Seeley v. North

Church, J. The court has found, that North, the defendant, had no interest in the bill of exchange, in the prosecution of which the costs and charges of the plaintiffs arose, which they now attempt to recover; that he never authorized Burnham to commence a suit upon it against Smith; nor to employ any counsel for him, or at his expense. And it is also either found or admitted, that the defendant never did employ the plaintiffs as his attorneys; nor did he have any communication with them, only as he executed and returned to them, at their request, the release set forth in the remonstrance. The plaintiffs may have supposed, and probably did, that North was the real plaintiff in the suit prosecuted against Smith upon the bill of exchange, as well in interest as in name. They may have given credit entirely to him, supposing Burnham was his agent. Burnham probably concealed from the plaintiffs, as he did from North, the truth of the case. And yet all these circumstances do not conduce to prove any contract on the part of North, express or implied, so long as it is conceded, that he never employed the plaintiffs, nor authorized Burnham to do so, and had no interest in the subject matter of the suit against Smith. The plaintiffs rely very much upon the circumstance, that the defendant, North, executed the discharge before referred to, and thus qualified Burnham to become a witness in the action against Smith. They suppose this, in legal effect, was an act of ratification, on the part of the defendant, of the unauthorized retainer of the plaintiffs as attorneys and counselors, by Burnham. Mr. Seeley’s letter, for the first time, informed the defendant, that the suit was pending in New-York, and requested his interference, so that Burnham could testify on the trial; but it did not inform him, that the plaintiffs were conducting the suit on his behalf, or at his expense, or on his credit. It alluded to Burnham in connexion with the action, but not as agent of this defendant. Nothing contained in that letter could lead North to suspect, that Burnham had done any thing to commit him as responsible to the plaintiffs as his attorneys—nothing which ought to put him on enquiry, or induce him to speak on the subject. While he was informed, that a suit was pending in his name, he knew, at the same [97] time, that he had no interest in it, and that he had done no act subjecting himself to any demands on account of it. Burnham had repaid to North the money advanced by him, and had resumed the bill of exchange as his own—as the indorsee of Smith. How could North, after this, suppose himself at all connected with the suit for the recovery of the money from Smith? North resided in this state; the suit was pending in the state of New-York, and subject to the legal formalities there required; and if he knew, that the action was prosecuted in his name, he must have supposed this was done for some good reason known to the plaintiffs as professional gentlemen, and about which he need not inquire. He might very well have supposed it was but the common case of a suit brought by the assignee of a chose in action, in the name of the assignor. Nothing in Mr. Seeley’s letter gave an intimation that the plaintiffs were acting as the attorneys of North; and this is the controuling feature of the case. A ratification of an unauthorized act of an agent, without full knowledge of all the circumstances connected with such act, cannot be presumed, and will not bind the principal. And such knowledge is a most important qualification of the doctrine of presumed ratification, and indispensable to its legal, as well as equitable, operation,—especially, when no third person has been misled or injured. Owings v. Hull, 9 Peters, 608. Rogers v. Kneeland, 13 Wend. 114. Story on Agency, § 243. It is claimed here, unless it be presumed that North intended to adopt the suit against Smith as his own, with the expenses of its prosecution, when he executed the release, that he must be considered as practising a fraud upon the court, by that act. We make no such inference. The release was sent by Mr. Seeley to North, to be signed and returned. The purpose for which it was wanted, was not an unusual, but a very common one; and when suggested by respectable counsel as being necessary, the act of the defendant complying with the request, cannot be condemned as improper. Besides, as Burnham had paid to him the full amount of the money he had advanced to take up the bill of exchange, why should he object to releasing Burnham from all claims upon him on that account, without adverting to the [98] costs of the action, with which he supposed he had no concern? We concur in opinion with the superior court, that the plaintiffs, upon the facts found, are not entitled to recover, whether the questions submitted to us, be of law or of fact. We doubt whether any question of law is involved in this case; but rather believe, that the only question is, whether in point of fact, North ratified the act of Burnham, in prosecuting the action in his name against Smith, and in employing the plaintiffs as counsel for this purpose. The most the plaintiffs can make of it, is, that by executing the release, the defendant intended to recognize, and did in fact recognize, the plaintiffs as his attorneys. It is a question of intention. And where the nature and effect of an act depends upon the intention with which it is done, such intention must be found by the jury, and not presumed by the court; as if it be proved that a person destroyed his will, it is for the jury to say, whether he thereby intended to revoke it. Harwood v. Goodright, Cowp. 87. Poivis v. Smith, 5 B. & A. 850. (7 E. C. L. 279.) We think there is nothing erroneous in the judgment of the superior court. In this opinion the other Judges concurred. Judgment affirmed.