Fiske v. Holmes

Appleton, J. It seems that Davis R. Stockwell, having funds of these defendants in his hands, without their knowledge, at the instance of the plaintiffs, paid the same to them, with the understanding that they were to repay the same to him in the event of his being called on by the defendants therefor. The plaintiffs passed the amount received to the credit of• Estabrooks, one of the defendants, against whom they had a bill individually. When the fact of the payment was communicated to Estabrooks, he expressed dissatisfaction with what had been done, and claimed the money paid as belonging to him. As Stockwell made this payment to the plaintiffs in his own [444] wrong, he still remained liable to the defendants for the amount of their funds in his hands. To constitute this a valid payment by him, his acts must have been previously authorized or subsequently approved. The payment, too, was conditional and Stockwell retained the right of reclamation. The defendants might at any time recall these funds from the hands of Stockwell. If this were done, the plaintiffs, by the very terms on which they received them, would be liable over to Stockwell. The payment having been upon condition, and made by one unauthorized, and not having been sanctioned or approved before the date of the plaintiffs’ writ, this action must be regarded as having been rightly commenced. Upon the trial of the action, the defendants expressly assented to the payment by Stockwell and relied upon the same as their only defence. It is now claimed that this affirmance shall act retrospectively, and not merely defeat an action rightly commenced, but deprive the,plain tiffs of their costs and impose upon them those of the defendants. Rut such is not the law. No maxim is better settled than the maxim omnis ratihabitio retrotrahitur et mandato priori cequiparatur. Rut as the absence of previous or contemporaneous assent renders the ultimate validity of a transaction contingent, it being doubtful whether the necessary ratification will ever be given or not; it necessarily follows that the subsequent assent does not relate back so as to prejudice a party whose conduct has been guided by the transaction as it actually occurred. Still less shall a party be injuriously affected by a subsequent assent to, or affirmation of, an act, if the party assenting or affirming had, when the act, which is in dispute, was first communicated, disaffirmed and repudiated the same. If the defendants assent to the payment as one made in their behalf, it cannot operate retroactively and thus defeat the present action. As other rights have intervened, it cannot be regarded as effective, to the injury of the plaintiffs, be [445] fore it was given. The defendants might have affirmed the payment at any moment had they so chosen, and, not so doing, they are equitably liable to the costs which have arisen. If the payment is to be regarded as made when the act of Stockwell was affirmed, it would be a payment after the commencement of the suit, and, according to many authorities entitled to the highest consideration, could not be given in evidence under the general issue, but must be pleaded in bar of the further maintenance of the suit. “ It would be unjust,” says Richardson, C. J., in Bank v. Brackett, 4 N. H. 557, “ that a plaintiff, who had rightfully commenced a suit for a just cause, be barred by matter arising after the commencement of the action, and subjected to pay all the costs from the beginning. To prevent this injustice, the law compels a defendant to plead matter arising after the commencement of the action in a particular manner, that the Court may be enabled to settle the question of costs on just principles.” In Corbett v. Swinbourn, 8 Add. & Ell. 613, it was held that payment after the commencement of the suit, and acceptance thereof by the plaintiff, is to be pleaded in bar of its further maintenance. But we do not intend to decide whether a payment thus made should be specially pleaded or not, as it is not necessary for the determination of this cause. The defendants claimed that the payment made by Stock-well, if subsequently assented to, was a bar to this suit. The presiding Judge instructed the jury otherwise, and correctly. The effect of a payment after the commencement of a suit was not presented to the Court for their consideration. The instructions requested were rightfully withheld, and those given were in accordance with the legal rights of the parties. Exceptions overruled; — Judgment on the verdict. Tenney, C. J., and Hathaway, May, and Goodenow, J. J., concurred. Rice, J., did not sit.