McClintock v. South Penn Oil Co.

Opinion, Mb. Justice Mitchell : The receipt by plaintiff’s husband expressed the fact of a sale, by the acknowledgment of receipt of part of the purchase money, and fixed the time and amount of the remaining payment. All the other terms of the contract, including the identification of the subject matter, were shown by the original agreement of Donaldson, on which the receipt was indorsed. The two papers thus constituted one instrument, which, so far as appears on its face, was a sufficient memorandum in writing to satisfy the statute of frauds. Its defect in that regard was dehors the instrument itself, and lay in the want of written authority in the husband to act as agent for his wife. Had his authority been in writing at that time, even though on a separate paper, no question of the validity and binding force of the contract could have arisen. His action as agent was, however, formally ratified and adopted by the wife, in writing, before any rescission or change of position in any way by the defendant. The exact question before us, therefore, is whether such ratification by the wife, of its own force, perfected and validated the agent’s original contract, or whether it still required acceptance by the grantee. No case precisely in point has been found, and we are left to determine the question on general principles. It is conceded that a deed tendered by the vendor, but refused by the vendee, will not validate a parol contract, and it is argued that the present case stands upon the same footing. But I apprehend that the rule in question results from the common-law requirement that every writing must be accepted before it becomes a contract. It is sometimes said, however, that the reason a deed tendered is ineffectual under the statute, is that until such [161] tender the vendor was not bound; the vendee could not have held him, and, there being therefore, a want of mutuality in the agreement, equity will not specifically enforce it. Whether the equitable doctrine of mutuality has any proper place in cases arising under the statute of frauds, is a vexed question on which our decisions are not in harmony, and are badly in need of review and authoritative settlement: See Tripp v. Bishop, 56 Pa. 424; Meason v. Kaine, 63 Pa. 335; Sands v. Arthur, 84 Pa. 479, and the comment upon them by Judge Reed in his treatise on the Statute of Frauds, § 367. But whatever the foundation of the rule, it is doubtful if the case of ratification of an agent’s act comes fairly within it. If the agent had been properly authorized, the contract would have bound both parties in the first instance, and the settled rule is that ratification is equivalent in every way to plenary prior authority. The objection of want of mutuality is .not good in many cases of dealing with an agent, for if he exceeds his authority, actual and apparent, his principal will not be bound, yet may ratify, and then the other party will be bound from the inception of the agreement. The aggregatio mentium of the parties need not commence simultaneously. It must co-exist; but there must be a period when the question of contract or no contract rests on the will of one party to accept or reject a proposition made, and this interval may be long or short. The offer, of course, may be revoked or withdrawn at any time prior to acceptance, but after acceptance it is too late. The contract is complete. If, in the present case, the defendants had written a letter to plaintiff, stating that they had made the agreement with her husband as agent, but that, his authority not being in writing, they requested her to send them a written ratification, and thereupon she had written and mailed an acceptance and ratification of her agent’s act, there could be no question of the contract: Hamilton v. Insurance Co., 5 Pa. 339, and cases cited in 3 Am. & Eng. Encyc. of Law, 856, tit. Contract; and 13 Am. & Eng. Encyc. of Law, 233, tit. Mail. And in effect, that is just what the defendant did here. It made the original agreement with the husband, evidenced by his indorsement on the Donaldson contract, which was delivered into its possession. On the day that payment was called for by the indorsed agreement, the defendant further indorsed on the contract an assign [162] ment by husband and wife, which would be a written ratification of the most formal kind, of the husband’s previous act, and, as the jury have found, delivered it to the husband unconditionally for execution and acknowledgment. The defendant’s consent to the contract sued upon was thus manifested; and upon acceptance by plaintiff, the contract became binding as a common-law contract of both parties, and upon her signature it became a contract in writing within all the requirements of the statute. The objects of the act, certainty of subject matter, precision of terms, reliability of evidence, and clearness of intent of the landowner, are all secured, and we see no particular in which either the letter or the policy of the statute has been violated. The cases cited by appellee, though not decisions on the precise point, tend to sustain the conclusion here reached. Maclean v. Dunn, 4 Bing. 722, was under the English statute, which requires only that the agent should be “ lawfully authorized ; ” but the opinion of Lord Chief Justice Best illustrates the effectiveness of ratification as equivalent to antecedent authority. In our own case of McDowell v. Simpson, 3 W. 129, the opinion of Kennedy, J., is clearly expressed that a lease by an agent in excess of any authority, either parol or written, may be ratified, but the ratification to create a valid term for seven years must be in writing. So far as the case goes, it is directly in line with our present conclusion, and it has never been questioned, but on the contrary is cited with approval in Dumn v. Rothermel, 112 Pa. 272. This disposes of the main question in the case, and with it the exceptions relating to the measure of damages fall. The plaintiff recovered only the contract price to which she was entitled. The only remaining assignment that need be specially noticed is the fourteenth, which is to the refusal of defendant’s point that plaintiff, having allowed her estate or interest in the land to lapse or become forfeited by non-payment to Donaldson, was disabled from suing in affirmance of the contract. If any estate remained in plaintiff, the law would certainly require her to convey it to defendent upon payment of the verdict. But her estate had expired, not through any fault-of hers, but by default of payment to Donaldson, which it was not for her, but for defendant, as purchaser and assignee of her option, to make. It was precisely analogous to a purchase by defendant [163] of a term which had a month to run, and a delay in taking possession until the expiration of the month, when the term was at an end. For such a loss the purchaser, not the seller, is responsible. Judgment affirmed.