I concur in the reversal of this judgment upon the ground that, upon the evidence, the plaintiff must be considered as having authorized his brother, Charles F. Allen, to receive the consideration paid on the sale of the property owned by them as tenants in common. On the 16th day of January, 1893, Charles F. Allen and' the plaintiff executed a deed of conveyance of the property in ques*342tion, and this deed was transmitted on January 17, 1893, by Charles F. Allen to Wells, Fargo & Co., subject to an escrow agreement, a copy of which was inclosed. That escrow agreement, dated January 17, 1893, provided that the purchaser must deposit with Wells, Fargo & Co; the sum' of $10,000 on receipt of said deed in escrow, the said' sum to be forwarded “ to us (Charles F. Allen and A. C. Allen) at once,” and that within ninety days thereafter the purchaser must deposit with Wells, Fargo & Co. “to our credit,the further sum of fifty-five thousand dollars, together with interest.” This agreement was executed by Charles F. Allen and the plaintiff, and also, by the purchaser, who thereby agreed to make the purchase upon the terms set forth. This deed and these instruments were received by Wells, Fargo & Co. and transmitted to California, and the sum of $10,000 was paid to Wells, Fargo & Co. by the purchaser, "a check for which, dated February' 16, 1893, for the sum of $9,900, was sent by Wells, Fargo & Co. to Charles F. Allen. That check, was payable to the order of Charles F. Allen and A. C. Allen, was indorsed “ Chas. F. & A. C. Allen,” and was collected by Charles F. Allen. The first $10,000 that was paid under this agreement as a consideration. for this purchase was thus received by Charles F. Allen from Wells, Fargo & Co., the agent appointed by the parties to the deed to receive the money for them, on February 16,1893. On the 29th of June, 1893, by an agreement between Charles F. Allen and A. C. Allen, of the first part, and the purchaser, of the second part, the agreement as to the payment of the consideration for the premises was amended, the purchaser agreeing to pay to Charles F. Allen and A. C. Allen $15,000 on the 1st of November, 1893, and $40,000 on the 1st of November, 1894, these two payments being described in the instrument as “the balance due on such-purchase money as required by the terms of said escrow agreement of January 17th, 1893, together with interest at the rate of 8% per annum;” and on July 14,1893, the plaintiff wrote to his brother stating : “I would advise that you write Buck to execute the last agreements as sent, pay what he can on August 1st, and that we will agree to then extend the time to Nov. 1st for whatever balance of the $15,000 remaining unpaid.”
From these agreements it conclusively appears that the plaintiff understood that the first $10,000 had been paid, and that the pay*343ment of the balance, amounting in all to $55,000, which, by the original agreement, was to be paid within ninety days after the receipt of the deed in escrow, was postponed. With knowledge of-the fact- that- the first $10,000 had been paid, he extends the time for the payment of the remainder, and it is conceded that he subsequently received from his brother $3,000. on account of the purchase money that had been paid by the purchaser. Considering the situation, it seems to me clear that the plaintiff authorized his brother to act for him in the transaction in forwarding the deed and in receiving the consideration to be paid therefor. It was pot a ratification, but an original authority to Charles F. Alien to conduct, the transaction for both tenants in common and to receive the consideration paid for a conveyance of the property. Charles F. Allen is dead, and we are deprived of his testimony as to the relation which existed between himself and his brother. The first check was received by Charles F. Allen on February 16,1893, and the last check was received on November 18, 1896, and no claim was made against Charles F. Allen during that period, and down to his death on the 30th of September, 1898. I think that upon the uncontradicted evidence the authority of Charles F. Allen to receive the purchase money for this property Was sufficient to justify him in making the indorsement, and that, as to third parties who accepted the indorsement and acted upon the faith of it, the plaintiff is estopped from claiming that Charles F. Allen had no authority to receive the consideration for this property; and that for that reason the defendant bank’s motion for a verdict should have'been granted.
If, however, there is any doubt about this, I think that there was a complete ratification by the plaintiff of the act of the defendant in obtaining the money paid by the purchaser for this property. The plaintiff proceeds upon the theory that he must, before he can ratify, have had knowledge of the fact that thefmoney was paid by these checks drawn to the order of Charles F. and A. C-. Allen; but that, I conceive, is not necessary. To ratify these payments, he must have had knowledge óf the fact that the money had been paid to Charles F. Allen; and if he ratified the payment of the money to Charles F. Allen the form that that payment took was not material. That he had knowledge that Charles F. Allen had -received a portion of the money is clear; and with that knowledge he executed *344these’ agreements, extending the time of payment' of the balance due. I think this was a formal ratification of the act of the purchaser in paying to Charles F. Allen the moneys that had been paid.
For these reasons I think the defendant was entitled to the direction of a verdict, and I, therefore, concur in the reversal of the judgment.
Van Brunt, P. J., and Hatch, J., concurred.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event.