Fisher v. Lutz ( 1911 )

BaeNes, J.

The appellant contends (1) that Arthur acted as the agent of the defendant in making the purchase, and (2) that defendant ratified the purchase by his subsequent conduct.

1. The plaintiff admitted that Arthur did not tell him that he was buying the piano for or as the agent of his father, but testified that he inferred that Arthur was doing so because he said he would have to consult his folks before buying. Plaintiff issued a receipt to Arthur for a part payment made by him and took his individual note for the balance, and at one time commenced a suit on this note against Arthur, but discontinued it when he learned that the maker of the note was a minor. It was shown that Arthur had purchased some necessary articles for use on the farm and that his father had paid for them. The testimony construed most favorably to the plaintiff fails to show that it was his intention to sell the piano to the defendant rather than to the son, and wholly fails to show that tbe son acted as tbe agent of tbe defendant in making tbe purchase, or that plaintiff was justified in believing or assuming that be acted as sucb agent. No jury question was raised by tbe evidence on tbe issue of agency.

2. Tbe boy Arthur not having acted or assumed to act as. tbe agent of bis father in tbe transaction and having no authority so to do, it is difficult to see bow there is any question of ratification in tbe case. “In order that an unauthorized act may be capable of ratification it is necessary that it should have been performed by one acting as agent on behalf of another as principal.” 31 Cyc. 1251, and cases cited. If we bad tbe case of an agent acting in excess of bis authority, but nevertheless assuming to act as agent, a promise to pay by the-principal might well amount to a ratification. But we have no sucb ease. At best all the proof tended to show was an oral promise on tbe part of tbe defendant to pay bis son’s debt, which promise was clearly void under tbe statute of frauds.

By the Court. — Judgment affirmed.