Infancy), then clearly the act could not have been authorized

when it was performed. How then could it be ratified after it

was performed ? The conclusion is that the act so done by an

agent cannot be ratified.^ But this is dependent upon the

answer to the question whether the infant could have appointed

the agent.3

В§ 40. (IV.) Form of ratification.

It has already been seen that, with the exception of a few

cases, the authority of an agent may be conferred without any

formality whatever. The same general rule applies to ratifica-

tion. Unless the case is one in which the authority, if con-

ferred in the first instance, must have been under seal or in

writing, the ratification may be by parol.^

(1) Ratification of agenfs contract under seal. Authority

to execute a contract which is required to be under seal, must

be conferred by an instrument under seal, and consequently

the unauthorized execution of such a contract can be rati-

fied only by an instrument of equal formality.^ But the con-

stantly growing tendency to do away with the formality of a

seal has led to an exception to the above rule, and it seems

now to be generally recognized that the execution of a sealed

instrument by a partner in the firm name may be ratified by

the other partner by parol.^ The Massachusetts court goes

^ Conrsolle r. Weyerhauser, G9 Minn. 328.

2 Trueblood v. Trueblood, 8 Ind. 19.5; Armitage v. Widoe, 36 Mich.

124.

8 See ante, В§ 15.

* Goss V. Stevens, 32 j\Iinn. 472 ; Taylor v. Conner, 41 Miss. 722.

6 Hanford v. INIcXair, 9 Wend. (N. Y.) 54 ; Heath v. Nutter, 50 Me.

378; Spofford r. Hobbs, 29 :Me. 148; Despatch Line v. Bellamy ]\Ifg. Co.,

12 X. H. 205; Pollard v. Gibbs, 55 Ga. 45; Oxford v. Crow, 1893, 3 Ch.

535.

* Peine v. Weber, 47 111. 41 ; Holbrook v. Chamberlin, 116 ]\Iass. 155.

56 FORMATION OF AGENCY

still further and liolds that a parol ratification is sufficient,

even in cases where the unautliurized execution of the sealed

instrument is in the name of an individual.^ Of course, if the

scaled instrument is one ui)on which no seal is necessary, the

seal may be regarded as mere surplusage and the instrument

ratified by parol.^

(2) llatijication of contract required hi/ Statute of Frauds to

be in writing. Unless the statute provides otherwise, a contract

required by the Statute of Frauds to be in writing may be rati-

fied by parol.^ It has been seen that in some States the Statute

of Frauds provides that where a contract is required to be in

writing and signed by the party to be charged, or his agent

thereunto duly authorized, such authority to the agent must

also be in writing.'' Under the rule stated above, it seems

clear that when such a contract is executed by the agent with-

out due authorization, his act can be ratified only by an instru-

ment in writing.^ It is held in one State, however, that a parol

ratification is sufficient.^ If the agent had written authority,

but departed from it by signing a contract not authorized by

the instrument of agency, a parol ratification of the contract

as signed is unavailing.^

В§ 41. (V.) Legality or validity of act ratified.

It is a general rule that the principal may ratify any act

which he could have authorized,^ and whether lawful or unlaw-

1 Mclntyre v. Park, 11 Gray (Mass.), 102; Holbrook v. Chaniberlin,

116 Mass. 155.

2 Adams v. Power, 52 Miss. 828.

8 Maclean v. Dunn, 4 Bing. 722.

* Ante, В§ 26.

6 McDowell /'. Simpson, 3 Watts (Pa.), 129; Hawkins v. McGroariy,

110 Mo. 516. This view fin<ls some su])port in the case of Ragan v. Che-

nault, 78 Ky. 545, in which it is held that where a statute proviiles that

an agent cannot make a contract of suretyship without written authority,

a parol ratification is insufiicient.

8 Hammond v. Hannin, 21 Mich. 374.

* Kozel i\ Dearlove, 144 111. 23.

8 McCracken v. City of San Francisco, 16 Cal. 591 ; City of Findlay v.

Pertz, G6 Fed. Rep. 427.

BY KATIFICATION. 57

ful.^ As he may authorize an act resulting in tort as well as

an act resulting in contract, so he may ratify the one as well

as the othcr.2 --pi^g adoption of the benefits of an act made

with knowledge of the material facts, carries with it the bur-

dens of the act, whether those burdens arise from contract or

from tort.

В§ 42. Exceptions to rule : giving notice.

An exception to the general rule is found in the case of no-

tice in behalf of an alleged principal where the notice is one

of an existing intent, and must be authoritatively given within

a specified time. Such notice cannot be given by a stranger,

or by an agent in excess of authority, and be subsequently

ratified after the specified time has expired, so as to avail the

principal.^ The reason is that the party notified has a right

to know, not merely the facts on which the notice is based, but

the existing intent of the principal with reference to such facts

so far as they concern the one notified. This he is not informed

of authoritatively, and it is immaterial that there is a subsequent

authority. Thus, if X is indorser on a bill which has been

dishonored, a notice of dishonor given him by A, who is a

stranger to the bill and to the holder, will not avail the holder,

and it seems is incapable of ratification by the holder.* In

this case the holder could have authorized A to notify X, but

cannot ratify the act where it was unauthorized, or at least

cannot ratify it after the time allowed for notice by the law

merchant has expired. So a notice to quit by two out of three

joint owners will not avail as against a tenant. " The rule of

law, that omnis ratihahitio retrofraJiitur, etc., seems only appli-

cable to cases where the conduct of the parties on whom it is

to operate, not being referable to any agreement, cannot in the

mean time depend on whether there be a subsequent ratifica-

1 Hilbery v. Ilatton, 2 II & C. 822; Whitehead v. Taylor, 10 A. &

E. 210.

2 Dempsey v. Chambers, 154 Mass. 330.

3 Doe V. Walters, 10 B. & C. 626 ; Doe v. Goldwin, 1 G. & D. 463.

* Stewart c. Kennett, 2 Camp. 177; Brower v. Wooten, 2 Taylor

(N. C), 70; Chanoine v. Fowler, 3 Wend. (X. Y.) 173.

58 FORM.VnOX OF AGENCY

tion." ^ Neither can there be a ratification if the rights of

strangers have intervened, even though the stranger knows of

the unauthorized contract.^ " The act of ratification must take

place at a time, and under circumstances, when the ratify-

ing iВ»arty might himself have lawfully done the act which he

ratifies." ^

В§ 43. Exceptions to nile : void acts.

The converse of the rule is that an act which could not have

been authorized cannot be ratified. It may be that the act if

done by the principal or by an authorized agent would have

been void ; if so, a ratification would be void.* This generally

involves the question of competency of the party, or the form

of the act. Or it may be that the act if done by any one

would have been illegal ; if so, the ratification would be

illegal, certainly if the act continues to be illegal when rati-

fied.^ But there may be two special cases. First, the act

may be legal when done but illegal Avhcn ratified, or second,

the act may be illegal when done but legal when ratified. In

either case the ratification is probably inoperative. In the

first case, because when the contract became illegal the offer

must be regarded as revoked and a subsequent acceptance of

it would be too late. In the second case, because, as the rati-

fication relates back to the time of the unauthorized contract,

it would bring into existence a contract illegal when made.^

В§44. Exceptions to rule: ratification of forgery.

A special instance in the law of ratification is presented in

the case of forgery. If A forges the name of B to an instru-

ment, can B ratify the forgery ? This is a vexed question on

which there is no agreement. It is contended, on the one

1 Ri^ht V. Cuthf>n, o East, 491.