected for his bene
-Within the operation of the general rule also would come t
of the ratification by the insured of insurance effected for his b
That this might be done had been held by the English court
before the difficult questions involved in Bolton Partners v. L
had presented themselves,28 and this holding had been follo
the United States.29 It is difficult to imagine a case wherein
fast and loose character of the principal's obligation, or his
26 McClintock v. South Penn Oil Co., 144 Pa. 146, 23 Atl. 211, 28 Am. St. R
Clews v. Jamieson, i82 U. S. 461; Soames v. Spencer, I Dowl. & R. 32; Hamm
Hannin, 21 Mich. 374, 4 Am. Rep. 490; Citizens' Gas Co. v. Wakefield, I6I M
27 New England Monument Co.v. Johnson, 144 Pa. 61, 22 Atl. 974.
28 Hagedorn v. Oliverson, 2 M. & S. 485; Routh v. Thompson, 13 East 274; L
Crauford, I Taunt, 325; Williams v. North China Ins. Co., I C. P. Div. 757.
29 Finney v. Fairhaven Insurance Co., 5 Mete. (Mass.) 192, 38 Am. Dec. 397
v. Mutual Commercial Ins. Co., 2 Curtis 277; Insurance Co. v. Chase, 5 Wall.
509; Snow v. Carr, 6i Ala. 363; Miltenberger v. Beacom, 9 Pa. St. 198; Watki
Durand, i Port. (Ala.) 251.
of speculation whether to ratify or not, could be more clearly

trated. If no loss occurs he may ignore the contract and
liability for the premium; if a loss happens, he may rati
enforce the contract. As against the agent he may ratify eve
payment.30
The case is exceptional also in the fact that ratification after loss
enables the principal to' do by ratification what he could not then
himself do directly, namely, insure lost property; and a strong effort
was made some years ago in the English courts to induce a recon-
sideration *of the cases holding that it may be done, but it was
declared that these cases were much too strong and of too long
standing to be overruled.31
It has been said, however, that the principal's right of ratification
is, where the assumed agent was a mere volunteer, subject to the
latter's power to surrender and cancel the policy before ratification
takes place.32
And where it was expressly stipulated that a life insurance policy
should not take effect until the advance premium thereon should
be paid in the lifetime of the person whose life was insured, it was
held that a payment of the premium in his lifetime by an unauthor-
ized person could not be ratified by the administrator and beneficiary
after his death.33
Defence based on ratification.-The principal may, of
course, base a defence upon his own ratification as well as a cause
of action. Thus where an insurance company, whose agent had
inserted an unauthorized clause in a policy, had formally ratified
the act and undertaken to perform accordingly, it was held that the
other party could not afterwards repudiate the transaction on the
ground that no contract had really been entered into and recover
back the money he had paid upon the policy.34
2. In Tort
The application of the rule in tort cases must necessarily be limite

because the cases wherein the principal will seek to enforce ri
based upon his ratification of his agent's torts will be very ra
Injuries to rights acquired by ratification may often occur and
rise to action. Thus it has been held that where property acqu
for the principal through the unauthorized act of his agent has
30 Snow v. Carr, 6i Ala. 363.
31 In Williams v. North China Ins. Co., supra.
32 Stillwell v. Staples, I9 N. Y. 40I.
33 Whiting v. Massachusetts Mut. L. Ins. Co., I29 Mass. 240, 37 Am. Rep. 3I7.
34 Andrews v. Aetna L. Ins. Co., 92 N. Y. 596. See also Cook v. Tullis, 85 U. S. (18
Wall.) 332.
converted, the principal may ratify the act and sue for
sion.35 The bringing of the action is in itself, it was
cient ratification.
3. Other Acts Creating Rights or Duties

In addition to the acts resulting strictly in contract or constituting
torts, there is a large class of acts upon which rights may be founded
or duties imposed and to which the doctrine of ratification may be
applicable. Examples may be suggested in such acts as assignments
of causes of action, demands, entries, notices, and the like; and in
a number of instances difficult questions will be found presented.
The case of a notice to quit given by a person acting as agent but
without authority, may be used as an illustration. What is the
tenant to do? If he vacates and the giving of the notice is not rati-
fied, he will still be liable for the rent. If he remains and the notice
may be ratified, he is remaining at his peril. Judge Story in his
work on Agency36 undertook to state a rule to govern these cases,
saying that "where an act is beneficial to the principal and does not
create an immediate right to have some other act or duty performed
by the third person, but amounts simply to the assertion of a right
on the part of the principal," the rule giving ratification its retroac-
tive effect is applicable; but when the act done by the unauthorized
person "would, if authorized, create a right to have some act or
duty performed by a third person, so as to subject him to damages
or losses for the non-performance of that act or duty, or would
defeat a right or an estate already vested in the latter, there the
subsequent ratification or adoption of the unauthorized act by the
principal will not give validity to it so as to bind such third person
to the consequences." This rule has been criticised37 and can not
be regarded as entirely accurate, but it serves to illustrate some of
the ideas which must determine the matter. A number of cases will
throw further light upon it.
Actions-Ratification of ilnal thorized bringing.-The un-
authorized bringing of an action may, it is held, be ratified by the
person in whose name and on whose account it was brought so as to
sustain the action from the beginning.38
Assignment of cause of action.-So it has been held that
the unauthorized assignment of a cause of action may be ratified
35Warder, etc., Co. v. Cuthbert, 99 Iowa 68i, 68 N. W. 9I7. See also Smith v.
Savin, 69 Hun (N. Y.) 311.
38 Story on Agency, ?? 246, 247.
37 Farmers' Loan & Tr. Co. v. Memphis, etc., Co., 83 Fed. 870; Wright on Principal
and Agent, p. 75.
38 Ancona v. Marks, 7 H. & N. 686; Day Land & Cattle Co. v. State, 68 Tex. 526.
after the commencement of the action so as to sustain it,39 but o

courts have denied that the defendant can, by ratification, be
deprived of his defense that the plaintiff had not, when he s
complete cause of action,40 and the weight of authority seem
with them.
Attachment affidavit and bond.-In reliance upon the
suggested by Judge Story, it has been held that authority f
making of the affidavit and bond in attachment must be perfect
time the action is begun, and consequently an unauthorized m
could not be made good by subsequent ratification;41 but th
trary has also been held or assumed in several cases.42
Declaration of maturity to accelerate action.-So, wher
bond and mortgage provided that in case of certain defaults
whole amount unpaid might be declared to be immediately d
was held that such a declaration made without authority mig
after suit brought in reliance upon it, be ratified with retro
effect;43 but it may be difficult to reconcile this conclusion with
tain of those referred to in the preceding sections.
Demand of payment, delivery, etc.-On' the other han
demand of payment, delivery of goods, and the like, must, it i
in order to put the other party in default so as to suistain an
against him, be made by a person who has then authority to
the demand so that it may safely be complied with, and
demand made by an unauthorized person will not sustain an a
A ratification of it by adopting it and basing an action upon
not enough.44
Notice of abandonment.-So it was held that notic
abandonment under a marine policy could be made only by som
then authorized so that it might safely be relied upon, and
said that a subsequent ratification would not avail.45
39 Ancona v. Marks, supra; Persons v. McKibben, 5 Ind. 261, 6I Am. Dec. 88; Marr v.
Plummer, 3 Greenl. (Me.) 73.
4 Wittenbrock v. Belmer, 57 Cal. 12; Read v. Buffum, 79 Cal. 77, I2 Am. St. Rep.
131; Dingley v. McDonald, 124 Cal. 682, 57 Pac. 574; Graham v. Williams, II4 Ga. 716,
40 S. E. 790. See also Fiske v. Holmes, 41 Me. 44I; Powell v. Henry, 96 Ala. 412, II
So. 311.
41 Grove v. Harvey, 12 Rob. (La.) 221.
42 Bank v. Conrey, 28 Miss. 667; Mandel v. Peet, i8 Ark. 236; Hutchinson v. Smith,
86 Mich. I45, 48 N. W. oo90; Palmer v. Seligman, 77 Mich. 305.
43 Farmers' Loan & Trust Co. v. Memphis, etc., R. Co., (C. C.) 83 Fed. Rep. 870.
44 Solomons v. Dawes, I Esp. 83; Coore v. Callaway, i Esp. 115; Coles v. Bell, I
Camp. 478, note. See also Freeman v. Boynton, 7 Mass. 483. In Seguin v. Peterson,
45 Vt. 255, 12 Am. Rep. 194, a demand by the wife for the return of money spent by
her boy for pipes and tobacco was held to sustain a subsequent action by the father,
though the court attached emphasis to the peculiar relation of the mother and to the
fact that defendant had recognized her authority by returning a part.
45 Per CROMPTON, J., in Jardine v. Leathley, 3 B. & S. 700.
Notice of dishonor.-Notice of dishonor, also, mus

held, be given by an authorized person; and the subsequent
of a notice given by an unauthorized person is not sufficien
Notice to quit.-The requirement of present autho
applied also in the case of a notice to quit, and a subsequen
on the part of a landlord will not, it is held, establish by re
unauthorized notice to quit given by another as his agent.
ant must act upon the notice at the time it is given, and th
must, therefore, at that time, be such as he may act upon with
ity; otherwise the tenant would be subjected to the injustice
left in doubt as to his action until the ratification or disavowal of
the principal.47
Options.-Again, where an option is given to be exercised
within a particular period, the other party is entitled to know abso-
lutely within that period whether it is to be accepted, and a notice of
acceptance given within the time fixed, but by a person who has no
authority cannot, it is held, be made good by ratification after the
time has expired.48
Stoppage in transit.-And so, it has been decided, a notice
of stoppage in transit given by a person without authority during
the transit, cannot, after the transit is ended, be made good by ratifi-
cation.49
FLOYD R. MECHF,M.
UNIVERSITY OF CHICAGO.
46 East v. Smith, I6 L. J. Q. B. 292; Brower v. Wooten, 4 N. Car. T. R. 70, 7 Am.

Dec. 692.
47 Pickard v. Perley, 45 N. H. i88, 86 Am. Dec. I53; Brahn v. Jersey City Forge Co.,
38 N. J. L., 74; McCroskey v. Hamilton, io8 Ga. 640, 34 S. E. III; Right v. Cuttrel, 5
East, 49I; Doe v. Walters, io B. & C. 625; Doe v. Goldwin, 2 Q. B. I43.
Contra, Roe v. Pierce, 2 Camp. 96; Goodlittle v. Woodward, 3 B. & Ald. 689.
48Holland v. King, 6 C. B. 727; Dibbins v. Dibbins [1896] 2 Ch. 348, (distinguishing
Bolton Partners v. Lambert).
49 Bird v. Brown, 4 Exch. 786.

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The Effect of Ratification as between the Principal and the Other Party

Author(s): Floyd R. Mechem

THE question of the effect of ratification as between the pr

A. OTHER PARTY AGAINST PRINCIPAL.

The aspect presented when the other party is seeking to e

Where a contract has been made by one person in the name

ity for the fraud.2 Statements of admissions made, or know

The doctrine of liability by ratification in tort cases is abundant

Where, however, instead of the ordinary case wherein the th

latter's ratification of the act, the principal takes the initia

May principal ratify and enforce unauthorized contract?-Whe

These questions have recently aroused much interesting di

on keeping it, the defendant might at any moment have repud

by his subsequent assent, bind himself, but, if the contract

the part. of the company, but when, and as soon as auth

doctrine of ratification of its retrospective effect. To use t

14 Brook v. Hook, L. R. 6 Exch. 96.

either complainant or defendant, until complainant had ratifi

oats as "cool and sweet," but defendant refused to recog

Neither of these rules is entirely satisfactory. The Wis

of speculation whether to ratify or not, could be more clearly

The application of the rule in tort cases must necessarily be limite

3. Other Acts Creating Rights or Duties

after the commencement of the action so as to sustain it,39 but o

Notice of dishonor.-Notice of dishonor, also, mus

46 East v. Smith, I6 L. J. Q. B. 292; Brower v. Wooten, 4 N. Car. T. R. 70, 7 Am.

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