[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 398
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 399 The only question involved in this appeal is whether the evidence and findings of the referee, so far as sustained by it, were sufficient to justify his second conclusion of law. He held that the payment of five hundred dollars by the defendant to the plaintiffs on October 19, 1892, constituted a ratification of the unauthorized contract made by Swan. It is to be remembered that the defendant had previously assured the plaintiffs in plain and unmistakable terms that the contract made by Swan was wholly unauthorized. Moreover, when the five hundred dollar payment was made, he refused to make any payment whatever until a certificate was obtained which would authorize him to charge to the contractor the amount paid, having expressly stated to the plaintiffs that his contract was with Mr. Schumacher, and he proposed to do nothing which would change his relations in regard to it.
A reading of the evidence contained in the record demonstrates that, from the commencement to the end of the transaction, the defendant persistently insisted that he was in no way liable upon the contract made by Swan, and that he would in no way recognize his agency in making it and would do nothing except perform his contract with his contractor. He did, however, evince a disposition to aid the plaintiffs in any way possible without ratifying the act of Swan in making the contract with them, or without in any way interfering with his contract with Schumacher. Not only is this clearly indicated by the evidence, but the proof also shows that the plaintiffs well knew and well understood that Swan was not the agent of the defendant, that the defendant was not responsible for his act, and that he refused in any way to change his relation with the plaintiffs or with his contractor. That the defendant never intended by act, word or deed to ratify the act of Swan in making the contract with the plaintiffs is manifest, and there is no evidence to sustain a contrary conclusion. A ratification of the unauthorized act of an agent or of a stranger who claims to act as such, if it exists, must be found in the intention of the principal, either express or implied. *Page 401 If that intention cannot be shown, no ratification can be held to have been established. While it is the duty of a principal to disavow the unauthorized act of his agent within a reasonable time after it comes to his knowledge, or otherwise, in some cases, he makes the act his own, still, where one who has assumed to act as an agent for another has no authority to do so, but is a mere volunteer, a failure to disavow his acts will not amount to a ratification, unless under such circumstances as indicate an intention to do so. When the transaction under consideration is tested by the ordinary rules governing the law of agency, it becomes obvious that there was no evidence in this case which justified the referee in holding that the defendant by the payment of five hundred dollars, or in any other manner, ratified the act of Swan.
We think the referee's second conclusion of law cannot be sustained as there was no evidence to justify it; that the judgment of the General Term and that entered on the report of the referee should be reversed, and a new trial granted, with costs to abide the event.
All concur.
Judgment reversed, etc.