The plaintiff's agent, in making the sale, asked the rea- 1900. son of the change of name, and Sweet told him that there Statement. might possibly be a change in the style of the firm at some later date. The agent stated that the credit was given to O. J. Sweet & Co., and that the goods were so charged. The particulars of claim for this suit were originally made out against O. J. Sweet & Co.

The Judge of the County Court gave judgment for the plaintiff, against both defendants. The defendant Smith. appealed on the ground that there was no sale to him or on his credit, and that he was never liable to the plaintiff for them.

J. S. Ewart, Q. C., and J. O'Reilly for defendant Smith cited Quebec Bank v. Miller, 3 M. R. 17; Richards v. Rowe, 4 M. R. 112, and 17 A. & E. Ency. of Law, 916.

F. II. Phippen for plaintiff.

KILLAM, C. J.-It appears to me abundantly clear that Sweet did not intend, when he made the purchase, to buy on account of himself and Smith. Smith had then made his offer for a dissolution; it had been accepted; Sweet expected that it would be carried out. It was only after the purchase that he learned of the opposition of the creditor. Under these circumstances the journey to Winnipeg and the making of the purchases, unknown to his partner and under a different name from that of the firm, abundantly warrant the inference that he was not purchasing for the existing firm.

It is only a party to a contract who can be sued upon it, and one for whom the party making the contract does not assume or intend to contract cannot be considered a party to it. A man cannot be made a party by ratification unless he who assumes to contract does so on behalf of that man: Watson v. Swann, 11 C. B. N. S. 771;

Wilson v. Tumman, 6 M. & G. 236; Vere v. Ashby, 10 Judgment. B. & C. 288.

.1900.

KILLAM, C. J.

In a late case of Durant v. Roberts, 16 Times L. R. 244, a defendant was held liable upon a contract ratified by him and made by a broker without authority, but who intended to contract for him, though without disclosing the name of his principal or even that he was not himself the principal. This was the decision which I had in mind at the time of the argument of this case, and of which I had then but an imperfect recollection. It does not violate the principle which I have enunciated, as there was the intention to contract on the defendant's behalf.

It is said that Sweet intended to bind the person who should thereafter be his partner. But, even so, it was the person who should thereafter form a new partnership with him, and none did so. The rule is that the party intended to be bound by ratification must be a person capable of being ascertained at the time. Watson v. Swann, supra. I doubt whether it would be sufficient that he should be ascertained by reference to a future uncertain event. But, even if so, the expected event did not happen.

If Sweet had made the purchase under the old firm name, Smith would have been bound in the absence of notice to the plaintiff of a different intention. But, as the plaintiff's agent gave credit to O. J. Sweet & Co., he can hold only those intended to be designated by that name.

I would allow the appeal and dismiss the action as against Smith, with costs of the action and of the appeal.

BAIN, J.-I think the learned Judge was in error in entering judgment for the plaintiff against both defend

ants.

Previous to the purchase of the goods in question by the defendant Sweet, he had purchased goods from the

1900.

plaintiff for the firm of Sweet & Smith, and these purchases had been charged to the defendants in the plain- Judgment. tiff's books in the firm name. But when he bought these BAIN, J. goods, he told Davy, the plaintiff's agent or manager, that they were to be charged and shipped to O. J. Sweet & Co., giving as a reason, Davy says, that there might possibly be a change in the style or name of the firm of Sweet & Smith at some future date. The goods were sold on the credit of O. J. Sweet & Co.; the defendant Smith was not a member of that firm, and, as I read the evidence, the plaintiff had no grounds for believing that he was a member of it, or that Sweet was acting as his partner or agent in the purchase of the goods.

Sweet says that, before he came into Winnipeg on this occasion, he expected the firm of Sweet & Smith would be dissolved; and I think the evidence shows that he did not, in fact, buy these goods on behalf of the firm and did not assume to do so. The dissolution that was intended was not carried out; and, as it appears that after Sweet returned to Lake Winnipeg he told Smith that he had bought the goods, and that the goods or some of them were taken into the firm's store and traded in the ordinary way, it is urged that the defendant Smith has made himself liable to the plaintiff by ratification. But, if Sweet did not assume or intend to buy the goods as the partner or agent of Smith, the doctrine of ratification cannot apply. The meaning of the word to "ratify" is to give sanction and validity to something done without authority by one individual on behalf of another; and it has long been established that no ratification is effectual unless the act has been done by the agent on behalf of the party who ratifies. In the recent case of Durant v. Roberts, 16 Times L. R. 244, the Court of Appeal held, one of the Lords Justices. dissenting, that a contract made by a person in his own

1900. name, but intending, though without authority, to act for Judgment. another in making it, can be ratified by that other person. BAIN, J. But the difference between that case and this is that here Sweet did not intend to act for Smith when he bought the goods.

RICHARDS, J.-Defendants traded in partnership under the firm name of Sweet & Smith, and prior to the transaction in question had bought goods under that name from plaintiff, who charged their price to Sweet & Smith on his books.

Two or three weeks before the purchase of the goods, the price of which is now sued for, the defendants discussed the question of dissolving partnership. After such discussion Sweet went to Winnipeg and bought the goods now in question. When so buying, Sweet expected the dissolution to take place on his return. He had not told Smith of his intention to go to Winnipeg. Sweet asked plaintiff's agent to charge the goods to O. J. Sweet & Co., telling him there might be a change in the style of the firm. The agent says Sweet could not tell him who composed the firm of O. J. Sweet & Co., because no change had then taken place.

Plaintiff charged and shipped the goods to O. J. Sweet & Co., and took for their price a promissory note made by Sweet in the name of O. J. Sweet & Co. Even when sending a statement of the claim for suit plaintiff charged the goods to O. J. Sweet & Co. Plaintiff's solicitor changed the heading of the statement so as to include Smith, and sued both Sweet and Smith.

Sweet found on his return to Selkirk, after buying the goods, that the proposed dissolution could not take place owing to an objection by a creditor.

Sweet & Smith got the benefit of at least part of the goods. There is also evidence, though disputed, of acts by Smith, after the goods reached Selkirk, which might

perhaps be held to ratify the contract of purchase, if it was one which Smith could ratify.

1900.

Judgment.

Smith defended the action, claiming that he was not a RICHARDS,J. party to the contract or liable for the price of the goods. The learned County Court Judge gave a verdict for plaintiff against both defendants for plaintiff's claim, with costs. Defendant Smith appeals from that decision.

It is clear that Sweet could not bind Smith by using the name "O. J. Sweet & Co." It was not their partnership name or one liable to be mistaken for it, nor was its use sanctioned by Smith.

Mere subsequent adoption of the contract is not in itself a ground for holding liable some one not a party to it: Durant v. Roberts, 16 Times L. R. 244, has carried the doctrine of ratification probably further than any other case has. The decision in that case holds that an undisclosed principal may ratify a contract made for him, though without his authority, by an alleged agent, provided such principal is at the time of the contract a person capable of being ascertained and answers the description of the person for whom the agent intended to contract. But that case distinctly holds that there can be no binding ratification by a person not contemplated by the agent as his principal at the time of making the contract.

The evidence seems to me to show that Sweet, when purchasing, had not in his mind any person capable of identification other than himself, for whom he intended to buy, and that, in any case, even if he had, such other person undoubtedly was not Smith. Sweet's express purpose in buying under the new name was to exclude Smith from the contract, and the evidence shows, I think, that plaintiff's agent knew that the change in name was for that purpose.

The fact that the firm of Sweet & Smith got the benefit of the goods, or of part of them, does not in itself render