Jones v. Atkinson , 68 Ala. 167 ( 1880 )

STONE, J.

When we first considered the charge refused in this case, we doubted somewhat whether the hypothesis, or premises, justified the conclusion it invoked. Knowledge of the unauthorized act done is a necessary element in every binding ratification, and knowledge is not expressed in the charge, as one of the conditions on which a verdict for the defendant was claimed. We now think that, under the facts and circumstances shown in the evidence, that constituent was necessarily implied. The acts of ratification supposed in the charge are, that Atkinson, while said mare was in the possession of Pritchett, claimed her as his property, and offered to trade her. The undisputed facts are, that Pritchett had in his possession a mule called Jerry, which Atkinson claimed as his property; that Pritchett traded the mule Jerry, for a mule named John, and Atkinson ratified the trade, and claimed the mule John as his property; and that subsequently Pritchett traded the mule John for the mare, called the “Clanton mare.” Now, the only claim Atkinson could have or assert to the mare, rested on the title he acquired by the exchange of the mule' John for her. This claim, if he made it, rests alone on the fact that she stood in the place of the mule John. If be claimed the mare, and if he asserted and attempted to exercise acts of ownership over her, this was a ratification, and being once made, he could not revoke it, unless it was made under a misapprehension of the facts. His right and claim to the mare had no foundation to rest on, unless he had parted with right and claim to the mule. He could not claim both, and claiming one, he renounced the other.

The case of Meehan v. Forrester, 52 N. Y. 277, presented a question of ratification vel non. Pinkney, as the attorney and agent of Bertine, was intrusted with the collection of a claim due the latter. Without any authority from his principal, Pinkney took from the debtor a deed to lands, absolute on its face, but intended as security only. The Court of Appeals said: “ There was no dealing on the subject between the plaintiff [debtor] and Bertine, except through Pinkney. The evidence justifies the inference, that the deed was received by Pinkney for Bertine, in pursuance of the agreement made between Pinkney and the plaintiff, and delivered by Pinkney to Bertine. The agency of Pinkney was to collect the debt,not to purchase lands. When, under those circumstances, Pinkney delivered to Bertine the deed obtained from the plaintiff, it was the duty of Bertine to inquire, and of Pinkney to communicate, under what arrangement the deed had been obtained. In ‘the absence of any evidence to the contrary, the presumption is that these duties were performed. If not, and Bertine received the deed blindly, without receiving or making any inquiry, he must be deemed to have confided the whole matter to his attorney, and adopted whatever arrangement the latter may have made to obtain the deed.” Carving v. Southland, 3 Hill, 552. And a ratification once made, becomes irrevocable. Wharton on Agency, § 73; Buck v. Jones, 16 Texas, 461; Clark v. Van Riemsdyk, 9 Cranch, 153; Seago v. Martin, 6 Heisk. 308; Story on Agency, § 253; Lee v. Fontaine, 10 Ala. 755; Fireman’s Ins. Co. v. McMillan, 29 Ala. 147; Crawford v. Barkley, 18 Ala. 270. In Lee v. Fontaine, supra, it is said, “ Even the silence of the principal will, in many cases, amount to a conclusive presumption of the ratification of an unauthorized act.” The charge asked should have been given.

Reversed and remanded.