This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
If a contract is invalid because it is outside of the power of the public corporation, or not in compliance with a mandatory requirement of the law as to its form, ratification is impossible.1 Thus the allowance by county commissioners of an
26 Brown v. Ingalls Township, 81 Fed. 485.
27 Lehman v. San Diego, 73 Fed. 105.
28 Ralls Co. v. Douglass, 105 U. S. 728; National Life Ins. Co. v. Huron, 62 Fed. 778; 10 C. C. A. 637.
29 Coler v. Cleburne, 131 U. S. 162.
30 Citizens, etc., Association v. Perry Co., 156 U. S. 692; German Savings Bank v. Franklin Co., 128
U. S. 526; Bolles v. Perry Co., 92 Fed. 479; 34 C. C. A. 478.
31 Burlington Savings Bank v. Clinton, 111 Fed. 439.
32 Salmon v. Allison, 125 Fed. 235.
33 Chicago, etc., Ry. v. Dundy County (Neb.). 91 N. W. 554.
1 Sage v. Fargo Township. 107 Fed. 383; 46 C. C. A. 361: Smeltzer v. Miller, 125 Cal. 41; 57 Pac. 668; Berka v. Woodward, 125 Cal. 119; 73 Am. St. Rep. 31; 57 Pac. 777; invalid claim does not make it valid,2 and if money is paid under such allowance it may be recovered.3 If the invalid contract was one which the corporation could make, and is not void because not in compliance with a mandatory provision of the law, it may be ratified.4 Thus a breach of condition avoiding the original liability may be waived by refunding such liability,5 and a contract invalid because no appropriation was made therefor may be ratified by an appropriation.6 Thus a subsequent resolution may make valid a contract void for want of such resolution.7 A contract made by the members of a board of education acting individually may be ratified by their conduct as a board in accepting and using goods delivered thereunder.8 Ratification, where possible, must be unequivocal. Where the individual members of a city council encouraged an attorney to bring an action, and the council as a body ordered the city's attorney to aid in such suit and appropriated money for getting testimony therein, such official acts are not a ratification, the city not being a party to the action.9 Ratification must be by acts as formal as were necessary to make the original contract valid. If a contract must be made by ordinance, it must be ratified by ordinance.10 Ratification, if valid, makes the entire contract valid. Thus it validates a bond given by the contractor to the city to protect laborers and material men.11
Paxton v. Bogardus, 201 111. 628; 66 N. E. 853; Indianapolis v. Wann, 144 Ind. 175; 31 L. R. A. 743; 42 N. E. 901; Gemmill v. Arthur, 125 Ind. 258; 25 N. E. 283; Grady v. Pruit, 111 Ky. 100; 63 S. W. 283; Wadsworth v. Concord, 133 N. C. 587; 45 S. E. 948; McAleer v. An-gell, 19 R. I. 688; 36 Atl. 588; State v. Pullman, 23 Wash. 583; 83 Am. St. Rep. 836; 63 Pac. 265; Balch v. Beach, 119 Wis. 77; 95 N. W. 132. (Distinguishing, McGillivray v. School District, 112 Wis. 354; 88 Am. St. Rep. 969; 58 L. R. A. 100; 88 N. W. 310, as a case where the act ratified was within the power of the corporation, though without the power of the agent originally making it.) Uncas National Bank v. Superior, 115 Wis. 340; 91 N. W. 1004. " When a corporation or an agent thereof does an act or makes a promise that is forbidden by its charter or is not authorized thereby, either expressly or by fair implication, the act or promise is a nullity and cannot be binding by a subsequent ratification." City of Memphis v. Gas. Co., 9 Heisk. (Tenn.) 531, 543, quoted in Wat-terson v. Nashville, 106 Tenn. 410, 424; 61 S. W. 782.
2 Commissioners v. Heaston, 144 Ind. 583; 55 Am. St. Rep. 192; 41 N. E. 457; 43 N. E. 651; Jones v. Lucas Co., 57 O. S. 189; 63 Am. St. Rep. 710; 48 N. E. 882.
3 Gross v. Whitley County, 158 Ind. 531; 58 L. R. A. 394; 64 N. E. 25.
4 Supervisors v. Schenck, 5 Wall. (U. S.) 772; State v. Milling Co., 156 Mo. 620; 57 S. W. 1008; Bell v. Waynsboro, 195 Pa. St. 299; 45 Atl. 930.
5 Graves v. Saline Co., 161 U. S. 359.
6 Hill v. Indianapolis, 92 Fed. 467.
7 Cooper v. Cedar Rapids, 112 Ia. 367; 83 N. W. 1050.
8 Johnson v. School Corporation, 117 Ia. 319; 90 N. W. 713.