Bigelow, Bros. & Kennard v. Denison

The opinion of the court was delivered by Kellogg, J. The only question, presented for consideration in this case, arises upon the charge of the county court. The court charged the jury, “ that if they were satisfied, that the defendant wrote and sent to the plaintiffs a certain letter referred to, it was such a ratification of the acts and doings of B. F. Denison, as would, in laur, make the defendant liable to pay the note;” and to this part of the charge exception was taken by the defendant. In the letter referred to, dated July 5,1848, the defendant speaks of the note as “ my note” and says, “ I cannot raise the money to pay my note, and what to do I know not.” He speaks of his father being indignant, that the land was mortgaged for the watches, and that he would never give him any property, until the note was paid [568] and taken up. The defendant offers to deed the land to the plaintiffs, which was mortgaged for the payment of the note, and, if they are not willing to do that, requests them to hold on to the note until the spring and he and his brother would try to pay it. The defendant does indeed in the letter complain, that his brother had deceived him; but he no where in the letter repudiates the contract, or refuses to pay the note, or denies the authority of his brother to make the note, but on the contrary requests thfe plaintiffs to retain the note and he will endeavor to pay it the next spring. This, we think, was at least an adoption by the defendant of the act of B. F. Denison in giving the note, and is, in law, equivalent to an antecedent authority to execute the same. Indeed, it seems to us to amount to an admission of the right of B. F. Denison to execute the note in question. But it is said, that a suit could not be instituted for the recovery of-the amount, until the expiration of the time specified in the letter, in which the defendant promised he would pay it. If the suit were founded upon the defendant’s promise contained in the letter, the objection, it is conceded, would be well taken. But the suit is founded upon the note, and the letter is only resorted to as showing the defendant’s acquiescence in the execution of the note by his brother, and an admission that he had authority to make the same. We regard the charge as unexceptionable. The judgment below is therefore affirmed.