Combs v. Scott , 94 Mass. 493 ( 1866 )

Bigelow, C. J.

There was nothing in the nature of the services rendered by the plaintiff, for which he seeks to recover compensation in this action, which contravened public policy, or which taints the cause of action against the defendants with illegality. The evidence at the trial did not show that the plaintiff exercised or carried on any particular trade or calling which made the legal appellation of broker applicable to him. It only appeared that he undertook to render certain specific services at the request of the defendants, at a stipulated price. He was a special agent for a particular purpose. Nor can we see that any infraction of good morals, or of the good order and welfare of society, or of any public or private duty, was necessarily involved or likely to occur by reason of the performance of the services which the plaintiff was employed to render. At the time the alleged contract was entered into, it was not only competent for towns and cities to procure recruits and secure their enlistment into the military service of the United States to the extent of the quotas allotted to them respectively, but it was their clear and manifest duty to adopt all reasonable and proper means to effect this object with certainty and dispatch. Inasmuch as a municipal corporation can act only through agents, the employment of persons to act immediately in their behalf, or to procure others to act as sub-agents who could more efficiently render the required service, was a measure of obvious necessity and propriety, entirely consistent with the due performance of the legal duty imposed on cities and towns. Nor would it make any material difference if the defendants, instead of being employed by the town to procure recruits for enlistment, were in fact engaged in procuring substitutes for those citizens of the town ,vho might be drafted into the military service, as part of the quota of the town. This was a strictly legal employment, in which a person might properly engage, either for himself or as agent for others. The procurement of substitutes in the place of men drafted into military service was expressly authorized and sanctioned by the act of Congress. U. S. St. of 1864, c. 13, § 4. Clearly, if it was legal and in accordance with public policy for persons liable to military duty to procure substitutes for themselves, there could be no violation of duty or of any rule or principle of law in effecting the same object through the instrumentality of agents. In any aspect which can be taken of this part of the case, it seems to us that the cause of action was legal and valid, and, if established by the evidence, would well warrant a verdict in favor of the plaintiff. The refusal of the court to give the instruction asked for by the defendants in the first request was therefore right.

But, upon another point, we are of opinion that the exceptions of the defendants are well taken. In instructing the jury on the question of ratification by the defendants of the contract alleged to have been made by their agent in excess of the authority granted to him, the judge in effect told the jury that such ratification would be binding on the defendants, though made under a material misapprehension of facts, if such misapprehension arose from the negligence or omission of the defendants to make inquiries relative to the subject matter. In the broad and general form in which this instruction was given, we are of opinion that it did not correctly state the rule of law, and that the jury may have been misled by it in the consideration of this part of the case.

The general rule is perfectly well settled, that a ratification of the unauthorized acts of an agent, in order to be effectual and binding on the principal, must have been made with a full knowledge of all material facts, and that ignorance, mistake or misapprehension of any of the essential circumstances relating to the particular transaction alleged to have been ratified will absolve the principal from all liability by reason of any supposed adoption of or assent to the previously unauthorized acts of an agent. We know of no qualification of this rule such as was engrafted upon it in the instructions given to the jury in the present case. Nor, after considerable research, have we beén able to find that such qualification has ever been recognized in any approved text writer or adjudicated case. And, upon consideration, it seems to us to be inconsistent with sound principle.

Ratification of a past and completed transaction, into which an agent has entered without authority, is a purely voluntary act on the part of a principal. No legal obligation rests upon him to sanction or adopt it. No duty requires him to make inquiries concerning it. Where there is no legal obligation or duty to do an act, there can be no negligence in an omission to perform it. The true doctrine is well stated by a learned text writer: “ If I make a contract in the name of a person who has not given me an authority, he will be under no obligation to ratify it, nor will he be bound to the performance of it.” 1 Livermore on Agency, 44. See also Paley on Agency, 171, note o. Whoever, therefore, seeks to procure and rely on a ratification is bound to show that it was made under such circumstances as in law to be binding on the principal, especially to see to it that all material facts were made known to him. The burden of making inquiries and of ascertaining the truth is not cast on him who is under no legal obligation to assume a responsibility, but rests on the party who is endeavoring to obtain a benefit or advantage for himself. This is not only just, but it is practicable. The needful information or knowledge is always within the reach of him who is either party or privy to a transaction which he seeks to have ratified, rather than of him who did not authorize it, and to the details of which he may be a stranger.

We do not mean to say that a person can be wilfully ignorant or purposely shut his eyes to means of information within his own o possession and control, and thereby escape the consequences of a ratification of unauthorized acts into which he has deliberately entered; but our opinion is that ratification of an antecedent act of an agent which was unauthorized cannot be held valid and binding, where the person sought to be charged has misapprehended or mistaken material facts, although he may have wholly omitted to make inquiries of other persons concerning them, and his ignorance and misapprehension might have been enlightened and corrected by the use of diligence on his part to ascertain them. The mistake at the trial con sisted in the assumption that any such diligence was required of the defendants. On this point, the instructions were stated in a manner which may have led the jury to misunderstand the rights and obligations of the parties.

Exceptions sustained