There are other classes of cases usually referred to the heads of ratification and adoption which in their essence involve the making of promises which are enforced by the law although supported by no present consideration. Thus where a contract has been made by one who purports to be, though he is not agent for another, the ratification of the agreement by the latter for the first time subjects him to legal liability. If he is regarded by the law as simultaneously becoming the promisee of a promise which was made to the supposed agent, there is consideration for the promise involved in his ratification, but otherwise there is not; and cases can easily be supposed where the ratifying principal gains nothing in exchange for the liability which he assumes.6 This is especially true in cases where the agent had a general authority and his violations of instructions or excess of authority, are not sufficient to afford ground to the principal for escaping from liability on a contract made by the agent on his behalf with the third person. Where the agent's general authority, or his apparent authority are thus such that the principal is bound by the contract, he may hold the agent liable for making it; but by his subsequent action may approve or ratify the agent's conduct. Such ratification obviously has no effect on the rights and liabilities of the third person; it simply frees the agent from liability to his principal. This is a pure gift on the part of the principal and yet is binding upon him.7 Similarly where a party to rule, based on a fiction originally and still fictitious, that an antecedent debt is consideration for a subsequent promise to pay it. In connection with the cases in question, the fiction has been kept alive by the desire of courts to find some way to hold liable on a new promise any person whose defence or ground of non-liability, though technically valid, had no substantial foundation in justice. The exact boundaries of this branch of the law in view of these facts can be determined only empirically.
2 Stout v. Ennis, 28 Kans. 706.
3 In Harm v. Clark, 94 Iowa, 327, 62 N. W. 864, and Poole v. Homer, 64 Md. 131, 20 Atl. 1036, the defendant had orally contracted to pay the profit derived from a real estate transaction, to the plaintiff, and, after having made a profit, again promised to pay the money and was held legally bound to fulfil his promise, though the original agreement was held an oral trust within the statute. In Brown v. Latham, 92 Ga. 280, 18 S. E. 421, a son in consideration of land conveyed promised orally to reconvey it. It was held that this state of affairs was sufficient to support a promise after the father's death to pay the defendant's sister a share of the value of the land. In Faraham v. O'Brien, 22 Me. 47S, a promise to reimburse the plaintiff for expense incurred in preparing to carry out an unenforceable oral agreement to make a lease was sustained.
4 Stout v. Humphrey, 69 N. J L. 436, 55 Atl. 281. This decision was followed in Bagnole v. Madden, 76 N. J. L. 255, 69 Atl. 967. Though in the latter case the subsequent promise was written, the New Jersey court held that a proper construction of the local statute required the original bargain to have been in writing. In Muir v, Kane, 55 Wash. 131,104 Pac. 153,26 L. R. A. (N. S.) 519, such a subsequent written promise was enforced; as was a note subsequently given in payment in Mohr v. Bickgauer, 82 Neb. 398, 117 N. W. 950.
5 Hooker v. Knab, 26 Wis. 511; Nichols v. Mitchell, 30 Wis. 329.
6 Grant v. Beard, 50 N. H. 129.
7 All the decisions admit that the agent is thus freed from liability. Smith v. Cologan, 2 T. R. 188 n., Nor-ris v. Cook, 1 Curtis, C. C. 464; Pacific Vinegar, etc., Works v. Smith, 162 Cal. 507, 93 Pac. 86; Triggu v. Jones, 46 Minn. 277,48 N. W. 1113; Hanks v. Drake, 49 Bub. 186; Caimes v. Bleec-ker, 12 Johns. 300; Towle v. Stevenson, 1 Johns. Cas. 110; Woodward v. Suy-dam, 11 Ohio, 360; Courcier v. Bitter, 4 Wash. Cir. Ct 549. See also Bank of St. Mary's v. Calder, 3 Strob. 403; Mechanics' & Traders Ins. Co. v. Rion (Tenn.), 62 S. W. 44. In some of these decisions it is held that the acceptance by the principal of the fruits of the transaction proves, or tends to prove adoption of the agent's conduct. But as the principal is in any event bound by the transaction, so far as the third person is concerned, the fact that he endeavors to get what advantage he can from it, does not indicate approval of the agent's conduct. Moreover, this course on the part of the principal is for the agent's advantage, since it mitigates damages. In Triggs v. Jones, 46 Minn. 277, 283, 48 N. W. 1113, the court said "There is no doubt that the general rule is that, by a ratification of an unauthorised act, the principal absolves the agent from all responsibility for loss or damage growing out of the unauthorized transaction, and that thenceforward the principal assumes the responsibility of the transaction, with all its advantages and all its burdens. Neither is there any question but that, where the rights and obligations of third persons may depend on his election, the principal is bound to act, and give notice of his repudiation or disaffirmance of the unauthorized act at once, or at least within a reasonable time after knowledge of the act; and, if he does not so dissent, his silence will afford conclusive evidence of his approval. Such a rule is necessary to protect the rights of third parties who have dealt with the agent. If the principal, after knowledge, remains entirely passive, it is but just, when the protection of third parties requires it, to presume that what, upon knowledge, an agreement which he was induced to make by fraud or to which he has another equitable or personal defence, such as mistake or duress, ratifies the transaction; he thereupon without the receipt of any present consideration may subject himself to liability according to the terms of his original voidable promise. Where a forged or altered instrument is enforced merely because it has been ratified or adopted, even more clearly something of the same sort happens.8 Adoption, however, properly differs from ratification, in that no fictitous doctrine of relation is involved and recovery must be based on consideration or estoppel.9 The fiction of relation, where sanctioned by the law, should not hide the fact that in these cases, obligations are created or discharged without present consideration.