Chapman v. Lee's Adm'r

PETERS, J. This is an action of assumpsit for a balance of the purchase-money for lands alleged to have been sold by the appellant, Chapman, to Mrs. Susan Lee, in her life-time, but who has since died, and is represented in this suit by the appellee, James M. Lee, as her administrator with the will annexed. There was a judgment of non-suit in the court below against the plaintiff in that court, said Chapman, who brings the case by appeal to this court, and here moves to set the judgment of non-suit aside, and for a new trial. The cause went off on the trial in the court below upon the demurrers to the plaintiff’s complaints, and upon the ruling of that court in rejecting certain evidence offered in support of the general counts upon which issues were joined, as shown in the bill of exceptions. The ac [154] tion of the circuit court in sustaining said demurrers, and in rejecting the evidence abovesaid, are now assigned in this court for error.. — Revised Code, § 2759. There were three complaints filed by the plaintiff in the court below. The first, which is called, in the record, the original complaint, need not be noticed, as it seems to have been abandoned in the progress of the cause. Besides this original complaint, there was also filed a first amended complaint, which contained three counts — one count upon a special contract, which is copied into the count, and two other counts on stated accounts, in the usual statutory form, as prescribed by the Code. This amended complaint was demurred to, and the demurrer sustained Then, upon leave of the court, a second amended complaint was filed, which contained one count upon a special contract, alleged to have been made by said Mrs. Susan Lee, in her life-time, with the plaintiff, Chapman, for the sale and purchase of certain lands named and described in the contract, at the price and upon the terms therein stated ; and it was averred that Mrs. Lee had failed and refused to pay to the plaintiff a certain balance of said purchase-money, as required in said contract, with such other averments as showed that the defendant, as the representative of Mrs. Lee, was liable to pay such balance. This second amended complaint was also demurred to by the defendant, and the demurrer was allowed. The parties then went to trial by a jury upon issues joined upon the counts upon stated accounts. There can be no question that, had the contracts alleged in the special counts of the first and second amended complaints been made by Mrs. Lee herself, they would have imposed upon her a liability to pay for the whole quantity of lands named in the contracts at the price and upon tie terms therein set forth. These contracts are alleged to have been ma !e in writing, are intelligent, and in sufficient form of words to give them validity. — Rev. Code, § 1862; 4 Kent, 460. This is all the law requires. And in the . counts objected to they are alleged to have been made by Mrs. Lee in her lifetime, by her duly authorized agent* [155] Jolm R. Lee. There is nothing in the contracts set out in the complaints which contradicts these allegations. Whether these allegations were true or not, was a matter of proof, and could not be raised on the demurrers. These counts are sufficient^ and the court erred in sustaining the demurrers, as shown in the record. — Rev. Code, § 2629. It seems that the learned judge in the circuit court, in considering the demurrers to the complaints, suffered himself to be carried beyond the allegations of the counts under discussion, to the fact of ratification, which arose upon the contract made and entered into between Chapman and John R. Lee, as the alleged agent of Mrs. Lee, in her life-time, on December 23, 1858, for the sale of the lands mentioned therein. This fact of ratification could only be tried and determined by the jury, unless it was submitted to the court on a demurrer to the evidence. Rev. Code, §§ 2750, 2751. But there was no demurrer to this effect. As a general rule, when a party adopts what another has done for his benefit, this is evidence of ratification, if the adopting party may have legally acted in the matter without an agent. — Kenan v. Holloway, 16 Ala. 53, 60; Story Ag. § 239, et seq., and cases cited. This ratification, when made deliberately and upon a full knowledge of all the circumstances of the case, refers to the original act of the agent, or the party assuming to act as agent, and puts the ratifying principal in his place. It makes the act of the agent, or assumed agent, the act of the principal himself. Story Ag. §§ 243, 244. It is, nevertheless, true that a void contract can not be made good by ratification, but a contract merely voidable may be; and when so ratified it becomes in every sense the contract of the party so making the ratification. — Story Ag. §§ 240, 241. The objection to the evidence rejected is, that it is irrelevant. Is this so ? An account stated is a confession that there is a fixed and definite sum due from the defendant to the plaintiff at the date of the alleged accounting. If the facts show that this is the necessary result of the settlement between the parties, any of such facts are competent [156] on the trial of such an issue. — 2 Stark. Ev. 97, (marg.), et seq.; 1 Chit. Pl. 358, (marg.); Freeland v. Heron, Lenox & Co., 7 Cranch, 147, 151; Ware & Cowles v. Dudley, 16 Ala. 742. The deed of Chapman to Mrs. Lee was evidence tending to show that she had purchased the lands therein intended to be conveyed, and the amount of the price agreed to be paid for the same. This deed bears the same date of the contract, entered into between Chapman and John E. Lee as the agent of Mrs. Lee, and it is by direct reference and agreement made a part of said deed as a contract entered into between Chapman and Mrs. Lee The recital in the deed is in these words, to-wit: “ It being understood between the parties, the said Eeuben Chapman and the said Susan Lee, by her agent, the said John E Lee, that the contract this day entered into by them for the purchase and sale of said lands, and witnessed by George B. Saunders, is made a part of this deed; and the intention in making this deed is, that it shall conform in all respects to this contract.” This is not a merger of the first contract in the deed, but the deed and the contract were thus made by Mrs. Lee herself parts of the same transaction. — 7 Cr. 540; Shep. Dig. 500, § 3. And as such, they were both evidence of the sale and the terms of the sale. And in a suit for the purchase-money of the land, or the balance of the purchase-money for the land, by the vendor against the vendee, they were not irrelevant evidence to prove the amount of the purchase-money and the terms upon which it was to be paid. This was the purpose of the suit, whether upon the special or the general counts. Such evidence was competent so far as it weñt, and the plaintiff could not proceed after its rejection. The rejection of this testimony rendered it necessary for the plaintiff to suffer a non-suit. This was done, and the decision of the court below was reserved by bill of exceptions for review in this court. — Rev. Code, § 2759; Vincent v. Rogers, 30 Ala. 471. The ruling of the court below was erroneous. The- judgment of the circuit court is reversed, and the cause is remanded for a new trial.