The case was sent to a referee, who found certain facts, but did not return a general verdict. The verdict for the plaintiff, found by the court from the facts reported by the referee, adds nothing to the plaintiff's case. The right of the plaintiff to a judgment depends upon the sufficiency of the facts found by the *Page 63 referee. Crawford v. Forristall, 57 N.H. 102. If those facts do not establish a right to recover there would be a judgment for the defendant, unless the case should be recommitted for further findings. It is not the province of the court to add to the findings reported. The trial of the facts having been committed to the referee, the function of the court is merely to apply the law to the facts found. March v. Putney, 56 N.H. 226. It is the practice here to recommit cases in which the referee's report is deficient. Andrews v. Green, 61 N.H. 639; Cutting v. Tappan, 59 N.H. 562; Lord v. Smith, 59 N.H. 593. The defendant's exception to the verdict found by the court is sustained.
The report is incomplete. It does not make it clear whether, when Reginald promised to pay the plaintiff $500, he made the agreement as his own, or whether he undertook to promise on behalf of the defendant. Taken literally, the report means that he made the agreement for himself. If this is true, the plaintiff cannot recover, for it is found that no agency then existed. Where there is no agency and no attempt to act as agent, there is nothing to which the doctrine of ratification can apply. Saltmarsh v. Candia, 51 N.H. 71; 2 C. J. 474.
It also appears from the report that Reiss engaged the plaintiff to act for him in endeavoring to purchase the property. Apparently, the plaintiff undertook to act as agent for both parties. If such is the fact, he cannot recover from the defendant, in the absence of proof that she knew of and assented to his acting in such dual capacity. Walker v. Osgood,98 Mass. 348; Pearson v. Railroad, 62 N.H. 537.
Assuming that these deficiencies in the plaintiff's case are hereafter supplied, the question of ratification by the defendant will become material. "Ratification, though it must be evidenced by external demonstrations, is merely an act of the mind." Bayley v. Bryant, 24 Pick. 198, 203. "Where the facts are in dispute, or where the inferences to be deduced from them are such that men may reasonably differ concerning them, the question of ratification or not is for the jury. This is especially true where ratification is sought to be implied from conduct, or deduced from acts of alleged acquiescence." Mech., Agency, s. 481.
Upon this issue the referee has failed to make any definite finding. He reports that "the defendant ratified Reginald's trade, at least so far as to use the statement that she had to get $500 to pay the plaintiff as an argument why she should receive the $22,200." The *Page 64 defendant's statement was not made to the plaintiff, and is at the most an admission, spoken to one not a party to the transaction in question. "The persons to whom the ratification must be manifested are, of course, usually the parties involved in the transaction, or their agents for this purpose, though doubtless what is said or otherwise manifested to third persons may often be competent as evidence." Mech., Agency, s. 478. The statement here reported is not conclusive of the defendant's state of mind. It may have been made because she thought she ought to make the payment promised, or wished to do so, although she never either authorized or ratified it. It may have been made for other reasons. In order that words or acts shall amount to a ratification, as matter of law, they "must . . . be inconsistent with the existence of an intention not to adopt." Tiffany, Prin. and Agent, 66.
Mere knowledge upon Mrs. Atwood's part that Reginald had, without authority, promised the plaintiff $500 if he would produce customer, did not diminish her right to deal with any one who wished to buy. It did not put her in the position of being obliged to refuse to sell to Reiss, upon peril of becoming liable to the plaintiff upon Reginald's unauthorized promise. "Conduct which would have been within the principal's right in case he repudiated the transaction will not amount to ratification." Tiffany, Prin. and Agt. 66. The case is not one of accepting benefits knowing that the party engaged in conferring the same understands that payment is to be made. There is no element of estoppel in the case. Whatever the plaintiff did was before the defendant had any dealing with Reiss. The plaintiff did nothing relying upon the defendant's apparent assent to the unauthorized promise made by Reginald. Forsyth v. Day,46 Me. 176.
The defendant never accepted any benefit under the contract. All that she did was to use an alleged obligation "as an argument" to show that she should receive a larger price. Her dealings with Reiss are evidence from which a ratification could be found, but they are not conclusive. It is the ordinary case, presenting the issue of fact whether she assented to Reginald's action upon her behalf and elected to treat it as her own. This question must be decided in the affirmative in order to establish the defendant's liability.
The referee's report states that if, upon the facts found, the plaintiff is entitled to a verdict, he is to have judgment, otherwise there is to be judgment for the defendant. But this statement is *Page 65 merely a legal conclusion, or ruling, and does not necessarily prevent a further hearing or report. As it appears that certain material questions of fact have not been passed upon, it is plain that justice requires a recommitment of the case, with instructions to find: 1. Whether the plaintiff attempted to act for both parties, without the defendant's knowledge of the fact. 2. Whether Reginald assumed to act for and on behalf of the defendant. 3. Whether the defendant thereafter ratified his act. If any of these matters is determined in favor of the defendant, it will not be necessary to pass upon the other two, otherwise a finding should be made as to each.
The defendant's claim that she cannot be held liable because the plaintiff did not participate in the final negotiations cannot be sustained. His undertaking was to produce a customer able and willing to buy, and the finding is that he did so. Morrison v. Hall, 78 N.H. 48. The defendant's exception to the denial of her motion for judgment is overruled.
Case discharged.
All concurred.