Woodward v. Harlow

The opinion of the court was delivered by Bennett, J. The questions arise in this case upon an auditor’s report, in an action on book ; and the plaintiff claims to be allowed for three certain notes, which went into the defendant’s hands upon the terms specified by the auditor, and which had not been collected at the time of the audit, and which were disallowed by the county court. No question is raised, except as to the uncollected notes; and we are to inquire whether, upon the facts reported, an action of account, at common law, would lie to recover the amount of these notes. On the 26th day of September, 1853, the defendant gave to one Reuben Marks his receipt for five notes, including the three in question, to hold the same, or collect, as security for the plaintiff’s account, due to the defendant; and it is added in the receipt, that the defendant is to hold the notes or money until the [341] plaintiff’s account is settled, and then he is to account to the plaintiff for them, after the costs of the suit then pending had been paid. The case shows that when Marks turned out these notes to the defendant, Woodward was not in his right mind, and that he had no authority to do it from Woodward; and it is found that, in point of fact, the plaintiff was not indebted to the defendant. Woodward never was satisfied with the action of Marks, and he demanded the notes of the defendant, and required him to settle on account of them, and this, the report says, the defendant declined to do, except upon the terms of the receipt. No doubt, when notes go into the hands of a bailiff or receiver under a contract, he may be called to an account, in the common law' action; but the defendant insists he was a tort feazor as against the plaintiff, in getting the possession of these notes by the way of Marks. Suppose it be so, could not the plaintiff affirm the contract made by Marks, on his account, with the defendant ? We think he may; and by bringing his action on book, and claiming an allowance for these notes, he has adopted and confirmed the acts of Marks ; and it is not for the defendant to insist that the taking and holding the notes was tortious on his part. This form of action can only be maintained on the ground of á ratification. See Story on Agency, Sec. 259. It is of no consequence that the plaintiff at first disapproved of the acts of Marks. This could not have the effect to prevent a subsequent ratification of the acts. His disapproval of the acts of Marks was at any time countermandable, and cannot have the effect by way of estoppel or otherwise, to conclude the plaintiff from a subsequent adoption of the assumed agency. It is true, as held in Smith v. Hodson, 4 Term. 211, that if he adopts a part he must adopt the entire contract. But it is found that nothing was due from the plaintiff to the defendant; and if the defendant had a claim for' costs in the action then pending, he might have charged them in his account, and had them adjusted in the present action. The expression in the receipt, that the defendant is to account, “ after the costs of suit have been paid,” does not make the payment of such costs a condition precedent to the right of bringing an action, but may give to the defendant a right of retainer to an amount equal to such costs. [342] Adopting the whole contract then, as expressed in the receipt* we think there is nothing to conclude this action. "We think the defendant may well be sued in an action of account as at common law for the notes; and by the statute of 1852, a recovery can be had for those items in the plaintiff’s account in the action on book. The judgment of the county court is reversed, and judgment for the plaintiff, including in the damages the three notes uncollected at the time of the audit and the interest.