delivered the opinion of the court.
The plaintiff demands from the defendant the transfer of a tract of land, which, it is alleged, the latter purchased by the direction, and as the agent of the former, but took the conveyance in his own name.
The demand is resisted on an averment, that the defendant was limited to a smaller sum in the purchase of the land than two-thirds of the price at which it was appraised; that the defendant, being unable to purchase at the limited price, for the plaintiff, made the purchase for himself, and took the conveyance accordingly; and that afterwards, the plaintiff, well knowing this,'ratified the sale, and received a part of the price from the defendant. There was a verdict and judgment for the defendant, and- the plaintiff appealed, after an unsuccessful attempt to obtain a new trial.
A bill of exceptions was taken to the charge, in which it was alleged, that the judge misdirected the jury. The charge is a long and detailed one; our attention has not been drawn to any particular part of it, and it does not appear to us that the jury were misdirected.
The defendant failed to prove that he had been restricted by the plaintiff, as to the price at which the land was to be purchased; and his success depends on the proof of the ratification.
The plaintiff hind^VviiiciT^he ant purchased as his agent, hut anceto him7e$: lion to"re-convey, that the re-plaintiff to the pmTpaymen/of the price at •which the iRtteL* purchased, is intention to ratify the sale.This proof is presented to us in the plaintiff’s receipt, which is in the following WOl'ds:
“Rec’d. of John Catlett, five hundred and fifty-eight dollars, in part payment of a tract of land purchased by him at the suit of James M'Donald vs. Charles Black.
January 14, 1836.
JAMES M'DONALD.”
Had the receipt been for the whole price, it would be clear ••hat it would amount to a ratification of the purchase; for ^ cou^ not pretended, that after the plaintiff had received the consideration of the sale, he could demand the thing sold. The receipt being for a part of the price only, is, in our opinion, evidence qf an intention to ratify the purchase, And a partial receipt differs only from the absolute one in this, that it leaves to the plaintiff his claim for the balance. Tlie Plabitiff’s counsel has further contended, that the defendant cannot avail himself of the alleged ratification, ® ^ because he has failed; to comply with/an evident condition of i(4 *• e-> tbat he should pay the whole price. To this it has been correctly answered, that Ihe plaintiff has never put the defendant in mora; and his conduct evidently shows, that it would have been in vain for the defendant to tender the price while the plaintiff insisted on having the land, which, he contended, had risen in value to three-fold of the price at which the defendant had bought it.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.