thereof. In the facts of the case there is no element of equitable estoppel. Plaintiff's evidence tended at most only to prove that the defendant, when informed by letter of the sale, did not manifest to the agent any disapprobation thereof, but directly thereafter sold to another per

son.

"The trial court ruled that the written authority must authorize the agent to make the contract which he does make, in order to bind the principal and unless it does so the ratification thereof must be in writing to bind him, citing Story on Agency (9 ed.) sec. 242, and Dispatch Line v. Mfg. Co., 12 N. H. 205, 37 Am. Dec. 203, in which it was held that 'a ratification of an act done by one assuming to be an agent relates back, and is equivalent to a prior authority. When, therefore, the adoption of any particular form or mode is necessary to confer the authority in the first instance, there can be no valid ratification except in the same manner.'

"At common law, where a contract is required to be under seal, a ratification must also be under seal. 1 American & Eng. Encyclopedia of Law, 536; Story on Agency, sec. 49, and authorities in note 3; Mechem on Agency, sec. 137, and authorities note 6, same page. And upon the same principle the last author, stating the general rule, says, 'If, therefore, sealed authority was indispensable, sealed ratification must be shown; and if written authority was required, written ratification must appear.' Sec. 136."

(Held: That if the law requires certain formalities in the appointment of an agent, ratification cannot occur without such formalities for this would render such law of no effect. The court suggested, however, that there might be conduct amounting to a legal estoppel, that is to say, conduct which would render the alleged principal's repudiation inequitable.)

Question 208: What did the statute of Missouri require in reference to the appointment of an agent to sell real estate? Did the agent in Case 208 have such authority? What was the suit for? How did complainant attempt to get around the statute?

How did the court answer this attempt? What did the court say about estoppel? Was there such estoppel in this case?

B. What Constitutes Ratification.

$206. Express ratification.

§ 207. Silence as ratification.

§ 208. Ratification by receiving benefits.

§ 209. Ratification by bringing suit.

§ 206. (Agency, Sec. 22.) Express ratification. Case 209. Taylor v. Connor, 41 Mississippi Reports,

722.

SHACKLEFORD:

It is well settled that a party charged as principal shall adopt or repudiate the act of the pretended agent altogether; he cannot separate it, as by ratifying what is beneficial to himself only, and repudiating the remainder; Such recognition or adoption may be either express of implied; express, as by words, spoken or in writing; implied, as from the conduct of the principal or party charged as such; for instance as by receiving the benefit of the act, and holding it after knowledge of the facts."

Question 209: In what various ways may a person charged as principal ratify what has been done in his behalf?

§ 207. (Agency, Sec. 23.) Silence as ratification.

Case 210. Ward v. Williams, 26 Ill. 447.

Point Involved: Whether merely remaining silent (i. e. receiving no benefits and expressing no dissent) when one learns that an agent has done an unauthorized act in his behalf, is ratification.

"The counsel in their arguments agree upon the correct principle of law as to the ratification of unauthorized acts, done by one in the name of another. In general where an agent is authorized to do an act, and he transcends his authority, it is the duty of the principal to repudiate the act as soon as he is fully informed of what has been done in his name, by the agent, else he will be

bound by the act as having ratified it by implication: but where a stranger in the name of another does an unauthorized act, the latter need take no notice of it although informed of the act thus done in his name, and he shall only be bound by an affirmative ratification."

Question 210: Is silence of the principal when he learns of the unauthorized act, ratification by him?

(Note: Obviously, the only safe course for an alleged principal to take if he does not wish to ratify, is to repudiate. Some cases say there is no merit in the distinction taken in the case above.)

§ 208.

(Agency, Sec. 24.) Ratification by receiving benefits.

Case 211. Dempsey v. Chambers, 154 Mass. 330. Facts: Suit is to recover damages for the breaking of a plate glass window. The glass was broken by the negligence of one McCullock, while delivering some coal which had been ordered of the defendant by the plaintiff. It was found by the trial court as a fact that McCullock was not the defendant's servant when he delivered the coal and broke the window, but that the defendant afterwards ratified the delivery of the coal. Judgment in the trial court for plaintiff. Defendant appeals.

Point Involved: Whether an unauthorized tort committed as a part of an act done on behalf and in the name of another, but not at the time authorized by another can be ratified and whether it is so ratified by the ratification of the act of which it is a part.

"It is hard to explain why a master is liable to the extent that he is for the negligent acts of one who at the time really is his servant, acting within the general scope of his employment. Probably master and servant are 'famed to be all one person,' a fiction which is an echo of the patria potestas and of the English frank-pledge. Byington v. Simpson, 134 Mass. 169, 170, 45 Am. Ref. 314; Fitz. Abr., tit. Corone, fil. 428. Possibly the doc

trine of ratification is another aspect of the same tradition. The requirement that the act should be done in the name of the ratifying party, looks that way:

"Doubts have been expressed, which we need not consider, whether this doctrine applied to a case of a bare personal tort: Adams v. Freeman, 9 Johns. 117, 118; Anderson and Warburton, JJ., in Bishop v. Montague, Cro. Eliz. 824. If a man assaulted another in a street out of his own head, it would seem rather strong to say that if he merely called himself my servant, and I afterwards assented, without more, our mere words would make me a party to the assault, Perhaps the application of the doctrine would be avoided on the ground that the facts did not show an act done for the defendant's benefit: Wilson v. Barker, 1 Nev. & M. 409; 4 Barn. & Adol. 614, et seq.; Smith v. Lozo, 42 Mich. 6.

"But the language generally used by judges and textwriters, and such decisions as we have been able to find, is broad enough to cover a case like the present when the ratification is established: (citing numerous authorities).

"The question remains whether the ratification is established. As we understand the bill of exceptions, McCullock took on himself to deliver the defendant's coal for his benefit and as his servant, and the defendant afterward assented to McCullock's assumption. The ratification was not directed specifically to McCullock's trespass, and that act was not for the defendant's benefit if taken by itself, but it was so connected with McCullock's employment that the defendant would have been liable as master if McCullock really had been his servant in delivering the coal. We have found hardly anything in the books dealing with the precise case, but we are of opinion that consistency with the whole course of authority requires us to hold that the defendant's ratification of the employment established the relation of master and servant from the beginning, with all its incidents, including the anomalous liability for his negligent acts: See Coomes v. Houghton, 102 Mass. 211, 213, 214; Cooley on

Torts, 128, 129. The ratification goes to the relation and establishes it ab initio. The relation existing, the master is liable for torts which he has not ratified specifically just as he is for those which he has not commanded, and as he may be for those which he has expressly forbidden

Question 211: (1) State the facts, the question presented and the Court's decision in this case.

(2) A purporting to represent P, sells B a quantity of goods. He is guilty of fraud in making the sale. P recognizes the order and supplies the goods. Is P liable in damages for A's fraud? Under what circumstances?

Case 212. Eberts v. Selover, 44 Mich. 519.
Facts: The facts appear in the opinion.

Point Involved: Whether a principal whose agent has exceeded his authority can adopt and ratify part of such act and reject the remainder.

COOLEY, J.: "This is an action brought to recover the subscription price of a local history. The subscription was obtained by an agent of the plaintiffs, and defendant signed his name to a promise to pay ten dollars on the delivery of the book. This promise was printed in a little book, made use of for the purpose of obtaining such subscriptions, and on the opposite page, in sight of one signing, was a reference to 'rules to agents,' printed on the first page of the book. One of these rules was that 'no promise or statement made by an agent which interferes with the intent of printed contract shall be valid,' and patrons were warned under no circumstances to permit themselves to be persuaded into signing the subscription unless they expected to pay the price charged.

"From the evidence it appears that when Schenck, the agent, solicited his subscription the defendant was not inclined to give it, but finally told the agent he would take it provided his fees in the office of justice, then held by him, which should accrue from that time to the delivery of the book should be received as an equivalent. The agent assented, and defendant signed the subscription,