Ized agent in the mean time will bind the purchaser to his

principal, but will not in any way bind the principal to the

purchaser." * This view is further supported by some text-

writers, and in occasional dicta of American judges.^ While

this is the holding of the English courts on tliis point, they

hold that the third person and the unauthorized agent may

by mutual assent release the third person from any obligations

under the contract at any time before ratification.^

1 Ililbery v. Ilatton, 2 II. & C. 822; Denipsey y. Chambers, 154 Mass.

330.

2 Owings V. Hull, 9 Pet. (U. S.) 007.

В» Bolton Partners v. Lambert, L. R. 41 Ch. D. 205.

< North, J., in In re Portuguese, &c. Mines, L. R. 45 Ch. D. 16, 21.

' Wharton on Agency, §§ 870-877; Story on Agency, §§ 245-248;

Andrews v. yEtna Life Ins. Co., 92 N. Y. 596, 604.

8 Walter v. James, L. R. 6 Ex. 124; Stillwell i-. Staples, 19 N. Y.

401.

BY KATIFICATION. 53

In the United States the doctrine generally prevails that the

third person may recede from the contract at any time before

ratification, on the ground that prior to ratification there is no

mutuality, and that if one party is free to be bound or not

bound, the other must also be frec.^ The decisions in Dodge

V.Hopkins and Clews y. Jamieson^ actually go beyond this

point, and hold the unauthorized contract a nullity, and a

subsequent ratification also a nullity unless assented to by

the third party. But this is obviously too refined for

the necessities of business. It is better to treat the con-

tract between the third person and the agent as in the nature

of an offer to the principal, which the latter may accept or re-

ject by an election operating upon the previous unauthorized

acceptance by the agent. It dili'ers from an ordinary offer in

"contract mainly in this, that it remains open until actually

withdrawn by notice to the principal or the agent, whereas an

ordinary offer lapses by the expiration of time. This avoids the

extremes of the English doctrine on the one hand, which treats

the unauthorized contract as in effect an irrevocable offer, and

of the doctrine of Dodje v. Hopkins on the other hand, which

treats it as in effect no offer at all. The case is an anomalous

one at best and requires anomalous treatment.^

В§ 39. (III.) Principal must be competent.

The competency of the principal has already been discussed.*

The same considerations prevail in respect of the competency

of the principal to ratify an act as to authorize it. An infant

may ratify, if he could, by appointing an agent, authorize;^

but his ratification is not conclusive.^ If his appointment of

1 Dodge I'. Hopkins, 14 Wis. 630; Atlee v. Bartholomew, 69 Wis. 43;

Townsend v. Corning, 23 Wend. (N. Y.) 43.5; Clews v. Jarnieson, 89 Fed.

Rep. 63. See also Wilkinson v. Heavenrich, 58 Mich. 574 ; ]McClintock

V. South Penn. Oil Co., 146 Pa. St. 144, 161-162.

2 This, however, was the case of an undisclosed principal, and must be

considered in connection with the doctrines of В§ 32, a7i(e.

8 See 9 Harv. Law Rev. 60 ; 5 Am. St. Rep. 109.

* Anie, §§ 15-22.

^ Patterson v. Lippincott, 47 N. J. L. 457.

В« McCiacken v. San Francisco, 16 Cal. 591, 623-624; Armitage v.

Widoe, 36 Mich. 124.

54 FORMATION OF AGENCY

an agent would be voiil, then he cannot ratify even after coming

of agc.^ If a married woman can appoint an agent, she may-

ratify the act of one who has represented her without au-

thority .^ Corporations may ratify cither by vote of the direc-

tors where they would have power to authorize,^ or by vote of

stockholders where the act could be authorized only by them.*

Acquiescence of stockholders may amount to ratification.^ One

partner may ratify for the firm.*' Voters may ratify or dis-

affirm tlie unauthorized act of the agents of a municipal or

quasi-public corporation." A state, througli the legislature,

may ratify the unauthorized acts of agents.^ Where an agent

has authority to do an act he may, in behalf of his princij)al,

ratify the like unauthorized act of another agent, but not, it

seems, of one who is not an agent for any purpose.^

The matter presents itself in several aspects : (1) The prin-

cipal may have been competent when the act was done and

competent when it was ratified ; (2) he may have been incom-

petent when it was done and incompetent when it was ratified ;

(3) he may have been competent when it was done and incom-

petent when it was ratified ; (4) he may have been incompetent

when it was done and competent when it was ratified. The

first three cases call for no special comment. In the first, the

ratification is clearly binding. In the second and third, it is as

clearly not conclusively binding.

The fourth case presents a difTiculty. If the incompetent

could have appointed an agent, subject only to his right to dis-

affirm the contract of agency, then clearly he could, on arriv-

ing at competency, aflUrm the agency and thereby ratify the

1 Trueblood i'. Trueblood, 8 Ind. 195.

2 McLaren v. Hall, 2G Iowa, 297.

В« Wilson V. West Hartlepool, &c. Ry., 2 De G., J. & S. 475.

* Spackman v. Evans, L. K. 3 II. L. 171 ; Grant v. Rv., 40 Ch. Div.

135.

6 London, &c. Ass'n v. Kelk, 20 Ch. Div. 107; Evans v. Sniallcombe,

L. R. 3 H. L. 249.

В« Forbes i'. Ilagnian, 75 Va. 168.

' School District v. iEtna Ins. Co., 62 Me. 330.

* Wisconsin i'. Torinus, 26 ^Minn. 1 ; People v. Denison, SO N. Y. 656.

* Ironwood Stove Co. r. Harrison, 75 Mich. 197.

BY RATIFICATION. 55

acts of the af^cnt.' So, it would seem, lie could ratify unau-

thorized acts of that agent as well as authorized acts. So, too,

he could ratify the acts of one who assumed to represent him

without any authority. But if the appointment of an agent by

the incompetent would be void (as in some States in case of