The opinion of the Court was drawn up by
Tennev J.— This case comes before us on exceptions taken to the ruling of the Judge of the District Court in admitting evidence, which was objected to, and also to certain instructions to the jury.
The instruction, that if the patent right, which was the consideration of the note, was not worthless, they would return a verdict for the sum which was payable when the action was commenced, and interest thereon, we think correct. It is not for the Court or jury to amend or alter an improvident bargain, fairly made by the parties, unless there has been a failure of the entire, or a certain and distinct part of the consideration. Such is not the case here. The jury were required to find for the defendant, if the patent right was utterly worthless. It is not pretended, that the defendant did not obtain all that he *503contracted for, and a reduction in damages would be substituting the opinion of the jury for the price agreed upon by the parties.
The view taken by the Judge, that in order to avoid the note for want of consideration, the burden would be on the defendant, is not subject to objection. The promise is made upon consideration expressed, which must be taken as true till the contrary is shown.
Was the plaintiff entitled to a verdict upon the evidence adduced, which was competent r The defendant denied the authority of Davidson Webster to indorse the note for Baker Webster, and objected to the admission of the memorandum made and signed by the latter on the day of trial in Court, as evidence of such authority. No action can be maintained by an indorsee on a note payable to a person therein named, or order, unless the same shall have been indorsed, before the commencement of the action. A party may in numerous and perhaps in most instances, adopt and ratify the act of one professing to be his agent, when no power at the time to perform the act existed, so far as to bind the principal; and such ratification will relate back to the time of the act. But this is by no means true, in reference to the liability of third persons. As when a certain thing must be done by one having power to do it as a prerequisite to constitute a liability of a party, who had no agency in the act, the ratification of the performance thereof, by one unauthorized, cannot create a liability, when none existed before. A notice of the dishonor of a promissory note by a mere stranger, not a party to the same, or authorized by one interested, would not be a notice, which would bind an indorser. Story’s Agency, § 247.
There can be no ratification of the indorsement of a note, which can relate back, so as to make that a transfer, at a time earlier, than the ratification; and the ratification can have no greater effect, than would the indorsement itself, marie at the same time by the payee. The cases referred to by the plaintiff’s counsel from our own Reports, are those where the notes were indorsed by the payee before suits were brought, and *504therefore are not applicable to the present inquiry. Then so far as Baker Webster adopted the indorsement of Davidson Webster, it was too late to affect the present action.
Again, it is insisted that the memorandum, “ this note was indorsed by Davidson Webster by my consent, who at the time was my agent,” was legal evidence of full authority to make the transfer at the time, when it purported 10 be made. The correctness of this proposition, which was adopted by the Court, is denied by the defendant’s counsel. The memorandum is simply a written declaration of one not a party to the suit, and may be regarded as his admission, that he had no interest in the note. If however he was interested in the event of the suit, in favor of the plaintiff, this declaration even if offered by the plaintiff, to be made under oath in testimony, could not be received to affect the case. If on the other hand, the payee was disinterested, he was a competent witness, and his declarations made in Court could not be received unless in testimony. He should in such case be placed in a situation to be examined by the other party.
Can the declaration of the payee be allowed because it is in derogation of his title to the note. In the case of Maddocks v. Hankey, 2 Esp. R. 647, the doctrine contended for by the plaintiff’s counsel was allowed to prevail. But in the case of Hemmings v. Robinson, Barnes’ 3d Ed. 436, it was overruled. And in Western v. Wilmot, tried July 5, 1820, in Westminster Hall, the doctrine of the case of Maddocks v. Hankey was held by Abbot C. J. to be erroneous; and Mr. Chitty in his treatise on Bills, p. 634, considers the same case as overruled.
This writing cannot be treated with more favor as evidence, between these parties, than'the verbal admission of the payee made at the trial; for if the same thing could be evidence, when in writing, and not otherwise, the admissibility would depend upon form rather than substance; and it would be in the power of the party, to avail himself of evidence not given under oath. We think the memorandum was improperly admitted, and the
Exceptions are sustained, and a new trial granted.